Supreme Court of India
STATE OF M.P. & ANR.versusMD. ABRAHIM
- Citation
- 2009 INSC 721
- Decided
- 6 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The appointment of the respondent was illegal as it did not comply with the constitutional scheme and recruitment rules, and therefore he is not entitled to classification in the permanent category.
Summary
The respondent, Md. Ibrahim, was engaged on a daily‑wage basis as a driver in three separate spells between 1980 and 1983. He filed an application under Sections 61 and 62 of the Madhya Pradesh Industrial Relations Act, 1960 seeking classification as a permanent driver, alleging discrimination because a junior employee, Iqbal Singh Tuteja, had been regularised. The Labour Court and the High Court allowed his claim and directed his regularisation. The State appealed, contending that Ibrahim was never a regular appointee and that his appointment violated the constitutional scheme of Articles 12, 14 and 16. The Supreme Court held that an appointment made through a “side‑door” without compliance with recruitment rules is illegal and that a daily‑wage employee who was not regularly appointed cannot be classified as permanent. Consequently, the Court set aside the lower‑court judgments and allowed the appeal, though it left open the possibility of classification if the respondent later became otherwise eligible. No costs were awarded.
Issues considered
- Whether a daily‑wage employee appointed intermittently can be classified as a permanent employee under the Madhya Pradesh Industrial Relations Act, 1960.
- Whether the appointment of the respondent violated Articles 12, 14 and 16 of the Constitution of India.
- Whether the respondent’s claim of discrimination based on seniority is legally sustainable.
- Whether the Labour Court and High Court erred in directing regularisation of the respondent’s service.
Legislation cited
- Constitution of Indias. 12, s. 14, s. 16
- Madhya Pradesh Industrial Relations Act, 1960s. 60, s. 61, s. 62
Subjects
labour lawindustrial relationspermanent classificationdaily-wage employeeconstitutional lawArticles 12,14,16discriminationrecruitment rules
Judgment
[2009] 8 S.C.R. 229
.l
STATE OF M.P. & ANR. A
v.
MD. ABRAHIM
(Civil Appeal No. 3378 of 2009)
MAY 6, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.)
Labour Law:
Madhya Pradesh Industrial Relations Act, 1960: c
ss. 60 and 61 - Daily wager - Claim for classification in
permanent category on the post of driver- On the ground that
his junior was classified as such - Held: Claimant was not a
regular appointee - He was not entitled to be classified in
permanent category.
0
Constitution of India, 1950:
Articles 12, 14 and 16 - Public appointments by 'State'
- Held: Constitutional scheme laid down in Articles 14 and E
16 has necessarily to be followed - An appointment through
side door being in violation of Articles 14 and 16 would be
• illegal.
The respondent was engaged on daily wage basis
in three spells of 89 days each, from 22.9.1980 to F
19.12.1980 as driver; thereafter as a helper from 21.1.1981
. to 28.2.1981 and again as a driver from 1.7.1982 to
31,!;.1983. On 11.7.1988 he filed an application ulss.61 and
62 of the Madhya Pradesh Industrial Relations Act, 1960
claiming classification in permanent category on the post G
of driver contending that one 'IS' who was junior to him
had been classified in permanent category. The Labour
Court allowed the application and the High Court
229 H
230 SUPREME COURT REPORTS [2009] 8 S.C.R.
A dismissed department's writ petition.
Allowing Department's appeal, the Court
HELD: 1.1. It is not correct to say that the respondent
was appointed in the same category of employment for
B a long time. He had been appointed in different
categories of appointment at different points of time and
at different places. Furthermore, the documents
produced by the parties before the Labour Court itself
showed that whereas the respondent had been working
c since 22.09.1980, the other employee, namely, 'IS' had
been working since 27 .01.1980. If on that premise, the
selection committee comprising of three senior officers
of the appellants had classified the said 'IS' in the
permanent category, no exception could be taken
D thereto. [Para 1OJ [235-A-D]
1.2. Appellant No. 1 is a 'State' within the meaning of
Article 12 of the Constitution of India. In making offers of
public appointment, it is necessary to follow the
constitutional scheme laid down in Articles 14 and 16. of
E
the Constitution For the purpose of legal and valid
recruitment, the provisions of recruitment rules are
required to be complied with. An appointment through
side door being in violation of Articles 14 and 16, would •
be illegal. [Para 12] [235-F-H; 236-A]
F
Secretary, State of Kamataka and Others v. Umadevi (3)
and Others (2006) 4 SCC 1; Official Liquidator v. Dayanand
and Others (2008) 10 SCC 1; State of Bihar v. Upendra
Narayan Singh & Others 2009 (4) SCALE 282 and State of
G M.P. and Others v. La/it Kumar Verma (2007) 1 SCC 575,
relied on.
