Municipal
Corporation, Jabalpur Vs. Om Prakash Dubey [2006] Insc 898 (5 December 2006)
S.B.
Sinha & Markandey Katju
(Arising
out of S.L.P. (C) No. 5065 of 2006) S.B. Sinha, J.
Leave
granted.
Appellant
is a Municipal Corporation constituted under the Madhya Pradesh Municipal
Corporation Act, 1956 (for short, 'the Act').
Indisputably,
the terms and conditions of service of its employees are governed by statutory
rules. Yet again in terms of Section 58 of the Act, the State of Madhya Pradesh may issue directions, which the
Corporation is obliged to follow.
A
large number of employees were appointed by the Corporation on daily wages. The
terms and conditions of their appointment are not known.
It is,
however, not disputed that recruitment procedure, as laid down by the rules
framed by the State of Madhya
Pradesh in terms of
the said provisions of the Act, had not been followed. Industrial disputes were
said to have been raised and different labour courts in their Awards arrived at
different conclusions. The Municipal Corporation purported to have laid down a
policy decision to regularise the services of the employees in terms whereof
those who had been working from a period prior to 31st December, 1983 were to be regularized according to seniority and
availability of posts on fulfilling the eligibility criteria laid down therefor.
Several writ petitions were filed questioning the correctness or otherwise of
the said Awards.
When
the matter was pending before the High Court, the counsel appearing on behalf
of the Corporation brought to its notice about the said purported scheme of the
State.
Respondent
herein was one of the six petitioners in Writ Petition No.4739 of 1998, which
was also disposed of together with other writ applications pending before the
High Court. A contempt petition came to be filed by the respondent herein
alone, although, as noticed hereinbefore, the scheme involved a large number of
workmen who were parties before the High Court. The said contempt petition was
filed, inter alia, on the premise that the Corporation had been making
discrimination amongst the employees in the matter of regularisation of their
services. By reason of the impugned judgment dated 18.8.2005, having regard to
the submissions made before it on behalf of the parties, the High Court
directed:
"Considering
the contention of the non-applicant and after hearing the applicant, it will be
appropriate if respondent is permitted to prepare a fresh gradation list as per
date of engagement of all the daily rated employees. The gradation list shall
also reflect education qualifications of all respective employees. Aforesaid
gradation list be prepared by the respondent within a period of 45 days from
today and shall be published on a notice board of the Municipal Corporation inviting
objection, if any from the employees. A period of 15 days shall be given to the
employees to submit their objection. If any objection is filed by any of the
employees in respect of gradation list, it shall be considered and decided by
the respondent within a period of two weeks thereafter. Then a final gradation
list shall be published in the notice board of the Corporation.
Thereafter,
respondent shall take the exercise for regularisation of the employees as
directed by this Court in Ramdhar Case (W.P.No.1464/01) Decided on 27.2.2003).
Aforesaid exercise shall be completed within a period of three months.
From
the perusal of the order of the Commissioner dated 10.8.2005, it appears that
some of the officers of the Municipal Corporation joined hands with the
employees and manipulated the gradation list and or issued regularisation
orders which are contrary to the directions issued by this Court in Ramadhar
case. All the concerned employees who are responsible for the aforesaid
mischief deserve an appropriate action by the Commissioner, Municipal
Corporation, in these circumstances, Commissioner, Municipal Corporation is
directed to take departmental action against all the erring officers who have
played mischief or played some malafide rate (sic) in issuing the order of regularisation
which are contrary to the directions issued by this Court in Ramadhar Case or
have manipulated the things for the purpose of issuing regularisation orders of
the employees who were not eligible for the regularisation. Aforesaid action
shall be taken by the Commissioner, Municipal Corporation within a period of
three months from today.
In
case some action is to be taken by the State, an appropriate step shall be
taken by him in this regard drawing attention of the State within a period of
30 days from today.
The
Commissioner, Municipal Corporation shall be responsible for the compliance of
this order. A compliance report of this order be sent to the Registry of this
Court within a period as fixed by this Court hereinabove.
