Full Judgment Text
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CASE NO.:
Appeal (civil) 5674 of 2006
PETITIONER:
State of U.P. & Ors
RESPONDENT:
Desh Raj
DATE OF JUDGMENT: 23/11/2006
BENCH:
S.B. SINHA & MARKANDEY KATJU
JUDGMENT:
JUDGMENT
(Arising out of S.L.P. (Civil) No.22947 of 2005)
S.B. SINHA J:
Leave granted.
The State of U.P has herein questioned an interim order
dated 15.1.04 passed by the learned Single Judge of the
Allahabad High Court as also order dated 22.8.2005 passed by
a Division Bench of the said Court affirming the same.
The respondent was said to have been appointed on daily
wages for specific work on Muster Roll purported to be under
the provisions of paragraphs 429, 430 and 431 of the
Financial Hand Book Volume-VI read with paragraph 476 of
the Part-I of the Public Works Department of Manual of orders
in local
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arrangements.
A writ petition was filed by the respondent herein, inter alia,
praying for his regularization. A learned Single Judge of the
Lucknow Bench of the Allahabad High Court on the day of
preliminary hearing while issuing rule passed the following
order:
"In the meantime, the opposite parties no.3
to 5 shall examine the petitioner’s claim for
regularization under the Regularization Rules
2001 and pass appropriate orders. However, his
claim shall not be rejected on the ground of the
post being not available. Supernumerary posts
have to be created to comply with the provisions of
the Regularization Rules and kept alive until
regular posts fall vacant. Till a decision is taken,
the petitioner shall be paid wages equivalent to the
minimum of pay scale admissible to a Mate
working in the department with effect from 1st
January, 2004."
A special appeal filed therein against but the same was
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barred by limitation. The Division Bench, inter alia, on the
said premise refused to interfere with the order passed by the
learned Single Judge stating:
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"In these circumstances, the appeal Court
should not interfere but leave the matter to be
decided by the Hon’ble single Judge on a final
basis. The appeal is thus dismissed on merits and
also on the ground of delay which we are not
minded to condone, although this is illogical, we
thought it better to make our minds known."
A bare perusal of the impugned order should show that the
learned Single Judge for all intent and purport had allowed the
writ petition on the very first day, which in our opinion, was
not justified. It is now well-settled that a relief which can be
granted only at the final hearing of the matter, should not
ordinarily be granted by way of an interim order. It is also
doubtful as to whether the impugned directions could have
been issued even at the final hearing of the matter which
would amount to creation of supernumerary post in purported
compliance of the regularisation rules.
Whatever may be the import and purport of such
regularization rules, in view of the recent Constitution Bench
decision of this Court in Secretary, State of Karnataka & Ors.
vs. Umadevi & Ors. [(2006) 4 SCC 1)], it is now well-settled
that the
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appointments, if made in violation of the constitutional
scheme of equality as enshrined under Articles 14 and 16 of
the Constitution of India, would be rendered illegal and, thus
void ab initio. No regularization rules, therefore, could have
been made by the State of Uttar Pradesh in derogation to the
statutory or constitutional scheme.
Furthermore, the State of Uttar Pradesh must have made
rules in terms of the proviso appended to Article 309 of the
Constitution of India, providing for the mode and manner in
which recruitments are to be made. Such rules have statutory
force.
The learned counsel for the respondents, however, drew our
attention to paragraphs 53 of Umadevi (supra), which reads as
under:
"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 of duly
qualified persons in duly sanctioned vacant posts
might have been made and the employees have
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continued to work for ten years or more but without
the intervention of orders of the courts or of
tribunals. The question of regularization of the
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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 regularize as
one time measure, the services of said irregularly
appointed, who have worked for ten years and more
in duly sanctioned post but not under cover of orders
of the Courts or of Tribunals and should further
ensure that regular recruitments are undertaken to
fill that vacant sanctioned posts that required 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 regularization, if any
already made, but not subjudice, need not be
reopened based on this judgment. but there should
be no further byepassing of the constitutional
requirement and regularizing or making permanent,
those not duly appointed as per the constitutional
scheme."
The observations made in the said paragraph must be read
in the light of the observations made in paragraphs 15 and 16
of the judgment. The Constitution Bench referred to the
decisions of this Court in State of Mysore vs. S.V.
Narayanappa 1967 (1) SCR 128, R.N. Nanjundappa vs. T.
Thimmiah, 1972 (1) SCC 409 and B.N. Nagarajan vs. State of
Karnataka 1979 (4) SCC 507, B.N. Nagarajan is a decision
rendered by a three judge bench
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of this Court in which it has clearly been held that the
regularisation does not mean permanence. A distinction has
clearly been made in those decisions between ’irregularity’ and
’illegality’. An appointment which was made throwing all
constitutional obligations and statutory rules to winds would
render the same illegal whereas irregularity pre supposes
substantial compliance of the rules.
Distinction between irregularity and illegality is explicit. It
has been so pointed out in National Fertilizers Ltd. & Ors. vs.
Somvir Singh (2006) 5 SCC 493) in the following terms:
"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
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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
regularization of the services only of those
employees whose appointments were irregular as
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explained in State of Mysore vs. S.V. Narayanappa,
R.N. Narayandappa vs. T. Thimmiah and B.N.
Nagarajan vs. State of Karnataka wherein this Court
observed: [ Umadevi (3) case 1, SCC p.24. para 16[
"16. In B.N. Nagarajan v. State of Karnataka
this Court clearly held that the words ’regular’ or
’regularization’ 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."
Judged by standards laid down by this Court
in the aforementioned decisions, the appointments
of the respondents are illegal. They do not thus,
have any legal right to continue in service."
{See also State of Madhya Pradesh & Ors. vs.
Yogesh Chandra Dubey & Ors. [ (2006) 8 SCC
67)]
It is not the case of the respondents that they were recruited
in terms of the provisions of the recruitment rules framed
under the proviso appended to Article 309 of the Constitution
of India. In that view of the matter ex facie their appointments
were illegal. We, however, must observe that we have not been
taken through the purport and import or the
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various provisions of the PWD rules to which we have made
reference heretobefore. But in any event, the question of
regularisation of the employees by reason of any policy
decision adopted by the State is impermissible in law. The
learned Division Bench could have dismissed the special
appeal filed by the appellant on the ground of delay. It did not
do so. It purported to uphold the order of the learned Single
Judge even on merits.
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In that view of the matter only we had to enter into the
merits of the matter. The judgment of the High Court, for the
reasons stated hereinbefore suffer from a legal error. It is set
aside accordingly. We are, however, of the opinion that the
respondents should be compensated, as the appeal preferred
by the State of Uttar Pradesh was barred by limitation, We
quantify the same at Rs.10,000/- (Rupees ten thousands
only). We, however, may observe that it would be open to the
State to recover the said amount from the officers who may be
found responsible for causing the delay in preferring the
appeal.
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With the aforementioned directions, the impugned orders
are set aside. The appeal is allowed. No costs.