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CASE NO.:

Appeal (civil) 691 of 2001

Special Leave Petition (civil) 1490 of 1999

Appeal (civil) 692 of 2001

PETITIONER:

GUJARAT AGRICULTURAL UNIVERSITY

Vs.

RESPONDENT:

RATHOD LABHU BECHAR & ORS.

DATE OF JUDGMENT: 18/01/2001

BENCH:

A.P.Misra, D.P.Mohapatro

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

MISRA, J.

Delay condoned in SLP © No. of 2001 (CC No. 2360).

Leave granted in all the special leave petitions.

The aforesaid appeals raise common questions hence are

being disposed of by means of this common judgment. These

appeals arise out of industrial disputes through references

by the Government of Gujarat under Section 10 (1) (C) of the

Industrial Disputes Act, 1947. It raised the following

questions:

Whether the employees listed in the scheduled annexed

be made permanent, as from the day, when they complete 240

days service, and if in affirmative, whether they are

entitled to all the benefits at par with the permanent

employees, and be paid arrears.

Before entering into the issues in this case it is

necessary to give certain essential facts in order to

appreciate the controversies.

The appellant is an educational institution fully

aided by the State Government and is engaged in the

educational activities in agriculture and allied sciences

and humanity and is also prosecuting research in agriculture

and other allied science. It performs its duties and

functions under the statutory provisions and in doing so it

engages daily rated labourers for various activities.

According to the appellant these labourers are being paid

their wages as per the minimum wages fixed by the State

Government from time to time under the Minimum Wages Act.

They were engaged due to exigencies of work, without

considering relevant factors about their educational

qualification, age limit and other relevant requirements for

the purpose of regular appointment under the Recruitment

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Rules. There are different agricultural research centres at

different places with different projects and these daily

rated workers are unskilled, semi-skilled, skilled and field

labourers of different categories. Since the University is

grant- in-aid institution fully funded by the State

Government it requires prior permission/sanction of the

State Government for appointment of its employees. In fact,

all the posts are sanctioned by the State Government and

thereafter they are filled by the University, as per the

Recruitment Rules. The present case pertains to daily wage

workers who are plumbers, carpenters, sweepers, pump

operators, helpers and masons etc. According to the

appellant, no posts are sanctioned for them and hence they

are working on daily rate basis. Thus their appointments

are on irregular basis and not in accordance with the

recruitment rules.

The respondents raised, as aforesaid, an industrial

dispute who are daily rated employees, before the Industrial

Tribunal, Rajkot. The Industrial Tribunal directed the

appellant to regularise the services of all such daily rated

labourers who have completed 10 years of service (with

minimum of 2400 days) as on 1.1.1993 with pay and all

allowances along with other benefits of the permanent class

IV employees. The appellant being aggrieved filed the writ

petition before the High Court challenging this award.

Learned Single Judge partly allowed the writ petition and

set aside the award, however, with a direction to the

appellant to make the payment to the workmen at the minimum

of the pay scale and also to frame a scheme for the

regularisation of such daily rated labourers. The appellant

not satisfied filed letters patent appeals.

The Special Leave Petition (C) No. 1490 of 1999,

arises out of the Letters Patent Appeal No. 1047 of 1997,

which concern 23 respondents who were working as carpenters,

masons, plumbers etc. in the appellant-University. The

appellant has a huge campus covering the large area of about

16000 sq. mtrs. and 240 staff quarters of the employees at

Junagadh and other places. Nine daily rated workers were

involved in Letter Patent Appeal No. 1051 of 1997 from

which arises Special leave Petition (C) No. 2528 of 1999.

Similarly, there were three daily rated workers in Letter

Patent Appeal No. 1095 of 1997 which gave rise to the

Special Leave Petition (C) No. 2529 of 1999. SLP of 2001

(arising out of CC No. 2360 of 1999) arises out of LPA No.

808 of 1998 wherein the respondents representing the daily

rated workers of Junagadh Jilla Majdoor Sangh.

