Full Judgment Text
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CASE NO.:
Appeal (civil) 8563 of 2002
PETITIONER:
Kendriya Vidyalaya Sangathan & Ors
RESPONDENT:
L.V. Subramanyeswara & Anr
DATE OF JUDGMENT: 10/05/2007
BENCH:
S.B. Sinha & C.K. Thakker
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NO. 8559 OF 2002
AND
CIVIL APPEAL NO. 8560-8561 OF 2002
AND
CIVIL APPEAL NO. 8562 OF 2002
S.B. SINHA, J.
1. Appellant is an autonomous body. It is a society registered under the
Societies Registration Act. Government of India, Ministry of Human
Resource Development, however, exercises control over it. The recruitment
of teachers and other staff is governed by rules known as Appointment,
Promotion, Security etc. Rules, 1971. Rules were framed by the Board of
Governors of the Appellant, the relevant provisions whereof are as under:-
4. Authorised permanent strength and
temporary strength of the Service :-
(i) The authorised permanent and temporary
strength of the various grades of the service on the
appointed day shall be as specified in Schedule I.
(ii) After the appoined day, the authorised
permanent and temporary strength of the various
grades of the service shall be such as may, from
time to time, be determined by or under the
authority of the Board.
Provided that the competent authority may
make temporary additions to any grade of the
service as found necessary in the interest of the
work of the Sangathan.
6. Recruitment
(i) The method of filling up of the posts in the
various grades of the Service, age limit and other
qualifications relating thereto shall be as specified
in Schedule I (In case of posts not covered in
Schedule I, procedure, qualifications and similar
matters shall be determined by the Commissioner).
Provided that the upper age limit prescribed for
direct recruitment may be relaxed in the case of
candidates belonging to the Scheduled
Castes/Scheduled Tribes and other specified
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categories of persons in accordance with the orders
issued in this behalf from time to time by the
Central Government.
(ii) Appointments by direct recruitment or by
promotion of departmental candidates shall be
made, except when there are special reasons to be
recorded in writing with the approval also of the
Chairman, in the order in which the names of
eligible candidates are included in the Select Panel
of the appropriate grade prepared according to the
procedure laid down in Rule 7.
7. Preparation of Select Panels
(1) In the case of posts being filled up by direct
recruitment the appropriate selection authority
shall, after test or interview or both, as the case
may be, place the candidates considered suitable
for appointment to the particular grade/post in a
select panel in the order of their merit.
(2) in the case of posts being filled up by
promotion on the principle of seniority subject to
the rejection of the unfit, the Departmental
Promotion Committee or other selecting
authorities will first decide the field of choice i.e.
the number of eligible employees who are to be
considered for inclusion in the Select Panel. From
among such employees those who are considered
unfit for promotion are to be excluded. The
"Select Panel" will then be prepared by placing the
names of the remaining employees without
disturbing the seniority interest.
(3) In the case of promotion on the basis of the
seniority-cum-merit or on the principle of merit
with due regard to seniority the field of choice will
first be decided and the employees considered
unfit excluded in the same way as in the sub-rule
(2) above. The remaining employees are then to
be classified as "outstanding" "very good" and
"good" on the basis of merit, as determined by
their respective records of service and also test or
interview if considered necessary. The "Select
Panel" will thereafter be prepared by placing the
names in the order of those categories, without
disturbing the seniority interest within each
category.
(4) Where the posts are to be filled up partly by
direct recruitment and partly by promotion, the
select panel will be prepared as follows:-
The appropriate selecting authority will first
prepare two separate select panels for the two
categories in accordance with the procedure laid
down above. The required panel will then be
drawn up by combining these two separate panels
according to the quota of posts reserved for each
category. That is to say, the names of direct
recruits will appear first, followed by the
promotees, in proportion to the respective quota
reserved for them.
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9. Ad-hoc Appointment
(1) Notwithstanding anything contained in rule
6 & 7 when an employee included in the select
panel is not available or where such a select panel
has not yet been prepared and the appointing
authority considers it necessary and expedient to
do so, a vacancy in any grade of the service may
be filled on ad-hoc and temporary basis by the
appointment of a person or persons otherwise
eligible for appointment thereto :
(i) for a period not exceeding six months ; or
(ii) for the period for which a select panel in
respect of the particular post/grade is not prepared
as per rule 7, whichever is less.
