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Another point which was specifically raised before the High Court but has not been dealt by it is the legality of the action in directing retrospective withdrawal of the benefit by a letter of the Government Ratio |
Whether the same is permissible in law has to be decided by the High Court Ratio |
To the aforesaid limited extent, the matter is remitted to the High Court for fresh consideration RPC |
The appeals are disposed of accordingly without any order as to costs RPC |
Appeals disposed of RPC |
These appeals arising out of a judgment and order dated 26.4.2000 passed in Writ Petition No.1188 of 1997 by the High Court of Madhya Pradesh, Indore Bench, involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment FAC |
BACKGROUND FACTS FAC |
The Appellant Nos.1 and 2 are Degree holders in Civil Engineering and Appellant Nos FAC |
3 and 4 are Diploma holders in Civil Engineering FAC |
They having come to learn that certain vacancies exist in the Respondent- Authority, applied therefor although no advertisement in that behalf was issued FAC |
The Respondent-Authority appointed the Appellants and posted them to an overseas project known as 'Indore Habitat Project' which was implemented through the agency of 'Overseas Development Authority' (hereinafter referred to as 'the ODA'), on daily wages FAC |
Rs.63/- per day for the Degree holders and Rs.52.50 per day for the Diploma holders FAC |
On or about 17.3.1997, however, they began receiving a salary of Rs.1500/- per month FAC |
Allegedly, from their salary, provident fund was being deducted FAC |
They were also being granted the benefit of leave FAC |
A dispute arose as to whether all the Appellants were employed for the purpose of the said project or the Appellants in Civil Appeal No.337 of 2002 were appointed in the year 1991 by the Authority for its own job Ratio |
An industrial dispute was raised by the Appellants herein as their services were not being regularized by the Respondent Ratio |
The said dispute was referred for adjudication of the Labour Court, Indore, by the State of Madhya Pradesh on the following questions FAC |
1)Whether non-regularisation of the Sub-Engineers (as per the listed enclosed) is valid and proper Ratio |
If no, then to which relief they are entitled and what directions should be given to the employer Ratio |
2)Whether it is valid and proper for not giving equal salary to these Sub Engineers like other Sub Engineers in accordance with the equal work Ratio |
PROCEEDINGS BEFORE THE TRIBUNAL FAC |
The parties filed their respective pleadings before the Labour Court and also adduced their respective evidences FAC |
The Labour Court on the basis of the materials produced before it arrived at the following findings : 1 FAC |
The Appellants were appointed by the Indore Development Authority FAC |
All the employees have been working in the establishment of the Respondents for last 5-6 years FAC |
Their work was satisfactory FAC |
Work has been taken by the Respondent from all the Appellants except four FAC |
Respondents had also mentioned in their claim that there was a proposal to hand over the colony of ODA Project to Indore Municipal Corporation FAC |
The salary fixed by the Commissioner was earlier given to all Engineers and later on they were given the salary fixed by the Collector FAC |
There is no difference in their work and the work of the employees of Indore Development Authority FAC |
Aggrieved by and dissatisfied with the said Award, the Respondent- Authority herein filed a writ petition before the Madhya Pradesh High Court, Indore Bench, which was marked as Writ Petition No.1188 of 1997 FAC |
By reason of the impugned judgment dated 26.4.2000, the said writ petition was allowed FAC |
HIGH COURT JUDGMENT RLC |
The High Court accepted the contention of the Respondent-Authority that the Appellants were not appointed against the sanctioned posts and their services were taken on account of the said ODA Project which was implemented through the agency of the Respondent-Authority RLC |
The ODA Project is said to have been completed and only the maintenance thereof was to be looked after by the Indore Municipal Corporation RLC |
It was held that the services of the Appellants cannot be directed to be regularized in services RLC |
As regard the application of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (for short, 'the 1961 Act') and the Rules framed there under known as 'M.P. Industrial Employment (Standing Order) Rules, 1963 (for short, 'the 1963 Rules'), it was observed that although there was no specific pleadings ra... |
Despite the same the High Court went into the question of applicability of the said Act and held that the 1961 Act and the 1963 Rules had no application RLC |
Before the High Court various documents were produced by the Appellants herein to show the nature of their employment, but the same had not been taken on records by the High Court RLC |
As regard application of the doctrine of 'equal pay for equal work', it was held to be not applicable as the Appellants were not entitled to 'absorption' or 'classification' in terms of the 1961 Act and the 1963 Rules RLC |
SUBMISSIONS ARG |
Dr. Rajiv Dhawan, learned Senior Counsel, appearing on behalf of the Appellants in Civil Appeal No.337 of 2002 and Mr. M.N. Rao, learned Senior Counsel, appearing on behalf of the Appellants in Civil Appeal No.335 of 2002, took us through materials on records and contended that the Appellants herein became 'permanent e... |
Placing reliance on several documents which have come into existence at a subsequent stage, Dr. Dhawan would contend that vacancies in fact had arisen after passing of the judgment of the High Court and, thus the services of the Appellants should be regularized there against ARG |
The vacancies, according to the learned counsel, need not be permanent ones ARG |
It was urged that the expression 'clear vacancies' has to be read in the context of period for which the concerned workman was required to work, namely, six months ARG |
The learned counsel would argue that the job was required to be performed for six months for which somebody else could have been appointed so as to attract the provisions of the 1961 Act and the 1963 Rules ARG |
