V.K. Barde, J.
1. These Writ Petitions are filed, either by the Unions of the workers of Marathwada Agricultural University (hereinafter referred to as "the University"), or, by the employees of the University, against the State of Maharashtra, the University, etc. As the points involved in these Writ Petitions can be disposed of by common judgment, those are heard together.
Writ Petition No. 686 of 1988
2. In Writ Petition No. 686 of 1988, filed by the Union, Marathwada Krishi Vidyapeeth Magasvargiya Sevak Kalyankari Sangh, the Petitioner has contended that the University has employed about 3155 daily rated labourers, apart from 1939 permanent labourers, in its Colleges, Research Stations, Agricultural Stations, Gramsevak Training Schools, etc. The University and the State have prescribed the pay scale of Rs. 200-280 for the permanent labourers working under the University. However, the daily rated labourers are getting daily wages varying Rs. 6, Rs. 7, Rs. 8 and Rs. 10, depending on the zone in which they are working, as per the notification under the Minimum Wages Act. These wages were fixed by notification dated June 30, 1983; and till the date of filing of the petition, the same wages are being paid to the daily rated labourers, in spite of considerable increase in cost of living.
3. The petitioner has contended that the qualification, nature of work, duties and responsibilities of the work of labourers, who are daily rated labourers, same as that of permanent labourers employed by the University, Even then, the daily rated workers are getting far less wages than the emoluments being paid to permanent labourers. The daily rated workers are in service of the University since 12 to 14 years continuously; even then, they are being paid meagre wages.
4. It is also contended that the Maharashtra Minimum Wages Commission constituted under the Minimum Wages Act has fixed the rates of wages in-between Rs. 10.45 to Rs. 13.20, depending on the zones in Maharashtra Region. Even then, the wages paid by the University to the daily rated workers are between Rs. 6 and Rs. 10, depending on the zones in which they are employed. The wages being paid are so less that the workers are unable to meet both ends together.
5. It is further contended that in Punjabrao Agricultural University, at Akola; and Mahatma Phule Krishi Vidyapeeth, at Rahuri, most of the daily rated labourers are made permanent and are being paid the pay scale of Rs. 200-280 as per the notification dated June 30, 1983. The Petitioner Union made various representations to the Registrar and Vice-Chancellor of the University; to the Agricultural Minister and Chief Minister, to look into this problem. However, they have failed to solve the problem. The Union had submitted demands in writing and the Registrar of the University forwarded parawise remarks on the said letter of demand to the Government. However, the Government has not taken any action.
6. The petitioner has, therefore, contended that there is discrimination between the labourers who are employed as permanent labourers and those who are employed as daily rated labourers, even though the work being taken from them is of similar nature. So, for equal work, there must be equal pay. Therefore, the Petitioner has prayed that all the daily rated workers be paid wages at the rate of Rs. 22 per day.
7. The Petitioner has also contended that the University has prepared the seniority list, but the seniority list is not prepared on the basis of date of appointment. It is prepared on the basis of total days of work put in by the daily rated workers and this has resulted in ignoring the claims of those daily rated workers who are in service of the University for more than 12 years and many of the daily rated workers, who have hardly put in 5 to 7 years of service, are shown senior to such labourers and those labourers were given the permanent posts in the pay scale of Rs. 200-280. While giving permanency, the norms regarding reservation as per the 50 point of 100 point roster have not been followed by the University. It is, therefore, contended that all the daily rated workers, who have put in 1000 days of service under the University, be given permanency and the pay scale of Rs. 200-280.
8. In support of these contentions, the Petitioner has relied upon certain decisions given by the Industrial Tribunal while considering the cases of the workers of Mahatma Phule Krishi Vidyapeeth, Rahuri; and the subsequent circulars issued by the State Government to give effect to the awards passed by the Industrial Tribunal in those matters.
9. So far as this Petition is concerned, the Respondent University by its affidavit in reply has contended that the daily rated workers are being paid wages as per the wages fixed under the Minimum Wages Act by the Government notification. The Government revised the rates of daily rated workers by the notification dated June 23, 1988 and, therefore, there is increase in the wages of the daily rated workers with effect from May 1, 1988. It is also contended that the University has no independent source of income and sufficient funds to pay the wages to the daily rated workers as per their demand. The Government is providing the funds and, therefore, the wages are being paid as per the directions issued by the Government on the basis of the wages fixed under the Minimum Wages Act. It is beyond the capacity of the University to pay the wages as claimed by the daily rated workers.
10. It is further contended that the number of daily rated workers does not remain constant at the figure of 3155, but it varies from season to season, depending upon the workload. The University has employed only 894 regular labourers and not 1938, as alleged by the Petitioner. As that much posts are sanctioned by the State Government, permanency cannot be given to any daily rated labourers exceeding the sanctioned posts. However, this reply is filed only with respect to interim relief claimed by the petitioner and the detailed affidavit in reply dealing with the contentions raised in the Petition is not filed by any of the Respondents.
