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CASE NO.: Appeal (civil)  2319 of 2007

PETITIONER: Post Master General, Kolkata & Ors

RESPONDENT: Tutu Das (Dutta)

DATE OF JUDGMENT: 02/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [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

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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

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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

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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

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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:

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       "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.