SUPREME COURT OF INDIA
State of Madhya Pradesh and Others
Vs
Yogesh Chandra Dubey and Others
Appeal (Civil) 3982 of 2006 (Arising Out of Slp (C) No.3793 of 2006)
(S. B. Sinha and Dalveer Bhandari, JJ)
08.09.2006
S. B. SINHA, J.
Leave granted.
Whether the respondents, who were engaged on daily wages, are entitled to claim
minimum of the pay scale attached to the post in which they had been working
with applicable allowances, 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.97.14p. 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.
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 from the Respondents in view of the orders passed
by Hon'ble M.P. State Administrative Tribunal Bhopal dated 15.12.97 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."
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, 1976. All recruitments, therefore, were required to be made strictly in
terms thereof.
By reason 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."
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.
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.
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.
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'.
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. If any recruitment is made by way of regularisation, the same
would mean a back-door appointment, which does not have any legal sanction.
In State of Karnataka & Ors. vs. KGSD Canteen Employees' Welfare Assn.
& Ors. this Court laid down the law in the following terms :
"The contention that at least for the period they have worked they were
entitled to the remuneration in the scale of pay as that of the government
employees cannot be accepted for more than one reason. They did not hold any
post. No post for the canteen was sanctioned by the State. According to the
State, they were not its employees. Salary on a regular scale of pay, it is
trite, is payable to an employee only when he holds a status. (See Mahendra L.
Jain v. Indore Development Authority .)
The High Court was, thus, not correct in holding that the members of the first
respondent could be treated on par with the Hospitality Organisation of the
State of Karnataka. Such equation is impermissible in law. In the Hospitality
Organisation of the State, the posts might have been sanctioned. Only because
food is prepared and served, the same would not mean that a canteen run by a
Committee can be equated thereto."
A person, who had been appointed by a State upon following the Recruitment
Rules, enjoys a status. A post must be created and/or sanctioned before filling
it up. The question recently came up for consideration in M.P. Housing Board
& Anr. vs. Manoj Shrivastava 2006 (2) SCC 702, wherein it was held:
"33. For the purpose of this matter, we would proceed on the basis that
the 1961 Act is a special statute vis-'-vis the 1973 Act and the Rules framed
thereunder. But in the 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. If by reason of
the latter, the appointment is invalid, the same cannot be validated by taking
recourse to regularisation. For the purpose of regularisation which would
confer on the employee concerned a permanent status, there must exist a post.
However, we may hasten to add that regularis+ation itself does not imply
permanency. We have used the term keeping in view the provisions of the 1963
Rules."
It was further opined:
"The appointment made by a person who has no authority therefor would
be void. A fortiori an appointment made in violation of the mandatory
provisions of the statute or constitutional obligation shall also be void. If
no appointment could be made in terms of the statute, such appointment being
not within the purview of the provisions of the Act, would be void; he cannot
be brought within the cadre of permanent employees. The definitions of
"permanent employee" and "temporary employee" as contained
in the Rules must, thus, be construed having regard to the object and purport
sought to be achieved by the Act."
Therein the question which arose for consideration was : 'As to whether the
respondents therein was a permanent employee within the meaning of Madhya
Pradesh Industrial Employment (Standing Orders) Act, 1961?' It was observed :
"A person with a view to obtain the status of a "permanent
employee" must be appointed in terms of the statutory rules. It is not the
case of the respondent that he was appointed against a vacant post which was
duly sanctioned by the statutory authority or his appointment was made upon
following the statutory law operating in the field.
The Labour Court unfortunately did not advert to the said question and
proceeded to pass its award on the premise that as the respondent had worked
for more than six months satisfactorily in terms of clause 2(vi) of the
Standard Standing Orders, he acquired the right of becoming permanent. For
arriving at the said conclusion, the Labour Court relied only upon the oral
statement made by the respondent."
The matter fell for consideration also in BHEL & Anr. vs. B.K. Vijay &
Ors. 2006 (2) SCC 654, wherein it was held :
"In terms of the proviso appended to Rule 5, the decision of the State
Government, in any dispute raised as regards the status of the Safety Officer,
is to be final. The respondent did not raise such a dispute. He made
representations only after the judgment was passed in the criminal case. In the
criminal case the learned Chief Judicial Magistrate imposed a fine of Rs.500 on
the persons who were accused therein. Despite the finding in the said criminal
case, it was open to the appellant to contend before the State Government that
having regard to the facts and circumstances of this case, the respondent was not
entitled to the remunerations payable to Senior Executive Officer."
In P. Ramanatha Aiyar's Advance Law Lexicon, 3rd Edn. Vol.4, at p.4469, the
expression "status" has been defined as under:
"Status is a much discussed term which, according to the best modern
expositions, includes the sum total of a man's personal rights and duties
(Salmond, Jurisprudence 253, 257), or, to be verbally accurate, of his capacity
for rights and duties. (Holland, Jurisprudence 88). The status of a person
means his personal legal condition only so far as his personal rights and
burdens are concerned. Duggamma v. Ganeshayya, 1965 AIR(Mys) 97 at 101.
[Indian Evidence Act (1 of 1872), Section 41.] In the language of jurisprudence
status is a condition of membership of a group of which powers and duties are
exclusively determined by law and not by agreement between the parties
concerned. (Roshan Lal Tandon v. Union of India, ."
The said expression has been defined in Black's Law Dictionary meaning :
"Standing; state or condition; social position. The legal relation of
individual to rest of the community. The rights, duties, capacities and
incapacities which determine a person to a given class. A legal personal
relationship, not temporary in its nature nor terminable at the mere will of
the parties, with which third persons and the state are concerned."
Only because a person is given a particular status, the same would not mean
that his other terms and conditions of service would not be governed by the
contract of employment or other statute(s) operating in the field. We may
notice that a three-Judge Bench of this Court in Indian Petrochemicals
Corporation Ltd. & Anr. v. Shramik Sena & Ors. observed as
under: (SCC p.449, para 22)
"[We] hold that the workmen of a statutory canteen would be the workmen of
the establishment for the purpose of the Factories Act only and not for all
other purposes."
{See also Municipal Council, Sujanpur vs. Surinder Kumar 2006 (5) JT
505.}
As the respondents did not hold any post, in our opinion, they are not entitled
to any scale of pay.
However, keeping in view the peculiar facts and circumstances of this case, we
may observe that the State should take steps to fill up the vacant posts, if
any, as expeditiously as possible, in which event, the cases of the respondents
may be considered together with other eligible candidates. However, age bar, if
any, to the extent they had worked with the appellants may be relaxed.
The appeal is allowed on the above terms. No costs.