Madras High Court
Tamil Nadu Civil Supplies Corporation ... vs Tamil Nadu Civil Supplies Corporation ... on 1 January, 1800
Equivalent citations: 1997(3)CTC535
ORDER AR. Lakshmanan, J.
1. The Writ Appeal No. 512 of 1997 has been directed against the order of the learned Single Judge of this Court in dismissing the writ petition filed by the appellant workers union for a mandamus forbearing the Tamil Nadu Civil Supplies Corporation Limited (herein after called Corporation) to oust any of the Bill Clerks, Helpers and Watchmen working in the Direct Purchase Centres under the control of the Corporation who have rendered 480 days of service in two consecutive years or who have been granted permanent status by the Inspector of Labour, Thanjavur, Nagapattinam and A.T. Panneerselvam Districts. The learned Judge (R. Jaya Simha Babu, J.) dismissed the writ petition in limine on 10.04.97 by passing the following order:
"Petitioner - Union wants a blanket in junction in favour of a large number of its employees though the exact number is not specified from being relieved from their places of work. Petitioner is not entitled to any such blanket relief. If the respondents have committed any error of law or violated any legal rights of the employees, such employees may take such action as is available to them in accordance with law, to challenge the illegal action if any on the part of the respondents. This petition is misconceived and the same is rejected. Consequently, the W.M.P. is also rejected."
2. The appellant workers union filed writ petition No. 4798 of 1997 claiming that, pursuant to the Judgment of this Court in Writ Petition No. 5449 of 1983, Writ Appeal No. 423 of 1992 and S.L.P.No. 16474 of 1992, they are entitled for grant of permanent status with effect from the date of completion of 480 days, that the Inspector of Labour, Thanjavur in his proceedings in R.C.No. A- 19146 of 1992 dated 31.05.95 have granted permanent status to 151 employees and that the Inspector of Labour Nagapattinam in his proceedings dated 25.3.95 held that out of 129 employees, 128 were eligible for grant of permanent status and that the Corporation have filed W.Ps. 14889 and 14640 of 1996 against the above orders and the writ petitions are pending on the file of this court for final adjudication.
3. Mr. R. Ganesan, learned counsel for the appellant submitted that even after grant of permanent status to workers, the Corporation is seeking to oust them from services on the ground of closure of the season. Since the Corporation is planning to oust the employees working in "Direct Purchase Centres" who have rendered 480 days of service in two calendar years and who have been granted permanent status by the Inspector of Labour and that there will be work throughout the year, there is no justification at all for the Corporation to oust the employees working in "Direct Purchase Centres" who have rendered 480 days of service in 2 calendar years who have already been granted permanent status. If this is allowed to be done, it will run counter to the decision of this Court and also will be unjust and unreasonable. In the circumstances, the workers union filed Writ Petition No. 4798 of 1997. The writ appeal was admitted on 13.06.97 and the Corporation have now filed their counter affidavit denying the allegations contained in the affidavit. It is stated that the appointment to the post is a seasonal one which can be terminated at any time as soon as the work is over, and that the workers are not entitled for the grant of permanent status under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981. It is also submitted that the Establishment is of a seasonal character and that the work is performed only intermittently, the Act has no application to the Corporation. It is also submitted that against the order of the Inspector of Labour, Thanjavur who has granted permanent status to the employees by his order dated 25.5.95 and that against the order of the Inspector of Labour, Nagapattinam who has granted permanent status to the employees by his order dated 25.3.95, the Corporation have preferred Writ Petitions 14639 and 14640 of 1996 before this Court challenging the said orders and the writ petitions are admitted and are pending final disposal. In the mean time, the workers have filed the present Writ Petition No. 4728 of 1997 with a whole sale prayer directing the Corporation to regularise the seasonal employees who are not at all covered by the order passed by the Inspector of Labour Thanjavur and Nagapattinam in their proceedings dated 31.5.95 and 25.3.95. The prayer as far as the writ petition is concerned, cannot be granted since on 7.5.97 itself the seasonal employees had been terminated from service. Other legal and factual contentions have also been raised in the counter affidavit. In support of his contentions Mr. R. Ganesan has cited the following decisions;
(1) Metal Power Co., Ltd. Tirumangalam and Anr. v. The State of Tamil Nadu and Anr., 1985 (2) LLJ 376; (2) Central Inland Water Transport Corporation Ltd., and Anr. v. Tarun Kanti Sengupta and Anr., 1986 (2) LLJ 171; (3) Supreme Court Employees Welfare Association v. Union of India, ; (4) A.R. Antulay v. R.S. Nayak and Anr., ; (5) P.K. Vijayan v. Kamalakshi Amma, ; (6) ; (7) Gorie Gouri Naidu (Minor) and Anr. v. Thandrothu Bodemma andanother, ; (8) 1990 LIC 249
4. Writ Appeal Nos. 563 to 565 of 97: These three writ appeals are by the individual seasonal employees of the Corporation. These three appeals were filed for a mandamus directing the Corporation to confer permanent status on the writ petitioners with effect from 3.5.86 with all consequential, monetary, service and other attendant benefits. All the three writ appeals were dismissed by Kanakaraj. J on 22.4.97 on the ground that the workmen have to approach the Inspector for declaration and that after such declaration by the Inspector, if the Management refuse to confer permanent status, it is time enough for the petitioners to approach this Court or any other competent authority, and that the workmen cannot straight away approach this Court under Article 226 of the Constitution of India to direct the Management to confer permanent status from a particular date. In this view of the matter, the learned Judge was not inclined to entertain any of these writ petitions and accordingly dismissed the same, hence the workmen have filed the above three writ appeals. Mr. Perumbulavil Radhakrishnan learned counsel for the appellant submitted that there is no provision in the Act for approaching the Labour Inspector under the Act and the writ petitioner cannot maintain the writ petition and can only approach the Labour Officer is not correct. He further submitted that the writ petition for a mandamus to enforce a statutory right is maintainable in law. He would further submit that though the services of the workmen were permanently required and the Corporation was wilfully keeping them temporary and having periodically ousting only to exploit them of the monetary benefits due to them.
