Post
Master General, Kolkata & Ors Vs. Tutu Das (Dutta) [2007] Insc 502 (2 May 2007)
S.B. Sinha & Markandey Katju
[Arising out of S.L.P. (C) No. 21448 of 2005] S.B. SINHA, J.
1. Leave granted.
2. Respondent had been working as a substitute to a regular EDA as and when
he would remain on leave. She allegedly had completed a period of 240 days in
one year prior to 7.5.1985. Respondent joined her services on 1.10.1980. She
was disengaged on 10.9.1987.
3. On or about 12th / 13th November, 1987, a circular was issued stating
that although the substitutes of EDA were being engaged on an ad-hoc basis who
were required to perform their duties only for few hours a day, despite
absorption of the regular incumbents, they had been continued as daily rated
mazdoor and thus, irregular substitutes who had been working as such prior to
7.5.1985 may be considered for appointment as EDAs in vacant posts, even if
they had not been recruited through Employment Exchanges provided they were
found eligible therefor in all respects statin:- "....It has been decided
as one time exception, that such daily rated mazdoors irregular substitutes,
who have been working as such from a date prior to 7th May, 1985, the date of
issue of O.M. No.
49014/18/84-Estt.(C) dtd. 07.5.85 from the Govt. of India (Department of
Personnel & training) to tally banning appointment of casual workers
otherwise than through employment Exchanges may be considered for appointment
as EDAs in vacant posts even if they were not recruited through Employment
Exchanges provided they are eligible for such appointment in all respects. It
is reiterated that this concession has not been and cannot be given to the
daily rated/casual workers from 07.5.1985 from which date the nominees of the
Employment Exchange are only to be considered for such appointment......"
4. Respondent filed an original application before the Central
Administrative Tribunal claiming absorption in the post of EDA relying on or on
the basis of the said circular as also claiming parity in terms of an order
passed by the Central Administrative Tribunal, Calcutta Bench in O.A.
No. 731 of 1998, Niva Ghosh and Others v Union of India and Others which
although was initially dismissed but a direction was issued in a review
proceedings in terms of an order dated 30.9.1997 directing;
"This review petitioners shall be given an opportunity by the
respondents to produce documents in their possession in support of their period
of service claimed to have been rendered by them within 12 weeks from the date
of communication of this order and if such documents are produced, the same
shall be checked and verified by the respondent authorities with reference to
documents in their office and upon such verification, if it is found that the
petitioners or any of them had rendered 240 days of service as substitute ED
prior to 7.5.1985, the benefit of the letter dated 13.11.1987 of the PMG, West
Bengal Circle, shall be extended to them. In case it is found by the respondent
authorities after verification of documents, if any, produced by the
petitioner, they or any of them did not work for 240 days as substitute ED
prior to 7.5.1985, a reasoned order shall be passed and communicated to the
petitioners as soon as such an order is passed."
5. Whereas pursuant to the said direction, although the case of Niva Ghosh
was allegedly considered, her case was not, whereupon a contempt petition was
filed. In the said contempt proceedings, a stand was taken by the appellant
that she had not completed a period of 240 days in a year before the said cut
off date. The said contempt petition was dismissed with liberty to the
respondent to file a fresh original application. Pursuant to the said
observations, Respondent filed an application before the Central Administrative
Tribunal, Calcutta Bench, Calcutta which was marked as O.A. No. 484/2002.
6. By a judgment and Order dated 18.12.2003, the Central Administrative
Tribunal directed;
"Therefore, in the aforesaid fact situation, we direct the respondent
no. 2 to examine the available records along with certificate granted to the
applicant as regards the number of days she had purported to have worked, in
consultation with the notification and orders passed by the department from
time to time and to ascertain whether she had completed the requisite number of
days/ of work for regularisation in service.
In case she is found to have completed 240 days of work, it is needless to
mention that she should also be regularized."
7. Appellant herein filed a writ petition thereagainst which has been dismissed
by reason of the impugned judgment by a Division Bench of the Calcutta High
Court; proceeding on the premise that the respondent had been working since
1987. Relying or on the basis of a purported observations made by this Court in
Union of India and Others v Debika Guha and Others [(2000) 9 SCC 416] as also
the said purported circular dated 12th /13th November, 1987, the High Court
directed as under:- "Considering the aforementioned we find that
admittedly law is settled by the apex Court holding that even in such case of
the petitioner, on admitted facts the long period of service entitles the
employee to get regularisation. We also found that circular issued by the
authorities long back in the year 1987 recognised right of regularisation of an
employee in case of a continuous working inspite of irregularities in
particular factual circumstances. It is admitted that the case of the present
private Respondent is also governed by the said circular. In such
circumstances, we find that the direction given by the learned tribunal for
consideration of the case of the private Respondent here to be considered for
ascertaining whether she had rendered service for a long period, does not
require any interference. The complaint of the authorities as petitioners here
on the ground that the period of 240 days has no relevance through mentioned in
the order of the learned Tribunal, also does not require any interference as we
find that the said period is also a substantial long period in the facts and
circumstances of the case."
8. Mr. Rajiv Dutta, learned senior counsel appearing on behalf of the
appellant would submit that the impugned judgment cannot be sustained as
question of regularisation of the services of the respondent did not arise in
view of the decisions of this Court.
