Tamil Nadu Civil Supplies Corporation Workers' Union vs Tamil Nadu Civil Supplies Corporation Ltd. and others

A.R. Lakshmanan, J.—The writ appeal No. 512/1997 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

(hereinafter 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. Jayasimha Babu, J.) dismissed the writ petition in limine on April 10, 1997 by passing the following order :

Petitioner-union wants a blanket injunction 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.

The appellant workers union filed writ petition No. 4798/1997 claiming that, pursuant to the Judgment of this Court in Writ Petition No.

5459/1983, Writ Appeal No. 423/1992 and SLP No. 16474/1992, they are entitled for grant of permanent status with effect from the date of

completion of 480 days, that the Inspector of Labour, Tanjavur in his proceedings in R.C. No. A-19146/1992 dated May 31, 1995 have granted

permanent status to 151 employees and that the Inspector of Labour, Nagapattinam in his proceedings dated March 25, 1995 held that out of 129

employees, 128 were eligible for grant of permanent status and that the Corporation have filed W.Ps. 14889 and 14640/1996 against the above

orders and the writ petitions are pending on the file of this Court for final adjudication.

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 so working in Direct

Purchase Centres"" who have rendered 480 days of service in two calender 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 calender 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. 4798/1997. The writ appeal was admitted on June 13, 1997 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 May 25, 1995 and that against the order of the

Inspector of Labour, Nagapattinam who has granted permanent status to the employees by his order dated March 25, 1995, the Corporation

have preferred Writ Petitions Nos. 14639 and 14640/1996 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. 4728/1997 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 in their proceedings dated May 31, 1995 and March 25, 1995. The prayer as far as the writ petition is concerned, cannot be

granted since on May 7, 1997 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 Powder Co. Ltd., Tirumangalam and Another Vs. The State of Tamil Nadu and Another,

(2) Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another,

(3)

(4) A.R. Antulay Vs. R.S. Nayak and Another,

(5) P.K. Vijayan Vs. Kamalakshi Amma and Others,

(6) Sangappa Gurulingappa Sajjan Vs. State of Karnataka and Others,

(7) Gorie Gouri Naidu (Minor) and another Vs. Thandrothu Bodemma and others,

(8) 1997 (I) MLJ 105

(9) 1990 LIC 249

Writ Appeal Nos. 563 to 565/1997 : 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 May 3, 1986 with

all consequential, monetary, service and other attendant benefits. All the three writ appeals were dismissed by Kanakaraj, J. on April 22, 1997 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 straightaway 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.

Writ Petitions Nos. : 5836 to 5838/97, 5070/97, 4971 to 4973/97, 4243 to 4245/97, 6520 & 6521/197 : 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.

Writ Petitions No. 5120/97, 5827/97, 7161 to 7164/97 : (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.

Writ Petitions 7161 to 7164/97 : The writ petition No. 7161/97 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. 10088/97/A4 dated May 7, 1995 and

quash the same.

Writ petition No. 7162 has been tried by Mr. P. Manimaran to quash the very same proceedings dated May 7, 1997.

Writ petitions No, 7163 and 7164 have been filed by Mr. A. Karunanidhi and Mr. N. Thiruvarasan to quash the very same proceedings dated

May 7, 1997. By the impugned order May 7, 1997, the temporary Bill Clerks who were working in the ""Direct Purchase Centres"" and other filed

points, etc., were ousted from service on the afternoon of May 7, 1997 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 within 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 inspite 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. 5549/1995

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.

Writ petitions No. : 6440 and 6441/1997 : (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 December 14, 1987 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 u/s 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.

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 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 continued appointment in the Corporation.

The petitioners were appointed as seasonal Bill Clerks 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 workmen were clearly informed that the

appointment is of seasonal 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 he ousted

from the service at any time without prior notice or assigning any reasons.

Our attention was drawn to the prayer in writ petition No. 4728/1997 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

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.

