Fertilizers Ltd. & Ors Vs. Somvir Singh  Insc 320 (12 May 2006)
Sinha & P.P. Naolekar
W I T
H CIVIL APPEAL NOS. 464, 465, 466, 467 of 2004 AND 7575 of 2005 S.B. SINHA, J :
Appellant is a Government Company. It is a public sector undertaking. It is a
'State' within the meaning of Article 12 of the Constitution of India. A policy
decision was taken by the Appellant not to make any further recruitment in
Marketing Division in any category of post stating:
has been decided that with immediate effect the strength of the Marketing
Division be pagged to the number of individuals in position in the Marketing
Division as on 31.03.1998. It has also been decided that no further recruitment
be made in the Marketing Division in any category of post. However, as and when
if any post is required to be filled up in any category due to exigencies of
work, the approval of D(F)/MD be obtained and the paper routed through the
Corporate Office Personnel Department." Despite such ban the Respondents had
been appointed. Before such appointment the employment exchange was not
intimated about the vacancy in terms of the provisions of Employment Exchange
(Compulsory Notification of Vacancies) Act, 1959 (for short "the 1959
Act"). Admittedly, no advertisement was also issued. According to the
Respondent, he worked at the Shimla Office of the Appellant for a period of six
months and, thus, he was entitled for recruitment in terms of Rule 1.5(g) of
the Recruitment and Promotion Rules. Rule 1.5(g) of the Rules does not envisage
regular recruitment but a recruitment on a contractual basis. The Respondent,
thus, on his own showing was appointed on a contractual basis. It is trite that
a person who obtained recruitment on contractual basis cannot claim regularisation
in service. The Respondents herein filed applications for their recruitment
without any vacancy having been notified. They were said to have been
interviewed on 24.3.1991 by a purported Committee constituted by the General
Manager. Appointment letters were issued on or about 9.4.1991. An advertisement
was admittedly issued only on 30.11.1993 for the post of Peon-cum-Messenger.
Appellant in the year 1994, however, took a decision to fill up the posts in
the Marketing Division inter alia stating:
the coordination committee meeting held in October 1994, at C.O. the recognized
union of marketing division requested for removal of ban in filling up vacant
posts in marketing division. It was agreed that action to fill up the vacant
posts in marketing division will be taken by marketing division, keeping in
view the recruitments within the overall manpower strength." Actions were
initiated to fill up the vacant posts on permanent status by following the
recruitment procedure. The Respondents were also granted an opportunity to file
applications thereagainst. Relaxation of age to the extent of their services as
temporary employees had also been granted.
Appellant has framed its own Recruitment and Promotion Rules. The recruitment
of an employee is governed by the said Rules.
terms and conditions of services are also governed by the same Rules. In terms
of Rule 1.5 of the said Rules, recruitment of various posts were to be made
inter alia from the following sources:
Exchange as per the provisions of the 1959 Act.
Boards Director General Resettlement.
Recruitment by advertisement.
1.6.1 provides for method and procedure for recruitment in terms whereof all
posts in the scale of pay of Rs. 1560-2160 is required to be considered as
'corporate level'. Direct recruitment can be resorted to only when no suitable
candidate for promotion was available in the appropriate rank. Rule 1.6.8
provides for the mode and manner in which the advertisement is to be issued. Rule
1.6.9 provides for reservation.
manner in which Selection Committee has to be constituted has been laid down in
paragraph 1.11. Such Selection Committee inter alia must consist of two members
from the discipline for which recruitment is to be made apart from an officer
from the Personnel Department as Member Secretary. In the event, a selection is
to be made for reserved category, an officer of appropriate status belonging to
SC/ST will be included as a member. In a case of recruitment to Group C & D
posts, a member representing minority community will also be associated in the
selection committee. The matter relating to interview is provided for in
paragraph 12.1. Appointments are to be made in terms of paragraph 1.13.
said Rules, therefore, lay down in great details as to how and in what manner
the selection process was to be initiated, the minimum qualification therefor,
the constitution of Selection Committee and other relevant factors.
not in dispute that the Respondents herein were appointed without any
advertisements and without any intimation to the employment exchange.
Appointments are said to be made at the instance of two officers. Only after
retirement of the said officers, writ petitions were filed before several High
Courts including Chhattisgarh, Punjab and Haryana,
Himachala Pradesh, Delhi, Madhya Pradesh and Rajasthan.
writ petitions involved 52 employees. Different views were expressed by
different High Courts.
writ petitions filed by the Respondents were allowed directing the Appellant to
regularise the services of the Respondents to pay them all monetary benefits in
terms of the appointment letters.
