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CASE NO.: Appeal (civil)  1265 of 2006

PETITIONER: M.P. Housing Board & Anr

RESPONDENT: Manoj Shrivastava

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of SLP(C) No. 27360 of 2004]

S.B. SINHA, J : . Leave granted.   

       The Respondent was appointed on daily wages as a Sub-Engineer  (Civil) on or about 7.4.1995.  On the premise that his services may be  terminated, he filed a writ petition whereupon by an order dated 25.4.2000,  the High Court directed the Appellant \026 Board to consider his case in the  light of the purported circulars issued by the State Government for scrutiny  of the daily rated employees.  Upon the said direction, a scrutiny committee  was appointed which found that there had been no vacancy nor there existed  any sanctioned post.  The Committee prior to coming to the aforementioned  opinion gave an opportunity of hearing to the Respondent.  He thereafter  filed an application before the Labour Court purported to be in terms of  Section 31(3) read with Section 64-A of the Madhya Pradesh Industrial  Relations Act, 1960 (for short "the 1960 Act") praying that he be classified  in the permanent category on the ground that he had satisfactorily worked  for more than six months and, thus, became eligible therefor as provided  under Clause 2(i) of the Standard Standing Orders.  The Labour Court by an  order dated 22.1.2002 allowed the said application holding:

"According to the discussion of issue No. 1 and 2 it has  been decided that the applicant is entitled to be  categorized in the permanent category on the post of Sub- Engineer (Civil).  Hence the non-applicant is ordered  from the date of submitting the application of applicant in  this Court from 10.5.2005 2 years prior from it the  applicant be categorized in permanent category.

Because the applicant had been appointed in daily wages  hence in the circumstances of the case and I do not  consider it proper to give benefit of salary of a permanent  category to the applicant.  But, the applicant is entitled to  claim pay scale of permanent category from 10.5.2000  the date of submitting application before this Court."

       An appeal was preferred thereagainst by the Appellants before the  Industrial Court, Jabalpur and by an order dated 16.10.2003, the same  was  dismissed.  A writ petition filed by the Appellant was also dismissed.  By  reason of the impugned judgment, the Letters Patent Appeal filed by the  Appellant has also been dismissed.

       Mr. B.S. Banthia, learned counsel appearing on behalf of the  Appellants submitted that the Respondent having been appointed as a daily  wager, he could not have been declared as a permanent employee as there  existed no clear vacancy.  It was further submitted that only because the  Respondent had worked for more than 240 days by itself could not have  

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been a ground for issuance of a direction for the regularization in the service.   

       Mr. T.G. Narayanan Nair, learned senior counsel appearing on behalf  of the Respondent, on the other hand would draw our attention to a recent  decision of a Division Bench of this Court in State of Madhya Pradesh and  Ors. v. Onkar Prasad Patel [2005 (10) SCALE 153] and on the basis thereof  submitted  that, in view of the definition of ’permanent employee’ as also  ’temporary employee’, the appointment of the Respondent would come  within the purview thereof and, thus, on his completion of six months  satisfactory service,  he would be entitled to either a temporary status or a  permanent status.

       The Appellant \026 Board was constituted under M.P. Grih Nirman  Mandal Adhiniyam, 1972 (’1972 Act’). Indisputably, the terms and  conditions of employment of its employees are governed by a statute.  The  State of Madhya Pradesh enacted the M.P. Industrial Relations Act, 1960  with a view to regulate the relations of employers and employees in certain  matters, to make provisions for settlement of industrial disputes and to  provide for matters connected therewith. In the year 1961, the State of  Madhya Pradesh also enacted the Madhya Pradesh Industrial Employment  (Standing Orders) Act, 1961 (for short "the 1961 Act") to provide for rules  defining with sufficient precision certain matters relating to the conditions of  employment of employees in the State of Madhya Pradesh.                   ’Permanent employee’ and ’temporary employee’ have been defined  in Clauses 2(i) and (vi) of Standard Standing Order made under 1961 Act  which read as under:

"(i) A ’permanent’ employee is one who has completed  six months’ satisfactory service in a clear vacancy in one  or more posts whether as a probationer or otherwise, or a  person whose name has been entered in the muster roll  and who is given a ticket of permanent employee;

(vi) ’temporary employee’ means an employee who has  been employed for work which is essentially of a  temporary character, or who is temporarily employed as  an additional employee in connection with the temporary  increase in the work of a permanent nature; provided that  in case such employee is required to work continuously  for more than six months he shall be deemed to be a  permanent employee, within the meaning of Clause (i)  above."

