Full Judgment Text
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CASE NO.:
Appeal (civil) 2319 of 2007
PETITIONER:
Post Master General, Kolkata & Ors
RESPONDENT:
Tutu Das (Dutta)
DATE OF JUDGMENT: 02/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P. (C) No. 21448 of 2005]
S.B. SINHA, J.
1. Leave granted.
2. Respondent had been working as a substitute to a regular EDA as and
when he would remain on leave. She allegedly had completed a period of
240 days in one year prior to 7.5.1985. Respondent joined her services on
1.10.1980. She was disengaged on 10.9.1987.
3. On or about 12th / 13th November, 1987, a circular was issued stating
that although the substitutes of EDA were being engaged on an ad-hoc basis
who were required to perform their duties only for few hours a day, despite
absorption of the regular incumbents, they had been continued as daily rated
mazdoor and thus, irregular substitutes who had been working as such prior
to 7.5.1985 may be considered for appointment as EDAs in vacant posts,
even if they had not been recruited through Employment Exchanges
provided they were found eligible therefor in all respects statin:-
"....It has been decided as one time exception, that
such daily rated mazdoors irregular substitutes, who
have been working as such from a date prior to 7th
May, 1985, the date of issue of O.M. No.
49014/18/84-Estt.(C) dtd. 07.5.85 from the Govt. of
India (Department of Personnel & training) to tally
banning appointment of casual workers otherwise
than through employment Exchanges may be
considered for appointment as EDAs in vacant posts
even if they were not recruited through Employment
Exchanges provided they are eligible for such
appointment in all respects. It is reiterated that this
concession has not been and cannot be given to the
daily rated/casual workers from 07.5.1985 from
which date the nominees of the Employment
Exchange are only to be considered for such
appointment......"
4. Respondent filed an original application before the Central
Administrative Tribunal claiming absorption in the post of EDA relying on
or on the basis of the said circular as also claiming parity in terms of an
order passed by the Central Administrative Tribunal, Calcutta Bench in O.A.
No. 731 of 1998, Niva Ghosh and Others v Union of India and Others which
although was initially dismissed but a direction was issued in a review
proceedings in terms of an order dated 30.9.1997 directing;
"This review petitioners shall be given an
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opportunity by the respondents to produce
documents in their possession in support of their
period of service claimed to have been rendered by
them within 12 weeks from the date of
communication of this order and if such documents
are produced, the same shall be checked and verified
by the respondent authorities with reference to
documents in their office and upon such verification,
if it is found that the petitioners or any of them had
rendered 240 days of service as substitute ED prior
to 7.5.1985, the benefit of the letter dated
13.11.1987 of the PMG, West Bengal Circle, shall
be extended to them. In case it is found by the
respondent authorities after verification of
documents, if any, produced by the petitioner, they
or any of them did not work for 240 days as
substitute ED prior to 7.5.1985, a reasoned order
shall be passed and communicated to the petitioners
as soon as such an order is passed."
5. Whereas pursuant to the said direction, although the case of Niva
Ghosh was allegedly considered, her case was not, whereupon a contempt
petition was filed. In the said contempt proceedings, a stand was taken by
the appellant that she had not completed a period of 240 days in a year
before the said cut off date. The said contempt petition was dismissed with
liberty to the respondent to file a fresh original application. Pursuant to the
said observations, Respondent filed an application before the Central
Administrative Tribunal, Calcutta Bench, Calcutta which was marked as
O.A. No. 484/2002.
6. By a judgment and Order dated 18.12.2003, the Central
Administrative Tribunal directed;
"Therefore, in the aforesaid fact situation, we direct
the respondent no. 2 to examine the available records
along with certificate granted to the applicant as
regards the number of days she had purported to have
worked, in consultation with the notification and
orders passed by the department from time to time and
to ascertain whether she had completed the requisite
number of days/ of work for regularisation in service.
In case she is found to have completed 240 days of
work, it is needless to mention that she should also be
regularized."
7. Appellant herein filed a writ petition thereagainst which has been
dismissed by reason of the impugned judgment by a Division Bench of the
Calcutta High Court; proceeding on the premise that the respondent had
been working since 1987. Relying or on the basis of a purported
observations made by this Court in Union of India and Others v Debika
Guha and Others [(2000) 9 SCC 416] as also the said purported circular
dated 12th /13th November, 1987, the High Court directed as under:-
"Considering the aforementioned we find that
admittedly law is settled by the apex Court holding
that even in such case of the petitioner, on
admitted facts the long period of service entitles
the employee to get regularisation. We also found
that circular issued by the authorities long back in
the year 1987 recognised right of regularisation of
an employee in case of a continuous working
inspite of irregularities in particular factual
circumstances. It is admitted that the case of the
present private Respondent is also governed by the
said circular. In such circumstances, we find that
the direction given by the learned tribunal for
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consideration of the case of the private Respondent
here to be considered for ascertaining whether she
had rendered service for a long period, does not
require any interference. The complaint of the
authorities as petitioners here on the ground that
the period of 240 days has no relevance through
mentioned in the order of the learned Tribunal,
also does not require any interference as we find
that the said period is also a substantial long period
in the facts and circumstances of the case."
8. Mr. Rajiv Dutta, learned senior counsel appearing on behalf of the
appellant would submit that the impugned judgment cannot be sustained as
question of regularisation of the services of the respondent did not arise in
view of the decisions of this Court.