Learned Single Judge relying on the decision of this

Court in Daily Rated Casual Labour Employed under P & T

Department Vs. Union of India & Ors., 1988 (1) SCC 122, a

case of daily rated casual workers of the P & T Department,

directed the appellant to submit a scheme for conferring

permanent status to the respondents. At this stage, when

the question of framing a scheme, came to the fore, before

the Single Judge, learned counsel for the appellant

submitted then that such a scheme of giving permanent status

to these workers could not be confined to these workmen as

large number of such workmen are involved, disputes about

which are pending for adjudication in the various labour

courts. It was suggested, it would be fair and just,

instead of making multiple scheme in each such pending

matters, be permitted to frame a comprehensive scheme to

cover all pending litigations. The appellant specifically

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denies any such statement being given by the counsel for the

appellant. The submission is, this fact was challenged even

before the bench of Letters Patent Appeal, but the court did

not advert to this question. However, the letters patent

appeals were dismissed with the following observations:

As a result of foregoing discussion, all these three

appeals are summarily dismissed. The learned single Judge

had directed the appellant to submit a scheme for

consideration of the Tribunal with regard to extending

permanent status to the workmen in question and the like

workmen employed under it within a period of two months from

the date of receipt of writ of the judgment and order, but,

since the above direction was given way back in the month of

April, 1997, we direct the appellant to submit a scheme for

consideration of the Tribunal with regard to extending

permanent status to the workmen in question and the like

workmen employed under it within a period of one month from

the date of receipt of writ of this order, and the Tribunal

shall thereafter make an award within three months after

inviting objections and suggestions from the respective

parties. There shall be no order as to costs.

Aggrieved by this, the appellant filed the aforesaid

appeals, in this Court.

Since the appellant was fully funded by the State

Government, the appellant was permitted to implead the State

of Gujarat in these appeals and notice was issued to it on

the 8th February, 1999 by this Court. It seems instead of

contesting various issues, during pendency of these appeals

in this interregnum, learned counsel for the appellant

submitted a scheme framed by the university for the

absorption of these employees with the approval of the State

Government, which is also filed in this case. Learned

counsel for the respondents desired to file objections to

this scheme, which this Court permitted. The objections

accordingly were filed by the respondents.

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 LABOURS OF

THE GUJARAT AGRICULTURAL UNVIERSITY.

1. Daily-wager 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-wager 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

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basis of seniority-cum-suitability including physical

fitness.

(C) The work and conduct of such employees should have

been of over all 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 semi- skilled 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+ Rs.500 the

Government fromtime to time for skilled,semi-skilled,

unskilled workers as the case may be

They would be entitled to an annual increment of Rs.

15/-, Rs. 20/- and Rs. 25/- respectively for unskilled,

semi-skilled and skilled workers till their services are

regularised as per para-1.

3. Daily-wager whether skilled, semi-skilled 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

Gujarat from time to time for daily wager employees falling

in Class III and Class IV.

4. The seniority of the daily rates Class III and IV

employees so regularised vis-à-vis Class III and IV

employees appointed on regular basis shall be determined

w.e.f. 1.1.2000. The inter se seniority of such daily rate

Class III & 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.

So, the larger issues inter se between the University

and its workers, at this stage, are no more contentious as

the University has decided to grant permanent status to the

contesting and other workers in a phased manner for which

the aforesaid scheme has been finalised. Thus the question

which focuses our attention is, whether the scheme sub

serves the workers aspirations and satisfy the judicial

scrutiny, on the facts and circumstances of this case. The

fact which emerges is, that reference for the adjudication

of industrial dispute was made in the year 1987. The

Industrial Tribunal directed the appellant to regularise the

services of all such workers who have completed 10 years of

service as on 1st January, 1993. The Single Judges records:

It is also true that the facts of the present case

have also similar shade as was in the case of Chief

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Conservator of Forests and another Vs. Jagannath Maruti

Kondhara reported in 1996(1) LLJ 1223 to prime facie reach a

conclusion about the unfair labour practice in depriving the

workmen of their status of permanency and privileges

attached thereto.

