C.S. AZAD KRISHI EVAM PRODYOGIKI VISHWA VIDYALAYAversusUNITED TRADES CONGRESS & ANR.

                                                                                      'I-

A         C.S. AZAD KRISHI EVAM PRODYOGIKI VISHWA
                          VIDYALAYA                                            --~-
                              v.
                UNITED TRADES CONGRESS & ANR.

B                        DECEMBER 13, 2007

            [S.B. SINHA AND HARJIT SINGH BEDI, JJ]
                                                                          '"
        Service law:
c      Regularization-Claim of by daily wager entrusted with work
  ofclerk-Entitlement for-Held: Not entitled as University statute not
  providing for appointment of daily wager-Also constitutional
  requirement not complied with-Uttar Pradesh (Krishi Evam                      ...
  Prodyogik Vishwavidyalaya Adhiniyam) Act, 1958-Consitutiton of
D India, 1950-Articles 14and16-University.

       Appellant-University was created under the Uttar Pradesh
  (Krishi Evam Prodyogik Vishwavidyalaya Adhiniyam) Act, 1958.
  The service conditions of employees of the University were governed
E thereby as also by the statute framed thereunder. Its basic object
  was to undertake various training and projects for the betterment
  of agriculture. For the said purpose, persons were employed from
  time to time; sometimes project-wise. Respondent No.2 was
  appointed on daily wages on 1.7.1980. He worked as a Laboratory
  Assistant-cum-Attendant, a Class IV post. The work of Assistant
F
  Clerk, however, was taken from him on and from 1.11.1991. He was
  paid at the rate of Rs. 40/- per day. He raised industrial dispute on
  the premise that his services had not been regularized by the
  University. The Industrial Tribunal having regard to an order passed
  by the High Court on a concession made by the counsel for the
G University in a writ petition filed by other employees of the
  University, by an award directed that it was completely proved that
  the employer was taking work from the concerned worker from
  1.11.91 continuously as a clerk however he was being paid salary
  on a daily wage basis which was improper and illegal and the
H                                   704
     C.S. AZAD KRISHI EVAMPRODYOGIKI VISHWA                       705
       VIDYALAYAv. UNITEDTRADESCONGRESS
 concerned worker as per the nature of his work is entitled to be made A
 permanent and regularized in the post of clerk/typist. High Court
 dismissed the writ petition filed by appellant-employer.

        In · appeal to this Court, appellant contended that the
   appointment of the respondent No. 2 having been made de 'hors the
! statutory rules, no direction for regularization could be issued; that B
 · the Industrial Tribunal could not direct regularization of a Class III
  ·employee, particularly, when the respondent No. 2 had not worked
 ~for a long time in the said post and that the Industrial Court could
   not grant a declaratory decree.
                                                                        c
      Allowing the appeal, the Court

       HELD: 1.1. The University Statute does not provide for
 appointment on daily-wages or on an adhoc basis. Respondent No.
 2 in his written statement filed before the Industrial Court did not
 make any averment that he was appointed in terms of the provisions D
 of the statute or prior thereto any advertisement therefor was made.
 According to him, he being a hard working, honest, efficient and
 eligible employee, was 'entrusted' with the work of a clerk from
 1.11.1991. In bis written statement, he did not raise contention that
 he was appointed against a permanent vacancy. It does not also E
 appear from the records that any offer of appointment was given to
 him. It is inconceivable that an employee appointed on a regular
 basis would not be given an offer of appointment or not be place.d
 on a scale ofpay. The Industrial Court in passing the impugned award
 proceeded on the premise that Respondent No. 2 had been working F
 for more than 240 days continuously from the date of his
 engagement. It is now trite that the same by itself does not confer
 any right upon a workman to be regularized in service. Working for
 more than 240 days in a year was relevant only for the purpose of
 application of s.6N of the U.P. Industrial Disputes Act, 1947 G
 providing for conditions precedent to retrench the workmen. It does·
 not speak of acquisition of a right by a workman to be regularized in
 service. [Paras 11and12] [710-G-H; 711-C-E]
      Executive Engineer, ZP Engg. Divn. and Anr. v. Digambara Rao H
    706 SUPREME COURT REPORTS                 [2007] 13 (Addi.) S.C.R.

