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CASE NO.: Appeal (civil)  5185 of 2006

PETITIONER: State of M.P. & Ors.                                             

RESPONDENT: Lalit Kumar Verma                                                

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J.

       Leave granted.

       Respondent herein was appointed on daily wages.  Indisputably, his  recruitment was not made in terms of the statutory rules.  No offer of  appointment was also issued.  He filed an application before the Labour  Court purported to be for his classification in permanent category of  workman.  An Award was made on the premise that he having worked  continuously for a period of more than six months, acquired a right for  classification in the category of permanent clerk and in that view of the  matter, his services could not have been terminated without complying with  the provisions of Section 25F of the Industrial Disputes Act, 1947.  He was  directed to be classified on the permanent basis as clerk from two years prior  to the date of his filing the application, i.e., 11th November, 1991.  He was  also held to be entitled to prescribed wages and thus, the amount of  difference in wages of the said post and other benefits was directed to be  paid.  A writ petition was preferred thereagainst by the appellants before the  High Court, which was also dismissed by a learned Single Judge, opining  that no case had been made out to interfere therewith.

       Shri S.K. Dubey, learned Senior Counsel appearing on behalf of the  appellants would contend that the impugned judgment cannot be sustained in  view of the fact that the respondent, in law, was not entitled to be classified  as a permanent employee under the provisions of Madhya Pradesh Industrial  Relations Act, 1960.  Strong reliance in this behalf was placed on State of  Madhya Pradesh & Ors. vs. Yogesh Chandra Dubey & Ors. [(2006) 9  SCALE 73 : (2006) 8 SCC 67)].  It was urged that in any event the  respondent should not have been directed to be held entitled to back wages  from 1992.   

       Mr. Ashok Mathur, learned counsel appearing on behalf of the  respondent, on the other hand, would submit :-

       (i)     that the Special Leave Petition being barred by limitation, the  delay in filing the same should not be condoned;

       (ii)    as the certificates issued in favour of the respondent had been  examined by three Courts, this Court should not interfere therewith.

       The application was filed by the respondent before the Labour Court  on the premise that the order of termination dated 10.10.1991 was illegal and  he should have been declared permanent on 1st April, 1987 after  classification in the category of Supervisor and Clerk.           Clause 2 of the Standard Standing Orders reads as under:

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"2. Classification of employees.Employees shall be  classified as (i) permanent, (ii) permanent seasonal, (iii)  probationers, (iv) badlies, (v) apprentices, and (vi)  temporary:         (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 workman, therefore, would be entitled to classification of  permanent or temporary employee, if the conditions precedent therefor are  satisfied.  Respondent was not appointed against a clear vacancy.  He was  not appointed in a permanent post or placed on probation.  He had also not  been given a ticket of permanent employee.  Working on daily wages alone  would not entitle him to the status of a permanent employee.         In Mahendra L. Jain & Ors. vs. Indore Development Authority &  Ors. [(2005) 1 SCC 639], this Court opined :         "The 1961 Act provides for classification of  employees in five categories. The 1973 Act, as noticed  hereinbefore, clearly mandates that all posts should be  sanctioned by the State Government and all appointments  to the said cadre must be made by the State Government  alone. Even the appointments to the local cadre must be  made by the Authority. The said provisions were not  complied with. It is accepted that no appointment letter  was issued in favour of the appellants. Had the  appointments of the appellants been made in terms of the  provisions of the Adhiniyam and the Rules framed  thereunder, the respondent Authority was statutorily  enjoined to make an offer of appointment in writing  which was to be accepted by the appellants herein. Who  made the appointments of the appellants to the project or  other works carried on by the Authority is not known.  Whether the person making an appointment had the  requisite jurisdiction or not is also not clear. We have  noticed hereinbefore that in the case of Om Prakash  Mondloi, the CEO made an endorsement to the effect  that he may be tried in daily wages and should be  entrusted with the work of progress collection of ODA  work. The said order is not an offer of appointment by  any sense of the term."

