Judgment :- Common Order: 1. Challenge in these writ petitions is the common award passed in I.D.Nos.716 to 718 and 726 to 728 of 1997 holding that non-employment of 2nd Respondent(s) is illegal and that the 2nd Respondent(s) are entitled to regularisation and back wages. 2. Since all the writ petitions arise out of common award and involving common points all writ petitions were heard together and shall stand disposed by this common order. 3. Brief facts which led to filing of writ petitions are as follows: (i) Seeyalan- Petitioner in I.D.No.716 of 1997 and the 2nd Respondent in W.P.No.29666 of 2005 worked with the erstwhile Management M/s. Thanthai Periyar Transport Corporation from the year 1989 to 31.05.1992 as casual labour and thereafter, after bifurcation of the Transport Corporation, the 2nd Respondent was transferred to the Petitioner Corporation and worked for 651 days as casual labour from 01.06.1992 and worked continuously till date of oral termination dated 05.04.1997. (ii) M. Mahadevan-Petitioner in I.D.No.717 of 1997 and the 2nd Respondent in W.P.No.29667 of 2005 worked with erstwhile Management M/s. Pattukottai Azhagiri Transport Corporation from 04.05.1987 to 03.08.1992 as store keeper. After bifurcation of transport corporation, the 2nd Respondent joined the Petitioner Corporation and worked for 1169 days as civil helper from 04.08.1992 till date of oral termination dated 31.03.1997. (iii) R. Loganathan-Petitioner in I.D.No.726 of 1997, 2nd Respondent in W.P.No.29669 of 2005 joined the Petitioner Corporation as canteen helper and worked for 770 days till date of oral termination dated 22.03.1997. (iv)V. Venkatesan-Petitioner in I.D.No.727 of 1997, 2nd Respondent in W.P.No.29670 of 2005 worked with the erstwhile management of Thanthai Periyar Transport Corporation from 01.05.1983 to 31.03.1992. After bifurcation, the 2nd Respondent joined the Petitioner Corporation and worked for 1026 days as civil helper and worked continuously till the date of oral termination dated 05.04.1997. (v) D.Shanmugam-Petitioner in I.D.No.728 of 1997 and 2nd Respondent in W.P.No.29671 of 2005 joined the Petitioner Corporation and worked for 1085 days as casual labour from 10.06.1992 till the date of oral termination dated 19.03.1997. 3. As against order of termination 2nd Respondent(s) raised Industrial Dispute before Labour Court. 4. The Management / Tamil Nadu State Transport Corporation opposed the petitions contending that the 2nd Respondent(s) were appointed only as casual labourers for the purpose of cleaning and sweeping only for 2 – 3 hrs a day. 3. As against order of termination 2nd Respondent(s) raised Industrial Dispute before Labour Court. 4. The Management / Tamil Nadu State Transport Corporation opposed the petitions contending that the 2nd Respondent(s) were appointed only as casual labourers for the purpose of cleaning and sweeping only for 2 – 3 hrs a day. Stand of the Corporation was that for sake of convenience daily wages was paid by totalling up for every month and therefore 2nd Respondent(s) are not entitled to permanency as claimed and therefore 2nd Respondent(s) are not entitled to reinstatement in service. 5. In the Labour Court, workmen were examined and number of documents were marked. Petitioner management examined Deputy Manager -Civil as MW1. Labour Court held that the 2nd Respondent(s) have been continuously working as casual labourers for more than six years and non-employment of the 2nd Respondent(s) was unjustified. Labour Court further held that 2nd Respondent(s) are entitled to regularisation and permanent employment together with backwages, continuity of service and other attendant benefits. Labour Court faulted writ petitioner Corporation for non production of documents pertaining to engagement of workmen. 6. Challenging the award, on behalf of Corporation, Learned Addl.Advocate General Mr.R.P.Kabilan, submitted that the 2nd Respondent(s) are following recruitment rules including those regarding reservation policy based upon sympathy and there cannot be order for regularisation. It was further argued that the 2nd Respondent(s) were only temporary / casual labourers and in view of the decision of the Constitution Bench of Supreme Court in Umadevis case (2006) 4 SCC 1 and other decisions, order of Labour Court for regularisation cannot be sustained. 