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CASE NO.: Appeal (civil)  1413 of 2003

PETITIONER: A. Umarani

RESPONDENT: Registrar, Cooperative Societies and Ors.

DATE OF JUDGMENT: 28/07/2004

BENCH: N. Santosh Hegde,S.B. Sinha & A.K. Mathur.

JUDGMENT: J U D G M E N T

With CIVIL APPEAL NOs. 3774, 3775, 3776, 4446,  6415, 6416, 7282, 9854, 9933, 10244-10245 of  2003, C.A. No.4495 of 2004  (@ S.L.P.(C) No. 1096 of 2004),  Civil Appeal No. 447 of 2004    

S.B. SINHA, J:

       Leave granted in S.L.P. (C) No. 1096 of 2004.

       These appeals are directed against a judgment and order dated  24.10.2002 passed by a Division Bench of the High Court of the Judicature  at Madras whereby and whereunder several writ appeals filed by the  Appellants herein and writ petitions filed by the Private Respondents were  disposed of.  

       The basic fact of the matter is not in dispute.   

       Cooperative Societies and Land Development Banks constituted and  registered in the State of Tamil Nadu used to be governed under Tamil Nadu  Cooperative Societies Act, 1961 (for short "the 1961 Act") and the Tamil  Nadu Land Development Banks Act, 1934.  The State framed rules under  the 1961 Act known as Madras Cooperative Societies Rules, 1963.   

       The 1961 Act and 1934 Act were repealed and replaced by Tamil  Nadu Cooperative Societies Act, 1983 (for short "the 1983 Act").  Pursuant  to or in furtherance of the powers conferred thereunder, the State framed  rules known as the Tamil Nadu Cooperative Societies Rules, 1988 (for short  "the 1988 Rules").  The 1983 Act and the 1988 Rules came into force with  effect from 13.4.1988.

       It is not in dispute that a large number of employees, i.e., about 39%  of the total strength of the employees of the cooperative societies in the State  of Tamil Nadu, were appointed without notifying the vacancies to the  Employment Exchanges and without following the other mandatory  provisions of the Act and the Rules framed thereunder relating to  recruitment.

       It is not in dispute that a large number of appointees furthermore did  not have the requisite educational qualification or other qualification like  cooperative training etc.  The reservation policy of the State was also not  followed by the cooperative societies.  The Recruitments were made beyond  the permissible cadre strength.

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       With a view to condone the serious lapses on the part of the  Cooperative Societies in making such appointments in illegal and arbitrary  manner, the Government of the State of Tamil Nadu issued various orders  from time to time in terms whereof such appointments were sought to be  regularised fixing a cut off date therefor.  Firstly, G.O.Ms No. 790 dated  5.7.1971 was issued ratifying the irregular appointments made otherwise  than through employment exchange upto 5.7.1971.  Further, by G.O.Ms No.  1352 dated 7.11.1978, the cut off date was extended upto 31.12.1977.  Yet  again, by G.O.Ms. No. 605 dated 3.6.1980, the cut off date was extended  upto 31.12.1979.  By G.O.Ms. No. 312 dated 30.11.1987 the cut off date  was furthermore extended upto 8.7.1980.  Ultimately, by G.O.Ms. No. 86  dated 12.3.2001 the cut off date was extended upto 11.3.2001 and thereby  the Government of Tamil Nadu sought to regularise appointments made  after 8.7.1980 in the Cooperative Societies without notifying the  Employment Exchange in respect of those employees who had completed  480 days of service in two years purported to be in terms of Tamil Nadu  Industrial Establishments (Conferment of Permanent Status to Workmen)  Act, 1981 (for short ’the 1981 Act’).   

       Relying on or on the basis of the said G.O.Ms No. 86 dated 12.3.2001,  several writ petitions were filed in the High Court of Judicature at Madras  praying for issuance of appropriate directions regularising the services of the  employees working in the Cooperative Societies of the State of Tamil Nadu.   Some writ petitions were dismissed whereagainst writ appeals were filed.  A  large number of writ petitions were also placed before the Division Bench  for hearing.   