Dr. Dhawan would furthermore contend that the findings of fact had been arrived at by the Labour Court that the Appellants of Civil Appeal No.337 of 2002 were appointed by the Authority and not only their work was being taken in the Project but also in other works, and, thus, mere posting of the Appellants to the said ... |
The learned counsel would urge that a seniority list was also drawn up and an employment code was assigned to each one of the Appellants from which fact the nature of their employment should be judged ARG |
The learned counsel would submit that the sufficient materials were brought on records to show that vacancies were available and as the Appellants worked for a period of more than six months, they became permanent employees in terms of the Act ARG |
It was further contended that as the Respondents despite direction to produce documents including the offers for appointment did not produce the same, an adverse inference should have been drawn against them by the High Court ARG |
As regard the claim of 'equal pay for equal work', the learned counsel would urge that the High Court has failed to consider the same in its true perspective ARG |
Mr. V.R. Reddy, learned Senior Counsel appearing on behalf of the Respondents, on the other hand, would contend that indisputably the Appellants were engaged by the Respondent-Authority but such appointments were made for the purpose of the Project financed by ODA ARG |
The learned counsel would submit that in fact no appointment letter was issued to the Appellants ARG |
Our attention was also drawn to the application dated 22.10.1991 filed by one O.P. Mandloi before the Chairman of the Indore Development Authority disclosing his educational qualifications and enclosing therewith the mark-sheets and degrees obtained by him in Civil Engineering and also Secondary School Examination Cert... |
whereupon the Chief Executive Officer on the body of the said application itself, made the following endorsement : "He may be tried in daily wages and should be entrusted with the work of progress collection of ODA work put with (Illegible ARG |
Sd/- C.E.O. 23.10.91 ARG |
The learned counsel would submit that in the aforementioned premise the question of regularization of the services of the Appellants does not arise ARG |
Drawing our attention also to the pleadings as also the reliefs claimed for by the Appellants before the Labour Court, the learned counsel would contend that no contention was raised therein by the Appellants as regard their entitlement of permanency in terms of the provisions of the 1961 Act and the 1963 Rules ARG |
Furthermore, from the reliefs claimed, it would appear that the Appellants had, inter alia, prayed for continuance of their services by the Indore Municipal Corporation which knocks off the very basis of their claim ARG |
It was urged that there does not exist any controversy that ODA was to continue before 30.6.1997 and as such the Appellants could not have been absorbed by the Respondent authority ARG |
STATUTORY STA |
PROVISIONS : S. 2(2) of the 1961 Act STA |
reads as follows : "Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations or any other rules or regulations th... |
Cl STA |
2 of the Standard Standing Order reads as under : "2 STA |
Classification of employees STA |
Employees shall be classified as (i) permanent , (ii) permanent seasonal,(iii STA |
Probationers, (iv) Badlies, (v) Apprentices, and (vi) temporary STA |
i STA |
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; (vi STA |
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 f... |
i) above STA |
DETERMINATION Ratio |
The Respondent-Authority is a State within the meaning of Art Ratio |
12 of the Constitution of India PRE |
It is, therefore, constitutionally obliged to strictly comply with the requirements of Arts Ratio |
14 and 16 thereof before making any appointment Ratio |
It is also not in dispute that the Respondent- Authority has been constituted under Madhya Pradesh Nagar Tatha Gram Nibesh Adhiniyam, 1973 (Adhiniyam); S. 47 whereof mandates that all appointments to the posts of officers and servants included in the State cadre mentioned in Section 76-B of the Development Authority Se... |
The proviso appended to S. 47 of the Adhiniyam further mandates that no post shall be created in any authority without the prior sanction of the State Government Ratio |
Section 76B provides for constitution of development authorities service Ratio |
It is also not in dispute that the State Government in exercise of its rule making power conferred upon it u/s Ratio |
85 of the Adhiniyam has made rules known as 'M.P. Development Authority Services (Officers and Servants) Recruitment Rules, 1987 Ratio |
The posts of Sub Engineers in which the Appellants were appointed Ratio |
it is nobody's case, were sanctioned ones Ratio |
Concededly, the Respondent Authority before making any appointment neither intimated the Employment Exchange about the existing vacancies, if any, nor issued any advertisement in relation thereto Ratio |
Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the Service Rules had not been complied with Ratio |
The appointments of the Appellants were, therefore, void ab initio being opposed to public policy as also violative of Arts Ratio |
14 and 16 of the Constitution of India Ratio |
The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services Ratio |
The answer thereto must be rendered in negative Ratio |
Regularisation cannot be claimed as a matter of right Ratio |
An illegal appointment cannot be legalized by taking recourse to regularization Ratio |
What can be regularized is an irregularity and not an illegality Ratio |
The Constitutional Scheme which the country has adopted does not contemplate any backdoor appointment Ratio |
A State before offering public service to a person must comply with the Constitutional requirements of Arts Ratio |
14 and 16 of the Constitution Ratio |
All actions of the State must conform to the Constitutional requirements Ratio |
A daily wager in absence of a statutory provision in this behalf would not be entitled to regularization Ratio |
See State of U.P. & Others Vs Ratio |
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