Writ Petitions Nos. 4002 of 1991,1202 of 1991,1032 of 1990, 1033 of 1990, 947 of 1990, 934 of 1990, 547 of 1990 and 35 of 1992.
11. These Writ Petitions, except Writ Petition No. 934 of 1990, are filed by the Unions. Writ Petition No. 934 of 1990 is filed by the 21 labourers. The University by putting notices on the Notice Board on different dates terminated the services of the daily rated labourers mentioned in those notices by giving 15 days' notice. This termination of service is challenged by these petitioners contending that the University is an industry as per the provisions of Section 2(j) of the Industrial. Disputes Act, 1947. The daily rated workers whose services are terminated had put in more than 240 days uninterrupted service not only in the year in which the notice is published, but even in the years prior to that year, and, therefore, they are covered by the provisions of Section 4-C of the Industrial Employment (Standing Orders) Act, 1946. Therefore, the terminations of their services without following the provisions of Section 25-F and 25-N of the Industrial Disputes Act are void and illegal. The Petitioners, therefore, have prayed that the respective notices of termination of service be quashed.
12. The Respondent University in these Writ Petitions has taken the stand that the University is not an industry and, therefore, the provisions of the Industrial Disputes Act, as well as the Industrial Employment (Standing Orders) Act are not applicable. It is also contended that the employees whose services were terminated had not worked for 240 days or more in a year. The contention in this respect of the Petitioners is denied. It is also contended that while terminating the services, the principle of "last come, first go" is invariably followed and only those, who are junior in service, are discontinued.
13. It is also contended by the Respondents that all these workers were daily rated workers. They were employed because of seasonal increase in the work and when at the end of the season, no work was available, by giving 15 days' notice, their services are discontinued. This practice is being followed by the University since long and, therefore, the Petitioners cannot have any grievance about the same. As and when the work is available, the daily rated workers would be called on duty as per their seniority. As these workers are daily rated workers, they are neither badli workers nor seasonal workers and, therefore, the provisions of Section 4-C of the Industrial Employment (Standing Orders) Act are not applicable to them. Therefore, the Respondents have prayed that these Writ Petitions be dismissed.
14. In all these Petitions, interim order was passed directing the Respondent University not to discontinue services of the daily rated workers, as per the notices displayed on the various dates by the University. The Respondents, therefore, have filed application for vacation of the interim order; and in that application, more detailed reply is given to the claims made by the Petitioners. The stand taken by the Respondents is mainly based on that affidavit.
15. It is contended by the University that most of the lands of the University under cultivation are rainfed lands and, therefore, they come under cultivation during Kharif season. Very less area is brought under cultivation in Rabi season. The research activities of the University depend on the rainfall and irrigation facility provided. Because of this, there is seasonal variability of agricultural activities and the requirement of labour depends on such agricultural activities. Some agricultural activities are carried out throughout the year, but large number of agricultural activities are purely seasonal. The Government has sanctioned 3934 posts of labourers for the 4 agricultural universities to cater to the requirement of perennial nature. The Universities have engaged labourers on daily wages to carry out seasonal work in agricultural farms. Thus, there are two categories of workers; first, those working on regular posts; and second, those who are engaged on daily wages, depending upon the seasonal nature of work.
16. It is further contended that the Government considered this problem of having to engage daily rated workers during the season and the optimum workforce required for carrying out the agricultural activities of the University; and to find out excess or surplus labour employed by the University, the State Government requested the Maharashtra Council for Agricultural Educational and Research to recommend the norms for the University farms and to identify the extent of surplus labourers engaged by the University. The said Council is an expert body set up as per the provisions of the Maharashtra Agricultural Universities Act, 1983 for the coordination of the activities of all the agricultural universities. The Council is thus established to advise the Government on all these aspects of the agricultural universities. The Council carried out a detailed study and submitted the report to the Government; and the report is being examined by the Government. The Council has indicated the surplus labourers engaged by the agricultural universities. It is also contended that with respect to the problems raised in these Writ Petitions, many petitions are pending before the Industrial Court, Labour Court, High Court Benches at Bombay, Nagpur and Aurangabad.
17. The Respondents have further contended that the Government appointed a Committee under the Chairmanship of Dr. K.G. Paranjape and five other experts to study and evaluate the various issues pertaining to the agricultural universities in Maharashtra. One of the issues to be examined by this Committee was to examine the funds requirement of the Universities and to suggest ways in which Universities can generate their own resources and income by optimum utilisation of land and other infrastructure. The said Committee has also submitted its comprehensive report making a very wide range of recommendations for improving the functioning of the Agricultural Universities. The said Committee has also observed that the Universities have surplus labourers, the receipts generated by the Farms are low, compared to the expenditure incurred on the agricultural farms and per hectare expenditure is almost twice compared to the receipts. The said Committee has also made certain recommendations to reduce the expenditure of the Universities on the farms and also to improve the receipts therefrom.
