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CASE NO.: Appeal (civil)  5873 of 2007

PETITIONER: C.S. Azad Krishi Evem Prodyogiki Vishwa.

RESPONDENT: United Trades Congress & Anr.

DATE OF JUDGMENT: 13/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising out of  SLP (Civil) No. 4677 of 2007] S.B. SINHA, J :          1.      Leave granted.

2.      This appeal is directed against the judgment and order dated  7.03.2006 passed by a learned Single Judge of the Allahabad High Court  dismissing the writ petition filed by the appellant from an award dated  30.05.1998 passed by the Presiding Officer, Industrial Tribunal (3) U.P.  Kanpur.

3.     Appellant is a University created under the Uttar Pradesh (Krishi  Evam Prodyogik Vishwavidyalaya Adhiniyam) Act, 1958 (for short \023the  Act\024). The service conditions of the employees of the University are  governed thereby as also by the statute framed thereunder.  Its basic object  was to undertake various training and projects for the betterment of  agriculture.  For the said purpose, it employs persons from time to time;  sometimes project-wise.   

4.      Admittedly, Respondent No. 2 herein was appointed on daily-wages  by the University on 1.07.1980.  He was being paid wages on a daily basis.   He worked as a Laboratory Assistant \026 cum \026 Attendant which is a Class IV  post.  The job of Assistant Clerk, however, was being taken from him on and  from 1.11.1991.  His remuneration was being paid at the rate of Rs. 40/- per  day.

5.      Respondent No. 1 which is a trade union,  raised an industrial dispute  on behalf of the respondent No. 2 on the premise that his services had not  been regularized by the University.  Pursuant thereto, a reference was made  by the appropriate Government which reads as under:

\023Whether the employer by not declaring the  employment of its employee Kalyan Sharan, S/o  Shiv Dutt working as a clerk permanent did  commit illegality?  If yes whether the concerned  employee is the rightful claimant to the benefits  (reliefs) and from which date and with what  reason?   6.      The Presiding Officer, Industrial Tribunal (3), UP, to whom the said  reference was made, inter alia  having regard  to an order passed by the High  Court on a concession made by the learned counsel for the University in a  writ petition filed by other employees of the University, by an award dated  30.05.1998 directed:

\023\005Thus it is being completely proved that the  employer has been taking work from the  concerned worker from 1.11.91 continuously as a

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Clerk however he is being paid salary on a daily  wage basis as a daily wage employee which is  highly unfortunate, improper and illegal and the  concerned worker as per the nature of his work is  rightly entitled to be made permanent and  regularized in the post of Clerk/ typist keeping in  view the nature of the work which he is doing  now.

       After having considered the written  statements, counter replies, documents, and  deposition of witnesses and after hearing the  arguments of both the sides I have come to the  conclusion finally that the employer of the  concerned worker Kalyan Sharan S/o Shiv Dutt,  post \026 Clerk having not declared the concerned  worker as regularized and permanent is an  illegality and is wrong.  Thus, it is my decision in  this dispute is that the employer while declaring  the concerned worker permanent should extend  him all the benefits due to him from the day of this  Order.\024   7.      Validity of the said award was questioned by the appellant before the  Allahabad High Court which by reason of the impugned judgment has been  dismissed by a learned Single Judge of the Court, holding:

\023After perusal of the judgment passed by the  Labour Court it is clear that the Labour Court has  considered each and every aspect and has come to  the conclusion that in spite of the fact that  respondent workman is working from 1980 and is  being treated as daily wager, this clearly amounts  to unfair labour practice.  The finding recorded by  the Labour Court is a finding of fact in view of the  judgment reported in 2005 (3) SCC 193,  Management of Madurakantam Cooperative Sugar  Mills Ltd. Vs. S. Vishwanathan, the Apex Court  has clearly held that there is very little scope of  interference in the finding recorded by the Labour  Court.  The finding recorded by the Labour Court  is a finding of fact and unless and until it is proved  beyond doubt that the Labour Court has exceeded  its jurisdiction and the finding recorded by the  Labour Court is against the evidence on record and  is perverse then the High Court while exercising  the jurisdiction under Article 226 of the  Constitution of India has the jurisdiction to  interfere otherwise there is very little scope for  interference.\024

8.      Dr. R.G. Padia, learned senior counsel appearing on behalf of the  appellant, in support of this appeal,  would submit that the impugned award  as also the judgment and the order of the High Court are wholly  unsustainable inasmuch as :

(i)     The appointment of the respondent No. 2 having been made  de\022hors the statutory rules, no direction for regularization could  have been issued. (ii)    The Industrial Tribunal could not direct regularization of a Class  III employee, particularly, when the respondent No. 2 had not  worked for a long time in the said post. (iii)   The Industrial Court cannot grant a declaratory decree.   