9. Mr. Pijush K. Roy, learned counsel appearing on behalf the
respondent, on the other hand, submitted that having regard to the decisions
of this Court in Debika Guha (supra) as also the fact that she had been
discriminated against vis-‘-vis the aforementioned Niva Ghosh, the
impugned judgment should not be interfered with by this Court.
10. It was furthermore submitted that a Constitution Bench of this Court
in its decision in Secretary, State of Karnataka and Others v Umadevi (3)
and Others [(2006) 4 SCC 1] have opined that a case of this nature, the
general ratio laid down therein would not be attracted, the exception was
made in paragraph 53 thereof is squarely attracted in the instant case.
11. We have noticed hereinbefore that when the services of the
respondent had not been regularized, she filed a contempt application. An
extension was sought for by the appellant to comply with the said direction,
which having been rejected, the respondent was asked to produce relevant
documents showing the period during which she had worked as EDA
substitute in different post offices under South Calcutta Division from time
to time prior to 7.5.1985. There is nothing on record to show that she
brought such materials on records. The Tribunal also did not come to a
definite finding that the respondent had completed 240 days in an year as a
substituted EDA prior to issuance of the said circular letter dated 12th /13th
November, 1987. It, however, proceeded to issue the directions which we
have noticed hereinbefore.
12. What was considered to be permissible at a given point of time
keeping in view the decisions of this Court which had then been operating in
the field, does no longer hold good. Indisputably the situation has
completely changed in view of a large number of decisions rendered by this
Court in last 15 years or so. It was felt that no appointment should be made
contrary to the statutory provisions governing recruitment or the rules
framed in that behalf under a statute or the proviso appended to Article 309
of the Constitution of India.
13. Equality clause contained in Article 14 and 16 of the Constitution of
India must be given primacy. No policy decision can be taken in terms of
Article 77 or Article 162 of the Constitution of India which would run
contrary to the constitutional or statutory schemes.
14. The question involved herein came to be considered by a Constitution
Bench of this Court in Umadevi (supra) wherein noticing a long line of
recent decisions and upon consideration of the question as to whether the
right to life protected by Article 21 of the Constitution of India would
include the right of employment as well, vis-a-vis application of principles
of equality, it was inter alia held;
"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
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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."
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.
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 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
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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.
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.
15. Before considering the submission of Mr. Roy based upon paragraph
53 of Umadevi (supra), we may notice that in A. Umarani v Registrar,
Cooperative Societies and Others [(2004) 7 SCC 112,] this Court held;
" No regularisation is, thus, permissible in exercise of
the statutory power conferred under Article 162 of the
Constitution if the appointments have been made in
contravention of the statutory rules. "
16. The short order which was the subject matter of decision of this Court
in Debika Guha (supra) also stood overruled in Umadevi (supra). We may
at this stage also notice that the concept of 240 days to be the cut off mark
for the purpose of regularisation of services came up for consideration of
this Court in Madhyamik Siksha Parishad, U.P. v Anil Kumar Mishra and
Others etc. [AIR 1994 SC 1638], wherein it was clearly laid down that the
completion of 240 days of continuous service in a year would be attracted
only in a case where retrenchment has been effected without complying with
the provisions contained in Section 25F of the Industrial Disputes Act , but
would not be relevant for regularisation of service.
17. Submission of Mr. Roy is that the respondent has been discriminated
against inasmuch as although the services of Niva Ghosh were regularised,
she had not been, may now be noticed.
18. There are two distinctive features in the present case, which are:-
(i) Equality is a positive concept. Therefore, it cannot be invoked where
any illegality has been committed or where no legal right is established.
(ii) According to the appellant the respondent having completed 240 days,
does not fulfil the requisite criteria. A disputed question of fact has been
raised. The High Court did not come to a positive finding that she had
worked for more than 240 days in a year.
19. Even otherwise this Court is bound by the Constitution Bench
decision. Attention of the High Court unfortunately was not drawn to a large
number of recent decisions which had been rendered by this Court.
20. The statement of law contained in para 53 of Uma Devi (supra) cannot
also be invoked in this case. The question has been considered by this Court
in a large number of decisions. We would, however, refer to only a few of
them.
21. In Punjab Water Supply and Sewerage Board v Ranjodh Singh & Ors
[2006 (13) SCALE 426] referring to paragraphs 15, 16 and 53 of Uma Devi
(supra), this Court;
"A combined reading of the aforementioned paragraphs
would clearly indicate that what the Constitution Bench
had in mind in directing regularisation was in relation to
such appointments, which were irregular in nature and
not illegal ones.
Distinction between irregularity and illegality is explicit.
It has been so pointed out in National Fetilizers Ltd. &
Ors. vs. Somvir Singh [(2006) 5 SCC 493] in the
following terms:
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"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 1, 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."
Judged by the 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] and State of
M.P. & Ors. vs. Lalit Kumar Verma [2006 (12) SCALE
642].}
22. The same principle has been reiterated recently in Punjab State
Warehousing Corp., Chandigarh v Manmohan Singh & Anr. [2007 (3)
SCALE 401].
23. For the reasons aforementioned, the impugned judgment cannot be
sustained It is set aside accordingly. The appeal is allowed. In the facts and
circumstances of this case, however, there shall be no order as to costs.