5459/1983 which was allowed on October 10, 1991 with the direction to the workmen to approach the Labour Court for determination of the

question of permanent status. The writ appeal filed by the Corporation and the further SLP were dismissed. Afterwards, the workmen have

approached the Labour Court for getting appropriate relief according to the direction in W.P. No. 5459/1983 and on May 31, 1995 and March

25, 1995, 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. 1460/1993 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. 4728/1997 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 May 7, 1997 itself and therefore the writ petitions are liable to be 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 by the Inspector of Labour, Thanjavur and Nagapattinam, we are not expressing any opinion on the prayer

asked for in Writ Petition No. 4728/1997 which was dismissed at the admission stage itself and against which Writ Appeal No. 512/1997 has

been preferred. In our opinion, the writ appellant union has to await the final outcome to the Writ Petition Nos. 14639 and 14640/1996.

Mr. R. Ganesan, learned counsel for the appellant invited our attention to the decision of Kanakaraj, J. in writ petition No. 5459/1983. The

learned Judge held that on a plain reading of Section 2(6) of the Shops 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 Shops Act,

that once the Establishment comes within Section 2(6) of the Shops Act, it automatically follows that it is an Establishments 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. 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 2 (sic.) 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.

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 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.

A reading of the order of Kanakaraj, J., in Writ Petition No. 5459/1983 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 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 Bill Clerks.

(c) The posts were to carry a consolidated salary of Rs. 750/- p.m. which are terminable without any notice and without assigning any reason.

As the appointment is purely on adhoc 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 a 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 does not ipso facto entitle them 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.

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 completion of 480 days of

service on the basis of the interim stay granted by this Court are not eligible for regularisation on the ground that the seasonal employees cannot

continue in service on their 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 dehors the budgetary 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 services of the seasonal employees had been terminated on

May 7, 1987 itself, it is for the employees to work out their remedies in a manner Known to law.

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.

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., & Anr. 1997 (5) SC 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

the employees has worked for more than 180 days, he should be treated as retrenched employee and if the procedure contemplated u/s 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. Vs. Ram Krishan and others etc., in paragraph 3, this Court has dealt with

engagement of the seasonal workman in sugar cane 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(oo) of the Act. As a consequence the appellant is not entitled to retrenchment as per Clause (bb) of Section 2(oo) 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.

The appeal is accordingly dismissed. No costs.

The Industrial Disputes Act in our view has no application for seasonal appointments. Likewise, the Conferment of Permanent Status Act also

would not apply in which event the employees do not have a legal right.

This apart, the order of the State Government dated April 2, 1991 is very clear that is 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.

Mr. A. L. Somayaji, learned counsel for the respondents placed before the Court the Memorandum of Settlement reached u/s 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

load men 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 September 19, 1991. 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 filling 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 of 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 requisition. Where age relaxation becomes

necessary the Management will get appropriate concurrence of Government.

20 A. 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 u/s 12(3) of the Act. We also make it clear that if there are no vacancies, the employees claim need not be considered.

We shall not advert to the Judgments cited by Mr. A. L. Somayaji, in support of his contentions. A decision reported in Director, Institute of

Management Development, U.P. Vs. Smt. Pushpa Srivastava, wherein it was held that the appointment was purely on adhoc basis and is

terminable without any notice. The following are clear from the appointment order :

(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 adhoc basis.

(v) It is terminable without any notice.

Because the Six months'' period was coming to an end on February 8, 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

continued from time to time on adhoc 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 (supra).

and

In the instant case, there is no such rule. The appointment was purely adhoc 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 and another Vs. Moti Lal and others, wherein it was held as

follows :

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 filled 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 (Smt) Vs. State of U.P. and Others, . In this case, it was an adhoc

appointment and the Court held that it is impermissible to invoke power of regularisation as routine. The Supreme Court held as follows :

The learned counsel for the appellant has sought to place reliance on Section 33-A of the Regulation made u/s 16-E of the U.P. Intermediate

Act to regularise such adhoc appointments. Undoubtedly, every teacher directly appointed before the commencement of the Act, in other words,

on adhoc basis, against the substantive vacancy may be regularised u/s 33-A, out 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 adhoc 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 u/s 33-A of the Regulation.

