Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7347 OF 2008
(Arising out of SLP (C) No.4357 of 2006)
State of Punjab … Appellant
Versus
Bahadur Singh & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. This appeal is directed against a judgment and order dated 2.8.2005
passed by the Division Bench of the High Court of Punjab and Haryana
disposing of the writ petition in terms of its earlier judgment dated
12.8.2003 in Civil Writ Petition No.1287 of 2003.
3. The basic fact of the matter is not in dispute.
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The First Respondent was appointed on 9.5.1982 in the post of a
Driver on a work charge basis. He continued to be employed in the said
capacity without being regularized. Respondent No.1 filed C.W.A.
No.7389 of 2004 in the Punjab & Haryana High Court seeking
regularization of his service. As per the impugned order, the said writ
petition was disposed of in terms of judgment dated 12.8.2003 in C.W.P.
No.1287 of 2003
4. Some Work charged employees like Respondent No.1 filed C.W.A.
No.1287 of 2003 in the High Court of Punjab & Haryana seeking
regularization of their service. By an order dated 12.8.2003 (Annexure P-
3), a Division Bench of the High Court in Writ Petition No.1287 of 2003
directed as under :
“In the case in hand, the petitioners have rendered
more than 16 years of regular service with the
SYL Canal Project. They are drawing running pay
scale. Their service books have been maintained
by the Department and their provident fund is
being deducted. They all fulfill the requisite
qualifications for the post held by them. Thus,
present one is not even a case of relaxation of
qualification for the absorption of the petitioners.
The Government has issued instructions for
absorption of the petitioners. The Government has
issued instructions for absorption of the workers
who have rendered three years of regular service.
In spite of all this, the petitioners have not been
regularized in the service. The action of the
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concerned authorities in not regularizing the
services of the petitioners is contrary to the letter
and spirit of the instructions issued by the
Government, which also runs counter to the
dictum of their Lordships of the Supreme Court in
the aforementioned Authorities. In Civil Writ
Petition No.16959 of 2000 (Girdhari Lal Vs.
P.R.T.C. etc.), it was held by this Court that even a
part time employee, working for a few hours every
day, is entitled to regularization under the
instructions issued by the State Government.
To sum up, it is the admitted position that
the authorities have adopted a pick and choose
policy while regularizing the services of the work-
charge employees of the SYL Canal Project. Even
as per the instructions dated January 23, 2001
(Annexure P-11) the regularization is to be made
on the basis of seniority. However, the principle
of seniority has been given goodbye. Keeping in
view the aforementioned decisions of Hon’ble the
Supreme Court as well as of this Court, we find
lease justification in the conduct of the authorities
in not regularizing the services of the petitioners
despite their having rendered more than 16 years
of service.
For the reasons recorded above, the petition
is allowed. The respondents are directed to
regularize the services of the petitioners with all
consequential reliefs within two months from the
date of receipt of a certified copy of this order.”
5. A Special Leave Petition was preferred thereagainst which was
marked as SLP (C) No.24325 of 2003. By an order dated 27.2.2004 notices
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were issued. It appears that similar matters came up before this Court and a
Division Bench in its order dated 26.3.2007 directed as under :
“Leave granted.
Counsel on both the sides submit that the case in
hand is squarely covered by a decision of this
Court in State of Punjab & Ors. v. Lakhwinder
Singh & Ors., (2007) 2 SCC 502. In view thereof,
the appeals are allowed and the judgment and
orders under challenge are set aside. The matters
are remanded back to the High Court for fresh
consideration of the writ petitions. It is made clear
that this court is not expressing any opinion on the
merits of the claim made by the concerned
employees.”
6. Indisputably, a Constitution Bench of this Court in Secretary, State of
Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4 SCC 1], inter alia, held
that any appointment made in violation of the constitutional scheme of
equality would be wholly illegal and, thus a nullity, stating :
“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. High Courts acting under Article 226 of the
Constitution of India, should not ordinarily issue
directions for absorption, regularization, 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 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 Page
1945 found entitled to relief, it may be possible for
it to mould the relief in such a manner that
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ultimately 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. ”
However, it was furthermore opined :
“ One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
(supra), R.N. Nanjundappa (supra), and B.N.
Nagarajan (supra), and referred to in paragraph 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 courts or of tribunals. The question of
regularization 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 regularize 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 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
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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 by-passing of the constitutional
requirement and regularizing or making
permanent, those not duly appointed as per the
constitutional scheme. ”
7. Learned counsel appearing on behalf of the respondent would submit
that in view of the aforementioned directions of this Court in Uma Devi (3)
(supra), the matter should be remitted to the High Court. It was furthermore
contended that appointment of the respondents on a work charge basis being
permissible in law, the decision of the Constitution Bench of this Court
would not be applicable.
8. We are aware of the fact that paragraph 53 of Uma Devi (3) (supra)
had been read differently by different Benches. We have, however, no
doubt in our mind that the Constitution Bench deprecated appointment
through side door/back door being contrary to the constitutional scheme of
equality. Paragraph 53 of the said decision by way of one time scheme
refers to those cases, inter alia, where orders of regularization had attained
finality. The very fact that this Court therein referred to the decisions of this
Court in State of Mysore & Anr. v. S.V. Narayanappa [(1967) 1 SCR 128
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and B.N. Nagarajan & Ors. v. State of Karnataka & Ors. [(1979) 4 SCC
507] clearly goes to show that the same has to be read in the context thereof
and not de hors the same.
This Court in B.N. Nagarajan clearly stated that whereas any
irregularity can be regularized but an illegality cannot be. It was
furthermore stated that regularization would not mean permanency. This
aspect of the matter has been highlighted in a number of decisions.
9. In State of M.P. & Ors. v. Lalit Kumar Verma [(2007) 1 SCC 575],
this Court stated :
“ 12. 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 with the constitutional scheme as also
the rules have been made, the appointment may be
irregular in the sense that some provisions of some
rules might not have been strictly adhered to.”
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10. In relation to almost similar orders, it was noticed in Post Master
General, Kolkata & Ors. v. Tutu Das (Dutta) [(2007) 5 SCC 317], it was
noticed :
“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 and Ors. [(2007) 2 SCC 491}
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 regularization 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. and Ors. v. 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 Selection Committee had not been
properly constituted. In view of the Page
2419 ban on employment, no recruitment
was permissible in law. The reservation
policy adopted by the appellant had not
10
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
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:
‘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 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 and Ors. v.
Yogesh Chandra Dubey and Ors. [(2006) 8 SCC
67] and State of M.P. and Ors. v. Lalit Kumar
Verma [(2007) 1 SCC 575]}
22. The same principle has been reiterated recently
in Punjab State Warehousing Corp., Chandigarh v.
Manmohan Singh and Anr. [2007 (3) SCALE
401].”
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11. In this view of the matter, we are of the opinion that the impugned
judgment of the High Court cannot be sustained. It is set aside accordingly
and the matter is remitted to the High Court for consideration of the matter
afresh in the light of the observations made hereinbefore keeping in view
the statement made by Mr. Jain that the appointment in the work charge
establishment was permissible in law and the recruitments had been made in
accordance with law.
12. The appeal is allowed with the aforementioned direction. In the facts
and circumstance of the case, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi;
December 17, 2008