S.K. Keshote, J.
1. The petitioner has prayed for directions to the respondent to allow him to resume duty as Naka Clerk with full back wages from the date on which his services were orally terminated.
2. The petitioner has come up with the case that he was working as an Octroi Clerk on consolidated salary of Rs. 450/-. It has further been stated by petitioner that he was paid Rs. 14.50 ps. per day and calculated as monthly Rs. 450/-. Some other persons were also employed as workcharge employees. The petitioner and others were given breaks in service only as per the seniority. The petitioner's brother. Shri Ravindrakumar Manubhai Amin was also in service of the respondent whose service came to be terminated orally. He filed Special Civil Application No. 739 of 1985 before This Court and This Court has directed the respondent to permit him to prosecute his duties from 1st March 1985. Accordingly, the petitioner's brother resumed duties from 1st March 1985. The petitioner being the brother of Ravindrakumar Manubhai Amin, to whom the respondent had to take on duty under the Court's order, the respondent keeping grudge against the petitioner, suddenly without any cause or reason and without any opportunity and further continuing the junior employees orally asked the petitioner not to come on duty from the said date, i.e., 1-3-1985. The petitioner, in para-3 of the Special Civil Application, submitted that the respondent had continued Shri H.D. Kazi, Jitendra Trivedi, B.B. Purabia, Umraobeg Hussainbeg, who were simultaneously appointed with the petitioner. So, the petitioner's case is that he continued to work from 1981 with some intermittent breaks as the other persons above named and his services were terminated whereas those persons were retained in service.
3. Reply to the Special Civil Application has been filed by respondent and the claim of the petitioner has been disputed. The respondent has come up with the case that the petitioner was only a daily wager and as such he has no right to the post. His services were engaged as and when necessity for work had arisen. Replying to the contention of petitioner regarding retention of juniors, the respondent has come up with the case that it had got a permanent establishment of Octroi Department of 30 permanent Octroi Naka Clerks and occasionally and intermittently it requires some daily wagers for temporary help. Shri Umraobeg is not re-employed after retirement but he being a handicapped person, he and others were given appointment as daily wagers. There is no question of seniority amongst the daily wagers. Shri Purabia was a daily wager and because his father was a Councilor of Nagarpalika and President for sometime, had filed a case in the Labour Court, wherein the then President Shri Nirubhai Solanki, who had submitted his resignation to the Collector on 5-4-1984, had illegally and without the sanction of the General Board had entered into compromise on 30-4-1984 with Shri Purabia. An application has also been filed for setting aside the compromise award but ultimately that has been rejected.
4. The petitioner filed rejoinder affidavit to the reply and he has contended that the termination of his services has been made in violation of Section 25F of the Industrial Disputes Act. Again he reiterated his grievance of retention of junior persons. Shri Umraobeg is stated to be re-employed because of his relationship with Chief Officer. However, the petitioner has not controverted the fact that Shri Purabia was taken in service because of compromise award passed in his case.
5. The learned Counsel for petitioner made reference to two Civil Applications filed by petitioner in this case. In the first Civil Application, i.e., Civil Application No. 545 of 1987, prayer has been made to direct the respondent to given work in the Octroi Department to the petitioner pending the final hearing in this petition. The petitioner produced on record of this Civil Application a list of employees working in the Octroi Department as Naka Clerks. That list is of 64 employees, out of which only eight employees are senior to him and/or arc working because of the order of different Courts whereas the rest 56 employees are junior to the petitioner but are given work in preference. This Court has protected the petitioner initially in this Civil Application but ultimately that Civil Application has been disposed of and Rule has been discharged on 15-2-1993.
6. So from the averments made in the Civil Application, it comes out that eight employees are working under the Court's order in the office of respondent whereas 56 employees were given work in preference to the petitioner. Both the categories of employees were stated to be senior to the petitioner. Be thai as it may. The case of those persons is distinguishable as they are working under the Court's order and ultimately the Court will decide the matter on merits.
7. Another Civil Application which has been filed by petitioner is Civil Application No. 350 of 1988 in which prayer has been made by petitioner for giving him the regular pay scale of the post of Octroi Clerk. That Civil Application has been disposed of in favour of petitioner on 10th March 1988.
8. The learned Counsel for the petitioner contended that the termination of services of the petitioner is bad in law as it has been made in violation of provisions of Section 25F of the Industrial Disputes Act. It has next been contended that the juniors were continued in service whereas the petitioner's services were dispensed with. Lastly, the learned Counsel for the petitioner contended that the petitioner is working for all these years, may be under the Court's order, and as such, directions may be given to the respondent to regularise his services.
9. On the other hand, the learned Counsel for respondent contended that the petitioner has no case whatsoever in his favour. The petitioner worked for 86 days in the year 1981, for 84 days in the year 1982, for 150 days in the year 1984, and in the year 1983 he has not worked for a single day. In the year 1985, upto 28th February 1985, the petitioner worked for 51 days.