Report
filed in a sealed cover is returned to Shri Sharad Verma, learned
counsel." The Municipal Corporation is, thus, before us.
Mr. Ranjan
Mukherjee, learned counsel appearing on behalf of the appellant would submit
that the High Court committed a serious error in issuing the aforesaid
directions, as the purported policy decision dated 31.3.1997, on the basis
whereof the High Court passed its order framing a scheme of regularisation on
27.2.2003, has been superceded by the State by issuing a circular dated
12.4.2005, inter alia, stating:
"Appointments
made on the above daily wage were not made keeping in view the provisions of
Departmental Recruitment Rules and other reservation provisions, rather
employees were engaged as per the requirement of the work. Supreme Court has
made the observation in regard to the civil posts of daily wage
employees/workers and regularisation in the services in the Case Suresh Kumar Verma
and such regularisation had been deemed violation of Articles 14 and 16 of the
Constitution. It has also been observed in the above case by the Supreme Court
that appointment made on the basis of daily wages could not be deemed the
appointment made as per the relevant recruitment rules against the Civil Posts
and appointment could be made against the Civil Posts only after following the
procedure of recruitment as per the relevant recruitment rules.
Above
ruling laid down by the Supreme Court has already been submitted to all the
Departments/ Appointing Authorities vide even numbered memo dated 01.11.2004 of
this Department." The learned counsel would contend that having regard to
the various decisions of this Court and in particular, the Constitution Bench
Judgment in Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors.
[(2006) 4 SCC 1] the impugned judgment cannot be sustained.
Mr. Ravindra
Shrivastava, learned Senior Counsel appearing on behalf of the respondent, on
the other hand, would contend that the High Court issued direction to regularise
the services of the workmen, keeping in view different Awards passed in their favour
by the Labour Court as also the policy decision adopted by the appellant
itself. It was further submitted that in this case the directions contained in
paragraph 53 of the decision of the issued by the Constitution Bench of this
Court in Umadevi (supra), shall be applicable.
Appellant
is a "State" within the meaning of Article 12 of the Constitution of
India. It, being a statutory authority, in the matter of recruitment of
employees is bound by the constitutional provisions contained in Articles 14
and 16 of the Constitution as also the rules and regulations framed by it.
Indisputably, it did not have the last say as all appointments were subject to
approval of the State of Madhya
Pradesh, whose
decision was to be final. Indisputably again, the concerned employees were
recruited in terms of the extant rules. Prior to their appointment, no
advertisement has been issued. The employment exchange had not been notified in
regard to the existing vacancy. In short, the principle of 'public employment'
laid down under Article 16 of the Constitution of India has not been complied
with. Regularisation, as is well known, is not a mode of appointment.
Regularisation,
again indisputably, does not mean permanence. However, having noticed that
different Benches of this Court had been passing different orders, in
Secretary, State of Karnataka & Ors. vs. Umadevi (2) & Ors. [(2006) 4
SCC 44: (2003) 10 SCALE 388], a Three Judge Bench referred the matter to the
Constitution Bench. In Umadevi (3) (supra), the Constitution Bench held :
"During
the course of the arguments, various orders of the courts either interim or
final were brought to our notice. The purport of those orders more or less was
the issue of directions for continuation or absorption without referring to the
legal position obtaining. Learned counsel for the State of Karnataka submitted
that chaos has been created by such orders without reference to the legal
principles and it is time that this Court settled the law once and for all so
that in case the Court finds that such orders should not be made, the courts,
especially, the High Courts would be precluded from issuing such directions or
passing such orders. The submission of learned counsel for the respondents based
on the various orders passed by the High Court or by the Government pursuant to
the directions of the Court also highlights the need for settling the law by
this Court. The bypassing of the constitutional scheme cannot be perpetuated by
the passing of orders without dealing with and deciding the validity of such
orders on the touchstone of constitutionality. While approaching the questions
falling for our decision, it is necessary to bear this in mind and to bring
about certainty in the matter of public employment. The argument on behalf of
some of the respondents is that this Court having once directed regularisation
in Dharwad case all those appointed temporarily at any point of time would be
entitled to be regularised since otherwise it would be discrimination between
those similarly situated and in that view, all appointments made on daily
wages, temporarily or contractually, must be directed to be regularised.