It further records that the Tribunal has not adverted

to some of the questions which implicitly arises in any

industrial dispute concerning grant of permanent status. It

records that no opportunity was given to the employer after

reaching this conclusion of giving workmen permanent status

hence these issues require investigation. Thus it set aside

the finding of the Tribunal to make all workmen permanent

w.e.f. the date they complete 10 years on or before 1st

January, 1993 and directed it to decide this question afresh

through a scheme. But the direction to make payment to such

workmen at the minimum pay scale of similarly situated

workmen on permanent basis remained unaffected. This

direction was confirmed by the Division Bench of the High

Court.

Learned senior counsel, Mr. Rajeev Dhawan appearing

for the appellant submits, that the scheme as proposed has

been thoroughly scrutinised, examined taking into

consideration the interests of the workers within the

permissible limit of the availability of finance. He

submits with vehemence, it would not be possible for the

University to grant permanency to all its employees working

as daily rated workers, who have completed 10 years of

service, on the 1st January, 1993. The proposal for grant

of permanent status as per the scheme is that all such

employees who have completed 10 years or more of continuous

service with minimum of 240 days in each calendar year as on

31st December, 1999 should be regularised. This extension

of period from 1st January, 1993 to 31st December, 1999 was

made for two purposes. First, to bring more workers in its

arm for regularisation and secondly, to bring it within the

financial means available to the University. In fact,

Single Judge has set aside the grant of permanency from 1st

January, 1993 and left it open to the appellant to frame a

scheme for their absorption. Mr. Dhawan also challenges

the grant to all such employees minimum pay scale who have

completed 10 years of service, based on the anvil of equal

pay for equal work, A minimum regular pay scale is only

admissible to the regularised employees doing the same

nature of work.. The submission is, such employees could

only be entitled to the minimum wages admissible to class IV

employees of the State. Unless an incumbent is regularised

he would not be entitled for this minimum pay scale. He

further submits, since there are no equivalent posts in

existence today, hence question of equal pay on equivalent

post does not arise, so also no question of applying the

principle of equal pay for equal work.

Reliance was placed in the case of State of Haryana

and Ors. Vs. Jasmer Singh and Ors. 1996(11) SCC 77 and

State of Haryana Vs. Surinder Kumar and Ors. 1997(3) SCC

633, to give credence to his this submission of equal pay

for equal work. He further relies on the following

observation of the Division Bench that present is not a case

where such an issue arises:

The workmen are not claiming equal pay for equal work

but they are claiming permanent status as Class IV

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employees.

The submission on behalf of the respondents is, the

stand of the University that there are no permanent posts

for absorption of such workers, on the facts of this case,

where the appellant has been taking work from its workers

year after year for more than one decade, then non-creation

of posts itself constitutes an unfair labour practice. In

fact by the time this industrial dispute was referred,

respondent- workers completed 5 years of their continuous

service and when arguments were concluded they completed 10

years of their continuous service. Both, the Tribunal and

the learned Single Judge found the existence of permanent

nature work requiring them to be regularised.

Respondents objection to Item No.1 of the proposed

aforesaid scheme which requires completion of 10 years prior

to 31st December, 1999 for regularisation is that it is

dehors the interest of the workers, specially when some of

the workers are working from 1973 onwards. Thus this cut

off date for regularisation requires a re-look. With

reference to Item No.1(a), the objection is, that the

University had failed to produce any evidence to show any

qualification for the posts on which they are to be

absorbed. The recruitment rules which have been placed for

the first time before this Court do lay down some

qualifications but their experience of working for such a

long time itself should be sufficient for their eligibility.

With reference to Item (1)(b) and 1(d) the objection is,

there should not be any phased regularisation, when work has

been taken for such a long time. All such qualified workers

should be regularised from the date they completed 10 years

of their continuous service. With reference to Item No.1(c)

the submission is, there is no case whatsoever about any

unsatisfactory work of any of these respondent workmen nor

any proceedings are pending against them. In other words,

there is no serious objection to it. Next, with reference

to Item No.2 which provides, all daily workers who have

completed 10 years of continuous service with minimum of 240

days in each calendar year as on 31st December, 1999 but

could not be regularised, w.e..f. 1st January, 2000 they

would be entitled for a fixed pay without allowance as

prescribed by the Government from time to time for skilled,

semi-skilled and unskilled workers plus Rs.500/- p.m. They

would also be entitled to annual increment of Rs.15/-,

Rs.20/- and Rs.25/- respectively for the unskilled,

semi-skilled and skilled workers till their services are

regularised. The objection is instead these workers should

be paid minimum pay scale (without increment) as admissible

to regularised workman on such post from 1st January, 1993.

