- (1.) THIS writ petition has been filed for quashing the award of Labour Court dated 19. 12. 2006 published on 25. 4. 2007 (Annexure 6 to writ petition ). Further a writ in the nature of mandamus commanding the respon dents not to compel the petitioner to execute the award.
(2.) THE facts arising out of present writ petition are that father of respondent No. 2 was working as Khalasi died in harness, therefore, respondent No. 2 being provided the facility of dependent of deceased em ployee was appointed as Khalasi on compassionate ground. THE job of Khalasi in the de partment is digging of soil at the relevant time when there is necessity for laying/repair ing down pipe lines to cater the water sup ply to the public at large in the city. On ac count of litigation by the employees of Sansthan, two persons were required to fur nish the information and receive the commu nication from the advocate concerned, who were deputed by Jal Sansthan to discharge the function of Class IV employees i. e. bring ing the records of the advocate, furnishing the information and bringing the letters and com munications from the advocate to Jal Sansthan. However, taking into account the engagement of respondent No. 2 in the High Court, the re spondent No. 2 claiming the benefit of salary and regularization as Class III employee pre ferred a writ petition before this Court. This Court finally disposed of the writ petition on 15-2-2001 directing respondent No. 2 to file a representation with all materials and the same may be considered. THE representation was considered and dismissed on 11-4-2001. While rejecting the representation, following three grounds were taken into consideration by the authorities. Firstly, there was no post available in Class III vacancy. Secondly, respondent no. 2 was never ap pointed as clerk in the office of Jal Sansthan. Thirdly, benefit of Dying in Harness Rules cannot be conferred upon the employ ees two times in service career. In addition thereto the respondent No. 2 has never discharged the obligation against Class III post, as such, he was not entitled for salary as Class III post nor was entitled for regularisation. Being dissatisfied, respon dent No. 2 preferred again a Writ Petition No. 28316 of 2001. The said writ petition was dismissed on the ground of alternative remedy either to approach the Labour Court or to U. P. Public Service Tribunal. Dissatisfied with the order, petitioner has approached the Regional Selection Officer and the matter was referred to the Labour Court and the following ques tions were recorded for adjudication of the case; "kya Sewayojako Dwara Vivad Patra Kb Sath Sanlagna Parishist May Ankit Sri Rajesh Kumar Pandey, Khalasi Avam Sri Baburam, Chaprasi Se Lipikiya Prakriti Ka Karya Liya Jana Kintu Lipik Ke Pad Par Sthaie Na Kiya Jana Avam Tadanusar Vetanman Va Anya Suvidha Na Diya Jana Anuchtt Avam Avaidhanik Hai' Labour Court after due consideration upon entire material available on record rejected the claim by order dated 30-7-2002. Petitioner again filed a writ petition against an award as Writ Petition No. 8934 of 2003 which was allowed by this Court vide its or der dated 6-9-2006 and matter was remanded back to Labour Court for decision as fresh. Now, Labour Court on remand further con sidered the issue and pass impugned order dated 19-12-2006, granting the relief to re spondent No. 2 for entitlement of regularisation/confirmation against Class III post and fur ther order has been passed that respondent No. 2 was entitled for payment of salary and other emoluments admissible and payable since 1991 and further promotion has also been or dered. Hence the present writ petition.
