Point of Law: For placement in a regular pay scale, the claimant has to be a regular appointee selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular scale

JUDGMENT :

1. Being aggrieved and dissatisfied with the impugned award dated 07.03.2012 passed by the Industrial Tribunal, Bhavnagar in Reference (I.T.) No.102 of 1998, whereby the reference preferred by the petitioner herein came to be rejected, the present petition is filed by the petitioner – workman under Articles 226 and 227 of the Constitution of India for the following prayers.

(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, quashing and setting aside the impugned award passed by the Industrial Tribunal marked ANN.A to this petition, being illegal, contrary to record and against the decision rendered by the Hon’ble Supreme Court of India in series of petitions quoted in the body of the petition;

(B) That Your Lordships be Pleased to direct the respondent to grant pay-scale along with the arrears for the post of Peon to the petitioner;

(C) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondent to reconsider the case in the light of the submissions made in the present petition;

(D) Any other and such further relief as the Hon’ble Court deems fit and proper in the interest of justice together with costs;

2. Brief facts of the present case is that the petitioner was working in Class IV Cadre in Botad Nagarpalika and he was initially appointed as daily wager w.e.f. 01.01.1998. It is contended by the petitioner that earlier his service came to be terminated on 27.04.2005 and, therefore, he has raised the industrial dispute by filing a Complaint No.(I.T.) No.7 of 2005 before the Tribunal and the Tribunal has held the impugned action in terminating the service of the petitioner as illegal and directed reinstatement with all consequential benefits vide award dated 30.06.2007. It is further contended by the petitioner that against the aforesaid award, the respondent filed Special Civil Application No.29004 of 2007 before this Court whereby this Court (Coram: Hon’ble Mr. Justice H.K. Rathod) has modified the award vide order dated 02.04.2008 and held that the workman is entitled for reinstatement with continuity of service with 50% of back wages of interim period. It is contended that the petitioner is continuously working from 1998. It is also contended by the petitioner that as the Union has preferred the reference in 1998 for treating the workman as permanent from the date of his appointment along with the prayer of granting him all benefits of permanent employee along with the arrears.

2.1 The respondent herein has resisted the claim of the petitioner by filing written statement at Exhibit 12 in the reference and has stated that there is sanctioned set up in the institution and as and when there is addition of work, the institution was engaging the persons on purely temporary and daily basis. It is stated that the workman was appointed as daily wager w.e.f. 01.01.1998 and, thereafter, he had immediately i.e. on 06.02.1998 get an interim injunction and by virtue of the interim injunction, he is serving. It is contended that the workman is working out of set-up and the reference is not tenable.

3. Heard Mr. T.R. Mishra, learned counsel for the petitioner and Mr. Premal Joshi, learned counsel for the respondent through video conferencing.

4. Mr. T.R. Mishra, learned counsel for the petitioner has vehemently submitted the same facts which are narrated in the memo of petition. He has drawn the attention of the Court regarding the observations of various decisions referred to in the memo of petition. He has submitted that the Tribunal has rejected the reference only on the ground of the decision of the Apex Court in the case of State of Karnataka Vs. Umadevi. While referring to the earlier award, he has submitted that the respondent herein has challenged the award by filing Special Civil Application No.29004 of 2007 wherein also reinstatement of the workman was confirmed with back wag