(2) Every appointment under sub-rule (1) shall
be made only as a temporary arrangement and no
such appointment shall be deemed to confer on the
appointee any right or claim to the respective
grade/post or to seniority in that grade.
2. Teachers in terms of the said rules are appointed on All India basis.
To cater the need of the students and the schools run by appellant throughout
the country which are about 854 in number, the services of the regular
teachers are liable to transfer all over India. Advertisements were issued by
the appellant in some local newspapers inter alia for its Hyderabad
Institution for primary teachers on leave vacancies. Pursuant thereto or in
furtherance thereof the names of the respondents were registered with the
local employment exchanges and not in the Central Employment Exchange.
They had been admitted intermittently. One of the terms of the offer of
appointment issued in their favour was that the same would not confer any
right upon them to claim regular appointment. It was furthermore
categorically stipulated that they were appointed as stop-gap arrangement for
a particular period in the academic year. They were selected, however, not
by a regular selection committee. Praying for the regularisation, they filed
writ petitions before the Andhra Pradesh High Court. Interim orders were
passed in terms whereof they continued in service. Appellant Society having
been notified in terms of sub-Section (2) of Section 14 of the Administrative
Tribunals Act in terms of a notification dated 1.1.1999; all the writ petitions
were transferred to the Central Administrative Tribunal.
3. The Tribunal dismissed the said transfer applications. Noticing that
there had been no regular vacancies, it was held:-
"13. Admittedly, all the applicants were appointed on
adhoc basis for short spells by the Assistant
Commissioner, clearly stipulating that such appointment
would not confer upon them any right to the post,
considering candidates sponsored by the local
employment exchange. It is also brought out that the
various orders passed by the High Court by which
applicants were paid same salary as is paid to the regular
employees and were also directed to continue. In view of
those orders, the applicants were sought to be continued.
It is however not in dispute that the applicants were not
regularly appointed by the Selection Committee after
considering candidates sponsored by the Central
Employment Exchange as per the appointment procedure
contained in the rules."
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4. Aggrieved by and dissatisfied thereagainst, the respondents filed writ
petitions.
5. The High Court, however, in its impugned judgment opined that
although the respondents have continued in the services intermittently and
with artificial breaks, but till their services were terminated, they have
worked continuously and as such their services would be regularized in view
of the decision of this Court in Ashwani Kumar and Others v State of Bihar
and Others [(1997) 2 SCC 1].
6. The High Court noticed that the selection of the respondents were not
regular selection within the meaning of Rule 7 of Appointment Rules.
Despite the same, it thought fit to rely upon a Division Bench decision of the
Jammu and Kashmir High Court in LPA(SW) No. 199 of 1995. It was
directed:-
"...The petitioners are accordingly declared to be in
service of the respondents herein notwithstanding the
impugned proceedings dated 10.12.2001 under which
they were replaced on the ostensible ground of regular
incumbents joining the service of the respondent
school. In the circumstances the impugned
proceedings dated 10.12.2001 are set aside. The second
respondent Assistant Commissioner, Kendriya
Vidyalaya Sangathan Secunderabad is directed to give
appropriate posting orders to the petitioners herein
within four weeks from the date of receipt of a copy of
this order."
7. Mr. S. Rajappa, learned counsel appearing on behalf of the appellant
in support of this appeal would contend:-
(i) That respondents having recruited in terms of Rule 9 of Rules by way
of a temporary arrangement to meet the exigencies of work and they have
continued as ad hoc/part time /contractual employees inter alia by reason of
the interim orders passed by the Court.
(ii) Their services should not have been directed to be regularized.
(iii) The respondent’s case do not come within the purview of the
Constitution Bench decision of this Court in Secretary, State of Karnataka
and Others v Umadevi (3) and Others [(2006) 4 SCC 1].