18. The Respondents have filed on record the Xerox copy of the report of the said Council, indicating the requirement of labour units for various crops per hectare and the
actual labour force employed in the form of
permanent labourers and daily rated labourers
and excess labourers employed by the
19. It is the contention of the Respondent University that so far as it is concerned, only 982 permanent posts are sanctioned by the Government as agricultural labourers, while the total number of labourers employed by the University is 4744. Only 982 are made permanent from this labour force and the remaining 3762 cannot be made permanent for want of sanctioned posts. Unless and until there are sanctioned posts, the daily rated workers cannot be given permanency. These are the additional grounds pressed by the learned Assistant Government Pleaders as well as the learned Counsel appearing for the University, at the time of the arguments.
Writ Petitions Nos. 615 of 1993.377 of 1993 and 12 of 1993.
20. All these three Writ Petitions are filed by the Union and therein, the termination of the daily rated workers by the oral orders is challenged on the same grounds as mentioned in the writ petitions wherein the written orders of termination of services are challenged; and, therefore, the University has also taken the same stand in these matters also.
Writ Petition No. 578 of 1986.
21. This Writ Petition is filed by individual 49 labourers. The Petitioners have contended that they are the project affected persons. The Government has issued notifications, orders, circulars and resolutions for granting benefits of employment and special concessions in the matter of employment to persons, who are project affected, means whose lands are acquired for the various projects. All those decisions taken by the Government are binding on the Government and the Government Departments. The Petitioners have relied upon the Government Resolution dated January 21, 1982 prescribing guidelines for giving employment to the project affected persons.
22. The Petitioners have further contended that being project affected persons, all of them were appointed in Class IV cadre in the University from 1979 onwards at various places and establishments under the University. They were appointed on muster roll on daily wages basis though the work being done by these Petitioners is of perennial nature.
23. The Petitioners have further contended that the Respondent University has made certain daily rated workers permanent with effect from October 30, 1981. Only those workers, who had completed 1000 days of service on that date, were given the benefit of permanency. However, the Petitioners were not made aware as to under what authority, such decision was taken and such criteria was fixed. The University ought to have laid down reasonable and rationale differential and then ought to have pointed out some ratio of land pertaining to various villages and also varying dates of appointment in service of the University of the persons belonging to different villages as project affected persons. This stand is taken because the lands of different villages were acquired on different dates. It is the contention of the Petitioners that at some villages, the employment was given to the project affected persons immediately on acquisition of land, but in the case of the Petitioners, it had not happened; and so, they came in service late.
24. The petitioners have contended that as their 100 per cent of land is acquired, they have no source of income. They deserve the rehabilitation by granting them status of permanent employee under the University. The Petitioners have, therefore, prayed that the criterion fixed by the Respondent University of giving permanency to those workers who had completed 1000 days of service on October 30, 1981 be quashed and the Respondents be given directions to give permanency to the Petitioners.
25. The Respondent University in its affidavit in reply has contended that it is admitted that practically all the Petitioners are the project affected persons. It is also admitted that the Petitioners are given employment under the University, but it is contended that they are employed as daily rated workers. The University has further contended that the agricultural work being carried out on the farms of the University is not of permanent nature. It is seasonal and depending on the availability of the work, labourers are employed on daily wages. If the workload is reduced, then the juniormost persons are discontinued and, again, as per the availability of work, they are given employment.
26. The permanent posts are sanctioned by the State Government and the University cannot give permanency to anybody in excess of the sanctioned posts. The Petitioners did not receive any appointment of permanency, because they were junior in the category of project affected persons. It is further contended that the total number of 819 permanent posts were sanctioned by the State Government as agricultural labourers; and out of them, 174 project affected persons were given the permanency and thereafter, 129 project affected persons were given permanency, as per the orders dated January 10, 1984, August 14, 1985, and November 2, 1985, thus, total 303 project affected persons are given appointment in permanent posts out of the total 819 permanent posts. The remaining project affected persons are being employed on daily wages basis.
27. It is denied by the University that while giving the permanent posts, the criteria of 1000 days of work was made applicable. The total length of service was taken into consideration and the persons, as per the seniority, were given the appointments. So, even if the post is available and there is a person, as per the seniority list from the category of project affected persons, though he has not completed 1000 days of service, appointment is given on the basis of seniority.
28. It is further contended that the University prepared list of agricultural labourers as on October 31, 1981 and in all 4500 labourers are in the seniority list. The University also requested the Government to sanction additional 881 posts as per the norms fixed by the Co-ordination Committee of the Vice-Chancellors of all the Agricultural Universities in the State of Maharashtra. The seniority list prepared on October 31, 1981 is restricted only to those labourers, who had completed 1000 days of employment, that is, with a view to minimise ministerial work. Objections were called and then it was found that there were 2351 agricultural labourers, who had put in service of 1000 days as on October 31, 1981. As per the sanction order given by the Government on August 16, 1982, permanent employment was given to 819 labourers as per the seniority list. The University had prepared a separate list of seniority in respect of project affected persons up to October 31, 1981 and according to that list, the appointments were given to 303 project affected persons.