5. Writ Petition Nos. 5826 to 5838 of 1997, 5070 of 1997, 4971 to 4973 of 1997, 4243 to 4245 of 1997, 6520 and 6521 of 1997: These writ petitions were filed by certain workmen for a mandamus directing the Corporation to confer permanent status on the petitioners with effect from a particular date with all consequential, monetary, service and other benefits. Similar contentions as in the other writ petitions have been raised in these writ petitions.
6. Writ petition Nos. 5120 of 1997. 5827 of 1997, 7161 to 7164 of 1997: (filed by Mr. S. Periasamy, Advocate). These writ petitions were filed by some of the workmen for mandamus directing the Corporation to regularise their services for the respective posts with all attendant and monetary benefits including the time scale of pay from the date of their appointment.
7. Writ petition Nos. 7161 to 7164 of 1997: The Writ Petition No. 7161 of 1997 has been filed by Mr. S. Selvaraj to call for the records pertaining to the order of the Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., in his proceedings RC.No.10088 of 1997/A4 dated 7.5.95 and quash the same.
Writ Petition No. 7162 has been tried by Mr. P. Manimaran to quash the very same proceedings dated 7.5.97.
Writ petition Nos. 7163 and 7164 has been filed by Mr. A. Karunanidhi and Mr. N. Thiuvarasan to quash the very same proceedings dated 7.5.97. By the impugned order dated 7.5,97, the temporary Bill Clerks who were working in the "Direct Purchase Centres" and other field points, etc., were ousted from service on the afternoon of 7.5.97 for want of vacancy. The order also states that the temporary Bill Clerks were clearly informed at the time of their appointment that they were liable to be ousted from service at any time without any prior notice or assigning any reason. Mr. S. Periasamy learned counsel for the respective petitioners contended that all the employees have put in 480 days of service with 24 months as required under the Tamil Nadu Government Conferment of Permanency Act, 1981 and therefore they are eligible to be regularised in the post of Bill Clerks, etc., as that of other employees. The Corporation in spite of their repeated requests have not taken any action for regularisation of their services. The learned counsel has also relied on the order passed by this Court in Writ Petition No. 5549 of 1995 praying for regularisation and since the writ petitioner is also similarly placed, he is entitled for similar relief along with other workers who are working in the Corporation. Mr. S. Periasamy learned counsel for the petitioner also submitted that the order of the respondent Corporation is illegal and against the guidelines issued by the Government and that the Corporation has ousted the petitioner alone from the service while his juniors have been continued in service and that the Corporation has failed to follow the universal procedure of the "Last come first go". He also submitted that the appointment order was given by the Tamil Nadu Civil Supplies Corporation and not by the Procurement/Purchase Centres.
8. Writ petition Nos. 6440 and 6441 of 1997: (Filed by Mr. V. Sanjeevi and Mr. K. Muthukumaran, Advocates) These two writ petitions have been filed by the seasonal employees of the Corporation for a mandamus directing the Corporation to confer permanent status on them with effect from 14.12.87 with all consequential, monetary, service and other benefits. It is contended by Mr. V. Sanjeevi learned counsel for the petitioner that the action of the Corporation in not conferring permanent status and giving one day break in service is highly illegal, arbitrary and violative of Article 14 of the Constitution of India and that the Corporation is an Industrial Establishment as defined in Section 2(3) of the Act, and the Corporation is an Establishment as defined in Clause (6) of Section 2 of the Tamil Nadu Shops and Establishments Act, 1947 and that the petitioner has been denied under Section 2(4) of the Act when he is in service for a long period of 12 years. He further submitted that when the petitioner's service is required continuously, the action of the Corporation in giving ouster order is illegal.
9. On behalf of the respondent Corporation, Mr. A.L. Somayaji, Senior Advocate argued the matter. His argument was adopted by Mr. R. Balasubramanian. Our attention was drawn to the sample appointment order. The last paragraph of the appointment order reads thus:
"I clearly understand that the post for which I have been selected is seasonal in character and purely temporary one and it is for a short period and that I am liable to be ousted from service at any time prior to that date without any prior notice whichever is earlier. I shall abide by all the rules and regulations of the Corporation. I also understand that I do not have any right to claim for any continues appointment in the Corporation."