1.3. In view of the authoritative pronouncements, the
impugned judgment cannot be sustained and is set
aside. However, if it is found that after the death of 'IS'
H
STATE OF M.P. & ANR v. MD. ABRAHIM 231
the respondent was otherwise entitled to classification in A
the permanent category, the appellants would accord him
the said status. [Para 14] [237-B-C]
Case Law Reference:
(2006) 4 sec 1 relied on para 12 B
(2008) 10 sec 1 relied on para 12
2009 (4) SCALE 282 relied on para 12
(2007) 1 sec 575 relied on para 13 c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3378 of 2009.
From the Judgment & Order dated 19.01.2006 of the High
Court of Madhya Pradesh, Bench at Indore in W.P. No. 1194 D
of 2005 and order dated 01.12.2006 in W .A. No. 536 of 2006.
S.K. Dubey, B.S. Banthia, Vikas Upadhyay and Yogesh
Tiwari for the Appellants.
Annam D.N. Rao for the Respondents. E
The Judgment of the Court was delivered by
S.B. SINHA, J.1. Leave granted.
2. Respondent was appointed on the post of driver on F
daily-wage basis. He was initially appointed for 89 days. His
services admittedly had not been regularized. He was not
placed in the category of a permanent employee in terms of
the Standing Order framed under Madhya Pradesh Industrial
Relations Act, 1960 (for short "the Act"). G
..
3. A selection panel was prepared wherein the particulars
of the employees in question were recorded. We may notice
the relevant entries:
H
232 SUPREME COURT REPORTS [2009] 8 S.C.R.
A "SI. Name& Date of Education Special Work
Father's birth qualifications the
name department
since
1. Shri Mohd. 10.7.57 - Driving 22.9.80
Ibrahim son licence
B of Shri Abdul
Jabbar
2. Iqbal Singh 8.1.46 - Driving 27.1.80"
Tuteja licence
c
4. A select list was prepared for appointment on a regular
post of driver, upon taking into consideration cases of eight
employees, relevant portion whereof reads as under:
"For the post of Driver on daily wage, employees have
D
been considered. Total 8 cases of employees have been
considered. 2 posts in Mandsour Sub-Division are vacant.
One post of reserved quota and one post from general
category has to be filled up. One post has to be filled up
as there is no candidate from reserved quota.
E
1. Shri Iqbal Singh Tuteja
2. Shri Mohd. Ibrahim ... "
5. An application under Sections 61 and 62 of the Act was
F filed by the respondent on or about 11.07.1988 praying for his
classification in permanent category on the post of driver. By
reason of a judgment and order dated 6.10.1997, the Labour
Court allowed the said application, opining:
G (i) As the appellants had classified Iqbal Singh Tuteja
who was junior to him in permanent category, the
respondent was discriminated against.
.
(ii) Having regard to the admission made by the
witnesses examined on behalf of the appellants that
H
STATE OF M.P. & ANR. v. MD. ABRAHIM 233
[S.B. SINHA, J.]
despite the respondent having been working since A
22.09.1980 but denied the benefit of classification
on a permanent post only because he was a daily-
wage employee, the said action was not justified.
(iii) As the appellants did not produce the records in its 8
possession, an adverse inference should be
drawn.
(iv) As there was no difference in work of a driver as a
daily wager and a work charged employee or a
regular employee, after the death of Iqbal Singh C
Tuteja, the appellant should have been placed in the
permanent category of a driver.
It was held:
D
"8. On the basis of the above discussion, it is proved that
the appointment of the applicant was prior to the opposite
party No. 3 Iqbal Singh Tuteja i.e. prior to 22.9.80. The
applicant being regular in the past and from 11.7.86 be
given the benefits of pay and benefits of a regular driver."
E
6. The High Court, by reason of the impugned judgment,
dismissed the writ petition filed by the appellants, stating:
"4. Respondent No. 3 Iqbal Singh has also died. Service
book of the Respondent No. 3 has not been produced by F
the petitioners before the Labour Court, neither they have
specifically stated that what was the date of engagement
of the Respondent No. 3. It appears that they have
deliberately suppressed this fact before the Court. After
analyzing the aforesaid factual position the Labour Court G
has held that the present respondent in this petition is
entitled for the post of regular driver with effect from
11. 7.1986. This finding of the Labour has also been upheld
by the Industrial Tribunal."
7. Mr. S.K. Dubey, learned senior counsel appearing on H
234 SUPREME COURT REPORTS [2009] 8 S.C.R.
A behalf of the appellants, would contend:
i. The Labour Court and consequently the High Court
committed a serious mistake insofar as they failed
to take into consideration that the respondent
having not been Clppointed on a regular basis and
B
in terms of the recruitment rules and furthermore
having left his job for some time, a.nd thus was
offered the job of a daily-wager at a later stage, he
could not have been classified in the permanent
category.
c
ii. In any event, Iqbal Singh Tuteja being senior to the
respondent, the Selection Committee cannot be
said to have faulted in preparing a draft select list.
