Full Judgment Text
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CASE NO.:
Appeal (civil) 5607 of 2006
PETITIONER:
Municipal Corporation, Jabalpur
RESPONDENT:
Om Prakash Dubey
DATE OF JUDGMENT: 05/12/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) No. 5065 of 2006)
S.B. Sinha, J.
Leave granted.
Appellant is a Municipal Corporation constituted under the Madhya
Pradesh Municipal Corporation Act, 1956 (for short, ’the Act’).
Indisputably, the terms and conditions of service of its employees are
governed by statutory rules. Yet again in terms of Section 58 of the Act, the
State of Madhya Pradesh may issue directions, which the Corporation is
obliged to follow.
A large number of employees were appointed by the Corporation on
daily wages. The terms and conditions of their appointment are not known.
It is, however, not disputed that recruitment procedure, as laid down by the
rules framed by the State of Madhya Pradesh in terms of the said provisions
of the Act, had not been followed. Industrial disputes were said to have
been raised and different labour courts in their Awards arrived at different
conclusions. The Municipal Corporation purported to have laid down a
policy decision to regularise the services of the employees in terms whereof
those who had been working from a period prior to 31st December, 1983
were to be regularized according to seniority and availability of posts on
fulfilling the eligibility criteria laid down therefor. Several writ petitions
were filed questioning the correctness or otherwise of the said Awards.
When the matter was pending before the High Court, the counsel appearing
on behalf of the Corporation brought to its notice about the said purported
scheme of the State.
Respondent herein was one of the six petitioners in Writ Petition
No.4739 of 1998, which was also disposed of together with other writ
applications pending before the High Court. A contempt petition came to be
filed by the respondent herein alone, although, as noticed hereinbefore, the
scheme involved a large number of workmen who were parties before the
High Court. The said contempt petition was filed, inter alia, on the premise
that the Corporation had been making discrimination amongst the employees
in the matter of regularisation of their services. By reason of the impugned
judgment dated 18.8.2005, having regard to the submissions made before it
on behalf of the parties, the High Court directed :
"Considering the contention of the non-applicant
and after hearing the applicant, it will be appropriate if
respondent is permitted to prepare a fresh gradation list
as per date of engagement of all the daily rated
employees. The gradation list shall also reflect education
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qualifications of all respective employees. Aforesaid
gradation list be prepared by the respondent within a
period of 45 days from today and shall be published on a
notice board of the Municipal Corporation inviting
objection, if any from the employees. A period of 15
days shall be given to the employees to submit their
objection. If any objection is filed by any of the
employees in respect of gradation list, it shall be
considered and decided by the respondent within a period
of two weeks thereafter. Then a final gradation list shall
be published in the notice board of the Corporation.
Thereafter, respondent shall take the exercise for
regularisation of the employees as directed by this Court
in Ramdhar Case (W.P.No.1464/01) Decided on
27.2.2003). Aforesaid exercise shall be completed within
a period of three months.
From the perusal of the order of the Commissioner
dated 10.8.2005, it appears that some of the officers of
the Municipal Corporation joined hands with the
employees and manipulated the gradation list and or
issued regularisation orders which are contrary to the
directions issued by this Court in Ramadhar case. All the
concerned employees who are responsible for the
aforesaid mischief deserve an appropriate action by the
Commissioner, Municipal Corporation, in these
circumstances, Commissioner, Municipal Corporation is
directed to take departmental action against all the erring
officers who have played mischief or played some
malafide rate (sic) in issuing the order of regularisation
which are contrary to the directions issued by this Court
in Ramadhar Case or have manipulated the things for the
purpose of issuing regularisation orders of the employees
who were not eligible for the regularisation. Aforesaid
action shall be taken by the Commissioner, Municipal
Corporation within a period of three months from today.
In case some action is to be taken by the State, an
appropriate step shall be taken by him in this regard
drawing attention of the State within a period of 30 days
from today.
The Commissioner, Municipal Corporation shall
be responsible for the compliance of this order. A
compliance report of this order be sent to the Registry of
this Court within a period as fixed by this Court
hereinabove.
