Writ Petition No. 2821 of 2010 · The High Court
Case Details
2025:BHC-AUG:18364-DB Writ Petition No.2821/2010:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2821 OF 20101)Balasaheb s/o Punjahari ShindeAge 38 years, Occ. Service2)Rajendra s/o Krushnaji Achari,Age 43 years, Occ. Service3)Kashinath s/o Shankar WakchaureAge 47 years, Occ. Service4)Prakash s/o Savaliram Wagh,Age 46 years, Occ. Service5)Popat s/o Murlidhar Jadhav,Age 42 years, Occ. Service 6)Hemant s/o Vijayrao Wankhedkar,Age 42 years, Occ. Service 7)Sunil s/o Babanrao Avhad,Age 37 years, Occ. Service8)Rajendra s/o Ramrao Chavan,Age 42 years, Occ. Service 9)Anil s/o Bhaskar Roham,Age 42 years, Occ. Service 10) Pradip s/o Wamanrao Shinde,Age46 years, Occ. Service 11)Satish s/o Sudharak BhaleraoAge 35 years, Occ. Service Writ Petition No.2821/2010:: 2 ::12)Anil s/o Devidas Bhaskar,Age 35 years, Occ. Servie 13)Tarachand s/o Babulal Biraris,Died through L.R.Ruchikesh s/o Tarachid BirarisAge 25 years, Occ. Service, R/o Ganpati Temple, Nivara, Kojagiri Colony, Kopargaon, Tq. Kopargaon,Dist. Ahmednagar.14)Umesh s/o Vyankatrao Devsale,Age 40 years, Occ. Service 15)Vijay s/o Tukaram Ghogare,Age 40 years, Occ. Service 16)Rajendra s/o Shivram Panghavane,Age 35 years, Occ. Service 17)Sarang s/o Mohan Ahirrao,Died through L.Rs.17A)Pallavi w/o Dinesh Vispute, Age 34 years, Occ. Household,R/o Dongargaon, Tq. Shahada, Dist. Nandurbar17B)Vidya w/o Anil Sonar, Age 28 years, Occ. Household,R/o 60, Wankhedkar Nagar, Deopur,Dhule, Tq. & Dist. Dhule 17C)Vijay s/o Sarang Ahirrao Age 25 years, Occ. Service R/o Neharunagar, Jagruti Housing Society, Behind Bus Stop, Jalgaon,Tq. & Dist. Jalgaon Writ Petition No.2821/2010:: 3 ::18)Kailash s/o Punjaji Kate,Age 47 years, occ. Service 19)Rajendra s/o Yadavrao Nikam,Age 37 years, Occ. Sevice20)Kundal s/o Chhagan Lohar,Died through L.Rs.20A)Shakuntala Chudaman Lohar @ Shakuntala w/o Kundan Lohar, Age 56 years, Occ. Service 20B)Simita d/o Kundan Lohar, Age 30 years, Occ. Nil.20C)Sumit s/o Kundan Lohar, Age 27 years, Occ. NilNos.20A to 20C R/o Shirurnaka, Behind Durga Hospital, AmalnerTq. Amalner, Dist. Jalgaon21)Ashok s/o Changdeo Kekan,Age 43 years, Occ. Service, 22)Chandrakant s/o Vitthal Parate,Age 41 years, Occ. Service23)Rajendra s/o Dyandeo Aghav,Age 37 years, Occ. Service24)Rajendra s/o Gangadhar Gorde,Age 36 years, Occ. Service,25)Raju s/o Rambhau Naikwade,Age 42 years, Occ. Service26)Balu s/o Bandu Avhad,Age 42 years, Occ. Service
Legal Reasoning
Writ Petition No.2821/2010:: 4 ::27)Kacharu s/o Haribhau Pathade,Age 44 years, occ. Service28)Pralhad s/o Gahinaji Dumbare,Age 38 years, Occ. Service29)Nivrutti s/o Hiralal Avhad,Age 43 years, Occ. ServiceAll R/o Industrial Training Institute,Old T.D.B. Building,M.G. Udyan Pradarshan,Kopargaon, Tq. Kopargaon,Dist. Ahmednagar30)Smt. Manda Ashok Narode,Deceased, through L.Rs.30A)Sandip s/o Ashokrao Naqrode,Age 38 years, Occ. Service30B)Varsha Ashok Narodeage 36 years, Occ. Housewife,Nos.30A & 30B R/o Shivaji Road,Kopargaon, Tq. Kopargaon,Dist. Ahmednagar… PETITIONERSVERSUS1)The State of MaharashtraThrough Principal Secretary,Skill Development and EntrepreneurshipDepartment, Mantralaya, Mumbai – 32 (Copy to be served on Govt. Pleader,High Court of Bombay,Bench at Aurangabad)2)The Director,Vocational Education and Writ Petition No.2821/2010:: 5 ::Training, Mumbai3)The Deputy Director, Vocational Education and Training, Regional Office, Nasik4)Sanjeevani Rural Education Society,Shahajahanandnagar, Kopargaon,Tq. Kopargaon, Dist. Ahmednagarthrough its President/ Secretary5)The Principal,Industrial Training Institute, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar6)Shivajirao s/o Manik Shelke,Age 46 years, Occ. Agri.,R/o Lavaki, Tq. Kopargaon,Dist. Ahmednagar7)Vaijinath s/o Changdeo Misal,Age 41 years, Occ. Agri.R/o Dahegaon, Tq. Kopargaon,Dist. Ahmednagar8)Babasaheb s/o Digambar Hon,Age 35 years, Occ. Agri.R/o Dauch, Tq. Kopargaon,Dist. Ahmednagar9)Subhash s/o Vitthal Khillari,Age 45 years, Occ. Agri.,R/o Savantsar, Tq. Kopargaon,Dist. Ahmednagar10)Laxman s/o Mahdu Randhwane,Age 43 years, Occ. Agri.,R/o Godhegaon, Tq. Kopargaon,Dist. Ahmednagar
Legal Reasoning
Writ Petition No.2821/2010:: 6 ::11)Gorakh s/o Eknath Bhokare,Age 48 years, Occ. Agri.R/o Godhegaon, Tq. Kopargaon,Dist. Ahmednagar.… RESPONDENTS.......Mr. R.N. Dhorde, Senior Counsel with Mr. P.S. Dighe, Advocate for petitionersMr. Mukul Kulkarni, Advocate for Respondents No.1 to 3 & 5Mr. A.D. Sonkawade, Advocate with Mr. A.V. Hon, Advocate for respondent No.4. ....… CORAM : R.G. AVACHAT ANDSANDIPKUMAR C. MORE, JJ.Date of reserving judgment : 7th May, 2025Date of pronouncing judgment : 10th July, 2025JUDGMENT (PER : R.G. AVACHAT, J.) : This petition, under Article 226 of the Constitutionof India, has been filed for following main reliefs :BB)Hold and declare that the said notice dated 23/3/2010issued by the respondent No.3 is illegal, arbitrary andviolative of Articles 14, 19(1)(g) and 39(d) of theConstitution of India and therefore same is liable tobe quashed and set aside and for that purpose issuenecessary orders.BBB)Issue writ of certiorari or any other appropriate writ,order or direction in the nature of certiorari forquashing and setting aside the order dated31/3/2010, passed by the respondent No.3, therebyterminating the services of petitioners and for thatpurpose issue necessary orders. Writ Petition No.2821/2010:: 7 ::C)Issue writ of mandamus or any other appropriate writ,order or direction in the nature of mandamus directingthe respondents Nos.1 to 3 to pay salary of thepetitioners on equal footing as that of similarlysituated Government employees in ITI regularly andfor that purpose issue necessary orders.E)Issue writ of mandamus or any other appropriate writ,order or direction in the nature of mandamus directingthe respondent Nos.1 to 3 to regularize the servicesof petitioners since the date of their appointment bygiving all service benefits with continuity of service asper similarly situated employees in same or similarGovernment ITI and for that purpose issue necessaryorders. 