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CASE NO.: Appeal (civil) 691  of  2001 Special Leave Petition (civil)  1490     of  1999 Appeal (civil)  692      of  2001

PETITIONER: GUJARAT AGRICULTURAL UNIVERSITY

       Vs.

RESPONDENT: RATHOD LABHU BECHAR & ORS.

DATE OF JUDGMENT:       18/01/2001

BENCH: A.P.Misra, D.P.Mohapatro

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     MISRA, J.

     Delay condoned in SLP © No.  of 2001 (CC No.  2360).

     Leave granted in all the special leave petitions.

     The aforesaid appeals raise common questions hence are being  disposed of by means of this common judgment.   These appeals  arise out of industrial disputes through references by the Government of Gujarat under Section 10 (1) (C) of the Industrial  Disputes  Act,  1947.  It raised  the  following questions:

     Whether the employees listed in the scheduled annexed be  made permanent, as from the day, when they complete  240 days  service,  and  if  in affirmative,  whether  they  are entitled  to  all  the benefits at par  with  the  permanent employees, and be paid arrears.

     Before  entering  into the issues in this case  it  is necessary  to  give  certain  essential facts  in  order  to appreciate the controversies.

     The  appellant  is  an educational  institution  fully aided  by  the  State  Government  and  is  engaged  in  the educational  activities  in agriculture and allied  sciences and humanity and is also prosecuting research in agriculture and  other  allied  science.   It performs  its  duties  and functions  under the statutory provisions and in doing so it engages  daily  rated  labourers   for  various  activities. According  to  the appellant these labourers are being  paid their  wages  as  per the minimum wages fixed by  the  State Government  from  time to time under the Minimum Wages  Act. They  were  engaged  due  to  exigencies  of  work,  without considering   relevant  factors   about  their   educational qualification, age limit and other relevant requirements for the  purpose  of regular appointment under  the  Recruitment

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Rules.  There are different agricultural research centres at different  places  with different projects and  these  daily rated workers are unskilled, semi-skilled, skilled and field labourers  of different categories.  Since the University is grant-   in-aid  institution  fully   funded  by  the  State Government  it  requires  prior permission/sanction  of  the State Government for appointment of its employees.  In fact, all  the  posts are sanctioned by the State  Government  and thereafter  they  are filled by the University, as  per  the Recruitment  Rules.  The present case pertains to daily wage workers  who  are  plumbers,   carpenters,  sweepers,   pump operators,  helpers  and  masons   etc.   According  to  the appellant,  no posts are sanctioned for them and hence  they are  working  on daily rate basis.  Thus their  appointments are  on  irregular  basis  and not in  accordance  with  the recruitment rules.

     The  respondents  raised, as aforesaid, an  industrial dispute who are daily rated employees, before the Industrial Tribunal,  Rajkot.   The  Industrial Tribunal  directed  the appellant to regularise the services of all such daily rated labourers  who  have  completed 10 years  of  service  (with minimum  of  2400  days)  as on 1.1.1993 with  pay  and  all allowances  along with other benefits of the permanent class IV  employees.  The appellant being aggrieved filed the writ petition  before  the  High Court  challenging  this  award. Learned  Single  Judge partly allowed the writ petition  and set  aside  the  award,  however, with a  direction  to  the appellant  to make the payment to the workmen at the minimum of  the  pay  scale  and  also to frame  a  scheme  for  the regularisation of such daily rated labourers.  The appellant not satisfied filed letters patent appeals.

     The  Special  Leave  Petition (C) No.  1490  of  1999, arises  out of the Letters Patent Appeal No.  1047 of  1997, which concern 23 respondents who were working as carpenters, masons,  plumbers  etc.  in the  appellant-University.   The appellant has a huge campus covering the large area of about 16000 sq.  mtrs.  and 240 staff quarters of the employees at Junagadh  and  other places.  Nine daily rated workers  were involved  in  Letter  Patent Appeal No.  1051 of  1997  from which  arises Special leave Petition (C) No.  2528 of  1999. Similarly,  there  were three daily rated workers in  Letter Patent  Appeal  No.   1095 of 1997 which gave  rise  to  the Special  Leave Petition (C) No.  2529 of 1999.  SLP of  2001 (arising  out of CC No.  2360 of 1999) arises out of LPA No. 808  of 1998 wherein the respondents representing the  daily rated workers of Junagadh Jilla Majdoor Sangh.

