1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5946 OF 2003 WITH WRIT PETITION NOS.5950, 5954, 5956, 5959, 5962 & 5969 of 2003 W.P. 5946/03: The State of Maharashtra & Ors. ...Petitioners. Vs. Rajakhan Raheman Shaiklh. ...Respondent. .... W.P. 5950/03: The State of Maharashtra & Ors. ...Petitioners. Vs. Zampu D. Joshi. ...Respondent. .... W.P. 5954/03: The State of Maharashtra & Ors. ...Petitioners. Vs. Bajarang Popat Kale. ...Respondent. .... W.P. 5956/03: The State of Maharashtra & Ors. ...Petitioners. Vs. Suryakant V. Shinde. ...Respondent. .... W.P. 5959/03: The State of Maharashtra & Ors. ...Petitioners. Vs. 2 Sampat Kisan Pachundkar. ...Respondent. .... W.P. 5962/03: The State of Maharashtra & Ors. ...Petitioners. Vs. D. R. Mengade. ...Respondent. .... W.P. 5969/03: The State of Maharashtra & Ors. ...Petitioners. Vs. Balu Bhausaheb Pachundkar. ...Respondent. .... Mr. A.P. Vanarase, AGP for the Petitioners. Mr. Rajiv Patil for the Respondents. ..... CORAM : DR. D.Y.CHANDRACHUD, J. December 10, 2008. P.C. In this batch of batch of petitions, the challenge is to an order passed by the Industrial Court on 23rd April 1998 in a complaint of unfair labour practices under Items 5, 6, 9 and 10 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The complainant-workmen were 3 engaged as daily wagers in the Junnar Forest Range. They filed complaints of unfair labour practices contending that though they have completed 240 days of service in each year and had completed more than five years of service, they had been deprived of permanency. 2. A Written Statement was filed by the Forest Department of the State Government in which it was averred that the workmen were engaged as daily wagers to meet exigencies of temporary work, in pursuance of various schemes that were implemented by the Government. It is averred that the workmen were not the regular employees of the Government and they were recruited as daily wagers from time to time under the Employment Guarantee Scheme and other schemes. The Industrial Court granted the relief of permanency to the workers principally on the ground that they had worked for more than 240 days in a calendar year. The Industrial Court noted that there was a circular dated 31st January 1996 for absorption, but the workmen did not fulfill the requirements of the circular inasmuch as the circular applies to those workmen who had 4 completed five years of continuous service as on 1st November 1994. Despite this, the complaints were allowed and the benefit of permanency had been granted with consequential benefits since the date of the institution of the complaints. 3. Counsel appearing on behalf of the Petitioners submitted that the judgment of Industrial Court is manifestly erroneous since the mere completion of 240 days would not entitle the workmen to the benefit of permanency. Learned Counsel submitted that the Complainant-workmen were daily wagers and by implementing various schemes particularly in the discharge of the Employment Guarantee Scheme, the persons in the nearby villages were provided work. The workmen were not recruited by following the requisite procedure and there were no sanctioned posts. Learned Counsel for the Respondents supported the reasons of the Industrial Court. 4. The Industrial Court issued a direction that the 5 Complainant-workmen should be made permanent from the date of the institution of the complaints and should be granted benefits and privileges of permanent workmen. The sole basis on which these directions have been issued is that the workmen in question had worked for more than 240 days during the relevant years. The mere completion of 240 days will not entitle the workmen to the benefit of permanency. The recruitment of the workmen was not in accordance with the regular process of selection. The complainant workmen were daily wagers who were appointed under the Employment Guarantee Scheme and were provided with work as a means of allowing them some form of livelihood. 5. The judgment of the Industrial Court cannot be sustained in view of the law laid down in 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 6 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 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 7 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. 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 8 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 public employment. 6. 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 9 Standing Orders governing the terms and conditions of service must 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. 7. In a judgment of a Learned Single Judge of this Court (B. H. Marlapalle, J.) in Lagwad Adhikari v. Yasin Hamid Sayyad ( CDJ 2007 BHC 1697 ) delivered on 4th December, 2007 it has been observed thus : “Seeking regularisation in public employment must satisfy the requirements that the selection so made was as per the procedure prescribed under the Rules framed under Article 309 of the Constitution or any other Rules / instructions issued by the State Government in the absence of such Rules, the eligibility in terms of qualification and experience, the age limit, the aspect of reservation of seats depending upon the social status. For such public appointment on regular basis all eligible candidates must have a fair opportunity to apply, compete and face the selection process which ought to be transparent and fair. In short, the selection has to be on merits. The employees who are appointed on temporary basis either on daily wages or on monthly wages may be eligible to apply for such posts but merely because they worked for years together as temporaries or casuals directly engaged by the Department or by some Officer and without going through the selection process prescribed for Group D and C categories cannot claim regularisation in service only on the basis of the length of their service. The issue has been now well settled 10 by the Constitution Bench judgment in Umadevi's case (Supra). It is clear that regularisation could be asked for by those who have come through the normal selection process prescribed under the Rules or notifications and not by those who are popularly called as the back door entries.” 8. In the absence of sanctioned and vacant posts and particularly since the complainants were not recruited after following the regular process, the grant of relief by the Industrial Court was clearly not warranted. The impugned order passed by the Industrial Court is unsustainable and the petition, therefore, will have to be allowed and is allowed. Rule is made absolute in terms of prayer clause (a). There shall be no order as to costs. .....