The petitioners were appointed as seasonal Bill Clerks with a consolidated pay of Rs. 750 p.m. consequent upon the cosigning of "Direct Purchase Centres" for "Sambha 1997 season" in Nagapattinam. At the time of appointment, the workmen were clearly informed that the appointment is of seasonal in character, purely a temporary one for a short period and they are liable to be ousted from the service at any time without any prior notice or assigning any reasons. The appointment order (above extracted) further states that the petitioner has to furnish the Certificates as contained in last paragraph of the appointment order at the time of joining duty. From a reading of the appointment order, it is clear that the appellant does not acquire the right for regularisation, since the appointment is a seasonal one and the workmen were liable to be ousted from the service at any time without prior notice or assigning any reasons.
10. Our attention was drawn to the prayer in Writ Petition No. 4728 of 1997 which is for a mandamus directing the Corporation not to oust any Bill Clerks, Helpers, etc., working in "Direct Purchase Centres" who have rendered 480 days of service in two consecutive years and who have been granted permanent status by the Inspector of Labour, Thanjavur and Nagapattinam. We are of the view that the writ petitioners are not entitled to ask for the general prayer without furnishing the details as to the number of workers and the relevant seniority list. The appointment order above extracted is very clear that the appointment is a temporary one and the employees have no right to claim regularisation, since the appointment is of seasonal in character. The appointment order further specifically states that they will be ousted from service at any time due to non-availability of work, for want of vacancy on account of the completion of work and due to non-availability of budgetary sanction for the continuance of such seasonal employees. In our view, the workmen do not acquire any vested right to be regularised since the appointment is a seasonal one. We have already noticed that the present writ petition has been filed for regularisation on the basis of the earlier judgment of this Court in W.P.No. 5459 of 1983 which was allowed on 10.10.91 with the direction to the workmen to approach the Labour Curt for determination of the question of permanent status. The writ appeal filed by the Corporation and the further S.L.P. were dismissed. Afterwards, the workmen have approached the Labour Court for getting appropriate relief according to the direction in W.P.No. 5459 of 1983 and on 31.5.95 and 25.3.95, the Inspector of Labour, Thanjavur and Nagapattinam granted permanent status to some of the employees. Aggrieved by the said order, the Tamil Nadu Civil Supplies Corporation has filed W.P.No. 1450 of 1993 with this court challenging the order of the Inspector of Thanjavur and Nagapattinam. This court admitted the writ petition and the same is pending final adjudication. In the mean time the workmen have filed W.P.No. 4728 of 1997 with a wholesale prayer directing the Corporation to regularise the seasonal employees who are not at all covered by the order passed by the Inspector of Labour, Thanjavur and Nagapattinam. This prayer was opposed by the Corporation on the ground that the services of the seasonal employees have been terminated on 7.5.97 itself and therefore the writ petitions are liable to the dismissed. As rightly pointed out by the learned senior counsel for the respondent Corporation that in view of the pendency of the writ petitions filed by the Corporation challenging the orders passed by the Inspector of Labour, Thanjavur and Nagapattinam, we are not expressing any opinion on the prayer asked for in Writ Petition No. 4728 of 1997 which was dismissed at the admission stage itself and against which Writ Appeal No. 512 of 1997 has been preferred. In our opinion, the writ appellant union has to await for the final outcome of the Writ Petition Nos. 14639 and 14640 of 1996.
11. Mr. R. Ganesan, learned counsel for the appellant invited our attention to the decision of Kanakaraj, J, in Writ Petition No. 5459 of 1983. The learned Judge held that on a plain reading of Section 2(6) of the Shop Act, there can be no difficulty that the Establishment of the Corporation where the temporary employees are working or either a shop or a commercial establishment, within the meaning of Section 2(6) of the Shop Act, that once the Establishment comes within Section 2(6) of the Shop Act, it automatically follows that it is an Establishment within the meaning of Section 2(3) of the Permanent Status Act. The Corporation cannot therefore escape from the applicability of the Permanent Status Act. We are of the view that the above judgment is distinguishable on an interpretation of Sub-Clause (3) of Section 1 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981. It is contended by Mr. A.L. Somayaji learned counsel for the respondent that the provisions of the above mentioned Act of 1981 do not apply to the respondent Corporation, since the respondent is not an Industrial Establishment as defined under Sub-section (3) of Section 2 of the Act. Sub-section (3) of Section 1 reads as follows:
"It applies to every Industrial Establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than 50 workmen were employed on any day of the preceding twelve months. If any question arises whether an Industrial establishment is of a seasonal character or whether work is performed therein only intermittently the decision of the Government thereon shall be final."
"Provided that the Government may, by notification, apply the provisions of this Act to any Industrial Establishment employing such number of workmen less than fifty as may be specified in the Notification."
12. There cannot be any dispute that the "Direct Purchase Centres" "Procurement Centres" are all seasonal establishments in which work is performed only for a specified period namely during "Sambha" or "Kuruvai" season. The procurement of paddy by the Corporation is also only of seasonal nature. Therefore, in order to procure paddy during the season, the Corporation engaged Bill Clerks, Helpers and Watchmen and a consolidated monthly salary on a temporary basis from and out of the candidates sponsored by the Employment Exchange. The employees were paid with a consolidated pay of Rs. 750 p.m. consequent upon the opening of "Direct Purchase Centres" for "Sambha 1997 season" in Nagapattinam. At the time of appointment, the employees were informed that the appointment is of seasonal in character, purely a temporary one for a short period and they are liable to be ousted from the service at any time without any prior notice or assigning any reasons.