9. Mr. Pijush K. Roy, learned counsel appearing on behalf the respondent, on
the other hand, submitted that having regard to the decisions of this Court in
Debika Guha (supra) as also the fact that she had been discriminated against
vis-`-vis the aforementioned Niva Ghosh, the impugned judgment should not be
interfered with by this Court.
10. It was furthermore submitted that a Constitution Bench of this Court in
its decision in Secretary, State of Karnataka and Others v Umadevi (3) and Others
[(2006) 4 SCC 1] have opined that a case of this nature, the general ratio laid
down therein would not be attracted, the exception was made in paragraph 53
thereof is squarely attracted in the instant case.
11. We have noticed hereinbefore that when the services of the respondent
had not been regularized, she filed a contempt application. An extension was
sought for by the appellant to comply with the said direction, which having
been rejected, the respondent was asked to produce relevant documents showing
the period during which she had worked as EDA substitute in different post
offices under South Calcutta Division from time to time prior to 7.5.1985.
There is nothing on record to show that she brought such materials on records.
The Tribunal also did not come to a definite finding that the respondent had
completed 240 days in an year as a substituted EDA prior to issuance of the
said circular letter dated 12th /13th November, 1987. It, however, proceeded to
issue the directions which we have noticed hereinbefore.
12. What was considered to be permissible at a given point of time keeping
in view the decisions of this Court which had then been operating in the field,
does no longer hold good. Indisputably the situation has completely changed in
view of a large number of decisions rendered by this Court in last 15 years or
so. It was felt that no appointment should be made contrary to the statutory
provisions governing recruitment or the rules framed in that behalf under a
statute or the proviso appended to Article 309 of the Constitution of India.
13. Equality clause contained in Article 14 and 16 of the Constitution of
India must be given primacy. No policy decision can be taken in terms of
Article 77 or Article 162 of the Constitution of India which would run contrary
to the constitutional or statutory schemes.
14. The question involved herein came to be considered by a Constitution
Bench of this Court in Umadevi (supra) wherein noticing a long line of recent
decisions and upon consideration of the question as to whether the right to
life protected by Article 21 of the Constitution of India would include the
right of employment as well, vis-a-vis application of principles of equality,
it was inter alia held;
"Even at the threshold, it is necessary to keep in mind the distinction
between regularisation and conferment of permanence in service jurisprudence.
In State of Mysore v. S.V. Narayanappa this Court stated that it was a
misconception to consider that regularisation meant permanence. In R.N. Nanjundappa
v. T. Thimmiah this Court dealt with an argument that regularisation would mean
conferring the quality of permanence on the appointment. This Court stated:
(SCC pp. 416-17, para 26) "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 not 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."
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. This Court emphasised
that when rules framed under Article 309 of the Constitution are in force, no
regularisation 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 recognised 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 regularised and
that it alone can be regularised and granting permanence of employment is a
totally different concept and cannot be equated with regularisation.
*** *** *** *** 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
abovereferred 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.
It is also clarified that those decisions which run counter to the principle
settled in this decision, or in which directions running counter to what we
have held herein, will stand denuded of their status as precedents.
15. Before considering the submission of Mr. Roy based upon paragraph 53 of
Umadevi (supra), we may notice that in A. Umarani v Registrar, Cooperative
Societies and Others [(2004) 7 SCC 112,] this Court held;
" No regularisation 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. "
16. The short order which was the subject matter of decision of this Court
in Debika Guha (supra) also stood overruled in Umadevi (supra). We may at this
stage also notice that the concept of 240 days to be the cut off mark for the
purpose of regularisation of services came up for consideration of this Court
in Madhyamik Siksha Parishad, U.P. v Anil Kumar Mishra and Others etc. [AIR
1994 SC 1638], wherein it was clearly laid down that the completion of 240 days
of continuous service in a year would be attracted only in a case where
retrenchment has been effected without complying with the provisions contained
in Section 25F of the Industrial Disputes Act , but would not be relevant for
regularisation of service.
17. Submission of Mr. Roy is that the respondent has been discriminated
against inasmuch as although the services of Niva Ghosh were regularised, she
had not been, may now be noticed.
18. There are two distinctive features in the present case, which are:- (i)
Equality is a positive concept. Therefore, it cannot be invoked where any
illegality has been committed or where no legal right is established.
(ii) According to the appellant the respondent having completed 240 days,
does not fulfil the requisite criteria. A disputed question of fact has been
raised. The High Court did not come to a positive finding that she had worked
for more than 240 days in a year.
19. Even otherwise this Court is bound by the Constitution Bench decision.
Attention of the High Court unfortunately was not drawn to a large number of
recent decisions which had been rendered by this Court.
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 & Ors
[2006 (13) SCALE 426] 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
regularisation 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. &
Ors. vs. 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 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 1, 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."
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 & Ors. vs. Yogesh Chandra Dubey &
Ors. [(2006) 8 SCC 67] and State of M.P. & Ors. vs. Lalit Kumar Verma [2006
(12) SCALE 642].}
22. The same principle has been reiterated recently in Punjab State
Warehousing Corp., Chandigarh v Manmohan Singh & Anr. [2007 (3) SCALE 401].
23. For the reasons aforementioned, the impugned judgment cannot be
sustained It is set aside accordingly. The appeal is allowed. In the facts and
circumstances of this case, however, there shall be no order as to costs.
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