(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of an order dated 25.08.2011 passed in Miscellaneous Civil Application No.17 of 2011 in Special Civil Application No.8647 of 2008 with Miscellaneous Civil Application No.129 of 2011 in Special Civil Application No.8751 of 2008. The said Special Civil Applications were disposed of by oral judgment dated 29.10.2010. Those petitions were filed by the Unions, representing daily wagers, working in the Forest Department. Apart from other prayers, the main prayer was that the order dated 03.05.2008, passed by the Principal Secretary, Forest and Envirnment Department, State of Gujarat, rejecting the petitioners' representation for one time regularization be quashed and the State Government be directed to formulate and prepare a scheme for the purpose of giving 'permanent' or 'quasi permanent' status to the daily wagers of the Forest Department, in light of the length of service rendered on daily wage basis in the Forest Department.
2. The litigation has a long history. Initially, in the year 2006, Special Civil Application No.6913 of 2006 and 7088 of 2006 were filed, praying for permanent absorption in service on a scheme for regularization of service, besides regular pay scale, increments, weekly off, group insurance, benefit of public holidays, pension, gratuity, bonus etc. Those petitions were disposed of by order dated 12.10.2006, requiring the petitioners therein to make a representation to the respondent-authorities and the authorities were directed to decide the same within a period of two months thereof. The representation was rejected by the Deputy Conservator of Forest, Rajpipla, West Division by order dated 30.10.2006. According to the petitioners, the Deputy Conservator of Forest did not have authority to decide the representation and therefore, they preferred Miscellaneous Civil Application Nos.119 of 2008 to 291 of 2008 for direction that the Secretary, Forest and Environment Department, State of Gujarat should decide the representation dated 30.06.2006. By order dated 31.01.2008, this Court directed the Secretary, Forest and Environment Department, State of Gujarat to decide the petitioners' representation on or before 09.04.2008. However, no decision was taken till that date and therefore, again Miscellaneous Civil Application No.1400 of 2008 was preferred, praying for proceeding against the respondent-authorities under the Contempt of Courts Act. Upon service of notice, Secretary, Forest and Environment Department, State of Gujarat passed an order on 03.05.2008, rejecting the petitioners' representation, which came to be impugned in Special Civil Application No.8647 of 2008 and allied matters. By order dated 29.10.2010, learned Single Judge, after considering certain disputed facts gave following directions:-
“A) The impugned order dated 03.05.2008 passed by the Secretary, Forest & Environment Department, State of Gujarat is quashed and set aside.
B) The Secretary, Forest & Environment Department, State of Gujarat, is directed to consider the case of the petitioners for regularization/ conferring permanent status, afresh in light of the facts of each individual case keeping in mind the observations made hereinabove and also to consider the scope of framing a scheme for giving quasi permanent status to the petitionersdaily wagers at par with the scheme for daily wagers in other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc. contained in Government Resolution dated 17.10.1988. In case, the authorities is of the view that the benefits as prayed for cannot be granted then a reasoned order be passed supported by detailed reasons.
C) The aforesaid exercise be undertaken within a period of two months from today.
D) Liberty to revive the petitions in case of difficulty by filing required application/s.”
3. Learned Single Judge also found that the order passed by the Secretary, Forest and Environment Department, State of Gujarat was almost reproduction of the order passed by the Deputy Conservator of Forest and then directed that exercise be undertaken within a period of two months from the date of that order. Since, nothing happened, original petitioners preferred Miscellaneous Civil Application Nos.17 of 2011 and 129 of 2011, broadly praying for a direction to the respondent-authorities to file a status report in the matter so as to apprise this Court about the exercise undertaken till then, pursuant to the judgment dated 29.10.2010.
4. Later, the petitioners sought amendment in the Miscellaneous Civil Applications and added the following prayers:-
“AA. Your Lordships may be pleased to quash and set aside the order dated 21.4.2011 passed by the Principal Secretary, Forests and Environment Department, Government of Gujarat, Gandhinagar (Page 34 of the Misc. Civil Application Paper Book).
