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2006 (2) JLJ 1
(SUPREME COURT)
S.H. Sinha and P.K. Balasubramanyan, JJ.
M.P. Housing Board and another v. Manoj Shrivastava
Civil Appeal No. 1265 of 2006; against the judgment of M.P. High
Court passed in LPA No. 591of 2004:
Decided on 24.2.2006.
The respondent was appointed on daily wages as a Sub Engineer (Civil) on or about 7-1- 1995. On the premise that his services may he terminated. He filed a writ petition whereupon by an order dated 25.4.2000. the High Court directed the appellant 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 64A 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, become eligible there for 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. [Para 2
An appeal was preferred there against 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 been a ground for issuance of a direction for the regularization in the service. [Paras 3 & 4
Held: 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. [Para 8
A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed there under. He does not derive any legal right in relation thereto. [Para 15
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. 2006 (1) Vidhi Bhasvar 162 (SC), 2005 (3) JLJ 233 (SC), (2006) 1 SCC 667 1964 (4) SCR 964 and JT 2006 (2) SC 137 relied on. [Para 20
(2) Constitution of India -- Art. 14 -- illegality cannot be allowed to perpetuate -- such situations are not covered even by Article 14 -- no equality can be claimed in illegality. (2006) 1 SCC 667, JT 1994 (7) SC 178, JT 1999 (2) SC 598 and JT 2000 (5) SC 389 relied on. [Para 16
(3) Civil Servant -- regularisation -- working for 240 days or more -- employee does not derive any legal right to be regularised in service. 1994 SC 1636, (2004) 8 SCC 262, JT 2005 (2) SC 98, (2005) 5 SCC 100 and JT 2006 (1) SC 84 relied on. [Para 17
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izR;FkhZ 7-4-1995 dks ;k mls vklikl mi&bathfuj ¼flfoy½ ds :i esa nSfud etnwjh ij fu;qDr fd;k x;k FkkA bl vk/kkj ij fd mldh lsok lekIr dh tk ldrh gS] mlus fjV ;kfpdk Qkby dh ftl ij vkns‘k fnukad 25-4-2000 }kjk mPp U;k;ky; us vihykFkhZ eaMy dks nSfud nj ij deZpkfj;ksa dh laoh{kk ds fy, jkT; ljdkj }kjk tkjh fd, x, rkRif;Zr ifji=ksa ds izdk‘k esa mlds ekeys ij fopkj djus dk funs‘k fn;kA mDr funs‘k ij laoh{kk lfefr fu;qDr dh xbZ ftldk fu"d"kZ Fkk fd dksbZ fjfDr ugha Fkh] u dksbZ eatwj in gh vfLrRo esa FkkA mlus rRi‘pkr~ Je U;k;ky; ds le{k e/; izns‘k vkS|ksfxd laca/k vf/kfu;e] 1960 ¼la{ksi ds fy, Þlu~ 1960 dk vf/kfu;eß½ dh /kkjk 64d ds lkFk ifBr /kkjk 31¼3½ ds vuqlkj rkRif;Zr vkosnu ;g izkFkZuk djrs gq, Qkby fd;k fd mls LFkk;h oxZ eas bl vk/kkj ij oxhZd`r fd;k tk, fd mlus Ng ekl ls vf/kd lek/kkuizn dk;Z fd;k gS vkSj bl izdkj mlds fy, ik= gks x;k gS] tSlk ekud LFkk;h vkns‘k ds [kaM (i) ds v/khu micaf/kr gSA Je U;k;ky; us vkns‘k fnukad 22-1-2002 }kjk mDr vkosnu eatwj dj fy;kA