Similarly, Item No.3 refers to such daily wagers, skilled,

semi- skilled or unskilled who have not completed 10 years

of service with a minimum of 240 days in each calendar year

to be paid minimum wages at the rates as prescribed by the

Government of Gujarat from time to time for daily wagers

falling in Class III and Class IV. The objection is the

same that they should also be paid minimum pay scale. No

serious submission with reference to Item No.4 has been

made.

From the aforesaid, it emerges that the learned Single

Judge had concurred with the finding of the Tribunal that

contesting workmen have been working in the appellant

University regularly for a long number of years. The

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existence of permanent nature of work was inferred on this

account and also due to the vastness of appellant

establishment. The regularisation is claimed only in

respect of Class IV employees. The main objection, which

was raised earlier and is raised before us is that a person

could only be regularised on any vacant post and if there be

one he should be qualified for the same as per

qualification, if any, prescribed. In fact, the Tribunal

has held on the date of the award, most of the workmen had

completed 10 years of their service. It is also well

settled, if work is taken by the employer continuously from

daily wage workers for a long number of years without

considering their regularisation for its financially gain as

against employees legitimately claim, has been held by this

Court repeatedly as an unfair labour practice. In fact,

taking work, from daily wage worker or ad hoc appointee is

always viewed to be only for a short period or as a stop gap

arrangement, but we find new culture is growing to continue

with it for a long time, either for financial gain or for

controlling its workers more effectively with sword of

damocles hanging over their heads or to continue with

favourved one in the cases of ad hoc employee withstaling

competent and legitimate climants. Thus we have no

hesitation to denounce this practice. If the work is of

such a nature, which has to be taken continuously and in any

case when this pattern become apparent, when they continue

to work for year after year, only option to the employer is

to regularise them. Financial viability no doubt is one of

the considerations but then such enterprise or institution

should not spread its arms longer than its means. The

consequent corollary is, where work is taken not for a short

period or limited for a season or where work is not of part

time nature and if pattern shows work is to be taken

continuously year after year, there is no justification to

keep such persons hanging as daily rate workers. In such

situation a legal obligation is cast on an employer if there

be vacant post to fill it up with such workers in accordance

with rules if any and where necessary by relaxing the

qualifications, where long experience could be equitable

with such qualifications. If no post exists then duty is

cast to assess the quantum of such work and create such

equivalent post for their absorption.

Learned Single Judge set aside the order of the

Tribunal granting regularisation from the date of the award

and left it to the University to formulate an appropriate

scheme for their absorption. The Division Bench felt

certain enquiry is necessary before grant of permanent

status to its employees, namely, to find the extent of

permanent nature of work required for creating corresponding

posts before absorption. The relevant portion of the

Division Bench judgment is quoted hereunder:

The learned single judge observed that the Tribunal

had not taken into consideration certain relevant aspects

notwithstanding that such question implicitly arises in a

case of industrial dispute concerning grant of permanent

status and emoluments and privileges attached there to by

the workmen under the Industrial Dispute Act, nor the

Tribunal had considered after reaching the conclusion about

long duration of work and existence of permanent work the

extent to which permanent nature of work is available in

each trade and corresponding necessity of number of

permanent workmen to discharge that work before directing

the employer to make all the workmen as permanent on

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completion of 10 years of service as on 1.1.1993 nor

thereafter if they were in service prior to the date of

making of reference, nor does it appear from the award that

in the first instance any opportunity was given to the

employer after reaching the conclusion about necessity for

making the concerned workmen permanent to discharge its

managerial obligation for framing a scheme or making such

employees permanent and placing before the Tribunal. These

issues require investigation into further facts and depend

upon evidence of variable nature which can be led before the

Tribunal.