AB. Your Lordships be pleased to declare that the impugned order dated 21.4.2011 passed by the Principal Secretary, Forests and Environment Department, Government of Gujarat, Gandhinagar is inconsistent and incompatible with the High Court's oral judgment dated 29.10.2010 passed in the Special Civil Application No.8647 of 2008 with Special Civil Application No.11476 of 2010 to 11689 of 2010;
AC. Your Lordships be pleased to initiate proceedings of Civil Contempt against Dr.S K Nanda, Principal Secretary, Forests and Environment Department, Government of Gujarat, Gandhinagar for passing order dated 21.4.2011 that files in the face of the High Court's order / Oral Judgment dated 29.10.2010.
AD. Your Lordships be pleased to direct respondent No.1 to frame a scheme for giving quasi permanent status to the applicants daily wagers in compliance of the High Court's oral judgment dated 29.10.2010 passed in the Special Civil Application No.8647 of 2008 with Special Civil Application No.11476 of 2010 to 11689 of 2010;”
5. Learned Single Judge, after hearing both the sides passed the order in Miscellaneous Civil Applications on 25.08.2011 (impugned order) giving following directions:-
7. Having carefully considered judgment dated 29/10/2010, this Court is of the opinion that order dated 21/04/2011 cannot be allowed to stand. It is therefore quashed and set aside. The respondents are directed to frame a scheme for giving quasi permanent status to the applicants daily wagers in compliance of the High Court's oral judgment dated 29.10.2010 passed in the SCA No.8647 of 2008 with SCA No.11476 of 2010 to 11689 of 2010.
(emphasis supplied)
8. At this juncture, it will be appropriate to put it on record that the petitioners have exhibited full responsibility towards the economic burden which may fall on the public exchequer by waiving the financial benefits for the past period.
(emphasis supplied)
8.1 Learned Advocate for the applicants – original petitioners reiterated that offer and stated that the petitioners stand to their offer and even when the respondent frames a scheme, as directed by this Court, they will not be claiming any financial benefits but the request is that the services rendered by them be counted notionally and the notional benefits be given to them.
9. Misc. Civil Application is allowed with aforesaid direction.
9.1 At the request of learned Advocate for the applicants – original petitioners, respondents are directed to comply with this direction, as expeditiously as possible, but not later than 15/11/2011.”
6. We have heard learned Government Pleader Mr.Prakash Jani appearing with learned AGP Mr.Rashesh Rindani and learned advocate Mr.Shalin Mehta appearing with Ms.Vidhi Bhatt appearing on caveat.
7. Learned Government Pleader Mr.Prakash Jani submitted that none of the petitioners was recruited through regular recruitment process, they were picked-up and appointed at the relevant time by the concerned RFOs and therefore, their's was a back-door entry, which cannot be regularized. Learned Government Pleader Mr.Jani submitted further that the petitioners were not working on the establishment of the State Government. It was then contended that Miscellaneous Civil Application was filed initially for the purpose of knowing the status and during the pendency of the Miscellaneous Civil Application, the order was passed and the same order came to be challenged in Miscellaneous Civil Application itself, whereas the original order entitled the petitioners to revive the petition, in case of adverse orders. The petitioners have moved Miscellaneous Civil Application only for the purpose of a direction requiring respondents to apprise the Court about the exercise undertaken pursuant to the Court's order. The order was challenged in the Miscellaneous Civil Application and not in the Special Civil Application, which ought not to have been done and therefore, learned Single Judge has also entertained the prayer permitting amendment in the Miscellaneous Civil Application and granted the relief sought by the amendments. Learned Single Judge thereby erred in granting substantial relief in Miscellaneous Civil Application. Learned Government Pleader Mr.Jani submitted that the appellants did not have opportunity to put forward the case. It cannot be said that there was an adjudication in respect of all the petitioners, who claimed to be working as daily wagers because of orders having been passed in respect of case of each of the petitioners indicating whether he had completed 240 days of work or not and therefore, this appeal may be admitted. Learned Government Pleader Mr.Jani submitted that the order impugned may be set aside and the matter may be remanded to the learned Single Judge for deciding in the time-
bound schedule and it will not cause any prejudice to either side.
