Vs. Registrar, Cooperative Societies & Ors  Insc 414 (28 July 2004)
Hegde,S.B. Sinha & A.K. Mathur.
CIVIL APPEAL NOs. 3774, 3775, 3776, 4446, 6415, 6416, 7282, 9854, 9933,
10244-10245 of 2003, C.A. No.4495 of 2004 (@ S.L.P.(C) No. 1096 of 2004), Civil
Appeal No. 447 of 2004 S.B. SINHA, J:
granted in S.L.P. (C) No. 1096 of 2004.
appeals are directed against a judgment and order dated 24.10.2002 passed by a
Division Bench of the High Court of the Judicature at Madras whereby and whereunder several writ
appeals filed by the Appellants herein and writ petitions filed by the Private
Respondents were disposed of.
basic fact of the matter is not in dispute.
Societies and Land Development Banks constituted and registered in the State of
Tamil Nadu used to be governed under Tamil Nadu Cooperative Societies Act, 1961
(for short "the 1961 Act") and the Tamil Nadu Land Development Banks
Act, 1934. The State framed rules under the 1961 Act known as Madras Cooperative
Societies Rules, 1963.
1961 Act and 1934 Act were repealed and replaced by Tamil Nadu Cooperative
Societies Act, 1983 (for short "the 1983 Act"). Pursuant to or in
furtherance of the powers conferred thereunder, the State framed rules known as
the Tamil Nadu Cooperative Societies Rules, 1988 (for short "the 1988
Rules"). The 1983 Act and the 1988 Rules came into force with effect from
not in dispute that a large number of employees, i.e., about 39% of the total
strength of the employees of the cooperative societies in the State of Tamil Nadu,
were appointed without notifying the vacancies to the Employment Exchanges and
without following the other mandatory provisions of the Act and the Rules
framed thereunder relating to recruitment.
not in dispute that a large number of appointees furthermore did not have the
requisite educational qualification or other qualification like cooperative
training etc. The reservation policy of the State was also not followed by the
cooperative societies. The Recruitments were made beyond the permissible cadre
view to condone the serious lapses on the part of the Cooperative Societies in
making such appointments in illegal and arbitrary manner, the Government of the
State of Tamil Nadu issued various orders from time to time in terms whereof
such appointments were sought to be regularised fixing a cut off date therefor.
Firstly, G.O.Ms No. 790 dated 5.7.1971 was issued ratifying the irregular
appointments made otherwise than through employment exchange upto 5.7.1971.
Further, by G.O.Ms No. 1352 dated 7.11.1978, the cut off date was extended upto
31.12.1977. Yet again, by G.O.Ms. No. 605 dated 3.6.1980, the cut off date was
extended upto 31.12.1979. By G.O.Ms. No. 312 dated 30.11.1987 the cut off date
was furthermore extended upto 8.7.1980. Ultimately, by G.O.Ms. No. 86 dated
12.3.2001 the cut off date was extended upto 11.3.2001 and thereby the
Government of Tamil Nadu sought to regularise appointments made after 8.7.1980
in the Cooperative Societies without notifying the Employment Exchange in
respect of those employees who had completed 480 days of service in two years
purported to be in terms of Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act, 1981 (for short 'the 1981 Act').
on or on the basis of the said G.O.Ms No. 86 dated 12.3.2001, several writ
petitions were filed in the High Court of Judicature at Madras praying for
issuance of appropriate directions regularising the services of the employees
working in the Cooperative Societies of the State of Tamil Nadu.
writ petitions were dismissed whereagainst writ appeals were filed. A large
number of writ petitions were also placed before the Division Bench for
and/ or validity of the aforementioned GOMs No. 86 dated 12.3.2001 fell for
consideration before the Division Bench in the said writ appeals and writ
regard to rival contentions the Division Bench of the High Court framed the following
issues for its consideration:
whether the writ petitions are maintainable?
the cooperative societies are covered by the provisions of Tamil Nadu
Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981
as also the Industrial Disputes Act, 1947?