What emerges is, all the respondent workmen are

eligible for absorption on the facts of this case subject to

any eligible qualification under the rule if any. Though no

recruitment rules were filed in the proceedings either

before the Tribunal or in the High Court but while proposing

the scheme a copy of the recruitment rules for various

cadres have been placed before us on behalf of the appellant

University. This gives in column no.1 the serial no., in

column no.2 the name of the post, in column no.3 the pay

scale, in column no.4 the age limit and in column no.5 the

qualification. Serial no.10 deals with Peon and Class IV

servants, serial no.13 deals with Operator-cum- Mechanic,

serial no.14 deals with Chowkidar, serial no.25 deals with

Plumber and serial no.33 deals with Carpenter. This shows

that recruitment rules did have these posts in its ambit

about which we are concerned, yet no posts were created.

This proposed creation of post is churned out only after

this long battle by the workmen as against the appellant.

It was not expected from the institutions like the present

appellant, especially when it is fully funded by the State

Government that this process of absorption should have taken

such a long time and to have yielded to it only after this

long battle. This legal position is well known not only to

the appellant but the State who is funding it, then why to

do it only after courts intervention. It is true, creation

of post does involve financial implication. Hence financial

health of a particular institution plays important role to

which courts also keep in mind. The Court does exercise its

restrain where facts are such where extent of creation of

post creates financial disability. But at this juncture we

would like to express our note of caution, that this does

not give largess to an institution to engage larger number

of daily wage workers for long number of years without

absorbing them or creating posts which constitutes an unfair

labour practice. If finances are short engagement of such

daily wage workers could only be for a short limited period

and if continuous work is required it could only do so by

creating permanent post. If finances are not available,

take such work which is within financial mean. Why take

advantage out of it at the cost of workers.

One of the questions which is also up for our

consideration is, apart from the fact who are to be

regularised, what would be payable to these daily wage

workers who have completed more than 10 years of continuous

service. Submission for the respondents is, that such daily

wage workers should be paid the same minimum scale of pay as

admissible to the regularised incumbent based on the

principle of equal pay for equal work. Daily rated casual

labour employed under P&T Department through Bhartiya Dak

Tar Mazdoor Manch Vs. Union of India and Ors. (Supra), was

a case of daily rated casual labourers of the P&T department

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doing work similar to that of the regular workers of the

department. This Court held:

...Even though the Directive Principle contained in

Articles 38 and 39(d) may not be enforceable as such by

virtue of Article 37 but it may be relied upon by the

petitioners to show that in the instant case they have been

subjected to hostile discrimination. The State cannot deny

at least the minimum pay in the pay scales of regularly

employed workmen even though the Government may not be

compelled to extend all the benefits enjoyed by regularly

recruited employees. Such denial amounts to exploitation of

labour. The Government cannot take advantage of its

dominant position, and compel any worker to work even as a

casual labourer on starvation wages. It may be that the

casual labourer has agreed to work on such low wages.

State of Haryana and Ors. vs. Piara Singh and Ors.

1992 (4) SCC 118. This was a case of ad hoc/temporary

government employees. This Court held, those eligible and

qualified and continuing in service satisfactorily for a

long period have right to be considered for regularisation.

Long continuing in service gives rise to a presumption about

the need for a regular post. In such cases government

should consider feasibility of regularisation having regard

to the particular circumstances with a positive approach and

empathy for the concerned person.

In Surinder Singh and Anr. Vs. Engineer-in-Chief,

C.P.W.D. and Ors. 1986 (1) SCC 639, this Court holds

entitlement of equal pay for equal work for the daily wage

workers of C.P.W.D. to the wages equal to the regular and

permanent employees employed to do identical work. Mool Raj

Upadhyaya Vs. State of H.P. and Ors. 1994 Supp (2) SCC

316, was a case of regularisation based on the claim for

equal pay for equal work of daily wages of Class III and

Class IV employees in the Irrigation and Public Health Wings

of H.P. Some of them worked for more than 10 years. They

were being paid minimum wages prescribed by the State

Government but were seeking regularisation and parity of pay

with regular employees. The State Government came out with

a scheme which was modified by this Court to the following

effect. The relevant portion of which is quoted hereunder:

