Full Judgment Text
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CASE NO.:
Appeal (civil) 3981 of 2006
PETITIONER:
Surendra Prasad Tewari
RESPONDENT:
Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad & Others
DATE OF JUDGMENT: 08/09/2006
BENCH:
G.P. MATHUR & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 23114 of 2003]
Dalveer Bhandari, J.
Leave granted.
Regularization in public employment is the main
issue which falls for adjudication in this appeal.
This appeal is directed against the judgment dated
21.10.2003 passed in Civil Writ Petition No. 6475 of 1992
by the High Court of Judicature at Allahabad, Lucknow
Bench, Lucknow, UP.
Brief facts which are necessary to dispose of the
appeal are recapitulated as under:
The appellant was appointed by Rajya Krishi
Utpadan Mandi Parishad, U.P., vide order dated
17.7.1989, for a period of three months on contractual
basis on a remuneration of Rs.1,500/- for conducting a
survey in the deficiency of procurement of the
agricultural produce of Meerut Division, namely, Potato
etc. Since the nature of employment has been disputed
by the appellant, therefore, we deem it appropriate to set
out the relevant portion of the order dated 17.7.1989 as
under:
"Shri Surinder Prasad Tiwari, 17, Rana Partap
Marg, Lucknow, is hereby appointed for a period of
three months only, on contractual basis on a
remuneration of Rs.1,500/- (Rupees one thousand
five hundred only) per month for conducting a
survey in the deficiency of procurement of the
agricultural produce of Meerut Division, namely
Potato etc.
The services of Shri Tiwari shall stand
terminated automatically after the expiry of the
above period of three months and his services can
also be terminated earlier also without assigning
any reason, if there is no need or under special
circumstances. However, no compensation will be
given to Shri Tiwari in this regard.
Sd/- Vijendra Pal
Director, Mandi."
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The appellant, on 6.12.1989, was again appointed
for a period of three months on contractual basis on a
remuneration of Rs.1500/- for surveying the land of the
village community and to determine whether Gramin
Bazar/Haat is held on the lands of Gram Samaj or Zila
Parishad and how many wholesalers/commission agents
were working. The relevant part of order dated 6.12.1989
reads as under:
"In continuation of the efforts of the Mandi
Parishad for terminating/abolishing prevalent
system of Tehbazari in the Faizabad and
Gorakhpur Divisions, Shri Surinder Prasad Tiwari
through Shri V.P. Mishra, 17, Rana Partap Marg,
Lucknow, is hereby appointed for a period of three
months only, on contractual basis on a
remuneration of Rs.1,500/- (Rupees one thousand
five hundred only) per month for conducting a
survey of the following works-
(1) Details of the land of the village community;
(2) Whether Gramin Bazar/Haat is held on the
lands of Gram Samaj or Zila Parishad;
(3) How many wholesalers/commission agents
are working.
The services of Shri Tiwari shall stand terminated
automatically after the expiry of the above period
and his services can be terminated earlier also
without assigning any reason, if there is no need
or under special circumstances. However, no
compensation will be given to Shri Tiwari in this
regard.
Sd/- Arvind Mohan
Director, Mandi"
On 23.3.1990, the appellant was again appointed
on contractual basis for a period of five months. The
relevant part of the order dated 23.3.1990 reads as
follows:
"In continuation of the efforts of the Mandi
Parishad terminating/abolishing prevalent system
of Tehbazari in the Faizabad and Gorakhpur
Divisions, Shri Surinder Prasad Tiwari, 17, Rana
Partap Marg, Lucknow, is hereby appointed for a
period of five months, on contractual basis, on a
remuneration of Rs.1,500/- (Rupees one thousand
five hundred only) per month for conducting a
survey of the following works-
(1) Details of the land of the village community;
(2) Whether Gramin Bazar/Haat is held on the
lands of Gram Samaj or Zila Parishad;
(3) How many wholesalers/commission agents
are working.
The services of Shri Tiwari shall stand terminated
automatically after the expiry of the above period
and his services can be terminated earlier also
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without assigning any reason, if there is no need
or under special circumstances and no
compensation will be given to Shri Tiwari in this
regard.