     Learned  Single Judge relying on the decision of  this Court  in  Daily  Rated Casual Labour Employed under P  &  T Department  Vs.  Union of India & Ors., 1988 (1) SCC 122,  a case  of daily rated casual workers of the P & T Department, directed  the  appellant to submit a scheme  for  conferring permanent  status  to the respondents.  At this stage,  when the  question of framing a scheme, came to the fore,  before the   Single  Judge,  learned   counsel  for  the  appellant submitted then that such a scheme of giving permanent status to  these workers could not be confined to these workmen  as large  number  of such workmen are involved, disputes  about which  are  pending for adjudication in the  various  labour courts.   It  was  suggested,  it would be  fair  and  just, instead  of  making  multiple scheme in  each  such  pending matters,  be  permitted to frame a comprehensive  scheme  to cover  all pending litigations.  The appellant  specifically

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denies any such statement being given by the counsel for the appellant.  The submission is, this fact was challenged even before the bench of Letters Patent Appeal, but the court did not  advert  to this question.  However, the letters  patent appeals were dismissed with the following observations:

     As  a result of foregoing discussion, all these three appeals  are summarily dismissed.  The learned single  Judge had   directed  the  appellant  to   submit  a  scheme   for consideration  of  the  Tribunal with  regard  to  extending permanent  status  to the workmen in question and  the  like workmen employed under it within a period of two months from the  date of receipt of writ of the judgment and order, but, since the above direction was given way back in the month of April,  1997, we direct the appellant to submit a scheme for consideration  of  the  Tribunal with  regard  to  extending permanent  status  to the workmen in question and  the  like workmen  employed under it within a period of one month from the  date of receipt of writ of this order, and the Tribunal shall  thereafter  make an award within three  months  after inviting  objections  and  suggestions from  the  respective parties.  There shall be no order as to costs.

     Aggrieved  by this, the appellant filed the  aforesaid appeals, in this Court.

     Since  the  appellant  was fully funded by  the  State Government, the appellant was permitted to implead the State of  Gujarat in these appeals and notice was issued to it  on the  8th February, 1999 by this Court.  It seems instead  of contesting  various issues, during pendency of these appeals in  this  interregnum,  learned counsel  for  the  appellant submitted  a  scheme  framed  by   the  university  for  the absorption of these employees with the approval of the State Government,  which  is  also filed in  this  case.   Learned counsel  for  the respondents desired to file objections  to this  scheme,  which this Court permitted.   The  objections accordingly were filed by the respondents.

     We heard learned counsel for the parties at length and considered the objections of the respondents with respect to the  proposed  scheme for the regularisation of daily  rated workers.  The proposed scheme is reproduced below:

     SCHEME  FOR REGULARISATION OF DAILY RATED LABOURS  OF THE GUJARAT AGRICULTURAL UNVIERSITY.

     1.  Daily-wager workers, whether skilled, semi-skilled or  unskilled,  who  have  completed 10  years  or  more  of continuous  service  with  a  minimum of 240  days  in  each calendar  year  as  on 31.12.1999, shall be  regularised  as regular employees with effect from 1.1.2000 and shall be put in  the  time scale of pay applicable to  the  corresponding lowest  grade  in  the University subject to  the  following terms and conditions:

     (a)  The  daily rated employees shall be eligible  and must  possess the prescribed qualifications for the post  at the time of their appointment on daily rated basis.

     (b)  Daily-wager  employees shall be regularised in  a phased  manner to the extent of available regular sanctioned posts/vacancies  on  the date of regularisation and  on  the

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basis   of  seniority-cum-suitability   including   physical fitness.

     (C) The work and conduct of such employees should have been  of  over  all good category and  satisfactory  and  no disciplinary proceedings are pending against them.

     (d)  The  regularisation  will be against  the  posts/ vacancies of the relevant categories only.

     2.   Daily  workers, whether skilled semi- skilled  or unskilled, who have completed 10 years of continuous service with  a  minimum  of 240 days in each calendar  year  as  on 31.12.1999  but could not be regularised shall be treated as monthly  rated  employees w.e.f.  1.1.2000 in the fixed  pay without allowances as per the following formula:

     Prepared by University:

     Daily  rate  Fixed pay = prescribed by 26+ Rs.500  the Government   fromtime  to   time  for  skilled,semi-skilled, unskilled workers as the case may be

     They  would be entitled to an annual increment of  Rs. 15/-,  Rs.   20/- and Rs.  25/- respectively for  unskilled, semi-skilled  and  skilled workers till their  services  are regularised as per para-1.

     3.   Daily-wager  whether   skilled,  semi-skilled  or unskilled  who have not completed 10 years of service with a minimum  of  240  days in each calendar year shall  be  paid daily  wage  at  the rates prescribed by the  Government  of Gujarat  from time to time for daily wager employees falling in Class III and Class IV.

