State
Of Gujarat & Anr Vs. Karshanbhai K. Rabari
& Ors [2006] Insc 423 (18 July 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(Arising
out of SLP (C) Nof . 6979 of 2005) ARIJIT PASAYAT, J.
Leave
granted.
The
State of Gujarat and Superintending Engineer, Capital Project Circle, Gandhinagar,
Gujarat, question legality of the judgment rendered by a Division Bench of the
Gujarat High Court . By the impugned judgment the Division Bench set aside the
judgment of a learned Single judge who had dismissed the writ petition filed by
the respondents. Learned Single Judge held that the respondents were daily
workers who were temporarily appointed for transitory work on a work charge
basis and could not be treated at par with regular employees who were appointed
on the basis of Recruitment Rules.
The
Division Bench by the impugned judgment held that the respondents were entitled
to all the benefits available to permanent employees of the State Government
under the Government Resolution dated 17.10.1988 and no order diluting/reversing
the same can/could be passed by any other Authority/Functionaries of the State
Government.
Accordingly
the Letters Patent Appeal filed by the respondents was allowed and the
Communication/Order dated 12.8.1991 by the State Government was quashed. It was
held that benefits apart from those clearly mentioned in the resolution dated
17.10.1988 like leave travel concession, leave increment, various advances,
allotment of Government quarter were admissible to daily wagers covered under
the said resolution.
Learned
counsel for the appellant submitted that the view expressed by the Division
Bench is clearly contrary to what has been stated by a Constitution Bench of
this Court in Secretary, State of Karnataka and Others v. Umadevi and Ors. [2006 (4) SCC 1]. It was further
submitted that the Division Bench erroneously held that other benefits apart
from those expressly mentioned in the Resolution dated 17.10.1988 were
admissible as the expression "etc"(etcetera) has been mentioned. It
was submitted that the view expressed in this Court is clearly contrary to what
has been stated in Union of India and Another v. Manu Dev Arya [2004(5) SCC
232].
Learned
counsel for the respondents on the other hand submitted that the High Court has
adopted the view necessary to be taken in the case of poor employees who have
been rendering services for a very long period.
We
find that the case of the parties has to be considered in the light of what has
been stated by this Court in Uma Devi's case (supra). It has been inter alia
observed by the Constitution Bench as follows :
"Even
at the threshold, it is necessary to keep in mind the distinction between
regularization and conferment of permanence in service jurisprudence. In State
of Mysore v. S.V. Narayanappa AIR 1967 SC 1071 this Court stated that it was a mis-conception
to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah
and Anr. [1972 (1) SCC 409], this Court dealt with an argument that
regularization would mean conferring the quality of permanence on the
appointment. This Court stated:- "Counsel on behalf of the respondent
contended that regularization would mean conferring the quality of permanence
on the appointment, whereas counsel on behalf of the State contended that
regularization did not mean permanence but that it was a case of regularization
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 regularized.
Ratification
or regularization 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.
Regularization
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." In B.N. Nagarajan and
Ors. v. State of Karnataka and Ors. [(1979) 4 SCC 507] 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. This court emphasized that when rules framed under Article 309 of
the Constitution of India are in force, no regularization is permissible in
exercise of the executive powers of the Government under Article 162 of the
Constitution in contravention of the rules. These decisions and the principles
recognized therein have not been dissented to by this Court and on principle,
we see no reason not to accept the proposition as enunciated in the above
decisions. We have, therefore, to keep this distinction in mind and proceed on
the basis that only something that is irregular for want of compliance with one
of the elements in the process of selection which does not go to the root of
the process, can be regularized and that it alone can be regularized and
granting permanence of employment is a totally different concept and cannot be
equated with regularization.
One
aspect arises. Obviously, the State is also controlled by economic
considerations and financial implications of any public employment. The
viability of the department or the instrumentality or of the project is also of
equal concern for the State. The State works out the scheme taking into
consideration the financial implications and the economic aspects. Can the
court impose on the State a financial burden of this nature by insisting on
regularization or permanence in employment, when those employed temporarily are
not needed permanently or regularly? As an example, we can envisage a direction
to give permanent employment to all those who are being temporarily or casually
employed in a public sector undertaking. The burden may become so heavy by such
a direction that the undertaking itself may collapse under its own weight. It
is not as if this had not happened. So, the court ought not to impose a
financial burden on the State by such directions, as such directions may turn
counter- productive.
In
Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt.)
[1992 (4) SCC 33], this Court held that since the appointment was on purely
contractual and ad hoc basis on consolidated pay for a fixed period and
terminable without notice, when the appointment came to an end by efflux of
time, the appointee had no right to continue in the post and to claim
regularization in service in the absence of any rule providing for
regularization after the period of service. A limited relief of directing that
the appointee be permitted on sympathetic consideration to be continued in
service till the end of the concerned calendar year was issued. This Court
noticed that when the appointment was purely on ad hoc and contractual basis
for a limited period, on the expiry of the period, the right to remain in the
post came to an end. This Court stated that the view they were taking was the
only view possible and set aside the judgment of the High Court which had given
relief to the appointee.
This
Court also quoted with approval the observations of this Court in Teri Oat
Estates (P) Ltd. v. U.T., Chandigarh
[2004 (2) SCC 130] to the effect:
"We
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 extraordinary
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." This decision kept in mind the distinction
between 'regularization' and 'permanency' and laid down that regularization is
not and cannot be the mode of recruitment by any State. It also held that
regularization cannot give permanence to an employee whose services are ad hoc
in nature.
It is
not necessary to multiply authorities on this aspect. It is only necessary to
refer to one or two of the recent decisions in this context.
In
State of U.P. v. Niraj Awasthi and Ors. 2006 (1)
SCC 667 this Court after referring to a number of prior decisions held that
there was no power in the State under Art. 162 of the Constitution of India to
make appointments and even if there was any such power, no appointment could be
made in contravention of statutory rules. This Court also held that past
alleged regularisation or appointment does not connote entitlement to further
regularization or appointment. It was further held that the High Court has no
jurisdiction to frame a scheme by itself or direct the framing of a scheme for
regularization. This view was reiterated in State of Karnataka v. KGSD Canteen Employees Welfare
Association [(2006) 1 SCC 567]." So far as the entitlement of the
respondents on the basis of the Resolution dated 17.10.1988 where the word
'etc' has been used is concerned, has to be considered in the light of what has
been stated by this Court in Manu Dev Arya's case (supra).
We,
therefore, remit the matter to the High Court for fresh consideration, keeping
in view what has been indicated by this Court in Uma Devi's Case (supra) and
Manu Dev Arya's case (supra).
Accordingly,
the appeal is allowed, but without any order as to costs.
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