       The legality and/ or validity of the aforementioned GOMs No. 86  dated 12.3.2001 fell for consideration before the Division Bench in the said  writ appeals and writ petitions.

       Having regard to rival contentions the Division Bench of the High  Court framed the following issues for its consideration:

"(i) whether the writ petitions are maintainable?

(ii) whether the cooperative societies are covered  by the provisions of Tamil Nadu Industrial  Establishment (Conferment of Permanent Status to  Workmen) Act, 1981 as also the Industrial  Disputes Act, 1947?

(iii) Whether G.O.Ms. No. 86, dated 12.3.2001  aims at regularizing all the staff appointed to  cooperative societies regardless of any defect or  any violation of the Rule 149 of the Tamil Nadu  Cooperative Societies Rules, 1988, as amended in  1995?

(iv) in the alternative, are the illegal appointees  entitled for statutory protection of regularization  and permanent status by virtue of Section 3 of the  Permanency Act subject to their completion of 480  man days in a continuous period of 2 years? And

(v) whether personnel not covered by clause (iv)  are entitled for protection under the Industrial  Disputes Act, 1947?"

       As regard Issue No. 1, it was held that the writ petitions are  maintainable.  Issue No. 2 was also decided in favour of the writ petitioners  holding that the 1981 Act is applicable to the employees of the Cooperative  Societies.  

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       Issues No. 3, 4 and 5 were taken up for consideration together.   

       The Division Bench by reason of the impugned judgment opined that  the provisions of the 1981 Act would not be applicable as regard  appointments made in violation of the statute or statutory rules.  It was  further held that in any event in terms of the 1981 Act and the G.O.Ms. No.  86 dated 12.3.2001 what had been exempted by the Government was the  condition relating to the statutory obligation on the part of the Cooperative  Societies to notify the Employment Exchange as regard the existing  vacancies and not other statutory conditions.  The Division Bench held:

"(i)    that GOMs No. 86, Cooperation, Food and  Consumer Protection Department, dated  12.3.2001, has got the effect of only authorizing  the regularization of the employees recruited by  the cooperative societies for the period from  9.7.1980 to 11.3.2001 exempting the intervention  of employment exchange;

(ii)    that GOMs No. 86, Cooperation, Food and  Consumer Protection Department, dated  12.3.2001, shall not operate for regularization of  any employee recruited by the cooperative  societies in violation of Sub-Rule (1) of Rule 149  of the Tamil Nadu Cooperative Societies Rules, as  amended by GOMs No. 212, Cooperation, Food  and Consumer Protection Department, dated  4.7.1995;

(iii)   in societies, where the cadre strength has not  been fixed, direct them to adopt the special bye- law in conformity with sub-Rule (1) of Rule 149 of  the Tamil Nadu Cooperative Societies Rules, as  amended by GOMs No. 212, Cooperation, Food  and Consumer Protection Department, dated  4.7.1995;

(iv)    direct the Registrar of Cooperative Societies  to issue a circular within a week from today calling  upon all the cooperative societies in the State of  Tamil Nadu to comply with the direction in clause  (iii) supra;

(v)     direct that within two months of the  approval of the special bye laws under sub-rule (1)  of the Rule 149 of the Rules, the respective Deputy  Registrars of Cooperative Societies having  jurisdiction over the cooperative societies in their  Divisions, shall enquire by issuing notice to the  entire staff recruited from 9.7.1980 to 11.3.2001,  and decide as to whether the said recruitment is in  conformity with the special bye laws approved by  the Registrar of Cooperative Societies and  terminate the services of such staff members,  whose appointments are in contravention of the  special bye laws so approved by the Registrar of  Cooperative Societies;

       It is made clear that while considering the  validity or otherwise of the appointment of the  staff cooperative societies, the requirement of  notifying the vacancies to employment exchange  shall not be taken cognizance of.

(vi)    that no cooperative staff member appointed

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subsequent to G.O.Ms. No. 86, Cooperation, Food  and Consumer Protection Department, dated  12.3.2001 otherwise than through employment  exchange shall be continued in service and their  services shall be terminated forthwith.