Sd/- Arvind Mohan
Director, Mandi"
The appellant, on 23.8.1990, was again appointed
for a period of four months on contractual basis. The
relevant part of the order dated 23.8.1990 reads as
under:
"Shri Surinder Prasad Tiwari is hereby appointed
for a period of four months only, on contractual
basis on a remuneration of Rs.1,800/- (Rupees
one thousand eight hundred only) per month for
executing the development works of Kanpur Area
viz., Wood Mandi and Leather Mandi and for
development of Vegetable Mandi and for survey
and other works, from the date of his joining the
Mandi Samiti, Kanpur. All the terms and
conditions of the contract shall remain as before.
Shri Tiwari will work under the control of
Secretary, Mandi Samiti, Kanpur and payments
also will be made to him by the Mandi Samiti,
Kanpur.
Sd/- Arvind Mohan
Director, Mandi"
The appellant was again appointed for a period of
four months by an order dated 14.2.1991. Relevant part
of the said order reads as under:
"Shri Surinder Prasad Tiwari through Shri V.P.
Mishra, 17, Rana Pratap Marg, Lucknow is hereby
appointed for a period of four months only on a
monthly remuneration of Rs.1,800/- (Rupees one
thousand eight hundred only) for conducting
survey of the construction/development works of
the New Mandis of Wood and Leather in Kanpur.
He is being appointed in the Mandi Samiti,
Kanpur as per the terms and conditions of the
contract. Thereafter, this contract work shall
automatically stand terminated.
Payments of the aforesaid remuneration will be
made to Shri Surinder Tiwari by the Mandi Samiti,
Kanpur.
Sd/- Arvind Mohan
Director, Mandi"
On 1.7.1991 the appellant was again appointed for
a period of four months on contractual basis. The
relevant part of the order dated 1.7.1991 reads as under:
"By Board’s Order No.A-K/91-328 dated
14.2.1991, Shri Surinder Prasad Tiwari was
appointed in the Mandi Samiti, Kanpur, for a
period of four months only, on contractual basis
on a remuneration of Rs.1,800/- (Rupees one
thousand eight hundred only) per month as per
the terms and conditions of the Contract. Now,
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after completion of the period of the contract, the
services of Shri Tiwari are hereby extended for a
further period of three months from the date of
issuance of this order, in the interests of general
public. The contractual period shall stand
terminated automatically after expiry of three
months. However, his services can also be
terminated any time before contractual period of
three months, in case he is not required, or under
any special circumstances, and for which Shri
Tiwari will not be entitled to any compensation.
The remuneration of Shri Tiwari will be paid by
the Mandi Samiti, Kanpur, as per the terms and
conditions of earlier contract.
He should join only after agreeing to the terms and
conditions of the previous contract.
Sd/- Arvind Mohan
Director, Mandi"
Lastly, on 14.10.1991, the appellant was again
appointed for a period of six months on contractual
basis. The relevant part of the order dated 14.10.1991
reads as under:
"Shri Surinder Prasad Tiwari through Shri V.P.
Mishra, 17, Rana Pratap Marg, Lucknow is
hereby appointed for a period of six months only,
on contractual basis, on a monthly remuneration
of Rs.1,800/- (Rupees one thousand eight
hundred only) per month for executing the
election/re-organization works of Mandi Samitis,
under the terms and conditions of the contract.
He is being kept on contract with effect from the
date of his joining and he will remain under the
control of the Deputy Director (Marketing) Mandi
Parishad, H.O.
Sd/- Arvind Mohan
Director, Mandi"
The case of the appellant is that his services were
orally terminated on 1.9.1992, whereas, according to the
respondents, the appellant’s appointment was on
contractual basis and his services came to an end after
the period of the contract was completed. The appellant
aggrieved by the oral termination and/or non-
continuation in service preferred a writ petition before the
Allahabad High Court at Lucknow Bench, Lucknow.