P. Gupta, learned senior counsel appearing on behalf of the Appellant submitted
that the matter relating to regularisation of services recruited on ad hoc
basis is no longer res integra in view of the recent Constitution Bench
decision of this Court in Secretary, State of Karnataka and Others v. Umadevi
and Others [2006 (4) SCALE 197].
Mathur, learned counsel appearing on behalf of the Respondents, on the other
hand, submitted that the appointments of the Respondents may be irregular but
not illegal and in that view of the matter, the impugned judgments need not be
Respondents herein were appointed only on applications made by them.
Admittedly, no advertisement was issued in a newspaper nor the employment
exchange was notified as regard existence of vacancies.
now trite law that a 'State' within the meaning of Article 12 of the
Constitution of India is bound to comply with the constitutional requirements
as adumbrated in Articles 14 and 16 thereof. When Recruitment Rules are made,
the employer would be bound to comply with the same. Any appointment in
violation of such Rules would render them as nullities. It is also well-settled
that no recruitment should be permitted to be made through backdoor.
contended that for Class IV employees, the Employment Exchanges were not
required to be notified in view of Section 3(1)(d) of the 1959 Act. Section 3(1)(d)
of the 1959 Act reads as under:
"Act not to
apply in relation to certain vacancies
This Act shall
not apply in relation to vacancies (a) *** (b) *** (c) *** (d) in any
employment to do unskilled office work;" Such a plea does not appear to
have been raised before the High Court. The question as regards the nature of
duties required to be performed by the Respondents having not been raised. No
material was placed by the employer to show as to whether the job of the
Respondents was within the purview of the aforementioned provision. The
Respondents themselves stated that they raised the question of applicability of
the said provision of the Act in a suit filed at Jagadhri when another person
was appointed as Peon-cum-Messenger. It, therefore, cannot be said that they
were not aware of the statutory provisions contained in the said suit.
order of ban suggests that if any appointment was to be made due to exigencies
of work, the approval of the Director (Finance) or Managing Director was to be
obtained and the paper routed in respect thereof should be through the
corporate office. The Respondents contend that as at the point of time the
Managing Director, Shri S.S. Jain had been placed under suspension, the file was
placed before the General Manager (Marketing). The said plea cannot be accepted
for more than one reason.
regular incumbent or the Managing Director was placed under suspension,
somebody else must be incharge of the said post.
the file could be placed before the Director (Finance). The General Manager by
no stretch of imagination could accord approval for appointment.
of the learned counsel appearing on behalf of the Respondents to the effect
that the ban was only on paper is not a matter which would fall for
consideration of this Court inasmuch as it is not in dispute that the ban was
lifted only on 16.12.1994. On what premise, an advertisement was issued on
30.11.1993 is not known. It is not the case of the Respondent that despite
existence of ban some other workman was appointed prior to the lifting thereof.
Even if, recruitments have been made illegally, the Respondents cannot claim
any legal right on the basis thereof.
furthermore, is not a mode of appointment. If appointment is made without
following the Rules, the same being a nullity the question of confirmation of
an employee upon the expiry of the purported period of probation would not
arise. The Constitution Bench in Umadevi (supra) made a detailed survey of the
case laws operating in the field.
referral order to the Constitution Bench was made by a 3- Judge Bench of this
the conflicting opinions between the three Judges' Bench decisions in Ashwani
Kumar 1997 (2) SCC 1, State of Haryana and
Ors vs., Piara Singh and Ors. Reported in 1992 (4) SCC 118 and Dharwad Distt. P.W.D. Literate State of Karnataka and Ors. Reported in
1990 (2) SCC 396, on the one hand and State of Himachal Pradesh vs. Suresh
Kumar Verma and Anr., reported in AIR 1996 SC 1565, State of Punjab vs. Surinder
Kumar and Ors. Reported in AIR 1992 SC Karnataka and Ors., reported in 1979 (4)
SCC 507 on the other, which has been brought out in one of the judgments under
appeal of Karnataka High Court in State of Karnataka vs. H. Ganesh Rao, decided
on 1.6.2000, reported in 2001 (4) Karnataka Law Journal 466, learned Additional
Solicitor General urged that the scheme for regularization is repugnant to
Articles 16(4), 309, 320 and 335 of the Constitution of India and, therefore,
these cases are required to be heard by a Bench of Five learned Judges
On the other
hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees
urged that such a scheme for regularization is consistent with the provision of
Articles 14 and 21 of the Constitution.