Taking into consideration the facts and circumstances

of the case, we modify the said scheme: xxx xxx

(3) daily-wage/muster-roll workers, whether skilled or

unskilled who have not completed 10 years of service with a

minimum of 240 days in a calendar year on 31.12.1993., shall

be paid daily wages at the rates prescribed by the

Government of Himachal Pradesh from time to time for daily

wage employees falling in Class III and Class IV till they

are appointed as work- charged employees in accordance with

paragraph 2;

(4) daily-wage/muster-roll workers shall be

regularised in a phased manner on the basis of

seniority-cum-suitability including physical fitness. On

regularisation they shall be put in the minimum of the

time-scale payable to the corresponding lowest grade

applicable to the Government and would be entitled to all

other benefits available to regular government servants of

the corresponding grade.

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Strong reliance is placed on this decision on behalf

of the University. Submission is, heavy financial constrain

would result in case all employees are to be regularised or

minimum pay scale is to be given to unabsorbed employees

which would be beyond the capacity of the appellant. The

affidavit of G.A. Shah, Deputy Secretary to the Government,

Agricultural Department, on behalf of the State, avers that

the financial burden which would surface and to be fastened

on the State Government will be very heavy which would be

more than 15 crores towards the arrears only as per the

award if it is implemented. The averment is, there are 5100

daily rated labourers including seasonal labourers which in

addition will place heavy recurring financial burden on the

State Government. However, we do respect and give due

consideration for any unbearable financial strains but we

are not impressed by this, specially on the facts of this

case, when work is being taken from them for a long number

of years without giving them the due benefit for their

regularisation. As we have said, which we are keeping in

mind that financial constraint is also to be kept in mind

when any scheme is framed at a particular time. In Dharwad

Distt. P.W.D. literate daily wage employees Association

and Ors. Vs. State of Karnataka and Ors. 1990 (2) SCC 396

this Court held:

Though the scheme so finalised is not the ideal one

but it is the obligation of the court to individualise

justice to suit a given situation in a set of facts that are

placed before it. Under the scheme of the Constitution the

purse remains in the hands of the executive. The

legislature of the State controls the Consolidated Fund out

of which the expenditure to be incurred, in giving effect to

the scheme, will have to be met. The flow into the

Consolidated Fund depends upon the policy of taxation

depending perhaps on the capacity of the payer. Therefore,

unduly burdening the State for implementing the

constitutional obligation forthwith would create problems

which the State may not be able to handle. Therefore, the

directions have been made with judicious restraint.

To the similar effect, namely, involvement of

financial burden is also a relevant consideration was held

in Rao Somashekara and Ors. Vs. State of Karnataka and

Anr. 1997 (7) SCC 649, Raj Narain Prasad and Ors. Vs.

State of U.P. and Ors. 1998 (8) SCC 473, Hindustan Machine

Tools and Ors. Vs. M. Rangareddy and Ors. 2000 (7) SCC

741.

In Delhi Veterinary Association Vs. Union of India

and Ors. 1984 (3) SCC 1, it was observed by this Court:

At the same time while fixing the pay scales, the

paying capacity of the Government, the total financial

burden which has to be borne by the general public, the

disparity between the incomes of the Government employees

and the incomes of those who are not in Government service

and the net amount available for Government at the current

taxation level.

In the light of the aforesaid decisions we now proceed

to examine the proposed scheme. Under Clause 1 it is

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proposed that all daily wage 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 31st December, 1999 is to be

regularised and be put in the time scale of pay applicable

to the corresponding lowest grade in the university.

However, the said regularisation is subject to some

conditions. Under Clause 1(a) such employee is eligible

only if he possess the prescribed qualifications for the

post at the time of their appointment. The strong objection

has been raised to this eligibility clause. The submission

is, those working for a period of 10 or more years without

any complaint is by itself a sufficient requisite

qualification and any other rider on the facts of this case

would prejudice these workers. We find merit in this

submission. We have perused the qualifications referred in

the aforesaid recruitment rules according to which,

qualification for Peon is that he should study upto 8th

std., for Operator-cum-Mechanic, should have Diploma in

Mechanic having sufficient knowledge of vehicle repairing

experience in automobiles or tractors Dealers workshop for

two years, for Chowkidar, he must be literate and have good

physique. Literate is not defined. For Plumber to have

I.T.I. Certificate.