                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(i) of the  Standard Standing Order, 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.   

       It is one thing to say that a person was appointed on an ad-hoc basis or  as a daily wager but it is another thing to say that he is appointed in a  sanctioned post which was lying vacant upon following the due procedure  freedom prescribed therefor.  

       It has not been found by the Labour Court that the Respondent was  appointed by the Appellant herein, which is a ’State’ within the meaning of

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Article 12 of the Constitution of India, upon compliance of the constitutional  requirements as also the provisions of the  1972 Act or the rules and  regulations framed thereunder.

       In Mahendra L. Jain and Others v. Indore Development Authority and  Others [(2005) 1 SCC 639], this Court followed an earlier decision of this  Court in M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board [(2004) 9  SCC 755] wherein it was clearly held that when two statutory rules operate  in the field unless the rules and regulations framed by the statutory authority  are inconsistent with the provisions of the  1960 Act and the Rules framed  thereunder, provisions of both the statute are required to be followed,  holding :

"\005The 1973 Act or the Rules framed thereunder do not  provide for appointments on ad hoc basis or on daily  wages. The 1961 Act itself shows that the employees are  to be classified in six categories, namely, permanent,  permanent seasonal, probationers, badlies, apprentices  and temporary. The recruitments of the appellants do not  fall in any of the said categories. With a view to become  eligible to be considered as a permanent employee or a  temporary employee, one must be appointed in terms  thereof. Permanent employee has been divided in two  categories (i) who had been appointed against a clear  vacancy in one or more posts as probationers and  otherwise; and (ii) whose name had been registered both  at muster roll and who has been given a ticket of  permanent employee. A "ticket of permanent employee"  was, thus, required to be issued in terms of Order 3 of the  Standard Standing Orders. Grant of such ticket was  imperative before permanency could be so claimed. The  appellants have not produced any such ticket."

       It was further held:

"The Standing Orders governing the terms and conditions  of service must be read subject to the constitutional  limitations wherever applicable. Constitution being the  suprema lex, shall prevail over all other statutes. The  only provision as regards recruitment of the employees is  contained in Order 4 which merely provides that the  manager shall within a period of six months, lay down  the procedure for recruitment of employees and notify it  on the notice board on which Standing Orders are  exhibited and shall send copy thereof to the Labour  Commissioner. The matter relating to recruitment is  governed by the 1973 Act and the 1987 Rules. In the  absence of any specific directions contained in the  Schedule appended to the Standing Orders, the statute  and the statutory rules applicable to the employees of the  respondent shall prevail."

       It was furthermore held:

"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

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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 regularisation itself  does not imply permanency. We have used the term  keeping in view the provisions of the 1963 Rules."

       A daily wager does not hold a post unless he is appointed in terms of  the Act and the rules framed thereunder.  He does not derive any legal right  in relation thereto.

       The effect of such an appointment recently came up for consideration  in State of U.P. v. Neeraj Awasthi and Others [ 2006 (1) SCC 667] wherein  this Court clearly held that such appointments are illegal and void.  It was  further held:

"The fact that all appointments have been made without  following the procedure or services of some persons  appointed have been regularised in past, in our opinion,  cannot be said to be a normal mode which must receive  the seal of the court.  Past practice is not always the best  practice.  If illegality has been committed in the past, it is  beyond comprehension as to how such illegality can be  allowed to perpetuate.  The State and the Board were  bound to take steps in accordance with law.  Even in this  behalf Article 14 of the Constitution of India will have no  application.  Article 14 has a positive concept.  No  equality can be claimed in illegality is now well-settled.  [See State of A.P. v. S.B.P.V. Chalapathi Rao and  Others,(1995) 1 SCC 724, para 8, Jalandhar  Improvement Trust v. Sampuran Singh (1999) 3 SCC  494, para 13 and State of Bihar and Others v. Kameshwar  Prasad Singh and Another (2000) 9 SCC 94, para 30].