A and Ors., [2004] 8 SCC 262; Madhyamik Shiksha Parishad, UP. v.
  Anil Kumar Mishra and Ors., (2005] 5 SCC 122; State ofUP. v. Neeraj
  Awasthi and Ors., [2006) 1 SCC 667; A. Umarani v. Registrar
  Cooperative Societies and Ors., {2004] 7 SCC 112; Secretary, State
  of Karnataka and Ors. v. Umadevi (3) and Ors., [2006) 4 SCC 1;
  Punjab Water Supply and Sewerage Board v. Ranjodh Singh and Ors.,
8
  (2007) 2 SCC 491; MP. Housing BoardandAnr. v. Manoj Shrivastava,
  [2006] 2 SCC 702; MP. State Agro Industries Development Corpn.
  Ltd. and Anr. v. S. C. Pandey, [2006] 2 SCC 716; Indian Drugs and
  Phrmaceuticals Ltd v. Workmen, Indian Drugs and Pharmaceuticals~
  Ltd., [2007) 1 SCC 408 and Gangadhar Pillai v. Siemens Ltd, [2007)
c 1 sec 533, relied on.
        Mahendra L. Jain and Ors. v. Jndore Development Authority and
    Ors., (2005] 1 SCC 639, referred to.
        1.2. The Industrial Court, committed a serious error in passing
D the impugned award. The High Court unfortunately did not pose unto
  itself a right question. What was necessary to be considered was the
  nature of work undertaken by the University. It undertakes projects.
  For the said purpose, it may have to employ a large number of
  persons. Their services had to be temporary in nature. Even for that
E the provisions of Articles 14 and 16 are required to be complied with.
  In the event, the constitutional and statutory requirements are not
  complied with, the contract of employment would be rendered illegal.
                                 [Paras 16 and 17] (714-E-G-H; 715-A]
       2. Services of Respondent No. 2 were not terminated. He has
F been continuing to serve the University. In a writ petition filed by
  other employees on a concession made by the counsel for the
  University, a purported scheme dated 24.04.2000 was formulated.
  The statement of counsel of appellant is placed on record that
  despite the legal position in the event the case of Respondent No. 2
G comes within the purview of the said Scheme, his services would be
  regularized when his turn comes therefor.
                                           [Paras 18 and 19] [715-B-C)
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5873 of
    2007.
H
        C.S. AZAD KRISHI EVAMPRODYOGIKI VISHWA      707
     VIDYALAYA v. UNITED TRADES CONGRESS [SINHA,J.]
         From the final Judgment and Order dated 07.03.2006 of the High A
    Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 19512
    of 1999.
        Dr. R.G. Padia, C.D. Singh, Merusagar Samamtaray, Vairagya
    Vardhan and Lalit Srivastava for the Appellant.
                                                                               B
         S. Chandra Shekhar and Sunny Chowdhary for the Respondents.
x
         The Judgment of the Court was delivered by
         S.B. SINHA, J. 1. Leave granted.
         2. This appeal is directed against the judgment and order dated
                                                                               c
    7.03.2006 passed by a learned Single Judge of the Allahabad High Court
    dismissing the writ petition filed by the appellant from an award dated
    30.05.1998 passed by the Presiding Officer, Industrial Tribunal (3) U.P.
    Kanpur.
                                                                               D
         3. Appellant is a University created under the Uttar Pradesh (Krishi
    Evam Prodyogik Vishwavidyalaya Adhiniyan1) Act, 1958 (for short "the
    Act"). The service conditions of the employees of the University are
    governed thereby as also by the statute framed thereunder. Its basic object
    was to undertake various training and projects for the bettem1ent of E
    agriculture. For the said purpose, it employs-persons from time to time;
    sometimes project-wise.
          4. Admittedly, Respondent No. 2 herein was appointed on daily-
    wages by the University on 1.07.1980. He was being paid wages on a
    daily basis. He worked as a Laboratory Assistant-cum-Attendant which F
    is a Class IV post. The job of Assistant Clerk, however, was being taken
    from him on and from 1.11.1991. His remuneration was being paid at
    the rate of Rs. 40/- per day.
         5. Respondent No. 1 which is a trade union, raised an industrial G
    dispute on behalf of the respondent No. 2 on the premise that his services
    had not been regularized by the University. Pursuant thereto, a reference
    was made by the appropriate Government which reads as under:
          "Whether the employer by not declaring the employment of its
                                                                               H
    708 SUPREME COURT REPORTS                      [2007) 13 (Addi.) S.C.R.


