JUDGMENT
Rajesh Balia, J.
1. This petition was filed on 19.10.1989 by Nagar Parishad Karrtichari Union, Jodhpur (hereinafter referred to as ‘the Union’) on behalf of 24 employees designated as Safaiwala, working in the Municipal Council, Jodhpur. Names of these 24 employees, mentioned in Schedule ‘A’ appended with petition, are as under:
1. Kamla D/o Shri Ratan Lal
2. Vimla D/o Bansiram
3. Gita S/o Arjun
4. Geeta D/o Dhanraj
5. Punamchand s/o Shri Sultan
6. Budharam s/o Shri Sultan
7. Surender s/o Shri Hardas
8. Sarla D/o Shri Prakash
9. Leela D/o Shri Gabru
10. Narendra s/o Shri Hardas
11. Harish s/o Shri Nathuram
12. Pappu s/o Shri Hardas
13. Narma s/o Shri Sagji
14. Omprakash s/o Shri Mangilal
15. Pushpa D/o Bhaiyaram
16. Shanti D/o Sugnaram
17. Raju s/o Shri shyamlal
18. Nandkishore s/o Shri Ramdeen
19. Manakram s/o Shri Punaram
20. Sushila D/o Shri Banshiram
21. Harculish s/o Shri silram
22. Sharwan s/o Shri Chhotuji
23. Rameshwari D/o Bhanwarlal
24. Jagdish s/o Shri Messaram.
2. It is alleged that by oral order, services of all these persons were terminated on 6.10.1989. The fact of oral termination is not disputed. It is further alleged that the said 24 persons, the date of first appointment in respect of each one is mentioned in the Schedule ‘A’, which in each case is prior to 1980. It is contended by the learned Counsel for the petitioner that the services have been terminated without giving notice and without complying with conditions precedent for bringing about valid retrenchment under the Industrial Disputes Act, 1947 [herein after referred to as ‘the Act of 1947’), more particularly stating, it is alleged that neither any notice as required under the provisions of Section 25F(a) of the Act of 1947 or salary in lieu of such notice was paid to the petitioners before termination was effected nor any retrenchment compensation was paid before effecting the termination. It is also alleged that at the time of termination all the 24 persons were working in the Air Force area of the town under the orders of the Municipal council.
3. A return has been filed. While it is admitted the services of said 24 persons were terminated by oral order, prelimanary objections have been raised about the maintainability of the writ petition on the ground that the Union is not entitled to maintain the writ petition on behalf of number of persons, particularly, because the Municipal Council disputes the actual period of their working under its employment and also challenges that since it raises disputed question of facts, the petition which seeks to enforce right under the Act of 1947, ought not to be entertained under Article 226 of the Constitution and the parties should be left to pelaus their remedy under the Industrial Disputes Act.
4. A rejoinder has been filed in which it has been stated that while the services of the persons named in the Schedule * A’ of the petition were terminated by oral orders dated 6.10.1989, for reasons best known to the respondents, after filing the writ petition-on 19.10.1989, by order dated 19.11.1989, 280 persons have been appointed by the respondents in the same capacity on the same pay, in which 6 of the persons whose names are included in the Schedule ‘A’, were also re-employed. This fact of giving appointment to 280 persons after one and half month after terminating services of 24 persons on whose behalf this petition has been filed, is not disputed by the learned Counsel for the respondents.
5. From the above facts, it is apparant that while the work was existing, need to employ much more persons in much larger number than whose services have been terminated was ex-sting, there was no reason whatever to bring about termination of services of these 24 persons who were already working with the respondents. In view of these glaring circumstances apparent on the face of record, it cannot be said that relief to the 24 persons mentioned hereinabove is dependent on deciding any dispute. It can well be said that even if the retrenchment brought about on 6.10.1989 was valid retrenchment then too it was incumbent upon the respondents to have offered employment to these persons, whose services were terminated on 6.10.1989, before new hands were recruited under Section 25H of the Act of 1947. This position is not seriously disputed by learned Counsel for the respondents. The petitioners are entitled to get the relief on this ground alone.
6. The fact remains that in the aforesaid circumstances, the termination of services of 24 persons was apparently arbitrary and unjust and resulted in violation of Articles 14 and 16 of the Constitution of India. Not to say, it also violates Article 21 of the Constitution in as much as the Municipality has sought to deprive those lowly paid employees from the only Source of their livelihood, for no reason or rhyme.
7. It is further contended that while these persons were discharging the regular duties, similar to those Safaiwalas who were regularly recruited yet they are being paid emoluments as daily rated workmen. It has been stated time and again by the Apex Court of this land that in the case of a temporary or ad- hoc employee, no discrimination can be made for the same on the basis of method of recruitment in the matter of emoluments. Such in-justice is adhorring to the constitutional scheme. The latest pronouncement in that respect has been made by the Apex Court in Karnataka State Private Collage top-Gap Lecturers Association v. State of Karanataka and Ors. ,- wherein their Lordships of Hon’ble Supreme Court have warned against the evil inherent in adopting a different method of payment to ad-hoc or temporary employees that regular employees. While considering the case of ad-hoc and temporary teachers employed by institutions on fixed payment, which was loans than regular payment made to the regularly employed teachers. Their Lordships have observed as under:
.. An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, nonavailability of permanent Vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed, a fixed salary by adopting a different method of payment than a regular teacher. Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution. The evil inhernant in it is that apart from the teachers being at the back and call of the management are in danger of being exploited as has been done by the management committees of State of Karnataka who have utilised the services of these teachers for 8 to 10 years by paying a meagre salary when probably during this period if they would have been paid according to the salary payable to regular teacher they would have been getting much more. Payment of nearly eight months’ salary, by resorting to clause 5, and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust. A temporary or ad-hoc employee may- not have a claim to become permanent without facing selection or being absorbed in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorring to constitutional scheme.
8. The Apex Court directed to the respondents as under, in connection with appointment of ad-hoc or temporary employees:
(1) xx xx xx xx
(2) xx xx xx xx
(3) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed, exhausts if it is in waiting of regular sanction then till such selected in made.
(4) xx xx xx xx
9. In the result, the petition is allowed. The termination brought about on 6.10.1989 of the services of 24 persons whom whose behalf this petition has been filed [mentioned hereinabove as given in the Schedule ” A’ appended with the writ petition], is declared illegal and void. The respondents are directed to reinstate all the persons on whose behalf this petition has been filed, if they have not already been reinstated. It may be made clear that out of above-mentioned 24 persons, 6 person have already been re-appointed on 19.11.1989. The respondents are further directed to make the payment to persons appointed as safaiwala for discharging duties identical to regularly appointed safaiwala, in the same pay scale which is being paid to regularly recruited safaiwalas with effect from the date of filing of the writ petition. The petitioners shall also be entitled to the benefit of continuity of service, with effect from the date their services were first terminated.