( 1 ) THE petitioners filed this petition against the order dated December 19, 2003 passed in appeal No. 74/mpir/2003 dismissing his appeal and upholding the order of the Labour court. There are nearabout 213 petitions have been filed by the same petitioners against the orders of Industrial Court and Labour Court. In all the petitions common question of law and facts are involved, hence they are being decided by this common order.

( 2 ) QUESTION for determination before this court is Whether a daily wages employee working in Government Department i. e. P. W. D. which comes within the definition of industry can be classified as permanent employee as per the provision of Rule 2 of M. P. Industrial Employment (Standing Orders)Rules, 1963 (hereinafter called as Rules of 1963 ). The rules have been framed by the State government under Section 21 of the M. P. Industrial Employment (Standing Orders) Act, 1961 (hereinafter called the Act of 1961 ).

( 3 ) THE respondent a daily wages employee filed an application under Sections 31 (3), 61, 62 of M. P. Industrial Relations Act, 1960 submitting that he had been working as gang coolie since 1978 in the petitioner establishment and entitled to be declared as permanent after completing six months of service and wages thereof. He further submitted that he had been performing the work of road maintenance.

( 4 ) THE petitioner No. 2 which is a department of State of M. P. and is engaged in construction and maintenance of roads and bridges in the State, denied the pleadings of the respondent but admitted that the petitioner had been working regularly for the last ten years. It has further been submitted by the witness of the petitioner i. e. S. D. O. that after completing 25 years of service employee would be entitled to regular pay scale and grade. At present as per the circular of the Government there are only 318 posts of gangman workers have been sanctioned. Creation and sanction of posts are within the competence of engineer-in- chief and government. The respondent/workman deposed that he had been working regularly and was performing the work of permanent labour he gets only Rs. 2,000 per month as wages although a permanent worker gets Rs. 4,500 per month as wages. The Labour Court allowed the application of the respondent by holding that because he had been working continuouslymore than six months (in present case nearabout 10 years), hence he has (sic)acquired the status of a permanent worker as per Rules of 1963 and entitled to get wages of a permanent employee and also awarded back. wages w. e. f. the date of filing application by the respondent before the Labour Court.

( 5 ) THE petitioners filed an appeal against the order of the Labour Court before the industrial Court M. P. The learned president dismissed the appeal by holding:"from perusal of clause (i), it is clear that for classification of an employee as permanent employee, it requires six months' satisfactory service on a clear vacancy. In this case, the applicant stated that he has been working on the post of gangman (Gang Coolie) for more than 25 years. There is no reason to disbelieve this evidence. It is true that there is no oral or documentary evidence on record to prove that this post was vacant. "

( 6 ) THE learned counsel for the petitioners has submitted that the respondent cannot be classified as permanent worker as per Rules of 1963 until and unless it is proved that there was a vacancy, it is sine-qua-non for permanent classification, there was no vacancy at the petitioner establishment, hence the impugned order is against the law and liable to be set aside. In support of his contention he relied on following judgments of this Court 1999 Vol. (1) MPLJ 466, 2001 (3) MPLJ 585.

( 7 ) THE learned counsel for the respondent has submitted that order of the Appellate Court and Labour Court is as per law the respondent had been working for a long time of 10 years hence it must be presumed that there was a clear vacancy and

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