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2007(3) JLJ 26
(SUPREME COURT)
S.B. Sinha and Markandey Katju, JJ.
State of M.P. and others v. Lalit Kumar Verma
Civil Appeal No.5185 of 2006: against the order of M.P. High Court.
Bench at Gwalior. passed in Writ Petition No. 1587 of 2000;
Decided on 24.11.2006.
The 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 workmen. 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 permanent basis as clerk from two years prior to the date of his filing the application, i.e., 11.11.1991. 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 there against 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. [Para 2
Held: A workman, therefore, would be entitled to classification of permanent or temporary employee, if the conditions precedent therefor are satisfied. The 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.
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 regularised in service. 2006(3) JLJ 241 (SC), 2005(3) JLJ 233 (SC), 2006(2) JLJ 1 (sq, (2006)5 SCC 173, CA No.4996/2006, (2006)4 SCC 1, AIR 1967 SC 1071, (1972) 1 SCC 409 and (1979)4 SCC 507 relied on. (2006)6 SCC 310 distinguished. Judgment of High Court reversed. [Paras 7 & 10
(2) Public Servant -- appointment – "irregular appointment" and "illegal appointment" -- distinction between.
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 with 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. 2006(2) BLJ 68 (SC), (2006)6 SCC 430, (2006)6 SCC 21 and (2006)7 SCC 161 relied on. [Para 12
(3) Public Servant -- appointed illegally -- not on any vacant post d`remained for considerable period -- benefit received by him Cannot be recovered from him -- he is entitled to an amount of Rs.1.50,000/- for condonation of massive delay in filing SLP. [Paras 21 & 22
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Sinha, J. -- 1. Leave granted.
2. The 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 workmen. 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 permanent basis as clerk from two years prior to the date of his filing the application, i.e., 11.11.1991. 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 there against 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.
3. 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 the Madhya Pradesh Industrial Relations Act, 1960. Strong reliance in this behalf was Placed on State of M.P. v. Yogesh Chandra Dubey [2006(3) JLJ 241=(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.
4. 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.
5. 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 1.4.1987 after classification in the category of supervisor and clerk.
6. Clause 2 of the Standard Standing Orders reads as under:
"2. Classification of employees -- Employees shall be classified as (i) permanent, (ii) permanent seasonal, (iii) probationers, (iv) badlis, (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;
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(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."
7. A workman, therefore, would be entitled to classification of permanent or temporary employee, if the conditions precedent therefor are satisfied. The 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.
8. In Mahendra L. Jain v. Indore Development Authority [2005(3) JLJ 233=(2005) 1 SCC 639], this Court opined:
"28. The 1961 Act provides for classification of employees in five categories. The 1973 Act, as noticed hereinbefore, clearly mandates that all posts sho
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