Madhya Pradesh High Court
The State Of M.P,And Ors. vs Arvind Dohre on 3 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:4394
1 WP-3441-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
WRIT PETITION No. 3441 of 2005
THE STATE OF M.P.AND ORS.
Versus
ARVIND DOHRE
Appearance:
Shri Prabhat Pateriya - Govt. Advocate for the petitioners/State.
Shri Subodh Pradhan - Advocate for respondent.
Reserved on : 03/02/2026
Delivered on : 06/02/2026
ORDER
With the consent of parties, the matter is heard finally.
1. The instant writ petition filed under Articles 226/227 of the Constitution of India takes exception to the award dated 15.03.1999 passed by the Labour Court No.2 Gwalior, whereby, the application submitted by the respondent under Sections 31(3), 61 and 62 of the M.P. Industrial Relations Act, 1960 has been allowed and the petitioners have been directed to permanently classify the respondent on the post of Assistant Drilling Helper and to pay the arrears of difference of salary w.e.f. 16.08.1994.
2. The petition also challenges the order dated 10.09.2004 passed by the Industrial Court, Gwalior whereby, the appeal preferred by the petitioners against the award dated 15.03.1999 has been rejected.
Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:4394 2 WP-3441-2005
3. Brief facts leading to filing of the instant writ petition are as under:-
3.1 The respondent herein approached the Labour Court by filing an application under Section 31(3), 61 and 62 of the M.P. Industrial Relations Act, 1960, on the ground that he has been engaged as Assistant Drilling Helper by the petitioners since 15.02.1990 and was discharging the duties of the said post since then uninterruptedly and to the satisfaction of the petitioners yet, he has not been conferred permanence in the petitioners' department and is being paid the wages payable to a daily wager. The respondent, thus, sought the relief of permanent classification on the post of Assistant Drilling Helper along with arrears of difference of salary from the date of initial engagement.
3.2 On being noticed, the petitioners herein opposed the claim of the respondent on the ground that the respondent has been engaged as a daily wager and not against any sanctioned post of Assistant Drilling Helper and that wages payable to a daily wager were being paid to him. It was further contended that there was no policy of the State either to declare the respondent permanent or to regularise his services. On the basis of rival contentions of the parties, after framing issues, evidence was led by the parties and, on the basis thereof, the impugned award dated 15.03.1999 was passed whereby the reliefs as prayed for were granted, and the appeal preferred by the petitioners against the same was dismissed.
4. The learned counsel appearing for the petitioners/State submits that vide gazette notification dated 21.01.1999, the petitioners' department was excluded from the provisions of the M.P. Industrial Relations Act and, therefore, the Labour Court was having no jurisdiction to adjudicate the Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:4394 3 WP-3441-2005 claim of the respondent/workman. He further submits that mere uninterrupted service of 240 days by a daily wager does not automatically entail permanent classification unless it is proved that the workman was engaged against a sanctioned vacant post and that a ticket of permanence was issued in his favour and his name was entered in the muster roll. He submits that without adverting to the aforesaid aspects, the Labour Court has mechanically granted the relief of permanent classification and payment of arrears of wages.
5. On the other hand, the learned counsel appearing for the respondent/workman, by placing reliance on the Full Bench judgment of this Court in the case of Superintending Engineer, PWD and another vs. Dev Prakash Shrivas and Ors., 1999(1) JLJ 391 submits that the provisions of the Industrial Relations Act are very much applicable to the respondent department. He further submits that, in terms of the M.P. Industrial Employment (Standing Orders) Act, 1961 the Labour Court has rightly granted the relief of permanent classification in favour of the workman along with arrears of back wages. He also places reliance on the judgment of this Court in the case of Engineer-in-Chief, P.H.E.D. and Ors. vs. Budha Rao Magarde and Ors. 2001(2) JLJ 399.
6. No other point has been pressed by the learned counsel appearing for the parties.
7. Heard learned counsel for the parties and perused the record.
8. The issue as regards entitlement of a workman engaged as a daily wager seeking permanent classification has been considered by the Apex Court in the case of Mahendra L.Jain vs. Indore Development Authority, 2005(1) Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:4394
4 WP-3441-2005 SCC 639, and the proposition laid down therein has been again considered by the Apex Court in the case of M.P. Housing Board and another vs. Manoj Shrivastava, 2006(2) SCC 702. The relevant portion of the judgment of the Apex Court in the case of Manoj Shrivastava (supra) reads as under:-
7. "Permanent employee" and "temporary employee" have been defined in clauses 2(i) and (vi) of the Standard Standing Order made under the 1961 Act which read as under:
"2. (i) A 'permanent' employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee;
(vi) 'temporary employee' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i) above."
