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2006(3) JLJ 241
(SUPREME COURT)
S.B. Sinha and Dalveer Bhandari, J.J.
State of M.P. and others v. Yogesh Chandra Dubey and others
Civil Appeal No. 3982 of 2006 : against the judgment and
order of M.P. High Court passed in Writ Petition
No. 6640 of 2003;
Decided on 8.9.2006.
Whether the respondents, who were engaged on daily wages, are entitled to Claim minimum of the pay-scale attached to the post on which they had been working with applicable allowances, is the question involved in this appeal. [Para 2
Held : It is neither in doubt nor in dispute that the respondents were not appointed in terms of the statutory rules. Their services were taken by the officers only to meet the exigencies of situation. No post was sanctioned. Vacancies were not notified. It is now trite that a State within the meaning of Article 12 of the Constitution of India, while offering public employment, must comply with the Constitutional as also statutory requirements. Appointments to the posts must be made in terms of the existing rules. Regularisation is not a mode of appointment. It any recruitment is made by way of regularisation, the same would mean a back-door appointment, which does not have any legal sanction. JT 2006(1) SC 84, 2006(2) JLJ 1 (SC) and (2006)2 SCC 654 relief on. [Para 10
(2) Words and Phrases -- ‘status‘ -- means personal legal condition only so for as his personal rights and burdens are concerned. AIR 1965 Mys. 97 approved. [Para 15
(3) Words and Phrases -- ‘status‘ -- in accordance with jurisprudence -- is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement. 1967 SLR 832 relied on. [Para 15
(4) Factories Act, 1948 -- S. 2(l) -- workman of a statutory canteen -- would be the workman of the establishment for the purpose of Factories Act only -- not for other purposes. JT 1999(5) SC 339 and JT 2006(11) SC 226 relied on. [Para 15
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Sinha, J. -- 1. Leave granted.
2. Whether the respondents, who were engaged on daily wages, are entitled to claim minimum of the pay-scale attached to the post on which they had been working with applicable allowance, is the question involved in this appeal, which arises out of a judgment and order dated 4th August 2004 passed by the High Court of Madhya Pradesh, Indore Bench, in Writ Petition No. 6640/2003. The respondents were appointed on daily wages. The amount of daily wages at the rate of Rs.97.14 p. was fixed by the Collector of District. They are not appointed upon compliance of the statutory rules. No advertisement was issued. Vacancies were also not notified to the Employment Exchange.
3. On the premise that they are entitled to regularisation of their services, they filed an original application before the Madhya Pradesh State Tribunal, inter alia, praying for the following reliefs:
(A) Order be passed for payment of Pay-scale for Assistant Grade Post Regular (except increment in salary benefit) from the date of filing the case before this Hon'ble Tribunal by the respondents in view of the orders passed by Hon'ble M.P. State Administrative Tribunal Bhopal dated 15.12.1997 Annexure A-6.
(B) That the respondents be directed that respondent should take appropriate action for regularising the applicant as Assistant Grade III Post within the prescribed time period.
4. In the said proceedings, the appellant inter alia, contended that the respondents having not been engaged on any vacant post, payment of salary on a regular scale of pay is impermissible in law. The posts of Assistant Grade III, it was pointed out, are filled up in terms of the procedures provided/laid down in the Recruitment Rules known as Madhya Pradesh Public Health Engineering Department (Non-Gazetted) Service (Conditions of Service and Recruitment) Rules, 197f. All recruitments, therefore, were required to be made strictly in terms thereof.
5. By reasons of an order dated 1.1.2002, the Tribunal directed:
"..... In similar cases the Tribunal has given the relief to the applicants which the applicant's counsel is seeking. Therefore, this petition is disposed off with the direction that the applicants shall be paid the wages at the minimum of the pay scale of the post on which they are working along with applicable allowances but without the benefit of increments with effect from the date of filing of this petition, provided these possess the minimum qualification for the post."
6. Evidently, the Tribunal issued the said directions on the basis of an earlier order dated 15.12.1997 passed by it in Original Application No. 400/1994.
7. A writ petition filed by the appellant herein before the High Court was dismissed by reason of the impugned judgment following an earlier decision of the Division Bench of the same Court.
8. Mr. S.K. Dubey, learned senior counsel appearing on behalf of the appellants raised a short contention in support of this appeal. It was urged that the respondents could have claimed salary on a regular scale of pay if they had a legal right to be regularised in service. The respondents, it was contended, do not hold a post and therefore, the impugned judgment cannot be sustained.
9. Mr. Vimal Chandra Dave, learned counsel appearing on behalf of the respondents, on the other hand, submitted that respondents were entitled to the same scale of pay as are being paid to the holders of Assistant Grade III on the basis of 'doctrine of equal pay for equal work'.
10. It is neither in doubt nor in dispute that the respondents were not appointed in terms of the statutory rules. Their services were taken by the officers only to meet the exigencies of situation. No post was sanctioned. Vacancies were not notified. It is now trite that a State within the meaning of Article 12 of the Constitution of India, while offering public employment, must comply with the Constitutional as also statutory requirements. Appointments to the posts must be made in terms of th
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