1 W.P.544.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 544 OF 2007 1. The State of Maharashtra, Through District Civil Surgeon Parbhani. 2. The Deputy Director of Health Services, Aurangabad. ..PETITIONERS (ori. Respondents) VERSUS Mehboobkhan S/o Rasool Khan Pathan, Kadrabad Plot. Near Lalit Kala Bhavan Parbhani. ...RESPONDENT. (Ori. Complainant) ... Shri.S.B.Pulkundwar,AGP for the petitioners. Shri.S.B.Ghute,Advocate for Respondent. ... CORAM: A.V.NIRGUDE, J. DATE : 6TH APRIL, 2011. ORAL JUDGMENT : 1. The Petitioner-State of Maharashtra has filed this Writ Petition under Article 226 of the Constitution of India, challenging the Judgment and order dated 04th December, 2006, passed by the learned Member, Industrial Court, Jalna, in Revision (ULP) NO. 73 of 2006. Facts leading to this Writ Petition in short can be stated as under: 2. The respondent was appointed as driver vide an order dated 11th May, 1994 of District Civil Surgeon, Parbhani, on temporary 2 W.P.544.07 basis, only for a period of 29 days. Several terms and conditions were laid in the order, one of them was that the respondent would continue on duty for 29 days; or till regular employee is appointed, whichever occurs earlier. Since, the date of appointment respondent worked continuously till February 1999. The Deputy Director, Heath Services, Maharashtra State, Aurangabad vide his letter dated 24th February, 1999 instructed the Civil Surgeon that “the respondent has put in uninterrupted service of 12 months and so he was entitled to annual increment, as per prevalent rules in respect of temporary appointments of the Government, benefits should be given to him.” In view of this direction, the respondent was given various benefits including membership of General Provident Fund. 3. It so happened that, the Civil Surgeon could not appoint a regular person as driver and respondent continued to work as driver. On 01st February, 2003, the Civil Surgeon terminated his services. The respondent then filed complaint ULP NO. 63 of 2003 before the Labour Court, Jalna, alleging that termination amounted Unfair Labour Practice and submitted his claim under section 28(1) read with Item 1 (a)(b)(d) of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (For short “MRTU and PULP Act”). He claimed that, he was entitled to permanency status as per Government Resolution dated 08th March, 1999. The Civil Surgeon opposed this application on various grounds, but the Labour Court allowed the complaint and directed the Civil Surgeon to reinstate respondent in the service with continuity from 01st February, 2003. 3 W.P.544.07 4. The Civil Surgeon challenged this judgment and order dated 04th September, 2006 of the learned Judge of the Labour Court before the Member, Industrial Court, in Revision (ULP) NO.73 of 2006. The learned Member, Industrial Court dismissed the revision. The Judges of the lower Courts took a view that since the order of termination amounted to retrenchment and since condition contemplated under section 25(f) of the Industrial Disputes Act were not complied with at the time of his retrenchment, the termination was illegal. The learned Judges also placed reliance on the judgment of this Court in the case of Executive Engineer, Irrigation Division Gondia and others Vs. Maroti S/o Janba Dupare, reported in 2004 II CLR 677. Nonetheless, the Judges of the Lower Courts were probably not aware of the Judgment of the Supreme Court in the case of Secretary, State of Karnatka and others Vs. Umadevi and others, reported in 2006(4) SCC Page No. 1. They have not referred the ratio of the judgment of the Umadevi’s Case. 5. The Constitution Bench of the Supreme Court in that case comprehensively dealt with the issue involved in this case, as well as other similar issues. It observed: “Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the 4 W.P.544.07 Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the Courts, seeking directions to make them permanent in their posts and to 5 W.P.544.07 prevent regular recruitment to the posts concerned. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that 6 W.P.544.07 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. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 7 W.P.544.07 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment.” 6. The ratio of this judgment is clearly applicable to the facts of the case, as said above. The respondent was appointed purely on temporary basis. He was never appointed by following due procedure prescribed for appointing Regular driver in the services of the State Maharashtra or Health Services. Even, in 1994, when he was given certain more benefits, it was made clear to him that benefits were given as per the prevalent rules applicable to the employees, who were appointed on temporary basis. So, the directions of Deputy Director Health Services, issued in 1999 does not confer any status of permanency to the respondent. Besides, one of the terms of the appointment of the respondent was that he being temporary employee, his services could be terminated at any time without giving any notice. In view of this term, the termination of the respondent would not amount to retrenchment as contemplated under section 2 (oo) of the Industrial Disputes Act. The definition of term retrenchment reads as under: “2... (oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on 8 W.P.544.07 reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill- health.” 7. The case of the respondent’s termination would fall within ambit of clause (bb). If termination did not amount to retrenchment there is no question of compliance of procedure prescribed under section 25(f) of the Act. In view of this, the Writ Petition should succeed. Rule made absolute accordingly. The impugned judgments of the Courts below dated 04th September 2006 and 04th December, 2006 passed by the learned Judge of the Labour Court, Jalna and Member, Industrial Court, Jalna respectively stands set aside. The complaint of the respondent bearing Complaint (ULP) No. 63 of 2003 stands dismissed. Sd/- [ A.V.NIRGUDE, J.] MTK ok 9 W.P.544.07