Acceptance
of this argument would mean that appointments made otherwise than by a regular
process of selection would become the order of the day completely jettisoning
the constitutional scheme of appointment. This argument also highlights the
need for this Court to formally lay down the law on the question and ensure
certainty in dealings relating to public employment. The very divergence in
approach in this Court, the so-called equitable approach made in some, as
against those decisions which have insisted on the rules being followed, also
justifies a firm decision by this Court one way or the other. It is necessary
to put an end to uncertainty and clarify the legal position emerging from the
constitutional scheme, leaving the High Courts to follow necessarily, the law
thus laid down." Referring to a large number of decisions which have been
rendered by different Benches of this Court from time to time, the Constitution
Bench categorically opined:
"While
directing that appointments, temporary or casual, be regularised or made
permanent, the courts are swayed by the fact that the person concerned has
worked for some time and in some cases for a considerable length of time. It is
not as if the person who accepts an engagement either temporary or casual in
nature, is not aware of the nature of his employment. He accepts the employment
with open eyes. It may be true that he is not in a position to bargain not at
arms length since he might have been searching for some employment so as to
eke out his livelihood and accepts whatever he gets. But on that ground alone,
it would not be appropriate to jettison the constitutional scheme of
appointment and to take the view that a person who has temporarily or casually
got employed should be directed to be continued permanently. By doing so, it
will be creating another mode of public appointment which is not permissible.
If the court were to void a contractual employment of this nature on the ground
that the parties were not having equal bargaining power, that too would not
enable the court to grant any relief to that employee. A total embargo on such
casual or temporary employment is not possible, given the exigencies of
administration and if imposed, would only mean that some people who at least
get employment temporarily, contractually or casually, would not be getting
even that employment when securing of such employment brings at least some succour
to them. After all, innumerable citizens of our vast country are in search of
employment and one is not compelled to accept a casual or temporary employment
if one is not inclined to go in for such an employment. It is in that context
that one has to proceed on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing from it. In other words,
even while accepting the employment, the person concerned knows the nature of
his employment. It is not an appointment to a post in the real sense of the
term.
The
claim acquired by him in the post in which he is temporarily employed or the
interest in that post cannot be considered to be of such a magnitude as to
enable the giving up of the procedure established, for making regular
appointments to available posts in the services of the State. The argument that
since one has been working for some time in the post, it will not be just to
discontinue him, even though he was aware of the nature of the employment when
he first took it up, is not (sic) one that would enable the jettisoning of the
procedure established by law for public employment and would have to fail when
tested on the touchstone of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution." By way of clarification,
however, in paragraph 53 of its judgment this Court clarified:
"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 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 regularise 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 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."
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 of the
constitutional scheme as also the rules have been made, the appointment may be
irregular in the sense that some provisions of the rules might not have been
strictly adhered to.
In
R.N. Nanjundappa vs. T. Thimmiah & Anr. [(1972) 1 SCC 409], this Court held:
"The
contention on behalf of the State that a rule under Article 309 for regularisation
of the appointment of a person would be a form of recruitment read with
reference to power under Article 162 is unsound and unacceptable. The executive
has the power to appoint.
That
power may have its source in Article 162. In the present case the rule which regularised
the appointment of the respondent with effect from February 15, 1958, notwithstanding any rules cannot be said to be in exercise
of power under Article 162. First, Article 162 does not speak of rules whereas
Article 309 speaks of rules.
Therefore,
the present case touches the power of the State to make rules under Article 309
of the nature impeached here. Secondly when the Government acted under Article
309 the Government cannot be said to have acted also under Article 162 in the
same breath. The two articles operate in different areas. Regularisation cannot
be said to be a form of appointment. 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 dot 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."
