RAKESH TIWARI, J. - (1.) HEARD learned Counsel for the parties.
(2.) THIS writ petition has been filed praying for a writ of mandamus commanding the Respondent Nos. 2 and 3 to absorb the petitioner workmen in the vacancies available in the respondent corporation pursuant to directions contained in the judgment and orders dated 23.2.2004 and 14.9.2004 passed in Writ Petition No. 13110 of 2001. In the aforesaid writ petition No. 13110 of 2001, the Court had considered the statement of Jwala Singh and held as under : "From the statement of Jwala Singh, it is clear that the workers have failed to prove that they were ever employed by the petitioner corporation and any wages were paid to them by it. The statement also proves that these workers were not employed according to the recruitment rules by competent authority of the corporation. Even if they were working, they were employed by junior engineer as helpers and he used to pay them Rs. 300/- per month. There is no evidence that Rs. 300/- as wages were paid by the corporation to its regular employees. There is also no evidence to show the nature of duties performed by them. If they were working as helpers as stated by Jwala Singh, they were not working on any post of skilled labour etc. Sri Jwala Sigh could also not tell as to how these persons came to be engaged on substations. The statement of Jwala Singh therefore does not prove the case of the workers at all. Mendhu P.W.-2 appearing as witness for the workers also does not say that he was ever engaged by the corporation or was paid wages by it. According to him he has coolie and carried the ladders and was paid by Junior Engineer. Similarly Rajmani, Gangaram and Kamleshwar Nath Sharma have also not stated that they were ever engaged by the corporation and says that no appointment letter was issued to them by the corporation or were ever paid wages by it. All of them have specifically stated in their oral evidence before the Court that they were engaged by the Junior Engineers who used to pay them Rs. 300/- per month. It is also admitted fact that they never received any benefits such as uniform, overtime etc. from the corporation and they also denied any claim having made by them in respect of these facilities. In view of these facts the finding of the labour Court that these workers have to be regularized by the corporation by creating posts is perverse and beyond jurisdiction. Learned Counsel for the respondent workers submits that the Labour Court has power to create posts and modify or substitute new terms of employment. There is no dispute to this preposition but the question is whether creation of posts is creating conditions of employment. The terms and conditions of employment can be carried or modified by the labour court but this stage comes only after a person comes in employment. Creation of post lies within the sole discretion of employer. He may create a post or bona fide abolish a post. Creation of post is not a term and condition of employment. The labour Court cannot direct creation of post to accommodate any person. That is the function of management. The Apex Court in the case of a project employee whose services came to an end on ending of project, held that direction to reengage such employee could amount to creation of post which is beyond the jurisdiction of court. Right and duties of a person as workers arise after a person is taken as workman and relationship of master and servant comes into existence. On creating a post no such relationship comes into existence. It is unilateral right of employer to create a post or not. So far as question of equal pay for equal work is concerned, the petitioners submit that the labour court cannot direct that daily wagers be paid the wages or pay scale allowed to regular employees. In State of Haryana v. Jasmer Singh and others, 1997 Vol. 75 FLR 776, it was again held by the Supreme Court that daily wage employees cannot claim wages of regular employees in service and cannot even claim even minimum pay scales. The benefits of equal pay for equal work cannot be given to these workers who were never recruited according to rules. Appoint­ment of these workers has been denied by the corporation but the period of engagement as helpers by Junior Engineers of the corporation has not been denied by the petitioner. It has been proved in evidence that these helpers were engaged by Junior Engineers. Since the respondents have been working since long with the Junior Engineers in connection with the work of petitioner corporation, they should be considered for absorption by the corporation on suitable posts by giving them preference as directed by the labour court, on vacant posts available or which fell vacant after the date of the award and which may fall vacant hereinafter. It has come in evidence that there are seventy vacancies in which they can be adjusted. They will be entitled to pay and allowance from the date of their absorption. The corporation is directed to complete this process within three months from today. The Award of the labour court in so far as it directs creation of post is quashed. The workers in the reference shall be entitled to regular salary of the post from the date they are absorbed/regularized in service according to the observations made in the preceding paragraph of the judgment. The writ petition is partly allowed. No order as to costs." The aforesaid judgment and order dated 23.2.2004 was modified by order dated 14.9.2004 as under : "In view of the aforesaid facts and changed circumstances, the application for extension of time limit is disposed of with direction that the action of filling up of the post by appointment of the senior most respondent workman be initiated within a month and rest of the respondent workmen concerned in the award shall be appointed strictly in accordance with their seniority as and when the post for them are available. The time limit of three months imposed in the judgment and order dated 23.2.2004 is accordingly extended/modified to enable the petitioner to fill up the vacancies from the respondent workers a and when the same are available in future as directed." Aggrieved by the aforesaid order dated 14.9.2004, the petitioner workmen approached the Apex Court by filling Special Leave To Appeal (Civil) No. (S) 727/2005 which was dismissed by the Apex Court by the following order : 'The Special Leave Petition is dismissed." S.L.P. (C) 15714/2005 filed by the Employers against the aforesaid order dated 14.9.2004 was also disposed of by the following order : "In view of dismissal of Special Leave Petition (C) No. 727/2005, it will be open to the High Court to decide the application moved by the U.P. Power Corporation Ltd. For withdrawal of money. The special Leave Petition is disposed of in above terms."
(3.) THE S.L.Ps. filed by the petitioners as well as respondent corporation having been dismissed by the Apex Court, judgment and order dated 23.2.2004 and 14.9.2004 passed by this Court, became final.;