Permanent classification requires evidence of appointment on a vacant post, and the violation of statutory provisions vitiates administrative decisions.

Judgment

With consent of learned counsel for the parties, the petition is heard finally.

2. Petition is directed against the order dated 16.1.2007 passed by the Industrial Court; whereby, an appeal under section 65 of the Madhya Pradesh Industrial Relations Act, 1960 filed by petitioner has been dismissed upholding the order passed by the Labour Court on 20.6.2005.

3. Facts briefly are that the members of respondent No. 1 -Union engaged initially for 89 days with the petitioner establishment were regularized in October, 1995. However, by order No. @ Hindi @ the order of regularization was cancelled on the ground that mistakenly the workmen were regularized against the post reserved for scheduled castes and scheduled tribes and that without following the procedure laid down in the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (for short 'the Adhiniyam of 1994').

4. Aggrieved, the respondent-Union raise the dispute by filing an application under section 31 (3) read with section 61 of the Madhya Pradesh Industrial Relations Act, 1960, challenging the order of deregularisation on the ground that no opportunity of hearing was afforded before canceling the order of regularization.

5. The Labour Court vide order dated 20.6.2005 allowed the application and while setting aside the order of cancellation of regularization on the ground that the same was passed without affording an opportunity of hearing, also directed for permanent classification of the workmen as they had completed six months satisfactory services on vacant post.

6. Aggrieved, the petitioner-employer filed an appeal on the grounds that in absence of cogent evidence regarding appointment of the respective workmen on the vacant post, they could not have been classified as permanent employee merely because they rendered six months satisfactory service and secondly, since their regularization was dehors the Adhiniyam of 1994 no right accrued in their favour and were thus rightly repatriated to their status as daily wage labour by cancelling the order of regularization.

7. The Appellate Court i.e. Industrial Tribunal dismissed the appeal by impugned order. Thus giving rise to present writ petition.

8. Petitioner has two fold grievance, firstly that, the Courts below fell into patent error that despite of the fact that there was no material on record that the employees were engaged/appointed against the vacant post, yet merely on the basis that they had completed six months of service, they were directed to be classified as permanent. Placing reliance on the decision in Mahendra L. Jain and others vs. Indore Development Authority and others : (2005) 1 SCC 639 and M.P. Housing Board and another vs. Manoj Shrivastava : (2006) 2 SCC 702, it is urged that unless proved by the employee by a cogent evidence that he was engaged on a vacant post by due process, he is not entitled for being classified as permanent.

In Mahendra L. Jain (supra) it is observed:

"29......The 1961 Act itself shows that the employees are to be classified in six categories, namely, permanent, permanent seasonal, probationers, badlies, apprentices and temporary. The recruitments of the Appellants do not fall in any of the said categories. With a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof. Permanent employee has been divided in two categories (i) who had been appointed against a clear vacancy in one or more posts as probationers and otherwise; and (ii) whose name had been registered at muster roll and who has been given a ticket of permanent employee. A 'ticket of permanent employee' was thus, required to be issued in terms of Order 3 of the Standard Standing Orders. Grant of such ticket was imperative before permanency could be so claimed. The Appellants have not produced any such ticket.

31. The Standing Orders governing the terms and conditions of service