Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 1265 of 2006
PETITIONER:
M.P. Housing Board & Anr
RESPONDENT:
Manoj Shrivastava
DATE OF JUDGMENT: 24/02/2006
BENCH:
S.B. Sinha & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) No. 27360 of 2004]
S.B. SINHA, J : .
Leave granted.
The Respondent was appointed on daily wages as a Sub-Engineer
(Civil) on or about 7.4.1995. On the premise that his services may be
terminated, he filed a writ petition whereupon by an order dated 25.4.2000,
the High Court directed the Appellant \026 Board to consider his case in the
light of the purported circulars issued by the State Government for scrutiny
of the daily rated employees. Upon the said direction, a scrutiny committee
was appointed which found that there had been no vacancy nor there existed
any sanctioned post. The Committee prior to coming to the aforementioned
opinion gave an opportunity of hearing to the Respondent. He thereafter
filed an application before the Labour Court purported to be in terms of
Section 31(3) read with Section 64-A of the Madhya Pradesh Industrial
Relations Act, 1960 (for short "the 1960 Act") praying that he be classified
in the permanent category on the ground that he had satisfactorily worked
for more than six months and, thus, became eligible therefor as provided
under Clause 2(i) of the Standard Standing Orders. The Labour Court by an
order dated 22.1.2002 allowed the said application holding:
"According to the discussion of issue No. 1 and 2 it has
been decided that the applicant is entitled to be
categorized in the permanent category on the post of Sub-
Engineer (Civil). Hence the non-applicant is ordered
from the date of submitting the application of applicant in
this Court from 10.5.2005 2 years prior from it the
applicant be categorized in permanent category.
Because the applicant had been appointed in daily wages
hence in the circumstances of the case and I do not
consider it proper to give benefit of salary of a permanent
category to the applicant. But, the applicant is entitled to
claim pay scale of permanent category from 10.5.2000
the date of submitting application before this Court."
An appeal was preferred thereagainst by the Appellants before the
Industrial Court, Jabalpur and by an order dated 16.10.2003, the same was
dismissed. A writ petition filed by the Appellant was also dismissed. By
reason of the impugned judgment, the Letters Patent Appeal filed by the
Appellant has also been dismissed.
Mr. B.S. Banthia, learned counsel appearing on behalf of the
Appellants submitted that the Respondent having been appointed as a daily
wager, he could not have been declared as a permanent employee as there
existed no clear vacancy. It was further submitted that only because the
Respondent had worked for more than 240 days by itself could not have
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
been a ground for issuance of a direction for the regularization in the service.
Mr. T.G. Narayanan Nair, learned senior counsel appearing on behalf
of the Respondent, on the other hand would draw our attention to a recent
decision of a Division Bench of this Court in State of Madhya Pradesh and
Ors. v. Onkar Prasad Patel [2005 (10) SCALE 153] and on the basis thereof
submitted that, in view of the definition of ’permanent employee’ as also
’temporary employee’, the appointment of the Respondent would come
within the purview thereof and, thus, on his completion of six months
satisfactory service, he would be entitled to either a temporary status or a
permanent status.
The Appellant \026 Board was constituted under M.P. Grih Nirman
Mandal Adhiniyam, 1972 (’1972 Act’). Indisputably, the terms and
conditions of employment of its employees are governed by a statute. The
State of Madhya Pradesh enacted the M.P. Industrial Relations Act, 1960
with a view to regulate the relations of employers and employees in certain
matters, to make provisions for settlement of industrial disputes and to
provide for matters connected therewith. In the year 1961, the State of
Madhya Pradesh also enacted the Madhya Pradesh Industrial Employment
(Standing Orders) Act, 1961 (for short "the 1961 Act") to provide for rules
defining with sufficient precision certain matters relating to the conditions of
employment of employees in the State of Madhya Pradesh.
