REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3337-3361       OF 2009   [Arising out of Special Leave Petition (Civil) Nos. 11670-11694 of 2005]

HARMINDER KAUR & ORS. …APPELLANTS VERSUS

UNION OF INDIA & ORS.        … RESPONDENTS

WITH  CIVIL APPEAL NOS.    3299-3305       OF 2009

[Arising out of Special Leave Petition (Civil) Nos. 11926-11932 of 2005]

ARUNIMA SHARMA & ORS.        … APPELLANTS

VERSUS

U.O.I. & ORS.             … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellants  are  school  teachers.   They  were  appointed  by  the  

Education  Department  of  Chandigarh  Administration  on  contract  basis.  

Their  services  are  governed  by  Chandigarh  Education  Service  (School  

Cadre) (Group ‘C’) Recruitment Rules, 1991 (for short, “Recruitment Rules,

1991”).  We may notice one of the offers of appointment made to one of the  

appellants herein, relevant clauses whereof reads as under:

“2. That  the  person  be  appointed  through  Regional  Employment  Exchange  after  sending the requisition.

3. That the contract should be for six months  which can be extended further on the basis  of performance report for further six months  with suitable break.

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7. That  they  will  have  no  claim  for  ad  hoc/regular  appointment  available  in  the  institute.

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9. The  contractual  appointment  will  only  be  made against the sanctioned posts.

10. The  contractual  appointment  will  only  be  made when the incumbent has proceeded on  leave or is not available for teaching beyond  45 days within 45 days no substitute can be  provided as per rules.

11. The persons put on contracts will only be for  a specified period which should not exceed  more  than  six  months  or  till  the  regular  incumbent  of  the  post  is  absent  for  not  exceeding one year.”

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3. Indisputably,  appellants  fulfilled  the  requisite  educational  

qualification.   They  have  been  drawing  salary  on  a  scale  of  pay.  

Indisputably again they had been continuing in the said posts for a long time.  

Appellants, contending that they were entitled to be absorbed in the  

services  of  the  Education  Department,  filed  applications  for  their  

regularization  before  the  Central  Administrative  Tribunal  (for  short,  “the  

Tribunal”) on the premise that the respondent – Administration could not  

have  issued  fresh  advertisement  for  appointment  of  teachers  .   The  said  

applications, however, were allowed only to the extent that they may not be  

replaced  or  substituted  by  another  set  of  teachers  appointed  on  contract  

basis.   

4. Another  original  application  was  filed  before  the  Tribunal  for  a  

direction  on  the  respondent  herein  to  frame  a  scheme  and/or  policy  to  

regularize their services and respondents be restrained from appointing or  

recruiting regular teachers.  

By order dated 27.8.2003, the Tribunal dismissed the said Original  

Application opining that they had no right to be regularized in service and  

their  appointment  has  to  come  to  an  end  on  their  replacement  by  the  

regularly selected teachers.  

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6. However,  the  respondent  –  Administration  directed  appointment  of  

teachers on deputation basis from the States of Punjab and Haryana by an  

order dated 15.9.2003.   

7. On or about 9.10.2003, appellants filed writ petitions before the High  

Court  challenging the judgment and order dated 27.8.2003 passed by the  

Tribunal.   

8. By reason of the impugned judgment, the said writ petitions have been  

dismissed.  

9. Mr.  J.L.  Gupta  and  Mr.  P.S.  Patwalia,  learned  Senior  Counsel  

appearing on behalf of the appellants would contend that the appointments  

having been made strictly in terms of the Rules framed by the respondent –  

Administration,  the impugned judgment  is  liable  to be set  aside.   It  was  

furthermore contended that having regard to the fact that a large number of  

sanctioned  posts  have  been  lying  vacant  and  as  the  appellants  have  the  

essential  academic  qualification,  this  Court  should  apply  the  principles  

stated  at  Paragraph  53  of  the  decision  of  the  Constitution  Bench  in  

Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1.