(vii)   that either the provisions of Tamil Nadu  Industrial Establishments (Conferment of  Permanent Status to Workmen) Act, 1981 or the  Industrial Disputes Act, 1947, or the settlements  entered under Sections 12 or 18 thereof, shall have  no application to the staff of the cooperative  societies appointed without adequate qualifications  or beyond the cadre strength for the period from  9.7.1980 to 11.3.2001.  This is equally applicable  to the staff appointed to the cooperative societies,  otherwise than through employment exchange, for  the period from 12.3.2001 onwards."

       Mr. S. Balakrishanan, learned senior counsel appearing on behalf of  the appellant relying on or on the basis of the decision of this Court in Jacob  M. Puthuparambil and Others Vs. Kerala Water Authority and Others  [(1991) 1 SCC 28] would submit that having regard to the fact that the  appellants had been working in the cooperative societies for a long time, the  High Court committed a serious error in not holding that they had acquired a  right for regularization.  

       In any event, Mr. Balakrishnan would contend that each employee  was individually entitled to be given an opportunity of being heard so as to  enable the competent authority to come to the conclusion as to whether they  had fulfilled the requirements contained in the aforementioned GOMs No.  86 dated 12.3.2001 or not.  Reliance in this behalf has been placed on Olga  Tellis and Others Vs. Bombay Municipal Corporation and Others [(1985) 3  SCC 545].

       The learned counsel appearing on behalf of the respondents, on the  other hand, supported the judgment of the High Court.

       The primal question which arises for consideration in these appeals is  as to whether the State had the requisite authority to direct regularisation of  services of the employees of the cooperative societies by reason of the  impugned GOMs No. 86 dated 12.3.2001.   

       The 1983 Act was enacted inter alia to make better provision for, the  organization, management and supervision of cooperative societies in the  State of Tamil Nadu as also for providing for an orderly development of the  cooperative movement in accordance with  cooperative principles.   Indisputably, in terms of the provisions of the 1983 Act, the cooperative  societies are required to be registered thereunder and are also liable to  comply with the provisions thereof as also the rules framed thereunder.   Before the High Court source of the power of the State to issue the said  G.O.Ms. No. 86 dated 12.3.2001 was traced to Sections 182 and 170 of the  1983 Act as also Article 162 of the Constitution of India.   

       Section 170 of the Act provides for power of the Government to  exempt registered societies from any of the provisions of the Act other than  clause (b) of sub-section (1) of section 88 and sub-section (1) of section 89  of this Act, or of the rules, subject to such conditions as may be specified  and direct that such provisions of the rules shall apply to such society with  such modifications as may be specified in the order.  It is not the case of any  of the parties that any such order of exemption had been passed in favour of  any of the cooperative societies.  Section 170 of the 1983 Act, therefore,  does not confer any power upon the State to issue the impugned order.

       In any view of the matter such an order could not have been passed

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with retrospective effect condoning the actions on the part of the cooperative  societies which were in flagrant violations of the provisions of the Act and  the Rules made thereunder.

       Section 182 of the 1983 Act reads as under:

"182. Power of Government to give directions.-(1)  The Government may, in the public interest, by  order, direct the Registrar to make an inquiry or to  take appropriate proceedings under this Act, in any  case specified in the order, and the Registrar shall  report to the Government the result of the inquiry  made or the proceedings taken by him within a  period of six months from the date of such order or  such further period as the Government may permit.

(2) In any case, in which a direction has been  given under sub-section (1), the Government may,  notwithstanding anything contained in this Act,  call for and examine the record of the proceedings  of the Registrar and pass such orders in the case as  they may think fit:

Provided that before passing any order under this  sub-section the person likely to be affected by such  order shall be given an opportunity of making his  representation."

       A bare perusal of the aforementioned provision would clearly go to  show that the impugned Government Order could not have been issued by  the State in terms thereof as the same can be taken recourse to only for the  purposes mentioned therein and not for any other.  It is not a case where the  Government directed the Registrar to make an enquiry against a person in  the public interest.  Article 162 of the Constitution of India provides for  extension of executive power to the matters with respect of which the  Legislature of the State has power to make laws.  Article 162 of the  Constitution by no stretch of imagination is attracted as the source of the  power of the State to pass an appropriate order must be traced to the  provisions of the Act itself.  If the State had no power to issue the said  GOMs No. 86 dated 12.3.2001 the same must be held to be a nullity.

