VICE CHANCELLOR LUKNOW UNIVERSITY Vs AKHILESH KUMAR KHARE &ANR
Bench: DIPAK MISRA,R. BANUMATHI
Case number: C.A. No.-005731-005731 / 2011
Diary number: 1106 / 2010
Advocates: C. D. SINGH Vs
T. MAHIPAL
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5731 OF 2011
VICE-CHANCELLOR, LUCKNOW UNIVERSITY LUCKNOW, U.P. ..Appellant
Versus
AKHILESH KUMAR KHARE & ANR. ..Respondents
WITH
C.A.NO.5732/2011, C.A.NO.5733/2011, C.A.NO.5736/2011, C.A.NO.5737/2011, C.A.NO.5738/2011, C.A.NO.5739/2011, C.A.NO.5740/2011, C.A. NO.5741/2011, C.A.NO.5742/2011, C.A.NO.5743/2011, C.A. NO.5744/2011, C.A.NO.5745/2011, C.A.NO.5746/2011, C.A.NO.5747/2011, C.A. NO.5748/2011,
C.A. NO.5749/2011 AND C.A.NO.5750/2011
J U D G M E N T
R. BANUMATHI, J .
This batch of appeals arise out of the common judgment
of the High Court of Judicature at Allahabad, Lucknow Bench
dismissing the writ petitions [W.P.No.6690 of 1996 (S/S) and batch]
dated 14.09.2009, whereby the High Court upheld the award
passed by the Industrial Tribunal and directed the
appellant-university to consider the respondents for regularisation
of their services as and when the vacancies arise and till that time
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they be paid the emoluments, which are being paid by university
authorities to similarly situated workmen against the unsanctioned
posts.
2. Before we advert to the contentious points, it would be
appropriate to highlight the factual background of the case. In the
year 1989, the Finance Officer of the University of Lucknow,
Mr.R.S.Vishvakarma engaged the respondents in this batch of
appeals as Routine Grade Clerk (RGC)/Peon by oral engagement as
daily wagers for the Central Accounts Office and they were being
paid from out of the contingency fund. In order to prevent the
abuse of power in engaging daily wagers, the then Vice-Chancellor
of the Lucknow University issued Order No.VC/1932/90 dated
03.08.1990 notifying that the daily wagers would not be allowed to
continue in any case after 31.12.1990 unless prior written approval
was obtained from the Vice-Chancellor. It was further directed that
if there was any need of any extra hand, the Section Heads must
send a demand for creation of posts to the Deputy Registrar
(Admn.) with details justifying the need so that a consolidated
statement for sanction of new posts in the university be sent to the
State Government. As per the appellant-university, the Finance
Officer neither dispensed with the respondents/daily wagers nor
did he obtain written approval from the Vice-Chancellor. The
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engagement of the respondents came to an end with effect from
01.01.1991.
3. The terminated workers sent a legal notice on
28.01.1992 through Mazdoor Sabha to the Vice-Chancellor stating
that they served the university till 31.12.1990 continuously and
that they were terminated without assigning any reason and put
forth the demand for reinstatement in service and backwages. All
the ex-daily wagers further filed individual applications to the
Deputy Labour Commissioner, Lucknow for conciliation of the
dispute raised by them in February 1992. As no conciliation could
be achieved, on the recommendation of the Conciliation Officer,
the Deputy Labour Commissioner by his order dated 18.08.1992
referred all the cases to the Labour Court, Lucknow for
adjudication of the dispute between respondents and the
appellant-university. The Presiding Officer, Labour Court vide
order dated 30.01.1996 held that termination of the workmen from
01.01.1991 by the university is illegal and directed the
reinstatement of respondent No.1 with full back wages. Being
aggrieved, the appellant-university filed a Writ Petition before the
High Court challenging the award. The High Court disposed of the
writ petition and connected petitions vide a common order dated
14.09.2009 affirming the award passed by the Labour Court and
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inter alia issued direction as aforesaid. The university has filed this
batch of appeals assailing the order passed by the High Court.
4. Learned counsel for the appellants contended that
merely because a casual wage worker or a temporary employee
worked continuously for more than 240 days in a year, he would
not be entitled to be absorbed in regular service or made
permanent on the strength of such continuance, if the original
appointment was made without following the due process of
selection as envisaged by the rules. It was submitted the
respondents were not engaged as against any sanctioned post and
the impugned judgment of the High Court directing regularisation
is violative of the principles laid down by this Court in Secretary,
State of Karnataka and Others vs. Umadevi (3) and Others,
(2006) 4 SCC 1.