Report filed in a sealed cover is returned to Shri
Sharad Verma, learned counsel."
The Municipal Corporation is, thus, before us.
Mr. Ranjan Mukherjee, learned counsel appearing on behalf of the
appellant would submit that the High Court committed a serious error in
issuing the aforesaid directions, as the purported policy decision dated
31.3.1997, on the basis whereof the High Court passed its order framing a
scheme of regularisation on 27.2.2003, has been superceded by the State by
issuing a circular dated 12.4.2005, inter alia, stating :
"Appointments made on the above daily wage were not
made keeping in view the provisions of Departmental
Recruitment Rules and other reservation provisions,
rather employees were engaged as per the requirement of
the work. Supreme Court has made the observation in
regard to the civil posts of daily wage employees/workers
and regularisation in the services in the Case
No.3492/1996 titled State of Himachal Pradesh Vs.
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Suresh Kumar Verma and such regularisation had been
deemed violation of Articles 14 and 16 of the
Constitution. It has also been observed in the above case
by the Supreme Court that appointment made on the
basis of daily wages could not be deemed the
appointment made as per the relevant recruitment rules
against the Civil Posts and appointment could be made
against the Civil Posts only after following the procedure
of recruitment as per the relevant recruitment rules.
Above ruling laid down by the Supreme Court has
already been submitted to all the Departments/
Appointing Authorities vide even numbered memo dated
01.11.2004 of this Department."
The learned counsel would contend that having regard to the various
decisions of this Court and in particular, the Constitution Bench Judgment in
Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors. [(2006) 4
SCC 1] the impugned judgment cannot be sustained.
Mr. Ravindra Shrivastava, learned Senior Counsel appearing on
behalf of the respondent, on the other hand, would contend that the High
Court issued direction to regularise the services of the workmen, keeping in
view different Awards passed in their favour by the Labour Court as also the
policy decision adopted by the appellant itself. It was further submitted that
in this case the directions contained in paragraph 53 of the decision of the
issued by the Constitution Bench of this Court in Umadevi (supra), shall be
applicable.
Appellant is a "State" within the meaning of Article 12 of the
Constitution of India. It, being a statutory authority, in the matter of
recruitment of employees is bound by the constitutional provisions contained
in Articles 14 and 16 of the Constitution as also the rules and regulations
framed by it. Indisputably, it did not have the last say as all appointments
were subject to approval of the State of Madhya Pradesh, whose decision
was to be final. Indisputably again, the concerned employees were recruited
in terms of the extant rules. Prior to their appointment, no advertisement has
been issued. The employment exchange had not been notified in regard to
the existing vacancy. In short, the principle of ’public employment’ laid
down under Article 16 of the Constitution of India has not been complied
with. Regularisation, as is well known, is not a mode of appointment.
Regularisation, again indisputably, does not mean permanence. However,
having noticed that different Benches of this Court had been passing
different orders, in Secretary, State of Karnataka & Ors. vs. Umadevi (2)
& Ors. [(2006) 4 SCC 44 : (2003) 10 SCALE 388], a Three Judge Bench
referred the matter to the Constitution Bench. In Umadevi (3) (supra), the
Constitution Bench held :
"During the course of the arguments, various
orders of the courts either interim or final were brought
to our notice. The purport of those orders more or less
was the issue of directions for continuation or absorption
without referring to the legal position obtaining. Learned
counsel for the State of Karnataka submitted that chaos
has been created by such orders without reference to the
legal principles and it is time that this Court settled the
law once and for all so that in case the Court finds that
such orders should not be made, the courts, especially,
the High Courts would be precluded from issuing such
directions or passing such orders. The submission of
learned counsel for the respondents based on the various
orders passed by the High Court or by the Government
pursuant to the directions of the Court also highlights the
need for settling the law by this Court. The bypassing of
the constitutional scheme cannot be perpetuated by the
passing of orders without dealing with and deciding the
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validity of such orders on the touchstone of
constitutionality. While approaching the questions falling
for our decision, it is necessary to bear this in mind and
to bring about certainty in the matter of public
employment. The argument on behalf of some of the
respondents is that this Court having once directed
regularisation in Dharwad case all those appointed
temporarily at any point of time would be entitled to be
regularised since otherwise it would be discrimination
between those similarly situated and in that view, all
appointments made on daily wages, temporarily or
contractually, must be directed to be regularised.
