Monthly Archives: September 2013

Interpretation of rules under MP Service Laws for university and college daily wagers

Under Service Jurisprudence, the appointment, regularization and fixation of the pay of daily wager employees have been blazing issues. In the context of daily wager employees of universities or colleges in  Madhya Pradesh, the following questions under service laws are analysed and answered herein: –

  1. Whether the Madhya Pradesh Daily Wages Employees (Conditions of Service) Rules, 2013 / Madhya Pradesh Dainik Vetanbhogee Karmacharee (Seva kee Sharten) Niyam, 2013, (herein after called “the Rules”) are also applicable to the daily wages employees of the university and colleges in Madhya Pradesh;
  2. Whether daily wagers of the said universities and colleges, who are recruited without following legal procedure and appointed against no-post, are entitled for benefits under the Rules; and
  3. Whether daily wages of the said universities and colleges, who are recruited without following legal procedure and appointed against no-post, are entitled for regularization under any service rules.

With reference to question no. 1 above, the legal preposition along with reasoning is as follows:

  • The Governor of Madhya Pradesh invoking the powers conferred under Article 309 of the Constitution of India formulated the Rules. Rule 2(b) defines “Employees” the daily wages employees working in the different departments of State Government of Madhya Pradesh.
  • The daily wagers of universities and colleges are not the employees of the departments of MP State Government. Unless the Rules are adopted by a particular university or college by an official notification, such Rules will not be applicable to the daily wagers of that university or college.

With reference to question no. 2, the legal preposition along with reasoning is as follows:

  • Even if the Rules are adopted by a college or university, the daily wagers of that college or university, who are recruited without following legal procedure and appointed against no sanctioned posts, shall not be entitled for any benefit under Rules 7, 8 and 9, as such benefits are made available only to regular daily wagers. The employees whose services are totally illegal in law cannot be equated with the employees who are recruited as par standard norms and procedure of law. The Rules are promulgated to waive the legal requirements of law, and are not created to legalize the services of illegally appointed persons.
  • In the case of State of Himachal Pradesh v. Suresh Kumar, the Hon’ble Supreme Court of India observed that the daily wager employees, whose appointments are illegal, are not to be entitled for regularization. Relying on the same, the General Administration Department of M.P., vide its Circular No. F.5-3/2006/1/3 dated 16.5.2007, issued directions that illegal appointments means the appointment made without any sanctioned post. The employees of the colleges, who are recruited against no posts, cannot claim for all benefits under the Rules.
  • In this context, the judgment delivered by Hon’ble Supreme Court in the case of State of Rajasthan v. Daya Lal & Ors. (AIR 2011 SC 1193) (Para 8) is also relevant, which laid down:

Mere continuation of service by any temporary or ad hoc or daily wage employee, under the cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post.

With reference to question no. 3, the legal preposition along with reasoning is as follows:

  • The Government of M.P., vide its Circular No. F.5-3/2006/1/3 dated 08.02.2008, also clarified that employees, who are recruited against no post, cannot claim regularization. Therefore, the employees of a college or university, who are recruited against no post, cannot claim regularization.
  • In the case of State of Karnataka v. Uma Devi (2006(4) SCC 1; AIR 2006 SC 806; 2006 AIR SCW 1991), the Hon’ble Supreme Court held that the  temporary or casual labourers cannot claim a regularization as illegal appointees. It is also pertinent to note that in the case of Gaziabad Development Authority & Anr. v. Ashok Kumar & Anr. [(2008) 4 SCC 261; AIR 2008 SC (Supp) 1334] and Management, the Assistant Salt Commissioner v. Secretary, Central Salt Mazdoor Union [JT 2008(2) SC 469; 2008 AIR SCW 1443], it was founded that any recruitment that dehors the recruitment rules as well as constitutional scheme is void.

In the light of the discussions above, the daily wagers of any college or university, who are recruited without following legal procedure and appointed against no-post, are not entitled for regularization under any service rules.