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10. Ms.  Kamini  Jaiswal,  learned  counsel  appearing  on  behalf  of  the  

respondents, on the other hand, would support the impugned judgment.  

11. As  indicated  hereinbefore,  the  matter  relating  to  recruitment  of  

teachers  is  governed  by  statutory  rules  known  as  Chandigarh  Education  

Service (School Cadre) (Group – C) Recruitment Rules, 1991; Rules 4 and 6  

whereof read as under:

“4. Method  of  Recruitment,  Age  limit  and  qualification, etc.:-

The method of recruitment to the said posts,  age  limit,  qualifications  and  other  matters  connected  therewith  shall  be  as  specified  in  column 5 to 13 of the said Schedule.   

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6. Power to relax:

Where  the  Administrator,  Union Territory,  Chandigarh is of the opinion that it is necessary or  expedient so to do, he may, by order, for reasons to  be recorded in writing, relax any of the provisions  of these rules in respect of any class or category of  persons.”

12. The  post  of  teachers  with  which  we  are  concerned  is  known  as  

‘General  Central  Service  (Group  C)’.   It  is  a  ‘non-selection’  post.   The  

essential  academic and other qualifications have been laid down therefor.  

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The posts are to be filled up: 60% by direct recruitment, 20% by promotion  

and 20% by transfer on deputation.

13. The  short  question  which,  thus,  arises  for  consideration  is  as  to  

whether,  having regard to the long tenure  of  service,  appointment of the  

appellants should have been or could be directed to be regularized.   

14. Appointments had been made strictly in terms of contract by contract.  

No  doubt,  for  the  said  purpose  an  office  order  had  been  issued.   It  

furthermore appears that the names of the appellant  have been called for  

from the Regional Employment Exchange.  It is, however, beyond any doubt  

or dispute that they had been appointed only for a specified period.  The  

power  conferred  on  the  Heads  of  the  School  to  engage  Lecturers,  

Masters/Mistresses was for a limited purpose, namely, when the incumbent  

has proceeded on leave or is not available for teaching beyond 45 days and  

when no substitute could be provided for in terms of the Rules.  We may  

furthermore  notice  that  the  offers  of  appointment  in  no  uncertain  terms  

provided that the appointee would have no claim for regular appointment  

available in the Institute.

15. Rule 6 of the Rules empowers the Administrator to make relaxation of  

the applicability of the Rules only in the event if he is of the opinion that it  

was necessary or expedient so to do, wherefor not only an appropriate order  

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was required to be issued but also reasons were to be recorded in writing  

therefor.  Relaxation of the Rules could be made only in respect of any class  

or category of persons and not with regard to the mode of recruitment.  The  

offers of appointment issued in favour of the appellants clearly go to show  

that the Rules had been relaxed only for the purpose mentioned therein.  We,  

however,  have  not  been  informed  as  to  whether  the  requisite  prior  

permission  from the Department  had  been obtained  by the  Heads  of  the  

Schools  upon assigning detailed  reasons/justification  therefor  as  stated in  

Paragraph 1 of the order dated 27.11.1997.   

Be that as it may, it is now well known that long service by itself may  

not be a ground for directing regularization. Regularization as is well known  

is  not  a  mode  of  appointment.  When  appointments  in  public  office  are  

required to be made, the provisions of Articles 14 and 16 of the Constitution  

of India are required to be scrupulously followed. When a departure is made  

for not  scrupulously following the conditions precedent  laid down in the  

statutory rules  as  also the constitutional  scheme,  it  is  imperative  that  the  

same must be done within the four corners of the delegated power by the  

Authority concerned. The High Court in its judgment has referred to a few  

decisions of this Court.  We need not advert thereto as the matter has since  

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been considered by a Constitution Bench of this Court in Uma Devi (supra).  

Therein, it has categorically been held:

“43. 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  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.  The High  Courts  acting  under  Article  226  of  the  Constitution, should not ordinarily issue directions  for  absorption,  regularisation,  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  the  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 found entitled to relief, it may be possible for it  

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to mould the relief in such a manner that 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.”

