State of Punjab Vs.
Bahadur Singh & Ors. [2008] INSC 2204 (17 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7347 OF 2008 (Arising
out of SLP (C) No.4357 of 2006) State of Punjab ... Appellant Versus Bahadur
Singh & Ors. ... Respondents
S.B. Sinha, J.
1.
Leave
granted.
2.
This
appeal is directed against a judgment and order dated 2.8.2005 passed by the
Division Bench of the High Court of Punjab and Haryana disposing of the writ
petition in terms of its earlier judgment dated 12.8.2003 in Civil Writ
Petition No.1287 of 2003.
3.
The
basic fact of the matter is not in dispute.
2 The First
Respondent was appointed on 9.5.1982 in the post of a Driver on a work charge
basis. He continued to be employed in the said capacity without being
regularized. Respondent No.1 filed C.W.A. No.7389 of 2004 in the Punjab &
Haryana High Court seeking regularization of his service. As per the impugned
order, the said writ petition was disposed of in terms of judgment dated 12.8.2003
in C.W.P. No.1287 of 2003 4. Some Work charged employees like Respondent No.1
filed C.W.A. No.1287 of 2003 in the High Court of Punjab & Haryana seeking
regularization of their service. By an order dated 12.8.2003 (Annexure P- 3), a
Division Bench of the High Court in Writ Petition No.1287 of 2003 directed as
under :
"In the case in
hand, the petitioners have rendered more than 16 years of regular service with
the SYL Canal Project. They are drawing running pay scale. Their service books
have been maintained by the Department and their provident fund is being
deducted. They all fulfill the requisite qualifications for the post held by
them. Thus, present one is not even a case of relaxation of qualification for
the absorption of the petitioners.
1.
2.
3.
4.
The
Government has issued instructions for absorption of the petitioners. The
Government has issued instructions for absorption of the workers who have
rendered three years of regular service.
In spite of all this,
the petitioners have not been regularized in the service. The action of the 3
concerned authorities in not regularizing the services of the petitioners is
contrary to the letter and spirit of the instructions issued by the Government,
which also runs counter to the dictum of their Lordships of the Supreme Court
in the aforementioned Authorities. In Civil Writ P.R.T.C. etc.), it was held by
this Court that even a part time employee, working for a few hours every day,
is entitled to regularization under the instructions issued by the State
Government.
To sum up, it is the
admitted position that the authorities have adopted a pick and choose policy
while regularizing the services of the work- charge employees of the SYL Canal
Project. Even as per the instructions dated January 23, 2001 (Annexure P-11)
the regularization is to be made on the basis of seniority. However, the
principle of seniority has been given goodbye. Keeping in view the
aforementioned decisions of Hon'ble the Supreme Court as well as of this Court,
we find lease justification in the conduct of the authorities in not
regularizing the services of the petitioners despite their having rendered more
than 16 years of service.
For the reasons
recorded above, the petition is allowed. The respondents are directed to
regularize the services of the petitioners with all consequential reliefs
within two months from the date of receipt of a certified copy of this
order."
5.
A
Special Leave Petition was preferred thereagainst which was marked as SLP (C)
No.24325 of 2003. By an order dated 27.2.2004 notices 4 were issued. It
appears that similar matters came up before this Court and a Division Bench in
its order dated 26.3.2007 directed as under :
"Leave granted.
Counsel on both the
sides submit that the case in hand is squarely covered by a decision of this
Court in State of Punjab & Ors. v. Lakhwinder Singh & Ors., (2007) 2
SCC 502. In view thereof, the appeals are allowed and the judgment and orders
under challenge are set aside. The matters are remanded back to the High Court
for fresh consideration of the writ petitions. It is made clear that this court
is not expressing any opinion on the merits of the claim made by the concerned
employees."
6.
Indisputably,
a Constitution Bench of this Court in Secretary, State of Karnataka & Ors.
v. Umadevi (3) & Ors. [(2006) 4 SCC 1], inter alia, held that any
appointment made in violation of the constitutional scheme of equality would be
wholly illegal and, thus a nullity, stating :
"Thus, it is
clear that adherence to the rule of equality in public employment is a basic
feature of our Constitution and since the rule of law is the core of our
Constitution, a Court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold that 5 unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an end at the end
of the contract, if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is discontinued. Similarly,
a temporary employee could not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of selection as
envisaged by the relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose period of employment
has come to an end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right. High Courts acting under Article 226 of
the Constitution of India, should not ordinarily issue directions for
absorption, regularization, or permanent continuance unless the recruitment
itself was made regularly and in terms of the constitutional scheme. Merely
because, an employee had continued under cover of an order of Court, which we
have described as 'litigious employment' in the earlier part of the judgment,
he would not be entitled to any right to be absorbed or made permanent in the
service. In fact, in such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the employee approaching it
is Page 1945 found entitled to relief, it may be possible for it to mould the
relief in such a manner that 6 ultimately no prejudice will be caused to him,
whereas an interim direction to continue his employment would hold up the
regular procedure for selection or impose on the State the burden of paying an
employee who is really not required.