13. A reading of the order of Kankaraj, J, in Writ Petition No. 5459 of 1993 would only show that no argument was advanced before the learned Judge as to whether the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 is applicable to temporary or seasonal establishment. The said argument was advanced by Mr. A.L. Somayaji learned counsel for the respondent at the time of hearing, in support of his contention that the business of the corporation/Establishment is of seasonal in character and therefore the above Act has no application to the Establishment of the Tamil Nadu Civil Supplies Corporation. The Tamil Nadu Civil Supplies Corporation is not an Industrial Establishment. We see much more in the contention of the learned senior counsel. The argument of Mr. A.L. Somayaji that the above Act is not applicable to the Establishment, since the work is of seasonal character is also supported by several other factors. They are:
(a) There is no budgetary sanction for the respondent organisation to regularise the services of the workmen due to non-availability of work.
(b) The employees were appointed as seasonal temporary Bill Clerks.
(c) The post were to carry a consolidated salary of Rs. 750 p.m. which is terminable without any notice and without assigning any reason.
14. As the appointment is purely on ad hoc basis and is contractual, the appointment comes to an end as soon as the work is over and the person holding such post can have no legal rights to continue in the post. Therefore the employees of the petitioner's association have no right to ask for regularisation since there is no work available in the Corporation and above all, the seasonal employees are not recruited in the manner contemplated in the rules. The procedure for recruitment of regular vacancy namely:
(1) By Direct Method (2) Promotion from Feeder Category are not followed for recruitment of seasonal employees. It is also pointed out that the seasonal employees are not recruited according to rules and not against a sanctioned vacancy. The mere fact that they have continued for requisite length of service is not ipso facto entitled for regularisation. The condition precedent for regularisation is that the appointment should be on regular basis after selection according to rules. The seasonal employees are not recruited on regular basis according to rules after consideration of the claims on merits. Hence we are of the view that they are not entitled to regularisation.
15. It was argued by Mr. Periasamy and Mr. Perumbulavil Radhakrishnan, learned counsel that the employees who have completed 480 days of service should be considered for regularisation. We are unable to accept the said argument. Mere continuance and completed 480 days of service on the basis of the interim stay granted by this Court is not eligible for regularisation on the ground that the seasonal employees cannot continue in service on his own right under the appointment order. Further more, the seasonal employees have no right to claim for permanent post till they are duly selected and appointed and their appointment was not made in accordance with the rules. As rightly pointed out by the learned senior counsel, there must exist a post to appoint the employees to the post. The seasonal employees cannot make a claim for regularisation against non-existent vacancies and the regularisation of such employees amounts to a nullity and de hors the budgetery sanction. As already noticed, the petitioners have prayed for a blanket relief/prayer without giving any particulars regarding the employees who have completed 480 days of service and without filing the appointment order with regard to the above post. Now that the service of the seasonal employees had been terminated on 7.5.87 itself, it is for the employees to work out their remedies in a manner known to law.
16. It was argued on behalf of the appellants/petitioners that Section 25-F of the Industrial Disputes Act has to be complied with and non-compliance thereof would render the termination illegal.
17. In answer to the above submission, Mr. A.L. Somayaji learned counsel invited our attention to the decision in Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd., and Anr., 1997 (5) SCC 646 where the employee was engaged in the seasonal work in the Chemistry Section of the sugar factory. Since the work was over, the services of the appellant and others were terminated. The employees sought a reference under the Industrial Disputes Act, 1947 contending that the termination being in the nature of retrenchment is in violation of Section 25-F of the above mentioned Act. The Industrial Tribunal and the High Court negatived the contention. It was argued before the Supreme Court that since the employee has worked for more than 180 days, he should be treated as retrenched employee and if the procedure contemplated under Section 25-F of the I.D. Act is applied to, his retrenchment is illegal. The Supreme Court rejected the said contention and observed as follows:
"We find no force in this contention in Morinda Co-op. Sugar Mills Ltd., v. Ram Kishan and Ors. in paragraph 3, this Court has dealt with engagement of the seasonal workman in sugarcane crushing; in paragraph 4, it is stated that it was not a case of retrenchment of the workman, but of closure of the factory after crushing season was over. Accordingly, in paragraph 5, it was held that it is not 'retrenchment' within the meaning of Section 2(00) of the Act. As a consequence the appellant is not entitled to retrenchment as per clause (bb) of Section 2(00) of the Act. Since the present work is seasonal business, the principles of the Act have no application. However, this Court has directed that the respondent-Management should maintain a register and engage the workmen when the season starts in the succeeding years in the order of seniority. Until all the employees whose names appear in the list are engaged in addition to the employees who are already working, the management should not go in for fresh engagement of new workmen. It would be incumbent upon the respondent management to adopt such procedure as is enumerated above.
4. The appeal is accordingly dismissed. No costs."
18. The Industrial Disputes Act in our view has no application for seasonal appointments. Likewise, the Confermant of Permanent Status Act also would not apply in which event the employees do not have a legal right.
19. This apart, the order of the State Government dated 2.4.91 is very clear that the Corporation is not a seasonal industry and the Government of Tamil Nadu has not declared the Corporation as an Industry by any notification in order to attract the provisions of the Act.