The Division Bench of the High Court after hearing
the parties observed that, in law, there are only two kinds
of appointments. The first is the permanent appointment
and the second is the temporary appointment. According
to the Division Bench, temporary appointments have
further various sub-categories, such as casual appointee,
daily wager, ad-hoc appointee, contractual appointee,
probationer etc. The Court observed that a temporary
appointee has no right to the post. Only a permanent
appointee has such a right to the post. The Court
observed that the appointments to the permanent posts
are made after following the procedure under Article 16
of the Constitution. The Court observed that the
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appellant was never appointed by following the said
procedure and he was never confirmed and,
consequently, he has no right to the post as well. The
Court further observed that merely because the appellant
had succeeded in getting an interim order of this Court, it
does not entitle him to have any right and the writ
petition filed by the appellant was dismissed by the High
Court on 21.10.2003.
The appellant, aggrieved by the said order of the
High Court, preferred this appeal before this Court. The
appellant has raised a number of questions of law in this
appeal. The same are reproduced as under:
a. Whether engaging the employees on contract
basis without any security of their tenure
and continuing them for years on meager
wages for the works of perennial nature, is
not illegal, arbitrary, unconstitutional and
within the ambit of Unfair Labour Practice?
b. Whether an employee continuing on post
from last more than 14 years is not entitled
to the regularization of his services?
c. Whether the appointment of the petitioner
can be termed as irregular and illegal when
the Mandi Regulations 1984 itself provide
the provisions of a contract appointment?
d. Whether it is permissible under law to
terminate the services of the petitioner while
the hundreds of juniors appointed in the
same manner are still retained in the
service?
e. Whether the High Court has not committed
the error of law in dismissing the writ
petition of the petitioner when approximately
110 civil appeals of the employees appointed
in the same manner are still pending before
the Hon’ble Supreme Court?
f. Whether the High Court has not erred in
dismissing the writ petition of the petitioner
ignoring the fact that the matter of
regularization of the petitioner is still under
consideration before the authorities?
g. Whether the oral order terminating the
service of the petitioner can be justified
when the same was passed without
assigning any reason and without giving
opportunity of hearing?
h. Whether the High Court was justified in
dismissing the petition filed by the
petitioner?
i. Whether in any event the judgment and
order passed by the High Court is liable to
be set aside?
The appellant submitted that the impugned
judgment is manifestly illegal, incorrect and against the
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record of the case. The appellant also submitted that the
respondents are guilty of unfair labour practice by
engaging the employees on contract basis without any
security of their tenure and continuing them for years on
meager wages for the works of perennial nature. It was
further submitted that the appellant has been working
continuously for 14 years and was entitled to be
regularized in service. The appellant also submitted that
number of persons similarly placed are still continuing in
their services, whereas the services of the appellant have
been dispensed with.
This Court issued a show-cause notice and, in
pursuance to the said show-cause notice, a
comprehensive counter affidavit was filed by Lokesh
Kumar, Deputy Director (Administration), Head Quarters,
Mandi Parishad, Lucknow on behalf of the respondents.
At the outset, it was incorporated in the counter affidavit
that the appellant had suppressed the material facts
from this Court. The appellant had not disclosed to the
Court that his tenure of 14 years was due to the interim
order dated 15.9.1992 granted in favour of the appellant
by the High Court and it was because of the interim order
that the respondents had to continue the appellant in the
department. It was further stated in the counter affidavit
that the appellant was merely a temporary employee who
was given employment as per the needs and exigencies of
different projects undertaken by the Mandi Parishad. It
was further stated that the appointment of the appellant
was not against any substantive post, as alleged by the
appellant in the writ petition. It was also incorporated in
the counter affidavit that the appellant was given fixed
term appointments on contractual basis and his services
were automatically terminated after the expiry of the
contract period. The copies of the orders giving
contractual appointments to the appellant have been
produced along with the counter affidavit, which have
already been reproduced in the preceding paragraphs of
this judgment. According to the respondents, the
appellant’s case for regularization has no merit and the
High Court was correct and justified in dismissing the
writ petition filed by the appellant.
In the rejoinder affidavit, the appellant has
reiterated the averments incorporated in the petition.