Whether G.O.Ms. No. 86, dated 12.3.2001 aims at regularizing all the staff
appointed to cooperative societies regardless of any defect or any violation of
the Rule 149 of the Tamil Nadu Cooperative Societies Rules, 1988, as amended in
the alternative, are the illegal appointees entitled for statutory protection
of regularization and permanent status by virtue of Section 3 of the Permanency
Act subject to their completion of 480 man days in a continuous period of 2
personnel not covered by clause
entitled for protection under the Industrial Disputes Act, 1947?"
regard Issue No. 1, it was held that the writ petitions are maintainable. Issue
No. 2 was also decided in favour of the writ petitioners holding that the 1981
Act is applicable to the employees of the Cooperative Societies.
No. 3, 4 and 5 were taken up for consideration together.
Division Bench by reason of the impugned judgment opined that the provisions of
the 1981 Act would not be applicable as regard appointments made in violation
of the statute or statutory rules. It was further held that in any event in
terms of the 1981 Act and the G.O.Ms. No. 86 dated 12.3.2001 what had been
exempted by the Government was the condition relating to the statutory
obligation on the part of the Cooperative Societies to notify the Employment
Exchange as regard the existing vacancies and not other statutory conditions.
The Division Bench held:
that GOMs No. 86, Cooperation, Food and Consumer Protection Department, dated
12.3.2001, has got the effect of only authorizing the regularization of the
employees recruited by the cooperative societies for the period from 9.7.1980
to 11.3.2001 exempting the intervention of employment exchange;
that GOMs No. 86, Cooperation, Food and Consumer Protection Department, dated
12.3.2001, shall not operate for regularization of any employee recruited by
the cooperative societies in violation of Sub-Rule (1) of Rule 149 of the Tamil
Nadu Cooperative Societies Rules, as amended by GOMs No. 212, Cooperation, Food
and Consumer Protection Department, dated 4.7.1995;
in societies, where the cadre strength has not been fixed, direct them to adopt
the special bye- law in conformity with sub-Rule (1) of Rule 149 of the Tamil Nadu
Cooperative Societies Rules, as amended by GOMs No. 212, Cooperation, Food and
Consumer Protection Department, dated 4.7.1995;
the Registrar of Cooperative Societies to issue a circular within a week from
today calling upon all the cooperative societies in the State of Tamil Nadu to
comply with the direction in clause (iii) supra;
direct that within two months of the approval of the special bye laws under
sub-rule (1) of the Rule 149 of the Rules, the respective Deputy Registrars of
Cooperative Societies having jurisdiction over the cooperative societies in
their Divisions, shall enquire by issuing notice to the entire staff recruited
from 9.7.1980 to 11.3.2001, and decide as to whether the said recruitment is in
conformity with the special bye laws approved by the Registrar of Cooperative
Societies and terminate the services of such staff members, whose appointments
are in contravention of the special bye laws so approved by the Registrar of
made clear that while considering the validity or otherwise of the appointment
of the staff cooperative societies, the requirement of notifying the vacancies
to employment exchange shall not be taken cognizance of.
no cooperative staff member appointed subsequent to G.O.Ms. No. 86,
Cooperation, Food and Consumer Protection Department, dated 12.3.2001 otherwise
than through employment exchange shall be continued in service and their
services shall be terminated forthwith.
that either the provisions of Tamil Nadu Industrial Establishments (Conferment
of Permanent Status to Workmen) Act, 1981 or the Industrial Disputes Act, 1947,
or the settlements entered under Sections 12 or 18 thereof, shall have no
application to the staff of the cooperative societies appointed without
adequate qualifications or beyond the cadre strength for the period from
9.7.1980 to 11.3.2001.
is equally applicable to the staff appointed to the cooperative societies,
otherwise than through employment exchange, for the period from 12.3.2001
onwards." Mr. S. Balakrishanan, learned senior counsel appearing on behalf
of the appellant relying on or on the basis of the decision of this Court in
Jacob [(1991) 1 SCC 28] would submit that having regard to the fact that the
appellants had been working in the cooperative societies for a long time, the
High Court committed a serious error in not holding that they had acquired a
right for regularization.
