IMPORTANT POINT
The court established that unequal treatment in employment regularization, despite available posts, constitutes an unfair labor practice under the Industrial Disputes Act.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present appeal emanates from the order passed by the learned Single Judge dated 29.08.2016 rejecting the writ petition filed by the appellant-Union on behalf of the workman challenging the award dated 29.05.2007 passed by the Industrial Tribunal, Bhavnagar in Reference (IT) No. 130 of 2003.

2. The appellant-Union submitted that the workman, who was appointed as a Clerk in 1987 raised a demand in 1992 for regularising the service, which culminated into reference proceedings being Reference (IT) No. 130 of 2003. It appears that initially the Tribunal passed an award in favour of the workman however, the Municipality assailed the same before this Court by filing a writ petition being Special Civil Application No. 2779 of 2002 and this Court vide order dated 19.01.2006 remanded the matter back to the Tribunal. Thereafter, the Tribunal has rejected the reference proceedings, which has culminated into the captioned writ petition. The learned Single Judge has rejected the same and hence, this appeal.

3. The sole ground, on which the Industrial Tribunal has rejected the reference proceedings, by holding that there are 34 posts in the set-up of Junior Clerks and presently 88 employees are working and since, there is over set up of 54 Junior Clerks in Nagarpalika and hence, the workman cannot be ordered to be regularised. The learned Single Judge has also rejected the writ petition by reiterating such fact.

4. At the outset, Mr. G.M. Joshi, learned senior advocate for the appellant has submitted that in the case of very same Nagarpalika and the similar set of employees to that of the present appellant who are also working as Clerks, the Industrial Tribunal, by various awards, ordered regularizing of the Clerks which was subject matter of challenge before this Court and ultimately, the Division Bench, by the order dated 28.08.2023, has rejected the writ petition filed by the present Municipality. Thus, it is urged that the present appeal may be allowed in terms of the said judgment as similarly situated Clerks to the present employees, who are subsequently appointed to the appellant, are regularized.

5. Thus, it is urged that the impugned order passed by the Tribunal as well as the learned Single Judge may be quashed and set aside.

6. Per contra, Mr.Deepak Sanchela, learned advocate for the Amreli Municipality-respondent has submitted that no order directing regularization of the workman can be passed, since there is no sanctioned post available. In support of his submission, he has relied on the recent decision of the Apex Court in the case of Vibhuti Shankar Pandey vs. State of Madhya Pradesh & Ors. 2023 (3) SCC 639. Reliance is also placed on the judgment dated 01.09.2017 passed by the Coordinate Bench in Letters Patent Appeal No. 1284 of 2016. It is submitted that an illegality has been committed by the Amreli Municipality-respondent while regularizing such Clerks and the same cannot be again repeated in the case of the appellant-workman. By placing reliance on the judgment in the case of Dalip Singh and Ors. vs. State of Haryana and Ors. 2019 (11) SCC 422, he has submitted that similar terms cannot be extended to the appellant as the appellant cannot claim equality in negativity. He further submitted that the appellant-workman had retired in the year 2014. Thus, it is urged that the impugned judgment passed by the learned Single Judge may not be set aside as no sanctioned posts were available as held by the Tribunal as well as the learned Single Judge.

7. We have heard the learned advocates appearing for the respective parties. When this Court had pointed out that the judgment dated 28.08.2023 passed by the Coordinate Bench in the case of very same Amreli Municipality confirming the regularization to the clerks, who are similarly situated to the present appellant-workman, (in some case junior), in response, the learned advocate Mr.Sanchela for the respondent Municipality, raised that such workmen/Clerks ha