of Maharashtra & Ors Vs. R.S. Bhonde & Ors
 Insc 422 (17
Pasayat & H.K. Sema Arijit Pasayat, J.
of Maharashtra and the Punjabrao Krishi Vidyapeeth
(hereinafter referred to as the 'University') question legality of the judgment
rendered by a Division Bench of the Bombay High Court, Nagpur Bench. By the
impugned judgment the High Court directed that there was no necessity for
obtaining approval of the State Government for the purpose of treating the
respondents (hereinafter referred to as the 'employees') as the permanent
employees w.e.f. 7.11.1983 and that they are entitled to all benefits from that
date as permanent employees.
facts in a nutshell are as follows:
respondents and several others, who according to the appellants were engaged on
seasonal basis, approached the Industrial Court,
Maharashtra, Nagpur Bench, Nagpur by filing complaint purportedly
under Section 28 read with Item 6 of Schedule IV of the Maharashtra Recognition
of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
(hereinafter referred to as the 'Act'). The case of the complainants was that
they were continuously working with the present appellant no.2-University in
the College of Agriculture, Nagpur without any break in service as
daily- wagers. The nature of duties performed by them is of permanent nature.
Even though they were being continued as temporary employees, they attended
work of permanent nature.
to them this practice was being followed to deprive them from getting benefits
which a permanent workman is entitled and this amounted to unfair labour
practice under Item 6 of Schedule IV of the Act. Prayer was made to restrain
the University and the College from continuing with the unfair labour practice complained
of and to make the complainants permanent in the post they were working. Stand
of the University and the College was that by itself it cannot create permanent
posts as the State Government has to be approached for this purpose. It was
pointed out that the State Government was approached for making 140 labourers
permanent. The Industrial
Court held that there
was unfair labour practice and directed the respondents i.e. the University and
the College to make the complainants permanent subject to the approval of the
taken by the University was with reference to Section 50(B) of the Punjabrao Krishi University (Krishi Vidyapeeth) Act, 1968 (in
short the 'University Act'). Six writ petitions were filed by the University
questioning correctness of the judgment rendered by the Industrial Court. A learned Single Judge of the High
Court of the Bombay High Court, Nagpur Bench in Writ Petition no.
along with writ petition nos. 170/1983, 1171/1982, 1172/1982, 1173/1982 and 1174/1982
held that the order passed in the complaint cases was to be modified to the
extent that for the words "subject to the approval of the State
Government" in each of the case the words "subject to the prior
approval of the State Government" were to be substituted.
ten persons who are respondents herein filed a writ petition before the High
Court to implement the order of the Industrial Court. By the impugned judgment the High Court held that the Industrial Court's order was to be modified by
excluding the words "subject to the approval of the State
Government". Accordingly, directed that all the respondents were to be
treated as permanent employees with all benefits w.e.f. 7.11.1983 i.e. the day
on which Section 50(B) of the University Act was repealed by Maharashtra
Agricultural Universities (Krishi Vidyapeeth) Act, 1983 in (short the '1983
Act'). According to the High Court there was no provision similar to Section
50(B) of the Act in 1983 Act and, therefore, the question of any approval much
less prior approval of the State Government did not arise.
counsel for the appellants submitted that the order dated 25th July, 1983 by which writ petition no. 143/83
and other cases were disposed had attained finality.
because the provision which was in operation when the order of the Industrial Court was passed had subsequently been
repealed, same was really of no consequence.
contra, learned counsel for the respondent submitted that the direction of the
High Court is in order keeping in view the fact that the University at all
points of time had taken the stand that it had a scheme for regularization.
to be noted that the University as revealed from the affidavits filed before
the High Court, had stated that more than 3,000 workers were engaged from time
to time on daily-wages basis, besides 970 workers working on regular basis.
Whenever a post fell vacant or newly created with the approval of the competent
authority and following due procedure the vacancies are filled up from amongst
those who are on daily-wages according to their zone-wise seniority list
separately maintained for Nagpur and Amaravati
position is not disputed by the respondents. That being so, the order of the
High Court is clearly untenable on more than one counts. Firstly, the order in
writ petition no. 143/83 and other connected cases dated 25th July, 1983 had
become final and there was no challenge to it. Prayer in the subsequent writ
petition to enforce Industrial
Court's Order is
clearly not maintainable. Merely because Section 50(B) of the Act was repealed
that did not take away the effect of the order passed by the High Court in the
earlier cases. The prayer for enforcement of the Industrial Court's order in its original form could not have been made, when
the same had been modified by the High Court's order which had attained
as observed by this Court in Mahatma Phule Agricultural University and Ors. v. Nazsik Zilla Sheth Kamgar
Union and Ors. (2001 (7) SCC 346) the
status of permanency cannot be granted when there is no post. Again in Ahmednagar
Zilla Shetmajoor Union v. Dinkar Rao Kalyanrao Jagdale (2001 (7) SCC 356), it
was held that mere continuance every year of seasonal work obviously during the
period when the work was available does not constitute a permanent status
unless there exists posts and regularization is done.
being the position the impugned judgment of the High Court cannot be maintained
and is set aside. It is, however, not in dispute that except respondent no.8
who has died in the meantime the others have been at points of time
regularized. The regularization shall take effect from the respective dates of
order in that regard as passed by the authority and not from 7.11.1983 as
directed by the High Court.
appeal is allowed to the aforesaid extent without any order as to costs.