9.      Mr. S. Chandra Shekhar, learned counsel appearing on behalf of the

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respondents, on the other hand, would submit:

(i)     Respondent No. 2 having been working against a permanent  vacancy both as a Laboratory Assistant which is a Class IV post  and as an Assistant Clerk which is a Class III post for a long time,  the Industrial Court acted within its jurisdiction in passing the  impugned award. (ii)    As pursuant to the order passed by the High Court in another writ  petition,  the services of those who were junior to the respondent  No. 2 were regularized, he was also entitled to a similar benefit.   

10.     Concededly, Appellant is a University constituted by a statute.  Who  would be the officers and authorities of the University is specified in Section  8 of the Act.  The competent authority of the University has made \021Statutes\022  in terms of the provisions of the Act.  The matter relating to appointment of  staff is governed by Chapter XIII of the Statutes framed by the University,  providing that all appointments shall be made strictly on the basis of merit.   For the purpose of appointing different categories of employees, provisions  have been made for constitution of selection committees.          Statute 10 reads as under:

\02310. Appointments of all other staff not  specifically provided for in the Act of these  Statutes shall be made by the Kulpati with the  approval of the Board except the following posts  which may be filed by the Kulpati without  reference to the Board namely; (a)     The non-teaching posts carrying a scale the  maximum of which does not exceed Rs. 450/-  including those which are filled by obtaining  services of a person on deputation for a period  upto three years from a regularly constituted  service of State or Central Government or an  autonomous body constituted by the State or  Central Government.  The upper limit of Rs. 450/-  will be subject to alteration from time to time, by  the resolutions of the Board of management, on the  basis of rationalization or enhancement occurring  on the basis of the decision of the Government.

(b)     The posts for which the Kulpati is the  appointing authority under the provisions of the  Act.\024   11.     The University Statute does not provide for appointment on daily-  wages or on an adhoc basis.  Respondent No. 2 in his written statement filed  before the Industrial Court did not make any averment that he had been  appointed in terms of the provisions of the statute or prior thereto any  advertisement therefor was made.  According to him, he being a hard  working, honest, efficient and eligible employee, was \021entrusted\022 with the  work of a Clerk from 1.11.1991.  In his written statement, it was averred:

\0235. That though the worker was working against a  permanent vacant post as a clerk in a permanent  manner, however, the employer is not giving him  the actual scale of pay and other allowances and  benefits as that of a permanent clerk.  However, he  is still considered as a daily wager inspite of  having worked since last 14 years continuously,  which is illegal and wrong.\024

12.    A feeble attempt, however, was made by the learned counsel  appearing on behalf of Respondent No. 2  to state that he had been appointed  against a permanent vacancy.  In his written statement, he did not raise any

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such contention.  It does not also appear from the records that any offer of  appointment was given to him.  It is inconceivable that an employee  appointed on a regular basis would not be given an offer of appointment or  shall not be placed on a scale of pay.  We, therefore, have no hesitation in  proceeding on the premise that Respondent No. 2 was appointed on daily- wages.  The Industrial Court in passing the impugned award proceeded on  the premise that Respondent No. 2 had been working for more than 240 days  continuously from the date of his engagement.  It is now trite that the same  by itself does not confer any right upon a workman to be regularized in  service.  Working for more than 240 days in a year was relevant only for the  purpose of application of Section 6N of the U.P. Industrial Disputes Act,  1947 providing for conditions precedent to retrench the workmen.  It does  not speak of acquisition of a right by the workman to be regularized in  service.   

13.    In Executive Engineer, ZP Engg. Divn. And Another v. Digambara  Rao and Others [(2004) 8 SCC 262], it was held: \023It may not be out of place to mention that  completion of 240 days of continuous service in a  year may not by itself be a ground for directing an  order of regularisation. It is also not the case of the  respondents that they were appointed in  accordance with the extant rules. No direction for  regularisation of their services, therefore, could be  issued.              [See also Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra  and Others, (2005) 5 SCC 122 and State of U.P. v. Neeraj Awasthi and  Others, (2006) 1 SCC 667]

14.     A similar question came up for consideration in a large number of  decisions before this Court.  We will, however, refer only to some of them.   

       In A. Umarani v. Registrar, Cooperative Societies and Others [(2004)  7 SCC 112], this Court held:   \02439. Regularisation, in our considered opinion, is  not and cannot be the mode of recruitment by any  \023State\024 within the meaning of Article 12 of the  Constitution of India or any body or authority  governed by a statutory Act or the Rules framed  thereunder. It is also now well settled that an  appointment made in violation of the mandatory  provisions of the statute and in particular, ignoring  the minimum educational qualification and other  essential qualification would be wholly illegal.  Such illegality cannot be cured by taking recourse  to regularisation. (See State of H.P. v. Suresh  Kumar Verma)  

40. It is equally well settled that those who come  by back door should go through that door. (See  State of U.P. v. U.P. State Law Officers Assn.)   