       Let us now consider the extent to which the provisions of the 1981  Act would apply to the fact of the present case.

       The 1981 Act applies only to industrial establishments.  Industrial  Establishment has inter alia been defined to mean "an establishment as  defined in clause (6) of Section 2 of the Tamil Nadu Shops and  Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947)".

       Establishment has been defined in Section 2(6) of the Tamil Nadu  Shops and Establishments Act, 1947 as under:

"’Establishment’ means a shop, commercial  establishment, restaurant, eating house, residential  hotel, theater or any place of public amusement or  entertainment and includes such establishment as  the State Government may by notification declare  to be an establishment for the purpose of this Act."

       Mr. Balakrishnan urged that the cooperative societies are Commercial  Establishments.

       Whether a Cooperative Society would be a commercial establishment  or not would essentially be a question of fact.  It cannot be said keeping in  view the legislative intent that all cooperative societies would be

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’commercial establishments’ within the meaning of the Tamil Nadu Shops  and Establishments Act, 1947.  It, therefore, appears that the impugned  Government Order has been issued by the State without proper application  of mind.  It has furthermore not been stated in the impugned Government  Order that all the cooperative societies are commercial establishments within  the meaning of Section 2(6) of the Tamil Nadu Shops and Establishments  Act, 1947.

       The Cooperative Societies and the Land Development Banks are  governed by the statutes under which they have been created as also the  Rules and bye laws framed thereunder.  The cooperative societies are  obligated to follow the cooperative principles as laid down in the Act and the  Rules framed thereunder.

       The State had framed rules in exercise of its power conferred upon it  under Section 180 of the 1983 Act in the year 1988.  Rule 149 of the 1988  Rules provides for a complete code as regard the mode and manner in which  appointments were required to be made and the process of appointments is  required to be carried out.  In terms of the said Rule, requirements to possess  educational qualification and other qualifications had been laid down.  One  of the essential qualifications laid down for holding certain posts is  ’undergoing cooperative training and previous experience’.                  At this juncture, we may notice some of the provisions contained in  Rule 149 of the 1988 Rules.         Sub-rule (3) of Rule 149 read as under:

"(a) No appointment by direct recruitment to any  post shall be made except by calling for from the  societies applications from their employees who  possess the qualifications for the post and unless  the Government have accorded special sanction for  recruitment by advertisement in dailies, by also  calling for a list of eligible candidates from the  Employment Exchange.

(b) Where the Employment Exchange issues a  non-availability certificate or the Government have  accorded special sanction for recruitment by  advertisement in dailies, the society shall invite  applications from candidates including those  working in other societies by advertisements in  one English daily and two Tamil dailies having  circulation within the area of operations of the  society approved by the Government for the  purposes of issue of Government advertisements.

(c) Every appointment by direct recruitment shall  be made by holding written examination and  interview or by holding only interview as decided  by the board and on the basis of the rank given  with reference to the marks obtained in the written  examination, if any, and the marks awarded in the  interview:

Provided that nothing contained in this sub-rule  shall apply to any of the posts for the recruitment  of which a Recruitment Bureau has been  constituted under section 74 or in respect of which  common cadre of service has been constituted  under section 75;

Provided further that nothing contained in this sub- rule shall apply to appointments of dependents of  the employees of any society who died or

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medically invalidated while in service."

       Sub-rule (4) of Rule 149 mandates that no person shall be appointed  to the service of a society if he has on the date on which he joins the post,  attained the age of thirty years and in the case of persons belonging to  Scheduled Castes and Scheduled Tribes thirty-five years.

       Sub-rule (25) of Rule 149 provides that the principle of reservation of  appointment for Scheduled Castes/ Scheduled Tribes and Backward Classes  followed by the Government of Tamil Nadu for recruitment to the State shall  apply.

       No appointment, therefore, can be made in deviation of or departure  from the procedures laid down in the said statutory rules.   