event, Mr. Balakrishnan would contend that each employee was individually
entitled to be given an opportunity of being heard so as to enable the
competent authority to come to the conclusion as to whether they had fulfilled
the requirements contained in the aforementioned GOMs No. 86 dated 12.3.2001 or
not. Reliance in this behalf has been placed on Olga SCC 545].
learned counsel appearing on behalf of the respondents, on the other hand,
supported the judgment of the High Court.
primal question which arises for consideration in these appeals is as to
whether the State had the requisite authority to direct regularisation of
services of the employees of the cooperative societies by reason of the
impugned GOMs No. 86 dated 12.3.2001.
1983 Act was enacted inter alia to make better provision for, the organization,
management and supervision of cooperative societies in the State of Tamil Nadu
as also for providing for an orderly development of the cooperative movement in
accordance with cooperative principles.
in terms of the provisions of the 1983 Act, the cooperative societies are
required to be registered thereunder and are also liable to comply with the
provisions thereof as also the rules framed thereunder.
the High Court source of the power of the State to issue the said G.O.Ms. No.
86 dated 12.3.2001 was traced to Sections 182 and 170 of the 1983 Act as also
Article 162 of the Constitution of India.
170 of the Act provides for power of the Government to exempt registered
societies from any of the provisions of the Act other than clause (b) of
sub-section (1) of section 88 and sub-section (1) of section 89 of this Act, or
of the rules, subject to such conditions as may be specified and direct that
such provisions of the rules shall apply to such society with such
modifications as may be specified in the order. It is not the case of any of
the parties that any such order of exemption had been passed in favour of any
of the cooperative societies. Section 170 of the 1983 Act, therefore, does not
confer any power upon the State to issue the impugned order.
view of the matter such an order could not have been passed with retrospective
effect condoning the actions on the part of the cooperative societies which
were in flagrant violations of the provisions of the Act and the Rules made thereunder.
182 of the 1983 Act reads as under:
Power of Government to give directions.-
The Government may, in the public interest, by order, direct the Registrar to
make an inquiry or to take appropriate proceedings under this Act, in any case
specified in the order, and the Registrar shall report to the Government the
result of the inquiry made or the proceedings taken by him within a period of
six months from the date of such order or such further period as the Government
any case, in which a direction has been given under sub-section (1), the
Government may, notwithstanding anything contained in this Act, call for and
examine the record of the proceedings of the Registrar and pass such orders in
the case as they may think fit:
that before passing any order under this sub-section the person likely to be
affected by such order shall be given an opportunity of making his
representation." A bare perusal of the aforementioned provision would
clearly go to show that the impugned Government Order could not have been
issued by the State in terms thereof as the same can be taken recourse to only
for the purposes mentioned therein and not for any other. It is not a case where
the Government directed the Registrar to make an enquiry against a person in
the public interest. Article 162 of the Constitution of India provides for
extension of executive power to the matters with respect of which the
Legislature of the State has power to make laws. Article 162 of the
Constitution by no stretch of imagination is attracted as the source of the
power of the State to pass an appropriate order must be traced to the
provisions of the Act itself. If the State had no power to issue the said GOMs
No. 86 dated 12.3.2001 the same must be held to be a nullity.
now consider the extent to which the provisions of the 1981 Act would apply to
the fact of the present case.
1981 Act applies only to industrial establishments. Industrial Establishment
has inter alia been defined to mean "an establishment as defined in clause
(6) of Section 2 of the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu
Act XXXVI of 1947)".
has been defined in Section 2(6) of the Tamil Nadu Shops and Establishments
Act, 1947 as under:
means a shop, commercial establishment, restaurant, eating house, residential
hotel, theater or any place of public amusement or entertainment and includes
such establishment as the State Government may by notification declare to be an
establishment for the purpose of this Act." Mr. Balakrishnan urged that
the cooperative societies are Commercial Establishments.
a Cooperative Society would be a commercial establishment or not would essentially
be a question of fact. It cannot be said keeping in view the legislative intent
that all cooperative societies would be 'commercial establishments' within the
meaning of the Tamil Nadu Shops and Establishments Act, 1947. It, therefore,
appears that the impugned Government Order has been issued by the State without
proper application of mind. It has furthermore not been stated in the impugned
Government Order that all the cooperative societies are commercial
establishments within the meaning of Section 2(6) of the Tamil Nadu Shops and
Establishments Act, 1947.