     4.   The seniority of the daily rates Class III and IV employees   so  regularised  vis-Ã -vis  Class  III  and  IV employees  appointed  on regular basis shall  be  determined w.e.f.  1.1.2000.  The inter se seniority of such daily rate Class  III & IV employees shall be determined in  accordance with  the date of joining the post on daily rated basis.  If the  date  of joining the post(s), on daily rated  basis  by such  daily  rated  employees was the same, then  the  elder employee  shall  rank senior to an employee younger in  age. If  the  date of joining of the directly  recruited  regular employees  and the date of regularised employees as per this scheme is the same, the direct recruit shall be senior.

     So,  the larger issues inter se between the University and  its workers, at this stage, are no more contentious  as the  University has decided to grant permanent status to the contesting  and  other workers in a phased manner for  which the  aforesaid scheme has been finalised.  Thus the question which  focuses  our  attention is, whether  the  scheme  sub serves  the  workers aspirations and satisfy  the  judicial scrutiny,  on the facts and circumstances of this case.  The fact  which emerges is, that reference for the  adjudication of  industrial  dispute  was  made in the  year  1987.   The Industrial Tribunal directed the appellant to regularise the services  of all such workers who have completed 10 years of service as on 1st January, 1993.  The Single Judges records:

     It  is  also true that the facts of the present  case have  also  similar  shade  as  was in  the  case  of  Chief

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Conservator  of  Forests and another Vs.   Jagannath  Maruti Kondhara reported in 1996(1) LLJ 1223 to prime facie reach a conclusion about the unfair labour practice in depriving the workmen  of  their  status  of  permanency  and   privileges attached thereto.

     It  further records that the Tribunal has not adverted to  some  of  the questions which implicitly arises  in  any industrial dispute concerning grant of permanent status.  It records  that no opportunity was given to the employer after reaching  this conclusion of giving workmen permanent status hence these issues require investigation.  Thus it set aside the  finding  of the Tribunal to make all workmen  permanent w.e.f.   the  date they complete 10 years on or  before  1st January, 1993 and directed it to decide this question afresh through a scheme.  But the direction to make payment to such workmen  at  the  minimum pay scale  of  similarly  situated workmen  on  permanent  basis   remained  unaffected.   This direction  was  confirmed by the Division Bench of the  High Court.

     Learned  senior counsel, Mr.  Rajeev Dhawan  appearing for  the appellant submits, that the scheme as proposed  has been   thoroughly   scrutinised,    examined   taking   into consideration  the  interests  of  the  workers  within  the permissible  limit  of  the  availability  of  finance.   He submits  with  vehemence, it would not be possible  for  the University  to grant permanency to all its employees working as  daily  rated  workers, who have completed  10  years  of service,  on the 1st January, 1993.  The proposal for  grant of  permanent  status  as per the scheme is  that  all  such employees  who have completed 10 years or more of continuous service with minimum of 240 days in each calendar year as on 31st  December, 1999 should be regularised.  This  extension of  period from 1st January, 1993 to 31st December, 1999 was made  for two purposes.  First, to bring more workers in its arm  for regularisation and secondly, to bring it within the financial  means  available  to the  University.   In  fact, Single  Judge has set aside the grant of permanency from 1st January,  1993 and left it open to the appellant to frame  a scheme  for  their absorption.  Mr.  Dhawan also  challenges the  grant to all such employees minimum pay scale who  have completed  10 years of service, based on the anvil of  equal pay  for  equal work, A minimum regular pay scale is  only admissible  to  the  regularised employees  doing  the  same nature  of  work..  The submission is, such employees  could only be entitled to the minimum wages admissible to class IV employees  of the State.  Unless an incumbent is regularised he  would  not be entitled for this minimum pay  scale.   He further  submits,  since  there are no equivalent  posts  in existence  today, hence question of equal pay on  equivalent post  does  not arise, so also no question of  applying  the principle of equal pay for equal work.

     Reliance  was  placed in the case of State of  Haryana and  Ors.   Vs.  Jasmer Singh and Ors.  1996(11) SCC 77  and State  of Haryana Vs.  Surinder Kumar and Ors.  1997(3)  SCC 633,  to  give credence to his this submission of equal  pay for  equal  work.   He  further   relies  on  the  following observation of the Division Bench that present is not a case where such an issue arises:

     The workmen are not claiming equal pay for equal work but  they  are  claiming  permanent   status  as  Class   IV

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employees.

     The  submission  on behalf of the respondents is,  the stand  of  the University that there are no permanent  posts for  absorption of such workers, on the facts of this  case, where  the  appellant has been taking work from its  workers year  after year for more than one decade, then non-creation of  posts itself constitutes an unfair labour practice.   In fact  by  the  time this industrial  dispute  was  referred, respondent-  workers  completed 5 years of their  continuous service  and when arguments were concluded they completed 10 years  of their continuous service.  Both, the Tribunal  and the  learned  Single Judge found the existence of  permanent nature work requiring them to be regularised.