       The terms and conditions of services are also laid down in the said  rules.         The 1983 Act was furthermore amended in the year 1995 providing  for cadre strength which is directly relatable to the income of the cooperative  societies.

       Provisions of the Act and the Rules framed thereunder reflect the  legislative recruitment policy.  The said provisions are, thus, mandatory in  nature.

       Regularisation, in our considered opinion, is not and cannot be the  mode of recruitment by any "State" within the meaning of Article 12 of the  Constitution of India or any body or authority governed by a Statutory Act  or the Rules framed thereunder.  It is also now well-settled that an  appointment made in violation of the mandatory provisions of the Statute  and in particular ignoring the minimum educational qualification and other  essential qualification would be wholly illegal.  Such illegality cannot be  cured by taking recourse to regularisation.  (See State of H.P. Vs. Suresh  Kumar Verma and Another, (1996) 7 SCC 562).

       It is equally well-settled that those who come by backdoor should go  through that door.  (See State of U.P. and Others Vs. U.P. State Law  Officers Association & Others, (1994) 2 SCC 204)

       Regularisation furthermore cannot give permanence to an employee  whose services are ad-hoc in nature.         The question came up for consideration before this Court as far back  in 1967 in State of Mysore & Anr. Vs. S.V. Narayanappa [(1967) 1 SCR  128] wherein this Court observed "Before we proceed to consider the construction  placed by the High Court on the provisions of the  said order we may mention that in the High Court  both the parties appear to have proceeded on an  assumption that regularisation meant permanence.  Consequently it was never contended before the  High Court that the effect of the application of the  said order would mean only regularising the  appointment and no more and that regularisation  would not mean that the appointment would have  to be considered to be permanent as an  appointment to be permanent would still require  confirmation. It seems that on account of this  assumption on the part of both the parties the High  Court equated regularisation with permanence."

       This Court yet again in R.N. Nanjundappa Vs. T. Thimmaiah & Anr.  [(1972) 2 SCR 799], it was held: "\005If the appointment itself is in infraction of the  rules or if it is in violation of the provisions of the

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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."

       The said decisions of this Court have received approval of a 3-Judge  Bench of this Court in B.N. Nagarajan and Others Vs. State of Karnataka  and Others [(1979) 4 SCC 507] it was held that the procedures for  appointment as contained in the Rules framed under Article 309 of the  Constitution of India must be complied with.         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.

       R.N. Nanjundappa (supra) has also been followed by this Court in  several decisions in Ramendra Singh and Others, etc. Vs. Jagdish Prasad and  Others [AIR 1984 SC 885], K. Narayanan and others Vs. State of Karnataka  and others [AIR 1994 SC 55] and V. Sreenivasa Reddy and others Vs. Govt.  of Andhra Pradesh and others [AIR 1995 SC 586].

       The said decisions have been recently noticed by a Division Bench of  this Court in Sultan Sadik Vs. Sanjay Raj Subba and Others [(2004) 2 SCC  377].

       In State of M.P. and Another Vs. Dharam Bir [(1998) 6 SCC 165], it  was observed that the government services are essentially a matter of status  rather a contract and in that context it was observed:

"26. Whether a person holds a particular post in a  substantive capacity or is only temporary or ad hoc  is a question which directly relates to his status.  It  all depends upon the terms of appointment.  It is  not open to any government employee to claim  automatic alteration of status unless that result is  specifically envisaged by some provision in the  statutory rules.  Unless, therefore, there is a  provision in the statutory rules for alteration of  status in a particular situation, it is not open to any  government employee to claim a status different  than that which was conferred upon him at the  initial or any subsequent stage of service.  

