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CASE NO.: Appeal (civil)  5674 of 2006

PETITIONER: State of U.P. & Ors

RESPONDENT: Desh Raj

DATE OF JUDGMENT: 23/11/2006

BENCH: S.B. SINHA & MARKANDEY KATJU

JUDGMENT: JUDGMENT (Arising out of S.L.P. (Civil) No.22947 of 2005)

S.B. SINHA J:            Leave granted.         The State of U.P has herein questioned an interim order  dated 15.1.04 passed by the learned Single Judge of the  Allahabad High Court as also order dated 22.8.2005 passed by  a Division Bench of the said Court affirming the same.         The respondent was said to have been appointed on daily  wages for specific work on Muster Roll purported to be under  the provisions of paragraphs 429, 430 and 431 of the  Financial Hand Book Volume-VI read with paragraph 476 of  the Part-I of the Public Works Department of Manual of orders  in local

                       :2: arrangements.         A writ petition was filed by the respondent herein, inter alia,  praying for his regularization.  A learned Single Judge of the  Lucknow Bench of the Allahabad High Court on the day of  preliminary hearing while issuing rule passed the following  order:         "In  the meantime, the opposite parties no.3  to 5 shall examine the petitioner’s claim for  regularization under the Regularization Rules  2001 and pass appropriate orders.  However, his  claim shall not be rejected on the ground of the  post being not available.  Supernumerary posts  have to be created to comply with the provisions of  the Regularization Rules and kept alive until  regular posts fall vacant.  Till a decision is taken,  the petitioner shall be paid wages equivalent to the  minimum of pay scale admissible to a Mate  working in the department with effect from 1st  January, 2004."

       A special appeal filed therein against but the same was

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barred by limitation.  The Division Bench, inter alia, on the  said premise refused to interfere with the order passed by the  learned Single Judge stating:

                       :3:         "In  these circumstances, the appeal Court  should not interfere but leave the matter to be  decided by the Hon’ble single Judge on a final  basis.  The appeal is thus dismissed on merits and  also on the ground of delay which we are not  minded to condone, although this is illogical, we  thought it better to make our minds  known."

       A bare perusal of the impugned order should show that the  learned Single Judge for all intent and purport had allowed the  writ petition on the very first day, which in our opinion, was  not justified.  It is  now well-settled that a relief which can be  granted only at the final hearing of the matter, should not  ordinarily be granted by way of an interim order.  It is also  doubtful as to whether the impugned directions could have  been issued even at the final  hearing of the matter which  would amount to creation of supernumerary post in purported  compliance of the regularisation rules.         Whatever may be the import and purport of such  regularization rules, in view of the recent Constitution Bench  decision of this Court in Secretary, State of Karnataka & Ors.  vs. Umadevi & Ors. [(2006) 4 SCC 1)], it is now well-settled  that the  

                       :4: appointments, if made in violation of the constitutional  scheme of equality as enshrined under Articles 14 and 16 of  the Constitution of India, would be rendered illegal and, thus  void ab initio.  No  regularization rules, therefore, could have  been made by the State of Uttar Pradesh in derogation to the  statutory or constitutional scheme.         Furthermore, the State of Uttar Pradesh must have made  rules in terms of the proviso appended to Article 309 of the  Constitution of India, providing for the mode and manner in  which recruitments are to be made.  Such rules have statutory  force.         The learned counsel for the respondents, however, drew our  attention to paragraphs 53 of Umadevi (supra), which reads as  under:         "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 of duly  qualified persons in duly sanctioned vacant posts  might have been made and the employees have

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continued to work for ten years or more but without  the intervention of orders of the courts or of  tribunals.  The question of regularization of the

                       :5: 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 regularize as  one time measure, the services of said irregularly  appointed, who have worked for ten years and more  in duly sanctioned post but not under cover of orders  of the Courts or of Tribunals and should further  ensure that regular recruitments are undertaken to  fill that vacant sanctioned posts that required 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 regularization, if any  already made, but not subjudice, need not be  reopened based on this judgment. but there should  be no further byepassing of the constitutional  requirement and regularizing or making permanent,  those not duly appointed as per the constitutional  scheme."

       The observations made in the said paragraph must be read  in the light of the observations made in paragraphs 15 and 16  of the judgment.  The Constitution Bench referred to the  decisions of this Court in State of Mysore vs. S.V.  Narayanappa 1967 (1) SCR 128, R.N. Nanjundappa vs. T.  Thimmiah, 1972 (1) SCC 409 and B.N. Nagarajan vs. State of  Karnataka 1979 (4) SCC 507, B.N. Nagarajan is a decision  rendered by a three judge bench  

                       :6: of this Court in which it has clearly been held that the  regularisation does not mean permanence.  A distinction has  clearly been made in those decisions between ’irregularity’ and  ’illegality’.  An appointment which was made throwing all  constitutional obligations and statutory rules to winds would  render the same illegal whereas irregularity pre supposes  substantial compliance of the rules.         Distinction between irregularity and illegality is explicit.  It  has been so pointed out in National Fertilizers 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

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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  regularization of the services only of those  employees whose appointments were irregular as

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explained in State of Mysore vs. S.V. Narayanappa,  R.N. Narayandappa vs. T. Thimmiah and B.N.  Nagarajan vs. 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  ’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 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)]

       It is not the case of the respondents that they were recruited  in terms of the provisions of the recruitment rules framed  under the proviso appended to Article 309 of the Constitution  of India.  In that view of the matter ex facie their appointments  were illegal.  We, however, must observe that we have not been  taken through the purport and import or the  

                       :8: various provisions of the PWD rules to which we have made  reference heretobefore.  But in any event, the question of  regularisation of the employees by reason of any policy  decision adopted by the State is impermissible in law.  The  learned Division Bench could have dismissed the special  appeal filed by the appellant on the ground of delay.  It did not  do so.  It purported to uphold the order of the learned Single  Judge  even on merits.

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       In that view of the matter only we had to enter into the  merits of the matter.  The judgment of the High Court, for the  reasons stated hereinbefore suffer from a legal error.  It is set  aside accordingly.  We are, however, of the opinion that the  respondents should be compensated, as the appeal preferred  by the State of Uttar Pradesh was barred by limitation,  We  quantify the same at Rs.10,000/- (Rupees ten thousands  only).  We, however, may observe that it would be open to the  State to recover the said amount from the officers who may be  found responsible for causing the delay in preferring the  appeal.

                       :9:         With the aforementioned directions, the impugned orders  are set aside.  The appeal is allowed.  No costs.