29. The University also had to take into consideration the rules regarding reservation and while giving appointment on permanent posts, those rules were also followed.
30. It is, therefore, contended that the Petitioners have no reason to make complaint about not getting permanent posts. No discrimination was caused while giving permanency to the 819 persons. It is contended that the last person, who got the permanency, had completed 1165 and 1/2 days as on October 31, 1981 and this shows that a proper scrutiny was done while giving the permanency. As against this, one Sheshrao Yadavarao, a project affected person, who had completed only 962 days of service, was given permanency on the basis of his seniority in the project affected persons' seniority list. The Petitioners are junior to him and, therefore, they were not considered. The Respondent University has given the statement showing the days of work put in by the Petitioners as on October 31, 1981.
31. In the additional affidavit, the Respondent University has contended that the sanctioned posts of Class IV category, including Mukadam, Watchman and Peon are 1677. Five per cent of these posts, which can be claimed by project affected persons comes to 84. As against this, 357 project affected persons are given the employment. So, nearly 25 per cent posts are given to the project affected persons as against the existing reservation of 5 per cent. It is also contended that out of 48 Petitioners, 19 are taken on regular establishment of the University as per the seniority list as per the orders dated February 7, 1990 and May 28, 1990. While the orders of appointment of Petitioners Nos. 22 and 32 are in process. It is also contended that out of the 48 Petitioners, Petitioners Nos. 6 and 7 expired on December 4, 1994 and August 27, 1997 respectively and the legal heirs of the said Petitioners are also given employment on compassionate ground. A chart showing the present status of the Petitioners is also appended with the additional affidavit.
32. By further additional affidavit, the Respondents have produced on record the list of 819 labourers, who are given permanency.
33. So, outwardly, it may appear that these petitions are posing different problems. However, on going through the real dispute between the parties, it can be said that the dispute is with respect to (1) wages to be paid to the daily rated workers, (2) the seniority list of the daily rated workers; and (3) the norms for giving permanency to daily rated workers. If on all these three points, a solution is given, then all these Writ Petitions can be disposed. Even the question posed by the project affected persons is nothing, but their claim for permanency and when the data submitted by the Respondent University indicates that more than 5 per cent permanent posts are given to the project affected persons, then the remaining project affected persons will have to be in the queue with other daily rated workers.
34. So far as the wages of the daily rated workers are concerned, the learned counsel for the Petitioners have argued that the daily rated workers are being paid meagre wages, as compared to the salaries being paid to the permanent labourers, who are doing the same work like the daily rated workers; and, therefore, they have claimed that the policy of equal pay for equal work must be adopted, and the daily rated workers should be paid wages at the same rate at which the permanent workers are being paid by the University.
35. The learned counsel for the Respondent University have argued that the wages being paid to the daily rated workers are as per the rates prescribed under the Minimum Wages Act. The State of Maharashtra, from time to time, revised the wages by adopting the procedure prescribed under the Minimum Wages Act and whenever there is increase in the minimum wages, the daily rated workers are being paid as per the revised rates. So, no injustice is being caused to the daily rated workers.
36. It is also contended that the University is not having its own source of income, other than the grants which are received from the State Government. The State Government has taken a policy decision to reduce the grants during certain period by slabs and, in such circumstances, if the University is directed to pay wages to daily rated workers, the financial burden on the University will be very high. In support of this contention, the statements prepared by the University authorities are also produced on record. The Respondents, therefore, have strongly opposed the plea of the Petitioners.
37. The basic thing to be noted is, whether the daily rated workers are doing the same work, which the permanent labourers are doing. The daily rated workers are being employed mostly as unskilled labourers to work on agricultural fields. Then, there are certain semiskilled and skilled labourers. It is not at all disputed by the Respondents that the work which is being extracted from the daily rated workers in these three categories is the same, as is being done by the permanent labourers. The agricultural labourer, whether he is a permanent or daily rated, has to do the same work in the field; and from this point of view, the contention of the Petitioners that the daily rated workers and the permanent workers are doing the same work will have to be accepted.
38. So far as the contention that the University will have to pay very high wages to the daily rated workers is concerned, it must be noted that documents and some decisions of the Industrial Courts and other Courts are filed on record, which indicate that, with respect to workers working in the Mahatma Phule Krishi Vidyapeeth, Rahuri, the daily rated workers are being paid wages equal to the permanent workers. It is also brought on record that in Punjabrao Krishi Vidyapeeth, Akola, same wages structure is adopted and, therefore, it cannot be disputed that the workers of Marathwada Agricultural University also must get the same benefits.
39. The very plea of the Respondents that the University will have to bear very financial burden if the daily rated workers are paid equal to the permanent labourers indicates that a wide discrimination is being practised by the University while paying wages to the daily rated workers and salaries to the permanent labourers; and for that, the only reason being forwarded is that there will be heavy financial burden on the University. But, financial burden cannot be a ground to allow such discrimination. The Apex Court in the matter of Chief Conservator of Forests v. Jagannath Maruti Kondhare, has observed at P.P. 1229 and 1230 of LLJ: "28. In so far as the financial strain on State exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forests Department itself the casual employees are about 1.4 lacs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs. 300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forests Department or any other Department of the Government."