     Respondents  objection  to Item No.1 of  the  proposed aforesaid scheme which requires completion of 10 years prior to  31st  December,  1999 for regularisation is that  it  is dehors  the interest of the workers, specially when some  of the  workers  are working from 1973 onwards.  Thus this  cut off  date  for  regularisation  requires  a  re-look.   With reference  to  Item  No.1(a),  the objection  is,  that  the University  had  failed to produce any evidence to show  any qualification  for  the  posts  on  which  they  are  to  be absorbed.   The recruitment rules which have been placed for the   first  time  before  this   Court  do  lay  down  some qualifications  but  their experience of working for such  a long time itself should be sufficient for their eligibility. With  reference  to Item (1)(b) and 1(d) the  objection  is, there should not be any phased regularisation, when work has been taken for such a long time.  All such qualified workers should  be regularised from the date they completed 10 years of their continuous service.  With reference to Item No.1(c) the  submission  is, there is no case whatsoever  about  any unsatisfactory  work of any of these respondent workmen  nor any  proceedings are pending against them.  In other  words, there  is no serious objection to it.  Next, with  reference to  Item  No.2  which provides, all daily workers  who  have completed 10 years of continuous service with minimum of 240 days  in  each calendar year as on 31st December,  1999  but could  not  be regularised, w.e..f.  1st January, 2000  they would  be  entitled  for a fixed pay  without  allowance  as prescribed  by the Government from time to time for skilled, semi-skilled  and unskilled workers plus Rs.500/- p.m.  They would  also  be  entitled to annual  increment  of  Rs.15/-, Rs.20/-   and  Rs.25/-  respectively   for  the   unskilled, semi-skilled  and  skilled workers till their  services  are regularised.   The objection is instead these workers should be  paid minimum pay scale (without increment) as admissible to  regularised workman on such post from 1st January, 1993. Similarly,  Item No.3 refers to such daily wagers,  skilled, semi-  skilled or unskilled who have not completed 10  years of  service with a minimum of 240 days in each calendar year to  be paid minimum wages at the rates as prescribed by  the Government  of  Gujarat from time to time for  daily  wagers falling  in  Class III and Class IV.  The objection  is  the same  that  they should also be paid minimum pay scale.   No serious  submission  with  reference to Item No.4  has  been made.

     From the aforesaid, it emerges that the learned Single Judge  had  concurred with the finding of the Tribunal  that contesting  workmen  have  been  working  in  the  appellant University  regularly  for  a  long number  of  years.   The

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existence  of permanent nature of work was inferred on  this account   and  also  due  to   the  vastness  of   appellant establishment.   The  regularisation  is   claimed  only  in respect  of  Class IV employees.  The main objection,  which was  raised earlier and is raised before us is that a person could only be regularised on any vacant post and if there be one   he   should  be  qualified   for  the  same   as   per qualification,  if  any, prescribed.  In fact, the  Tribunal has  held on the date of the award, most of the workmen  had completed  10  years  of  their service.  It  is  also  well settled,  if work is taken by the employer continuously from daily  wage  workers  for  a long number  of  years  without considering their regularisation for its financially gain as against  employees legitimately claim, has been held by this Court  repeatedly  as an unfair labour practice.   In  fact, taking  work, from daily wage worker or ad hoc appointee  is always viewed to be only for a short period or as a stop gap arrangement,  but we find new culture is growing to continue with  it  for a long time, either for financial gain or  for controlling  its  workers  more effectively  with  sword  of damocles  hanging  over  their  heads or  to  continue  with favourved  one  in the cases of ad hoc employee  withstaling competent   and  legitimate  climants.    Thus  we  have  no hesitation  to  denounce this practice.  If the work  is  of such a nature, which has to be taken continuously and in any case  when this pattern become apparent, when they  continue to  work for year after year, only option to the employer is to  regularise them.  Financial viability no doubt is one of the  considerations but then such enterprise or  institution should  not  spread  its arms longer than  its  means.   The consequent corollary is, where work is taken not for a short period  or limited for a season or where work is not of part time  nature  and  if  pattern shows work  is  to  be  taken continuously  year after year, there is no justification  to keep  such  persons hanging as daily rate workers.  In  such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with  rules  if  any  and where necessary  by  relaxing  the qualifications,  where  long experience could  be  equitable with  such  qualifications.  If no post exists then duty  is cast  to  assess  the quantum of such work and  create  such equivalent post for their absorption.

