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CASE NO.: Appeal (civil)  4856 of 2007

PETITIONER: State of Uttranchal and Anr

RESPONDENT: Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad

DATE OF JUDGMENT: 12/10/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) NO.17823 OF 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Uttaranchal High Court dismissing  the writ petition filed by the appellants.

3.      The factual position in a nutshell is as follows:-  

    On the basis of a dispute raised, reference was made to  the Labour Court, Haldwani, Uttar Pradesh, referring the  following question for adjudication:-            \023Whether the non-regularization of 14  members mentioned in the Schedule by the  employers is improper or unjustified? If yes, to  what relief/benefit the concerned workmen are  entitled, from which date and with what other  details?\024            The employer took the stand that the concerned  workmen were being engaged from time to time on temporary  basis and wages and other benefits as admissible were being  paid. The question of any regularization does not arise. The  Labour Court found that the employees were not regularized  because of non-creation of posts by the Government. Stand of  the workmen was that several permanent posts were lying  vacant in the Irrigation Department. The Labour Court  accordingly directed that salary and other benefits ought to be  paid to the concerned workers while considering them regular  with effect from the date of judgment of the Labour Court. It  was, accordingly, held that non-regularization was illega1.        4.      A writ petition was filed before the Uttaranchal High  Court which was dismissed by the impugned order. The High  Court was of the view that all the 14 workmen, in question,  were working on daily wages for more than six years and had  completed 240 days in each calendar year and they ought to  be regularized. Accordingly, the writ petition was dismissed.

5.      In support of the appeal, learned counsel for the  appellant submitted. that the directions given by the Labour  Court and the High Court were clearly contrary to what has  been stated by a Constitution Bench of this Court in

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Secretary, State of Karnataka and Ors. Vs. Uma Devi (3) and  Ors. (2006 (4) SCC 1).       6.      Learned counsel for the respondent, on the other hand,  submitted that the concerned workmen had worked for more  than 240 days in each of the six years they were engaged.  Therefore, they were entitled to be regularized.

7.      With reference to the order of the Labour Court, it is  submitted that payments were being made to them on the  basis of sanctioned wages. From this, it was contended, it is  clear that there were sanctioned posts.       8.      In Uma Devi\022s case (supra), the issue relating to  regularization was examined at length. It was essentially held  that there was no question of any automatic regularization.       9.      In B.N. Nagarajan & Ors. v. State of Karnataka & Ors.  (1979) 4 5CC 507), it was held that the words \023regular\024 or  \023regularization\024 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. Further, when rules framed under Article  309 of the Constitution of India are in force, no regularization  is permissible in exercise of the executive powers of the  Government under Article 162 thereof in contravention of the  rules. This view has been approved by the Constitution Bench  in Uma Devi\022s case (supra) at para 16.  It was emphasized here  that only something that is irregular for want of compliance  with one of the elements in the process of selection which does  not go to the root of the process, can be regularized and that it  alone can be regularized and granting permanence of  employment is totally different and cannot be equated with  regularization.

10.     The next question which requires consideration is  whether completion of 240 days in a year confers any right on  an employee or workman to claim regularization in service.  In  Madhyamik Shiksa Parishad v. Anil Kumar Mishra & Ors.  (2005 (5) SCC 122), it was held that the completion of 240  days\022 work does not confer the right to regularization under  the Industrial Disputes Act. It merely imposes certain  obligations on the employer at the time of termination of the  service.  In M.P. Housing Board and Anr. v. Monoj Srivastava  (2006 (2) SCC 702) (paragraph 17) after referring to several  earlier decisions it has been re-iterated that it is well settled  that only because a person had been working for more than  240 days, he does not derive any legal right to be regularized  in service.  This view has been reiterated in Gangadhar Pillai    v. Siemens Ltd. (2007 (1) SCC 533). The same question has  been examined in considerable detail with reference to  employee working in a Government Company in Indian Drugs  and Pharmaceuticals Ltd. v. Workman, Indian Drugs &  Pharmaceuticals Ltd. (2007 (1) SCC 408) and paragraphs 34  and 35 of the judgment are being reproduced below:-

\02334. Thus, it is well settled that there is no  right vested in any daily wager to seek  regularization. Regularization can only be  done in accordance with the rules and not de  hors the rules. In the case of E.  Ramakrishnan and Ors. v. State of Kerala  and Ors. (1996) 10 5CC 565) this Court held

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that there can be no regularization de hors  the rules. The same view was taken in Dr.  Kishore v. State of Maharashtra (1997) 3 SCC  209) and Union of India and Ors. v.  Bishambar Dutt (1996) 11 SCC 341). The  direction issued by the Services Tribunal for  regularizing the services of persons who had  not been appointed, on regular basis in  accordance with the rules was set aside  although the petitioner had been working  regularly for a long time.

35.     In Dr. Surinder Sinqh Jamwal and Anr.  v. State of Jammu & Kashmir and Ors. (AIR  1996 SS 2775), it was held that ad hoc  appointment, does not give any right for  regularization as regularization is governed  by the statutory rules.            The above position was highlighted in Hindustan  Aeronautics Ltd. v. Dan Bahadur Singh and Ors. (2007 (6)  SCC 207).            It is not in dispute that some of the concerned workmen  have been regularized. Before any direction for regularization  can be given, the factual position has to be noted as to  whether there was any sanctioned post. Apparently, in the  present case, these factual details have not been discussed by  either the Labour Court or the High Court. We, therefore,  remit the matter to the Tribunal to consider the factual  background and to decide the matter afresh in the light of  what has been stated in Uma Devi\022s case (supra) and  Hindustan Aeronautics case (supra).

    The appeal is al1owed to the aforesaid extent with no  order as to costs.