Acceptance of this argument would mean that
appointments made otherwise than by a regular process
of selection would become the order of the day
completely jettisoning the constitutional scheme of
appointment. This argument also highlights the need for
this Court to formally lay down the law on the question
and ensure certainty in dealings relating to public
employment. The very divergence in approach in this
Court, the so-called equitable approach made in some, as
against those decisions which have insisted on the rules
being followed, also justifies a firm decision by this
Court one way or the other. It is necessary to put an end
to uncertainty and clarify the legal position emerging
from the constitutional scheme, leaving the High Courts
to follow necessarily, the law thus laid down."
Referring to a large number of decisions which have been rendered by
different Benches of this Court from time to time, the Constitution Bench
categorically opined :
"While directing that appointments, temporary or
casual, be regularised 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
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 \026 not at arms length \026 since 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. If
the court were to void a contractual employment of this
nature on the ground that the parties were not having
equal bargaining power, that too would not enable the
court to grant any relief to that employee. A total
embargo on such casual or temporary employment is not
possible, given the exigencies of administration and if
imposed, would only mean that some people who at least
get employment temporarily, contractually or casually,
would not be getting even that employment when
securing of such employment brings at least some
succour to them. After all, innumerable citizens of our
vast country are in search of employment and one is not
compelled to accept a casual or temporary employment if
one is not inclined to go in for such an employment. It is
in that context that one has to proceed on the basis that
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the employment was accepted fully knowing the nature
of it and the consequences flowing from it. In other
words, even while accepting the employment, the person
concerned knows the nature of his employment. It is not
an appointment to a post in the real sense of the term.
The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot
be considered to be of such a magnitude as to enable the
giving up of the procedure established, for making
regular appointments to available posts in the services of
the State. The argument that since one has been working
for some time in the post, it will not be just to discontinue
him, even though he was aware of the nature of the
employment when he first took it up, is not (sic) one that
would enable the jettisoning of the procedure established
by law for public employment and would have to fail
when tested on the touchstone of constitutionality and
equality of opportunity enshrined in Article 14 of the
Constitution."
By way of clarification, however, in paragraph 53 of its judgment this
Court clarified :
"One aspect needs to be clarified. There may be
cases 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
above referred 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."
The question which, thus, arises for consideration, would be : Is there
any distinction between ’irregular appointment’ and ’illegal appointment’?
The distinction between the two terms is apparent. In the event the
appointment is made in total disregard of the constitutional scheme as also
the recruitment rules framed by the employer, which is State within the
meaning of Article 12 of the Constitution of India, the recruitment would be
an illegal one; whereas there may be cases where, although, substantial
compliance of the constitutional scheme as also the rules have been made,
the appointment may be irregular in the sense that some provisions of the
rules might not have been strictly adhered to.
In R.N. Nanjundappa vs. T. Thimmiah & Anr. [(1972) 1 SCC 409],
this Court held :
"The contention on behalf of the State that a rule
under Article 309 for regularisation of the appointment of
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a person would be a form of recruitment read with
reference to power under Article 162 is unsound and
unacceptable. The executive has the power to appoint.
That power may have its source in Article 162. In the
present case the rule which regularised the appointment
of the respondent with effect from February 15, 1958,
notwithstanding any rules cannot be said to be in exercise
of power under Article 162. First, Article 162 does not
speak of rules whereas Article 309 speaks of rules.
Therefore, the present case touches the power of the State
to make rules under Article 309 of the nature impeached
here. Secondly when the Government acted under Article
309 the Government cannot be said to have acted also
under Article 162 in the same breath. The two articles
operate in different areas. Regularisation cannot be said
to be a form of appointment. 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 dot 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." [Emphasis supplied]
Yet again, in B.N. Nagarajan & Ors. vs. State of Karnataka & Ors.
