Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1366 OF 2009
(Arising out of SLP (C) No.6500 of 2004)
Man Singh … Appellant
Versus
Commissioner, Garhwal Mandal, Pauri & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
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2. Appellant had been appointed as a Peon on a short term vacancy from
time to time for a fixed period. Such appointments were said to have been
made on diverse dates, namely - on 9.5.1989, 20.9.2989, 4.12.1989,
2.2.1991, 2.3.1991, 29.6.1991, 27.8.1991, 11.12.1991, 1.1.1992, 31.3.1992,
26.8.1992, 5.3.1993, 2.8.1993, 28.9.1993, 4.12.1993, 4.1.1994, 23.5.1994,
6.9.1995, 6.11.1995 and 15.2.1996.
Names were called for from Employment Exchange in the year 1995.
Appellant applied for the post of Peon which fell vacant in the District of
Chamoli. A Selection Committee was constituted for selection of the
candidates. Appellant is said to have appeared before the Selection
Committee. The name of the appellant was placed at serial No.3 in the
general category. However, on or about 29.5.1995, the name of the
appellant was deleted and in his place the name of one Mohan Lal was
inserted. Appellant’s services were terminated on 5.4.1996.
3. Aggrieved by and dissatisfied therewith, he filed a writ petition on or
about 3.12.2002 before the High Court of Uttaranchal which by reason of
the impugned judgment has been dismissed.
4. Mr. R. Krishnamorthi, learned counsel appearing on behalf of the
appellant, would urge that appellant having been working since 1989
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continuously, his services could not have been terminated particularly in
view of the fact that he was selected for regular appointment by a selection
committee.
5. It has been brought on record that the name of the appellant was
wrongly placed at serial No.3 in the wait-list as Mohal Lal had secured
higher marks than the appellant. As there were only three vacancies,
appellant’s name had to be deleted.
6. Appellant does not attribute any mala fide to the respondent. It is not
his case that Mohan Lal, in fact, had not secured higher marks than him. If
a mistake was committed, the respondents were entitled to rectify the same.
All persons similarly situated under our constitutional scheme are
required to be treated equally. Some mistakes were found in the selection
list. If those mistakes have been rectified and the irregularities have been
removed by preparing the selection list strictly in accordance with rules, no
exception thereto can be taken.
7. Mohan Lal was wrongly placed in the category of reserved candidates
as he had competed with the general category candidates. Appellant,
indisputably, had been appointed on periodical basis. He might have
continued to work as a Peon for a long time but by reason thereof, he did
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not acquire any indefeasible right to become a permanent employee of the
department.
Regularization of services, as is well-known, is impermissible in law.
Though belatedly respondents had taken steps to fill up the existing
vacancies in terms of the recruitment rules and upon following the
constitutional scheme of equality as adumbrated under Articles 14 and 16 of
the Constitution of India.
8. Contention of the appellant that as he has been working for a long
time, should have been given preference over said Shri Mohan Lal, in our
considered opinion, cannot be accepted.
In Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors.
[(2006) 4 SCC 1], a Constitution Bench of this Court has laid down the law
in the following terms :
“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
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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 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, regularisation, 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
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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.”
9. We are bound by the said decision as opined in Official Liquidator v.
Dayanand & Ors. [(2008) 10 SCC 1], wherein it has categorically been laid
down :
“90. We are distressed to note that despite
several pronouncements on the subject, there is
substantial increase in the number of cases
involving violation of the basics of judicial
discipline. The learned Single Judges and Benches
of the High Courts refuse to follow and accept the
verdict and law laid down by coordinate and even
larger Benches by citing minor difference in the
facts as the ground for doing so. Therefore, it has
become necessary to reiterate that disrespect to
constitutional ethos and breach of discipline have
grave impact on the credibility of judicial
institution and encourages chance litigation. It
must be remembered that predictability and
certainty is an important hallmark of judicial
jurisprudence developed in this country in last six
decades and increase in the frequency of
conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch
as the courts at the grass root will not be able to
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decide as to which of the judgment lay down the
correct law and which one should be followed.
91. We may add that in our constitutional set up
every citizen is under a duty to abide by the
Constitution and respect its ideals and institutions.
Those who have been entrusted with the task of
administering the system and operating various
constituents of the State and who take oath to act
in accordance with the Constitution and uphold
the same, have to set an example by exhibiting
total commitment to the Constitutional ideals. This
principle is required to be observed with greater
rigour by the members of judicial fraternity who
have been bestowed with the power to adjudicate
upon important constitutional and legal issues and
protect and preserve rights of the individuals and
society as a whole. Discipline is sine qua non for
effective and efficient functioning of the judicial
system. If the Courts command others to act in
accordance with the provisions of the Constitution
and rule of law, it is not possible to countenance
violation of the constitutional principle by those
who are required to lay down the law.”
10. Reliance placed by Mr. Krishnamorthi on Karnataka State Private
College Stop-Gap Lecturers Association v. State of Karnataka & Ors. [AIR
1992 SC 677] is wholly misplaced. It is not a case where one set of ad hoc
recruits was being replaced by another set of ad hoc recruits.
11. Respondent had filled up the vacancies in terms of the rules.
Furthermore, appellant’s name was not sponsored by the Employment
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Exchange. He might have got himself registered in the Employment
Exchange but in absence of any proof that his name was sponsored by the
Employment Exchange, the same could not have been considered.
The Employment Exchange sponsors the names of the candidates in
terms of the provisions laid down in the Employment Exchange Manual.
The Employment Exchange authorities are bound to sponsor the names in
accordance with seniority. Names of a candidate can be sponsored only
when his turn comes and not prior thereto {[See Arun Tiwari & Ors. v. Zila
Mansavi Shikshak Sangh & Ors. [AIR 1998 SC 331]; Avtar Singh Hit v.
Delhi Sikh Gurdwara Management Committee and Ors. [(2006) 8 SCC
487)}
12. Mr. Krishnamorthi submits that Shri Mohan Lal is no longer in
service. That by itself may not be a ground, particularly at this distant time,
to direct appointment of the appellant. Recruitment process started in the
year 1995. A select list was prepared. Ordinarily, the life of a select list is
one year. In absence of any notification extending the validity of such
select list, no appointment can be directed to be made from such select list.
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13. There is, thus, no merit in this appeal. It is dismissed accordingly.
However, in the facts and circumstances of this case, there shall be no order
as to costs.
………………………………J.
[S.B. Sinha]
………………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
March 3, 2009