Paragraph 53 of the said decision on which reliance has been placed  

by Mr. Patwalia reads as under:

“53. 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  

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of the constitutional requirement and regularising  or making permanent, those not duly appointed as  per the constitutional scheme.”

16. A judgment of a Constitution Bench of this Court laying down the law  

within the meaning of Article 141 of the Constitution of India must be read  

in its entirely for the purpose of finding out the ratio laid down therein.  The  

Constitution  Bench,  in  no  uncertain  terms,  based  its  decision  on  the  

touchstone of the ‘equality clause’ contained in Articles 14 and 16 of the  

Constitution of India. Emphasis has been laid at more than one place for  

making  appointments  only  upon  giving  an  opportunity  to  all  concerned.  

Appointment  through  side-door  has  been  held  to  be  constitutionally  

impermissible.   

17. We are not oblivious of the fact that in some decisions rendered by  

different benches of this Court taking a sympathetic view in favour of the  

employees who had been serving the State for a long time, the rigours test  

laid down therein were sought to be dilated.  However, some other benches  

of this Court had interpreted Paragraph 53 of the  Uma Devi (supra) in the  

light of the decisions mentioned therein.   

In  Mineral  Exploration  Corpn.  Employees’  Union  vs.  Mineral  

Exploration  Corpn.  Ltd.  [(2006)  6  SCC  310]  wherein  this  Court,  while  

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following  Umadevi  (3)  (supra),  invoked  para  53  of  the  said  decision  to  

opine:

“39. 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) (supra) 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.”

However, in National Fertilizers Ltd. & ors. vs.  Somvir Singh (2006)  

5 SCC 493, this Court held:-

“23. 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  

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been maintained.  Even cases of minorities had not  been given due consideration.

xxx xxx xxx

25. 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.

26. It  is  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  regularization  of  their  services  in  view  of  the  decision of this Court in Umadevi(3)”

In State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575],  

this Court held:-

“20. The decision to implement the judgment was  evidently subject to the decision of this Court. But,  the Special Leave Petition is barred by limitation.  The  question,  inter  alia,  which  arises  for  consideration before us is as to whether we should  condone  the  delay  or  allow  the  respondent  to  continue to occupy the permanent post.

21. The legal  position somehow was uncertain  before  the  decision  rendered  by  the  Constitution  Bench of this Court in Uma Devi (3) (supra). It has  categorically been stated before us that there was  no  vacant  post  in  the  department  in  which  the  respondent could be reinstated. The State had also  

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adopted a policy decision regarding regularisation.  The said policy decision has also no application in  the  case  of  the  respondent.  Even  otherwise,  it  would be unconstitutional being hit by Article 16  of the Constitution of India.”

In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & ors.,  

[(2007) 2 SCC 491], this Court held:-

“19. In the instant case, the High Court did not  issue a writ of mandamus on arriving at a finding  that the respondents had a legal right in relation to  their  claim   for  regularization,  which  it  was  obligated  to  do.   It  proceeded  to  issue  the  directions only on the basis of the purported policy  decision adopted by means of a circular letter and,  as  noticed  hereinbefore,  even  a  policy  decision  adopted in terms of Article 162 of the Constitution  of  India  in  that  behalf  would  be  void.   Any  departmental letter or executive instruction cannot  prevail  over  statutory  rule  and  constitutional  provisions.  Any appointment, thus, made without  following the procedure would be ultravires.”

In  Postmaster  General,  Kolkata  &  Others  vs.   Tutu  Das  (Dutta)  

[(2007) 5 SCC 317], this Court held as under:-

“20. The statement of law contained in para 53 of  Umadevi (3)  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 & Sewerage Board v.  Ranjodh Singh referring to paras 15, 16 and 53 of  Umadevi (3) this Court:  

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“17.  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.