[Emphasis supplied] Yet again, in B.N. Nagarajan & Ors. vs. State of
Karnataka & Ors. [(1979) 4 SCC 507], this Court followed the said dicta stating
:
"Apart
from repelling the contention that regularisation connotes permanence, these
observations furnish the second reason for rejection of the argument advanced
on behalf of the promotees and that reason is that when rules framed under
Article 309 of the Constitution of India are in force, no regularisation is
permissible in exercise of the executive powers of the Government under Article
162 thereof in contravention of the rules. The regularisation order was made
long after the Probation Rules, the Seniority Rules and the Recruitment Rules
were promulgated and could not therefore direct something which would do
violence to any of the provisions thereof. Regularisation in the present case,
if it meant permanence operative from November 1, 1956, would have the effect
of giving seniority to promotees over the direct recruits who, in the absence
of such regularisation, would rank senior to the former because of the
Seniority Rules read with the Probation Rules and may in consequence also
confer on the promotees a right of priority in the matter of sharing the quota
under the Recruitment Rules. In other words, the regularisation order, in colouring
the appointments of promotees as Assistant Engineers with permanence would run
counter to the rules framed under Article 309 of the Constitution of India.
What could not be done under the three sets of Rules as they stood, would thus
be achieved by an executive fiat. And such a course is not permissible because
an act done in the exercise of the executive power of the Government, as
already stated, cannot override rules framed under Article 309 of the
Constitution." This aspect of the matter has been considered in National Fetilizers
Ltd. & Ors. vs. Somvir Singh [(2006) 5 SCC 493], stating :
"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, 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."" {See also State of Gujarat & Anr. vs. Karshanbhai
K. Rabari & Ors. [(2006) 6 SCC 21].} Yet, recently in Principal, Mehar Chand
Polytechnic & Anr. vs. Anu Lamba & Ors. [(2006) 7 SCC 161], it was held
:
"The
respondents did not have legal right to be absorbed in service. They were
appointed purely on temporary basis. It has not been shown by them that prior
to their appointments, the requirements of the provisions of Articles 14 and 16
of the Constitution had been complied with. Admittedly, there did not exist any
sanctioned post. The Project undertaken by the Union of India although
continued for some time was initially intended to be a time-bound one. It was
not meant for generating employment. It was meant for providing technical
education to the agriculturists. In the absence of any legal right in the
respondents, the High Court, thus, in our considered view, could not have
issued a writ of or in the nature of mandamus."
This
Court, in Surinder Prasad Tiwari vs. U.P. Rajya Krishi Utpadan Mandi Parishad &
Ors. [(2006) 7 SCC 684), held:
"Our
constitutional scheme clearly envisages equality of opportunity in public
employment. The Founding Fathers of the Constitution intended that no one
should be denied opportunity of being considered for public employment on the
ground of sex, caste, place of birth, residence and religion. This part of the
constitutional scheme clearly reflects strong desire and constitutional
philosophy to implement the principle of equality in the true sense in the
matter of public employment.
In
view of the clear and unambiguous constitutional scheme, the courts cannot
countenance appointments to public office which have been made against the
constitutional scheme. In the backdrop of constitutional philosophy, it would
be improper for the courts to give directions for regularisation of services of
the person who is working either as daily-wager, ad hoc employee, probationer,
temporary or contractual employee, not appointed following the procedure laid
down under Articles 14, 16 and 309 of the Constitution.
In our
constitutional scheme, there is no room for back door entry in the matter of
public employment." We are, however, not oblivious that another Division
Bench of this Court in Mineral Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd. & Anr.
[(2006) 6 SCC 310], to which our attention has been drawn by Mr. Shrivastava, held
:
"We,
therefore, direct the Tribunal to decide the claim of the workmen of the Union
strictly in accordance with and in compliance with all the directions given in
the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi
(3) and in particular, paras 53 and 12 relied on by the learned Senior Counsel
appearing for the Union. The Tribunal is directed to dispose of the matter
afresh within 9 months from the date of receipt of this judgment without being
influenced by any of the observations made by us in this judgment. Both the
parties are at liberty to submit and furnish the details in regard to the names
of the workmen, nature of the work, pay scales and the wages drawn by them from
time to time and the transfers of the workmen made from time to time, from
place to place and other necessary and requisite details. The above details
shall be submitted within two months from the date of the receipt of this
judgment before the Tribunal." The said directions were issued keeping in
view the peculiar facts, wherewith we are not concerned. The attention of this
Court furthermore was not drawn to the judgment of this Court rendered in R.N. Nanjundappa
(supra), State of Mysore & Anr. vs. S.V. Narayanappa [AIR 1967 SC 1071] and
B.N. Nagarajan (supra).
