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Ajay Kumar, (1997) 4 SCC 88 1997 Indlaw SC 833, Jawaharlal Nehru Krishi Viswa Vidyalaya, Jabalpur, M.P. Vs Ratio |
Bal Kishan Soni and Others (1997) 5 SCC 86] 1997 Indlaw SC 928 Ratio |
In Hindustan Shipyard Ltd. and Others vs. Dr. P. Sambasiva Rao and Others [(1996) 7 SCC 499] 1996 Indlaw SC 3441, a Division Bench of this Court observed PRE |
The process of regularization involves regular appointment which can be done only in accordance with the prescribed procedure PRE |
Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment PRE |
In A. Umarani vs. Registrar, Cooperative Societies and Ors PRE |
JT 2004 (6) SC 110], 2004 Indlaw SC 606 a three-Judge Bench of this Court of which we were members upon taking into consideration a large number of decisions held : "Although we do not intend to express any opinion as to whether the cooperative society is a "State" within the meaning of Art PRE |
but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions PRE |
In this case except the Nodal Centre functions and supervision of the cooperative society, the State has no administrative control over its day to day affairs PRE |
The State has not created any post nor they could do so on their own PRE |
The State has not borne any part of the financial burden PRE |
It was, therefore, impermissible for the State to direct regularization of the services of the employees of the cooperative societies PRE |
Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time PRE |
Yet recently in Pankaj Gupta & Ors., etc PRE |
vs. state of Jammu & Kshmir & Ors PRE |
JT 2004 (8) SC 531] 2004 Indlaw SC 729, a Division Bench of this Court opined : "No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service PRE |
In this situation, we see no reason to interfere with the impugned order PRE |
The appointees have no right for regularization in the service because of the erroneous procedure adopted by the concerned authority in appointing such persons PRE |
CASE LAW RELIED UPON BY THE APPELLANT PRE |
In Dr. A.K. Jain and Others etc PRE |
vs. Union of India and Others [1987 (Supp PRE |
SCC 497 PRE |
1987 Indlaw SC 28778, this Court did not lay down any law PRE |
It was, in fact, held that as the Petitioners therein were not regularized in accordance with the prescribed rules and regulations for regular appointments, their services had to be terminated and as such there had been neither any arbitrary nor illegal action on the part of the respondents nor any violation of the Fun... |
14 and 16 PRE |
However, having regard to the facts and circumstances of the said case, some directions were issued presumably in terms of Art PRE |
142 of the Constitution PRE |
In Hindustan Shipyard Ltd PRE |
1996 Indlaw SC 3441 (supra) this Court also distinguished the said decision PRE |
In Niadar and Another vs. Delhi Administration and Another [(1992) 4 SCC 112] 1988 Indlaw SC 244, again no law has been laid down PRE |
It appears that there existed a scheme for regularization and some directions were issued in terms thereof PRE |
The said decisions, thus, are of no assistance in this case PRE |
APPLICATION OF THE ACT AND THE RULES STA |
The 1961 Act was enacted to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the State of Madhya Pradesh STA |
By reason of the provisions of the said Act, application of Standard Standing Orders to undertakings has been provided in terms whereof the matters to be provided in the Standard Standing Orders have been specified STA |
Under sub-s STA |
1) of Section 6, the State Government may, by notification, apply Standard Standing Orders to such class of undertakings and from such date as may be specified therein STA |
Sub-s STA |
2) of S. 6 reads as under : "Where immediately before the commencement of this Act standing order are in force in respect of any undertaking, such standing orders shall, until standard standing orders are applied to such undertaking under sub-s STA |
1) continue in force as if they were made under this Act STA |
No notification has been brought to our notice that the Standard Standing Orders had been made applicable to the Appellants Ratio |
It is furthermore not in dispute that Adhiniyam came into force in 1973 Ratio |
The statute, rules and regulations formed by the State govern the terms and conditions of service of the employees of the Respondent Ratio |
The terms of conditions of service contained in the 1973 Act and the 1987 Rules are not in derogation of the provisions contained in schedule appended to the 1961 Act Ratio |
The 1961 Act provides for classification of employees in five categories Ratio |
The 1973 Act, as noticed hereinbefore, clearly mandates that all posts should be sanctioned by the State Government and all appointments to the said cadre must be made by the State Government alone Ratio |
Even the appointments to the local cadre must be made by the Authority Ratio |
The said provisions were not complied with Ratio |
It is accepted that no appointment letter was issued in favour of the Appellants Ratio |
Had the appointments of the Appellants been made in terms of the provisions of the Adhiniyam and Rules framed thereunder, the Respondent-Authority was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the Appellants herein Ratio |
Who made the appointments of the Appellants to the Project or other works carried on by the Authority is not known Ratio |
Whether the person making an appointment had the requisite jurisdiction or not is also not clear Ratio |
We have noticed hereinbefore that in the case of Om Prakash Mondloi, the CEO made an endorsement to the effect that he may be tried in daily wages and should be entrusted with the work of progress collection of ODA work Ratio |
The said order is not an 'offer of appointment' by any sense of term Ratio |
It may be true that the Appellants had been later on put on a monthly salary but there is nothing on record to show as to how the same was done Ratio |