8. A person with a view to obtain the status of a "permanent employee" must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field.
9. The Labour Court unfortunately did not advert to the said question and proceeded to pass its award on the premise that as the respondent had worked for more than six months satisfactorily in terms of clause 2(vi) of the Standard Standing Orders, he acquired the right of becoming permanent. For arriving at the said conclusion, the Labour Court relied only upon the oral statement made by the respondent.
10. It is one thing to say that a person was appointed on an ad hoc basis or as a daily-wager but it is another thing to say that he is appointed in a sanctioned post which was lying vacant upon following the due procedure prescribed therefor.
11. It has not been found by the Labour Court that the respondent was appointed by the appellant herein, which is "State" within the meaning of Article 12 of the Constitution, upon compliance with the constitutional requirements as also the provisions of the 1972 Act or the Rules and Regulations framed thereunder.
Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:4394 5 WP-3441-2005
12. In Mahendra L. Jain v. Indore Development Authority [(2005) 1 SCC 639 :
2005 SCC (L&S) 154] this Court followed an earlier decision of this Court in M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board [(2004) 9 SCC 755 : 2004 SCC (L&S) 754] wherein it was clearly held that when two statutory rules operate in the field, unless the rules and regulations framed by the statutory authority are inconsistent with the provisions of the 1960 Act and the Rules framed thereunder, provisions of both the statutes are required to be followed, holding: (Mahendra L. Jain case [(2005) 1 SCC 639 : 2005 SCC (L&S) 154] , SCC pp. 651-52, para 29) "The 1973 Act or the Rules framed thereunder do not provide for appointments on ad hoc basis or on daily wages. The 1961 Act itself shows that the employees are to be classified in six categories, namely, permanent, permanent seasonal, probationers, badlis, apprentices and temporary. The recruitments of the appellants do not fall in any of the said categories. With a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof. Permanent employee has been divided in two categories
(i) who had been appointed against a clear vacancy in one or more posts as probationers and otherwise; and (ii) whose name had been registered [both] at muster roll and who has been given a ticket of permanent employee. A 'ticket of permanent employee' was, thus, required to be issued in terms of Order 3 of the Standard Standing Orders. Grant of such ticket was imperative before permanency could be so claimed. The appellants have not produced any such ticket."
13. It was further held: (SCC p. 652, para 31) "31. The Standing Orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. The Constitution being suprema lex, shall prevail over all other statutes. The only provision as regards recruitment of the employees is contained in Order 4 which merely provides that the manager shall within a period of six months, lay down the procedure for recruitment of employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the Labour Commissioner. The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules. In the absence of any specific directions contained in the Schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the respondent shall prevail."
14. It was furthermore held: (SCC p. 652, para 33) "33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute vis-à-vis the 1973 Act and the Rules framed thereunder. But in the absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:4394 6 WP-3441-2005 regularisation. For the purpose of regularisation which would confer on the employee concerned a permanent status, there must exist a post. However, we may hasten to add that regularisation itself does not imply permanency. We have used the term keeping in view the provisions of the 1963 Rules."
15. A daily-wager does not hold a post unless he is appointed in terms of the Act and the Rules framed thereunder. He does not derive any legal right in relation thereto.
16. The effect of such an appointment recently came up for consideration in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] wherein this Court clearly held that such appointments are illegal and void. It was further held: (SCC pp. 690-91, paras 75-76) "75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularised in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well settled. (See State of A.P. v. S.B.P.V. Chalapathi Rao [(1995) 1 SCC 725] , SCC para 8; Jalandhar Improvement Trust v. Sampuran Singh [(1999) 3 SCC 494] , SCC para 13 and State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 :
2000 SCC (L&S) 845] , SCC para 30.)
76. In the instant case, furthermore, no post was sanctioned. It is now well settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill up the same in terms of the existing rules. They, having regard to the provisions of the Regulations, may not fill up all the posts."
17. It is now well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. (See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra [(2005) 5 SCC 122 : 2005 SCC (L&S) 628] ; Executive Engineer, ZP Engineering Divn. v. Digambara Rao [(2004) 8 SCC 262 : 2004 SCC (L&S) 1097] ; Dhampur Sugar Mills Ltd. v. Bhola Singh [(2005) 2 SCC 470 : 2005 SCC (L&S) 292] ; Manager, Reserve Bank of India v. S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609] and Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] .)
