Full Judgment Text
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CASE NO.:
Appeal (civil) 5185 of 2006
PETITIONER:
State of M.P. & Ors.
RESPONDENT:
Lalit Kumar Verma
DATE OF JUDGMENT: 24/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J.
Leave granted.
Respondent herein was appointed on daily wages. Indisputably, his
recruitment was not made in terms of the statutory rules. No offer of
appointment was also issued. He filed an application before the Labour
Court purported to be for his classification in permanent category of
workman. An Award was made on the premise that he having worked
continuously for a period of more than six months, acquired a right for
classification in the category of permanent clerk and in that view of the
matter, his services could not have been terminated without complying with
the provisions of Section 25F of the Industrial Disputes Act, 1947. He was
directed to be classified on the permanent basis as clerk from two years prior
to the date of his filing the application, i.e., 11th November, 1991. He was
also held to be entitled to prescribed wages and thus, the amount of
difference in wages of the said post and other benefits was directed to be
paid. A writ petition was preferred thereagainst by the appellants before the
High Court, which was also dismissed by a learned Single Judge, opining
that no case had been made out to interfere therewith.
Shri S.K. Dubey, learned Senior Counsel appearing on behalf of the
appellants would contend that the impugned judgment cannot be sustained in
view of the fact that the respondent, in law, was not entitled to be classified
as a permanent employee under the provisions of Madhya Pradesh Industrial
Relations Act, 1960. Strong reliance in this behalf was placed on State of
Madhya Pradesh & Ors. vs. Yogesh Chandra Dubey & Ors. [(2006) 9
SCALE 73 : (2006) 8 SCC 67)]. It was urged that in any event the
respondent should not have been directed to be held entitled to back wages
from 1992.
Mr. Ashok Mathur, learned counsel appearing on behalf of the
respondent, on the other hand, would submit :-
(i) that the Special Leave Petition being barred by limitation, the
delay in filing the same should not be condoned;
(ii) as the certificates issued in favour of the respondent had been
examined by three Courts, this Court should not interfere therewith.
The application was filed by the respondent before the Labour Court
on the premise that the order of termination dated 10.10.1991 was illegal and
he should have been declared permanent on 1st April, 1987 after
classification in the category of Supervisor and Clerk.
Clause 2 of the Standard Standing Orders reads as under:
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"2. Classification of employees.Employees shall be
classified as (i) permanent, (ii) permanent seasonal, (iii)
probationers, (iv) badlies, (v) apprentices, and (vi)
temporary:
(i) A permanent employee is one who has
completed six months satisfactory service in a
clear vacancy in one or more posts whether as a
probationer or otherwise, or a person whose name
has been entered in the muster roll and who is
given a ticket of permanent employee;
*
(vi) temporary employee means an
employee who has been employed for work which
is essentially of a temporary character, or who is
temporarily employed as an additional employee in
connection with the temporary increase in the
work of a permanent nature; provided that in case
such employee is required to work continuously
for more than six months he shall be deemed to be
a permanent employee, within the meaning of
clause (i) above."
A workman, therefore, would be entitled to classification of
permanent or temporary employee, if the conditions precedent therefor are
satisfied. Respondent was not appointed against a clear vacancy. He was
not appointed in a permanent post or placed on probation. He had also not
been given a ticket of permanent employee. Working on daily wages alone
would not entitle him to the status of a permanent employee.
In Mahendra L. Jain & Ors. vs. Indore Development Authority &
Ors. [(2005) 1 SCC 639], this Court opined :
"The 1961 Act provides for classification of
employees in five categories. The 1973 Act, as noticed
hereinbefore, clearly mandates that all posts should be
sanctioned by the State Government and all appointments
to the said cadre must be made by the State Government
alone. Even the appointments to the local cadre must be
made by the Authority. The said provisions were not
complied with. It is accepted that no appointment letter
was issued in favour of the appellants. Had the
appointments of the appellants been made in terms of the
provisions of the Adhiniyam and the Rules framed
thereunder, the respondent Authority was statutorily
enjoined to make an offer of appointment in writing
which was to be accepted by the appellants herein. Who
made the appointments of the appellants to the project or
other works carried on by the Authority is not known.
Whether the person making an appointment had the
requisite jurisdiction or not is also not clear. We have
noticed hereinbefore that in the case of Om Prakash
Mondloi, the CEO made an endorsement to the effect
that he may be tried in daily wages and should be
entrusted with the work of progress collection of ODA
work. The said order is not an offer of appointment by
any sense of the term."
It was further opined :
"The Standing Orders governing the terms and
conditions of service must be read subject to the
constitutional limitations wherever applicable.