A          employee Kalyan Sharan, S/o Shiv Dutt working as a clerk
                                                                                   ~-
           pennanent did commit illegality? If yes whether the concerned
           employee is the rightful claimant to the benefits (reliefs) and from
           which date and with what reason?

B         6. The Presiding Officer, Industrial Tribunal (3), UP, to whom the
    said reference was made, inter alia having regard to an order passed by
    the High Court on a concession made by the learned counsel for the
    University in a writ petition filed by other employees of the University, by
    an award dated 30.05.1998 directed:
c          "... Thus it is being completely proved that the employer has been
           taking work from the concerned worker from 1.11.91 continuously
           as a Clerk however he is being paid salary on a daily wage basis
           as a daily wage employee which is highly unfortunate, improper
           and illegal and the concerned worker as per the nature of his work
D          is rightly entitled to be made pennanent and regulariz.ed in the post
           of Clerk/ typist keeping in view the nature of the work which he is
           doing now.
               After having considered the written statements, counter replies,
           documents, and deposition of witnesses and after hearing the
E          arguments of both the sides I have come to the conclusion finally
           that the employer of the concerned worker Kalyan Sharan S/o Shiv
           Dutt, post - Clerk having not declared the concerned worker as
           regulariz.ed and pennanent is an illegality and is wrong. Thus, it is
           my decision in this dispute is that the employer while declaring the
F          concerned worker permanent should extend him all the benefits due
           to him from the day of this Order."
       7. Validity of the said award was questioned by the appellant before
  the Allahabad High Court which by reason of the impugned judgment has
G been dismissed by a learned Single Judge of the Court, holding:
           "After perusal of the judgment passed by the Labour Court it is
           clear that the Labour Court has considered each and every aspect
           and has come to the conclusion that in spite of the fact that
           respondent workman is working from 1980 and is being treated
H          as daily wager, this clearly amounts to unfair labour practice. The
        C.S. AZAD KRISHI EV AMPRODYOGIKI VISHWA      709
     VIDYALAYA v. UNITED TRADES CONGRESS [SINHA, J.]
          finding recorded by the Labour Court is a finding of fact in view A
          of the judgment reported in 2005 {3) SCC 193, Management of
          Madurakantam Cooperative Sugar Mills Ltd. v. S.
           Vishwanathan, the Apex Court has clearly heid that there is very
          little scope of interference in the finding recorded by the Labour
          Court. The finding recorded by the Labour Court is a finding of B
          fact and unless and until it is proved beyond doubt that the Labour
x         Court has exceeded its jurisdiction and the finding recorded by the
          Labour Court is against the evidence on record and is perverse
          then the High Court while exercising the jurisdiction under Article
          226 of the Constitution of India has the jurisdiction to interfere c
          otherwise there is very little scope for interference."
         8. Dr. R.G. Padia, learned senior counsel appearing on behalf of
    the appellant, in support of this appeal, would submit that the impugned
    award as also the judgment and the order of the High Court are wholly
    unsustainable inasmuch as :                                              D
          (i) The appointment of the respondent No. 2 having been made
              de 'hors the statutory rules, no direction for regularization could
              have been issued.
          (1i) The Industrial Tribunal could not direct regularization of a Class E
               III employee, particularly, when the respondent No. 2 had not
               worked for a long time in the said post.
          (iii) The Industrial Court cannot grant a declaratory decree.
          9. Mr. S. Chandra Shekhar, learned counsel appearing on behalf of F
    the respondents, on the other hand, would submit:
          (i) Respondent No. 2 having been working against a permanent
              vacancy both as a Laboratory Assistant which is a Class IV
              post and as an Assistant Clerk which is a Class III post for a.
              long time, the Industrial Court acted within its jurisdiction in G
              passing the impugned award.
          (ii) As pursuant to the order passed by the High Court in another
              writ petition, the services of those who were junior to the
              respondent No. 2 were regularized, he was also entitled to a H
    710 SUPREME COURT REPORTS                     [2007] 13 (Addi.) S.C.R.


