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CASE NO.: Appeal (civil)  4262 of 1999

PETITIONER: State of Maharashtra and Ors.                            

RESPONDENT: R.S. Bhonde and Ors.                                             

DATE OF JUDGMENT: 17/08/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       State of Maharashtra and the Punjabrao Krishi  Vidyapeeth (hereinafter referred to as the ’University’)  question legality of the judgment rendered by a Division  Bench of the Bombay High Court, Nagpur Bench.  By the  impugned judgment the High Court directed that there was no  necessity for obtaining approval of the State Government for  the purpose of treating the respondents (hereinafter  referred to as the ’employees’) as the permanent employees  w.e.f. 7.11.1983 and that they are entitled to all benefits  from that date as permanent employees.    

       Background facts in a nutshell are as follows:

       The respondents and several others, who according to  the appellants were engaged on seasonal basis, approached  the Industrial Court, Maharashtra, Nagpur Bench, Nagpur by  filing complaint purportedly under Section 28 read with Item  6 of Schedule IV of the Maharashtra Recognition of Trade  Unions and Prevention of Unfair Labour Practices Act, 1971  (hereinafter referred to as the ’Act’). The case of the  complainants was that they were continuously working with  the present appellant no.2-University in the College of  Agriculture, Nagpur without any break in service as daily- wagers. The nature of duties performed by them is of  permanent nature. Even though they were being continued as  temporary employees, they attended work of permanent nature.  According to them this practice was being followed to  deprive them from getting benefits which a permanent workman  is entitled and this amounted to unfair labour practice  under Item 6 of Schedule IV of the Act.  Prayer was made to  restrain the University and the College from continuing with  the unfair labour practice complained of and to make the  complainants permanent in the post they were working.  Stand  of the University and the College was that by itself it  cannot create permanent posts as the State Government has to  be approached for this purpose.  It was pointed out that the  State Government was approached for making 140 labourers  permanent. The Industrial Court held that there was unfair  labour practice and directed the respondents i.e. the  University and the College to make the complainants  permanent subject to the approval of the State Government.  Stand taken by the University was with reference to Section  50(B) of the Punjabrao Krishi University (Krishi Vidyapeeth)

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Act, 1968 (in short the ’University Act’). Six writ  petitions were filed by the University questioning  correctness of the judgment rendered by the Industrial  Court. A learned Single Judge of the High Court of the  Bombay High Court, Nagpur Bench in Writ Petition no.  143/1983 along with writ petition nos. 170/1983, 1171/1982,  1172/1982, 1173/1982 and 1174/1982 held that the order  passed in the complaint cases was to be modified to the  extent that for the words "subject to the approval of the  State Government" in each of the case the words "subject  to the prior approval of the State Government" were to be  substituted.                                

       Thereafter, ten persons who are respondents herein  filed a writ petition before the High Court to implement the  order of the Industrial Court. By the impugned judgment the  High Court held that the Industrial Court’s order was to be  modified by excluding the words "subject to the approval of  the State Government". Accordingly, directed that all the  respondents were to be treated as permanent employees with  all benefits w.e.f. 7.11.1983 i.e. the day on which Section  50(B) of the University Act was repealed by Maharashtra  Agricultural Universities (Krishi Vidyapeeth) Act, 1983 in  (short the ’1983 Act’).  According to the High Court there  was no provision similar to Section 50(B) of the Act in 1983  Act and, therefore, the question of any approval much less  prior approval of the State Government did not arise.  

       Learned counsel for the appellants submitted that the  order dated 25th July, 1983 by which writ petition no.  143/83 and other cases were disposed had attained finality.  Merely because the provision which was in operation when the  order of the Industrial Court was passed had subsequently  been repealed, same was really of no consequence.

       Per contra, learned counsel for the respondent  submitted that the direction of the High Court is in order  keeping in view the fact that the University at all points  of time had taken the stand that it had a scheme for  regularization.   

       It is to be noted that the University as revealed from  the affidavits filed before the High Court, had stated that  more than 3,000 workers were engaged from time to time on  daily-wages basis, besides 970 workers working on regular  basis.  Whenever a post fell vacant or newly created with  the approval of the competent authority and following due  procedure the vacancies are filled up from amongst those who  are on daily-wages according to their zone-wise seniority  list separately maintained for Nagpur and Amaravati zones.  This position is not disputed by the respondents. That being  so, the order of the High Court is clearly untenable on more  than one counts. Firstly, the order in writ petition no.  143/83 and other connected cases dated 25th July, 1983 had  become final and there was no challenge to it.  Prayer in  the subsequent writ petition to enforce Industrial Court’s  Order is clearly not maintainable. Merely because Section  50(B) of the Act was repealed that did not take away the  effect of the order passed by the High Court in the earlier  cases.  The prayer for enforcement of the Industrial Court’s  order in its original form could not have been made, when  the same had been modified by the High Court’s order which  had attained finality.     

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       Additionally, as observed by this Court in Mahatma  Phule Agricultural University and Ors. v. Nazsik Zilla Sheth  Kamgar Union and Ors. (2001 (7) SCC 346) the status of  permanency cannot be granted when there is no post.  Again  in Ahmednagar Zilla Shetmajoor Union v. Dinkar Rao Kalyanrao  Jagdale (2001 (7) SCC 356), it was held that mere  continuance every year of seasonal work obviously during the  period when the work was available does not constitute a  permanent status unless there exists posts and   regularization is done.

       Above being the position the impugned judgment of the  High Court cannot be maintained and is set aside.  It is,  however, not in dispute that except respondent no.8 who has  died in the meantime the others have been at points of time  regularized.  The regularization shall take effect from the  respective dates of order in that regard as passed by the  authority and not from 7.11.1983 as directed by the High  Court.   

       The appeal is allowed to the aforesaid extent without  any order as to costs.