8. Mr. K. Ramakrishna Reddy, learned senior counsel, Mr. P.S.
Narasimha, learned counsel on the other hand would submit that the
respondents have worked for a long period and having the requisite
qualifications, the services of the respondents could not have been
discontinued by the appellant. The entry of the respondents in the services
being not a back door one and as prior thereto, their names were sponsored
by the employment exchange and they have been selected by a selection
committee. The Rule of Equality in public employment and equal
opportunity as emphasized by this Court in Umadevi (supra) as also the rule
of reservation and the rules framed by the appellant having been satisfied,
their appointment satisfies the test laid down in Umadevi (supra). In any
event, the exceptions carved out in Umadevi (supra) clearly apply in the
instant case as their selection in terms of Rule 9 of the Rules should be
treated to be only irregular and not illegal.
9. As in case of one of the respondents, the judgment of the High Court
directing the appellant to pay regular scale of pay having attained finality as
the special leave petition filed thereagainst has been dismissed. The
impugned judgment should not be interfered with. In any event, this Court
taking into consideration the human element of the matter should not
interfere with the impugned judgment.
10. Had such regular vacancies been created, appellants would have been
directed to be appointed on All India Basis. Respondents did not get their
names registered in the Central Employment Exchange. Keeping in view
the nature of the job and in particular that the posts are transferable
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throughout the country, an opportunity within the meaning of Articles 14
and 16 of the Constitution of India would mean an opportunity to all who are
eligible therefor. Advertisement was issued for a limited purpose, namely,
for leave vacancies, local employment exchanges were contacted only for
filling of such posts and not regular posts.
11. Selections were held only at the local level and not on All India Level.
12. It is true that they had continued in service for such a long time, but
they have been thrust upon the appellant by reason of interim orders passed
by the High Court. The Constitution Bench of this Court in Umadevi
(supra) held:-
15. Even at the threshold, it is necessary to keep in mind
the distinction between regularisation and conferment of
permanence in service jurisprudence. In State of Mysore
v. S.V. Narayanappa this Court stated that it was a
misconception to consider that regularisation meant
permanence. In R.N. Nanjundappa v. T. Thimmiah this
Court dealt with an argument that regularisation would
mean conferring the quality of permanence on the
appointment. This Court stated: (SCC pp. 416-17, para
26)
"Counsel on behalf of the respondent contended that
regularisation would mean conferring the quality of
permanence on the appointment whereas counsel on
behalf of the State contended that regularisation did not
mean permanence but that it was a case of regularisation
of the rules under Article 309. Both the contentions are
fallacious. If the appointment itself is in infraction of the
rules or if it is in violation of the provisions of the
Constitution illegality cannot be regularised. Ratification
or regularisation is possible of an act which is within the
power and province of the authority but there has been
some non-compliance with procedure or manner which
does not go to the root of the appointment. Regularisation
cannot be said to be a mode of recruitment. To accede to
such a proposition would be to introduce a new head of
appointment in defiance of rules or it may have the effect
of setting at naught the rules."
16. In B.N. Nagarajan v. State of Karnataka this Court
clearly held that the words "regular" or "regularisation"
do not connote permanence and cannot be construed so
as to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone any
procedural irregularities and are meant to cure only such
defects as are attributable to methodology followed in
making the appointments. This Court emphasised that
when rules framed under Article 309 of the Constitution
are in force, no regularisation is permissible in exercise
of the executive powers of the Government under Article
162 of the Constitution in contravention of the rules.
These decisions and the principles recognised therein
have not been dissented to by this Court and on principle,
we see no reason not to accept the proposition as
enunciated in the above decisions. We have, therefore, to
keep this distinction in mind and proceed on the basis
that only something that is irregular for want of
compliance with one of the elements in the process of
selection which does not go to the root of the process,
can be regularised and that it alone can be regularised
and granting permanence of employment is a totally
different concept and cannot be equated with
regularisation.
53. One aspect needs to be clarified. There may be cases
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where irregular appointments (not illegal appointments)
as explained in S.V. Narayanappa, R.N. Nanjundappa
and B.N. Nagarajan and referred to in para 15 above, of
duly qualified persons in duly sanctioned vacant posts
might have been made and the employees have continued
to work for ten years or more but without the intervention
of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may
have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred
to and in the light of this judgment. In that context, the
Union of India, the State Governments and their
instrumentalities should take steps to regularise as a one-
time measure, the services of such irregularly appointed,
who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of the
courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being
now employed. The process must be set in motion within
six months from this date. We also clarify that
regularisation, if any already made, but not sub judice,
need not be reopened based on this judgment, but there
should be no further bypassing of the constitutional
requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme.
