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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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