2.Heard. Original petitioners were 30 in number.Pending the petition, petitioners No.13, 17, 20 and 30 passedaway. Their legal representatives have been brought onrecord. For the sake of convenience, the L.Rs. and thepetitioners are referred as “the petitioners”.3.The respondents No.1 to 3 are the officials of theState Government (for short the State). Respondent No.4 wasthe Educational Society, based at Shahajahanandnagar,Kopargaon, District Ahmednagar. The respondent No.5 wasthe Principal of the Industrial Training Institute (ITI) run byrespondent No.4 educational society. Writ Petition No.2821/2010:: 8 ::4.The petitioners claim to have joined the services onvarious posts with the educational institute. They claim tohave been appointed during the period from 1986 to 1996,after following due procedure of law. The petitioners wereteaching and non-teaching staff in the cadre of Class III andClass IV employees of the ITI. Initially, their appointmentswere on temporary basis. They claim to have been madepermanent on completion of probation. The petitioners claimto have been rendering services ever since their appointments.5.It is the case of the petitioners that, the State took apolicy decision to start ITI in each Taluka. An agreement wasentered into between the State, the educational institute onone hand and the owner of the land (respondent No.4 Society)on the other. The State agreed to take over the ITI. A tri-partyagreement came to be executed amongst them on 24/2/2004.The State granted provisional sanction on 11/10/2002 fortransfer of the management of the ITI. Vide letter dated29/4/2003, it granted permanent sanction for transfer of the ITIto the State. Salary to be paid to the petitioners was alsoquantified. The State agreed to create posts and absorb the Writ Petition No.2821/2010:: 9 ::petitioners thereon.6.Since the State did not keep its word of creation ofthe posts for absorption of the petitioners, the petitioners hadfiled a Writ Petition and consequential proceedings as well. Areference thereto would be made a little later. Since nothingmaterial could be fructified, the petitioners filed the presentpetition.7.The respondent- State, by filing affidavit-in-reply,contested the Writ Petition on various amongst other grounds.A reference thereto would be made while adverting to the oralsubmissions made by learned Special Counsel.8.The learned Senior Advocate appearing for thepetitioners first took us through the chronology of events andcorrespondence made by the State authorities. It wasspecifically submitted that the petitioners were not parties tothe tri-party agreement. The terms and conditions of theagreement would, therefore, not be binding on the petitioners.He would further submit that, the petitioners were dulyappointed as found to have been qualified for the post. The Writ Petition No.2821/2010:: 10 ::State Government, after taking over the ITI, started four morecourses in addition to 16 courses which were being conductedby the ITI. Besides the petitioners, there are other staffmembers appointed by the State Government. Those staffmembers render the job/s equal to the nature of the job/srendered by the petitioners. These State Governmentemployees are paid salary and various perks in terms of therespective Pay Commission recommendations. Thepetitioners, in view of the principle of “equal pay for equalwork”, are entitled for the salary and perks equal to that of thepay of those employees. The learned Senior Advocate for thepetitioners would further submit that, right to equal pay forequal work has been crystalised as a fundamental right. Hewould further submit that, the State Government hasregularised the appointments of the employees of some otherDepartments. Government Resolutions (G.Rs.) issued in thatregard have been placed on record. He would further submitthat, the petitioners have rendered more than 15 years ofservice. On the ground of alternate remedy is concerned,learned Senior Advocate would submit that the Writ Petitionhas been admitted and it would, therefore, not be in the fitness Writ Petition No.2821/2010:: 11 ::of things now to drive the petitioners to avail alternate equallyefficacious remedy. He would, therefore, urge for allowing theWrit Petition as prayed for. The learned Senior Advocate forpetitioners relied on the following authorities : (1)Rajesh Ashok Mankar Vs. Konkan Railway Corpn. Ltd.& ors. [ (2023) 2 High Court Cases (Bom) 258 ](2)State of Punjab & ors. Vs. Jagjit Singh & ors.(2017) 1 SCC 148(3)Grih Kalyan Kendra Workers’ Union Vs. Union ofIndia & ors. [ AIR 1991 SC 1173 ](4)State of W.B. Vs. Pantha Chaterjee & ors.AIR 2003 SC 3569(5)State of Tripura & ors. Vs. K.K. Roy2004 AIR SCW 1 (6)Central Inland Water Transport Corpn. Ltd. & anr.Vs. Brojo Nath Ganguly & anr. [AIR 1986 SC 1571](7)Genpact India Pvt. Ltd. Vs. Deputy Commissionerof Income Tax & ors. [ MANU/SC/1610/2019]9.The learned Special Counsel for the respondent-State would, on the other hand, submit that the petitioner No.1Balasaheb s/o Punjahari Shinde signed the tri-partyagreement. The petitioners suppressed the fact that they hadexecuted consent letters-cum-undertakings to render their Writ Petition No.2821/2010:: 12 ::services on contract basis. The consent letters executed bythe petitioners have all been placed on record along with theaffidavit-in-reply. The learned Special Counsel would furthersubmit that, there is no material to indicate the petitioners wereappointed by following due procedure of law. There is nodocument indicating the concerned officer of the EducationDepartment to have granted approval to the appointments ofthe petitioners. He would further submit that, even thepetitioners had filed Writ Petition No.6023/2006 forenforcement of the terms of the tri-party agreement. Thelearned Special Counsel would mean to say that, thepetitioners are now estopped. The petitioners agreed torender the services on the salary quantified in terms of the tri-party agreement. He would further submit that, the services ofthe petitioners have in fact been terminated. Having beenconscious