State
Of Madhya Pradesh & Ors Vs. Yogesh Chandra Dubey
& Ors [2006] Insc 571 (8 September 2006)
S.B.
Sinha & Dalveer Bhandari
(Arising
out of SLP (C) No.3793 of 2006) S.B. Sinha, J.
Leave
granted.
Whether
the respondents, who were engaged on daily wages, are entitled to claim minimum
of the pay scale attached to the post in which they had been working with
applicable allowances, is the question involved in this appeal, which arises
out of a judgment and order dated 4th August, 2004 passed by the High Court of
Madhya Pradesh, Indore Bench in Writ Petition No.6640/2003. The respondents
were appointed on daily wages. The amount of daily wages at the rate of
Rs.97.14p. was fixed by the Collector of District. They are not appointed upon
compliance of the statutory rules. No advertisement was issued. Vacancies were
also not notified to the Employment Exchange.
On the
premise that they are entitled to regularisation of their services, they filed
an original application before the Madhya Pradesh State Tribunal, inter alia,
praying for the following reliefs :
-
" Order be
passed for payment of Pay Scale for Assistant Grade Post Regular (except
increment in salary benefit) from the date of filing the case before this Hon'ble
Tribunal from the Respondents in view of the orders passed by Hon'ble M.P.
State Administrative Tribunal Bhopal dated 15.12.97 Annexure A-6.
-
That the
respondents be directed that Respondent should take appropriate action for regularising
the applicant as Assistant Grade III Post within the prescribed time
period." In the said proceedings, the appellant inter alia, contended that
the respondents having not been engaged on any vacant post, payment of salary
on a regular scale of pay is impermissible in law. The posts of Assistant Grade
III, it was pointed out, are filled up in terms of the procedures provided laid
down in the Recruitment Rules known as Madhya Pradesh Public Health Engineering
Department (Non-Gazetted) Service (Conditions of Service and Recruitment)
Rules, 1976. All recruitments, therefore, were required to be made strictly in
terms thereof.
By
reason of an order dated 1.1.2002, the Tribunal directed:
"......In
similar cases the Tribunal has given the relief to the applicants which the
applicant's counsel is seeking.
Therefore,
this petition is disposed off with the direction that the applicants shall be
paid the wages at the minimum of the pay scale of the post on which they are
working along with applicable allowances but without the benefit of increments
with effect from the date of filing of this petition. Provided these possess
the minimum qualification for the post." Evidently, the Tribunal issued
the said directions on the basis of an earlier order dated 15.12.1997 passed by
it in Original Application No.400/1994.
A writ
petition filed by the appellant herein before the High Court was dismissed by
reason of the impugned judgment following an earlier decision of the Division
Bench of the same court.
Mr.
S.K. Dubey, learned Senior Counsel appearing on behalf of the appellants raised
a short contention in support of this appeal. It was urged that the respondents
could have claimed salary on a regular scale of pay if they had a legal right
to be regularised in service. The respondents, it was contended, do not hold a
post and therefore, the impugned judgment cannot be sustained.
Mr. Vimal
Chandra Dave, learned counsel appearing on behalf of the respondents, on the
other hand, submitted that respondents were entitled to the same scale of pay
as are being paid to the holders of Assistant Grade III on the basis of
'doctrine of equal pay for equal work'.
It is
neither in doubt nor in dispute that the respondents were not appointed in
terms of the statutory rules. Their services were taken by the officers only to
meet the exigencies of situation. No post was sanctioned.
Vacancies
were not notified. It is now trite that a State within the meaning of Article
12 of the Constitution of India, while offering public employment, must comply
with the constitutional as also statutory requirements.
Appointments
to the posts must be made in terms of the existing rules.
Regularisation
is not a mode of appointment. If any recruitment is made by way of regularisation,
the same would mean a back-door appointment, which does not have any legal
sanction.
