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2006 (11) TMI 699

..... cruitment was not made in terms of the statutory rules. No offer of appointment was also issued. He filed an application before the Labour Court purported to be for his classification in permanent category of workman. An Award was made on the premise that he having worked continuously for a period of more than six months, acquired a right for classification in the category of permanent clerk and in that view of the matter, his services could not have been terminated without complying with the provisions of Section 25F of the Industrial Disputes Act, 1947. He was directed to be classified on the permanent basis as clerk from two years prior to the date of his filing the application, i.e., 11th November, 1991. He was also held to be entitled to prescribed wages and thus, the amount of difference in wages of the said post and other benefits was directed to be paid. A writ petition was preferred thereagainst by the appellants before the High Court, which was also dismissed by a learned Single Judge, opining that no case had been made out to interfere therewith. Shri S.K. Dubey, learned Senior Counsel appearing on behalf of the appellants would contend that the impugned judgment cannot .....

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..... one would not entitle him to the status of a permanent employee. In Mahendra L. Jain & Ors. vs. Indore Development Authority & Ors. [(2005) 1 SCC 639], this Court opined : "The 1961 Act provides for classification of employees in five categories. The 1973 Act, as noticed hereinbefore, clearly mandates that all posts should be sanctioned by the State Government and all appointments to the said cadre must be made by the State Government alone. Even the appointments to the local cadre must be made by the Authority. The said provisions were not complied with. It is accepted that no appointment letter was issued in favour of the appellants. Had the appointments of the appellants been made in terms of the provisions of the Adhiniyam and the Rules framed thereunder, the respondent Authority was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the appellants herein. Who made the appointments of the appellants to the project or other works carried on by the Authority is not known. Whether the person making an appointment had the requisite jurisdiction or not is also not clear. We have noticed hereinbefore that in the case of Om Prakash .....

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..... y post. Ordinarily, therefore, he could not have been directed to be regularized in service having regard to the Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors. [(2006) 4 SCC 1]. Reliance, however, has been placed by Mr. Mathur on paragraph 53 of the judgment which reads as under : "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked .....

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..... ticle 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of 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. In National Fertilizers Ltd. vs. Somvir Singh [(2006) 5 SCC 493], it has been held : "The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N. .....

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..... ent. It was meant for providing technical education to the agriculturists. In the absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ of or in the nature of mandamus." We may, however, notice that in Mineral Exploration (supra), the attention of this Court was not drawn to the earlier precedents including a Three Judge Bench of this Court in B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 4 SCC 507]. The Labour Court, Industrial Tribunal as also the High Court, therefore, was not correct in directing regularisation of service of the respondent. Our attention has been further drawn to the fact that 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. Yet again, by another Office Order dated 17.12.2004, the provisions of Madhya Pradesh Revised Pay Rules, 1998 had been applied in his case. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation. The question, .....

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