8. Learned advocate Mr.Shalin Mehta contended that when the Miscellaneous Civil Application was preferred, the order was not passed and therefore, the petitioners preferred the application to direct respondents to show the status of the matter. Learned advocate Mr.Mehta submitted that thereafter the order was passed and therefore, the petitioners were entitlted to have the petition revived, instead they sought the same relief in Miscellaneous Civil Application, challenging the order passed by the Secretary, Forest and Environment Department, State of Gujarat. The respondent-authorities have opposed the same by filing the appropriate reply. Learned advocate Mr.Mehta submitted that the petitioners have been asserting their rights for a long time and are dragged into fourth round of litigation and if the Court takes the strict view of the matter, they would again have to take fifth round of litigation and it will cause a lot of hardships to the poor workmen. Learned advocate Mr.Mehta submitted that no prejudice is caused to the appellants-original respondents, as order was passed after hearing in due course and even if there is a procedural lapse, it should not come in the way of the petitioners. He submitted that the procedural rules or laws are made to facilitate enforcement of rights of the parties and not to mar and scuttle them. Learned advocate Mr.Mehta submitted that if the order impugned is seen, learned Single Judge, in detail, has indicated how the matter was proceeded before him and how opportunities were given to the respondent-authorities to put forward their case. In absence of any prejudice, procedural lapse does not come in the way and the appeal therefore, may be dismissed.
9. We have examined the record in context of the rival submissions.
10. We find that while disposing of the earlier petition, the Court had given direction to respondent-authorities to decide the representation, reserving rights of the original petitioners-workmen to revive the petition. As no order was passed, workmen had to prefer Miscellaneous Civil Application seeking direction to decide the representation and while that was pending, the representation came to be decided by order dated 21.04.2011. The workmen-original petitioners, therefore, sought amendment in Miscellaneous Civil Application and prayed for adding following prayers:-
“AA. Your Lordships may be pleased to quash and set aside the order dated 21.4.2011 passed by the Principal Secretary, Forests and Environment Department, Government of Gujarat, Gandhinagar (Page 34 of the Misc. Civil Application Paper Book).
AB. Your Lordships be pleased to declare that the impugned order dated 21.4.2011 passed by the Principal Secretary, Forests and Environment Department, Government of Gujarat, Gandhinagar is inconsistent and incompatible with the High Court's oral judgment dated 29.10.2010 passed in the Special Civil Application No.8647 of 2008 with Special Civil Application No.11476 of 2010 to 11689 of 2010;
AC. Your Lordships be pleased to initiate proceedings of Civil Contempt against Dr.S K Nanda, Principal Secretary, Forests and Environment Department, Government of Gujarat, Gandhinagar for passing order dated 21.4.2011 that files in the face of the High Court's order / Oral Judgment dated 29.10.2010.
AD. Your Lordships be pleased to direct respondent No.1 to frame a scheme for giving quasi permanent status to the applicants daily wagers in compliance of the High Court's oral judgment dated 29.10.2010 passed in the Special Civil Application No.8647 of 2008 with Special Civil Application No.11476 of 2010 to 11689 of 2010;”
11. The said amendments were allowed. It transpires that thereafter the respondent authorities- appellants herein filed their reply and the petitioners-respondents herein, filed their rejoinder thereto.
12. It is thus clear and we are satisfied that the adequate opportunities were given to both the sides to put forward their cases, while disposing of the Miscellaneous Civil Applications and no prejudice said to have been caused to either party, simply because the relief granted in Miscellaneous Civil Application should have been granted in a substantive petition. Barring this procedural lapse, learned Single Judge has exercised his extraordinary jurisdiction under Article 226 of the Constitution of India for all practical purposes and this procedural lapse cannot be permitted to be used to assail the order, which is otherwise passed after giving opportunity to both the sides. The procedural rules and laws are meant for facilitating smooth working of a system and are not to be permitted to be used as a lever for prolonging the litigation.
13. It may be noted that in the impugned judgment, learned Single Judge has only reiterated the direction to frame a scheme to give quasi permanent status to the original petitioners- daily wagers in compliance with the judgment dated 29.10.2010 passed in Special Civil Application No.8647 of 2008 with Special Civil Application Nos.11476 of 2010 to 11689 of 2010. The said direction given by order dated 29.10.2010 has not been challenged before any higher forum and has attained the finality. All that is done by learned Single Judge is reiteration of those directions and therefore, entertaining this appeal would tantamount to setting aside the judgment dated 29.10.2010, without that judgment being challenged.