Constitution being the suprema lex, shall prevail over all
other statutes. The only provision as regards recruitment
of the employees is contained in Order 4 which merely
provides that the manager shall within a period of six
months, lay down the procedure for recruitment of
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employees and notify it on the notice board on which
Standing Orders are exhibited and shall send copy
thereof to the Labour Commissioner. The matter relating
to recruitment is governed by the 1973 Act and the 1987
Rules. In the absence of any specific directions contained
in the Schedule appended to the Standing Orders, the
statute and the statutory rules applicable to the employees
of the respondent shall prevail.
*
For the purpose of this matter, we would proceed
on the basis that the 1961 Act is a special statute vis-‘-vis
the 1973 Act and the Rules framed thereunder. But in the
absence of any conflict in the provisions of the said Act,
the conditions of service including those relating to
recruitment as provided for in the 1973 Act and the 1987
Rules would apply. If by reason of the latter, the
appointment is invalid, the same cannot be validated by
taking recourse to regularisation. For the purpose of
regularisation which would confer on the employee
concerned a permanent status, there must exist a post.
However, we may hasten to add that regularisation itself
does not imply permanency. We have used the term
keeping in view the provisions of the 1963 Rules."
The said decision shall apply in all fours to the facts of the present
case. {See also M.P. Housing Board & Anr. vs. Manoj Shrivastava
[(2006) 2 SCC 702], Municipal Council, Sujanpur vs. Surinder Kumar,
(2006) 5 SCC 173 and Indian Drugs and Pharmaceuticals Limited vs.
Workman, Indian Drugs and Pharmaceuticals Limited, Civil Appeal No.
4996 of 2006 decided on 16.11.2006}
The respondent was also not appointed in terms of the statutory rules.
He was furthermore not entitled to any regular scale of pay attached to any
post. Ordinarily, therefore, he could not have been directed to be regularized
in service having regard to the Constitution Bench decision of this Court in
Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors. [(2006) 4
SCC 1]. Reliance, however, has been placed by Mr. Mathur on paragraph
53 of the judgment which reads as under :
"One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa, R.N.
Nanjundappa and B.N. Nagarajan and referred to in para
15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees
have continued to work for ten years or more but without
the intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such
employees may have to be considered on merits in the
light of the principles settled by this Court in the cases
abovereferred to and in the light of this judgment. In that
context, the Union of India, the State Governments and
their instrumentalities should take steps to regularise as a
one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of the
courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being
now employed. The process must be set in motion within
six months from this date. We also clarify that
regularisation, if any already made, but not sub judice,
need not be reopened based on this judgment, but there
should be no further bypassing of the constitutional
requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme."
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Strong reliance has also been placed by Mr. Mathur upon a Division
Bench decision of this Court in Mineral Exploration Corpn. Employees’
Union vs. Mineral Exploration Corpn. Ltd. & Anr. [(2006) 6 SCC 310],
wherein, this Court, while following the case of Uma Devi & Ors. (supra),
invoked paragraph 53 of the said decision to opine :
"We, therefore, direct the Tribunal to decide the
claim of the workmen of the Union strictly in accordance
with and in compliance with all the directions given in
the judgment by the Constitution Bench in Secy., State of
Karnataka v. Umadevi (3) and in particular, paras 53 and
12 relied on by the learned Senior Counsel appearing for
the Union. The Tribunal is directed to dispose of the
matter afresh within 9 months from the date of receipt of
this judgment without being influenced by any of the
observations made by us in this judgment. Both the
parties are at liberty to submit and furnish the details in
regard to the names of the workmen, nature of the work,
pay scales and the wages drawn by them from time to
time and the transfers of the workmen made from time to
time, from place to place and other necessary and
requisite details. The above details shall be submitted
within two months from the date of the receipt of this
judgment before the Tribunal."
The question which, thus, arises for consideration, would be : Is there
any distinction between ’irregular appointment’ and ’illegal appointment’?
The distinction between the two terms is apparent. In the event the
appointment is made in total disregard of the constitutional scheme as also
the recruitment rules framed by the employer, which is State within the
meaning of Article 12 of the Constitution of India, the recruitment would be
an illegal one; whereas there may be cases where, although, substantial
compliance of the constitutional scheme as also the rules have been made,
the appointment may be irregular in the sense that some provisions of some
rules might not have been strictly adhered to.