27.     Applying these principles to the instant case,  since the respondent, admittedly, was appointed in  an ad hoc capacity, he would continue to hold the  post in question in that capacity\005"

       It is trite that appointments cannot be made on political considerations  and in violation of the government directions for reduction of establishment  expenditure or a prohibition on the filling up of vacant posts or creating new  posts including regularization of daily-waged employees. (See Municipal  Corporation, Bilaspur and Another Vs. Veer Singh Rajput and Others  [(1998) 9 SCC 258])

       Yet again, in Nazira Begum Lashkar and Others Vs. State of Assam  and Others [(2001) 1 SCC 143], it was noticed:

"14\005The decisions cited by Mr. Parikh, in support  of his contention, not only do not support his

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contention but on the other hand, appears to us to  be against his contention. In Ashwani Kumar case  ((1997) 2 SCC 1 : 1997 SCC (L&S) 267) this  Court in no uncertain terms held that as the  appointments had been made illegally and contrary  to all recognised recruitment procedures and were  highly arbitrary, the same were not binding on the  State of Bihar. This Court further went on to hold  in the aforesaid case that the initial appointments  having been made contrary to the statutory rules,  the continuance of such appointees must be held to  be totally unauthorised and no right would accrue  to the incumbent on that score. The Court had also  held that it cannot be said that the principles of  natural justice were violated or full opportunity  was not given to the employees concerned to have  their say in the matter before their appointments  were recalled and terminated\005"

       This Court has considered this aspect of the matter in various other  decisions, viz., Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P.  Vs. Bal Kishan Soni and Others [(1997) 5 SCC 86], Ashwani Kumar and  Others Vs. State of Bihar and Others [(1997) 2 SCC 1], Dr. Arundhati Ajit  Pargaonkar Vs. State of Maharashtra and Others [(1994) Suppl. 3 SCC 380],  J&K Public Service Commission and Others Vs. Dr. Narinder Mohan and  Others [(1994) 2 SCC 630], and Dr. Surinder Singh Jamwal and Another Vs.  State of J & K and Others [(1996) 9 SCC 619].   

       Even recently in Suraj Prakash Gupta and others Vs. State of J & K  and others [(2000) 7 SCC 371], this Court opined:

"28.The decisions of this Court have  recently been requiring strict conformity  with the Recruitment Rules for both direct  recruits and promotees. The view is that  there can be no relaxation of the basic or  fundamental rules of recruitment."  

       It was further observed:

"29. Similarly, in State of Orissa v. Sukanti  Mohapatra ((1993) 2 SCC 486 : 1993 SCC (L&S)  607 : (1993) 24 ATC 259) it was held that though  the power of relaxation stated in the rule was in  regard to "any of the provisions of the rules", this  did not permit relaxation of the rule of direct  recruitment without consulting the Commission  and the entire ad hoc service of a direct recruit  could not be treated as regular service. Similarly,  in M. A. Haque (Dr.) v. Union of India ((1993) 2  SCC 213 : 1993 SCC (L&S) 412 : (1993) 24 ATC  117) it was held that for direct recruitment, the  rules relating to recruitment through the Public  Service Commission could not be relaxed. In J&K  Public Service Commission v. Dr. Narinder Mohan  ((1994) 2 SCC 630 : 1994 SCC (L&S) 723 :  (1994) 27 ATC 56) it was held that the provisions  of the J&K Medical Recruitment Rules could not  be relaxed for direct recruitment. The backdoor  direct recruitments, could not be permitted. (See  also Arundhati Ajit Pargaonkar (Dr.) v. State of  Maharashtra (1994 Supp (3) SCC 380 : 1995 SCC  (L&S) 31 : (1994) 28 ATC 415).) In Surinder  Singh Jamwal (Dr.) v. State of J&K ((1996) 9 SCC  619 : 1996 SCC (L&S) 1296) this Court directed

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the direct recruits to go before the Public Service  Commission."

       In Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan [(2003) 3 SCC  485] this Court categorically held that there was no scope of regularization  unless the appointment was made on a regular basis.

       In Delhi Development Horticulture Employees’ Union Vs. Delhi  Administration, Delhi and others [(1992) 4 SCC 99] the Court emphasized  how judicial sympathy to the workmen could boomerang upon the purpose  wherefor Schemes like Jawahar Rozgar Yojna have been framed, and  thereby in the larger context, deny the limited benefit extended by the State  to the unemployed which would not be available but for such schemes. (See  also Executive Engineer (State of Karnataka) Vs. K. Somasetty and Others,  (1997) 5 SCC 434)

       In M.D., U.P. Land Development Corporation and Another Vs. Amar  Singh and Others [(2003) 5 SCC 388], this Court noticed a large number of  earlier decisions of this Court wherein it had been held that once employees  are appointed for the purpose of Scheme, they do not acquire any vested  right to continue after the project is over.

