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CASE NO.: Appeal (civil)  8563 of 2002

PETITIONER: Kendriya Vidyalaya Sangathan & Ors

RESPONDENT: L.V. Subramanyeswara & Anr

DATE OF JUDGMENT: 10/05/2007

BENCH: S.B. Sinha & C.K. Thakker

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NO. 8559 OF 2002 AND CIVIL APPEAL NO. 8560-8561 OF 2002 AND CIVIL APPEAL NO. 8562 OF 2002

S.B. SINHA, J.

   1.  Appellant is an autonomous body.   It is a society registered under the  Societies Registration Act.  Government of India, Ministry of Human  Resource Development, however, exercises control over it.   The recruitment  of teachers and other staff is governed by rules known as Appointment,  Promotion, Security etc. Rules, 1971.  Rules were framed by the Board of  Governors of the Appellant, the relevant provisions whereof are as under:-

4.      Authorised permanent strength and  temporary strength of the Service :-

(i)   The authorised permanent and temporary  strength of the various grades of the service on the  appointed day shall be as specified in Schedule I.

(ii)    After the appoined day, the authorised  permanent and temporary strength of the various  grades of the service shall be such as may, from  time to time, be determined by or under the  authority of the Board.

       Provided that the competent authority may  make temporary additions to any grade of the  service as found necessary in the interest of the  work of the Sangathan.

6.      Recruitment

(i)     The method of filling up of the posts in the  various grades of the Service, age limit and other  qualifications relating thereto shall be as specified  in Schedule I (In case of posts not covered in  Schedule I, procedure, qualifications and similar  matters shall be determined by the Commissioner).   Provided that the upper age limit prescribed for  direct recruitment may be relaxed in the case of  candidates belonging to the Scheduled  Castes/Scheduled Tribes and other specified

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categories of persons in accordance with the orders  issued in this behalf from time to time by the  Central Government.

(ii)    Appointments by direct recruitment or by  promotion of departmental candidates shall be  made, except when there are special reasons to be  recorded in writing with the approval also of the  Chairman, in the order in which the names of  eligible candidates are included in the Select Panel  of the appropriate grade prepared according to the  procedure laid down in Rule 7.

7.      Preparation of Select Panels

(1)     In the case of posts being filled up by direct  recruitment the appropriate selection authority  shall, after test or interview or both, as the case  may be, place the candidates considered suitable  for appointment to the particular grade/post in a  select panel in the order of their merit.  

(2)  in the case of posts being filled up by  promotion on the principle of seniority subject to  the rejection of the unfit, the Departmental  Promotion Committee or other selecting  authorities will first decide the field of choice i.e.  the number of eligible employees who are to be  considered for inclusion in the Select Panel.  From  among such employees those who are considered  unfit for promotion are to be excluded.  The  "Select Panel" will then be prepared by placing the  names of the remaining employees without  disturbing the seniority interest.

(3)     In the case of promotion on the basis of the  seniority-cum-merit or on the principle of merit  with due regard to seniority the field of choice will  first be decided and the employees considered  unfit excluded in the same way as in the sub-rule  (2) above.   The remaining employees are then to  be classified as "outstanding" "very good" and  "good" on the basis of merit, as determined by  their respective records of service and also test or  interview if considered necessary.  The "Select  Panel" will thereafter be prepared by placing the  names in the order of those categories, without  disturbing the seniority interest within each  category.

(4)     Where the posts are to be filled up partly by  direct recruitment and partly by promotion, the  select panel will be prepared as follows:-

  The appropriate selecting authority will first  prepare two separate select panels for the two  categories in accordance with the procedure laid  down above.  The required panel will then be  drawn up by combining these two separate panels  according to the quota of posts reserved for each  category.  That is to say, the names of direct  recruits will appear first, followed by the  promotees, in proportion to the respective quota  reserved for them.