of their termination, the petitioners have suppressedthe said fact. He would further submit that, continuation of thepetitioners in service till date is only on the basis of interimorder passed by this Court. According to the learned SpecialCounsel, since the petitioners claim to have been inGovernment service, they have an equally efficacious alternate Writ Petition No.2821/2010:: 13 ::remedy of approaching the Administrative Tribunal to havetheir grievance redressed. He would further submit that, theState is not under obligation to pay the petitioners equal payfor equal work. According to him, those who have been paidthe salary in terms of Pay Commission recommendations,were duly appointed. It is not a case of regular appointment ofpetitioners. The learned Special Counsel would further submitthat, the State Government has returned the land and thebuilding to its original owner, which was taken over pursuant tothe tri-party agreement dated 24/2/2004. The owner of theland has been paid yearly rent. The petitioners could not besaid to have been similarly placed to that of the employeesappointed by following due process. In support of hissubmissions, the learned Senior Counsel has relied on thefollowing authorities : (1)Secretary, State of Karnataka & ors. Vs. Umadevi (3)& ors. [ 2006) 4 SCC 1(2)Mohd. Ashif & ors. Vs. State of Bihar & ors.(2010) 5 SCC 475(3)Ramkrishna Chauhan Vs. Seth D.M. High School& ors. [ 2013 (2) Mh.L.J. 713 ](4)L. Chandra Kumar Vs. Union of India & ors.1997 (0) BCI 3 Writ Petition No.2821/2010:: 14 ::10.We have considered the submissions advanced.Perused the documents on record. Let us now address theissues raised in this Writ Petition.Equally efficacious alternate remedy:11.The learned Senior Advocate for the petitionersrelied on the judgment in the case of Rajesh Mankar (supra) tosubmit that, since the Writ Petition has been admitted, thesame needs to he beard on merits.12.This may not be the correct legal position in view ofthe judgment of the Apex Court in case of Genpact India Pvt.Ltd. (supra), wherein it has been observed in paragraphNos.15 and 16 as follows : 15. Thus, while it can be said that this Court hasrecognised some exceptions to the rule of alternativeremedy i.e. where the statutory authority has not actedin accordance with the provisions of the enactment inquestion, or in defiance of the fundamental principlesof judicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen passed in total violation of the principles ofnatural justice, the proposition laid down in ThansinghNathmal case MANU/SC/0255/1964 : AIR 1964 SC1419, Titaghur Paper Mills case MANU/SC/0317/1983: (1983) 2 SCC 433 : 1983 SCC (Tax) 131 and other Writ Petition No.2821/2010:: 15 ::similar judgments that the High Court will notentertain a petition under article 226 of theConstitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of has been taken itselfcontains a mechanism for redressal of grievance stillholds the field. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation.”Recently, in Authorised Officer, State Bank ofTravancore & Anr. v. Mathew K.C.MANU/SC/0054/2018 : (2018) 3 SCC 85, theprinciples laid down in Chhabil Dass Agarwal MANU/SC/0802/2013 : (2014) 1 SCC 603 were reiterated asunder:“The discretionary jurisdiction under Article 226 is notabsolute but has to be exercised judiciously in thegiven facts of a case and in accordance with law. Thenormal rule is that a writ petition under Article 226 ofthe Constitution ought not to be entertained if alternatestatutory remedies are available, except in cases fallingwithin the well-defined exceptions as observed in CITv. Chhabil Dass Agrawal [MANU/SC/0802/2013 :(2014) 1 SCC 603 ... ].16. We do not, therefore, find any infirmity in theapproach adopted by the High Court in refusing toentertain the Writ Petition. The submission that oncethe threshold was crossed despite the preliminaryobjection being raised, the High Court ought not tohave considered the issue regarding alternate remedy,may not be correct. The first order dated 25.01.2017passed by the High Court did record the preliminaryobjection but was prima facie of the view that thetransactions defined in Section 115QA were initiallyconfined only to those covered by Section 77A of the
Decision
Writ Petition No.2821/2010:: 16 ::Companies Act. Therefore, without rejecting thepreliminary objection, notice was issued in the matter.The subsequent order undoubtedly made the earlierinterim order absolute. However, the preliminaryobjection having not been dealt with and disposed of,the matter was still at large.In State of U.P. v. U.P. Rajya Khanij Vikas NigamSangharsh Samiti and others MANU/SC/7603/2008 :(2008) 12 SCC 675 this Court dealt with an issuewhether after admission, the Writ Petition could not bedismissed on the ground of alternate remedy. Thesubmission was considered by this Court as under: “38. With respect to the learned Judge, it is neither thelegal position nor such a proposition has been laiddown in Suresh Chandra Tewari MANU/UP/0076/1992 : AIR 1992 All 331 that once a petition isadmitted, it cannot be dismissed on the ground ofalternative remedy. It is no doubt correct that in theheadnote of All India Reporter (p. 331), it is stated that“petition cannot be rejected on the ground ofavailability of alternative remedy of filing appeal”. Butit has not been so held in the actual decision of theCourt. The relevant para 2 of the decision reads thus:(Suresh Chandra Tewari case, AIR p. 331).