We feel that daily rate workers who have been working

on the aforesaid posts for such a long number of years

without complaint on these posts is a ground by itself for

the relaxation of the aforesaid eligibility condition. It

would not be appropriate to disqualify them on this ground

for their absorption, hence Clause 1(a) need modification to

this effect.

In Bhagwati Prasad Vs. Delhi State Mineral

Development Corporation 1990 (1) SCC 361, this Court

observed:

The main controversy centres round the question

whether some petitioners are possessed of the requisite

qualifications to hold the posts so as to entitle them to be

confirmed in the respective posts held by them. The

indisputable facts are that the petitioners were appointed

between the period 1983 and 1986 ever since, they have been

working and have gained sufficient experience in the actual

discharge of duties attached to the posts held by them.

Practical experience would always aid the person to

effectively discharge the duties and it is sure guide to

assess the suitability. The initial minimum educational

qualification prescribed for the different posts is

undoubtedly a factor to be reckoned with, but it is so at

the time of the initial entry into the service. Once the

appointments were made as daily rated workers and they were

allowed to work for a considerable length of time, it would

be hard and harsh to deny them the confirmation in the

respective posts on the ground that they lack the prescribed

educational qualifications.

Thus in view of their long experience on the fact of

this case and for the concerned posts the prescribed

qualification, if any, should not come in the way of their

regularisation. Clause 1(b) provides for the regularisation

of daily wagers in a phased manner to the extent of

available sanctioned post.

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The decision to absorb some of the employees at one

point of time or in a phased manner depends on facts and

circumstances of each case. Where very large number of

workers are required to be absorbed, this Court accepted the

formula, in the past to absorb such employees under a Scheme

in a phased manner. This is done to work it out within its

financial means. Every liberty and entitlement is always

subject to such financial limits. But in considering such

absorption, the financial means have to be stretched to the

maximum but should not be a defence with motive to

disentitle the claim of the workmen. The grant of this

phased absorption thus is in itself a mechanism under this

principle. But as we have said this mechanism is not a tool

to misuse for taking away any legitimate right of any

worker. The Court has to be cautious in exercising its

discretion. On the one hand it has to keep the interest of

the workers alive and on the other to see that employer does

not become spineless for the lack of funds eroding the very

workers interest. In the present case admittedly in the

first phase in terms of Clause 1, one block of daily wage

worker is to be regularised for which the posts are being

created. We want to make it clear, in creating posts

Government shall see maximum posts are created to absorb

maximum such workers who have completed ten years as on 31st

December, 2000, as these workers have more than eligible

claim. Thereafter, even reassessment for additional posts,

about which we are referring should be done in the same

perspective. In other words there may still be number of

workers who may still not be covered for absorption under

the first phase of Clause 1 due to initial non-availability

of posts though working for a long number of years. We are

saying so because Clause 1 (d) is silent, what number of

posts Government is being created initially for the first

phase of absorption.

According to the State counter if absorption is made

from 1.1.1993 of all those who have completed ten years of

service as per Tribunal order, the payment towards arrears

would be to the tune of 15 crores. Since in the proposed

scheme, absorption is from 1st January, 2001, the State has

already gained much more than this arrears of more than 15

crores. In this light and in the absence of details being

placed before us, we are leaving the extent of creation of

the posts on the State Government. We hope and trust, the

Government who is the guardian of the people and is obliged

under Article 38 of the Constitution, to secure a social

order for the promotions of welfare of the people, to

eliminate inequalities in status, will endeavour to give

maximum posts even at the first stage of absorption, and do

the same in the same spirit for creating additional posts

after enquiry as we are indicating hereunder. It is

necessary that the State Government to set up an enquiry to

find what further number of additional posts are required

for regularising such other daily rated workers, and after

assessing it, to create such additional posts for their

absorption. This exercise should be done by the State

Government within a period of six months. The submission on

behalf of the respondent is that those who are not

regularised and are continuously working for 10 or more

years with minimum of 240 days in each calendar year, they

should be paid minimum pay scale as admissible to an

incumbent regularised on similar post doing similar work

instead of minimum wages as prescribed by the Government.

