State
of M.P. & Ors Vs. Lalit Kumar Verma
[2006] Insc 860 (24
November 2006)
S.B.
Sinha & Markandey Katju 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:
"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 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." 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." 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 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.
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