“2. At the time of hearing of this petition a thresholdquestion, as to its maintainability was raised on theground that the impugned order was an appealable oneand, therefore, before approaching this Court thepetitioner should have approached the appellateauthority. Though there is much substance in the abovecontention, we do not feel inclined to reject thispetition on the ground of alternative remedy havingregard to the fact that the petition has been entertainedand an interim order passed.” Writ Petition No.2821/2010:: 17 ::Even otherwise, the learned Judge was not right in law.True it is that issuance of rule nisi or passing of interimorders is a relevant consideration for not dismissing apetition if it appears to the High Court that the mattercould be decided by a writ court. It has been so heldeven by this Court in several cases that even ifalternative remedy is available, it cannot be held that awrit petition is not maintainable. In our judgment,however, it cannot be laid down as a proposition of lawthat once a petition is admitted, it could never bedismissed on the ground of alternative remedy. If suchbald contention is upheld, even this Court cannot orderdismissal of a writ petition which ought not to havebeen entertained by the High Court under Article 226of the Constitution in view of availability of alternativeand equally efficacious remedy to the aggrieved party,once the High Court has entertained a writ petitionalbeit wrongly and granted the relief to the petitioner. 13.The legal position is that, Article 226 confers verywide powers in the matter of issuing writs on the High Courts.The remedy of writ is absolutely discretionary in character.The Court, in extraordinary circumstances, may exercise thepowers if it comes to the conclusion that there has been abreach of the principles of natural justice. The ground ofobjection raised by the learned Special Counsel for therespondent- State is not without exception. The facts of thepresent case indicate the petitioners have been agitating theirclaim since 2006. Earlier the Writ Petition was filed. Therein,no such objection, as has been raised herein, was urged. It is Writ Petition No.2821/2010:: 18 ::only in the additional affidavit-in-reply filed in April 2025, thesaid ground has been raised. This Court has granted interimrelief in the petition. In these peculiar facts and circumstancesof the case, it would not be legitimate to drive the petitioners toavail the alternate remedy and start de novo. We, therefore,propose to decide the Writ Petition on its own merit.Direction for creation of posts and absorption of thepetitioners:14.Way back in 1984, the educational institute startedITI at Kopargaon. The petitioners were appointed by theeducational institute on various dates. A tri-party agreementwas executed on 24/2/2004 between the State on one handand the educational institute and the owner of the land on theother. Although it has been averred in the petition that thepetitioners are duly qualified and have been recruited byfollowing due procedure of law, no document has been placedon record in support of the said claim. The terms of the tri-party agreement, relevant for deciding this Writ Petition arereferred to and reproduced below in verbatim :And Whereas the Government has on the faith of the Writ Petition No.2821/2010:: 19 ::statement and representation made by the PresidentSanjivani Rural Education Society has accepted hisapplication and agreed to transfer the SanjivaniIndustrial Training Centre to Government by merging itinto existing Government Industrial Training Institute.Absorptionof staffOut of 33 teaching and non-teachingpost of Sanjivani ITC. The post ofPrincipal, Workshop Attendant,Storekeeper, these 3 posts will not beabsorbed in Government. Whileremaining 30 posts along withworking staff on that post will beabsorbed in Government on contractbasis. Each individual staff has toexecute an agreement regarding hiswillingness to work on contract basis.During 2004-05 only 8 units will bestarted and only 50% staff of relatedtrades will be absorbed on contractbasis. Depending upon response ofthe students remaining 8 units will bestarted in 2005-06 and remaining50%staff will be absorbed at that time.Claims of Government Service :The absorbed staff will not be givenany benefits of Government serviceincluding leave, encashment of leave,medical facilities, and pension/retirement benefits etc. They will bepaid only a fixed amount as describedabove. The services of absorbed staffwill be of purely temporary in natureand they will not have any right ofGovernment service or continuation.Their services may be terminatedgiving one month notice. 15.In terms of tri-party agreement, the State Writ Petition No.2821/2010:: 20 ::Government took over the ITI. It is true that, the petitioners arenot parties to the tri-party agreement. The fact is, however,that, the petitioners had filed Writ Petition No.6023/2006 forenforcement of the terms of the tri-party agreement. Thepetitioners had thus agreed for their absorption on contractbasis. There is a communication indicating the State to havecreated the posts. The question is, whether direction forabsorption of the petitioners thereon could be given. It isreiterated that, there is nothing on record to indicate thepetitioners to have been duly appointed nor is there anything toindicate the State to have had undertaken to appoint thepetitioners permanently. Reliance is placed on the G.Rs.dated 8/3/1999, 22/1/2009 and 8/7/2014 indicating the State tohave taken decision to make certain employees permanent.The petitioners will have to make out their case in their ownright. In the petition, there is no reference to these G.Rs.According to the State, those employees have beenregularised since their appointments were by following dueprocess of law and they held the requisite qualification. Thesame is not the case herein. Writ Petition No.2821/2010:: 21 ::16.The Constitution Bench of the Apex Court in caseof Umadevi & ors. (3) (supra), has observed :-4. But, sometimes this process is not adhered toand the Constitutional scheme of public employmentis by-passed. The Union, the States, theirdepartments and instrumentalities have resorted toirregular appointments, especially in the lower rungsof the service, without reference to the duty toensure a proper appointment procedure through thePublic Service Commission or otherwise as per therules adopted and to permit these irregularappointees or those appointed on contract or on dailywages, to continue year after year, thus, keeping outthose who are qualified to apply for the postconcerned and depriving them of an opportunity tocompete for