20. Mr. A.L. Somayaji learned counsel for the respondents placed before the court the Memorandum of Settlement reached under Section 12(3) of the Industrial Disputes Act, 1947 before the Joint Commissioner of Labour (Conciliation), Madras -6. The parties to the disputes are the workmen and loadmen of Direct Purchase Centres. The management of Tamil Nadu Civil Supplies Corporation was represented by its Chairman-cum-Managing Director, Joint Director and Senior Manager and the workmen were represented by their State Presidents, State General Secretaries, State Treasurers and others. The settlement was reached on 19.9.91. Clause 3 of the agreement reads as follows:
"As regards the demand of the workmen for giving preference to the qualified seasonal employees in the D.P.C. while filing the regular vacancies, it is agreed that whenever the T.N.C.S.C. has to go to the employment exchange for direct recruitment of any class III or class IV services after exhausting the eligible candidates among the existing regular employees in the feeder categories, the qualified seasonal employees who were initially recruited through employment exchange will be given preference relaxing only the age qualification but not relaxing any other qualification, subject to the policy or reservation. In the event of absorbing the seasonal employees in the vacancies that arise in any region throughout the state of Tamil Nadu, the qualified hands will be selected by drawing the centralised seniority list in the Head Office level according to total of broken periods of service and they might be allotted to the needy regions wherever vacancies arise, on their requisitatiton. Where age relaxation becomes necessary the Management will get appropriate concurrence of Government."
20. We are of the opinion that the qualified seasonal employees can always invoke Clause 3 to their advantage. As and when vacancy arises, the Corporation is obliged to consider the claim of the qualified seasonal employees pursuant to the settlement reached between them and the workmen under Section 12(3) of the Act. We also make it clear that if there are no vacancies, the employees claim need not be considered.
21. We shall now advert to the judgment cited by Mr. A.L. Somayaji in support of his contentions. A decision reported in Director, Institute of Management Development, V.P. v. Pushpa Srivatsava, 1993 (1) LLJ 190, 193 & 194) wherein it was held that the appointment was purely on ad hoc basis and is terminable without any notice. The following are clear from the appointment order:
"11. (i) The respondent was appointed on a contractual basis.
(ii) The post was to carry a consolidated pay of Rs. 2,400 p.m.
(iii) The duration of appointment was six months from the date of the respondent joining charge.
(iv) It is purely on ad hoc basis.
(v) It is terminable without any notice.
Because the six months' period was coming to an end on February 28, 1991 she preferred the writ petition a few days before and prayed for mandamus which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continues from time to time on ad hoc basis for more than a year, whether she is entitled to regularisation? The answer should be in the negative. However, reliance is placed by learned counsel on behalf of the respondent on the case in Jacob v. Kerala Water Authority,. and "13. In the instant case, thee is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end. If the matter is viewed from this angle, that being the only view, we find no difficulty whatever in setting aside the impugned Judgment which is accordingly set aside."
Then Mr. A.L. Somayaji learned counsel cited a decision reported in Union of India v. Motilal, wherein it was held as follows:-
"11. Thus it is apparent that a daily-wage or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the rules and, therefore, so far as. the post of mate under Railways is concerned, the same has to be filed up by a promotion from the post of gangman and keyman in Class IV subject to employees passing the trade test."
Next the learned counsel cited the decision reported in Ram Sakhi Devi v. State of U.P. and Ors., . In this case, it was an ad hoc appointment and the court held that it is impermissible to invoke power of regularisation as routine. The Supreme Court held as follows:
"6. The learned counsel for the appellant has sought to place reliance on Section 33-A of the Regulation made under Section 16-E of the U.P. Intermediate Act to regularise such ad hoc appointments. Undoubtedly, every teacher directly appointed before the commencement of the Act, in other words, on ad hoc basis, against the substantive vacancy may be regularised under Section 33-A; but it cannot be used as a routine. It is mandatory for the management to notify to the Commission and in case the Commission is unable to recommend the selected candidates within a reasonable time, any candidate appointed on ad hoc basis will be deemed to have been appointed in substantive capacity. The recourse to Section 33-A should be made sparingly and not as a routine. If the Section 33-A route is adopted as a routine, the entire process of selection contemplated under the Act would be given a decent burial and illegal appointments would gain legitimacy. Under these circumstances, we do not think that the counsel is right in contending that the appellant could be regularised under Section 33-A of the Regulation."
Then, the learned counsel also relied on the decision reported in Committee of Management v. Sree Kulmar Tiwary, . This is also a case of an ad hoc appointee. He continued in service on the basis of interim stay. The Supreme Court held that such a continuation did not entitle him for regularisation. It was held by the Supreme Court as follows:
"7. In fact, the regularisation order passed by the District Inspector of Schools also says that it was subject to the result in the writ petition. The appeal being the continuation of the writ petition, the question arises whether the respondent is entitled to claim the benefit of Section 33-B(1) (a) (1) of the U.P. Secondary Education Services Commission Act, 1982. We have seen that his services came to be terminated on 30.05.1988 and the Amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularisation will be subject to the further orders since the regularisation order itself means that it was subject to the result of the writ petition." Next the learned counsel cited the decision reported in Union of India v. Bishmber Dutt, 1996 (2) SCC 341. In the above case the Supreme Court held that persons appointed as part-time employees de hors the rules, even though regularly working for a long time are not entitled to regularisation. The above judgment is observed as follows:
"The question, therefore, is whether they are entitled to the temporary status or regularisation as directed by the Tribunal? It is seen that pursuant to the enquiry whether temporary status should be granted to the part-time employees, directions were issued by the Ministry of Personnel, Public Grievances and Pension dated 12.7.1994 in the Memorandum, Clause 3, that they are not entitled to such status. Since they are not appointed on regular basis in accordance with rules the direction issued by the Tribunal to regularise the service is obviously illegal. It is then contended by the learned counsel for the respondents that in view of the fact that they were regularly working for a long time they are entitled to regularisation. We do not appreciate the stand taken on behalf of the respondents. Unless they are appointed on regular basis according to rules after consideration of the claims on merits, there is no question of regularisation of the services."