A              similar benefit.
        10. Concededly, Appellant is a University constituted by a statute.
  Who would be the officers and authorities of the University is specified
  in Section 8 of the Act. The competent authority of the University has
B made 'Statutes' in terms of the provisions of the Act. The matter relating
  to appointment of staff is governed by Chapter XIII of the Statutes framed
  by the University, providing that all appointments shall be made strictly
  on the basis of merit. For the purpose of appointing different categories
  of employees, provisions have been made for constitution of selection
  committees.
c
           Statute 10 reads as under:
           "10. Appointments of all other staff not specifically provided for
           in the Act of these Statutes shall be made by the Kulpati with the
           approval of the Board except the following posts which may be
D          filed by the Kulpati without reference to the Board namely;
           (a) The non-teaching posts carrying a scale the maximum of which
           does not exceed Rs. 450/- including those which are filled by
           obtaining services of a person on deputation for a period upto three
E          years from a regularly constituted service of State or Central
           Government or an autonomous body constituted by the State or
           Central Government. The upper limit of Rs. 450/-will be subject
           to alteration from time to time, by the resolutions of the Board of
           management, on the basis of rationalization or enhancement
F          occurring on the basis of the decision of the Government.
           (b) The posts for which the Kulpati is the appointing authority under
           the provisions of the Act."
        11. The University Statute does not provide for appointment on daily-
G wages or on an adhoc basis. Respondent No. 2 in his written statement
  filed before the Industrial Court did not make any averment that he had
  been appointed in terms of the provisions of the statute or prior thereto
  any advertisement therefor was made. According to him, he being a hard
  working, honest, efficient and eligible employee, was 'entrusted' with the
H work of a Clerk from 1.11.1991. In his written statement, it was averred:
        C.S. AZAD KRIS HI EV AM PRODYOGIKI VISHWA    711
     VIDYALA YA v. UNITED TRADES CONGRESS [SINHA,J.]

-           "5. That though the woiker was working against a pennanent vacant A
            post as a clerk in a pennanent manner, however, the employer is
            not giving him the actual scale of pay and other allowances and
            benefits as that of a pennanent clerk. However, he is still considered
            as a daily wager inspite of having worked since last 14 years
            continuously, which is illegal and wrong."                             B

           12. A feeble attempt, however, was made by the learned counsel
     appearing on behalf of Respondent No. 2 to state that he had been
     appointed against a pennanent vacancy. In his written statement, he did
     not raise any such contention. It does not also appear from the records
     that any offer of appointment was given to him. It is inconceivable that an C
    employee appointed on a regular basis would not be given an offer of
    appointment or shall not be placed on a scale of pay. We, therefore, have
    no hesitation in proceeding on the premise that Respondent No. 2 was
    appointed on daily-wages. The Industrial Court in passing the impugned
    award proceeded on the premise that Respondent No. 2 had been D
    working for more than 240 days continuously from the date of his
    engagement. It is now trite that the same by itself does not confer any
    right upon a woikman to be regularized in service. Working for more than
    240 days in a year was relevant only for the purpose of application of
    Section 6N of the U.P. Industrial Disputes Act, 1947 providing for E
    conditions precedent to retrench the workmen. It does not speak of
    acquisition of a right by the workman to be regularized in service.
        13. In Executive Engineer, ZP Engg. Divn. And Anr. v.
    Digambara Rao and Ors., [2004] 8 SCC 262, it was held:                       F
           "It may not be out of place to mention that completion of240 days
           of continuous service in a year may not by itself be a ground for
           directing an order of regularisation. It is also not the case of the
           respondents that they were appointed in accordance with the extant
           rules. No direction for regularisation of their services, therefore, G
           could be issued.
        [See also Madhyamik Shiksha Parishad, UP. v. Anil Kumar
    Mishra and Ors., [2005] 5 SCC 122 and State of UP. v. Neeraj
    Awasthi and Ors., '[2006] 1 SCC 667]
                                                                                H
    712 SU.PREME COURT REPORTS                   [2007] 13 (Addi.) S.C.R.