D 8. Mr. Annam D.N. Rao, learned counsel appearing on
behalf of the respondent, on the other hand, would urge:
a. Iqbal Singh Tuteja having been in the seniority list
below the respondent, there was no reason as to
why he should have been discriminated against.
E
b. Appellants having not produced any document
showing the respective working periods of two
persons from 1980 onwards, the impugned
judgment should not be interfered with.
F
9. It has not been denied or disputed before us that the
respondent was appointed on a daily-wage basis. He used to
be appointed as a contingent employee for 89 days.
The period of engagement of the respondent is stated to
G be as under:
'
1. From 22.09.1980 to 19.12.1980 on the post of
driver
2. From 21.01.1981 to 28.02.1981 on the post of
H
STATE OF M.P. & ANR. v. MD. ABRAHIM 235
·• [S.B. SINHA, J.]
helper A
3. From 1.07 .1982 to 31.05.1983 on the post of driver
10. It is, therefore, not correct to contend that the
respondent was appointed in the same category of employment
for a long time. He had been appointed in different categories B
of appointment at different points of time and at different
~· places. Furthermore, the documents produced by the parties
j
before the Labour Court itself showed that whereas the
respondent had been working since 22.09.1980, the
aforementioned Iqbal Singh Tuteja had been working since c
27.01.1980. Both were placed at Serial No. 1. His date of birth
~ was 8.01.1946 whereas the date of birth of the respondent was
10.07.1957. Both were having their driving licences. If on that
_, premise, the selection committee comprising of three senior
officers of the appellants had classified the said Shri Iqbal Singh D
Tuteja in the permanent category, in our opinion, no exception
could be taken thereto.
11. It is of some significance to note that even the
respondent in his deposition stated that the said Iqbal Singh
E
Tuteja was appointed with him on the post of driver. If that be
so, his contention that he was senior to him cannot be accepted.
" Respondent contended that Iqbal Singh Tuteja was junior
to him, but there was no basis therefor. Moreover, the question
was not as to whether he worked on a daily wager or a work- F
charged employee, the question was with regard to the mode
of appointment.
12. Appellant No. 1 is a 'State' within the meaning of
Article 12 of the Constitution of India. In making offers of public G
appointment, it is necessary to follow the constitutional scheme
laid down in Articles 14 and 16 of the Constitution of India. For
the purpose of legal and valid recruitment, the provisions of the
recruitment rules are required to be complied with. An
appointment through side door being an appointment in
H
-..
236 SUPREME COURT REPORTS (2009] 8 S.C.R.
A violation of Articles 14 and 16 of the Constitution of India would
be illegal. It has been so held by a Constitution Bench of this
Court in Secretary, State of Kamataka and Others v. Umadevi
(3) and Others ((2006) 4 SCC 1] [See also Official Liquidator
v. Dayanand and Others (2008) 10 SCC 1, State of Bihar v.
B Upendra Narayan Singh & Others, 2009 (4) SCALE 282.
13. The contention raised on behalf of the appellants is,
furthermore directly covered by a decision of this Court in State
of M.P. and Others v. La/it Kumar Verma ((2007) 1 SCC 575].
Respondent therein was appointed on daily wages. His
C recruitment was not made in terms of the statutory rules. Even
no offer of appointment was issued. On the premise that he had
worked continuously for a period of more than six months, an
award was passed by the Labour Court directing his
classification on a permanent basis. The High Court also
D dismissed the writ petition filed by the appellants. This Court
opined:
"12. The question which, thus, arises for consideration,
would be: Is there any distinction between "irregular
E appointment" and "illegal appointment"? The distinction
between the two terms is apparent. In the event the
appointment is made in total disregard of the constitutional
scheme as also the recruitment rules framed by the y
employer, which is "State" within the meaning of Article 12
F of the Constitution of India, the recruitment would be an
illegal one; whereas there may be cases where, although,
substantial compliance with the constitutional scheme as
also the rules have been made, the appointment may be
irregular in the sense that some provisions of some rules
might not have been strictly adhered to.
G
*** *** ***
17. The Labour Court, Industrial Tribunal as also the High
Court, therefore, were not correct in directing
H regularisation of service of the respondent.
STATE OF M.P. & ANR. v. MD. ABRAHIM 237
[S.B: SINHA, J.]
18. Our attention has been further drawn to the fact that A
by reason of an office order dated 26-4-2004, the award
of the Labour Court as also the High Court had been
implemented by classifying the respondent as permanent
on the basis of daily wages clerk."
B
14. In view of the aforementioned authoritative
pronouncements, the impugned judgment cannot be sustained
which is set aside accordingly. However, in the event, if it is
found that after the death of Iqbal Singh Tuteja the respondent
was otherwise entitled to classification in the permanent C
category, the appellants shall be well advised to accord him the
said status.
15. The appeal is allowed. However, in the faets and
circumstances of the case, there shall be no order as to costs.
D
R.P. Appeal allowed.
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