We may
notice that the decision of this Court in B.N. Nagarajan (supra) was rendered
by a Three Judge Bench. Evidently, the attention of the Court had also not been
drawn to the decision of this Court in National Fetilizers Ltd. (supra).
There
is another aspect of the matter which cannot be lost sight of.
The
Corporation may be bound by the decision of the High Court, but it was also
bound by the direction of the State of Madhya Pradesh. If it had violated the direction of the State, in terms
whereof its earlier policy decision stood reversed, it cannot be said to have
committed a contempt of court. The question recently came up for consideration
in State of Orissa & Anr. vs. Aswini Kumar Baliar Singh [(2006) 6 SCC 759],
wherein a Division Bench of this Court held that the Court is primarily
concerned with the question of contumacious conduct of the party who is alleged
to have committed default in complying with the directions in the judgment and
order. It was held:
"In
the instant case, the action taken by the respondent in purported violation of
the Court's order arose owing to a subsequent cause of action, namely, orders
passed by the State of Orissa and unless the said orders were set
aside, the Inspector of Schools can be said to have flouted the order of the
High Court......." We are in this case not called upon to consider the
implication of the Awards, which might have been passed in favour of the
workmen. The Division Bench, by reason of the impugned judgment had issued
directions in exercise of its jurisdiction under Section 12 of the Contempt of
Courts Act, 1971, without arriving at a finding as to how the Corporation has
violated its order. It issued directions which are contrary to or inconsistent
with the directions issued by a learned Single Judge by an order dated
27.2.2003.
The
judgment of the Division Bench is, thus, subject to correction by this Court
both under Article 136 of the Constitution of India as also under Section 19 of
the Contempt of Court Act.
Recently
in R. v. Serumaga [2005 (2) All ELR 160], it was opined:
"Section
13 of the 1960 Act provides as follows:
'(1)
Subject to the provisions of this section, an appeal shall lie under this
section from any order or decision of a court in the exercise of jurisdiction
to punish for contempt of court (including criminal contempt); and in relation
to any such order or decision the provisions of this section shall have effect
in substitution for any other enactment relating to appeals in civil or
criminal proceedings.
(2) An
appeal under this section shall lie in any case at the instance of the
defendant and, in the case of an application for committal or attachment, at
the instance of the applicant; and the appeal shall lie ... (bb) from an order
or decision of the Crown Court to the Court of Appeal ...
(3)
The court to which an appeal is brought under this section may reverse or vary
the order or decision of the court below; and make such other order as may be
just ...' We have considered two interpretations of s 13(1).
The
narrow interpretation is to the effect that it is not triggered until the
contemnor has been convicted of, and sentenced for, the contempt. The broad
interpretation is that the language 'any order or decision ... in the exercise
of jurisdiction to punish for contempt' is sufficiently wide to relate also to
orders or decisions made in the course of proceedings which may result in a
conviction of and sentence for contempt. But we have come to the conclusion
that the broad interpretation is the correct one.
The
statutory language permits it. It provides a remedy in a case of unjustifiably
prolonged custody, and it does so without impinging on cases where the
allegation is of an offence other than contempt of court. Moreover, there are
exceptional features which surround summary proceedings for contempt which, as
the authorities make clear, demand an enlarged process of judicial
scrutiny...." {See also Modi Telefibres Ltd. & Ors. vs. Sujit Kumar Choudhary
& Ors. [2005 (7) SCC 40] and see also Vivek Sarin vs. Multi Metal Udyog
[(2005) 11 SCC 495].} We, therefore, for the reasons aforementioned, are unable
to uphold the impugned order which is accordingly set aside.
The
appeal is allowed with the aforementioned observations and directions. No
costs.
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