54. It is also clarified that those decisions which run
counter to the principle settled in this decision, or in
which directions running counter to what we have held
herein, will stand denuded of their status as precedents.
13. It is therefore, not correct to contend that in the aforementioned
backdrop of events, respondents satisfy the tests of equality, reservation or
rule of law as adumberated in Umadevi (supra). Reliance placed on
paragraph 53 of Umadevi (supra) is also mis-placed. What would be meant
by the term irregularity must be understood in the context of the decision of
this Court in Punjab Water Supply and Sewerage Board v Ranjodh Singh &
Ors [2006 (13) SCALE 426]. The said paragraph has been explained by
this Court in Punjab State Warehousing Corp., Chandigarh v Manmohan
Singh & Anr. [2007 (3) SCALE 401].
14. Furthermore, the respondents even did not complete the period of 10
years without intervention by the Court, they would not have been in service
for more than 10 years but for intervention of the High Court, they had been
continued in service in terms of the interim order passed by the High Court.
15. So far as the submission of the learned counsel that in the case of
some of the respondents, the High Court had applied the principle of equal
pay for equal work. That aspect of the matter has also been considered by a
Constitution Bench in Umadevi (supra):-
"44. The concept of "equal pay for equal work" is
different from the concept of conferring permanency on
those who have been appointed on ad hoc basis,
temporary basis, or based on no process of selection as
envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal
work and has laid down the parameters for the
application of that principle. The decisions are rested on
the concept of equality enshrined in our Constitution in
the light of the directive principles in that behalf. But
the acceptance of that principle cannot lead to a
position where the court could direct that appointments
made without following the due procedure established
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by law, be deemed permanent or issue directions to
treat them as permanent. Doing so, would be negation
of the principle of equality of opportunity. The power to
make an order as is necessary for doing complete
justice in any cause or matter pending before this Court,
would not normally be used for giving the go-by to the
procedure established by law in the matter of public
employment. Take the situation arising in the cases
before us from the State of Karnataka. Therein, after
Dharwad decision the Government had issued repeated
directions and mandatory orders that no temporary or
ad hoc employment or engagement be given. Some of
the authorities and departments had ignored those
directions or defied those directions and had continued
to give employment, specifically interdicted by the
orders issued by the executive. Some of the appointing
officers have even been punished for their defiance. It
would not be just or proper to pass an order in exercise
of jurisdiction under Article 226 or 32 of the
Constitution or in exercise of power under Article 142
of the Constitution permitting those persons engaged, to
be absorbed or to be made permanent, based on their
appointments or engagements. Complete justice would
be justice according to law and though it would be open
to this Court to mould the relief, this Court would not
grant a relief which would amount to perpetuating an
illegality."
16. Direction to regularize the services of the respondents in view of the
authority by Constitution Bench in Umadevi (supra), therefore cannot be
said to be of any significance so as to deny the relief to the appellant.
17. Ashwani Kumar (supra) has also been noticed by the Constitution
Bench. A distinction furthermore must be noted in mind between
regularisation and permanency, the regularisation does not mean
permanency. In A. Umarani v Registrar, Cooperative Societies and Others
[(2004) 7 SCC 112,], this Court had made the distinction, it was furthermore
held:-
"34. Sub-rule (25) of Rule 149 provides that the
principle of reservation of appointment for
Scheduled Castes/Scheduled Tribes and Backward
Classes followed by the Government of Tamil
Nadu for recruitment to the State shall apply.
35. No appointment, therefore, can be made in
deviation of or departure from the procedures laid
down in the said statutory rules.
36. The terms and conditions of services are also
laid down in the said rules."
18. For the reasons aforementioned, we are of the opinion that the
impugned judgment cannot be sustained. The Appeals are allowed. The
impugned judgment is set aside. In the facts and circumstances of this case,
there shall be no order as to costs.