Cooperative Societies and the Land Development Banks are governed by the
statutes under which they have been created as also the Rules and bye laws
framed thereunder. The cooperative societies are obligated to follow the
cooperative principles as laid down in the Act and the Rules framed thereunder.
State had framed rules in exercise of its power conferred upon it under Section
180 of the 1983 Act in the year 1988. Rule 149 of the 1988 Rules provides for a
complete code as regard the mode and manner in which appointments were required
to be made and the process of appointments is required to be carried out. In
terms of the said Rule, requirements to possess educational qualification and
other qualifications had been laid down. One of the essential qualifications
laid down for holding certain posts is 'undergoing cooperative training and
this juncture, we may notice some of the provisions contained in Rule 149 of
the 1988 Rules.
(3) of Rule 149 read as under:
No appointment by direct recruitment to any post shall be made except by
calling for from the societies applications from their employees who possess
the qualifications for the post and unless the Government have accorded special
sanction for recruitment by advertisement in dailies, by also calling for a
list of eligible candidates from the Employment Exchange.
Where the Employment Exchange issues a non-availability certificate or the Government
have accorded special sanction for recruitment by advertisement in dailies, the
society shall invite applications from candidates including those working in
other societies by advertisements in one English daily and two Tamil dailies
having circulation within the area of operations of the society approved by the
Government for the purposes of issue of Government advertisements.
Every appointment by direct recruitment shall be made by holding written
examination and interview or by holding only interview as decided by the board
and on the basis of the rank given with reference to the marks obtained in the
written examination, if any, and the marks awarded in the interview:
that nothing contained in this sub-rule shall apply to any of the posts for the
recruitment of which a Recruitment Bureau has been constituted under section 74
or in respect of which common cadre of service has been constituted under
further that nothing contained in this sub- rule shall apply to appointments of
dependents of the employees of any society who died or medically invalidated
while in service." Sub-rule (4) of Rule 149 mandates that no person shall
be appointed to the service of a society if he has on the date on which he
joins the post, attained the age of thirty years and in the case of persons
belonging to Scheduled Castes and Scheduled Tribes thirty-five years.
(25) of Rule 149 provides that the principle of reservation of appointment for
Scheduled Castes/ Scheduled Tribes and Backward Classes followed by the
Government of Tamil Nadu for recruitment to the State shall apply.
appointment, therefore, can be made in deviation of or departure from the
procedures laid down in the said statutory rules.
terms and conditions of services are also laid down in the said rules.
1983 Act was furthermore amended in the year 1995 providing for cadre strength
which is directly relatable to the income of the cooperative societies.
of the Act and the Rules framed thereunder reflect the legislative recruitment
policy. The said provisions are, thus, mandatory in nature.
in our considered opinion, is not and cannot be the mode of recruitment by any
"State" within the meaning of Article 12 of the Constitution of India
or any body or authority governed by a Statutory Act or the Rules framed thereunder.
It is also now well-settled that an appointment made in violation of the
mandatory provisions of the Statute and in particular ignoring the minimum
educational qualification and other essential qualification would be wholly
illegal. Such illegality cannot be Kumar Verma and Another, (1996) 7 SCC 562).
equally well-settled that those who come by backdoor should go Officers
Association & Others, (1994) 2 SCC 204) Regularisation furthermore cannot
give permanence to an employee whose services are ad-hoc in nature.
question came up for consideration before this Court as far back 128] wherein
this Court observed "Before we proceed to consider the construction placed
by the High Court on the provisions of the said order we may mention that in
the High Court both the parties appear to have proceeded on an assumption that regularisation
it was never contended before the High Court that the effect of the application
of the said order would mean only regularising the appointment and no more and
that regularisation would not mean that the appointment would have to be
considered to be permanent as an appointment to be permanent would still
require confirmation. It seems that on account of this assumption on the part
of both the parties the High Court equated regularisation with
permanence." [(1972) 2 SCR 799], it was held:
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.