mlds fo#) vihykFkhZx.k }kjk vkS|ksfxd U;k;ky;] tcyiqj ds le{k vihy izLrqr dh xbZ rFkk vkns‘k fnukad 16-10-2003 }kjk og [kkfjt dj nh xbZA vihykFkhZ }kjk Qkby dh xbZ fjV ;kfpdk Hkh [kkfjt dj nh xbZA vkf{kIr fu.kZ; }kjk vihykFkhZ }kjk Qkby dh xbZ ySVlZ isVsaV vihy Hkh [kkfjt dj nh xbZ gSA
vihykFkhZx.k dh vksj ls milatkr fo}ku dkmUlsy Jh ch-,l- ck¡fB;k us fuosnu fd;k fd izR;FkhZ nSfud etnwj ds :i esa fu;qDr gksus ds dkj.k mls LFkk;h deZpkjh ?kksf"kr ugha fd;k tk ldrk FkkA D;ksafd Li"V fjfDr fo|eku ugha FkhA ;g vkSj fuosnu fd;k x;k fd dsoy blfy, fd izR;FkhZ uas 240 fnu ls vf/kd dk;Z fd;k Fkk] ;g Lo;eso lsok esa fu;fefrdj.k ds fy, funs‘k tkjh fd, tkus dk vk/kkj ugha gks ldrk FkkA ¿ iSjk 3 ,oa 4À
vfHkfu/kkZfjr % LFkk;h deZpkjh dh izfLFkfr vfHkizkIr djus dh n`f"V ls O;fDr dkuwuh fu;eksa ds fuca/krkuqlkj fu;qDr fd;k x;k gksuk vko‘;d gSA izR;FkhZ dk ;g i{kdFku ugha gS fd mldh fu;qfDr fjDr in ij dh xbZ Fkh tks dkuwuh izkf/kdkjh }kjk lE;d~:is.k eatwj Fkk ;k mldh fu;qfDr ml {ks= esa izofrZr dkuwuh fof/k dk vuqlj.k dj ds dh xbZ FkhA ¿ iSjk 8À
nSfud etnwj ij /kkj.k ugha djrk] tc rd fd og vf/kfu;e vkSj rn/khu fojfpr fu;eksa ds vuqlkj fu;qDr ugha fd;k x;k gksA mls mlds laca/k esa dksbZ Hkh fof/kd vf/kdkj O;qRié ugha gksrkA ¿ iSjk 15À
tc ¼mDr½ ekeys esa izR;FkhZ dh iqf"V dh tk ldrh Fkh ml le; ;fn dksbZ in miyC/k ugha Fkk rc og fu;qfDr ‘kwU; gksxhA ,slh ‘kwU; fu;qfDr dk izHkko dksbZ fof/kd vf/kdkj iznÙk djus dk ugha gksrk ,slk vfHkfu/kkZfjr fd;k x;k gSA 2006 ¼1½ fof/k HkkLoj 162 ¼mPpre U;k-½] 2005 ¼3½ ts ,y ts 233 ¼mPpre U;k-½ ¼2006½ 1 ,l lh lh 667] 1964 ¼4½ ,l lh vkj 964 rFkk ts Vh 2006 ¼2½ ,l lh 137 voyafcrA ¿ iSjk 20À
¼2½ Hkkjr dk lafo/kku && vuq- 14 && voS/krk tkjh ugha jgus nh tk ldrh && ,slh ifjfLFkfr;k¡ vuqPNsn 14 }kjk Hkh vkPNkfnr ugha && voS/krk esa lekurk dk nkok ugha fd;k tk ldrkA ¼2006½ 1 ,l lh lh 667] ts Vh 1994 ¼7½ ,l lh 178] ts Vh 1999 ¼2½ ,l lh 598 rFkk ts Vh 2000 ¼5½ ,l lh 389 voyafcrA ¿ iSjk 16À
¼3½ flfoy lsod && fu;ferhdj.k && 240 ;k vf/kd fnu dk;Z djrk && deZpkjh dks lsok esa fu;fer fd, tkus dk fof/kd vf/kdkj O;qRié ugha gksrkA , vkb vkj 1994 ,l lh 1636] ¼2004½ 8 ,l lh lh 262] ts Vh 2005 ¼2½ ,l lh 98] ¼2005½ 5 ,l lh lh 100 rFkk ts Vh 2006 ¼1½ ,l lh 84 voyafcrA ¿ iSjk 17À
Sinha, J. -- 1. Leave granted.
2. 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 tiled a writ petition whereupon by an order dated 25.4.2000, the High Court directed the appellant 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 64A 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, become eligible there for 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."
3. An appeal was preferred there against 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.
4. 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 been a ground for issuance of a direction for the regularization in the service.
5. 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 others v. Onkar Prasad Patel [2006 (1) Vidhi Bhasvar 162 = JT 2005 (10) SC 492] 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.
6. The appellant 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 th
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