       In State of Haryana and Another Vs. Tilak Raj and Others [(2003) 6  SCC 123] a Division Bench of this Court held that a person appointed as  daily wager holds no post and thus, not entitled to claim the benefit of equal  pay for equal work. (See also Orissa University of Agriculture and  Technology and Another Vs. Manoj K. Mohanty, (2003) 5 SCC 188).

       In State of Himachal Pradesh through the Secretary, Agriculture to the  Govt. of Himachal Pradesh Vs. Nodha Ram and Others [AIR 1997 SC  1445], this Court stated the law in the following terms:

"4. It is seen that when the project is completed  and closed due to non-availability of funds, the  employees have to go along with its closure. The  High Court was not right in giving the direction to  regularise them or to continue them in other  places. No vested right is created in temporary  employment. Directions cannot be given to  regularise their services in the absence of any  existing vacancies nor can directions be given to  the State to create posts in a non-existent  establishment. The Court would adopt pragmatic  approach in giving directions. The directions  would amount to creating of posts and continuing  them despite non availability of the work. We are  of the considered view that the directions issued by  the High Court are absolutely illegal warranting  our interference. The order of the High Court is  therefore, set side."

       A Division Bench of this Court in Surendra Kumar Sharma Vs. Vikas  Adhikari and Another [(2003) 5 SCC 12] upon noticing the decision of this  Court in Delhi Development Horticulture Employees’ Union (supra)  observed:

"\005A good deal of illegal employment market has  developed, resulting in a new source of corruption  and frustration of those who are waiting at the  Employment Exchanges for years. Not all those  who gain such back-door entry in the employment  are in need of the particular jobs. Though already  employed elsewhere, they join the jobs for better  and secured prospects. That is why most of the

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cases which come to the courts are of employment  in government departments, public undertakings or  agencies. Ultimately it is the people who bear the  heavy burden of the surplus labour. The other  equally injurious effect of indiscriminate  regularization has been that many of the agencies  have stopped undertaking casual or temporary  works though they are urgent and essential for fear  that if those who are employed on such works are  required to be continued for 240 or more days have  to be absorbed as regular employees although the  works are time-bound and there is no need of the  workmen beyond the completion of the works  undertaken. The public interests are thus  jeopardized on both counts."

       Yet again in Haryana Tourism Corporation Ltd. Vs. Fakir Chand and  Others [(2003) 8 SCC 248], noticing that the respondents were not recruited  through the employment exchange or through any other accepted mode of  selection and further noticing that it was also not known whether there was  any advertisement calling for applications for these appointments, the prayer  for reinstatement of service was rejected.

       Although we do not intend to express any opinion as to whether the  cooperative society is a "State" within the meaning of Article 12 of the  Constitution of India but it is beyond any cavil of doubt that the writ petition  will be maintainable when the action of the cooperative society is violative  of mandatory statutory provisions.  In this case except the Nodal Centre  functions and supervision of the cooperative society, the State has no  administrative control over its day to day affairs.  The State has not created  any post nor they could do so on their own.  The State has not borne any part  of the financial burden.  It was, therefore, impermissible for the State to  direct regularization of the services of the employees of the cooperative  societies.  Such an order cannot be upheld also on the ground that the  employees allegedly served the cooperative societies for a long time.  

       In Jawaharlal Nehru Technological University Vs. T. Sumalatha  (Smt.) and Others [(2003) 10 SCC 405], a Division Bench of this Court  rejected a similar contention stating:

"8\005 The learned counsel therefore contends that  there is every justification for absorbing the  respondents concerned on regular basis in  recognition of their long satisfactory service. The  learned counsel further contends that the ad hoc  arrangement to employ them on consolidated pay  should not go on forever. The contention of the  learned counsel cannot be sustained for more than  one reason and we find no valid grounds to grant  the relief of regularization. There is nothing on  record to show that the employees concerned were  appointed after following due procedure for  selection. Apparently, they were picked and  chosen by the university authorities to cater to the  exigencies of work in the Nodal Centre."