The learned counsel also relied on the Judgment cited in State of U.P. and Ors. v. Ajay Kumar, . It is a case of a daily wager. The Supreme Court held that he is not entitled to regularisation. The court held thus:
"3. The admitted position is that the respondent came to be appointed on daily-wage basis on 14.2.1985 as Class IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned Single Judge pointed out that the respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be regularised, on the basis of the service rendered by him as a daily-wage earner. Even the method of recruitment adopted by the Superintendent was not proper in as much as he did not call for applications. The Division Bench reversed the decision of the learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal."
Next, the learaed counsel cited the decision reported in Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and Ors., . Above is a case of persons working under Education Board on ad hoc appointment. Post were not sanctioned. The court held that the persons working have no right to regularisation. The court also held that, duration of work for 240 days does not create any right to regularisation. The Supreme Court set aside the actions of the High Court for regularisation of service of all such employees. The court held thus:
"4. We are unable to uphold the order of the High Court. There were no sanctioned posts inexistence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged from here."
Then, the learned counsel cited the decision reported in Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Balakishan Soni and Ors., . This is also a case of a staff employed in a sponsored project sponsored by Indian Council of Agricultural Research. The court held that the post could continue only till the scheme existed and regularisation could not be claimed. The court held thus:
"It is not in dispute that the Scheme is sponsored by the Indian Council of Agricultural Research and, therefore, permanent posts cannot be created. The posts are coterminous with the Scheme. On abolition of the Scheme, the posts also necessarily stand abolished. We are informed that the Scheme may continue to be in force; but it depends upon the Scheme being sponsored and the posts made available by the Indian Council of Agricultural Research. Therefore, the direction to regularise the services is violative of their right to posts. The order of the High Court to that extent is modified. On whatever posts the respondents are working and discharging their duty, the scale of pay of the said post is directed to be paid."
The learned counsel also cited the decision cited in Morinda Co-op. Sugar Mills Ltd., v. Ram Kishan and Ors., . In this case the workmen of Sugar Mills were working during crushing seasons only, consequent to the closure of the season, there was cessation of work. The Court held that the cessation did not amount to retrenchment. The Supreme Court set aside the order of the High Court and also issued a direction that such persons, if reporting for duty, they be engaged in accordance with seniority and exigency of work.
Next, the learned counsel relied on the decision reported in C.R. Mugundan and Ors. v. Director General (Member Secretary), Indian Council of Medical Research, New Delhi and Ors., 1996 (I) LLJ 849 (AR. Lakshmanan, J). In the above case, the persons engaged for scheme introduced by Central Jalma Institute for Leprosy Vaccine Trial claim for regularisation. The contract of employment does not give any vested right to the employment. The court held that such employees cannot claim permanency in view of specific terms and conditions of appointment. The court further hold as follows:
"Held: The employees were engaged on contract basis on various dates from May 31, 1991 to June 15, 1992. The order of appointment clearly states that the petitioners are engaged only for a specific period. The said contract was renewed at the end of the earlier contract period if there was any necessity for renewing the same. The contract between employees and Indian Council of Medical Research is only a private contract of employment and same stipulates various terms and conditions. The order of appointment clearly shows that the posts are temporary. The appointment was made under the scheme and the employees will not have any benefits like contributory provident fund, general provident fund, medical benefits, bonus, leave travel concession, etc. The staff employed in the Research Scheme are not employees of Central Jalma Institute for Leprosy which is a field unit of Indian Council of Medical Research."
Then, the learned counsel relied on the decision reported in Director, Institute of Management Development v. Pushpa Srivatsava, In the above case an adhoc appointment was made on contractual basis for six months which was continued for more than a year. The Supreme Court held that there is no ground for claiming that appointee is entitled to regularisation service. The Supreme Court further held as follows:
"Where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on "ad hoc" basis for more than a year. He cannot claim regularisation in service on basis that he was appointed on ad hoc basis for more than a year. (The management was directed to consider sympathetically if regularisation in service is possible.)"
The learned counsel also cited the decision reported in Maharashtra State Co-operative Cotton Growers" Marketing Federation Ltd., v. Co-operative Cotton Growers" Marketing Federation Employees" Union and Ors., A.I.R. 1994 S.C. 1046. In this case the employees were recruited by the Federation including temporary perennial employees and seasonal employees. Disputes were raised relating to permanency. The Tribunal directed to treat the employees putting 240 days of service as permanent employees. The Supreme Court held that on facts, not applicable to seasonal employees. The Supreme Court set aside the direction of the High Court to make permanent even seasonal employees who had put in more than 240 days of service as per award. Then the learned counsel cited the decision reported in Ashwini Kumar v. State of Bihar, wherein the Supreme Court held as follows:
"13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity."