14. Learned advocate Mr.Mehta, in our opinion, was right in submitting that when the State is litigant, it cannot take a technical stand or defence. In the instant case, the main defence is that the order passed in Special Civil Application was not revived and the order was challenged in Miscellaneous Civil Application.
The defence does not appeal to us much for the reasons stated herein above.
15. It was also contended by learned Government Pleader Mr.Jani that there is no adjudication on the decision taken by the appellants, in respect of each of the workmen. In our view this submission is not well-taken for the reason that this question was also considered by learned Single Judge in the judgment dated 29.10.2010, when learned Single Judge recorded certain undisputed facts, which are as follows:-
(A) The deciding authority, Secretary, Forest & Environment Department, State of Gujarat has himself come to the conclusion in the impugned order dated 03.05.2008 that the petitioners, daily wagers, are neither illegal nor irregular appointees. These are the words used – “the initial nature of the daily wagers in question does not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing the procedural difficulties does not arise.”
(B) The impugned order also depicts nature of work performed by the petitioners as under:
Thus, this is the State Government’s own showing of the petitioners’, daily wagers’, engagement.
(C) Looking to the nature of the work described in the impugned order that the petitioners, daily wagers, are engaged in, the work which is perennial in nature.
(D) The daily wagers of other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc., are made permanent in ClassIV by Government Resolution dated 17.10.1988. There is a specific reference in the Government Resolution to the daily wagers of the Forest Department as well. However, the said Government Resolution dated 17.10.1988 is not made applicable to the daily wagers of the Forest Department for no apparent reasons forthcoming from the affidavit filed by the State Government.
(E) The Department of Agriculture and Cooperation, State of Gujarat had issued a Resolution on 20.12.2005 to regularize or make permanent the daily wagers of the Fisheries Department. This Government Resolution is analogous to Government Resolution dated 17.10.1988. This resolution also refers to the Forest Department.
(F) The petitioners have placed on record the scheme framed by the Maharashtra State, Revenue and Forest Department for daily wagers of their Forest Department. This scheme is of the year 1996. A bare look at the scheme would reveal that the same is quite analogous to the Government Resolution dated 17.10.1988.
(G) There is a communication dated 18.10.2005 issued by the Additional Chief Conservator of Forest to the Principal Chief Conservator of Forest stating that in compliance of the award passed by the Labour Court in Reference (IT) No.386/88, daily wagers entrusted with Forest Protection Work, who have completed 5 years and 900 days, are required to be absorbed in ClassIV.”
16. In that judgment, learned Single Judge also directed respondent-authorities to take into consideration following factors:-
(1) The work of the petitioners is of perennial nature.
(2) The work that the petitioners do is full time.
(3) Most of the petitioners have 24hour duty round the clock.
(4) The petitioners have by now put in service of 5 to 30 years on daily wages in the Forest Department.
(5) All the petitioners, on account of their age, are ineligible for employment elsewhere.
(6) Most of the petitioners are tribals/adivasis.
(7) The petitioners have put in service of more than 240 days in every year for all these years.”
17. Much was argued on extending the benefits of the Government Resolution of the State Government dated 17.10.1988 to the original petitioners, who are from Forest Department. It appears that the petitioners are interested in the benefits rather than under which Government Resolution they are getting and as recorded by learned Single Judge in Paragraph No.8 of his order dated 25.08.2011, they have even volunteered to waive the financial benefits for the past period.
18. Last but not the least, as regards to the contention that workmen were not appointed after following regular procedure of recruitment and their appointments were a back-door entry. Learned Single Judge in his order, recorded undisputed facts, which includes that the Secretary, Forest and Environment Department, State of Gujarat himself came to the conclusion in the impugned order dated 03.05.2008 that the petitioners-daily wagers are neither illegal nor irregular appointees.
19. For the forgoing reasons, we find no merits in the appeals and therefore, both the appeals stand dismissed in limine. The Civil Applications also do not survive and disposed of accordingly.
[A.L.DAVE, J.] ..mitesh..
[MOHINDER PAL, J.]