     Learned  Single  Judge  set  aside the  order  of  the Tribunal  granting regularisation from the date of the award and  left  it to the University to formulate an  appropriate scheme  for  their  absorption.   The  Division  Bench  felt certain  enquiry  is  necessary before  grant  of  permanent status  to  its  employees, namely, to find  the  extent  of permanent nature of work required for creating corresponding posts  before  absorption.   The  relevant  portion  of  the Division Bench judgment is quoted hereunder:

     The  learned single judge observed that the  Tribunal had  not  taken into consideration certain relevant  aspects notwithstanding  that  such question implicitly arises in  a case  of  industrial dispute concerning grant  of  permanent status  and  emoluments and privileges attached there to  by the  workmen  under  the  Industrial Dispute  Act,  nor  the Tribunal  had considered after reaching the conclusion about long  duration  of work and existence of permanent work  the extent  to  which permanent nature of work is  available  in each   trade  and  corresponding   necessity  of  number  of permanent  workmen  to discharge that work before  directing the  employer  to  make  all the  workmen  as  permanent  on

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completion  of  10  years  of service  as  on  1.1.1993  nor thereafter  if  they  were in service prior to the  date  of making  of reference, nor does it appear from the award that in  the  first  instance any opportunity was  given  to  the employer  after reaching the conclusion about necessity  for making  the  concerned  workmen permanent to  discharge  its managerial  obligation  for framing a scheme or making  such employees  permanent and placing before the Tribunal.  These issues  require investigation into further facts and  depend upon evidence of variable nature which can be led before the Tribunal.

     What  emerges  is,  all  the  respondent  workmen  are eligible for absorption on the facts of this case subject to any eligible qualification under the rule if any.  Though no recruitment  rules  were  filed in  the  proceedings  either before the Tribunal or in the High Court but while proposing the  scheme  a  copy of the recruitment  rules  for  various cadres have been placed before us on behalf of the appellant University.   This  gives in column no.1 the serial no.,  in column  no.2  the name of the post, in column no.3  the  pay scale,  in column no.4 the age limit and in column no.5  the qualification.   Serial  no.10 deals with Peon and Class  IV servants,  serial  no.13 deals with Operator-cum-  Mechanic, serial  no.14 deals with Chowkidar, serial no.25 deals  with Plumber  and serial no.33 deals with Carpenter.  This  shows that  recruitment  rules did have these posts in  its  ambit about  which  we are concerned, yet no posts  were  created. This  proposed  creation of post is churned out  only  after this  long  battle by the workmen as against the  appellant. It  was not expected from the institutions like the  present appellant,  especially when it is fully funded by the  State Government that this process of absorption should have taken such  a long time and to have yielded to it only after  this long  battle.  This legal position is well known not only to the  appellant but the State who is funding it, then why  to do it only after courts intervention.  It is true, creation of post does involve financial implication.  Hence financial health  of a particular institution plays important role  to which courts also keep in mind.  The Court does exercise its restrain  where  facts are such where extent of creation  of post  creates financial disability.  But at this juncture we would  like  to express our note of caution, that this  does not  give largess to an institution to engage larger  number of  daily  wage  workers for long number  of  years  without absorbing them or creating posts which constitutes an unfair labour  practice.  If finances are short engagement of  such daily  wage workers could only be for a short limited period and  if  continuous work is required it could only do so  by creating  permanent  post.  If finances are  not  available, take  such  work which is within financial mean.   Why  take advantage out of it at the cost of workers.

     One  of  the  questions  which  is  also  up  for  our consideration  is,  apart  from  the  fact  who  are  to  be regularised,  what  would  be payable to  these  daily  wage workers  who have completed more than 10 years of continuous service.  Submission for the respondents is, that such daily wage workers should be paid the same minimum scale of pay as admissible  to  the  regularised   incumbent  based  on  the principle of equal pay for equal work.  Daily rated casual labour  employed  under P&T Department through Bhartiya  Dak Tar Mazdoor Manch Vs.  Union of India and Ors.  (Supra), was a case of daily rated casual labourers of the P&T department

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doing  work  similar to that of the regular workers  of  the department.  This Court held:

     ...Even  though the Directive Principle contained  in Articles  38  and  39(d) may not be enforceable as  such  by virtue  of  Article  37  but it may be relied  upon  by  the petitioners  to show that in the instant case they have been subjected  to hostile discrimination.  The State cannot deny at  least  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.  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.

     State  of Haryana and Ors.  vs.  Piara Singh and  Ors. 1992  (4)  SCC  118.  This was a case  of  ad  hoc/temporary government  employees.  This Court held, those eligible  and qualified  and  continuing in service satisfactorily  for  a long  period have right to be considered for regularisation. Long continuing in service gives rise to a presumption about the  need  for  a regular post.  In  such  cases  government should  consider feasibility of regularisation having regard to the particular circumstances with a positive approach and empathy for the concerned person.