In
State of Karnataka & Ors. vs. KGSD Canteen
Employees' Welfare Assn. & Ors. [(2006) 1 SCC 567], this Court laid down
the law in the following terms :
"The
contention that at least for the period they have worked they were entitled to
the remuneration in the scale of pay as that of the government employees cannot
be accepted for more than one reason. They did not hold any post. No post for
the canteen was sanctioned by the State. According to the State, they were not
its employees. Salary on a regular scale of pay, it is trite, is payable to an
employee only when he holds a status. (See Mahendra L. Jain v. Indore Development Authority (2005) 1 SCC
639.)
The
High Court was, thus, not correct in holding that the members of the first
respondent could be treated on par with the Hospitality Organisation of the
State of Karnataka. Such equation is impermissible in
law. In the Hospitality Organisation of the State, the posts might have been
sanctioned. Only because food is prepared and served, the same would not mean
that a canteen run by a Committee can be equated thereto."
A
person, who had been appointed by a State upon following the Recruitment Rules,
enjoys a status. A post must be created and/or sanctioned before filling it up.
The question recently came up for consideration in M.P. Housing Board & Anr.
vs. Manoj Shrivastava [(2006) 2 SCC 702], wherein it was 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
regularis+ation itself does not imply permanency. We have used the term keeping
in view the provisions of the 1963 Rules." It was further opined :
"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." Therein the question which arose for consideration was
: 'As to whether the respondents therein was a permanent employee within the
meaning of Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961?'
It was observed :
"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(vi) of the Standard Standing Orders, 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." The matter fell for consideration also in BHEL
& Anr. vs. B.K. Vijay & Ors. [(2006) 2 SCC 654], wherein it was held :
"In
terms of the proviso appended to Rule 5, the decision of the State Government,
in any dispute raised as regards the status of the Safety Officer, is to be
final.
The
respondent did not raise such a dispute. He made representations only after the
judgment was passed in the criminal case. In the criminal case the learned
Chief Judicial Magistrate imposed a fine of Rs.500 on the persons who were
accused therein. Despite the finding in the said criminal case, it was open to
the appellant to contend before the State Government that having regard to the
facts and circumstances of this case, the respondent was not entitled to the
remunerations payable to Senior Executive Officer.
In P. Ramanatha
Aiyar's Advance Law Lexicon, 3rd Edn. Vol.4, at p.4469, the expression
"status" has been defined as under:
"Status
is a much discussed term which, according to the best modern expositions,
includes the sum total of a man's personal rights and duties (Salmond, Jurisprudence
253, 257), or, to be verbally accurate, of his capacity for rights and duties.
(Holland, Jurisprudence 88).
The
status of a person means his personal legal condition only so far as his
personal rights and burdens are concerned. Duggamma v. Ganeshayya, AIR 1965 Mys
97 at 101. [Indian Evidence Act (1 of 1872), Section 41.] In the language of
jurisprudence status is a condition of membership of a group of which powers
and duties are exclusively determined by law and not by agreement between the
parties concerned. (Roshan Lal Tandon v. Union of India, 1967 SLR 832)."
The said expression has been defined in Black's Law Dictionary meaning :
"Standing;
state or condition; social position. The legal relation of individual to rest
of the community. The rights, duties, capacities and incapacities which
determine a person to a given class. A legal personal relationship, not
temporary in its nature nor terminable at the mere will of the parties, with
which third persons and the state are concerned." Only because a person is
given a particular status, the same would not mean that his other terms and
conditions of service would not be governed by the contract of employment or
other statute(s) operating in the field. We may notice that a three-Judge Bench
of this Court in Indian Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena
& Ors. [(1999) 6 SCC 439] observed as under: (SCC p.449, para 22)
"[We] hold that the workmen of a statutory canteen would be the workmen of
the establishment for the purpose of the Factories Act only and not for all
other purposes." {See also Municipal Council, Sujanpur vs. Surinder Kumar
[JT 2006 (5) SCALE 505].} As the respondents did not hold any post, in our
opinion, they are not entitled to any scale of pay.
However,
keeping in view the peculiar facts and circumstances of this case, we may
observe that the State should take steps to fill up the vacant posts, if any,
as expeditiously as possible, in which event, the cases of the respondents may
be considered together with other eligible candidates.
However,
age bar, if any, to the extent they had worked with the appellants may be
relaxed.
The
appeal is allowed on the above terms. No costs.
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