40. Same position is arising in the present matter and same stand will have to be taken in the present matter.
41. In this respect, we would also like to rely upon the observations made by the Apex Court in the matter of Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India, . The observations made by the Apex Court in paragraph 7 of that decision are very useful and they are 1988-I-LLJ-370 at 374, 375: "7. The allegations made in the petitions to the effect that the petitioners are being paid wages far less than the minimum pay payable under the pay scales applicable to the regular employees belonging to corresponding cadres is more or less admitted by the respondents. The respondents, however, contend, that since the petitioners belong to the category of casual labour and are not being regularly employed, they are not entitled to the same privileges which the regular employees are enjoying. It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a year in the department and some of them have been engaged as casual labourers for nearly ten years. They are rendering the same kind of service which is being rendered by the regular employees doing the same type of work. Clause (2) of Article 38 of the Constitution of India which contains one of the Directive Principles of State Policy provides that 'the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations'. Even though the above directive principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination. It is urged that the State cannot deny atleast 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. We are of the view that 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. That he has done because he has no other choice. It is poverty that has driven him to that state. The Government should be a model employer. We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable....."
42. Thus, it is very clear that, whether the labourer is a daily rated worker or a permanent worker, if the nature of work is the same, then equal pay must be paid for equal work. Neither the University nor the State Government can deny this basic right of the labourers, especially those who are the lowly paid workers.
43. The learned Counsel for the Petitioners have argued that the daily rated workers be paid wages at the rate of basic pay (at the minimum of the pay scale) plus dearness allowance as is paid to the permanent labourers, divided by 30 days, if the daily rated workers are being given paid weekly off; and if paid weekly off is not being given, then they be paid wages at the rate of basic pay (at the minimum of the pay scale) plus dearness allowance divided by 26; and such wages be paid depending upon the categories of the workers, that is, skilled, semiskilled and unskilled. The demand of the petitioners is quite reasonable. As pointed out above, mother agricultural Universities, this policy is being followed because of the decisions given by the Courts.
44. Therefore, it is being directed that, if the daily rated workers are being given paid weekly off, then they be paid the wages at the rate of basic pay (at the minimum of the pay scale) plus dearness allowance divided by 30; and if paid weekly off is not being given to the daily rated workers, then they be paid wages at the rate of basic pay (at the minimum of the pay scale) plus dearness allowance divided by 26. Such payment should be on the basis of the categories of the daily rated workers, such as, skilled, semiskilled, or unskilled, as the case may be.
45. The next question is since what date these wages are to be paid. The learned counsel for the Petitioners have argued that since the first day of employment, such wages should be paid to the workers. But, we do not think that that will be a proper direction. The workers have not raised this dispute for considerably long period and they have raised this dispute for the first time in Writ Petition No. 686 of 1988 which was filed on April 27, 1988. The Respondents, especially the State and the University, ought to have recognised this right of the workers at least from the date of filing of the petition. But it appears that the Respondents have avoided to take steps in this respect, merely because there will be additional financial burden on the Respondents. It is already pointed out that financial burden cannot be a ground to deny the right to the workers.
46. Hence, we direct that the daily rated workers be paid wages, as mentioned above, with effect from May 1, 1988. The arrears payable to the daily rated workers be worked out within the period of six months from this date and all the arrears be paid to them within the period of nine months from today by the Respondents.
47. The second aspect to be considered is regarding the seniority list. All the learned Counsel for the Petitioners have argued that the seniority list should be as per usual method, i.e., from the date of entry in the service. Here, the University has prepared the seniority list on the basis of number of days put in by the workers; that means, a worker who has put in highest number of days of work is shown at Sr. No. 1 and the workers, who have put in less number of days of work are accordingly placed in the seniority list.
48. The learned counsel for the Respondents have argued that it may be that some workers entered into service as daily rated workers under the University since the beginning of the University; but, for one reason or the other, they did not continue in service and if such workers are now shown as seniors, the workers, who have loyally served the University for continuously many years will be deprived of their right. It is also argued that in the year 1981, when some of the workers were given permanency, as per the posts created, the daily rated workers, who had put in more number of days in service, were given preference to the daily rated workers, who had put in less number of days of service. If, now suddenly this practice is discontinued, and the permanency is to be given for vacancies that may occur in the future, the daily rated workers who did not work for nearly 10 to 15 years, would be given permanency and the loyal workers, who are working with the hope that they will be given permanency one day or the other, will be disappointed. It is, therefore, prayed by the learned counsel for the University that the present system of maintaining of seniority list should be continued.