18. In State of Karnataka v. KGSD Canteen Employees Welfare Assn. [(2006) 1 SCC 567 : 2006 SCC (L&S) 158 : (2006) 1 Scale 85] it was held: (SCC pp.
584-85, para 44) Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:4394 7 WP-3441-2005 "44. The question which now arises for consideration is as to whether the High Court was justified in directing regularisation of the services of the respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of ad hoc employees or daily-wage employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Article 309 thereof. The State is obligated to make appointments only in fulfilment of its constitutional obligation as laid down in Articles 14, 15 and 16 of the Constitution and not by way of any regularisation scheme. In our constitutional scheme, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State time and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field."
19. The appointment made by a person who has no authority therefor would be void. A fortiori an appointment made in violation of the mandatory provisions of the statute or constitutional obligation shall also be void. If no appointment could be made in terms of the statute, such appointment being not within the purview of the provisions of the Act, would be void; he cannot be brought within the cadre of permanent employees. The definitions of "permanent employee" and "temporary employee" as contained in the Rules must, thus, be construed having regard to the object and purport sought to be achieved by the Act.
20. In State of Punjab v. Jagdip Singh [(1964) 4 SCR 964 : AIR 1964 SC 521] a Constitution Bench of this Court held that if no post was available at the time when the respondent therein could be confirmed, such appointment would be void. The effect of such void appointment has been held to be conferring no legal right stating: (SCR p. 971) "When an order is void on the ground that the authority which made it had no power to make it cannot give rise to any legal rights, and as suggested by the learned Advocate General, any person could have challenged the status of the respondents as Tahsildars by instituting proceedings for the issue of a writ of quo warranto under Article 226 of the Constitution. Had such proceedings been taken it would not have been possible for the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tahsildars."
Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:4394 8 WP-3441-2005 (See also Union Public Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482 : (2006) 2 Scale 115] .)
21. In Onkar Prasad Patel [(2005) 13 SCC 489 : (2005) 10 Scale 153] whereupon Mr Nair placed strong reliance, it was categorically held that an employee would not come within the purview of the definition of "permanent employee" only because he has completed six months' satisfactory service. The other requirement was that the service must be rendered in a clear vacancy in one or more posts which was established. The conditions were held to be cumulative and not independent of each other. The said decision, therefore, runs counter to the submission of the learned counsel.
22. For the foregoing reasons, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. The order of the Labour Court will stand set aside. However, in the facts and circumstance of the case, there shall be no order as to costs."
[Emphasis supplied]
9. The perusal of the judgment of the Apex Court in the case of Manoj Shrivastava (supra) quoted in the hereinabove, indicates that mere completion of 240 days of service does not automatically entitle a workman to the relief of permanent classification. The other aspects which are required to be considered include appointment of the workman against a clear vacancy, entry of his name in the muster roll and issuance of a ticket of permanent employee. A "ticket of permanent employee" as required to be issued in terms of Order 3 of the Standard Standing Orders, has been held to be imperative before permanency could be claimed.
10. When the facts of the case in hand are examined in the light of the judgment aforesaid, it is evident that the Labour Court, merely by taking into consideration the fact that the workman was engaged on 5.2.1990 and continued till the date of filing of the application, drew a presumption regarding the availability of a vacant post. No finding has been recorded by the Labour Court in the award dated 15.03.1999 as regards the engagement Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:4394 9 WP-3441-2005 of the respondent/workman against a sanctioned vacant post or the issuance of a ticket of permanency. Even the evidence led by the petitioner before the Labour Court does not indicate the existence of any such material.
11. The judgment in the case of Budha Rao Magarde (supra) relied upon by the respondent/workman, being prior to the judgment delivered by the Apex Court in the case of Manoj Shrivastava (supra), does not render any assistance to the respondent/workman.
12. In view of the above considerations, the award dated 15.03.1999 passed by the Labour Court, as affirmed vide order dated 10.09.2004 passed by the Industrial Court, cannot be given stamp of approval and is hereby quashed. Accordingly, the petition is allowed.
13. Pending application (s), if any, shall stand closed.
(AMIT SETH) JUDGE Van Signature Not Verified Signed by: VANDANA VERMA Signing time: 06-Feb-26 7:04:15 PM