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." The said decisions of this Court
have received approval of a 3-Judge and Others [(1979) 4 SCC 507] it was held
that the procedures for appointment as contained in the Rules framed under
Article 309 of the Constitution of India must be complied with.
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.
(supra) has also been followed by this Court in of Andhra Pradesh and others
[AIR 1995 SC 586].
said decisions have been recently noticed by a Division Bench of 377]. was
observed that the government services are essentially a matter of status rather
a contract and in that context it was observed:
Whether a person holds a particular post in a substantive capacity or is only
temporary or ad hoc is a question which directly relates to his status. It all
depends upon the terms of appointment. It is not open to any government
employee to claim automatic alteration of status unless that result is
specifically envisaged by some provision in the statutory rules. Unless,
therefore, there is a provision in the statutory rules for alteration of status
in a particular situation, it is not open to any government employee to claim a
status different than that which was conferred upon him at the initial or any
subsequent stage of service.
Applying these principles to the instant case, since the respondent,
admittedly, was appointed in an ad hoc capacity, he would continue to hold the
post in question in that capacity" It is trite that appointments cannot be
made on political considerations and in violation of the government directions
for reduction of establishment expenditure or a prohibition on the filling up
of vacant posts or creating new posts including regularization of daily-waged
employees. (See Municipal [(1998) 9 SCC 258]) and Others [(2001) 1 SCC 143], it
decisions cited by Mr. Parikh, in support of his contention, not only do not
support his contention but on the other hand, appears to us to be against his
contention. In Ashwani Kumar case ((1997) 2 SCC 1 : 1997 SCC (L&S) 267)
this Court in no uncertain terms held that as the appointments had been made
illegally and contrary to all recognised recruitment procedures and were highly
arbitrary, the same were not binding on the State of Bihar. This Court further
went on to hold in the aforesaid case that the initial appointments having been
made contrary to the statutory rules, the continuance of such appointees must
be held to be totally unauthorised and no right would accrue to the incumbent
on that score. The Court had also held that it cannot be said that the
principles of natural justice were violated or full opportunity was not given
to the employees concerned to have their say in the matter before their
appointments were recalled and terminated" This Court has considered this
aspect of the matter in various other decisions, viz., Jawahar Lal Nehru Krishi
Vishwa Vidyalaya, Jabalpur, M.P. State of J & K and Others [(1996) 9 SCC
619]. and others [(2000) 7 SCC 371], this Court opined:
decisions of this Court have recently been requiring strict conformity with the
Recruitment Rules for both direct recruits and promotees. The view is that
there can be no relaxation of the basic or fundamental rules of
recruitment." It was further observed:
Similarly, in State of Orissa v. Sukanti Mohapatra ((1993) 2 SCC 486 : 1993 SCC
(L&S) 607 : (1993) 24 ATC 259) it was held that though the power of
relaxation stated in the rule was in regard to "any of the provisions of
the rules", this did not permit relaxation of the rule of direct
recruitment without consulting the Commission and the entire ad hoc service of
a direct recruit could not be treated as regular service. Similarly, in M. A. Haque
(Dr.) v. Union of India ((1993) 2 SCC 213 : 1993 SCC (L&S) 412 : (1993) 24
ATC 117) it was held that for direct recruitment, the rules relating to
recruitment through the Public Service Commission could not be relaxed. In
J&K Public Service Commission v. Dr. Narinder Mohan ((1994) 2 SCC 630 :
1994 SCC (L&S) 723 :
27 ATC 56) it was held that the provisions of the J&K Medical Recruitment
Rules could not be relaxed for direct recruitment. The backdoor direct recruitments,
could not be permitted. (See also Arundhati Ajit Pargaonkar (Dr.) v. State of Maharashtra
(1994 Supp (3) SCC 380 : 1995 SCC (L&S) 31 : (1994) 28 ATC 415).) In Surinder
Singh Jamwal (Dr.) v. State of J&K ((1996) 9 SCC 619 : 1996 SCC (L&S)
1296) this Court directed the direct recruits to go before the Public Service
Commission." 485] this Court categorically held that there was no scope of
regularization unless the appointment was made on a regular basis.
