1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.6011 OF 2008 Rajaram A. Sathe & Ors. ...Petitioners. Versus Vankshetrapal, Samajik Vanikaran, Shirala & Ors. ...Respondents. ....... Mr. S.M. Dharap with Mrs.Anjali Helekar for the Petitioners. Mr. A.P. Vanarase, AGP for Respondent Nos.1 to 3. ...... CORAM : DR. D.Y. CHANDRACHUD, J. September 30, 2008. P.C.: A complaint of unfair labour practices was instituted before the Industrial Court under Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The complainant-workman was appointed as a daily wager under the Social Forestry Department. The workman sought permanency and consequential benefits. 2. The Industrial Court by its judgment dated 11th April 2008 2 held that the workman was not appointed on a regular vacant post, no sanctioned post was available and that the appointment to a public post must be consistent with the constitutional scheme. The appointment of the complainant-workman was not made in accordance with the prevailing rules by furnishing an equal opportunity to others. No regular vacant post being available, the workman would not be entitled to permanency merely upon the completion of 240 days' service. The Industrial Court has inter alia relied upon the judgments of the Supreme Court in Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1, M.P. Housing Board. Vs. Manoj Shrivastava, (2006) 2 SCC 702 and on several other judgments which take the view that regularization in public employment cannot be granted when the initial appointment was de hors the prevalent rules and without following the regular procedure for recruitment. 3. At the hearing of these proceedings, it has been urged on behalf of the Petitioner that (i)The judgment of the Supreme Court in Umadevi's case was rendered in the context of the jurisdiction of the 3 High Court under Article 226 of the Constitution; (2) The judgment in Umadevi does not make any reference to local Acts under which jurisdiction has been vested in the Industrial Tribunal to pass appropriate orders in matters involving unfair labour practices; and (iii) The constitutional scheme does not cover employment in a temporary and casual capacity which would consequently be governed by local Acts. 4. The submissions which have been urged on behalf of the Petitioner cannot be accepted in view of the judgment of a Division Bench of this Court consisting of the Learned Chief Justice, Hon'ble Mr.Justice Swatanter Kumar and Hon'ble Mr.Justice A.P. Deshpande, delivered on 31st July 2008 in a batch of matters (The State of Maharashtra vs. Pandurang Sitaram Jadhav, Letters Patent Appeal 14 of 2008 in Writ Petition 4141 of 2006 and connected matters). In the cases which arose before the Division Bench, the workmen in question were daily wagers who were engaged in the Government Milk Scheme for periods between 12 to 20 years. The workmen instituted Complaints under Items 5, 6 and 9 of Schedule IV 4 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The defence of the State Government was that there was no sanctioned post to justify the grant of permanency and that completion of 240 days' service by itself, would not entitle daily wagers to permanency in service. The Industrial Court, while recording a finding of fact that there was no sanctioned post, held that the State Government was engaged in unfair labour practices. The Industrial Court held that the failure of the Government to grant permanency on the completion of 240 days' service amounted to a breach of the Standing Orders. Accordingly, a direction was issued for the grant of permanency to all the workmen concerned in the complaints on the completion of 240 days' service. A Learned Single Judge of this Court dismissed the Writ Petition filed by the State Government holding that since the Industrial Employment (Standing Orders) Act, 1946 would be applicable to the undertaking, the workmen were entitled to permanency on the completion of 240 days' service and the judgment in Umadevi's case would not applicable. The State Government filed Letters Patent Appeals which were allowed by the Division Bench on 31st July 2008. 5 The Division Bench relied upon the judgments of the Supreme Court in Umadevi (supra), M.P. Housing Board (supra), and Mahendra L. Jain Vs. Indore Development Authority, (2005) 1 SCC 639 and came to the conclusion that in the absence of a sanctioned post, no permanency in service could be granted. The Division Bench held thus: “Articles 14, 16 and the rules framed thereunder Article 309 apply to public employment only and has no application to private employment. The State within the meaning of Article 12 is bound by the mandate of Articles 14 and 16, and is obliged to afford equal opportunity to all, which is not a requirement and obligation in the private employment. In the present appeals we are dealing with issues in Public Employment, for which there exists a constitutional scheme which is entirely different from private employment.” The Division Bench held that the State Government is obliged to make appointments in adherence to the Constitutional Scheme. The Court held that the daily wagers in the complaints were appointed without following the procedure prescribed for public participation and had not acquired any legal right to claim permanency. Finally it was held that Model Standing Orders are subject to the Rules regulating appointment as well as to the Constitutional scheme in the matter of 6 public employment. 5. In view of the judgment of the Division Bench, the submissions which have been urged before the Court cannot be accepted. In Umadevi's case, the Supreme Court has held that in making regular appointments to posts under the Government and its instrumentalities, equality and equal opportunity must rule. Public employment is governed by the requirements of Articles 14 and 16. Unless an appointment to a post under the Government is made in accordance with the governing rules, no rights can be conferred on such an appointee. Mere continuance of a temporary, casual or daily wage employee would not entitle the employee to claim permanency in service. In the M.P. Housing Board case, the Supreme Court held that a daily wager can claim no entitlement to continue unless his appointment was against a duly sanctioned post and after following the statutory provisions governing the field. The mere completion of 240 days would not entitle the employee to regularization. In Indore Development Authority (supra), the Supreme Court held that the Standing Orders governing the terms and conditions of service must 7 be read subject to constitutional limitations wherever applicable. The same view was reiterated in M.P. State Agro Industries Development Corporation Ltd. vs. S.C. Pandey, (2006) 2 SCC 716. The view which has been taken by the Industrial Court in the present case is consistent with the law laid down by the Supreme Court. The view is also in conformity with the judgment of the Division Bench dated 31st July 2008 (supra). 6. In the circumstances, no case for interference is made out. The Petition is dismissed. ......