the post. It has also led to persons whoget employed, without the following of a regularprocedure or even through the backdoor or on dailywages, approaching Courts, seeking directions tomake them permanent in their posts and to preventregular recruitment to the concerned posts. TheCourts have not always kept the legal aspects inmind and have occasionally even stayed the regularprocess of employment being set in motion and insome cases, even directed that these illegal, irregularor improper entrants be absorbed into service. Aclass of employment which can only be called'litigious employment', has risen like a phoenixseriously impairing the constitutional scheme. Suchorders are passed apparently in exercise of the widepowers under Article 226 of the Constitution ofIndia. Whether the wide powers under Article 226 ofthe Constitution are intended to be used for apurpose certain to defeat the concept of social justiceand equal opportunity for all, subject to affirmativeaction in the matter of public employment asrecognized by our Constitution, has to be seriouslypondered over. It is time, that Courts desist from Writ Petition No.2821/2010:: 22 ::issuing orders preventing regular selection orrecruitment at the instance of such persons and fromissuing directions for continuance of those who havenot secured regular appointments as per procedureestablished. The passing of orders for continuance,tends to defeat the very Constitutional scheme ofpublic employment. It has to be emphasized that thisis not the role envisaged for High Courts in thescheme of things and their wide powers underArticle 226 of the Constitution of India are notintended to be used for the purpose of perpetuatingillegalities, irregularities or improprieties or forscuttling the whole scheme of public employment.Its role as the sentinel and as the guardian of equalrights protection should not be forgotten.5.. . . . . . 6.The power of a State as an employer is morelimited than that of a private employer inasmuch asit is subjected to constitutional limitations andcannot be exercised arbitrarily (See Basu's ShorterConstitution of India). Article 309 of theConstitution gives the Government the power toframe rules for the purpose of laying down theconditions of service and recruitment of persons tobe appointed to public services and posts inconnection with the affairs of the Union or any ofthe States. That Article contemplates the drawing upof a procedure and rules to regulate the recruitmentand regulate the service conditions of appointeesappointed to public posts. It is well acknowledgedthat because of this, the entire process of recruitmentfor services is controlled by detailed procedureswhich specify the necessary qualifications, the modeof appointment etc. If rules have been made underArticle 309 of the Constitution, then theGovernment can make appointments only inaccordance with the rules. The State is meant to be amodel employer. The Employment Exchanges(Compulsory Notification of Vacancies) Act, 1959 Writ Petition No.2821/2010:: 23 ::was enacted to ensure equal opportunity foremployment seekers. Though this Act may notoblige an employer to employ only those personswho have been sponsored by employmentexchanges, it places an obligation on the employerto notify the vacancies that may arise in the variousdepartments and for filling up of those vacancies,based on a procedure. Normally, statutory rules areframed under the authority of law governingemployment. It is recognized that no governmentorder, notification or circular can be substituted forthe statutory rules framed under the authority of law.This is because, following any other course could bedisastrous inasmuch as it will deprive the security oftenure and the right of equality conferred on civilservants under the Constitutional scheme. It mayeven amount to negating the accepted servicejurisprudence. Therefore, when statutory rules areframed under Article 309 of the Constitution whichare exhaustive, the only fair means to adopt is tomake appointments based on the rules so framed.. . . . . . . . . . . . .12.In spite of this scheme, there may beoccasions when the sovereign State or itsinstrumentalities will have to employ persons, inposts which are temporary, on daily wages, asadditional hands or taking them in without followingthe required procedure, to discharge the duties inrespect of the posts that are sanctioned and that arerequired to be filled in terms of the relevantprocedure established by the Constitution or forwork in temporary posts or projects that are notneeded permanently. This right of the Union or ofthe State Government cannot but be recognized andthere is nothing in the Constitution which prohibitssuch engaging of persons temporarily or on dailywages, to meet the needs of the situation. But thefact that such engagements are resorted to, cannot beused to defeat the very scheme of public Writ Petition No.2821/2010:: 24 ::employment. Nor can a court say that the Union orthe State Governments do not have the right toengage persons in various capacities for a durationor until the work in a particular project is completed.Once this right of the Government is recognized andthe mandate of the constitutional requirement forpublic employment is respected, there cannot bemuch difficulty in coming to the conclusion that it isordinarily not proper for the courts whether actingunder Article 226 of the Constitution or underArticle 32 of the Constitution, to direct absorption inpermanent employment of those who have beenengaged without following a due process ofselection as envisaged by the constitutionalscheme.”. . . . . . . . . . . 