[(1979) 4 SCC 507], this Court followed the said dicta stating :
"Apart from repelling the contention that
regularisation connotes permanence, these observations
furnish the second reason for rejection of the argument
advanced on behalf of the promotees and that reason is
that when rules framed under Article 309 of the
Constitution of India are in force, no regularisation is
permissible in exercise of the executive powers of the
Government under Article 162 thereof in contravention
of the rules. The regularisation order was made long after
the Probation Rules, the Seniority Rules and the
Recruitment Rules were promulgated and could not
therefore direct something which would do violence to
any of the provisions thereof. Regularisation in the
present case, if it meant permanence operative from
November 1, 1956, would have the effect of giving
seniority to promotees over the direct recruits who, in the
absence of such regularisation, would rank senior to the
former because of the Seniority Rules read with the
Probation Rules and may in consequence also confer on
the promotees a right of priority in the matter of sharing
the quota under the Recruitment Rules. In other words,
the regularisation order, in colouring the appointments of
promotees as Assistant Engineers with permanence
would run counter to the rules framed under Article 309
of the Constitution of India. What could not be done
under the three sets of Rules as they stood, would thus be
achieved by an executive fiat. And such a course is not
permissible because an act done in the exercise of the
executive power of the Government, as already stated,
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cannot override rules framed under Article 309 of the
Constitution."
This aspect of the matter has been considered in National Fetilizers
Ltd. & Ors. vs. Somvir Singh [(2006) 5 SCC 493], stating :
"The contention of the learned counsel appearing on
behalf of the respondents that the appointments were
irregular and not illegal, cannot be accepted for more
than one reason. They were appointed only on the basis
of their applications. The Recruitment Rules were not
followed. Even the Selection Committee had not been
properly constituted. In view of the ban on employment,
no recruitment was permissible in law. The reservation
policy adopted by the appellant had not been maintained.
Even cases of minorities had not been given due
consideration.
The Constitution Bench thought of directing
regularisation of the services only of those employees
whose appointments were irregular as explained in State
of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T.
Thimmiah and B.N. Nagarajan v. State of Karnataka
wherein this Court observed: [Umadevi (3) case, SCC p.
24, para 16]
"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.""
{See also State of Gujarat & Anr. vs. Karshanbhai K. Rabari &
Ors. [(2006) 6 SCC 21].}
Yet, recently in Principal, Mehar Chand Polytechnic & Anr. vs.
Anu Lamba & Ors. [(2006) 7 SCC 161], it was held :
"The respondents did not have legal right to be
absorbed in service. They were appointed purely on
temporary basis. It has not been shown by them that
prior to their appointments, the requirements of the
provisions of Articles 14 and 16 of the Constitution had
been complied with. Admittedly, there did not exist any
sanctioned post. The Project undertaken by the Union of
India although continued for some time was initially
intended to be a time-bound one. It was not meant for
generating employment. It was meant for providing
technical education to the agriculturists. In the absence
of any legal right in the respondents, the High Court,
thus, in our considered view, could not have issued a writ
of or in the nature of mandamus."
This Court, in Surinder Prasad Tiwari vs. U.P. Rajya Krishi
Utpadan Mandi Parishad & Ors. [(2006) 7 SCC 684), held :
"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
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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 regularisation 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."
We are, however, not oblivious that another Division Bench of this
Court in Mineral Exploration Corpn. Employees’ Union vs. Mineral
Exploration Corpn. Ltd. & Anr. [(2006) 6 SCC 310], to which our
attention has been drawn by Mr. Shrivastava, held :
"We, therefore, direct the Tribunal to decide the
claim of the workmen of the Union strictly in accordance
with and in compliance with all the directions given in
the judgment by the Constitution Bench in Secy., State of
Karnataka v. Umadevi (3) and in particular, paras 53 and
12 relied on by the learned Senior Counsel appearing for
the Union. The Tribunal is directed to dispose of the
matter afresh within 9 months from the date of receipt of
this judgment without being influenced by any of the
observations made by us in this judgment. Both the
parties are at liberty to submit and furnish the details in
regard to the names of the workmen, nature of the work,
pay scales and the wages drawn by them from time to
time and the transfers of the workmen made from time to
time, from place to place and other necessary and
requisite details. The above details shall be submitted
within two months from the date of the receipt of this
judgment before the Tribunal."
