2004 Supreme(SC) 1453

2004(8) Supreme 453
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
N. Santosh Hegde & S.B. Sinha, JJ.
Mahendra L. Jain & Ors. -Appellants
versus
Indore Development Authority & Ors. -Respondents
Civil Appeal No. 337 of 2002
With
C.A.Nos. 334 and 335 of 2002
Decided on 22-11-2004
Counsel for the Parties :
For the Appearing Parties : Dr. Rajiv Dhawan, Dr. M.N. Rao, V.R. Reddy, S.K. Gambhir, Sr. Advocates, Sushil Kumar Jain, Abhay N. Dass, A. Ramesh, Goodwill Indeevar, H.K. Puri, S.K. Puri, Aditya Sharma, Shiv Gupta, Ujjwal Banerjee, Pragati Neekhra, B.S. Banthia and Prakash Shrivastava, Advocates.

IMPORTANT POINT
Regularization of service cannot be claimed as a matter of right. An illegal appointment cannot be legalized by taking recourse to regularization.

Headnote:LABOUR LAW-Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961-Section 2-M.P. Industrial Employment (Standing Order) Rules, 1963-Claim of regularization-Appointment of appellants to an overseas projects without any advertisement issued in that behalf-They were paid on daily wages-They began receiving monthly salary and provident fund was being deducted-Respondent Authority before making any appointment neither intimated the Employment Exchange nor issued any advertisement-Conditions precedent for appointment of officers and servants of the Authority had not been complied with-Appointments of appellants were void ab initio being opposed to public policy-Whether they could lay a valid claim for regularization of their services-(No).

       Held : The posts of Sub Engineers in which the Appellants were appointed, it is nobody s case, were sanctioned ones. Concededly, the Respondent Authority before making any appointment neither intimated the Employment Exchange about the existing vacancies, if any, nor issued any advertisement in relation thereto. Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the Service Rules had not been complied with. The appointments of the Appellants were, therefore, void ab initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution of India. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The Constitutional Scheme which the country has adopted does not contemplate any backdoor 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 absence of a statutory provision in this behalf would not be entitled to regularization. (Paras 17 and 18)

       No notification has been brought to our notice that the Standard Standing Orders had been made applicable to the Appellants. It is furthermore not in dispute that Adhiniyam came into force in 1973. The statute, rules and regulations formed by the State govern the terms and conditions of service of the employees of the Respondent. The terms of conditions of service contained in the 1973 Act and the 1987 Rules are not in derogation of the provisions contained in schedule appended to the 1961 Act. 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 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 term. (Paras 26 and 27)

       The Standing Orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. Constitution being the suprema lax, shall prevail over all other statutes. The only provision as regard 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 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. (Para 30)

       For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute, vis-a-vis the 1973 Act and the rules framed thereunder. But in 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 regularization. For the purpose of regularization which would confer on the concerned employee a permanent status, there must exist a post. However, we may hasten to add that regularization itself does not imply permanency. We have used the term keeping in view the provisions of 1963 Rules. (Para 32)

       The project was indisputably to be executed by the Idore Development Authority; and for the implementation thereof, the appointments had to be made by it. If the Appellants were appointed for the purpose of the project, they would be deemed to have been appointed therefor and only because such appointments had been made by the Respondent would by itself not entitle them to claim permanency. The life of the project came to an end on 30.6.1997. The maintenance job upon completion thereof had been taken over by Indore Municipal Corporation. The Appellants were aware of the said fact and, thus, raised an alternative plea in their statements of claims. The Labour Court could not have granted any relief to them as prayed for, as Indore Municipal Corporation is a separate juristic person having been created under a statute. Such a relief would have been beyond the scope and purport of the reference made to the Labour Court by the State Government. Furthermore, the Indore Municipal Corporation was not a party and, thus, no employee could be thrust upon it without its consent. (Para 36)

       The Appellants having been employed on daily wages did not hold any post. No post was sanctioned by the State Government. They were not appointed in terms of the provisions of the statute. They were not, therefore, entitled to take the recourse of the doctrine of equal pay for equal work as adumbrated in Articles 14 and 39(d) of the Constitution of India. The burden was on the Appellants to establish that they had a right to invoke the said doctrine in terms of Article 14 of the Constitution of India. For the purpose of invoking the said doctrine, the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. Furthermore, when their services had not been regularized and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments, no direction to give regular pay scale could have been issued by the Labour Court. (Para 42)