A         14. A similar question came up for consideration in a large number
    of decisions before this Court. We will, however, refer only to some of
    them.
                                                                                  -
      In A. Umarani v. Registrar, Cooperative Societies and Ors.,
B [2004] 7 SCC 112, this Court held:
           '"39. Regularisation, in our considered opinion, is not and cannot
           be the mode of recruitmi::nt by any "State" within the meaning of
           Article 12 of the Constitution of India or any body or authority
           governed by a statutory Act or the Rules framed thereunder. It is
c          also now well settled that an appointment made in violation of the
           mandatory provisions of the statute and in particular, ignoring the
           minimum educational qualification and other essential qualification
           would be wholly illegal. Such illegality cannot be cured by raking
           recourse to regularisation. (See State ofRP. v. Suresh Kumar
D           Verma)
           40. It is equally well settled that those who come by back door
           should go through that door. (See State of U.P. v. U.P. State Law
           Officers Assn.)
E          41. Regularisation furthermore cannot give permanence to an
           employee whose services are ad hoc in nature."
         A Constitution Bench of this Court in Secretary, State ofKarnataka
  and Ors. v. Umadevi (3) and Ors., [2006] 4 SCC 1 clearly held that
  an appointment de'hors the statutory rules would render the appointment
F a nullity, stating:
          "18. Without keeping the above distinction in mind and without
          discussion of the law on the question or the effect of the directions
          on the constitutional scheme of appointment, this Court in Daily
G         Rated Casual Labour v. Union ofIndia directed the Government
          to frame a scheme for absorption of daily-rated casual labourers
          continuously working in the Posts and Telegraphs Department for
          more than one year. This Court seems to have been swayed by
          the idea that India is a socialist republic and that implied the
H         existence of certain important obligations which the State had to
    C.S. AZAD KRISHI EV AMPRODYOGIKI VISHWA    713
 VIDYALAYAv. UNITED TRADES CONGRESS [SINHA,J.]
       discharge. While it might be one thing to say that the daily-rated A
       workers, doing the identical work, had to be paid the wages that
       were being paid to those who are regularly appointed and are doing
       the same work, it would be quite a different thing to say that a
       socialist republic and its executive, is bound to give pennanence
       to all those who are employed as casual labourers or temporary B
       hands and that too without a process of selection or without
       following the mandate of the Constitution and the laws made
       thereunder concerning public employment. The same approach was
       made in Bhagwati Prasad v. Delhi State Mineral Development
       Corpn. where this Court directed regularisation of daily-rated c
       workers in phases and in accordance with seniority.
       22. With respect, it appears to us that the question whether the
      jettisoning of the constitutional scheme of appointment can be
      approved, was not considered or decided. The distinction
      emphasised in R.N. Nanjundappa v. T. Thimmiah was also not D
      kept in mind. The Court appears to have been dealing with a
      scheme for "equal pay for equal work" and in the process, without
      an actual discussion of the question, had approved a scheme put
      forward by the State, prepared obviously at the direction of the
      Court, to order pennanent absorption of such daily-rated workers. E
      With respect to the learned judges, the decision cannot be said to
      lay down any law, that all those engaged on daily wages, casually,
      temporarily, or when no sanctioned post or vacancy existed and
      without following the rules of selection, should be absorbed or
      made pennanent though not at a stretch, but gradually. If that were F
      the ratio, with respect, we have to disagree with it."