41. Regularisation furthermore cannot give  permanence to an employee whose services are ad  hoc in nature.\024

       A Constitution Bench of this Court in Secretary, State of Karnataka  and Others v. Umadevi (3) and Others [(2006) 4 SCC 1] clearly held that an  appointment de\022hors the statutory rules would render the appointment a  nullity, stating:   \02418. Without keeping the above distinction in mind  and without discussion of the law on the question

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or the effect of the directions on the constitutional  scheme of appointment, this Court in Daily Rated  Casual Labour v. Union of India directed the  Government to frame a scheme for absorption of  daily-rated casual labourers continuously working  in the Posts and Telegraphs Department for more  than one year. This Court seems to have been  swayed by the idea that India is a socialist republic  and that implied the existence of certain important  obligations which the State had to discharge.  While it might be one thing to say that the daily- rated workers, doing the identical work, had to be  paid the wages that were being paid to those who  are regularly appointed and are doing the same  work, it would be quite a different thing to say that  a socialist republic and its executive, is bound to  give permanence to all those who are employed as  casual labourers or temporary hands and that too  without a process of selection or without following  the mandate of the Constitution and the laws made  thereunder concerning public employment. The  same approach was made in Bhagwati Prasad v.  Delhi State Mineral Development Corpn. where  this Court directed regularisation of daily-rated  workers in phases and in accordance with  seniority.  

22. With respect, it appears to us that the question  whether the jettisoning of the constitutional  scheme of appointment can be approved, was not  considered or decided. The distinction emphasised  in R.N. Nanjundappa v. T. Thimmiah was also not  kept in mind. The Court appears to have been  dealing with a scheme for \023equal pay for equal  work\024 and in the process, without an actual  discussion of the question, had approved a scheme  put forward by the State, prepared obviously at the  direction of the Court, to order permanent  absorption of such daily-rated workers. With  respect to the learned judges, the decision cannot  be said to lay down any law, that all those engaged  on daily wages, casually, temporarily, or when no  sanctioned post or vacancy existed and without  following the rules of selection, should be  absorbed or made permanent though not at a  stretch, but gradually. If that were the ratio, with  respect, we have to disagree with it.\024

       It was further held that no person who was temporarily or casually  employed could be directed to be continued permanently.  It was also opined  that by doing so it would be creating another mode of public employment  which is not permissible in law.  [See also Punjab Water Supply & Sewerage  Board v. Ranjodh Singh and Others, (2007) 2 SCC 491]

15.     The High Court has relied upon a decision of this Court in Mahendra  L. Jain and Others v. Indore Development Authority and Others [(2005) 1  SCC 639].  Therein it is stated: \02319. The question, therefore, which arises for  consideration is as to whether they could lay a  valid claim for regularisation of their services. The  answer thereto must be rendered in the negative.  Regularisation cannot be claimed as a matter of  right. An illegal appointment cannot be legalised  by taking recourse to regularisation. What can be  regularised is an irregularity and not an illegality.

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The constitutional scheme which the country has  adopted does not contemplate any back-door  appointment. A State before offering public  service to a person must comply with the  constitutional requirements of Articles 14 and 16  of the Constitution. All actions of the State must  conform to the constitutional requirements. A  daily-wager in the absence of a statutory provision  in this behalf would not be entitled to  regularisation.\024

[See also M.P. Housing Board and Another v. Manoj Shrivastava (2006) 2  SCC 702, M.P. State Agro Industries Development Corpn. Ltd. and Another  v. S.C. Pandey (2006) 2 SCC 716, Indian Drugs & Phrmaceuticals Ltd. v.  Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and  Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533].   16.     The Industrial Court, therefore, in our opinion, committed a serious  error in passing the impugned award.  The High Court unfortunately did not  pose unto itself a right question.  It referred to a large number of decisions.   Although most of the decisions referred to by the High Court should have  been applied for upholding the contention of the appellant herein, without  any deliberation thereupon, the learned Judge has proceeded to determine  the question posed before it on a wholly wrong premise.  As noticed  hereinbefore, it relied upon Mahendra L. Jain (supra) which in no manner  assists Respondent No. 2. 17.     What was necessary to be considered was the nature of work  undertaken by the University.  It undertakes projects.  For the said purpose,  it may have to employ a large number of persons.  Their services had to be  temporary in nature.   Even for that the provisions of Articles 14 and 16 are  required to be complied with.  In the event, the constitutional and statutory  requirements are not complied with, the contract of employment would be  rendered illegal. 18.     Services of Respondent No. 2 were not terminated.  He has been  continuing to serve the University.  We have noticed hereinbefore that in a  writ petition filed by other employees on a concession made by the counsel  for the University, a purported scheme dated 24.04.2000 has been  formulated.  Dr. Padia in that view of the matter stated before us that despite  the legal position, as noticed hereinbefore, in the event the case of  Respondent No. 2 comes within the purview of the said Scheme, his services  shall be regularized when his turn comes therefor.   

19.     We place on record the aforementioned statement made by Dr. Padia  that as and when Respondent No. 2 becomes entitled to be considered for  being absorbed in the services of the University pursuant to the said scheme,  his case may be considered.  If his turn for consideration for regularization  has already come, a decision thereupon shall be taken as expeditiously as  possible.   20.     The impugned judgment is set aside.  The appeal is allowed with the  aforementioned observations and directions.  However, in the facts and  circumstances of this case, there shall be no order as to costs.