7. Supporting the common award, the learned counsel for workmen submitted that the 2nd Respondent(s) have been working in the writ petitioner Corporation both in canteen as well as in the depot continuously for more than six years and their termination is in clear violation of Sec.25-F of Industrial Disputes Act. Contending that even part time employee would be a workmen as understood in Sec.2(s) of the Act and such part-time workmen would be entitled to protection of Sec.25-F. Learned counsel placed reliance upon (2009) 1 MLJ 176 (SC) D.M., New India Assurance Co.Ltd v. A. Sankaralingam. Learned counsel also placed reliance upon 1990 (1) LLJ 320 bhagwati Prasad v. D.S.M. Devt. Corporation. 8. Learned counsel also placed reliance upon 1990 (1) LLJ 320 bhagwati Prasad v. D.S.M. Devt. Corporation. 8. Learned counsel placed reliance upon 2006 (4) LLN 403 Asst G.M., S.B.I of India v. T. Veerapandian in which the Division Bench of this Court has dealt with 17B of the Act and observed that object underlying 17B hardship caused to the workman due to the delay in implementation of the award. The said decision has no relevance to the facts of the present case. 9. Admittedly, 2nd Respondent(s) have not been appointed by following the regular procedure i.e. they were not appointed through employment exchange; instead they have been appointed as casual labourers on daily rated basis that 2nd Respondent(s) worked with writ petitioner Corporation for more than 240 days. 2nd Respondent(s) have been working either in canteen or as civil helper. All of them have presented petition before District Collector(Ex.W4) to regularise their services. 10. Deputy Manager who was examined as MW1 in the Labour Court has stated that 2nd Respondent(s) were engaged on daily rated wages and that they have been paid Rs.25 per day and for convenience they were paid wages monthly. MW1 further stated that 2nd Respondent(s) were employed in the canteen and they used to wok in the canteen. Evidence of MW1 reads as follows: The 2nd Respondent(s) have worked more than six years and they have been orally terminated. 11. On completion of 240 days there is no right to the workmen for regularisation. Completion of 240 days merely imposes certain obligations upon the employer while terminating the services. Main plea of the 2nd Respondent(s) is that Government had asked for list of persons working as casual labourers and that list of 23 persons who have completed 240 days continuously as that of 2nd Respondent(s) were furnished by the Villupuram District Corporation. Based on that letter from Villupuram Division, G.O.Ms.No.249, dated 312. 1998 was issued regularising services of those 23 casual employees. 12. Contention of the 2nd Respondent(s) is that they are all similarly placed as that of 23 employees whose services were regularised. Learned counsel for the 2nd Respondent(s) vehemently contended that those 23 employees whose service were regularised by virtue of Government order were not appointed through employment exchange. Learned counsel mainly contended that there was selective discrimination regularising only 23 casual employees who were similarly placed as that of 2nd Respondent(s). Learned counsel for the 2nd Respondent(s) vehemently contended that those 23 employees whose service were regularised by virtue of Government order were not appointed through employment exchange. Learned counsel mainly contended that there was selective discrimination regularising only 23 casual employees who were similarly placed as that of 2nd Respondent(s). Learned counsel would further submit that 2nd Respondent(s) have worked for continuously for more than six years and they cannot be discriminated against their counter parts. Learned counsel has drawn my attention to appointment of one Venkatesan who was appointed by the order of High Court. It was therefore contended that the 2nd Respondent(s) cannot be discriminated. 13. Though the 2nd Respondent(s) are placed on similar footing, the 2nd Respondent(s) worked continuously for more than six years, in view of Constitution Benchs decision of Supreme Court in Umadevis case there cannot be any direction for regularisation. Constitution Benchs decision in Umadevis case, it is binding on all the Courts therefore not withstanding the differential treatment to the 2nd Respondent(s) there cannot be a direction for regularisation. 