5. Per contra, learned Senior Counsel Ms. Shobha Dikshit
for the respondents submitted that the services of the respondents
were terminated without giving any notice or retrenchment
compensation and is contravention of Section 6-N of the U.P.
Industrial Disputes Act, 1947. It was argued that the respondents
were out of employment since 1991 and they are finding it difficult
to survive along with their families with the meagre amount of
Rs.650/- awarded to them under Section 17B of the Industrial
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Disputes Act, 1947. It was further submitted that the respondents’
juniors were retained and continued in service and subsequently,
even new hands have been engaged and while so, the respondents
were discriminated and the courts below rightly directed their
regularisation.
6. We have given our thoughtful consideration to the rival
contentions of both the parties and perused the impugned
judgment and material on record.
7. Lucknow University is a statutory body and is governed
by the U.P. State Universities Act, 1973. The Vice-Chancellor is the
Principal Executive and exercises general supervision and control
over all its affairs including appointments of non-teaching staff.
The Registrar of the University is the administrative head who
issues orders of appointment duly made and approved by the
Vice-Chancellor. The appointments are to be made by the
university against the sanctioned posts created by the Government
and the Government determines the pay scale and allowances of
the employees. The Finance Officer by himself had no right to
appoint any person and university has not created extra post of
Routine Grade Clerk or Record Boy or Peon. In the present case,
the Finance Officer in the university engaged the respondents as
daily wagers for his Central Accounts Section. Admittedly, the
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respondents were not engaged by following due procedure and their
engagement was not against any sanctioned posts. In order to curb
the illegal practice of engaging daily wagers, Vice-Chancellor of the
University issued an order dated 03.08.1990 clarifying that the
daily wagers will not be allowed to continue after 31.12.1990 until
prior written approval is accorded by the Vice-Chancellor. No such
approval was taken qua the respondents for their continuance. The
respondents were terminated w.e.f. 01.01.1991. When the
respondents’ appointments were illegal, the respondents would not
be entitled to any right to be regularized or absorbed.
8. As noticed earlier, there is no appointment letter issued
to the respondents by the Registrar on which they were engaged.
The respondents have based their claim on service certificate
issued by Mr. R.L. Shukla, the then Finance Officer of the
University of Lucknow. Mr. R.L. Shukla in his evidence has stated
that the daily wagers were engaged by the then Finance Officer,
Mr. R.S. Vishvakarma as daily wage employees in the accounts
section as per their need and they were terminated when their
services were not required. He further stated that no particular
nature of work was assigned to the respondents in the accounts
section and the respondents were being paid out of “recurring
expenditure item”. So far as the certificate issued to the
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respondents, Mr. Shukla has stated that those certificates issued to
the respondents-workmen only to enable them to seek other job.
9. Learned Senior Counsel for the respondents has
submitted that after removal of the respondents, similarly placed
employees have been regularized and drawn our attention to
regularisation of one such Narendra Pratap Singh. Evidence of
Mr. Brij Pal Das Mehrotra, former Registrar of the University would
show that the persons who are regularized are only those who were
appointed by following due procedure. The said Narendra Pratap
Singh was also appointed by following due procedure. As seen
from Annexure (P-5) filed with rejoinder affidavit, the said Narendra
Pratap Singh was appointed by the Registrar of the University as
Routine Grade Clerk (RGC) on daily wage basis, the respondents
were not so appointed by the Registrar of the university. The
respondents have admittedly not produced any document to show
that they were appointed by the university against sanctioned posts
in accordance with statutory rules. If the original appointment was
not made following due process of selection as envisaged by the
relevant rules, the respondents cannot seek regularisation. The
Labour Court and the High Court, in our view, fell in error in
directing the regularisation of the respondents.