On careful analysis of the appointment orders, it is
revealed that the appellant’s contractual appointment
was for a fixed term for carrying out the work of a
specified project. The appellant was engaged from time
to time to work on different projects and the last contract
was dated 14.10.1991 and thereafter, the appellant was
not appointed. The appellant’s appointment was purely a
fixed term appointment. By no stretch of imagination it
could be said that the appointment of the appellant was
made while following the procedure as laid down under
Articles 14 and 16 of the Constitution. A three-Judge
Bench of this Court in Delhi Development Horticulture
Employees’ Union v. Delhi Administration, Delhi &
Others reported in (1992) 4 SCC 99, observed as under:
"The above figures show that if the resources used
for the Jawahar Rozgar Yojna were in their
entirety to be used for providing full employment
throughout the year, they would have given
employment only to a small percentage of the
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population in need of income, the remaining vast
majority being left with no income whatsoever. No
fault could, therefore, be found with the limited
object of the scheme given the limited resources at
the disposal of the State. Those employed under
the scheme, therefore, could not ask for more than
what the scheme intended to give them. To get an
employment under such scheme and to claim on
the basis of the said employment, a right to
regularization, is to frustrate the scheme itself. No
court can be a party to such exercise. It is wrong
to approach the problems of those employed under
such schemes with a view to providing them with
full employment and guaranteeing equal pay for
equal work. These concepts, in the context of such
schemes are both unwarranted and misplaced.
They will do more harm than good by depriving
the many of the little income that they may get to
keep them from starvation. They would benefit a
few at the cost of the many starving poor for whom
the schemes are meant. That would also force the
State to wind up the existing schemes and forbid
them from introducing the new ones, for want of
resources. This is not to say that the problems of
the unemployed deserve no consideration or
sympathy. This is only to emphasise that even
among the unemployed a distinction exists
between those who live below and above the
poverty line, those in need of partial and those in
need of full employment, the educated and
uneducated, the rural and urban unemployed
etc."
In State of Himachal Pradesh, through the
Secretary, Agriculture to the Govt. of Himachal
Pradesh v. Nodha Ram & Others reported in 1998 SCC
(L&S) 478 : AIR 1997 SC 1445, in regard to the status of
the temporary project employees employed in the
Government project, the Court held as under:
"It is seen that when the project is completed and
closed due to non-availability of funds, the
employees have to go along with its closure. The
High Court was not right in giving the direction to
regularize them or to continue them in other
places. No vested right is created in temporary
employment. Directions cannot be given to
regularize their services in the absence of any
existing vacancies nor can directions be given to
the State to create posts in a non-existent
establishment. The Court would adopt pragmatic
approach in giving directions. The directions
would amount to creating of posts and continuing
them despite non-availability of the work. We are
of the considered view that the directions issued
by the High Court are absolutely illegal warranting
our interference. The order of the High Court is,
therefore, set side."
The ratio of this case squarely applies to the facts of this
appeal.
In Karnataka State Private College Stop-Gap
Lecturers Association etc. v. State of Karnataka &
Others reported in (1992) 2 SCC 29, the Court held as
under:
".. A temporary or ad hoc employee may not have
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a claim to become permanent without facing
selection or being absorbed in accordance with
rules but no discrimination can be made for same
job on basis of method of recruitment. Such
injustice is abhorrent to the constitutional
scheme."
The controversy involved in this case is no longer
res integra.
A Constitution Bench of this Court in the case of
Secretary, State of Karnataka & Others v. Umadevi
(3) & Others reported in (2006) 4 SCC 1 has
comprehensively dealt with the issues involved in this
case. The Constitution Bench has observed as follows:
"2. Public employment in a sovereign socialist
secular democratic republic, has to be as set down
by the Constitution and the laws made
thereunder. Our constitutional scheme envisages
employment by the Government and its
instrumentalities on the basis of a procedure
established in that behalf. Equality of opportunity
is the hallmark, and the Constitution has provided
also for affirmative action to ensure that unequals
are not treated as equals. Thus, any public
employment has to be in terms of the
constitutional scheme.
4. But, sometimes this process is not adhered
to and the Constitutional scheme of public
employment is bypassed. 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.