14. Holding that the Courts cannot direct continuation/regularisation and referring to number of decisions in Umadevis case Supreme Court has held as under: "3.... The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called “litigious employment”, has risen like a phoenix seriously impairing the constitutional scheme. A class of employment which can only be called “litigious employment”, has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 4. This Court has also on occasions issued directions which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench." 15. It is this conflict that is reflected in these cases referred to the Constitution Bench." 15. Observing that temporary, contractual, casual or daily wage adhoc employees appointed dehors the constitutional scheme to public employment have no legitimate expectation to be absorbed, Supreme Court further held as under. "38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees.... 39....No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service." 16. In 2009 1 MLJ 176, D.M. New India Assurance Co. Ltd. v. A. Sankaralingam, Supreme Court has held that a Workman employed on a part-time basis but under the control and supervision of an employer is a workman in term of Section2(s) of the I.d. Act, and is entitled to the benefit of continuous service under Section 25-B and protection of Sec.25-F thereof, should the need so arise. It may be that Sec.2(s) of parttime employee are entitled to the protection u/s. 25-F of ID Act. 17. Contending that even daily rate workmen or public sector Corporation are entitled to regularisation, learned counsel placed reliance upon 1990 1 LLJ 320 , Bhagwati Prasad v. D.S.M. Devt. Corporation. In view of the decision of the Constitution Bench in Umadevis case the ratio of above decision cannot be applied. 18. Umadevis case is applicable even in industrial undertaking / Govt. Corporations (vide 2007 (5) SCC 755 U.P.Power Corporation Ltd v. Bijli Mazdoor Sangh). 19. Corporation. In view of the decision of the Constitution Bench in Umadevis case the ratio of above decision cannot be applied. 18. Umadevis case is applicable even in industrial undertaking / Govt. Corporations (vide 2007 (5) SCC 755 U.P.Power Corporation Ltd v. Bijli Mazdoor Sangh). 19. Referring to Umadevis case and other decisions, in (2007) 1 SCC 408 Indian Drugs & Pharmaceuticals Ltd V. Workman Supreme Court has held as under: " 35.A perusal of the record of the present case shows that the respondents were appointed on purely casual and daily-rate basis without following the relevant service rules. Thus they had no right to the post at all, vide State of U.P. v. Kaushal Kishore, (1991) 1 SCC 691 . 36. In Delhi Development Horticulture Employees’ Union v. Admn., Delhi and others AIR 1992 SC 789 : (1992) 4 SCC 99 : 1999-II-LLJ-452 while deprecating the tendency of engaging daily-wagers without advertisement this Court held the same to be back door entries in violation of Article 16 of the Constitution. As such this Court refused to give any direction to regularise the petitioners. 37. Thus, it is well settled that there is no right vested in any daily-wager to seek regularisation. Regularisation can only be done in accordance with the rules and not dehors the rules. In E.Ramakrishnan v. State of Kerala & others 1996(10) SCC 565 : 1997 I LLJ 1215 this Court held that there can be no regularisation dehors the rules. The same view was taken in Kishore (Dr.) v. State of Maharashtra (1997) 3 SCC 209 , Union of India v. Bishamber Dutt (1996) 11 SCC 341 . The direction issued by the Services Tribunal for regularising the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time. 38. In Surinder Singh Jamwal (Dr.) v. State of Jammu &Kashmir & Others AIR 1996 SC 2775 : (1996) 9 SCC 619 :1996 II LLJ 795, it was held that ad hoc appointment does not give any right for regularisation as regularisation is governed by the statutory rules. 39. 38. In Surinder Singh Jamwal (Dr.) v. State of Jammu &Kashmir & Others AIR 1996 SC 2775 : (1996) 9 SCC 619 :1996 II LLJ 795, it was held that ad hoc appointment does not give any right for regularisation as regularisation is governed by the statutory rules. 