     In  Surinder  Singh and Anr.  Vs.   Engineer-in-Chief, C.P.W.D.   and  Ors.   1986 (1) SCC 639,  this  Court  holds entitlement of equal pay for equal work for the daily wage workers  of C.P.W.D.  to the wages equal to the regular  and permanent employees employed to do identical work.  Mool Raj Upadhyaya  Vs.   State of H.P.  and Ors.  1994 Supp (2)  SCC 316,  was  a case of regularisation based on the  claim  for equal  pay for equal work of daily wages of Class III  and Class IV employees in the Irrigation and Public Health Wings of  H.P.  Some of them worked for more than 10 years.   They were  being  paid  minimum  wages prescribed  by  the  State Government but were seeking regularisation and parity of pay with  regular employees.  The State Government came out with a  scheme which was modified by this Court to the  following effect.  The relevant portion of which is quoted hereunder:

     Taking into consideration the facts and circumstances of the case, we modify the said scheme:  xxx xxx

     (3) daily-wage/muster-roll workers, whether skilled or unskilled  who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31.12.1993., shall be  paid  daily  wages  at   the  rates  prescribed  by  the Government  of Himachal Pradesh from time to time for  daily wage  employees falling in Class III and Class IV till  they are  appointed as work- charged employees in accordance with paragraph 2;

     (4)    daily-wage/muster-roll    workers    shall   be regularised   in   a  phased  manner   on   the   basis   of seniority-cum-suitability  including  physical fitness.   On regularisation  they  shall  be put in the  minimum  of  the time-scale  payable  to  the   corresponding  lowest   grade applicable  to  the Government and would be entitled to  all other  benefits available to regular government servants  of the corresponding grade.

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     Strong  reliance is placed on this decision on  behalf of the University.  Submission is, heavy financial constrain would  result in case all employees are to be regularised or minimum  pay  scale is to be given to  unabsorbed  employees which  would  be beyond the capacity of the appellant.   The affidavit of G.A.  Shah, Deputy Secretary to the Government, Agricultural  Department, on behalf of the State, avers that the  financial burden which would surface and to be fastened on  the  State Government will be very heavy which would  be more  than  15  crores towards the arrears only as  per  the award if it is implemented.  The averment is, there are 5100 daily  rated labourers including seasonal labourers which in addition  will place heavy recurring financial burden on the State  Government.   However,  we do respect  and  give  due consideration  for  any unbearable financial strains but  we are  not  impressed by this, specially on the facts of  this case,  when work is being taken from them for a long  number of  years  without  giving them the due  benefit  for  their regularisation.   As  we have said, which we are keeping  in mind  that  financial constraint is also to be kept in  mind when  any scheme is framed at a particular time.  In Dharwad Distt.   P.W.D.   literate daily wage employees  Association and Ors.  Vs.  State of Karnataka and Ors.  1990 (2) SCC 396 this Court held:

     Though  the scheme so finalised is not the ideal  one but  it  is  the obligation of the  court  to  individualise justice to suit a given situation in a set of facts that are placed  before it.  Under the scheme of the Constitution the purse   remains  in  the  hands   of  the  executive.    The legislature  of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the  scheme,  will  have  to  be met.   The  flow  into  the Consolidated  Fund  depends  upon  the  policy  of  taxation depending  perhaps on the capacity of the payer.  Therefore, unduly   burdening   the   State    for   implementing   the constitutional  obligation  forthwith would create  problems which  the State may not be able to handle.  Therefore,  the directions have been made with judicious restraint.

     To   the  similar  effect,   namely,  involvement   of financial  burden is also a relevant consideration was  held in  Rao  Somashekara and Ors.  Vs.  State of  Karnataka  and Anr.   1997  (7)  SCC 649, Raj Narain Prasad and  Ors.   Vs. State of U.P.  and Ors.  1998 (8) SCC 473, Hindustan Machine Tools  and Ors.  Vs.  M.  Rangareddy and Ors.  2000 (7)  SCC 741.

     In  Delhi  Veterinary Association Vs.  Union of  India and Ors.  1984 (3) SCC 1, it was observed by this Court:

     At  the  same time while fixing the pay  scales,  the paying  capacity  of  the Government,  the  total  financial burden  which  has  to be borne by the general  public,  the disparity  between  the incomes of the Government  employees and  the incomes of those who are not in Government  service and  the net amount available for Government at the  current taxation level.

