M.P.
Housing Board & Anr Vs. Manoj Shrivastava [2006] Insc 100 (24 February 2006)
S.B.
Sinha & P.K. Balasubramanyan
[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 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 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 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 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 :
"The
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
-
who had been
appointed against a clear vacancy in one or more posts as probationers and
otherwise; and
-
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
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
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 :
"When
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"
[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.
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.
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