17.We have already indicated the constitutionalscheme of public employment in this country, andthe executive, or for that matter the Court, inappropriate cases, would have only the right toregularize an appointment made after following thedue procedure, even though a non-fundamentalelement of that process or procedure has not beenfollowed. This right of the executive and that of thecourt, would not extend to the executive or the courtbeing in a position to direct that an appointmentmade in clear violation of the constitutional scheme,and the statutory rules made in that behalf, can betreated as permanent or can be directed to be treatedas permanent.18.Without keeping the above distinction in mindand without discussion of the law on the question orthe effect of the directions on the constitutionalscheme of appointment, this Court in Daily RatedCasual Labour Vs. Union of India & Ors. (1988 (1)SCC 122) directed the Government to frame ascheme for absorption of daily rated casual labourerscontinuously working in the Posts and Telegraphs Writ Petition No.2821/2010:: 25 ::Department for more than one year. This Courtseems to have been swayed by the idea that India isa socialist republic and that implied the existence ofcertain important obligations which the State had todischarge. While it might be one thing to say that thedaily rated workers, doing the identical work, had tobe paid the wages that were being paid to those whoare regularly appointed and are doing the samework, it would be quite a different thing to say that asocialist republic and its executive, is bound to givepermanence to all those who are employed as casuallabourers or temporary hands and that too without aprocess of selection or without following themandate of the Constitution and the laws madethereunder concerning public employment. Thesame approach was made in Bhagwati Prasad Vs.Delhi State Mineral Development Corporation (1989Suppl. (2) SCR 513) where this Court directedregularization of daily rated workers in phases andin accordance with seniority.……………..45.While directing that appointments, temporaryor casual, be regularized or made permanent, thecourts are swayed by the fact that the personconcerned has worked for some time and in somecases for a considerable length of time. It is not as ifthe person who accepts an engagement eithertemporary or casual in nature, is not aware of thenature of his employment. He accepts theemployment with open eyes. It may be true that heis not in a position to bargain -- not at arm’s length --since he might have been searching for someemployment so as to eke out his livelihood andaccepts whatever he gets. But on that ground alone,it would not be appropriate to jettison theconstitutional scheme of appointment and to take theview that a person who has temporarily or casuallygot employed should be directed to be continuedpermanently. By doing so, it will be creating another Writ Petition No.2821/2010:: 26 ::mode of public appointment which is notpermissible. If the court were to avoid a contractualemployment of this nature on the ground that theparties were not having equal bargaining power, thattoo would not enable the court to grant any relief tothat employee. A total embargo on such casual ortemporary employment is not possible, given theexigencies of administration and if imposed, wouldonly mean that some people who at least getemployment temporarily, contractually or casually,would not be getting even that employment whensecuring of such employment brings at least somesuccor to them. After all, innumerable citizens of ourvast country are in search of employment and one isnot compelled to accept a casual or temporaryemployment if one is not inclined to go in for suchan employment. It is in that context that one has toproceed on the basis that the employment wasaccepted fully knowing the nature of it and theconsequences flowing from it. In other words, evenwhile accepting the employment, the personconcerned knows the nature of his employment. It isnot an appointment to a post in the real sense of theterm. The claim acquired by him in the post inwhich he is temporarily employed or the interest inthat post cannot be considered to be of such amagnitude as to enable the giving up of theprocedure established, for making regularappointments to available posts in the services of theState. The argument that since one has been workingfor some time in the post, it will not be just todiscontinue him, even though he was aware of thenature of the employment when he first took it up, isnot (sic) one that would enable the jettisoning of theprocedure established by law for public employmentand would have to fail when tested on thetouchstone of constitutionality and equality ofopportunity enshrined in Article 14 of theConstitution. Writ Petition No.2821/2010:: 27 ::17.In view of the Constitution Bench judgment of theApex Court, referred to hereinabove, we do not propose torefer to the other authorities relied on by the learned SpecialCounsel for the respondent- State on the same issue.18.Since the record indicate the petitioners to haveagreed to serve on contract basis and there being no materialto indicate the State to have agreed to make them permanent,there is also no record to indicate the petitioners to have beenappointed by following due procedure, we are not inclined togrant the petitioners relief of absorption in service.PAY :19.In most of the Talukas and in each District, theState runs ITI. Almost all the teaching and non-teaching staffof the other ITIs. and even the staff members, other than thepetitioners, of the ITI in question appear to have beenappointed by the State and paid salary and other perks interms of respective Pay Commission recommendations.20.It is true that, in terms of the tri-party agreement Writ Petition No.2821/2010:: 28 ::and even the communication by the State, the salary of thepetitioners way back in 2004 was as under : Peon:2500/-.Junior Clerk:3000/-.Senior Clerk:3500/-.Head Clerk:4000 /-. The same continued till this Court passed interimorder dated 21/10/2021.There is no clause at all to indicate hike in the payof the petitioners commensurate with inflation. Article 39clause (d) of the Constitution of India provides that, the Stateshall, in particular, direct its policy towards securing that thereis equal pay for equal work for both men and women.21.The Apex Court, in case of Jagjit Singh (supra),held : A. Service Law – Pay – Parity in pay/ pay scale –Principle of “equal pay for equal work” - Applicabilityto