It was further opined :

       "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

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

       The said decision shall apply in all fours to the facts of the present  case.  {See also M.P. Housing Board & Anr. vs. Manoj Shrivastava  [(2006) 2 SCC 702], Municipal Council, Sujanpur vs. Surinder Kumar,  (2006) 5 SCC 173 and Indian Drugs and Pharmaceuticals Limited vs.  Workman, Indian Drugs and Pharmaceuticals Limited, Civil Appeal No.  4996 of 2006 decided on 16.11.2006}          The respondent was also not appointed in terms of the statutory rules.   He was furthermore not entitled to any regular scale of pay attached to any  post.  Ordinarily, therefore, he could not have been directed to be regularized  in service having regard to the Constitution Bench decision of this Court in  Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors. [(2006) 4  SCC 1].  Reliance, however, has been placed by Mr. Mathur on paragraph  53 of the judgment which reads as under :         "One aspect needs to be clarified. There may be  cases where irregular appointments (not illegal  appointments) as explained in S.V. Narayanappa, R.N.  Nanjundappa and B.N. Nagarajan and referred to in para  15 above, of duly qualified persons in duly sanctioned  vacant posts might have been made and the employees  have continued to work for ten years or more but without  the intervention of orders of the courts or of tribunals.  The question of regularisation of the services of such  employees may have to be considered on merits in the  light of the principles settled by this Court in the cases  abovereferred to and in the light of this judgment. In that  context, the Union of India, the State Governments and  their instrumentalities should take steps to regularise as a  one-time measure, the services of such irregularly  appointed, who have worked for ten years or more in  duly sanctioned posts but not under cover of orders of the  courts or of tribunals and should further ensure that  regular recruitments are undertaken to fill those vacant  sanctioned posts that require to be filled up, in cases  where temporary employees or daily wagers are being  now employed. The process must be set in motion within  six months from this date. We also clarify that  regularisation, if any already made, but not sub judice,  need not be reopened based on this judgment, but there  should be no further bypassing of the constitutional  requirement and regularising or making permanent, those  not duly appointed as per the constitutional scheme."   

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       Strong reliance has also been placed by Mr. Mathur upon a Division  Bench decision of this Court in Mineral Exploration Corpn. Employees’  Union vs. Mineral Exploration Corpn. Ltd. & Anr. [(2006) 6 SCC 310],  wherein, this Court, while following the case of Uma Devi & Ors. (supra),  invoked paragraph 53 of the said decision to opine :  "We, therefore, direct the Tribunal to decide the  claim of the workmen of the Union strictly in accordance  with and in compliance with all the directions given in  the judgment by the Constitution Bench in Secy., State of  Karnataka v. Umadevi (3) and in particular, paras 53 and  12 relied on by the learned Senior Counsel appearing for  the Union. The Tribunal is directed to dispose of the  matter afresh within 9 months from the date of receipt of  this judgment without being influenced by any of the  observations made by us in this judgment. Both the  parties are at liberty to submit and furnish the details in  regard to the names of the workmen, nature of the work,  pay scales and the wages drawn by them from time to  time and the transfers of the workmen made from time to  time, from place to place and other necessary and  requisite details. The above details shall be submitted  within two months from the date of the receipt of this  judgment before the Tribunal."  

       The question which, thus, arises for consideration, would be : Is there  any distinction between ’irregular appointment’ and ’illegal appointment’?   The distinction between the two terms is apparent.  In the event the  appointment is made in total disregard of the constitutional scheme as also  the recruitment rules framed by the employer, which is State within the  meaning of Article 12 of the Constitution of India, the recruitment would be  an illegal one; whereas there may be cases where, although, substantial  compliance of the constitutional scheme as also the rules have been made,  the appointment may be irregular in the sense that some provisions of some  rules might not have been strictly adhered to. In National Fertilizers Ltd. vs. Somvir Singh [(2006) 5 SCC 493], it  has been held :

       "The contention of the learned counsel appearing  on behalf of the respondents that the appointments were  irregular and not illegal, cannot be accepted for more  than one reason. They were appointed only on the basis  of their applications. The Recruitment Rules were not  followed. Even the Selection Committee had not been  properly constituted. In view of the ban on employment,  no recruitment was permissible in law. The reservation  policy adopted by the appellant had not been maintained.  Even cases of minorities had not been given due  consideration.          The Constitution Bench thought of directing  regularisation of the services only of those employees  whose appointments were irregular as explained in State  of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T.  Thimmiah and B.N. Nagarajan v. State of Karnataka  wherein this Court observed: [ Umadevi (3) case 1 , SCC  p.24, para 16]   "16 . In B.N. Nagarajan v. State of Karnataka this  Court clearly held that the words ’regular’ or  ’regularisation’ 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."