     It was further held that no person who was temporarily or casually
employed could be directed to be continued pennanently. It was also
opined that by doing so it would be creating another mode of public G
employment which is not pennissible in law. [See also Punjab Water
Supply & Sewerage Board v. Ranjodh Singh and Ors., [2007] 2 SCC
491]
    15. The High Court has relied upon a decision of this Court in
Mahendra L. Jain and Ors. v. Indore Development Authority and Ors., H
    714 SUPREME COURT REPORTS                     [2007] 13 (Addi.) S.C.R.


A [2005] 1 SCC 639. Therein it is stated:
           "19. The question, therefore, which arises for consideration is as
           to whether they could lay a valid claim for regularisation of their
           services. The answer thereto must be rendered in the negative.
           Regularisation cannot re claimed as a matter of right. An illegal
B
           appointment cannot be legalised by taking recourse to regularisation.
           What can be regularised is an irregularity and not an illegality. The
           constitutional scheme which the country has adopted does not
           contemplate any back-door appointment. A State before offering
                                                                                   j"'
           public service to a person must comply with the constitutional
c          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 regularisation."

D       [See also MP. Housing Board and Anr. v. Manoj Shrivastava,
  [2006) 2 SCC 702, MP. State Agro Industries Development Corpn.
  Ltd. and Anr. v. S.C. Pandey, [2006] 2 SCC 716, Indian Drugs &
  Phrmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals
  Ltd., [2007] 1 SCC 408 and Gangadhar Pillai v. Siemens Ltd., [2007]
E 1 sec 533].
        16. The Industrial Court, therefore, in our opinion, committed a
  serious error in passing the impugned award. The High Court unfortunately
  did not pose unto itself a right question. It referred to a large number of
  decisions. Although most of the decisions referred to by the High Court          1
F should have been applied for upholding the contention of the appellant
  herein, without any deliberation thereupon, the learned Judge has
  proceeded to determine the question posed before it on a wholly wrong
  premise. As noticed hereinbefore, it relied upon Mahendra L. Jain (supra)
  which in no manner assists Respondent No. 2.
G
          17. What was necessary to be considered was the nature of work
    undertaken by the University. It undertakes projects. For the said purpose,
    it may have to employ a large number of persons. Their services had to             "'
    be temporary in nature. Even for that the provisions of Articles 14 and
    16 are required to be complied with. In the event, the constitutional and
H
        C.S. AZAD KRIS HI EV AM PRODYOGIKI VIS HWA  715
     VIDYALA YAv. UNITED TRADES CONGRESS [SINHA,J.]
     statutory requirements are not complied with, the contract of employment A
     would be rendered illegal.
           18. Services of Respondent No. 2 were not terminated. He has been
     continuing to serve the University. We have noticed hereinbefore that in a
     writ petition filed by other employees on a concession made by the counsel
""   for the University, a purported scheme dated 24.04.2000 has been B
     formulated. Dr. Padia in that view of the matter stated before us that
     despite the legal position, as noticed hereinbefore, in the event the case
     of Respondent No. 2 comes within the purview of the said Scheme, his
     services shall be regularized when his turn comes therefor.
                                                                                 c
           19. We place on record the aforementioned statement made by Dr.
     Padia that as and when Respondent No. 2 becomes entitled to be
     considered for being absorbed in the services of the University pursuant
     to the said scheme, his case may be considered. If his turn for
     consideration for regularization has already come, a decision thereupon D
     shall be taken as expeditiously as possible.
           20. The impugned judgment is set aside. The appeal is allowed with
     the aforementioned observations and directions. However, in the facts and
     circumstances of this case, there shall be no order as to costs.
                                                                                 E
     D.G.                                                   Appeal allowed.