The said directions were issued keeping in view the peculiar facts,
wherewith we are not concerned. The attention of this Court furthermore
was not drawn to the judgment of this Court rendered in R.N. Nanjundappa
(supra), State of Mysore & Anr. vs. S.V. Narayanappa [AIR 1967 SC
1071] and B.N. Nagarajan (supra).
We may notice that the decision of this Court in B.N. Nagarajan
(supra) was rendered by a Three Judge Bench. Evidently, the attention of
the Court had also not been drawn to the decision of this Court in National
Fetilizers Ltd. (supra).
There is another aspect of the matter which cannot be lost sight of.
The Corporation may be bound by the decision of the High Court, but it was
also bound by the direction of the State of Madhya Pradesh. If it had
violated the direction of the State, in terms whereof its earlier policy
decision stood reversed, it cannot be said to have committed a contempt of
court. The question recently came up for consideration in State of Orissa &
Anr. vs. Aswini Kumar Baliar Singh [(2006) 6 SCC 759], wherein a
Division Bench of this Court held that the Court is primarily concerned with
the question of contumacious conduct of the party who is alleged to have
committed default in complying with the directions in the judgment and
order. It was held :
"In the instant case, the action taken by the
respondent in purported violation of the Court’s
order arose owing to a subsequent cause of action,
namely, orders passed by the State of Orissa and
unless the said orders were set aside, the Inspector
of Schools can be said to have flouted the order of
the High Court......."
We are in this case not called upon to consider the implication of the
Awards, which might have been passed in favour of the workmen. The
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Division Bench, by reason of the impugned judgment had issued directions
in exercise of its jurisdiction under Section 12 of the Contempt of Courts
Act, 1971, without arriving at a finding as to how the Corporation has
violated its order. It issued directions which are contrary to or inconsistent
with the directions issued by a learned Single Judge by an order dated
27.2.2003.
The judgment of the Division Bench is, thus, subject to correction by
this Court both under Article 136 of the Constitution of India as also under
Section 19 of the Contempt of Court Act.
Recently in R. v. Serumaga [2005 (2) All ELR 160], it was opined :
"Section 13 of the 1960 Act provides as follows :
’(1) Subject to the provisions of this section, an
appeal shall lie under this section from any order or
decision of a court in the exercise of jurisdiction to
punish for contempt of court (including criminal
contempt); and in relation to any such order or decision
the provisions of this section shall have effect in
substitution for any other enactment relating to appeals in
civil or criminal proceedings.
(2) An appeal under this section shall lie in any
case at the instance of the defendant and, in the case of an
application for committal or attachment, at the instance
of the applicant; and the appeal shall lie ... (bb) from an
order or decision of the Crown Court to the Court of
Appeal ...
(3) The court to which an appeal is brought under
this section may reverse or vary the order or decision of
the court below; and make such other order as may be
just ...’
We have considered two interpretations of s 13(1).
The narrow interpretation is to the effect that it is not
triggered until the contemnor has been convicted of, and
sentenced for, the contempt. The broad interpretation is
that the language ’any order or decision ... in the exercise
of jurisdiction to punish for contempt’ is sufficiently
wide to relate also to orders or decisions made in the
course of proceedings which may result in a conviction
of and sentence for contempt. But we have come to the
conclusion that the broad interpretation is the correct one.
The statutory language permits it. It provides a remedy
in a case of unjustifiably prolonged custody, and it does
so without impinging on cases where the allegation is of
an offence other than contempt of court. Moreover, there
are exceptional features which surround summary
proceedings for contempt which, as the authorities make
clear, demand an enlarged process of judicial scrutiny...."
{See also Modi Telefibres Ltd. & Ors. vs. Sujit Kumar Choudhary
& Ors. [2005 (7) SCC 40] and see also Vivek Sarin vs. Multi Metal
Udyog [(2005) 11 SCC 495].}
We, therefore, for the reasons aforementioned, are unable to uphold
the impugned order which is accordingly set aside.
The appeal is allowed with the aforementioned observations and
directions. No costs.