The courts must be
careful in ensuring that they do not interfere unduly with the economic
arrangement of its affairs by the State or its instrumentalities or lend
themselves the instruments to facilitate the bypassing of the constitutional
and statutory mandates."
However, it was
furthermore opined :
"One aspect
needs to be clarified. There may be cases where irregular appointments (not
illegal appointments) as explained in S.V. Narayanappa (supra), R.N.
Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph
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 courts or of tribunals. The question of
regularization 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 regularize 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 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 7 are being now employed. The process must be set in motion within six
months from this date. We also clarify that regularization, if any already
made, but not subjudice, need not be reopened based on this judgment, but there
should be no further by-passing of the constitutional requirement and
regularizing or making permanent, those not duly appointed as per the
constitutional scheme."
7.
Learned
counsel appearing on behalf of the respondent would submit that in view of the
aforementioned directions of this Court in Uma Devi (3) (supra), the matter
should be remitted to the High Court. It was furthermore contended that
appointment of the respondents on a work charge basis being permissible in law,
the decision of the Constitution Bench of this Court would not be applicable.
8.
We
are aware of the fact that paragraph 53 of Uma Devi (3) (supra) had been read
differently by different Benches. We have, however, no doubt in our mind that
the Constitution Bench deprecated appointment through side door/back door being
contrary to the constitutional scheme of equality. Paragraph 53 of the said
decision by way of one time scheme refers to those cases, inter alia, where
orders of regularization had attained finality. The very fact that this Court
therein referred to the decisions of this Court in State of Mysore & Anr.
v. S.V. Narayanappa [(1967) 1 SCR 128 8 and B.N. Nagarajan & Ors. v. State
of Karnataka & Ors. [(1979) 4 SCC 507] clearly goes to show that the same
has to be read in the context thereof and not de hors the same.
This Court in B.N. Nagarajan
clearly stated that whereas any irregularity can be regularized but an
illegality cannot be. It was furthermore stated that regularization would not
mean permanency. This aspect of the matter has been highlighted in a number of
decisions.
9.
In
State of M.P. & Ors. v. Lalit Kumar Verma [(2007) 1 SCC 575], this Court
stated :
"12. 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 with the
constitutional scheme as also the rules have been made, the appointment may be
irregular in the sense that some provisions of some rules might not have been
strictly adhered to."
10.
In
relation to almost similar orders, it was noticed in Post Master General,
Kolkata & Ors. v. Tutu Das (Dutta) [(2007) 5 SCC 317], it was noticed :
"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 and Ors. [(2007) 2 SCC 491} 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 regularization 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. and Ors. v. 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 Page 2419 ban on employment, no recruitment was
permissible in law. The reservation policy adopted by the appellant had not 10
been maintained. Even cases of minorities had not been given due
consideration.' The Constitution Bench thought of directing regularization 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:
`16. In B.N.
Nagarajan v. State of Karnataka 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.
{See also State of
Madhya Pradesh and Ors. v. Yogesh Chandra Dubey and Ors. [(2006) 8 SCC 67] and
State of M.P. and Ors. v. Lalit Kumar Verma[(2007) 1 SCC 575]}
22. The same
principle has been reiterated recently in Punjab State Warehousing Corp.,
Chandigarh v.
Manmohan Singh and
Anr. [2007 (3) SCALE 401]."
11.
In
this view of the matter, we are of the opinion that the impugned judgment of
the High Court cannot be sustained. It is set aside accordingly and the matter
is remitted to the High Court for consideration of the matter afresh in the
light of the observations made hereinbefore keeping in view the statement made
by Mr. Jain that the appointment in the work charge establishment was
permissible in law and the recruitments had been made in accordance with law.
12.
The
appeal is allowed with the aforementioned direction. In the facts and
circumstance of the case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Cyriac Joseph]
New
Delhi;
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