6. The power of a State as an employer is more
limited than that of a private employer inasmuch
as it is subjected to constitutional limitations and
cannot be exercised arbitrarily (See: Basu’s
Shorter Constitution of India). Article 309 of the
Constitution gives the Government the power to
frame rules for the purpose of laying down the
conditions of service and recruitment of persons to
be appointed to public services and posts in
connection with the affairs of the Union or any of
the States. That article contemplates the drawing
up of a procedure and rules to regulate the
recruitment and regulate the service conditions of
appointees appointed to public posts. It is well
acknowledged that because of this, the entire
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process of recruitment for services is controlled by
detailed procedures which specify the necessary
qualifications, the mode of appointment, etc. If
rules have been made under Article 309 of the
Constitution, then the Government can make
appointments only in accordance with the rules.
The State is meant to be a model employer. The
Employment Exchanges (Compulsory Notification
of Vacancies) Act, 1959 was enacted to ensure
equal opportunity for employment seekers.
Though this Act may not oblige an employer to
employ only those persons who have been
sponsored by employment exchanges, it places an
obligation on the employer to notify the vacancies
that may arise in the various departments and for
filling up of those vacancies, based on a
procedure. Normally, statutory rules are framed
under the authority of law governing employment.
It is recognized that no government order,
notification or circular can be substituted for the
statutory rules framed under the authority of law.
This is because, following any other course could
be disastrous inasmuch as it will deprive the
security of tenure and the right of equality
conferred on civil servants under the
constitutional scheme. It may even amount to
negating the accepted service jurisprudence.
Therefore, when statutory rules are framed under
Article 309 of the Constitution which are
exhaustive, the only fair means to adopt is to
make appointments based on the rules so
framed."
In the above case, this Court, in para 11, further
observed as under:
"11. In addition to the equality clause
represented by Article 14 of the Constitution,
Article 16 has specifically provided for equality of
opportunity in matters of public employment.
Buttressing these fundamental rights, Article 309
provides that subject to the provisions of the
Constitution, Acts of the legislature may regulate
the recruitment and conditions of service of
persons appointed to public services and posts in
connection with the affairs of the Union or of a
State. In view of the interpretation placed on
Article 12 of the Constitution by this Court,
obviously, these principles also govern the
instrumentalities that come within the purview of
Article 12 of the Constitution. With a view to make
the procedure for selection fair, the Constitution
by Article 315 has also created a Public Service
Commission for the Union and Public Service
Commissions for the States. Article 320 deals
with the functions of the Public Service
Commissions and mandates consultation with the
Commission on all matters relating to methods of
recruitment to civil services and for civil posts and
other related matters. As a part of the affirmative
action recognized by Article 16 of the Constitution,
Article 335 provides for special consideration in
the matter of claims of the members of the
Scheduled Castes and Scheduled Tribes for
employment. The States have made Acts, Rules or
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Regulations for implementing the above
constitutional guarantees and any recruitment to
the service in the State or in the Union is governed
by such Acts, rules and regulations. The
Constitution does not envisage any employment
outside this constitutional scheme and without
following the requirements set down therein."
This Court, in the aforesaid case, also discussed the
case of Indra Sawhney & Others v. Union of India &
Others reported in 1992 Supp (3) SCC 217. It is
observed in this case as under:
"644. The significance attached by the Founding
Fathers to the right to equality is evident not only
from the fact that they employed both the
expressions ’equality before the law’ and ’equal
protection of the laws’ in Article 14 but proceeded
further to state the same rule in positive and
affirmative terms in Articles 15 to 18.
645. Inasmuch as public employment always gave
a certain status and power\027it has always been
the repository of State power\027besides the means
of livelihood, special care was taken to declare
equality of opportunity in the matter of public
employment by Article 16. Clause (1), expressly
declares that in the matter of public employment
or appointment to any office under the State,
citizens of this country shall have equal
opportunity while clause (2) declares that no
citizen shall be discriminated in the said matter on
the grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them.
At the same time, care was taken to declare in
clause (4) that nothing in the said Article shall
prevent the State from making any provision for
reservation of appointments or posts in favour of
any backward class of citizens which in the
opinion of the State, is not adequately represented
in the services under the State."
These binding decisions are clear imperatives that
adherence to Articles 14 and 16 of the Constitution is a
must in the process of public employment.
The Constitution Bench in Umadevi’s case (supra)
has observed that adherence to the rule of equality in
public employment is a basic feature of our Constitution.