       In the instant case, furthermore, no post was  sanctioned.  It is now well-settled when a post is not  sanctioned, normally, directions for reinstatement should  not be issued.  Even if some posts were available, it is for  the Board or the Market Committee to fill-up the same in  terms of the existing rules.  They, having regard to the  provisions of the regulations, may not fill up all the  posts."

       It is now 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.  [See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and  Others, [(2005) 5 SCC 122], Executive Engineer, ZP Engg. Divn. And  Another v. Digambara Rao and others, [(2004) 8 SCC 262], Dhampur Sugar  Mills Ltd. v. Bhola Singh, [(2005) 2 SCC 470], Manager, Reserve Bank of  India, Bangalore v. S. Mani and Others, [(2005) 5 SCC 100] and Neeraj  Awasthi (supra)]

       In State of Karnataka & Ors. v. KGSD Canteen Employees Welfare  Association & Ors. [(2006) 1 SCALE 85] it was held:

       "The question which now arises for consideration  is as to whether the High Court was justified in directing  regularization of the services of the Respondents.  It was  evidently not.  In a large number of decisions, this Court  has categorically held that it is not open to a High Court  to exercise its discretion under Article 226 of the  Constitution of India either to frame a scheme by itself or

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to direct the State to frame a scheme for regularising the  services of ad hoc employees or daily wages employees  who had not been appointed in terms of the extant service  rules framed either under a statute or under the proviso to  Article 309 of the Constitution of India.  Such a scheme,  even if framed by the State, would not meet the  requirements of law as the executive order made under  Article 162 of the Constitution of India cannot prevail  over a statute or statutory rules framed under proviso to  Article 309 thereof.  The State is obligated to make  appointments only in fulfilment of its constitutional  obligation as laid down in Articles 14, 15 and 16 of the  Constitution of India and not by way of any  regularization scheme.  In our constitutional schemes, all  eligible persons similarly situated must be given  opportunity to apply for and receive considerations for  appointments at the hands of the authorities of the State.   Denial of such a claim by some officers of the State times  and again had been deprecated by this Court.  In any  view, in our democratic polity, an authority howsoever  high it may be cannot act in breach of an existing statute  or the rules which hold the field."

       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.   

       In  State of Punjab v. Jagdip Singh & Ors. [1964 (4) SCR 964], a  Constitution Bench of this Court held that if no post was available at the  time when the respondent therein could be confirmed, such appointment  would be void.  The effect of such void appointment has been held to be  conferring no legal right stating :

"\005When an order is void on the ground that the  authority which made it had no power to make it cannot  give rise to any legal rights, and as suggested by the  learned Advocate-General, any person could have  challenged the status of the respondents as Tahsildars by  instituting proceedings for the issue of a writ of quo  warranto under Article 226 of the Constitution. Had such  proceedings been taken it would not have been possible  for the respondents to justify their status as permanent  Tahsildars and the High Court would have issued a writ  of quo warranto depriving the respondents of their status  as permanent Tahsildars\005"  

[See also Union Public Service Commission v. Girish Jayanti Lal Vaghela &  Others, 2006 (2) SCALE 115].             In Onkar Prasad Patel (supra), whereupon Mr. Nair placed strong  reliance, it was categorically held that an employee would not come within  the purview of definition of ’permanent employee’ only because he has  completed six months’ satisfactory service.  The other requirement was that  the service must be rendered in a clear vacancy in one or more posts which  was established.  The conditions were held to be cumulative and not  independent of each other.  The said decision, therefore, runs counter to the  submission of the learned counsel.

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       For the foregoing reasons, the impugned judgment cannot be  sustained which is set aside accordingly.  The appeal is allowed.  The order  of the Labour Court will stand set aside. However, in the facts and  circumstance of the case, there shall be no order as to costs.