The dispute thus is, whether such workers to be paid minimum

daily wage as Government prescribes as per the scheme or pay

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them the minimum pay scale admissible to such regularised

worker without increment and other benefit. This Court in

one set of decisions have said to regularise them in one

block and pay them the same minimum pay scale as admissible

to a regular employee as in; Surinder Singh and Anr. Vs.

Engineer-in-Chief, C.P.W.D. and Ors. 1986 (1) SCC 639,

U.P. Income Tax Department Contingent Paid Staff Welfare

Association Vs. Union of India and Ors. (1987) Supp. SCC

658, 1998 State of Punjab and Ors. Vs. Devinder Singh and

Ors. 1998 (9) SCC 595, Chief Conservator of Forests and

Anr. Vs. Jagannath Maruti Kondhare and Ors. 1996 (2) SCC

293 and in other cases to absorb in a phased manner under a

scheme which depends on the facts of each case. In Mool Raj

Upadhyaya Vs. State of H.P. and Ors (supra), this Court

approved a scheme under which the daily wage workers whether

skilled or unskilled who have not completed 10 years of

service was to be paid daily wage at the rates prescribed by

the Government of H.P. from time to time for daily wage

employees falling under Class III and IV till they are

appointed regularly. Strong reliance is placed on behalf of

the University on this case and also, looking to the fact

that it has no impressive source of its own, being an

Agricultural University, depending on the State fund, we

hold they should be paid minimum wages as prescribed by the

Government from time to time as proposed under the scheme.

We approve both clauses 2 and 3 on the facts and

circumstances of this case. In fact, in seeking minimum pay

scale to such daily rated workers as admissible to a regular

employee is based on the principle of equal pay for equal

work. It is pertinent to refer, in this case the

observation of the High Court: Workmen are not claiming

equal pay for equal work but they are claiming permanent

status as Class IV employees as they are working and have

gained more than sufficient experience in their work.

Ghaziabad Development Authority and Ors. Vs. Vikram

Chaudhary and Ors. 1995 (5) SCC 210, this was a case of

temporary daily wage employees claiming parity with regular

employees. It was held, in the absence of availability of

regular post for appointment, such a claim is not

sustainable. However, it was held that they should be given

minimum wages under the statute if any, or the prevailing

wages in the locality. To the same effect is Basudev Pati

Vs. State of Orissa and Anr. 1997 (3) SCC 632.

State of Haryana and Ors. vs. Jasmer Singh and Ors.

1996 (11) SCC 77, this was a case where

Mali-cum-Chowkidars/Pump Operators claimed parity in

employment based on the anvil of equal pay for equal work

who were daily wagers. It was held, they are not entitled

to such parity with regular workmen. They can get only the

minimum wages.

In the present case after absorption of employees

under Clause 1, we have already directed, the State

Government what they have to do in coordination with the

appellant University to assess and find additional regular

posts required by the university. In doing so, they shall

keep in mind the continuous work which the workers are doing

for long number of years and after fixing the number it

should further create such additional posts as necessary and

absorb them. This exercise to be undertaken, as aforesaid,

within six months. So for this reason we would not like to

disturb the proposed scheme except to the extent we have

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observed above. We are sure no slackness would be exercised

both by the appellant and the State in completing this

exercise within the said period. Apart from what we have

observed, we do not find any infirmity in the scheme.

Accordingly we approve the aforesaid scheme framed by

the University and as approved by the State Government,

subject to the modifications which we have recorded above.

In terms of the said modified scheme, the judgment of the

High Court stands modified. As respondents/workmen have

suffered for a long duration of time it is appropriate that

aforesaid scheme is implemented expeditiously at an early

date. The first phase of absorption to be completed within

three months. The appeals are accordingly disposed of in

the aforesaid terms. Costs on the parties.