39. In Ashwani Kumar v. State of Bihar & others AIR 1996 SC 2833 : (1996) 7 SCC 577 ,the appointment made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting application from the open market was held to be in flagrant breach of Articles 14 and 16 of the Constitution." 20. In the instant case, Labour Court has ordered regularisation of 2nd Respondent(s). The Labour Court has not indicated that what are the posts that exist in which the 2nd Respondent(s) are to be regularised. The Court cannot create a post where none exists. In so far as creation and abolition of posts and regularisation are purely executive function. Observing it is not appropriate for the court to encroach into the functions of another organ of the State and that Court must exercise judicial restraint in this connection, in Paras 40 and 41 of IDPL case Supreme Court has held as under: " 40. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General, Ahmedabad & Others AIR 2003 SC 2156 : (2003) 2 SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits. 41. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily-rated employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily-rated employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary." 21. The question whether Court can issue direction for absorption or regularisation again came up for consideration in 2008 10 SCC 1 Official liquidator v. Dayanand Supreme Court has held that in exercise of the power vested in it under Article 226 of the Constitution of India, the High Court cannot issue a mandamus and compel the State and its instrumentalities/ agencies to regularise the services of temporary/ad hoc/daily wager/casual/contract employees and directions cannot be issued to the public employer to prescribe or give similar pay scales to employees appointed through different modes, with different conditions of service and different sources of payment. 22. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka v Umadevi (2006) 4 SCC 1 is binding on all the courts including Supreme Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judge Benches for declining to entertain the claim of regularisation of service made by ad hoc/temporary/daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees. Gangadhar Pillai v. Siemens Ltd (2007) 1 SCC 533 , Kendriya Vidyalaya Sangathan v. L.v. Subramanyeswara (2007) 5 SCC 326 , Hindustan Aeronautics Ltd V. Dan Bahadur Sing (2007) 6 SCC 207 . 23. Gangadhar Pillai v. Siemens Ltd (2007) 1 SCC 533 , Kendriya Vidyalaya Sangathan v. L.v. Subramanyeswara (2007) 5 SCC 326 , Hindustan Aeronautics Ltd V. Dan Bahadur Sing (2007) 6 SCC 207 . 23. In U.P. SEB v. Pooran Chandra Pandey (2007) 11 SCC 92 two Judge Bench of Supreme Court held that Umadevis case cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven Judge Bench in Maneka Gandhi v. Union of India (1978) 1 SCC 248 . Referring to Pooran Chandra Pandeys case in 2008 10 SCC 1 – Official Liquidators case the Supreme Court has held that in the Pooran Chandra Pandeys case direction for regularisation was in the nature of obiter dicta and cannot prevail upon the decision of the Constitution Bench in Umadevis case. 24. Direction for regularisation of temporary drivers and conductors in the State Transport Corporation who were engaged during festival season came up for consideration before the Division Bench of this Court in W.A.Nos.894 and 920 to 922 of 2007 and batch. Referring to Umadevis case, IDPL case , Punjab Water Supply & Sewerage Board v. Ranjodh sing, (2007) 2 SCC 491 and A.Uma Rani v. Registrar, Cooperative Societies and Others (2004) 7 SCC 112 , Division Bench has held that no direction could be issued for regularistion for drivers and conductors who were retrenched. The decision of the Constitution Bench of the Supreme Court in Umadevis case and other decision is binding upon all Courts. Applying decisions of the Supreme court the order of Labour Court directing regularisation cannot be sustained. 25. In the result, writ petitions are allowed setting aside the common award passed in I.D.Nos.716 to 718 of 1997 and 726 to 728 of 1997. It is made clear that the amount paid to 2nd Respondent(s) U/s.17B shall not be recovered from the 2nd Respondent.