temporary employees – Entitlement of temporaryemployees to minimum regular pay scale (along withdearness allowance as revised from time to time) onaccount of their performing same duties as dischargedby regular employees against sanctioned posts, Writ Petition No.2821/2010:: 29 ::affirmed. - Held, principle of “equal pay for equal work”expounded through various decisions of Supreme Courtconstitutes law declared by Supreme Court, which isbinding on all courts in India – As such, it is alsoapplicable to temporary employees performing the sameduties and responsibilities as regular employees – It isfallacious to determine artificial parameters to denyfruits of labour – More so, in a welfare State – any actof paying less wages as compared to others similarlysituated, constitutes act of exploitative enslavementemerging out of domineering position of the State –Thus held, temporary employees possessing requisitequalifications and appointed against posts which werealso available in regular cadre, performing similarduties and responsibilities as being discharged byregular employees holding same/ corresponding posts,were entitled to claim wages on a par with minimumpay scale of regular employees holding the same posts –Constitution of India, Arts. 14 and 16. B.Service Law – Pay – Parity in pay/ pay scale –Principle of “equal pay for equal work” - Parameters forapplicability of – Summarised, on extensive survey ofcase law.- Held, (i) claimant must prove that subject postoccupied by him requires him to discharge equal workof equal value and sensitivity as reference post; (ii)mere fact that subject post occupied by claimant is indifferent department vis-a-vis reference postinconsequential; (iii) principle cannot be automaticallyinvoked merely because subject and reference post havesame nomenclature; (iv) differentiation of pay scales forposts with difference in degree of responsibility,reliability and confidentiality fall within realm of validclassification justifying pay differentiation; (v) personsperforming similar functions, duties and responsibilitiescan be placed in different pay scales such as “selectiongrade” in same post but such difference must have Writ Petition No.2821/2010:: 30 ::legitimate foundation such as merit, seniority, etc; (vi)reference post with which parity is claimed must be insame hierarchy as subject post; (vii) principleinapplicable where subject post and reference post arein different establishments having different managementor even where establishments are in differentgeographical locations though owned by same master;(viii) priority given to different types of post underprevalent Government policy can be relevant factor forplacing different posts under different scales; (ix)principle inapplicable where differential higher payscale is extended to persons discharging same dutiesand holding same designation with objective ofameliorating stagnation of decrease of lack ofpromotional avenues.D.Service Law – Pay – Parity in pay/ pay scale –Classification of temporary employees on basis oflength of service – Held, is violative of Arts. 14 and 16of the Constitution and hence unsustainable.- On facts held, categorisation of temporary employeeswho were in continuous service (with notional breaks)for 10 years or more for granting benefit of minimumregular pay scale by Full Bench of High Courtunsustainable and liable to be set aside – Constitution ofIndia, Arts. 14 and 16.22.The Apex Court has referred and relied on numberof its judgments on similar issue and taking the same view. Inpara 51.1, it has been observed : “51.1 It is apparent, that this Court in State of Punjabv. Surjit Singh (2009) 9 SCC 514, did hold, that thedetermination rendered in paragraph 55 of thejudgment in case of State of Karnataka V. Umadevi (3)(2006) 4 SCC 1, was in exercise of the power vested in Writ Petition No.2821/2010:: 31 ::this Court, under Article 142 of the Constitution ofIndia. But the above observation does not lead, to theconclusion or the inference, that the principle of ‘equalpay for equal work’ is not applicable to temporaryemployees. In fact, there is a positive take-away for thetemporary employees. The Constitution Bench would,in the above situation, be deemed to have concluded,that to do complete justice to the cause of temporaryemployees, they should be paid the minimum wage ofa regular employee, discharging the same duties. Itneeds to be noticed, that on the subject of pay parity,the findings recorded by this Court in the Umadevi (3)case, were limited to the conclusions recorded inparagraph 55 thereof (which we have dealt with above,while dealing with the case law, on the principle of“equal pay for equal work”).23.In case of Grih Kalyan Kendra Workers’ Union(supra), the Apex Court held : (B)Constitution of India, Art. 14, Art. 16, Art.12, Art.39(d) – Equal pay for equal work – It hasassumed status of fundamental right – Is applicablewith full vigour to establishment which isinstrumentality of State.24.In case of Olga Tellis & ors. Vs. BombayMunicipal Corporation & ors. (1985) 3 SCC 545, it has beenheld :“No individual can barter away the freedoms conferredupon him by the Constitution. A concession made byhim in a proceeding, whether under a mistake of law orotherwise, that he does not possess or will not enforce Writ Petition No.2821/2010:: 32 ::any particular fundamental right, cannot create anestoppel against him in that or any subsequentproceeding. Such concession, if enforced, would defeatthe purpose of the Constitution.”25.Moreover, in the judgment in case of Umadevi(supra), relied on by learned Special Counsel for therespondent – State, it is observed in para 18 as under :“18.. . . While it might be one thing to say that thedaily rated workers, doing the identical work, had tobe paid the wages that were being paid to those whoare regularly appointed and are doing the samework . . . . . . 