49. It must be noted that preparing the seniority list for the workers or employees who are in permanent or temporary service or on probation, is one thing; and there, the principle of first day of entry in service can be very well made applicable without any difficulty. However, in case of daily rated workers, where the workers are being employed in a large number not on regular basis, but intermittently, as per the availability of the work, the seniority list cannot easily be prepared on the basis of first day of entry in service. Many a times, the persons who seek employment on daily rated basis do not come on duty on next available occasion for various reasons; and in their place, some other persons are required to be appointed to get the work done. By very nature, the daily rated employment is optional or voluntary, so far as the worker is concerned. Even if the work is available, he may not accept the job for his own reasons. So, in such cases, instead of applying the principle of preparing the seniority list on the basis of first date of entry in the service, the practice which is followed by the University of preparing the seniority list on the basis of number of days of work put in by the work is more reasonable and practical.
50. Naturally, in such cases, the worker, who is doing work continuously on daily rated basis will be benefited if there is permanent vacancy, where he can be absorbed. These are the workers who are settled in that locality for years together with their families and, therefore, as and when work is available, they readily do the work, while others, who come on duty intermittently, may not be attached to the locality or may be nomadic in their job seeking. Such persons who are not much interested In doing the job under the Respondents should not be given undue credit.
51. The learned counsel for the Petitioners in Writ Petition No. 578 of 1986 has argued that the University had applied the method of making permanent only those workers who had completed 1000 days of service by the particular date in 1981 and this has deprived the daily rated workers who were senior in employment, because they had come into service earlier for getting the permanency. It is also being argued that the officers of the Respondent University, who are supposed to employ the workers, many a times discriminate while giving the employment on daily rated basis and, therefore, the workers, though are willing, do not get the employment; and, therefore, they cannot complete the quota of 1000 days for getting permanency.
52. Now, to go into that dispute, whether the workers have been denied the chance of working because of the caprice of the employing officer, is very difficult. Allegations can be made by either side and this is not a forum to consider that aspect. If any worker had been denied work, he ought to have taken appropriate steps for the proper redress.
53. So far as the criteria for giving the permanency to those workers, who have completed 1000 days of service, is concerned, the learned counsel for the University has argued that no such criterion was made applicable. Only those workers, who had put in maximum number of days of work, were given the permanency as per the available vacancy and so, in some cases, even though the worker has put in less than 1000 days of service, but if he happens to be senior when the vacancy was there, he was given the permanency. The list is prepared as per the days of work put in by each worker, but the permanency is given not on the basis that the worker must have completed 1000 days or any other number of days. The permanency is given as per the seniority list maintained.
54. On going through the documents filed on record by the respondents, we find that the stand taken by the University in this respect is correct. The workers who had put in maximum days of work were given the permanency without applying the criteria that he must have at least put in 1000 days of service. So, the apprehension raised in Writ Petition No. 578 of 1986 is not correct.
55. Hence, taking into consideration all these circumstances, and basically the fact that now to effect any change in the method of preparing the seniority list would result in deprivation of the reasonable expectancy of the workers of getting permanency, we think that the present method of preparing the seniority list on the criteria of maximum days of work put in by the worker should be continued for determination of seniority and also for considering the persons for making them permanent as and when the vacancy is available. The University is having its main place of work at Parbhani and units at different places; and hence it is directed that while preparing the seniority, it should be one for the headquarters at Parbhani and separate at the units. So also, the seniority list should be tradewise and as per the cadre, i.e., skilled, semiskilled and unskilled.
56. So far as regularisation of services of the daily rated workers is concerned, the learned counsel for the Petitioners have argued that the seniority lists produced on the record by the Petitioners or the Respondents go to indicate that these daily rated workers are doing the work under the University on daily wages for years together and in many cases, more than 250 to 300 days in a calendar year. But, they are deprived of their right of permanency. They, therefore, do not get the benefits of permanent worker of the University.
57. It is also argued that the fact that these daily rated workers are required to be employed for more than 250 or 300 days goes to indicate that there is perennial type of work and the University needs this workforce for the agricultural, as well as, other activities of the University. When the work is available, the Respondents ought to have created those many posts for giving the permanency to the workers and as the Respondents are avoiding that, it would be in the fitness of circumstances of the Court to give direction to the Respondents to regularise the services of all those workers who have put in 240 days of work in a calendar year; or, as it is done in certain other Universities, on completing 1000 days of service, for which the orders of the Industrial Court, as well as the other rulings are produced on record. It is not necessary to give details of all those rulings, because the Respondents have not denied that there are such rulings, whereby the Court directed the Mahatma Phule Krishi Vidyapeeth, Rahuri and other establishments to regularise the services of the workers, who had put in 1000 days of work.