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       Judged by the standards laid down by this Court in  the aforementioned decisions, the appointments of the  respondents are illegal. They do not, thus, have any legal  right to continue in service."  

In R.S. Garg vs. State of U.P. & Ors. [2006 (7) SCALE 405], it has  been held by this Court :

"The original appointment of 3rd respondent being  illegal and not irregular, the case would not come within  the exception carved out by the Constitution Bench.   Furthermore, relaxation, if any, could have been  accorded only in terms of Rule 28 of the Rules, Rule 28  would be attracted when thereby undue hardship in any  particular case is caused.  Such relaxation of Rules shall  be permissible only in consultation with the Commission.   It is not a case where an undue hardship suffered by the  3rd respondent could legitimately been raised being  belonging to a particular class of employee.  No such  case, in law could have been made out.  It, in fact, caused  hardship to other employees belonging to the same  category, who were senior to him; and thus, there was  absolutely no reason why an exception should have been  made in his case."  

       {See also State of Gujarat & Anr. vs. Karshanbhai K. Rabari &  Ors. [(2006) 6 SCC 21].}         Yet, recently in Principal, Mehar Chand Polytechnic & Anr. vs.  Anu Lamba & Ors. [(2006) 7 SCC 161], it was held :         "The respondents did not have legal right to be  absorbed in service.  They were appointed purely on  temporary basis.  It has not been shown by them that  prior to their appointments, the requirements of the  provisions of Articles 14 and 16 of the Constitution had  been complied with.  Admittedly, there did not exist any  sanctioned post.  The Project undertaken by the Union of  India although continued for some time was initially  intended to be a time-bound one.  It was not meant for  generating employment.  It was meant for providing  technical education to the agriculturists.  In the absence  of any legal right in the respondents, the High Court,  thus, in our considered view, could not have issued a writ  of or in the nature of mandamus."   

We may, however, notice that in Mineral Exploration (supra), the  attention of this Court was not drawn to the earlier precedents including a  Three Judge Bench of this Court in B.N. Nagarajan & Ors. vs. State of  Karnataka & Ors. [(1979) 4 SCC 507].

The Labour Court, Industrial Tribunal as also the High Court,  therefore, was not correct in directing regularisation of service of the  respondent.

Our attention has been further drawn to the fact that by reason of an  Office Order dated 26.4.2004, the Award of the Labour Court as also the  High Court had been implemented by classifying the respondent as  permanent on the basis of daily wages clerk.

Yet again, by another Office Order dated 17.12.2004, the provisions  of Madhya Pradesh Revised Pay Rules, 1998 had been applied in his case.

The decision to implement the judgment was evidently subject to the  decision of this Court.  But, the Special Leave Petition is barred by  limitation.  The question, inter alia, which arises for consideration before us  is as to whether we should condone the delay or allow the respondent to

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continue to occupy the permanent post.   

The legal position somehow was uncertain before the decision  rendered by the Constitution Bench of this Court in Uma Devi (supra).  It  has categorically been stated before us that there was no vacant post in the  department in which the respondent could be reinstated.  The State had also  adopted a policy decision regarding regularisation.  The said policy decision  has also no application in the case of the respondent. Even otherwise, it  would be unconstitutional being hit by Article 16 of the Constitution of  India.

Keeping in view the peculiar facts and circumstances of this case, we  are of the opinion that the interest of justice would be sub-served if we direct  that any benefit which has already been  given to the respondent shall not be  recovered.  He is also directed to be paid a sum of Rs.1,50,000/- (One lakh  fifty thousand) towards compensation and costs for condoning the massive  delay in filing the Special Leave Petition.   

The impugned judgments are set aside, subject to the directions  mentioned hereinbefore.  This appeal is allowed. No costs.