Mr. V. Lakshmi Narayan,
learned counsel, appearing in CC Nos.109-498 of 2003, has filed the G.O. dated
19.7.2002 and submitted that orders have already been implemented.
After having found
that there is conflict of opinion between three Judges Bench decisions of this
Court, we are of the view that these cases are required to be heard by a Bench
of five learned Judges.
matters be placed before Hon'ble the Chief Justice for appropriate
orders." The Constitution Bench opined that any appointment made in
violation of the Recruitment Rules as also in violation of Articles 14 and 16
of the Constitution would be nullity. The contention raised on behalf of the
employees that those temporary or ad hoc employees who had continued for a
fairly long spell, the authorities must consider their cases for regularisation
was answered, thus:
respect, why should the State be allowed to depart from the normal rule and
indulge in temporary employment in permanent posts? This Court, in our view, is
bound to insist on the State making regular and proper recruitments and is
bound not to encourage or shut its eyes to the persistent transgression of the
rules of regular recruitment.
direction to make permanent -- the distinction between regularization and
making permanent, was not emphasized here -- can only encourage the State, the
model employer, to flout its own rules and would confer undue benefits on a few
at the cost of many waiting to compete. With respect, the direction made in
paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the
conclusion in paragraph 45 therein. With great respect, it appears to us that
the last of the directions clearly runs counter to the constitutional scheme of
employment recognized in the earlier part of the decision. Really, it cannot be
said that this decision has laid down the law that all ad hoc, temporary or
casual employees engaged without following the regular recruitment procedure should
be made permanent." It was furthermore opined:
"It is not necessary to notice
all the decisions of this Court on this aspect. By and large what emerges is
that regular recruitment should be insisted upon, only in a contingency an ad
hoc appointment can be made in a permanent vacancy, but the same should soon be
followed by a regular recruitment and that appointments to non-available posts
should not be taken note of for regularization.
cases directing regularization have mainly proceeded on the basis that having
permitted the employee to work for some period, he should be absorbed, without
really laying down any law to that effect, after discussing the constitutional
scheme for public employment." Taking note of some recent decisions of this
Court, it was held that the State does not enjoy a power to make appointments
in terms of Article 162 of the Constitution of India. It further quoted with
approval a decision of this Court in Union Public Service Commission v. Girish Jayanti
Lal Vaghela & Others [2006 (2) SCALE 115] in the following terms:
appointment to any post under the State can only be made after a proper
advertisement has been made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially constituted committee
whose members are fair and impartial through a written examination or interview
or some other rational criteria for judging the inter se merit of candidates
who have applied in response to the advertisement made. A regular appointment
to a post under the State or Union cannot be
made without issuing advertisement in the prescribed manner which may in some
cases include inviting applications from the employment exchange where eligible
candidates get their names registered.
appointment made on a post under the State or Union without issuing advertisement inviting applications from
eligible candidates and without holding a proper selection where all eligible
candidates get a fair chance to compete would violate the guarantee enshrined
under Article 16 of the Constitution..." It was clearly held:
binding decisions are clear imperatives that adherence to Articles 14 and 16 of
the Constitution is a must in the process of public employment." 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.
the Selection Committee had not been properly constituted. In view of the ban
in employment, no recruitment was permissible in law. The reservation policy
adopted by the Appellant had not been maintained.
cases of minorities had not been given due consideration.
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 [(1967) 1 SCR 799], Nanjundappa v. T. Thimmiah & Anr.[(1972)
2 SCR 799] and B.N. Nagarajan & Ors. v. State of Karnataka & Ors. [(1979) 3 SCR 937]
wherein this Court observed:
[(1979) 3 SCR 937], 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.
true that the Respondents had been working for a long time. It may also be true
that they had not been paid wages on a regular scale of pay. But, they did not
hold any post. They were, therefore, not entitled to be paid salary on a
regular scale of pay. Furthermore, only because the Respondents have worked for
some time, the same by itself would not be a ground for directing regularisation
of their services in view of the decision of this Court in Uma Devi (supra).
view of the authoritative pronouncement of the Constitution Bench, in our
opinion, the impugned judgments cannot be sustained.
are set aside accordingly.
Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit Singh are said to be
working. They may be relieved of their posts. We may, however, observe that
their cases may be considered for future appointment and age bar, if any, in
view of the policy decision of the Appellant itself may be relaxed to the
extent they had worked. The salary or any remuneration paid to them, however,
may not be recovered. This order, however, is being passed in exercise of our
jurisdiction under Article 142 of the Constitution of India keeping in view the
principles embodied in Section 70 of the Contract Act. The appeals are allowed.