"14. In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one pre condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases."
Then, the learned counsel also relied on the Judgment reported in Union of India v. Dinesh Kumar Saxena, . In this case, certain employees were appointed in short-term posts for a fixed period on a fixed pay for work of periodic nature which is available only at the time of each decennial census. They were retrenched on completion of work and ending of the budgetary sanction. The retrenched employees claim for regularisation and absorption. Notwithstanding the length of their service (six years in this case) such retrenches, held, could not be directed by the court to be regularised in the Census Department or absorbed in any other Department. The Supreme Court further held as follows:
"Ends of justice will be met if the Directorate of Census Operations, U.P. is directed to consider those respondents who had worked temporarily in connection with the 1981 and/or 1991 census operations and were subsequently retrenched, for appointment in any regular vacancies which may arise in the Directorate of Census Operations and which can be filed by direct recruitment, if such employees are otherwise qualified and eligible for these posts. For this purpose the length of temporary service of such employees in the Directorate of census Operations should be taken into consideration for relaxing the age bar, if any, for such appointment. Suitable rules may be made and conditions laid down in this connection by the department. The department and/or the Staff Selection Commission may also consider giving weightage to the previous service rendered by such employees in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts."
The learned counsel also cited the decision reported in State of H.P. v. Ashwani Kumar, . In this case the daily-wagers engaged by the State Government on muster-roll basis in Central Scheme and paid out of funds provided by the Central Government. Their services were terminated on closure of the Scheme. In such circumstances, the Supreme Court held that the High Court was not right in giving direction to regularise them or to continue them in other places.
22. We shall now analyse the judgments cited by Mr. R. Ganesan learned counsel for the appellants/petitioners. The learned counsel relied on the decision cited in Supreme Court Employees Welfare Association v. Union of India, A.I.R. 1990 S.C. 344 to emphasise that the decision rendered by Kanakaraj. J, affirmed in writ appeal and also by the Supreme Court is binding on parties and therefore reopening of it is not permissible in law. There is no quarrel or dispute over the proposition put forward by the learned counsel. In this case, the Supreme Court while dismissing the S.L.P. has not given any reasons. It cannot therefore be said that there has been a declaration of law by the Supreme Court in Article 141 of the Constitution of India. This apart, the point now urged by the counsel for the Corporation that the Civil Supplies Corporation's procurement centre is an establishment of a seasonal character and therefore the provisions of the Tamil Nadu Industrial Employment (Confermant of Permanent Status of Workman) Act do not apply to the respondent Corporation since the respondent Corporation is not an Industrial Establishment as defined in Sub-section 3 of the Section 2 of the Act, was not put forward before Kanakaraj. J. The court was not called upon to decide the said question. For the first time, this question was raised before us for our determination.
The learned counsel next cited the decision reported in A.R. Antulay v. R.S. Nayak, This decision was sought for the proposition that the judgment of the High Court is binding on all subsequent proceedings in the same case, more so a judgment which was unsuccessfully challenged before the Supreme Court.
Next, the learned counsel Mr. R. Ganesan cited the decision reported in Sangappa Gurulingappa Sajjan v. State of Karnataka, 1994 (4) SCC 147. It was cited by the learned counsel for the appellant that even though the new plea now raised by Mr. A.L. Somayaji learned counsel in regard to the applicability of the Tamil Nadu Industrial Establishment for Confermant of Permanent Status of Workman, such plea having been not raised cannot now be allowed to be raised in this writ petition. We are unable to agree with the said contention. In the above case, the review petitioner contended that the declaration under Section 6 was not published within three years from the date of the notification dated May 17, 1984 and therefore, the notification under Section 4(1) shall stand lapsed. The Supreme Court rejected the said plea on a short ground that though this plea was available to the petitioner, he did not raise the same in the first instance and that therefore, by operation of Section 11, CPC, it operates as constructive resjudicata. Thus the Supreme Court has rejected the said plea since the same was raised for the first time before the Supreme Court nd not before the court of first instance. In this case, the new plea was raised in the counter filed by the Corporation in Writ Petition No. 4728 of 1997. Therefore, we are of the view that the Corporation is entitled to raise the plea before us in the first instance and that it will not operate as constructive read judicature against the respondents.
Next the learned counsel also cited the Judgment reported in Gone Goun Naidu v. Thandrothu Bodemma, . This was cited by the learned counsel for the proposition that the inter parties judgment rendered by the court of competent jurisdiction, even if it is erroneous, would bind the parties. As already noticed, this Judgment is also distinguishable on the facts and circumstances of the case on hand and for the reasons stated in paragraphs (supra).
Next, the learned counsel for the appellants/petitioners Mr. Perumbulavil Radhakrishnan cited in Ram Kumar Rai v. State of U.P. and Ors., 1993 (II) LLJ 1064. This Judgment was rendered by a learned single Judge of the Allahabad High Court. In this case a Class IV employee was appointed on a daily wages basis and he worked for 13 years. His services were terminated and after one day break he was appointed as Daily Wages Work Supervisor. He made representation for regularisation which was rejected. His writ petition was allowed. Citing the above decision, Mr. Perumbulavil Radhakrishnan submitted that under the impugned order in these writ petitions, it is not stated that there is no work left.
