Bhargav D. Karia, J.

1. Learned advocate Mr. Aakash D. Modi submitted that though he has filed caveat, he has no instructions to appear and seeks permission to withdraw his appearance. Permission is granted.

2. Heard learned advocate Mr. D.G. Chauhan for the petitioner.

3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the Judgment and Award dated 08.04.2023 passed by the Industrial Tribunal No. 1, Vadodara (For short "the Tribunal") in Reference (IT) No. 419 of 2014.

4. Brief facts of the case are that the petitioner is an Educational Institute established and constituted under the provisions of section 3 of the Gujarat Agricultural Universities Act, 2004 (hereinafter referred to as "the Act") for the State of Gujarat. The petitioner is fully aided by the State Government receiving 100% grant and is engaged in the educational activities and imparting education in agriculture and allied science and humanities in the the State of Gujarat.

4.1. The petitioner University is having various agricultural research stations at different places in the State of Gujarat and to achieve the objects under the Act, the petitioner University engages daily rated labourers for various field activities.

4.2. It is the case of the petitioner that all the regular/permanent employees are being appointed in accordance with the Recruitment Rules after following due procedure of selection and on sanctioned vacant posts.

4.3. It is the case of the petitioner University that respondent Nos. 1 to 5 were not engaged as per the Recruitment Rules after following due process of selection and on sanctioned vacant posts and they do not hold any post.

4.4. Details of respondents who are engaged on Research Centres of the petitioner University are as under:

4.5. The respondents workmen raised industrial dispute being Reference (IT) No. 419 of 2014 through the Union before the Tribunal claiming regularization in service from the date of appointment as Class-IV employees with pay scale and all other benefits with arrears.

4.6. The claim statement (Exh.6) was filed alleging that the respondents were engaged as daily wagers Field Labourers and the petitioner is not allowing to complete 240 days of service. It was further submitted that the respondents are not paid the amount of gratuity and Provident Fund and there is no security of their services and the petitioner University is exploiting and indulging in unfair labour practises by employing the respondent workmen on daily wages. It was therefore, prayed to direct the petitioner University to make the respondents permanent from the date of appointment with pay scale and with all consequential benefits and arrears.

4.7. The petitioner filed written statement at Exh.15 and denied all the facts and allegations made in the Statement of Claim contending inter-alia that respondent workmen were engaged as daily rated unskilled labourers on their research sites and it was also contended that the respondents are engaged for the field work as and when requirement arises. It was also submitted that the respondents are not entitled for regularisation in service and requested the Tribunal to reject the reference in toto.

4.8. Respondent no.1 filed an affidavit of examination in chief at Exh.21 and according to the petitioner, the respondents have failed to prove that they were entitled for regularisation in service with all benefits.

4.9. The petitioners also filed their affidavit for examination in chief and after oral cross examination of respondent no.1 as well as the petitioner's witness, the Tribunal held that the services of the respondents are entitled to be regularised with effect from the date of filing reference and the petitioner was directed to consider the workmen as permanent employees by considering the intervening period as notional within 30 days from the date of publication of the award with all consequential benefits.

5. Learned advocate Mr. D.G.Chauhan for the petitioner University submitted that the respondent workmen are appointed as daily wagers and they are not entitled to get permanent benefits of a regular employee in view of decision of Hon'ble Apex Court in case of Gujarat Agricultural University v. Rathod Labhu Bechar and others reported in (2001) 3 SCC 574 [LQ/SC/2001/180] . It was submitted that the Apex Court in the said decision has given direction which is binding upon the petitioner as well as all concern as under:

"10. We heard learned Counsel for the parties at length and considered the objections of the respondents with respect to the proposed scheme for the regularisation of daily-rated workers. The proposed scheme is reproduced below :

["Scheme for regularisation of daily-rated labourers of the Guj. Agricultural University.

[1. Daily-wages workers, whether skilled, semi-skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31-12-1999, shall be regularised as regular employees with effect from 1-1-2000 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the University subject to the following terms and conditions:

[(a) The daily-rated employees shall be eligible and must possess the prescribed qualifications for the post at the time of their appointment on daily-rated basis.]

[(b) Daily-wages employees shall be regularised in a phased manner to the extent of available regular sanctioned posts/vacancies on the date of regularisation and on the basis of seniority-cum-suitability including physical fitness.]

[(c) The work and conduct of such employees should have been of overall good category and satisfactory and no disciplinary proceedings are pending against them. ]

[(d) The regularisation will be against the posts/vacancies of the relevant categories only.]

[2. Daily workers, whether skilled, semiskilled or unskilled, who have completed 10 years of continuous service with a minimum of 240 days in each calendar year as on 31-12-1999 but could not be regularised shall be treated as monthly-rated employees w.e.f. 1-1-2000 in the fixed pay without allowances as per the following formula : Prepared by University : Daily rate Fixed pay = prescribed by 26 + Rupees 500 the Government from time to time for skilled, semi-skilled, unskilled workers as the case may be They would be entitled to an annual increment of Rupees 15/-, Rs. 20/-and Rupees 25/-respectively for unskilled, semi-skilled and skilled workers till their services are regularised as per para- 1.]