(3.) SRI C. B. Yadav, learned counsel for pe titioner submits that unless and until an em ployee appointed against the post of class III vacancy in any capacity either permanently or on ad-hoc, such employee cannot claim regularisation or payment of salary against the said post. Admittedly, respon dent No. 2 was never appointed against Class III vacancy at any point of time in Jal Sansthan in any capacity, rather he was given appoint ment as Class IV under the Dying in Harness Rules. Therefore, he cannot claim salary and further submission has been made that as there is no post available under Class III in the department, therefore, Labour Court has no jurisdiction to direct the same. It is clear that one vacancy, which is available only for Scheduled Caste and respondent No. 2 is a general caste candidate, therefore, he is not entitled to claim vacancy of Class III and re spondent No. 2 is also not entitled to get any promotion, therefore, judgement and award as passed by the Labour Court is not sustainable in law. Further submission has been made by learned counsel for petitioner that a person can claim promotion only when vacancy is available in the said category for which he be longs. In absence of vacancy he cannot claim any promotion, therefore, order passed by Labour Court for absorption of respondent No. 2 against class III post is wholly arbi trary and contrary to law. No vacancy of any category was available, therefore, respondent No. 2 could not be considered by the Jal Sansthan for promotion. As soon as vacancy occurred, claim of eligible persons will be con sidered. The appointments and promotions an always being taken place in accordance with law and Rules prevailing in the department. The respondent No. 2 has failed to produce any relevant document to show that his appoint ment was against Class III vacancy. Fur ther no Rules have been produced or shown by respondent to claim either appointment against Class-Ill vacancy and regularisation thereto. The Apex Court in various judgements has already held that merely because an em ployee is discharging certain obligations of higher post, is not legally recognised and, there fore, neither equity nor legitimate expectation come forward to hold the respondent No. 2 in any manner. Therefore, order passed by Labour Court is bad in law. Further submission has been made that any appointment, confirmation promotion or regularisation is always subject to Rules framed under Article 309 of the Constitution of India. No document has been brought on record or any Rule under which respondent can claim benefit as given by Labour Court. The Labour Court has granted relief to respondent No. 2 since 2. 11. 1991 along with salary and other benefits, which is contrary to the Apex Court judgement. Reliance has been placed upon a judgement of this Court reported in A. I. R. 1995, Supreme Court, 1121, Director of Edu cation and others v. Gajadhar Prasad Verma. Re liance has been placed upon paras 4 and 5 of the said judgement. The same is being quoted below:- "4. Be that as it may, the crucial question is whether the school of the respondent can claim reimbursement of the salary of such Clerk from the Government. The U. P. High Schools and In termediate Colleges (Payment of Salaries of Teachers and other Employees) Act 24 of 1971 (for short 'the Act'), regulates the payment of the salary by the Government. Section 9 is rel evant in that behalf. It provides that no institution shall create a new post of teacher or other employee except with previous approval of the Director or such officer as may be empow ered in that behalf by the Directors. Admit tedly, no steps have been taken by the Man agement to have obtained prior approval of the Director or any other authorised officer for creation of the additional post of Clerk. The prior approval of the Director of the em powered officer is a condition precedent and mandatory, for creation of an additional post (sic) the Government had before it the relevant data of the post for which the grant of aid was sanctioned. To make the Government to reim burse the salary of an additional teacher or an employee, the Government should have simi lar relevant material and data to have it duly verified and decision taken to grant sanction of the additional post. The inspecting and re porting officers are enjoined to make personal inspection and submit the report of the exist ing correct facts. The dereliction of duty or incorrect or false reports would be miscon duct entailing them in disciplinary action for dismissal from the post held by them. There fore, the failure to obtain prior approval disentitles the Management to obtain reimburse ment of the salary of such teacher or other employee. 5. Shri Pramod Swarup, learned counsel for the respondent, placed before us the direction issued by the State Government for creation of an additional post when the strength of the stu dents exceeds 1100. It is his contention that since the strength of the students has been more than 1100, the creation of additional Clerk has become necessary and that, therefore, the management has resolved to appoint the respondent as an additional Clerk. We are con cerned with the creation of the additional post, may be, due to the increase in the strength of students. What is material is whether prior approval of the Director or the empowered officer has been obtained before creating that post. It is not the case of the respondent or the management that such prior approval had been obtained or given by the competent officer. Therefore, so long as prior approval had not been given, though the respondent might have been appointed by the management, the Gov ernment is not obliged to reimburse the salary paid to such Clerk. The management has to bear the expenditure from its own resources without claiming any reimbursement from the Government. The High Court, therefore, has committed grievous errors of law in not ad verting to this crucial question and allowing the writ petition directing the Government to create the post and to make the payment of the salary etc. The directions are wholly illegal and legally unsustainable. ";