Delhi and others [(1992) 4 SCC 99] the
Court emphasized how judicial sympathy to the workmen could boomerang upon the
purpose wherefor Schemes like Jawahar Rozgar Yojna have been framed, and
thereby in the larger context, deny the limited benefit extended by the State
to the unemployed which would not be available but for such schemes. (See
(1997) 5 SCC 434) Singh and Others [(2003) 5 SCC 388], this Court noticed a
large number of earlier decisions of this Court wherein it had been held that
once employees are appointed for the purpose of Scheme, they do not acquire any
vested right to continue after the project is over.
123] a Division Bench of this Court held that a person appointed as daily wager
holds no post and thus, not entitled to claim the benefit of equal pay for
equal work. (See also Orissa University of Agriculture and In State of Himachal
Pradesh through the Secretary, Agriculture to the 1445], this Court stated the
law in the following terms:
It is seen that when the project is completed and closed due to
non-availability of funds, the employees have to go along with its closure. The
High Court was not right in giving the direction to regularise them or to
continue them in other places. No vested right is created in temporary
employment. Directions cannot be given to regularise their services in the
absence of any existing vacancies nor can directions be given to the State to
create posts in a non-existent establishment. The Court would adopt pragmatic
approach in giving directions. The directions would amount to creating of posts
and continuing them despite non availability of the work. We are of the
considered view that the directions issued by the High Court are absolutely
illegal warranting our interference. The order of the High Court is therefore,
set side." Adhikari and Another [(2003) 5 SCC 12] upon noticing the
decision of this Court in Delhi Development Horticulture Employees' Union (supra) observed:
good deal of illegal employment market has developed, resulting in a new source
of corruption and frustration of those who are waiting at the Employment
Exchanges for years. Not all those who gain such back-door entry in the
employment are in need of the particular jobs. Though already employed elsewhere,
they join the jobs for better and secured prospects. That is why most of the
cases which come to the courts are of employment in government departments,
public undertakings or agencies. Ultimately it is the people who bear the heavy
burden of the surplus labour. The other equally injurious effect of
indiscriminate regularization has been that many of the agencies have stopped
undertaking casual or temporary works though they are urgent and essential for
fear that if those who are employed on such works are required to be continued
for 240 or more days have to be absorbed as regular employees although the
works are time-bound and there is no need of the workmen beyond the completion
of the works undertaken. The public interests are thus jeopardized on both
counts." Others [(2003) 8 SCC 248], noticing that the respondents were not
recruited through the employment exchange or through any other accepted mode of
selection and further noticing that it was also not known whether there was any
advertisement calling for applications for these appointments, the prayer for
reinstatement of service was rejected.
we do not intend to express any opinion as to whether the cooperative society
is a "State" within the meaning of Article 12 of the Constitution of
India but it is beyond any cavil of doubt that the writ petition will be
maintainable when the action of the cooperative society is violative of
mandatory statutory provisions. In this case except the Nodal Centre functions
and supervision of the cooperative society, the State has no administrative
control over its day to day affairs. The State has not created any post nor they
could do so on their own. The State has not borne any part of the financial
burden. It was, therefore, impermissible for the State to direct regularization
of the services of the employees of the cooperative societies. Such an order
cannot be upheld also on the ground that the employees allegedly served the
cooperative societies for a long time.