Denial of access to a service record of an employee under the Right to Information Act, 2005, justified in certain conditions

While providing a formal legal opinion to Indore-based Agriculture College, represented by its Dean, it was analyzed by Advocate Mr. A.K. Verma whether it is possible to deny access to the service record of employees (in the nature of personal information) to an applicant under the Right to Information Act, 2005 (herein after the “Act”), and if yes, in what circumstances.

Applications dated 23.07.2013 were filed by Indore-based Mr. Vallabh Chauhan, (herein after called “Applicant”) before the Agricultural College of Indore, under section 6 of the ‘Act’, whereby the Applicant sought certain information in the matters, which are briefly listed as follows:

  1. The certified copies of the service records of Mr. Anil Vijayvargeeya and Mr. Avinash Poddar, employees of the Agricultural College.
  2. The certified copies of the leave accounts of the aforementioned employees.
  3. Complete details of the projects, in which Dr. H.S. Thakur, Dr. M.P. Jain and Mr. Anil Vijayvargeeya have performed work during the period of 2011 to 2013.

Though the Information involved in clause A of the aforementioned Para pertains to the personal information of the third parties, the Dean, who is the Public Information Officer, following the mandate of section 11 of the Act and by the letters dated 13.08.2013, requested the aforesaid employees to file their opinion regarding supply of their information. Both the employees objected the same and requested not to provide their personal information to the Applicant.

While accepting the third parties contentions, the Learned Public Information Officer invoking the provision of Section 10 of the Act, issued a notice dated 20.8.2013 to the Applicant, wherein it was suggested the information can reasonably be served and access can be allowed in part. On the basis of the same, the Applicant deposited requisite amount Rs. 2480/-, subsequent to which, the Learned Public Information Officer provided the information to the Applicant.

In this context, the Learned Dean, Agriculture College, Indore referred the matter for analysis and legal opinion to Advocate Mr. A.K. Verma. The question involved was: –

“Whether, under the aforesaid facts and circumstances of the case, the personal record, i.e., service record of the employees, can be denied the access to the Applicant?”

In this reference, Section 8(1) (J) of the Act is relevant, which states that any information which relates to personal information the disclosure of which has no relationship to any public activity or interest or which has no relationship to any public activity or interest or which would cause unwarranted invasions of privacy of the individual unless larger public interest, justifies the disclosure of such information. In the case in hand, the Applicant did not disclose what larger public interest is involved in seeking personal information of the employees. Hence, under section 8(1) (J) of the Act, Learned Public Information Officer rightly opined that the certified copies of personal records i.e. service records of the employees can not supplied to the Applicant.

The following authorities are relevant in the scenario: –

  1. In the case of R.K. Jain v. Union of India, AIR 2003 Del. 24 (D.B.), the Hon’ble High Court opined that the copy of Annual Confidential Report cannot be supplied, if no larger Public Interest is involved.
  2. In the case of Hardev Arya v. Chief Manager, AIR 2003 Raj. 97, the Hon’ble High Court opined that the copy of bank details of employees cannot be supplied, if no larger Public Interest is involved.
  3. In the case of Vijay Prakash v. Union of India, AIR 2010 Del. 7, the Hon’ble High Court opined that the copy of service records of employees cannot be supplied, if no larger Public Interest is involved.

Amendment in the High court of Madhya Pradesh Rules, 2008

The High Court of Madhya Pradesh, vide its Notification no. Q.1 dated 6.9.2013, has made amendments in the High Court Rules, 2008. Now in the formats of the Bail Applications prescribed in Nos. 11, 13 and 14 under Section 389(1),439 and 439 of the Criminal Procedure Code, 1973, the details of the Bail Application pending or disposed of by the Hon’ble Supreme Court, High Courts and/or Subordinate Courts are mandatorily required to be disclosed.

The aforementioned notification has been is published in M.P. Rajpatra, Part 4(D) no. 37 dated 13.09.2013 and has come into effect from the date of publication of the notification in the Rajpatra.