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10. In the rejoinder-affidavit filed by the
appellant-university, it is stated that the university has requested
the State Government for sanction of 755 posts in various
categories in order to regularise the persons working in the various
departments of the university. The State Government sanctioned
only 330 posts in various categories, as a result of which
regularisation/samayojan of 330 persons were made strictly on the
basis of their seniority. A bare perusal of letter
No.26/C.S./70-4-99-3(27)/99 dated 29.09.1999 by Special
Executive Officer, Government of U.P. regarding absorption of
non-teaching posts in the Lucknow University, it is clearly
mentioned that if there is any disruption in the service of any
employee, then the services of the prior period from the said
disruption may not be calculated. A perusal of minutes of the
Sub-Committee constituted by the Executive Committee held on
16.01.2001, it is clear that employees who were continuously
working in the university were only regularised. The respondents
have been out of employment from 01.01.1991 and at the time of
regularisation/Samyojan, the respondents were not in service and,
therefore, they cannot seek parity with the persons absorbed.
11. In Umadevi’s case, this Court settled the principle that
no casual workers should be regularised by the Courts or the State
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Government and as per constitutional provisions all the citizens of
this country have right to contest for the employment and
temporary or casual workers have no right to seek for
regularization. In para (47), this Court held as under:
“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”
12. In para (53) of Umadevi’s case, the Constitution Bench
carved out an exception to the general principles enumerated above
and it reads as under:
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128, R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 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 for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases
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where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
13. As the respondents worked as casual workers only for
about one and half years and not against any sanctioned posts, be
it noted that even the benefit of para (53) of Umadevi’s case cannot
be extended to the respondents.
14. In Satya Prakash & Others vs. State of Bihar & Others
(2010) 4 SCC 179, this Court held as under:
“7. We are of the view that the appellants are not entitled to get the benefit of regularisation of their services since they were never appointed in any sanctioned posts. The appellants were only engaged on daily wages in the Bihar Intermediate Education Council. 8. In Umadevi (3) case (2006) 4 SCC 1, this Court held that the courts are not expected to issue any direction for absorption/regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that such directions issued could not be said to be inconsistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.” (Underlining added)
15. The respondents were merely casual workers and they
do not have any vested right to be regularised against the posts.
The High Court fell in error in affirming the award passed by the
Labour Court directing regularisation. In the facts and
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circumstances of the case, as the respondents were out of
employment for more than twenty years and now they are over aged
and cannot seek for regular appointment, in our view, the interest
of justice will be subserved if the judgment of the High Court is
modified to the extent by directing payment of monetary
compensation for the damages to the respondents.
16. In considering the violation of Section 25F of the
Industrial Disputes Act, 1947 in Incharge Officer & Anr. vs.
Shankar Shetty (2010) 9 SCC 126 and after referring to the various
decisions, this Court held that the relief by way of back wages is
not automatic and compensation instead of reinstatement has been
held to meet the ends of justice and it reads as under:-
“2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the ID Act”)? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, Uttaranchal Forest Development Corpn. v. M.C. Joshi, (2007) 9 SCC 353, State of M.P. v. Lalit Kumar Verma (2007) 1 SCC 575, M.P. Admn. v. Tribhuban (2007) 9 SCC 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, Jaipur Development Authority v. Ramsahai (2006) 11 SCC 684, GDA v. Ashok Kumar (2008) 4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir Singh case (2009) 15 SCC 327, SCC pp. 330 & 335, paras 7 & 14)
“7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long
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line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. * * * 14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.”
4. Jagbir Singh (2009) 15 SCC 327 has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated: (SCC p. 777, para 11)
“11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.”
17. In the light of the above discussion, the impugned
judgment of the High Court is modified and keeping in view the fact
that the respondents are facing hardship on account of pending
litigation for more than two decades and the fact that some of the
respondents are over aged and thus have lost the opportunity to get
a job elsewhere, interest of justice would be met by directing the
appellant-university to pay compensation of rupees four lakhs to
each of the respondents. By order dated 11.07.2011, this Court
directed the appellant to comply with the requirements of Section
17B of the Industrial Disputes Act, 1947 and it is stated that the
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same is being complied with. The appellant-university is directed
to pay the respondents rupees four lakhs each within four months
from the date of receipt of this judgment. The payment of rupees
four lakhs shall be in addition to wages paid under Section 17B of
the Industrial Disputes Act, 1947.
18. In the result, the impugned judgment is modified and
these appeals are partly allowed in the above terms. No order as to
costs.
………………………J. (DIPAK MISRA)
………………………J. (R. BANUMATHI)
New Delhi; September 8, 2015
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