44.The concept of “equal pay for equal work” isdifferent from the concept of conferring permanencyon those who have been appointed on ad hoc basis,temporary basis, or based on no process of selection asenvisaged by the rules. This Court has in variousdecisions applied the principle of equal pay for equalwork and has laid down the parameters for theapplication of that principle. The decisions are restedon the concept of equality enshrined in ourConstitution in the light of the directive principles inthat behalf.” 26.It is true that, the State, vide its communicationdated 23/3/2010, seems to have terminated the services of thepetitioners. The matter has, however, a chequered history.The State being a model employer, ought not to have resortedto such action when it had in principle, agreed to absorb the Writ Petition No.2821/2010:: 33 ::petitioners on contract basis. Even the State had created theposts. The so called termination of services of the petitionersis on the ground that they did not report on duty after executingrequisite undertaking. In the meanwhile, the petitioners hadapproached this Court. Notice was issued. Head Master ofrespondent No.5 (ITI) was present. That time no whisper wasmade about termination of the services of the petitioners. Itappears that, the respondent State did not have a good groundlike misconduct or alike to issue order of termination ofservices of the petitioners. This Court, vide interim order,directed the State to allow the petitioners to resume duty andnot to insist upon execution of an undertaking. In the peculiarfacts and circumstances of the case, we find the saidcommunication terminating the petitioners’ services to be liableto be set aside. It should not be taken that the State has noright to terminate the services of the petitioners. It mayexercise its right on the touchstone of the legal principle.27.We are concerned with the petitioners’ prayer forequal pay for equal work. In the authorities referred tohereinabove, it has been held that, the said claim has now Writ Petition No.2821/2010:: 34 ::been crystalised into a constitutional right. Admittedly, formore than 20 Trades, training is imparted to the students in theITI in question. Admittedly, there are other staff members/employees (teaching and non-teaching) serving with the veryITI. True, their services are transferable. Admittedly, they arebeing paid salary in terms of Pay Commissionrecommendations. There is no dispute that the petitionershave been rendering the services equal to the servicesrendered by those employees. It is true that, salaries of thoseemployees must have been different and even higher in viewof them to have rendered services more than the yearspetitioners have put in.28.A glaring circumstance needs to be referred to. Uptill recent past, the petitioners were paid salary in terms of thequantum given in tri-party agreement. On 21/10/2021, thisCourt passed the order. Paragraph Nos.4, 5 and 8 thereofread thus : “4.Shri. Dhorde, the learned Senior Advocate hasplaced before us a chart of the salary of these petitioners,which are ranging from Rs.5,500/- p.m. paid to the‘Group Instructor’ to Rs.2,000/- p.m. to the ‘Peon’. Thesaid chart is taken on record and marked as ‘X-1’ for Writ Petition No.2821/2010:: 35 ::identification.5. A single glance at the above stated chart wouldshock the conscience of any prudent person. As has beensaid quite often, it is impossible for a person to keep hismind, body and soul together and ensure the survival ofhis family in a monthly income of Rs.2,000/- p.m. toRs.5,500/- p.m. Our judicial conscience is also shocked.. . . . . . . . . . . 8. We find favour with such recommendationwithout prejudice to the rights and claims of thepetitioners set out in this petition. Having consideredtheir earlier salary scales which would surely not enablea human being to survive even for a week, we find thatthe proposal forwarded deserves urgent attention andsanction.”Thereafter only the State enhanced the salary ofthe petitioners to some extent.29.In view of the authorities relied on by the petitionersto claim pay parity on the ground of the said right to have beenrecognised as a constitutional right, we grant the petitionersthe said relief.Ex-gratia payment to those who have passed awaypending the petition :30. It is unfortunate that, four of the petitioners havedied in harness. In view of the contractual employment, their Writ Petition No.2821/2010:: 36 ::legal representatives would not be entitled for the monetarybenefits and even other benefits as well which are paid to thepermanent employees. It would be travelling beyond ourpowers to direct the State to pay the legal representatives ofthe deceased employees a lumpsum amount towards ex-gratiapayment. We are, therefore, not inclined to grant such aprayer or even other benefits which are available to thepermanent employees.31.For all the aforesaid reasons, the Writ Petitionstands partly allowed in terms of the following order : O R D E R(i) The Writ Petition is partly allowed. The communicationdated 23/3/2010 issued by the respondent No. is set aside.(ii)The respondents No.1 to 3 are directed to pay thepetitioners salary on a par with minimum pay-scale of regularemployees (in the concerned I.T.I.) holding the same post/splus Dearness Allowance as has been/ may be revised fromtime to time from the date of the petition to the date of thisorder and shall continue to pay until they are in service(iii)The amount payable to the deceased employees Writ Petition No.2821/2010:: 37 ::(petitioners) be paid to their legal representatives (heirs) onproduction of succession certificate.(iv)The amount shall be paid within a period of six monthsfrom the date of this order, failing which the amount shall carryinterest at the rate of 6% p.a. thereafter to the date of payment.(v)Due set off be given of the amount/ salary paid to thepetitioners/ deposited with this Court. Rule made absolute in above terms. (SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.) At this stage, learned Advocate for RespondentsNo.1 to 3 & 5 urged for stay of this order. Since six months’time has been granted for compliance of the order, we are notinclined to grant stay.(SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.) fmp/-