10. The respondent has come up with the case in the reply that as and when it requires the services of petitioner as daily wager, he is given work. The petitioner has not disputed his working days in the year 1981, 1982, 1983, 1984 and 1985. The petitioner has not completed 240 days in 12 calendar months preceding the date of his termination and as such, the challenge to the action of respondent terminating his services on the ground of violation of provisions of Section 25F of the Industrial Disputes Act, 1947, is wholly misconceived. The decision of This Court, copy of which has been filed by petitioner, in Civil Application No. 545 of 1987, is also of little help to the petitioner as in that case, This Court held that termination of services of the petitioner therein has been made in violation of Section 25F of the Industrial Disputes Act, 1947. In the present case, the respondent was not required to comply with the provisions of Section 25F of the Industrial Disputes Act, 1947, while terminating the services of the petitioner. So far as the second ground of challenge of order of termination is concerned, the petitioner has not produced on record of the Special Civil Application the seniority list. Not only this, the petitioner has not produced on record what were the total working days of those persons. I find sufficient merits in the contention of learned Counsel for respondent that for the daily wagers, there is no question of framing of any seniority list. The petitioner has not produced on record of this Special Civil Application, sufficient material to establish his case that the juniors were retained in service whereas the services of seniors have been terminated. The daily wagers have no right to hold the post. It is only when the temporary increase in work is there, the respondent had to engage their services. So the petitioner as well as other daily wagers who have been given appointment by respondent temporarily have no legal right to continue on the post liven if the services of daily wagers are being terminated in violation of provisions of Section 25F of the Industrial Disputes Act, 1947, still they do not acquire any right to hold the post. At the most, they may be entitled for the notice pay or the retrenchment compensation, but their services will not be considered to be regular and permanent. All these daily wages appointments are being made without any selection and at the time of need when there is temporary increase of work. In case the other persons are working on the post under Court's order then it will not give any right to the petitioner, much less a legal right where This Court has to issue mandamus to the respondent to take him back in service.
10.1. From the facts which have come on record of this Special Civil Application, I find that the respondent is making indiscriminately daily wage appointments and it continues these appointments for some time. It also comes out from the record of this Special Civil Application that favoritism and nepotism in making appointments in the respondent-office is also there. The case of Shri Purabia is a clear example of favoritism and nepotism, as a compromise has been entered into only because he has been in relation to the Councilor. I fail to see how this compromise could have been entered into where he was only a daily wager. Be that as it may. That matter is not before This Court, but these facts are being noticed only to the extent as stated by the petitioner and not controverted by the respondent. In case the other daily wagers who are made regular or permanent or are continued for years together, then that exercise may be illegal or de hors the Rules but only on the basis of that illegal action of respondent, a plea of discrimination as raised by learned Counsel for the petitioner is not sustainable. If any reference is needed in this respect, then reference may have to the decision of the Hon'ble Supreme Court in the case of Chandigarh Administration v. Jagjit Singh reported in : 1SCR126 . The petitioner was a daily wager and as observed earlier, the daily wager has no right to hold the post and This Court cannot grant relief of the nature as prayed for by petitioner in this case. Their Lordships of the Hon'ble Supreme Court, in the case of Allahabad Bank v. Prem Singh reported in : (1997)ILLJ46SC , held that the daily wage appointment automatically ceases at the end of each day. As the daily wagers have no right to the post, they are not entitled also for the regularisation of their services. The case of the petitioner stands on much lower footing as he has not continuously worked from 1981 to 1985, as alleged. His working in the years 1981-82 and 1984-85 was for a few days and that will not give any right to him to the extent where This Court has to issue a writ of mandamus to the respondent to take him back on service. The termination of services of the petitioner is perfectly legal and justified and does not call for interference of This Court. In the result, this Special Civil Application fails and the same is dismissed. Rule discharged. No order as to costs.
11. Before parting with this judgment, I am constrained to observe that though on the basis of illegal action of orders of respondent, a plea of discrimination may not be sustainable, but still in case This Court permits those other persons who have been illegally inducted or continued then, the petitioner will go with a feeling that in the Courts, justice is not being done. Moreover, in such cases, those persons who have means and power, will be benefited whereas weak persons or the persons of no means will suffer. I, therefore, consider it to be my duty to see that the petitioner may not go with a feeling that though other persons who are similarly situated, because of their means and power and manipulations, are continued in service whereas he has been asked to go back. Though this Special Civil Application is dismissed, Rule discharged, the respondent is directed to produce a complete record before This Court together with a brief statement thereof, either in English or Hindi, as to how many appointments have been made by it on the post of Octroi Clerks or other posts from 1981 till date. All other relevant material and necessary details in respect of such appointments should be produced before This Court. The respondent is further directed to produce before This Court, the details of all those cases which are pending in Courts or Tribunal or Labour Courts of its employees, in respect of termination of services, or for some other benefits, including the details of the case of Shri B.B. Purabia. All these details have to be submitted by respondent within a period of one month from today, i.e., on or before 19-1-1998. The Chief Officer of the respondent is also directed to remain present in the Court on the next date alongwith the record. The respondent is further restrained from making any appointments of daily wages or on ad hoc or temporary basis. If any permanent vacancy is there then the appointment should be made only by inviting applications from the open market and after considering the candidature of the applicants by the selection committee. If for the reasons to be stated before This Court, any urgent appointments have to be made on daily wages, or temporary or ad hoc basis, then This Court may be approached and This Court will, after considering the matter, pass the appropriate orders.