18.  Distinction  between  irregularity  and  illegality is explicit. It has been so pointed  out  in  National  Fertilizers  Ltd. v.  Somvir  Singh in the following terms:  

‘23.  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.

24.  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  

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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.”

25. 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  M.P. v.  Yogesh  Chandra Dubey and  State of M.P. v.  Lalit Kumar Verma.)

The controversy, if any, in our opinion, has been given a quietus by a  

three Judge Bench of this Court in Official Liquidator vs. Dayanand & ors.  

[(2008) 10 SCC 1], holding:

“75. By virtue of Article 141 of the Constitution,  the  judgment  of  the  Constitution  Bench  in  Secretary, State of Karnataka v.  Uma Devi (3) is  binding on all the courts including this Court till  the same is overruled by a larger Bench. The ratio  of  the  Constitution  Bench  judgment  has  been  followed  by  different  two-Judges  Benches  for  declining to entertain the claim of regularization of  service  made  by  ad  hoc/temporary/  daily  wage/casual employees or for reversing the orders  of  the  High  Court  granting  relief  to  such  employees –  Indian Drugs and Pharamaceuticals   Ltd. v. Workmen [(2007) 1 SCC 408], Gangadhar  Pillai  v.  Siemens  Ltd. [(2007)  1  SCC  533],  Kendriya  Vidyalaya  Sangathan  v.  L.V.   Subramanyeswara [(2007) 5 SCC 326], Hindustan  Aeronautics Ltd. v. Dan Bahadur Singh [(2007) 6  

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SCC  207].  However,  in  U.P.  SEB  v.  Pooran  Chand  Pandey (2007)  11  SCC  92  on  which  reliance  has  been  placed  by  Shri  Gupta,  a  two- Judges  Bench  has  attempted  to  dilute  the  Constitution  Bench  judgment  by  suggesting  that  the said decision cannot be applied to a case where  regularization has been sought for in pursuance of  Article 14 of the Constitution and that the same is  in conflict with the judgment of the seven-Judges  Bench in Maneka Gandhi v. Union of India[(1978)  1 SCC 248].”

The  Court  noticed  that  in  U.P.  SEB v.  Pooran  Chandra  Pandey  

(supra), this Court had held:

“18. We may further point out that a seven-Judge  Bench decision of this Court in Maneka Gandhi v.   Union of  India has  held  that  reasonableness  and  non-arbitrariness  is  part  of  Article  14  of  the  Constitution. It follows that the Government must  act  in  a  reasonable  and  non-arbitrary  manner  otherwise Article 14 of the Constitution would be  violated.  Maneka Gandhi case is  a decision of a  seven-Judge Bench, whereas Umadevi (3) case is a  decision of a five-Judge Bench of this Court. It is  well settled that a smaller Bench decision cannot  override a larger Bench decision of the Court. No  doubt,  Maneka Gandhi case does not specifically  deal  with  the  question  of  regularisation  of  government  employees,  but  the  principle  of  reasonableness  in  executive  action  and  the  law  which  it  has  laid  down,  in  our  opinion,  is  of  general application.”

(Emphasis supplied)

However, the said observations were held to have been uncalled for.   

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The  Bench  noticed  several  judgments/orders  of  different  Benches  

taking a view contrary to  Uma Devi (3) (supra) to opine that those cases  

were illustrative of non-adherence to the rule of judicial discipline which is  

sine qua non for sustaining the system.  It was opined:

“90. We are distressed to note that despite several  pronouncements on the subject, there is substantial  increase in the number of cases involving violation  of  the  basics  of  judicial  discipline.  The  learned  Single  Judges  and  Benches  of  the  High  Courts  refuse to follow and accept the verdict and law laid  down by coordinate  and even larger  Benches  by  citing minor difference in the facts as the ground  for doing so. Therefore, it has become necessary to  reiterate that disrespect to constitutional ethos and  breach  of  discipline  have  grave  impact  on  the  credibility  of  judicial  institution  and  encourages  chance  litigation.  It  must  be  remembered  that  predictability  and  certainty  is  an  important  hallmark  of  judicial  jurisprudence  developed  in  this country in last six decades and increase in the  frequency of conflicting judgments of the superior  judiciary will do incalculable harm to the system  inasmuch as the courts at the grass root will not be  able  to decide as  to  which of  the judgments lay  down  the  correct  law  and  which  one  should  be  followed.  

