State of M.P. & ANR.
Vs. Md. Abrahin  INSC 975 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3378 OF 2009 [Arising
out of SLP (Civil) No. 5295 of 2007] State of M.P. & Anr. ...Appellants
Versus Md. Abrahin ...Respondent
S.B. SINHA, J :
was appointed on the post of driver on daily-wage basis.
He was initially
appointed for 89 days. His services admittedly had not been regularized. He was
not placed in the category of a permanent employee in terms of the Standing
Order framed under Madhya Pradesh Industrial Relations Act, 1960 (for short
selection panel was prepared wherein the particulars of the employees in question
were recorded. We may notice the relevant entries:
"Sl. No. Name
& Date of Education Special Work in Father's name birth qualifications the
1. Shri Mohd. 10.7.57
- Driving 22.9.80 Ibrahim son of licence Shri Abdul Jabbar 2. Iqbal Singh
8.1.46 - Driving 27.1.80"
select list was prepared for appointment on a regular post of driver, upon
taking into consideration cases of eight employees, relevant portion whereof
reads as under:
"For the post of
Driver on daily wage, employees have been considered. Total 8 cases of
employees have been considered. 2 posts in Mandsour Sub- Division are vacant.
One post of reserved quota and one post from general category has to be filled
up. One post has to be filled up as there is no candidate from reserved quota.
1. Shri Iqbal Singh
Tuteja 2. Shri Mohd. Ibrahim..."
application under Sections 61 and 62 of the Act was filed by the respondent on
or about 11.07.1988 praying for his classification in 3 permanent category on
the post of driver. By reason of a judgment and order dated 6.10.1997, the
Labour Court allowed the said application, opining:
(i) As the appellants
had classified Iqbal Singh Tuteja who was junior to him in permanent category,
the respondent was discriminated against.
(ii) Having regard to
the admission made by the witnesses examined on behalf of the appellants that
despite the respondent having been working since 22.09.1980 but denied the
benefit of classification on a permanent post only because he was a daily-wage
employee, the said action was not justified.
(iii) As the
appellants did not produce the records in its possession, an adverse inference
should be drawn.
(iv) As there was no
difference in work of a driver as a daily wager and a work charged employee or
a regular employee, after the death of Iqbal Singh Tuteja, the appellant should
have been placed in the permanent category of a driver.
It was held:
4 "8. On the
basis of the above discussion, it is proved that the appointment of the
applicant was prior to the opposite party No. 3 Iqbal Singh Tuteja i.e. prior
to 22.9.80. The applicant being regular in the past and from 11.7.86 be given
the benefits of pay and benefits of a regular driver."
High Court, by reason of the impugned judgment, dismissed the writ petition
filed by the appellants, stating:
No. 3 Iqbal Singh has also died.
Service book of the
Respondent No. 3 has not been produced by the petitioners before the Labour
Court, neither they have specifically stated that what was the date of
engagement of the Respondent No. 3. It appears that they have deliberately
suppressed this fact before the Court.
After analyzing the
aforesaid factual position the Labour Court has held that the present
respondent in this petition is entitled for the post of regular driver with
effect from 11.7.1986. This finding of the Labour has also been upheld by the
S.K. Dubey, learned senior counsel appearing on behalf of the appellants, would
i. The Labour Court
and consequently the High Court committed a serious mistake insofar as they
failed to take into consideration that the respondent having not been appointed
on a regular basis and in terms of the recruitment rules and furthermore having
left his job for some time, and thus was 5 offered the job of a daily-wager at
a later stage, he could not have been classified in the permanent category.
ii. In any event,
Iqbal Singh Tuteja being senior to the respondent, the Selection Committee
cannot be said to have faulted in preparing a draft select list.
Annam D.N. Rao, learned counsel appearing on behalf of the respondent, on the
other hand, would urge:
a. Iqbal Singh Tuteja
having been in the seniority list below the respondent, there was no reason as
to why he should have been discriminated against.
b. Appellants having
not produced any document showing the respective working periods of two persons
from 1980 onwards, the impugned judgment should not be interfered with.
has not been denied or disputed before us that the respondent was appointed on
a daily-wage basis. He used to be appointed as a contingent employee for 89 days.
The period of
engagement of the respondent is stated to be as under:
1. From 22.09.1980 to
19.12.1980 on the post of driver 6
2. From 21.01.1981 to
28.02.1981 on the post of helper
3. From 1.07.1982 to
31.05.1983 on the post of driver
is, therefore, not correct to contend that the respondent was appointed in the
same category of employment for a long time. He had been appointed in different
categories of appointment at different points of time and at different places.
Furthermore, the documents produced by the parties before the Labour Court
itself showed that whereas the respondent had been working since 22.09.1980,
the aforementioned Iqbal Singh Tuteja had been working since 27.01.1980. Both
were placed at Serial No. 1. His date of birth was 8.01.1946 whereas the date
of birth of the respondent was 10.07.1957. Both were having their driving
licences. If on that premise, the selection committee comprising of three
senior officers of the appellants had classified the said Shri Iqbal Singh Tuteja
in the permanent category, in our opinion, no exception could be taken thereto.
is of some significance to note that even the respondent in his deposition
stated that the said Iqbal Singh Tuteja was appointed with him on the post of
driver. If that be so, his contention that he was senior to him cannot be
contended that Iqbal Singh Tuteja was junior to him, but there was no basis
therefor. Moreover, the question was not as to whether he worked on a daily
wager or a work-charged employee, the question was with regard to the mode of
No. 1 is a `State' within the meaning of Article 12 of the Constitution of
India. In making offers of public appointment, it is necessary to follow the
constitutional scheme laid down in Articles 14 and 16 of the Constitution of
India. For the purpose of legal and valid recruitment, the provisions of the
recruitment rules are required to be complied with. An appointment through side
door being an appointment in violation of Articles 14 and 16 of the
Constitution of India would be illegal.
It has been so held
by a Constitution Bench of this Court in Secretary, State of Karnataka and
Others v. Umadevi (3) and Others [(2006) 4 SCC 1] [See also Official Liquidator
v. Dayanand and Others (2008) 10 SCC 1, State of Bihar v. Upendra Narayan Singh
& Others, 2009 (4) SCALE 282.
contention raised on behalf of the appellants is, furthermore directly covered
by a decision of this Court in State of M.P. and Others v. Lalit Kumar Verma
[(2007) 1 SCC 575]. Respondent therein was appointed on daily wages. His
recruitment was not made in terms of the statutory rules. Even no offer of
appointment was issued. On the premise that he had worked continuously for a
period of more than six months, an award was passed by the Labour Court
directing his classification on a permanent basis.
The High Court also
dismissed the writ petition filed by the appellants. This Court opined:
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 with 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.
*** *** ***
The Labour Court, Industrial Tribunal as also the High Court, therefore, were
not correct in directing regularisation of service of the respondent.
18. 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
14. In view of the
aforementioned authoritative pronouncements, the impugned judgment cannot be
sustained which is set aside accordingly.
However, in the
event, if it is found that after the death of Iqbal Singh Tuteja the respondent
was otherwise entitled to classification in the permanent category, the
appellants shall be well advised to accord him the said status.
appeal is allowed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
[Dr. Mukundakam Sharma]