58. The learned counsel for the Respondents have strongly contended that the High Court should not take upon itself the task of regularisation of services by giving directions to the Respondents, because the regularisation of services is a very complex question. It will have to be found out whether there is work available throughout the year for so many workers and whether the Respondents have the financial capacity to regularise the services of all those workers. They have also argued that the daily rated workers are being employed as and when the work is available. They are not seasonal workers, in the strictest sense, as per the seasonal work described under the Industrial Disputes Act or under the Industrial Employment (Standing Orders) Act. The workers are working on agricultural fields. Intermittently, large number of workforce is necessary to carry out the agricultural operations, simultaneously at various fields during the particular period. Such operations are like ploughing and preparation of the lands for the purpose of sowing, then sowing of the lands, rearing of the crops by carrying out the work of weeding, fertilization, spraying of insecticides, watering the crops and mending the raise in the field, when the crops are growing. All these works are not being done on regular basis, but are done intermittently as per the requirements of the crop. The next intermittent job is that of harvesting the crops. Thus, the work is divided during different seasons of the year and in short intermittent periods. This also depends on the nature of the crops, being taken in that year on the lands belonging to the agricultural university. Some crops require large number of workforce and some do not require such large number of workforce. As there is no definite criterion as to when a particular number of workers will be required on a particular field for a particular crop, the regularisation of services is very difficult. The learned counsel for the Respondents, therefore, have argued that the Court should not issue any direction regarding the regularisation of services.
59. This Court had passed an order on January 23, 1992 in this group of writ petitions directing the Respondents to prepare a scheme for regularisation of services of the daily rated workers, who were doing the work as daily rated workers for a considerable period in a year for last many years. The Respondents are, therefore, relying upon a report prepared by the Maharashtra Council for Agricultural Education and Research, Pune, and the same is produced in Writ Petition No. 35 of 1992 along with Civil Application No. 3365 of 1994. Relying on this report, it is contended that so far as Marathwada Agricultural University is concerned, there is net surplus of daily wages workers of 1774, as against the requirement of 1287 permanent workers and the requirement of daily rated workers of 2970. Even those 2970 workers cannot be made permanent, because that requirement is intermittent, depending on the nature of crop, nature of the season and nature of the work available in the field.
60. At the outset, it must be stated that this report on which the Respondents are relying, is not a report for regularisation of the services of the daily rated workers, who are actually in service as daily rated workers, but is just a report to indicate what would be the labour force required by each of the agricultural universities to carry out the agricultural work, with the help of permanent labourers and daily rated labourers. That report is not considering the cases of the present daily rated workers of the Respondent University for regularisation of their services. It is only a study made to show how many workers will be required as permanent and, daily rated workers. The Respondents can take into consideration that report for preparing any scheme for regularisation of services of daily rated workers. But, inspite of directions given by this Court on January 23, 1992, no such scheme is prepared by the University for regularisation of services. The report which is produced on record cannot be considered as a scheme prepared for regularisation of services of the daily rated workers, who have made out the grievance that they are being treated as daily rated workers for years together, without being given the benefits of permanency.
61. The learned Counsel for the Respondents have argued that unless there is vacancy in the cadre of permanent labourer, any daily rated worker cannot be given permanency. The Court cannot direct the Respondent University to give permanency to these workers when there is no vacancy available.
62. In matters where the Court had directed to give the benefits of permanency to the workers, who had completed 240 days of work, on which the learned counsel for the Petitioners are relying, are basically the matters under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act). There, the allegations was that the unfair labour practice was being committed by the respondents by continuing the labourers as daily rated workers for years, even though they had put in each year 240 days of work. So, because of the peculiar provisions of the MRTU and PULP Act; and the situation obtaining in those matters, the particular orders are issued. However, in the present matter, the question is not of one or two workers or a small group of workers. The question is of nearly 4000 workers. The matter has not come as unfair labour practice under MRTU and PULP Act or under the Industrial Disputes Act. So, those rulings cannot be made applicable to the present writ petitions.
63. It is now well settled principle that only when a vacancy is available in permanent cadre, a daily rated worker can be considered for appointing on that vacancy. However, the Court has very limited scope in giving such direction of giving permanency to daily rated workers. The availability of the vacancy is, therefore, very much important for giving permanency to the daily rated worker. In the present case, the Respondents have pointed out that there are no available vacancies for giving permanency to these daily rated workers. The State Government has sanctioned only 982 posts of labourers for Marathwada Agricultural University, as per Exhibit-F filed along with Civil Application No. 3365 of 1994 in Writ Petition No. 35 of 1992. So, only those many workers are given the permanency and the remaining are the daily rated workers, continuing in the employment on the basis of as and when work is available.
64. We find much force in this contention of the learned counsel for the Respondents that there are limited permanent posts and the daily rated workers can be given permanency only as and when vacancy is available.
65. The Apex Court has observed in the matter of State of Haryana v. Piara Singh, as under:
"21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As if often said, the State must be a model employer ....."
66. In the same case, the Apex Court has observed:
"25. As would be evident from the observations made and directions given in the above two cases, the Court must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such directions not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category ......"
67. In the same judgment, the Apex Count has observed in paragraph 36 as under at page 951:
"36........While we agree that persons belonging to these categories continuing over a number of years have a right to claim regularisation and the authorities are under an obligation to consider their case for regularisation in a fair manner, keeping in view the principles enunciated by this Court, the blanket direction given cannot be sustained..."