91. We may add that in our constitutional set up  every  citizen  is  under  a  duty  to  abide  by  the  Constitution and respect its ideals and institutions.  Those who have been entrusted with the task of  administering  the  system  and  operating  various  constituents of the State and who take oath to act  in accordance with the Constitution and uphold the  same, have to set an example by exhibiting total  commitment  to  the  Constitutional  ideals.  This  principle  is  required to  be observed with  greater  

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rigour by the members  of judicial  fraternity who  have been bestowed with the power to adjudicate  upon important constitutional and legal issues and  protect and preserve rights of the individuals and  society as a whole. Discipline is sine qua non for  effective and efficient  functioning of  the judicial  system.  If  the  Courts  command  others  to  act  in  accordance with the provisions of the Constitution  and rule of law, it is not possible to countenance  violation  of  the  constitutional  principle  by  those  who are required to lay down the law.

92. In the light of what has been stated above,  we deem it proper to clarify that the comments and  observations  made  by  the  two-Judges  Bench  in  U.P.  State  Electricity  Board v.  Pooran Chandra  Pandey (supra)  should be read as  obiter  and the  same should neither be treated as binding by the  High Courts, Tribunals and other judicial foras nor  they  should  be  relied  upon  or  made  basis  for  bypassing  the  principles  laid  down  by  the  Constitution Bench.”

We feel bound by the observations made therein.   

{See also State of Karnataka & Ors.  vs.  Sri G.V. Chandrashekar [2009 (3)  

SCALE 653}

Recently,  in  State  of  Bihar vs.  Upendra  Narayan  Singh [2009  (4)  

SCALE 282],  a  Bench  of  this  Court,  while  holding  that  equality  clause  

enshrined in Article 16 mandates that every appointment to public posts or  

office should be made by open advertisement so as to enable all  eligible  

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persons to compete for selection on merit and despite the fact there may be  

certain exceptions thereto, observed:

“17. Notwithstanding  the  basic  mandate  of  Article  16  that  there  shall  be  equality  of  opportunity  for  all  citizens  in  matters  relating to  employment  for appointment to any office under  the  State,  the  spoil  system  which  prevailed  in  America in 17th and 18th centuries has spread its  tentacles  in  various  segments  of  public  employment  apparatus  and  a  huge  illegal  employment market has developed in the country  adversely  affecting  the  legal  and  constitutional  rights of lakhs of meritorious members of younger  generation of the country who are forced to seek  intervention of  the  court  and wait  for  justice  for  years together.”

The court noticed the spoil system as also a large number of decisions  

rendered thereon including Uma Devi (supra) to hold:   

“33. In  view  of  the  above  discussion,  we  hold  that  the  initial  appointments  of  the  respondents  were  made  in  gross  violation  of  the  doctrine  of  equality enshrined in Articles 14 and 16 and the  provisions of the 1959 Act and the learned Single  Judge  gravely  erred  by  directing  their  reinstatement with consequential benefits.”

18. We, therefore, are of the opinion that the High Court was correct in its  

view.  We were,  however,  informed that  800 posts  of  teachers  are  lying  

vacant.  Ms. Kamini Jaiswal informed that the Administration is ready and  

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willing to fill up the said posts on a regular basis.  While doing so, we have  

no doubt in our mind that the cases of the appellants shall also be taken into  

consideration and the Administrator may consider the desirability of relaxing  

the age limit provided for in the Rules.   

19. For the aforementioned reasons, the appeals are dismissed. No costs.  

……………………………….J. [S.B. Sinha]

..…………………………..…J.     [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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