- (1.) SHISHIR Kumar
(2.) THIS writ petition has been filed for quashing the award dated 30.5.1998 passed by respondent No. 1 published on 25.2.1999, Annexure-6 to the writ petition. The facts arising out of the writ petition is that the petitioner is Chandra Shekhar Azad University of Agriculture and Technology, Kanpur (hereinafter referred to as the University) is State under Article 12 of the Constitution of India. Its basic object is to undertake various training and project for the betterment of the agriculture. It employs persons from time to time in respect of particular project. It is further respectfully submitted that the University is not an industry as defined in U. P. Industrial Disputes Act. Respondent No. 2 was appointed on daily wage basis by the University on 1.7.1980 for a particular period and was working even today on daily wage basis. From 1.9.1980 to 6.8.1993 respondent No. 2 worked as Lab. Assistant/attendant on daily wage basis which is a class IV post. When the services of respondent No. 2 were not regularized, he raised a dispute. The same was referred by the State Government before respondent No. 1, which was registered as Claim Petition No. 30 of 1994 for a relief to declare him as a permanent and regular clerk of the University. A written statement was filed on behalf of the Administrative Officer of the University and a reply to that effect was also filed by respondent No. 2 but the labour court has illegally given an award dated 30.5.1998 with a direction that respondent No. 2 will be treated to be regular from the date of award. It has been submitted on behalf of the petitioner that respondent No. 1 has no power or jurisdiction to pass an award for the purpose of regularization of services of an employee. The labour court has exceeded its jurisdiction in terms of the reference. The labour court has wrongly held that the juniors have been regularized and the allegations to this effect made in the impugned order are absolutely vague as in the matter of regularization several factors are to be considered, as Articles 14 and 16 cannot be said to be applicable. It has clearly been stated in the written statement filed on behalf of the petitioner that there is no industrial dispute and the reference has been made without applying its mind and the reference is incompetent and is not maintainable for want of industrial dispute. It has also been stated that the employees are temporarily engaged on the basis of daily wage for specific job of casual nature which cannot be said to be regular work, as such respondent No. 1 has got no jurisdiction to direct the petitioner to pass an order of regularization. The reliance has been placed upon a judgment in State of U. P. v. Presiding Officer, Labour Court Meerut, 2003 (2) ESC 1007 : 2003 (3) AWC 2119, and has placed reliance on para 25 of the said judgment which is reproduced below : "25. In view of the above, the law of regularizations be summarized that the appointment should be made at initial stage in accordance with rules. Incumbent must possess the requisite qualification for the post on the date of appointment and if appointment had been made on temporary ad hoc basis, the workman should be permitted to continue for long rather the vacancies should be filled up on permanent basis in accordance with law. If the statutory provision or executive instruction provides for regularization after completing a particular period only then regularization is permissible. In special circumstances, Court may give direction to consider the case for regularization provided continuation on ad hoc basis is so long that it amounts to arbitrariness and provisions of Article 14 are attracted. There must be sanctioned post against which regularization is sought. At the same time policy of the State enforcing the reservation for particular classes like S.C., S.T., O.B.C. etc. and further for women, handicapped and ex-service men cannot be ignored."
(3.) FURTHER reliance has been placed upon State of U. P. and others v. Ajay Kumar, (1997) 4 SCC 88 : 1997 (3) AWC 1656 (SC), and has submitted that the Apex Court has clearly held that High Court has no jurisdiction to hold that a daily wager is entitled for regularization. There must exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to that post. Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. FURTHER reliance has been placed by the counsel for the petitioner on Mahendra Lal Jain and others v. Indore Development Authority and others, (2005) 1 SCC 639, and has placed reliance upon paras 18, 19, 29, 33, 34 and 35 which are reproduced below : "18. The posts of Sub-Engineers in which the appellants were appointed, it is nobody's case, were sanctioned ones. 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. 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. The appointments of the appellants were, therefore, void ab initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution. 19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in the negative. Regularization cannot be claimed as a matter or right. An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any backdoor appointment. A State before offering public service to a person must copy with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularization. See State of U. P. v. Ajay Kumar and Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Bal Kishan Soni. 29. 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. 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 jist amongst others, but thereby they cannot be said to have been given a permanent ticket. The so-called seniority list which is contained in Annexure-P 27, whereupon strong reliance has been placed by Dr. Dhavan merely itself goes to show that it was prepared in respect of office muster employees. 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 thereunder but was based on the date of joining probably for the purpose of maintenance of records. The 1973 Act or the Rules framed thereunder do not provide for appointments on ad hoc basis or on daily wages. The 1961 Act itself shows that the employees are to be classified in six categories, namely 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 III of the Standard Standing Orders. Grant of such ticket was imperative before permanency could be claimed. The appellants have not produced any such ticket. 33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute vis-a-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 1987 Rules would apply. If by reasons of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularization. For the purpose of regularization which would confer on the employee concerned a permanent status, there must exist a post. However, we may hasten to add that regularization itself does not imply permanency. We have used the term keeping in view the provisions of the 1963 Rules. 34. We have noticed the provisions of the Act and the Rules. No case was made out by the appellants herein in their statements of claims that they became permanent employees in terms thereof. There is also nothing on record to show that such a claim was put forward even in the demand raising the industrial dispute. Presumably, the appellants were aware of the statutory limitations in this behalf. FURTHERmore, the labour court having derived its jurisdiction from the reference made by the State Government, it was found to act within the four corners thereof. It could not enlarge the scope of the reference nor could deviate therefrom. 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. 35. The questions which have been raised before us by Dr. Dhavan had not been raised before the labour court. The labour court in the absence of any pleadings or any proof as regards application of the 1961 Act and the 1963 Rules had proceeded on the basis that they would become permanent employees in terms of Orders 2 (ii) and 2 (vi) of the annexure appended thereto. The appellants did not adduce any evidence as regards nature of their employment or the classification under which they were appointed. They have also not been able to show that they had been issued any permanent ticket. Dr. Dhavan 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. We have seen that their names had been appearing in the muster rolls maintained by the respondent. The scheme of the employees' provident fund or the leave rules jould not alter the nature and character of their appointments. 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. For the purpose of obtaining a permanent status, constitutional and statutory conditions precedent therefore must be fulfilled." In such a situation the counsel for the petitioner submits that in view of the aforesaid fact, the award of the labour court as it relates to the directions issued in the award regarding regularization of the services of the respondent No. 2 is liable to be set aside. Further it has been submitted on behalf of the petitioner that the labour court ought to have dismissed the case of respondent No. 2 on the ground of delay and has placed reliance upon the judgment of the Apex Court in JT 2006 (1) SC 411.;