68. Thus, the Court has very limited scope in giving direction of regularisation of services of daily rated workers. This happens mainly because all the facts and circumstances are not before the Court to formulate any scheme and to direct the respondents to act as per the scheme. It is always better to leave that work to the State Government, so that, not only the interest of daily rated workers will be protected, but the interest of the University and the State exchequer will also be taken into consideration; especially in the present matter where the workers are not factory workers, but workers who are being employed intermittently by the University to do the agricultural work as and when the work is available.
69. The feelings which the Apex Court has expressed in the matter of The Dharwad Distt. P.W.D. Literate Daily Wages Employees' Association v. State of Karnataka, must be given due recognition by the authorities in this matter:
"We can well realise the anxiety of the petitioners who have waited too long to share the equal benefits mandated by Part IV of the Constitution in respect of their employment. At the same time, we cannot overlook the constraints arising out of or connected with availability of State resources. Keeping both in view and reposing our trust in the relevant instrumentalities of the State that may be connected with the implementation of the scheme to act with a sense of fairness, anxiety to meet the demands of the human requirements and also anxious to fulfil the constitutional obligations of the State......"
70. Thus, considering all the view points, especially the difficulties the workers are facing by continuing them as daily rated workers for years together; and the problems before the University, we think that it would be better that the State Government should exercise its power under Section 10 or Section 10-A of the Industrial Disputes Act by making a reference for drawing up a scheme for regularisation of services of these workers. Here, we would like to point out that such an exercise was carried out by the State Government while considering the question of daily rated workers serving in Public Works Department and Irrigation Department. The matter was referred and the award, which is known as "Kalelkar Settlement" came to be effected for the workers in the P.W.D. and Irrigation Department of the State Government. Similar steps should be taken with respect to the daily rated workers working in Marathwada Agricultural University, Parbhani. Our directions issued on January 23, 1992 are not fully complied with by the State Government, but, at least, now the State Government should endure to take steps as per the provisions of Section 10 or Section 10-A of the Industrial Disputes Act.
71. In this respect, if the State Government fails to take any such action, the workers are also at liberty to seek the redress as per the provisions of either of the said sections of the Industrial Disputes Act. However, we do not think that the workers will have to take any such steps. The State Government itself would act promptly; by promptly, we expect, within the period of three months, for making reference either under Section 10 or Section 10-A of the Industrial Disputes Act.
72. The question of retrenchment of daily rated workers was the main ground for filing these Writ Petitions. The contention of the petitioners is that as these daily rated workers had worked for more than 240 days in a calendar year, they cannot be retrenched without following the provisions of Section 25-F and 25-N of the Industrial Disputes Act. The learned Assistant Government Pleaders also conceded that whenever the provisions of the Industrial Disputes Act can be made applicable before retrenching the daily rated workers, those provisions will have to be implemented. In view of this, the Respondents are being directed that if there is any case of retrenchment of daily rated workers covered under the provisions of the Industrial Disputes Act, then the retrenchment be carried out as per the prescribed procedure under the Industrial Disputes Act with respect to individual worker for effecting the retrenchment and for paying the compensation on retrenchment.
73. The directions given above are sufficient for the disposal of the relief sought in Writ Petition No. 686 of 1988; and rule is made absolute accordingly in the said petition.
74. So far as Writ Petitions Nos. 402 of 1991, 1202 of 1991, 1032 of 1990, 1033 of 1990, 947 of 1990, 934 of 1990, 547 of 1990, 35 of 1992, 615 of 1993, 377 of 1993 and 12 of 1993 are concerned, because of the interim order passed by this Court, the retrenchment as such has not taken place and the workers were continued in service. However, in view of the observations made above, the University is entitled to retrench the workers by following the provisions of the Industrial Disputes Act. These Writ Petitions are, therefore, disposed of accordingly.
75. So far as Writ Petition No. 578 of 1986 is concerned, this is with respect to the project affected persons; and the observations made above in paragraph 33 cover their position. The University is not applying the criteria of 1000 days for giving the permanency to the project affected persons, but only the seniority list is prepared accordingly; and whoever happens to be senior, irrespective of days of work put in by him, more than 1000 days or less than 1000 days, is being given appointment in resultant vacancy in permanent cadre.
76. The reliefs sought by the Petitioner in this Writ Petition that they be deemed to be permanent workers cannot be granted. Only thing which can be observed is that in case of retrenchment of any of the Petitioners, the provisions of Sections 25-F and 25-N of the Industrial Disputes Act, ought to b followed by the University in their case.
77. Furthermore, it is also to be noted that, already substantial representation more than 25 per cent, is given to the project affected persons, while giving employment in permanent cadre in the University. So, from this, aspect the Petitioner cannot have any grievance. The University has assured that if there are any vacancies available, the daily rated workers will be given employment as per the seniority and as per the reservation policy of the State Government, which is implemented by the University; and we think that this much assurance is sufficient to protect the interest of the project affected persons as well. So, no different directions are required to be given in this matter.
78. With the above directions, rule is made absolute in this matter also. There will be no order as to costs in any of these Writ Petitions.