In National Fertilizers Ltd. vs. Somvir Singh [(2006) 5 SCC 493], it
has been held :
"The contention of the learned counsel appearing
on behalf of the respondents that the appointments were
irregular and not illegal, cannot be accepted for more
than one reason. They were appointed only on the basis
of their applications. The Recruitment Rules were not
followed. Even the Selection Committee had not been
properly constituted. In view of the ban on employment,
no recruitment was permissible in law. The reservation
policy adopted by the appellant had not been maintained.
Even cases of minorities had not been given due
consideration.
The Constitution Bench thought of directing
regularisation of the services only of those employees
whose appointments were irregular as explained in State
of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T.
Thimmiah and B.N. Nagarajan v. State of Karnataka
wherein this Court observed: [ Umadevi (3) case 1 , SCC
p.24, para 16]
"16 . In B.N. Nagarajan v. State of Karnataka this
Court clearly held that the words ’regular’ or
’regularisation’ do not connote permanence and
cannot be construed so as to convey an idea of the
nature of tenure of appointments. They are terms
calculated to condone any procedural irregularities
and are meant to cure only such defects as are
attributable to methodology followed in making
the appointments."
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Judged by the standards laid down by this Court in
the aforementioned decisions, the appointments of the
respondents are illegal. They do not, thus, have any legal
right to continue in service."
In R.S. Garg vs. State of U.P. & Ors. [2006 (7) SCALE 405], it has
been held by this Court :
"The original appointment of 3rd respondent being
illegal and not irregular, the case would not come within
the exception carved out by the Constitution Bench.
Furthermore, relaxation, if any, could have been
accorded only in terms of Rule 28 of the Rules, Rule 28
would be attracted when thereby undue hardship in any
particular case is caused. Such relaxation of Rules shall
be permissible only in consultation with the Commission.
It is not a case where an undue hardship suffered by the
3rd respondent could legitimately been raised being
belonging to a particular class of employee. No such
case, in law could have been made out. It, in fact, caused
hardship to other employees belonging to the same
category, who were senior to him; and thus, there was
absolutely no reason why an exception should have been
made in his case."
{See also State of Gujarat & Anr. vs. Karshanbhai K. Rabari &
Ors. [(2006) 6 SCC 21].}
Yet, recently in Principal, Mehar Chand Polytechnic & Anr. vs.
Anu Lamba & Ors. [(2006) 7 SCC 161], it was held :
"The respondents did not have legal right to be
absorbed in service. They were appointed purely on
temporary basis. It has not been shown by them that
prior to their appointments, the requirements of the
provisions of Articles 14 and 16 of the Constitution had
been complied with. Admittedly, there did not exist any
sanctioned post. The Project undertaken by the Union of
India although continued for some time was initially
intended to be a time-bound one. It was not meant for
generating employment. It was meant for providing
technical education to the agriculturists. In the absence
of any legal right in the respondents, the High Court,
thus, in our considered view, could not have issued a writ
of or in the nature of mandamus."
We may, however, notice that in Mineral Exploration (supra), the
attention of this Court was not drawn to the earlier precedents including a
Three Judge Bench of this Court in B.N. Nagarajan & Ors. vs. State of
Karnataka & Ors. [(1979) 4 SCC 507].
The Labour Court, Industrial Tribunal as also the High Court,
therefore, was not correct in directing regularisation of service of the
respondent.
Our attention has been further drawn to the fact that by reason of an
Office Order dated 26.4.2004, the Award of the Labour Court as also the
High Court had been implemented by classifying the respondent as
permanent on the basis of daily wages clerk.
Yet again, by another Office Order dated 17.12.2004, the provisions
of Madhya Pradesh Revised Pay Rules, 1998 had been applied in his case.
The decision to implement the judgment was evidently subject to the
decision of this Court. But, the Special Leave Petition is barred by
limitation. The question, inter alia, which arises for consideration before us
is as to whether we should condone the delay or allow the respondent to
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continue to occupy the permanent post.
The legal position somehow was uncertain before the decision
rendered by the Constitution Bench of this Court in Uma Devi (supra). It
has categorically been stated before us that there was no vacant post in the
department in which the respondent could be reinstated. The State had also
adopted a policy decision regarding regularisation. The said policy decision
has also no application in the case of the respondent. Even otherwise, it
would be unconstitutional being hit by Article 16 of the Constitution of
India.
Keeping in view the peculiar facts and circumstances of this case, we
are of the opinion that the interest of justice would be sub-served if we direct
that any benefit which has already been given to the respondent shall not be
recovered. He is also directed to be paid a sum of Rs.1,50,000/- (One lakh
fifty thousand) towards compensation and costs for condoning the massive
delay in filing the Special Leave Petition.
The impugned judgments are set aside, subject to the directions
mentioned hereinbefore. This appeal is allowed. No costs.