They might have been subjected to the provisions of the employees provident fund and might have been granted the benefit of leave or given some employment code and their names might have found place in the seniority list amongst others, but thereby they cannot be said to have been given a permanent ticket Ratio |
The so-called seniority list which is contained in Annexure P-27, whereupon strong reliance has been placed by Dr. Dhawan merely itself goes to show that it was prepared in respect of office muster employees Ratio |
The said seniority list was not prepared in terms of the classification of employees within the meaning of the 1961 Act and the rules framed there under but was based on the date of joining probably for the purpose of maintenance of records Ratio |
The 1973 Act or the rules framed there under do not provide for appointments on ad hoc basis or on daily wages Ratio |
The 1961 Act itself shows that the employees are to be classified in six categories, namely, permanent, permanent seasonal, probationers, badlies, apprentices and temporary Ratio |
The recruitments of the Appellants do not fall in any of the said categories Ratio |
With a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof Ratio |
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 Ratio |
A 'ticket of permanent employee' was, thus, required to be issued in terms of Order 3 of the Standard Standing Orders Ratio |
Grant of such ticket was imperative before permanency could be so claimed Ratio |
The Appellants have not produced any such ticket Ratio |
It is not the case of the Appellants that they had been working as Technical Supervisors and Clerks in respect of which service book may be maintained instead of issuance of a ticket Ratio |
It is also not the case of the Appellants that their names had appeared in the service book maintained for the said purpose Ratio |
The Standing Orders governing the terms and conditions of service must be read subject to the Constitutional limitations wherever applicable Ratio |
Constitution being the suprema lax, shall prevail over all other statutes Ratio |
The only provision as regard recruitment of the employees is contained in Order 4 which merely provides that the Manager shall within a period of six months, lay down the procedure for recruitment of employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the La... |
The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules Ratio |
In absence of any specific directions contained in the schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the Respondent shall prevail Ratio |
In M.P. Vidyut Karamchari Sangh vs. M.P. Electricity Board [(2004) 9 SCC 755], 2004 Indlaw SC 198 a three-Judge Bench of this Court held that a regulation which is not inconsistent with the provisions of the 1961 Act and the Rules, can be issued by a statutory authority PRE |
For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute Ratio |
vis-a-vis the 1973 Act and the rules framed thereunder Ratio |
But in absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply Ratio |
If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularization Ratio |
For the purpose of regularization which would confer on the concerned employee a permanent status, there must exist a post Ratio |
However, we may hasten to add that regularization itself does not imply permanency Ratio |
We have used the term keeping in view the provisions of 1963 Rules Ratio |
We have noticed the provisions of the Act and the Rules Ratio |
No case was made out by the Appellants herein in their statements of claim that they became permanent employees in terms thereof Ratio |
There is also nothing on records to show that such a claim was put forward even in the demand raising the industrial dispute Ratio |
Presumably, the Appellants were aware of the statutory limitations in this behalf Ratio |
Furthermore, the Labour Court having derived its jurisdiction from the reference made by the State Government, it was bound to act within the four-corners thereof Ratio |
It could not enlarge the scope of the reference nor could deviate therefrom Ratio |
A demand which was not raised at the time of raising the dispute could not have been gone into by the Labour Court being not the subject-matter thereof Ratio |
The questions which have been raised before us by Dr. Dhawan had not been raised before the Labour Court Ratio |
The Labour Court in absence of any pleadings or any proof as regard application of the 1961 Act and the 1963 Rules had proceeded on the basis that they would become permanent employees in terms of Order 2(ii) and 2(vi) of the Annexure appended thereto Ratio |
The Appellants did not adduce any evidence as regard nature of their employment or the classification under which they were appointed Ratio |
They have also not been able to show that they had been issued any permanent ticket Ratio |
Dr. Dhawan is not correct in his submission that a separate ticket need not be issued and what was necessary was merely to show that the Appellants had been recognized by the State as its employees having been provided with employment code Ratio |
We have seen that their names had been appearing in the muster rolls maintained by the Respondent Ratio |
The Scheme of the employees provident fund or the leave rules would not alter the nature and character of their appointments Ratio |
The nature of their employment continues save and except a case where a statute interdicts which in turn would be subject to the Constitutional limitations Ratio |
For the purpose of obtaining a permanent status, constitutional and statutory conditions precedent therefor must be fulfilled Ratio |
The submission of Mr. M.N. Rao to the effect that the principle of equity should be invoked in their case is stated to be rejected ARG |
Such a plea had expressly been rejected by this Court in A. Umarani 2004 Indlaw SC 606 (supra ARG |
PROJECT WORK Ratio |
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