’Permanent employee’ and ’temporary employee’ have been defined
in Clauses 2(i) and (vi) of Standard Standing Order made under 1961 Act
which read as under:
"(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 person with a view to obtain the status of a ’permanent employee’
must be appointed in terms of the statutory rules. It is not the case of the
Respondent that he was appointed against a vacant post which was duly
sanctioned by the statutory authority or his appointment was made upon
following the statutory law operating in the field.
The Labour Court unfortunately did not advert to the said question
and proceeded to pass its award on the premise that as the Respondent had
worked for more than six months satisfactorily; in terms of clause 2(i) of the
Standard Standing Order, he acquired the right of becoming permanent. For
arriving at the said conclusion, the Labour Court relied only upon the oral
statement made by the Respondent.
It is one thing to say that a person was appointed on an ad-hoc basis or
as a daily wager but it is another thing to say that he is appointed in a
sanctioned post which was lying vacant upon following the due procedure
freedom prescribed therefor.
It has not been found by the Labour Court that the Respondent was
appointed by the Appellant herein, which is a ’State’ within the meaning of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
Article 12 of the Constitution of India, upon compliance of the constitutional
requirements as also the provisions of the 1972 Act or the rules and
regulations framed thereunder.
In Mahendra L. Jain and Others v. Indore Development Authority and
Others [(2005) 1 SCC 639], this Court followed an earlier decision of this
Court in M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board [(2004) 9
SCC 755] wherein it was clearly held that when two statutory rules operate
in the field unless the rules and regulations framed by the statutory authority
are inconsistent with the provisions of the 1960 Act and the Rules framed
thereunder, provisions of both the statute are required to be followed,
holding :
"\005The 1973 Act or the Rules framed thereunder do not
provide for appointments on ad hoc basis or on daily
wages. The 1961 Act itself shows that the employees are
to be classified in six categories, namely, permanent,
permanent seasonal, probationers, badlies, apprentices
and temporary. The recruitments of the appellants do not
fall in any of the said categories. With a view to become
eligible to be considered as a permanent employee or a
temporary employee, one must be appointed in terms
thereof. Permanent employee has been divided in two
categories (i) who had been appointed against a clear
vacancy in one or more posts as probationers and
otherwise; and (ii) whose name had been registered both
at muster roll and who has been given a ticket of
permanent employee. A "ticket of permanent employee"
was, thus, required to be issued in terms of Order 3 of the
Standard Standing Orders. Grant of such ticket was
imperative before permanency could be so claimed. The
appellants have not produced any such ticket."
It was further held:
"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 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."
It was furthermore held:
"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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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."
A daily wager does not hold a post unless he is appointed in terms of
the Act and the rules framed thereunder. He does not derive any legal right
in relation thereto.
The effect of such an appointment recently came up for consideration
in State of U.P. v. Neeraj Awasthi and Others [ 2006 (1) SCC 667] wherein
this Court clearly held that such appointments are illegal and void. It was
further held:
"The fact that all appointments have been made without
following the procedure or services of some persons
appointed have been regularised in past, in our opinion,
cannot be said to be a normal mode which must receive
the seal of the court. Past practice is not always the best
practice. If illegality has been committed in the past, it is
beyond comprehension as to how such illegality can be
allowed to perpetuate. The State and the Board were
bound to take steps in accordance with law. Even in this
behalf Article 14 of the Constitution of India will have no
application. Article 14 has a positive concept. No
equality can be claimed in illegality is now well-settled.
[See State of A.P. v. S.B.P.V. Chalapathi Rao and
Others,(1995) 1 SCC 724, para 8, Jalandhar
Improvement Trust v. Sampuran Singh (1999) 3 SCC
494, para 13 and State of Bihar and Others v. Kameshwar
Prasad Singh and Another (2000) 9 SCC 94, para 30].
In the instant case, furthermore, no post was
sanctioned. It is now well-settled when a post is not
sanctioned, normally, directions for reinstatement should
not be issued. Even if some posts were available, it is for
the Board or the Market Committee to fill-up the same in
terms of the existing rules. They, having regard to the
provisions of the regulations, may not fill up all the
posts."