[3. Daily-wager whether skilled, semiskilled or unskilled who have not completed 10 years of service with a minimum of 240 days in each calendar year shall be paid daily wage at the rates prescribed by the Government of Guj. from time to time for daily wages employees falling in Class III and Class IV.]

[4. The seniority of the daily rates Class III and IV employees so regularised vis-a-vis Class III and IV employees appointed on regular basis, shall be determined w.e.f. 1-1-2000. The inter alia seniority of such daily rate Class III and IV employees shall be determined in accordance with the date of joining the post on daily-rated basis. If the date of joining the post(s), on daily-rated basis by such daily-rated employees was the same, then the elder employee shall rank senior to an employee younger in age. If the date of joining of the directly recruited regular employees and the date of regularised employees as per this scheme is the same, the direct recruit shall be senior."]"

5.1. It was further submitted by learned advocate Mr. Chauhan that as per the above direction, the services of the respondents are not eligible to be regularised.

5.2. On a query put to learned advocate Mr. Chauhan that whether this fact is brought to the notice of the Tribunal, it was submitted that it is the duty of the respondents to point out to the Tribunal that their services were eligible to be regularised in view of decision of the Supreme Court which is binding upon the respondent workmen also. It was therefore, submitted that once service of respondents is not eligible for regularisation then the Tribunal ought not to have passed the order of regularisation of their services with permanent employees.

5.3. It was therefore, submitted that the Tribunal has passed the impugned order without jurisdiction directing the petitioner University to regularise the services of the respondent workmen with retrospective effect. It was further submitted that the appointment of the respondents on regular post which do not exist, as on such posts, respondents were on daily rated wages holding no post and their posts are not sanctioned, the Tribunal could not have passed the order of regularisation of their services in absence of any sanctioned vacant post.

5.4. In support of above submissions, reliance was placed on the following decisions:

1) In case of Amreli Municipality v. Gujarat Pradesh Municipal Employees Union reported in 2004(2) GLH 692, wherein this Court held as under:

"12.1 After considering the decisions cited before us, the following principles emerge:

(A) No regularisation or permanency can be effected de hors the statutory provisions or the guidelines.

(B) Long service put in by the workmen itself may not be a ground to regularise services of ad hoc/temporary workmen against the sanctioned set up without following statutory procedure of recruitment. At the most, Labour Court/ Industrial Tribunal can issue direction for consideration of absorption subject to availability of posts on the establishment.

(C) To avoid nepotism and corruption, no backdoor entry in service;

(D) Financial capacity of the local body to have additional burden is a relevant consideration to be kept in mind while ordering regularisation or absorption.

12.1.2 The Apex Court, in no uncertain terms, ruled that the Labour Court/ Industrial Tribunal can neither regularise services of a workman nor grant permanency when his initial appointment itself is de hors the rules or not on the sanctioned post and has deprecated orders of the High Court/ Labour Courts/Tribunals directing to regularise services of illegally recruited persons and has given guidelines. We are not impressed by the submission advanced on behalf of the workmen that the orders were passed in petitions under Article 226 of the Constitution of India and, therefore, such orders are not applicable in the present case in deciding the controversy. The Labour Courts/Industrial Tribunals are required to pass orders consistent with the law laid down by the higher Courts. Needless to say that the exercise of wide powers by Labour Court/ Tribunal is always subject to or governed by the law laid down by the higher Courts.

12.1.15 In view of the above discussion, we answer the question referred to us as under:

(i) The Labour Court/Industrial Tribunal has no jurisdiction to issue direction or pass an award regularising services of employees of a Municipality or local authority without there being any 'sanctioned set up' and no person can be regularised if such a person had entered service without following selection process under the title of daily rated employee.

(ii) In view of our answer to the above question, the judgment rendered by Division Bench in the case of Kalol Municipality Vs. Shantaben, reported in 1993(2) GLR 997 is now no longer a good law in view of subsequent decisions rendered by the Apex Court and more particularly the decision in the case of N.S.Giri Vs. Corporation of State of Mangalore, AIR 1999 SC 1958 [LQ/SC/1999/585] . The subsequent decision rendered by the Division Bench of this Court in the case of Halvad Nagarpalika and ors. Vs. Jani Dipakbhai Chandravadanbhai and ors., reported in (2003) 2 GHCJ 397 is held to be a good law. All the matters shall be placed before the concerned Courts taking up such matters for passing appropriate orders."

2) In case of Mahendra L. Jain and others v. Indore Development Authority and others reported in (2005) 1 Supreme Court Cases 639, [LQ/SC/2004/1322] wherein Hon'ble Apex Court held as under:

"18. The posts of Sub-Engineers in which the appellants were appointed, it is nobody's case, were sanctioned ones. Concededly, the respondent Authority before making any appointment neither intimated the employment exchange about the existing vacancies, if any, nor issued any advertisement in relation thereto. Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the Service Rules had not been complied with. The appointments of the appellants were, therefore, void ab initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution.