and Others [(2003) 10 SCC 405], a Division Bench of this Court rejected a
similar contention stating:
The learned counsel therefore contends that there is every justification for
absorbing the respondents concerned on regular basis in recognition of their
long satisfactory service. The learned counsel further contends that the ad hoc
arrangement to employ them on consolidated pay should not go on forever. The
contention of the learned counsel cannot be sustained for more than one reason
and we find no valid grounds to grant the relief of regularization. There is
nothing on record to show that the employees concerned were appointed after
following due procedure for selection. Apparently, they were picked and chosen
by the university authorities to cater to the exigencies of work in the Nodal
Centre." In Jacob M. Puthuparambil (supra) whereupon Mr. Balakrishnan
placed strong reliance, a 3-Judge Bench of this Court noticed that by reason of
the statutory rules, regularization was sought to be made of such employees who
were appointed under posts required to be filled if
is necessary in public interest and
where an emergency has arisen to fill any particular post which has fallen
vacant, immediately. Therein it was further noticed that Clause (e) of Rule 9
provided for regularization of service of any person appointed under clause (i)
of sub-rule (a) if he had completed continuous service of two years on December
22, 1973, notwithstanding anything contained in the rules.
M. Puthuparambil (supra) has been distinguished by this Court in several
decisions including 3-Judge Bench of this Court in Director, [(1992) 4 SCC 33]
and Ashwani Kumar (supra).
not intend to say any more on the subject as even constitutionality of such a
provision is pending for consideration before the Constitution Bench of this
Court. (See Secretary, State of Karnataka & Ors.
also of the opinion that in a case of this nature, where the validity or
otherwise of a government order is in question, the principles of natural
justice will have no role to play and in any event recourse thereto would
result in futility.
Civil Appeal No. 1413 of 2003 an additional ground has been raised to the
effect that as the appellant was appointed on a compassionate ground, this
Court on sympathetic consideration should issue appropriate directions
directing the respondents to regularize her services. It appears that the
appellant was appointed as supervisor in 3rd respondent Bank by the President
of the Bank on a consolidated pay of Rs. 2500/- by an order dated 5.03.2001.
Her appointment is said to have been made on compassionate ground on the plea
that her husband had deserted her. It has not been shown before us that there
exists a scheme in terms whereof deserted woman can be appointed on
compassionate grounds. Even such appointment, in our opinion, would be illegal.
that the purpose of providing appointment on compassionate ground is to
mitigate the hardship due to death of the breadwinner in the family.
case of this nature this court should not even exercise its jurisdiction under
Article 142 of the Constitution of India on misplaced sympathy.
130], it is stated:
have no doubt in our mind that sympathy or sentiment by itself cannot be a
ground for passing an order in relation whereto the appellants miserably fail
to establish a legal right. It is further trite that despite an extra-ordinary
constitutional jurisdiction contained in Article 142 of the Constitution of
India, this Court ordinarily would not pass an order, which would be in
contravention of a statutory provision.
early as in 1911, Farewell L.J. in Latham vs. Richard Johnson & Nephew Ltd.
[1911-13 AER reprint p.117] observed :
must be careful not to allow our sympathy with the infant plaintiff to affect
our judgment. Sentiment is a dangerous Will O' the Wisp to take as a guide in
the search for legal principles." Karnataka & Ors. [JT 2003 (2) SC
88], this Court rejected a similar plea for regularization of services stating
repeatedly asked the learned counsel for the appellants on what basis or
foundation in law the appellants made their claim for regularization and under
what rules their recruitment was made so as to govern their service conditions.
They were not in a position to answer except saying that the appellants have
been working for quite some time in various schools started pursuant to
resolutions passed by zilla parishads in view of the government orders and that
their cases need to be considered sympathetically. It is clear from the order of
the learned single judge and looking to the very directions given a very
sympathetic view was taken. We do not find it either just or proper to show any
further sympathy in the given facts and circumstances of the case. While being
sympathetic to the persons who come before the court the courts cannot at the
same time be unsympathetic to the large number of eligible persons waiting for
a long time in a long queue seeking employment." For the reasons
aforementioned, we do not find any merit in these appeals which are dismissed
accordingly. No costs.