It is now well-settled that only because a person had been working for
more than 240 days, he does not derive any legal right to be regularized in
service. [See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and
Others, [(2005) 5 SCC 122], Executive Engineer, ZP Engg. Divn. And
Another v. Digambara Rao and others, [(2004) 8 SCC 262], Dhampur Sugar
Mills Ltd. v. Bhola Singh, [(2005) 2 SCC 470], Manager, Reserve Bank of
India, Bangalore v. S. Mani and Others, [(2005) 5 SCC 100] and Neeraj
Awasthi (supra)]
In State of Karnataka & Ors. v. KGSD Canteen Employees Welfare
Association & Ors. [(2006) 1 SCALE 85] it was held:
"The question which now arises for consideration
is as to whether the High Court was justified in directing
regularization of the services of the Respondents. It was
evidently not. In a large number of decisions, this Court
has categorically held that it is not open to a High Court
to exercise its discretion under Article 226 of the
Constitution of India either to frame a scheme by itself or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
to direct the State to frame a scheme for regularising the
services of ad hoc employees or daily wages employees
who had not been appointed in terms of the extant service
rules framed either under a statute or under the proviso to
Article 309 of the Constitution of India. Such a scheme,
even if framed by the State, would not meet the
requirements of law as the executive order made under
Article 162 of the Constitution of India cannot prevail
over a statute or statutory rules framed under proviso to
Article 309 thereof. The State is obligated to make
appointments only in fulfilment of its constitutional
obligation as laid down in Articles 14, 15 and 16 of the
Constitution of India and not by way of any
regularization scheme. In our constitutional schemes, all
eligible persons similarly situated must be given
opportunity to apply for and receive considerations for
appointments at the hands of the authorities of the State.
Denial of such a claim by some officers of the State times
and again had been deprecated by this Court. In any
view, in our democratic polity, an authority howsoever
high it may be cannot act in breach of an existing statute
or the rules which hold the field."
The appointment made by a person who has no authority therefor
would be void. A fortiori an appointment made in violation of the mandatory
provisions of the statute or constitutional obligation shall also be void. If no
appointment could be made in terms of the statute, such appointment being
not within the purview of the provisions of the Act would be void; he cannot
be brought within the cadre of permanent employees. The definitions of
’permanent employee’ and ’temporary employee’ as contained in the rules
must, thus, be construed having regard to the object and purport sought to be
achieved by the Act.
In State of Punjab v. Jagdip Singh & Ors. [1964 (4) SCR 964], a
Constitution Bench of this Court held that if no post was available at the
time when the respondent therein could be confirmed, such appointment
would be void. The effect of such void appointment has been held to be
conferring no legal right stating :
"\005When an order is void on the ground that the
authority which made it had no power to make it cannot
give rise to any legal rights, and as suggested by the
learned Advocate-General, any person could have
challenged the status of the respondents as Tahsildars by
instituting proceedings for the issue of a writ of quo
warranto under Article 226 of the Constitution. Had such
proceedings been taken it would not have been possible
for the respondents to justify their status as permanent
Tahsildars and the High Court would have issued a writ
of quo warranto depriving the respondents of their status
as permanent Tahsildars\005"
[See also Union Public Service Commission v. Girish Jayanti Lal Vaghela &
Others, 2006 (2) SCALE 115].
In Onkar Prasad Patel (supra), whereupon Mr. Nair placed strong
reliance, it was categorically held that an employee would not come within
the purview of definition of ’permanent employee’ only because he has
completed six months’ satisfactory service. The other requirement was that
the service must be rendered in a clear vacancy in one or more posts which
was established. The conditions were held to be cumulative and not
independent of each other. The said decision, therefore, runs counter to the
submission of the learned counsel.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
For the foregoing reasons, the impugned judgment cannot be
sustained which is set aside accordingly. The appeal is allowed. The order
of the Labour Court will stand set aside. However, in the facts and
circumstance of the case, there shall be no order as to costs.