19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularisation of their services. The answer thereto must be rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Arts. 14 and 16 of the Constitution of India. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation.

39. It is furthermore evident that the persons appointed as daily-wagers held no posts. The appointments, thus, had been made for the purpose of the project which, as indicated hereinbefore, came to an end. The plea of Dr. Dhavan to the effect that the appellants in Civil Appeal No. 337 of 2002 were asked to perform other duties also may not be of much significance having regard to our foregoing findings. However, it has been seen that even services of one of them had been requisitioned only for the project work. The High Court, in our opinion, was right in arriving at the conclusion that the appellants were not entitled to be regularised in service."

3) In case of Secretary State of Karnataka and others v. Umadevi and others reported in (2006) 4 Supreme Court Cases 1, [LQ/SC/2006/324] wherein Hon'ble Apex Court held as under:

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Art. 14 read with Art. 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Art. 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

48. It was then contended that the rights of the employees thus appointed, under Arts. 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Arts. 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Arts. 14 and 16 of the Constitution are therefore overruled.

52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur V/s. The Governing Body of the Nalanda College [AIR 1962 SC 1210 [LQ/SC/1961/401] ]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [AIR 1967 SC 1071 [LQ/SC/1966/151] ], R.N. Nanjundappa [(1972) 1 SCC 409] [LQ/SC/1971/647] , and B.N. Nagarajan [(1979) 4 SCC 507] [LQ/SC/1979/263] , and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but Without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."

4) In case of National Fertilizers Ltd and others v. Somvir Singh reported inm(2006) 5 Supreme Court Cases 493, [LQ/SC/2006/482 ;] wherein Hon'ble Supreme Court has held as under:

"13. The respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor the employment exchange was notified as regard existence of vacancies; It is now trite law that a 'State' within the meaning of Art. 12 of the Constitution of India is bound to comply with the constitutional requirements as adumbrated in Arts. 14 and 16 thereof. When Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such rules would render them as nullities. It is also well-settled that no recruitment should be permitted to be made through backdoor.

18. Regularisation, furthermore, is not a mode of appointment. If appointment is made without following the rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise. The Constitution Bench in Umadevi (supra) made a detailed survey of the case laws operating in the field."

5) In case of Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. reported in (2007) 1 Supreme Court Cases 408, [LQ/SC/2006/1115] wherein Hon'ble Apex Court held as under:

"34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others V/s. State of Kerala & others, 1996 10 SCC 565 [LQ/SC/1996/1422] this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore V/s. State of Maharashtra,1997 3 SCC 209, [LQ/SC/1996/1654] Union of India & others V/s. Bishambar Dutt, 1996 11 SCC 341 [LQ/SC/1996/1744] . The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.

35. In Dr. Surinder Singh Jamwal & another V/s. State of Jammu & Kashmir & others, AIR 1996 SC 2775 [LQ/SC/1996/1094] , it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules.

36. In Ashwani Kumar & others etc. V/s. State of Bihar & others etc., AIR 1996 SC 2833 [LQ/SC/1995/1152 ;] , the appointment made without following the appropriate procedure under the rules/Government circulars and without advertisement or inviting application from the open market was held to be in flagrant breach of Arts. 14 and 16 of the Constitution of India.

37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi V/s. Accountant General, Ahmedabad & others, 2003 2 SCC 632 [LQ/SC/2002/1370] . Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.

43.In view of the above observations of this Court it has to be held that the rules of recruitment cannot be relaxed and the court/Tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them.

44. It is well settled that regularization cannot be a mode of appointment vide Manager, RBI, Bangalore V/s. S. Mani & others, AIR 2005 SC 2179 [LQ/SC/2005/363] (para 54).

47. We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka V/s. Umadevi (supra), and other decisions of this Court.

48. In view of the above discussion, we are of the opinion that the orders of the Labour Court as well as the High Court were wholly unjustified and cannot be sustained for the reasons already mentioned above. The appeal is, therefore, allowed. The impugned judgment of the High Court and the Labour Court are set aside and the Reference made to the Labour Court is answered in the negative. There shall be no order as to costs."

6) In case of State of Rajasthan and others v. Daya Lal and others reported in (2011) 2 Supreme Court Cases 429, [LQ/SC/2011/83] wherein Hon'ble Apex Court held as under:

"12.We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."

5.5. Referring to the above decisions of the Apex Court, it was submitted by learned advocate Mr. Chauhan that the impugned order passed by the Tribunal is contrary to the settled legal position as the Tribunal has no jurisdiction to regularise the services of the respondent workmen by directing the petitioner University to treat them as permanent employees by giving all consequential benefits.

6. In view of above submissions, issue notice returnable on 7th December, 2023.