It was observed as under:
"43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of
our Constitution and since the rule of law is the
core of our Constitution, a court would certainly
be disabled from passing an order upholding a
violation of Article 14 or in ordering the
overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of
the Constitution. Therefore, consistent with the
scheme for public employment, this Court while
laying down the law, has necessarily to hold that
unless the appointment is in terms of the relevant
rules and after a proper competition among
qualified persons, the same would not confer any
right on the appointee. If it is a contractual
appointment, the appointment comes to an end at
the end of the contract, if it were an engagement
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or appointment on daily wages or casual basis, the
same would come to an end when it is
discontinued. Similarly, a temporary employee
could not claim to be made permanent on the
expiry of his term of appointment. It has also to be
clarified that merely because a temporary
employee or a casual wage worker is continued for
a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular
service or made permanent, merely on the
strength of such continuance, if the original
appointment was not made by following a due
process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular
recruitment at the instance of temporary
employees whose period of employment has come
to an end or of ad hoc employees who by the very
nature of their appointment, do not acquire any
right. The High Courts acting under Article 226 of
the Constitution, should not ordinarily issue
directions for absorption, regularization, or
permanent continuance unless the recruitment
itself was made regularly and in terms of the
constitutional scheme. Merely because an
employee had continued under cover of an order of
the court, which we have described as "litigious
employment" in the earlier part of the judgment,
he would not be entitled to any right to be
absorbed or made permanent in the service. In
fact, in such cases, the High Court may not be
justified in issuing interim directions, since, after
all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to
mould the relief in such a manner that ultimately
no prejudice will be caused to him, whereas an
interim direction to continue his employment
would hold up the regular procedure for selection
or impose on the State the burden of paying an
employee who is really not required. The courts
must be careful in ensuring that they do not
interfere unduly with the economic arrangement of
its affairs by the State or its instrumentalities or
lend themselves the instruments to facilitate the
bypassing of the constitutional and statutory
mandates."
In the instant case, the appellant has continued in
service for 14 years because of the interim order granted
by the High Court on 15.9.1992. In the aforesaid case,
the Constitution Bench has observed that merely
because an employee had continued under cover of an
order of the court, which the court described as "litigious
employment", he would not be entitled to any right to be
absorbed or made permanent in the service.
In the instant case, the appellant submitted that he
has been continued in service for 14 years and is entitled
for regularization. This aspect of the matter has also
been specifically dealt with by the said Constitution
Bench in para 45 of the judgment and it was observed as
under:
"45. While directing that appointments,
temporary or casual, be regularized or made
permanent, the courts are swayed by the fact that
the person concerned has worked for some time
and in some cases for a considerable length of
time. It is not as if the person who accepts an
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engagement either temporary or casual in nature,
is not aware of the nature of his employment. He
accepts the employment with open eyes. It may be
true that he is not in a position to bargain\027not at
arms length\027since he might have been searching
for some employment so as to eke out his
livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to
jettison the constitutional scheme of appointment
and to take the view that a person who has
temporarily or casually got employed should be
directed to be continued permanently. By doing
so, it will be creating another mode of public
appointment which is not permissible..."
An argument was made before the Constitution
Bench that the State action in not regularizing the
employees was not fair within the framework of the rule
of law. The Court observed that if the appointments,
which have not been made according to the
constitutional scheme, are regularized, that would
amount to perpetuate an illegality in the matter of public
employment and that would be a negation of the
constitutional scheme adopted by the people of this
country.
Admittedly, the appellant has not been appointed in
terms of the relevant rules or in adherence to Articles 14
and 16 of the Constitution.
In Umadevi’s case (supra), this Court has also
dealt with another aspect of the matter and observed as
under:
"47. 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
cases concerned, in consultation with the Public
Service Commission\005."
The ratio of the aforementioned judgment is that the
courts cannot encourage appointments which are made
outside the constitutional scheme and it is improper for
the courts to give any direction for regularization of the
person who has not been appointed by following the
procedure laid down under Articles 14, 16 and 309 of the
Constitution.