Then, the learned counsel also relied on the decision reported in Committee of Management v. Sree Kumar Tiwary 1994 (4) SCC .388. This is

also a case of an adhoc 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 :

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)(i)

of the U.P. Secondary Education Services Commission Act, 1982. We have seen that his services came to be terminated on May 30, 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 1996 VIII AD 680 (SC) In the above case the Supreme Court held that persons appointed

as part-time employees dehors the rules, even though regularly working for a long time are not entitled to regularisation. The above Judgment is

observed as follows at p. 382 :

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 July 12, 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 Others Vs. Ajay Kumar, . It is a case of daily wager. The Supreme

Court held that he is not entitled to regularisation. The Court held thus :

The admitted position is that the respondent came to be appointed on daily-wage basis on February 14, 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 learned counsel cited the decision reported in Madhyamik Siksha Parishad, U. P. v. Anil Kumar Mishra and Others 1994 II LLJ 1977.

Above is a case of persons working under Education Board on adhoc appointment. Posts 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 :

We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been

appointed. The assignment was an adhoc 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 form here.

Then, the learned counsel cited the decision reported in Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P. Vs. Bal Kishan Soni and

Others, . 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 council also cited the decision expected in Morinda Co-op. Sugar Mills Ltd. Vs. Ram Krishan and others etc., . 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 Other v. Director General (Member Secretary), Indian Council

of Medical Research, New Delhi and Others 1996 I LL 849 (A. R. 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 held 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 Srivastava (supra). 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 of service. The Supreme Court further held as follows :

Where the appointment is purely on adhoc 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 ''adhoc'' basis for more than a

year. He cannot claim regularisation in service on basis that he was appointed on adhoc 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 Cooperative Cotton Growers'' Marketing Federation Ltd. and Another

Vs. Employees'' Union and Another, . 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 these 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.

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 adhoc 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 adhoc 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 so 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 council also relied on the Judgment reported in Union of India and others Vs. Dinesh Kumar Saxena and others, . 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

at p. 19 :

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 filled by direct recruitment, if such employees are otherwise qualified and

eligible for those 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., through The Secretary (Rural Development) to the Govt. of Himanchal

Pradesh, Shimla Vs. Ashwani Kumar and Others, . In this case the daily-wagers were 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.

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 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

council. In this case, the Supreme Court while dismissing the SLP 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 (Conferment of Permanent Status of Workmen) Act do not apply to the respondent Corporation since the

respondent Corporation is not an Industrial Establishment as defined in sub-section 3 of 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 1988 SC. 1531. 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 Gurulingppa 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 Employment (Conferment of Permanent Status of Workmen) Act 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 u/s 6 was not published within three years from the date of the notification dated May 17, 1984 and therefore, the is

notification u/s 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 res

judicata. Thus the Supreme Court has rejected the said plea since the same was raised for the first time before the Supreme Court and 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. 4728/1997. 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 res

judicata against the respondents.

Next the learned counsel also cited the Judgment reported in Gorie Gouri Naidu (Minor) and another Vs. Thandrothu Bodemma and others, . 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 Ram Kumar Rai Vs. State of U.P. and Others, .

This Judgment was rendered by the learned Single Judge of the Allahabad High Court. In this case a Class IV employee was appointed on a daily

wage 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.

In reply to the above argument, Mr. A. L. Somayaji, learned council 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 there is also no sanctioned post.

Mr. Perumnbulavil Radhakrishnan also cited a decision reported in P. Shanmuganathan v. The Registrar Tamil University, Thanjavur and 2

Others (K. A. Swami and AR. Lakshmanan, C.J.J) 1997 WLR 180. 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 managements 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 NMR to watch the godown where the

materials for the construction of the building at Tribal Research Centre of the Tamil University, Udagamandalam 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 workman 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 workman was appointed as a watchman not only for the godown in which the building materials

were stored for the Trial 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 wage 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 wage 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 u/s 2(oo) 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 as the Mandatory

requirement of Sec. 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.

A reading of the Judgment cited by Mr. A. L. Somayaji, and of the argument advanced by him and adopted by Mr. R. Balasubramanian,

would clearly show that in order to claim regularisation, the post should be a substantive post and that the appointment 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 Centre""/Procurement Centre itself is a seasonal establishment and that the post for which seasonal

recruitment was made was 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 September 19, 1991. In fact, several temporarily appointed ousted staff of the ""Direct Purchase 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 December 30, 1996 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.

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 does 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.