       In Jacob M. Puthuparambil (supra) whereupon Mr. Balakrishnan  placed strong reliance, a 3-Judge Bench of this Court noticed that by reason  of the statutory rules, regularization was sought to be made of such  employees who were appointed under posts required to be filled if (i) it is  necessary in public interest and (ii) where an emergency has arisen to fill  any particular post which has fallen vacant, immediately.  Therein it was  further noticed that Clause (e) of Rule 9 provided for regularization of

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service of any person appointed under clause (i) of sub-rule (a) if he had  completed continuous service of two years on December 22, 1973,  notwithstanding anything contained in the rules.

        Jacob M. Puthuparambil (supra) has been distinguished by this Court  in several decisions including 3-Judge Bench of this Court in Director,  Institute of Management Development, U.P. Vs. Pushpa Srivastava (Smt.)  [(1992) 4 SCC 33] and Ashwani Kumar (supra).

       We do not intend to say any more on the subject as even  constitutionality of such a provision is pending for consideration before the  Constitution Bench of this Court.  (See Secretary, State of Karnataka & Ors.  Vs. Umadevi and Ors. 2003 (10) SCALE 388).

       We are also of the opinion that in a case of this nature, where the  validity or otherwise of a government order is in question, the principles of  natural justice will have no role to play and in any event recourse thereto  would result in futility.  

       In Civil Appeal No. 1413 of 2003 an additional ground has been  raised to the effect that as the appellant was appointed on a compassionate  ground, this Court on sympathetic consideration should issue appropriate  directions directing the respondents to regularize her services. It appears that  the appellant was appointed as supervisor in 3rd respondent Bank by the  President of the Bank on a consolidated pay of Rs. 2500/- by an order dated  5.03.2001.  Her appointment is said to have been made on compassionate  ground on the plea that her husband had deserted her.  It has not been shown  before us that there exists a scheme in terms whereof deserted woman can be  appointed on compassionate grounds.  Even such appointment, in our  opinion, would be illegal.   

       In State of Manipur Vs. Md. Rajaodin [(2003) 7 SCC 511], this Court  observed that the purpose of providing appointment on compassionate  ground is to mitigate the hardship due to death of the breadwinner in the  family.                           In a case of this nature this court should not even exercise its  jurisdiction under Article 142 of the Constitution of India on misplaced  sympathy.

In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others [(2004)  2 SCC 130], it is stated: "We have no doubt in our mind that sympathy or  sentiment by itself cannot be a ground for passing  an order in relation whereto the appellants  miserably fail to establish a legal right.  It is  further trite that despite an extra-ordinary  constitutional jurisdiction contained in Article 142  of the Constitution of India, this Court ordinarily  would not pass an order, which would be in  contravention of a statutory provision.   

As early as in 1911, Farewell L.J. in Latham  vs. Richard Johnson & Nephew Ltd. [1911-13  AER reprint p.117] observed : "We must be careful not to allow our  sympathy with the infant plaintiff to affect  our judgment. Sentiment is a dangerous Will  O’ the Wisp to take as a guide in the search  for legal principles."

       Yet again recently in Ramakrishna Kamat & Ors. Vs. State of  Karnataka & Ors. [JT 2003 (2) SC 88], this Court  rejected a similar plea for  regularization of services stating :  

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"\005We repeatedly asked the learned counsel for  the appellants on what basis or foundation in law  the appellants made their claim for regularization  and under what rules their recruitment was made  so as to govern their service conditions.  They  were not in a position to answer except saying that  the appellants have been working for quite some  time in various schools started pursuant to  resolutions passed by zilla parishads in view of the  government orders and that their cases need to be  considered sympathetically.  It is clear from the  order of the learned single judge and looking to the  very directions given a very sympathetic view was  taken.  We do not find it either just or proper to  show any further sympathy in the given facts and  circumstances of the case.  While being  sympathetic to the persons who come before the  court the courts cannot at the same time be  unsympathetic to the large number of eligible  persons waiting for a long time in a long queue  seeking employment\005."    

       For the reasons aforementioned, we do not find any merit in these  appeals which are dismissed accordingly.  No costs.