     In the light of the aforesaid decisions we now proceed to  examine  the  proposed  scheme.  Under Clause  1  it  is

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proposed  that  all  daily wage  workers,  whether  skilled, semi-skilled  or  unskilled who have completed 10  years  or more  of  continuous service with a minimum of 240  days  in each  calendar  year  as  on 31st December, 1999  is  to  be regularised  and be put in the time scale of pay  applicable to  the  corresponding  lowest   grade  in  the  university. However,   the  said  regularisation  is  subject  to   some conditions.   Under  Clause 1(a) such employee  is  eligible only  if  he possess the prescribed qualifications  for  the post at the time of their appointment.  The strong objection has  been raised to this eligibility clause.  The submission is,  those working for a period of 10 or more years  without any   complaint   is  by   itself  a  sufficient   requisite qualification  and any other rider on the facts of this case would  prejudice  these  workers.   We find  merit  in  this submission.   We have perused the qualifications referred in the   aforesaid  recruitment  rules   according  to   which, qualification  for  Peon  is that he should study  upto  8th std.,  for  Operator-cum-Mechanic,  should have  Diploma  in Mechanic  having  sufficient knowledge of vehicle  repairing experience  in automobiles or tractors Dealers workshop  for two  years, for Chowkidar, he must be literate and have good physique.   Literate  is not defined.  For Plumber  to  have I.T.I.  Certificate.

     We  feel that daily rate workers who have been working on  the  aforesaid  posts for such a long  number  of  years without  complaint on these posts is a ground by itself  for the  relaxation of the aforesaid eligibility condition.   It would  not be appropriate to disqualify them on this  ground for their absorption, hence Clause 1(a) need modification to this effect.

     In   Bhagwati   Prasad  Vs.    Delhi   State   Mineral Development  Corporation  1990  (1)   SCC  361,  this  Court observed:

     The  main  controversy  centres  round  the  question whether  some  petitioners  are possessed of  the  requisite qualifications to hold the posts so as to entitle them to be confirmed  in  the  respective  posts  held  by  them.   The indisputable  facts are that the petitioners were  appointed between  the period 1983 and 1986 ever since, they have been working  and have gained sufficient experience in the actual discharge  of  duties  attached to the posts held  by  them. Practical   experience  would  always   aid  the  person  to effectively  discharge  the duties and it is sure  guide  to assess  the  suitability.  The initial  minimum  educational qualification   prescribed  for  the   different  posts   is undoubtedly  a  factor to be reckoned with, but it is so  at the  time  of the initial entry into the service.  Once  the appointments  were made as daily rated workers and they were allowed  to work for a considerable length of time, it would be  hard  and  harsh to deny them the  confirmation  in  the respective posts on the ground that they lack the prescribed educational qualifications.

     Thus  in view of their long experience on the fact  of this  case  and  for  the  concerned  posts  the  prescribed qualification,  if any, should not come in the way of  their regularisation.  Clause 1(b) provides for the regularisation of  daily  wagers  in  a  phased manner  to  the  extent  of available sanctioned post.

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     The  decision  to absorb some of the employees at  one point  of  time or in a phased manner depends on  facts  and circumstances  of  each  case.  Where very large  number  of workers are required to be absorbed, this Court accepted the formula, in the past to absorb such employees under a Scheme in  a phased manner.  This is done to work it out within its financial  means.   Every liberty and entitlement is  always subject  to such financial limits.  But in considering  such absorption,  the financial means have to be stretched to the maximum  but  should  not  be  a  defence  with  motive   to disentitle  the  claim  of the workmen.  The grant  of  this phased  absorption thus is in itself a mechanism under  this principle.  But as we have said this mechanism is not a tool to  misuse  for  taking  away any legitimate  right  of  any worker.   The  Court  has to be cautious in  exercising  its discretion.   On the one hand it has to keep the interest of the workers alive and on the other to see that employer does not  become spineless for the lack of funds eroding the very workers  interest.   In the present case admittedly  in  the first  phase  in terms of Clause 1, one block of daily  wage worker  is  to be regularised for which the posts are  being created.   We  want  to  make it clear,  in  creating  posts Government  shall  see maximum posts are created  to  absorb maximum such workers who have completed ten years as on 31st December,  2000,  as these workers have more  than  eligible claim.   Thereafter, even reassessment for additional posts, about  which  we  are referring should be done in  the  same perspective.   In  other words there may still be number  of workers  who  may still not be covered for absorption  under the  first phase of Clause 1 due to initial non-availability of  posts though working for a long number of years.  We are saying  so  because Clause 1 (d) is silent, what  number  of posts  Government  is being created initially for the  first phase of absorption.

     According  to the State counter if absorption is  made from  1.1.1993 of all those who have completed ten years  of service  as per Tribunal order, the payment towards  arrears would  be  to the tune of 15 crores.  Since in the  proposed scheme,  absorption is from 1st January, 2001, the State has already  gained much more than this arrears of more than  15 crores.   In this light and in the absence of details  being placed  before us, we are leaving the extent of creation  of the  posts on the State Government.  We hope and trust,  the Government  who is the guardian of the people and is obliged under  Article  38 of the Constitution, to secure  a  social order  for  the  promotions  of welfare of  the  people,  to eliminate  inequalities  in status, will endeavour  to  give maximum  posts even at the first stage of absorption, and do the  same  in the same spirit for creating additional  posts after  enquiry  as  we  are  indicating  hereunder.   It  is necessary  that the State Government to set up an enquiry to find  what  further number of additional posts are  required for  regularising such other daily rated workers, and  after assessing  it,  to  create such additional posts  for  their absorption.   This  exercise  should be done  by  the  State Government within a period of six months.  The submission on behalf  of  the  respondent  is   that  those  who  are  not regularised  and  are  continuously working for 10  or  more years  with minimum of 240 days in each calendar year,  they should  be  paid  minimum  pay scale  as  admissible  to  an incumbent  regularised  on similar post doing  similar  work instead  of  minimum wages as prescribed by the  Government. The dispute thus is, whether such workers to be paid minimum daily wage as Government prescribes as per the scheme or pay