Recently, this Court again reiterated the same
principle in the case of Haryana State Agricultural
Marketing Board v. Subhash Chand & Another
reported in (2006) 2 SCC 794. In this case also, the
employees were appointed on contract basis. The Court
held as under:
"It is the contention of the appellant that the
respondent was appointed during the ’wheat
season’ or ’paddy season’. It is also not in dispute
that the appellant is a statutory body constituted
under the Punjab and Haryana Agriculture
Produce Marketing Board Act. In terms of the
provisions of the said Act, indisputably,
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regulations are framed by the Board laying down
the terms and conditions of services of the
employees working in the Market Committees. A
bare perusal of the offer of appointment clearly
goes to show that the appointments were made on
contract basis. It was not a case where a workman
was continuously appointed with artificial gap of 1
day only. Indisputably, the respondent had been
re-employed after termination of his services on
contract basis after a considerable period(s)."
In a recent judgment in National Fertilizers Ltd.
& Others v. Somvir Singh reported in (2006) 5 SCC
493, this Court had an occasion to examine the matter
after pronouncement of the aforementioned judgment by
the Constitution Bench. The Court in this case has laid
down that it is now trite law that "State" within the
meaning of Article 12 of the Constitution is bound to
comply with the constitutional requirements as
adumbrated in Articles 14 and 16 thereof. When the
Recruitment Rules are made, the employer would be
bound to comply with the same. Any appointment in
violation of such Rules would render them as nullities. It
is also well settled that no recruitment should be
permitted to be made through back door.
In National Fertilizers Ltd. (supra), this Court
referred to the decision in Union Public Service
Commission v. Girish Jayanti Lal Vaghela & Others
reported in (2006) 2 SCC 482, wherein the Court had
observed as under:
"The appointment to any post under the State can
only be made after a proper advertisement has
been made inviting applications from eligible
candidates and holding of selection by a body of
experts or a specially constituted committee whose
members are fair and impartial through a written
examination or interview or some other rational
criteria for judging the inter se merit of candidates
who have applied in response to the advertisement
made. A regular appointment to a post under the
State or Union cannot be made without issuing
advertisement in the prescribed manner which
may in some cases include inviting applications
from the employment exchange where eligible
candidates get their names registered. Any regular
appointment made on a post under the State or
Union without issuing advertisement inviting
applications from eligible candidates and without
holding a proper selection where all eligible
candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16
of the Constitution."
In Banarsidas & Others v. State of U.P. &
Others [AIR 1956 SC 520], a Constitution Bench of this
Court had an occasion to deal with the scope of Article 16
of the Constitution. The Court laid down that Article 16
of the Constitution is an instance of the application of the
general rule of equality laid down in Article 14 with
special reference to the opportunity for appointment and
employment under the Government.
We are able to discern the same ratio from the
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judgment of another Constitution Bench of this Court in
General Manager, Southern Railway & Another v.
Rangachari [AIR 1962 SC 36].
Equal opportunity is the basic feature of our
Constitution. Public employment is repository of the
State power. Certain status and powers emanate from
public employment.
H. M. Seervai, in his celebrated book "Constitutional
Law of India" has mentioned that in fact the principle of
recruitment by open competition was first applied in
India and then applied in England.
Our constitutional scheme clearly envisages
equality of opportunity in public employment. The
Founding Fathers of the Constitution intended that no
one should be denied opportunity of being considered for
public employment on the ground of sex, caste, place of
birth, residence and religion. This part of the
constitutional scheme clearly reflects strong desire and
constitutional philosophy to implement the principle of
equality in the true sense in the matter of public
employment.
In view of the clear and unambiguous constitutional
scheme, the courts cannot countenance appointments to
public office which have been made against the
constitutional scheme. In the backdrop of constitutional
philosophy, it would be improper for the courts to give
directions for regularization of services of the person who
is working either as daily-wager, ad hoc employee,
probationer, temporary or contractual employee, not
appointed following the procedure laid down under
Articles 14, 16 and 309 of the Constitution. In our
constitutional scheme, there is no room for back door
entry in the matter of public employment.
In view of clear enunciation of law laid down in the
recent judgment of the Constitution Bench and other
judgments, we do not find any infirmity in the impugned
judgment of the High Court. The appeal being devoid of
any merit is accordingly dismissed. However, in the facts
and circumstances of the case, we direct the parties to
bear their own costs.