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CASE NO.: Appeal (civil)  3982 of 2006

PETITIONER: State of Madhya Pradesh & Ors

RESPONDENT: Yogesh Chandra Dubey & Ors

DATE OF JUDGMENT: 08/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (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 :   

"(A)    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.

(B)     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:

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"......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."

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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:

"33. 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

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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.