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them  the  minimum pay scale admissible to such  regularised worker  without increment and other benefit.  This Court  in one  set  of decisions have said to regularise them  in  one block  and pay them the same minimum pay scale as admissible to  a regular employee as in;  Surinder Singh and Anr.   Vs. Engineer-in-Chief,  C.P.W.D.   and Ors.  1986 (1)  SCC  639, U.P.   Income  Tax Department Contingent Paid Staff  Welfare Association  Vs.  Union of India and Ors.  (1987) Supp.  SCC 658,  1998 State of Punjab and Ors.  Vs.  Devinder Singh and Ors.   1998  (9) SCC 595, Chief Conservator of  Forests  and Anr.   Vs.  Jagannath Maruti Kondhare and Ors.  1996 (2) SCC 293  and in other cases to absorb in a phased manner under a scheme which depends on the facts of each case.  In Mool Raj Upadhyaya  Vs.   State of H.P.  and Ors (supra), this  Court approved a scheme under which the daily wage workers whether skilled  or  unskilled  who have not completed 10  years  of service was to be paid daily wage at the rates prescribed by the  Government  of H.P.  from time to time for  daily  wage employees  falling  under  Class III and IV  till  they  are appointed regularly.  Strong reliance is placed on behalf of the  University  on this case and also, looking to the  fact that  it  has  no  impressive source of its  own,  being  an Agricultural  University,  depending on the State  fund,  we hold  they should be paid minimum wages as prescribed by the Government  from time to time as proposed under the  scheme. We  approve  both  clauses  2  and   3  on  the  facts   and circumstances of this case.  In fact, in seeking minimum pay scale to such daily rated workers as admissible to a regular employee  is based on the principle of equal pay for  equal work.   It  is  pertinent  to   refer,  in  this  case  the observation  of the High Court:  Workmen are not claiming equal  pay  for equal work but they are  claiming  permanent status  as  Class IV employees as they are working and  have gained more than sufficient experience in their work.

     Ghaziabad  Development Authority and Ors.  Vs.  Vikram Chaudhary  and  Ors.  1995 (5) SCC 210, this was a  case  of temporary  daily wage employees claiming parity with regular employees.   It was held, in the absence of availability  of regular   post  for  appointment,  such   a  claim  is   not sustainable.  However, it was held that they should be given minimum  wages  under the statute if any, or the  prevailing wages  in the locality.  To the same effect is Basudev  Pati Vs.  State of Orissa and Anr.  1997 (3) SCC 632.

     State  of Haryana and Ors.  vs.  Jasmer Singh and Ors. 1996    (11)    SCC   77,    this    was   a   case    where Mali-cum-Chowkidars/Pump   Operators  claimed    parity   in employment  based on the anvil of equal pay for equal work who  were daily wagers.  It was held, they are not  entitled to  such parity with regular workmen.  They can get only the minimum wages.

     In  the  present  case after absorption  of  employees under  Clause  1,  we  have   already  directed,  the  State Government  what  they have to do in coordination  with  the appellant  University to assess and find additional  regular posts  required by the university.  In doing so, they  shall keep in mind the continuous work which the workers are doing for  long  number  of years and after fixing the  number  it should further create such additional posts as necessary and absorb  them.  This exercise to be undertaken, as aforesaid, within  six months.  So for this reason we would not like to disturb  the  proposed scheme except to the extent  we  have

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observed above.  We are sure no slackness would be exercised both  by  the  appellant and the State  in  completing  this exercise  within  the said period.  Apart from what we  have observed, we do not find any infirmity in the scheme.

     Accordingly  we approve the aforesaid scheme framed by the  University  and  as approved by the  State  Government, subject  to the modifications which we have recorded  above. In  terms  of the said modified scheme, the judgment of  the High  Court  stands modified.  As  respondents/workmen  have suffered  for a long duration of time it is appropriate that aforesaid  scheme  is implemented expeditiously at an  early date.   The first phase of absorption to be completed within three  months.   The appeals are accordingly disposed of  in the aforesaid terms.  Costs on the parties.