23. In reply to the above argument, Mr. A.L. Somayaji learned counsel submitted that the order of termination in that case did not say want of vacancy, whereas in the present case, the order of termination was made for want of work and that thee is also no sanctioned post.
24. Mr. Perumbulavil Radhakrishnan also cited a decision reported in P. Shanmuganahan v. The Registrar Tamil University Thanjavur and 2 others, 1997 WLR 180 (K.A. Swami, CJ. and AR. Lakshmanan, J.) He cited the above decision that the amended requirement of Section 25-F was not complied with and hence the impugned order was set aside as bad in law and that the action of the management constituted illegal retrenchment without following the prescribed procedure and not closure as contended. The above judgment has no application to the case on hand. In that case the appellant before the Division Bench was temporarily engaged as a Watchman under MMR to watch the godown where the materials for the construction of the building Tribal Research Centre of the Tamil University, Udhagamandalam were stored. He was first engaged for 80 days and subsequently on different dates with different intervals in between. His services were terminated and the same was challenged by the workman by raising a dispute before the Labour Court. The Labour Court rejected his request by accepting the statement of the Director of the Tribal Research Centre, Udhagamandalam. The workmen filed the writ petition which was dismissed by the learned single Judge and aggrieved by the same the workmen preferred the writ appeal. The workmen contended that the order of termination from the services on the ground that the appellant's services were no longer required for the Tamil University after his continuous service for a period of 3 years 3 months and 4 days and he contended that the order of termination was illegal and contrary to the provisions of the I.D. Act. Per contra, it was contended that the order of termination is unassailable since it does not confer any service right in this type of temporary engagement and the appellant was engaged and re-engaged only for temporary periods after break as and when required on the recommendations of the Divisional Engineer of the Tamil University. On facts it was found that the workmen was appointed as a watchman not only for the godown in which the building materials were stored for the Tribal Research Centre at Udhagamandalam, but also to look after the materials and properties connected with the other departments of the Tamil University on a daily wages of Rs. 15. The Division Bench rejected the contention of the counsel for the respondents. On the ground that the appellant was appointed for a specified purpose and that when the need i.e., completion of the construction activity had ceased, his services are liable to be terminated cannot be accepted. The above judgment will not advance the case of the petitioners herein. As already noticed, the appellant was appointed though on a daily wages basis, not for a specified purpose, but for other purposes as could be seen from the order of appointment, therefore the Division Bench held that there is no closure of the Tribal Centre and that the Research Centre still continues to exist at Udhagamandalam which requires all types of staff members including a watchman. Therefore, the contention of the University that the services of the appellant are not required was not accepted. As such the Bench concluded that it is not a closure, but it is a retrenchment under Section 2(00) of the Act on the alleged ground that the construction work of the Tribal Research Centre has been completed and had come to an end. The Bench also held that the Mandatory requirement of Section 25-F of the Act has not been complied with by the University by paying the retrenchment compensation to the workmen and hence set aside the impugned order as bad in law.
25. A reading of the judgment cited by Mr. A.L. Somayaji and of the arguments advanced by him and adopted by Mr. R. Balasubramanian, would clearly shows that in order to claim regularisation, the post should be a regular appointment in accordance with the rules. The claim for regularisation should also be based on some specific rules. In the present case, the Establishment namely the "Direct Purchase Centres "/Procurement Centres itself is a seasonal establishment and that the post for which seasonal recruitment were made were not sanctioned post. It is also stated in the counter-affidavit filed on behalf of the respondents in 4243, 4244, etc., batch of 1997 by Mr. S. Natarajan, General Manager (Administration) of the respondent Corporation that a Seniority list of all the staff of the "Direct Purchase Centres" are maintained by the Corporation and they are given opportunities of employment, based on the seniority list during the harvest season and no other person is employed for the operational purposes. It is also stated that in case of any permanent vacancy arising in the Corporation, the temporarily appointed/ousted staff of the "Direct Purchase Centres" are given top priority in filling up the permanent vacancies as per Section 12(3) settlement dated 19.9.91. In fact, several temporarily appointed/ousted staff of the "Direct Purchases Centres" like that of the petitioners were appointed as Assistant Quality Inspector, Typist, etc., on the basis of their seniority. It is also stated that similar agreement has also been reached to that effect on 30.12,96 with the unions and that therefore the temporarily appointed/ousted employees would be absorbed in the regular basis in accordance with their seniority list as and when regular vacancy arises in the respondent Corporation.
26. That being so, the present writ petition seeking for permanent status beyond the scope of Section 12(3) settlement which binds all the temporary appointed/ousted employees of the "Direct Purchase Centres" is liable to be dismissed. It is also mentioned in the affidavit that the Government have now revoked their monopoly procurement policy and consequently the Corporation has ordered for the closure of Direct Purchase Centres and pursuant to such directions, the Direct Purchase Centres are being closed. As a result the staff of the Revenue Department have been reverted back to their parent department and the Corporation staff have been sent back to their respective post and the temporary seasonal employees like the petitioners have been ousted from the service. The termination of the services of the seasonal employees are therefore bona fide, legal and in order and therefore do not call for any interference by this Court. For all the reasons aforesaid, the writ appeals and the writ petitions are dismissed, however there will be no order as to costs. The W.M.Ps. are also dismissed.