REPORTABLE

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

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Respondent 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 “the Act”).

3. A  selection  panel  was  prepared  wherein  the  particulars  of  the  

employees in question were recorded.  We may notice the relevant entries:

“Sl. No. Name  &  Father’s name

Date  of  birth

Education Special  qualifications

Work  in  the  department  since

1. Shri  Mohd.  Ibrahim son of  Shri  Abdul  Jabbar

10.7.57 - Driving  licence

22.9.80

2. Iqbal  Singh  Tuteja

8.1.46 - Driving  licence

27.1.80”

4. A 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…”

5. An 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  

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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:

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“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.”

6. The High Court, by reason of the impugned judgment, dismissed the  

writ petition filed by the appellants, stating:

“4. Respondent 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 Industrial  Tribunal.”

7. Mr. S.K. Dubey, learned senior counsel appearing on behalf of the  

appellants, would contend:

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  

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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.

8. Mr.  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.

9. It 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

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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  

10. It  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.

11. It  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 accepted.

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Respondent 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 appointment.   

12. Appellant 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.

13. The  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  

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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:

“12.  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 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.

*** *** *** 17. 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  wages clerk.”

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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.

15. The appeal is allowed.  However, in the facts and circumstances of the  

case, there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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