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***             ***             ***             ***

9.      Ad-hoc Appointment

(1)     Notwithstanding anything contained in rule  6 & 7 when an employee included in the select  panel is not available or where such a select panel  has not yet been prepared and the appointing  authority considers it necessary and expedient to  do so, a vacancy in any grade of the service may  be filled on ad-hoc and temporary basis by the  appointment of a person or persons otherwise  eligible for appointment thereto :

(i)     for a period not exceeding six months ; or  

(ii)    for the period for which a select panel in  respect of the particular post/grade is not prepared  as per rule 7, whichever is less.

(2)     Every appointment under sub-rule (1) shall  be made only as a temporary arrangement and no  such appointment shall be deemed to confer on the  appointee any right or claim to the respective  grade/post or to seniority in that grade.

   2.  Teachers in terms of the said rules are appointed on All India basis.   To cater the need of the students and the schools run by appellant throughout  the country which are about 854 in number, the services of the regular  teachers are liable to transfer all over India.  Advertisements were issued by  the appellant in some local newspapers inter alia for its Hyderabad  Institution for primary teachers on leave vacancies.  Pursuant thereto or in  furtherance thereof the names of the respondents were registered with the  local employment exchanges and not in the Central Employment Exchange.   They had been admitted intermittently. One of the terms of the offer of  appointment issued in their favour was that the same would not confer any  right upon them to claim regular appointment.  It was furthermore  categorically stipulated that they were appointed as stop-gap arrangement for  a particular period in the academic year.  They were selected, however, not  by a regular selection committee.  Praying for the regularisation, they filed  writ petitions before the Andhra Pradesh High Court.   Interim orders were  passed in terms whereof they continued in service. Appellant Society having  been notified in terms of sub-Section (2) of Section 14 of the Administrative  Tribunals Act in terms of a notification dated 1.1.1999; all the writ petitions  were transferred to the Central Administrative Tribunal.    

   3.  The Tribunal dismissed the said transfer applications.   Noticing that  there had been no regular vacancies, it was held:- "13.  Admittedly, all the applicants were appointed on  adhoc basis for short spells by the Assistant  Commissioner, clearly stipulating that such appointment  would not confer upon them any right to the post,  considering candidates sponsored by the local  employment exchange.   It is also brought out that the  various orders passed by the High Court by which  applicants were paid same salary as is paid to the regular  employees and were also directed to continue.  In view of  those orders, the applicants were sought to be continued.    It is however not in dispute that the applicants were not  regularly appointed by the Selection Committee after  considering candidates sponsored by the Central  Employment Exchange as per the appointment procedure  contained in the rules."

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   4.  Aggrieved by and dissatisfied thereagainst, the respondents filed writ  petitions.

   5.  The High Court, however, in its impugned judgment opined that  although the respondents have continued in the services intermittently and  with artificial breaks, but till their services were terminated, they have  worked continuously and as such their services would be regularized in view  of the decision of this Court in Ashwani Kumar and Others v State of Bihar  and Others [(1997) 2 SCC 1].   

    6. The High Court noticed that the selection of the respondents were not  regular selection within the meaning of Rule 7 of Appointment Rules.   Despite the same, it thought fit to rely upon a Division Bench decision of the  Jammu and Kashmir High Court in LPA(SW) No. 199 of 1995. It was  directed:- "...The petitioners are accordingly declared to be in  service of the respondents herein notwithstanding the  impugned proceedings dated 10.12.2001 under which  they were replaced on the ostensible ground of regular  incumbents joining the service of the respondent  school.   In the circumstances the impugned  proceedings dated 10.12.2001 are set aside.  The second  respondent Assistant Commissioner, Kendriya  Vidyalaya Sangathan Secunderabad is directed to give  appropriate posting orders to the petitioners herein  within four weeks from the date of receipt of a copy of  this order."

   7.  Mr. S. Rajappa, learned counsel appearing on behalf of the appellant  in support of this appeal would contend:- (i)     That respondents having recruited in terms of Rule 9 of Rules by way  of a temporary arrangement to meet the exigencies of work and they have  continued as ad hoc/part time /contractual employees inter alia by reason of  the interim orders passed by the Court.    (ii)    Their services should not have been directed to be regularized.   (iii)   The respondent’s case do not come within the purview of the  Constitution Bench decision of this Court in Secretary, State of Karnataka  and Others v Umadevi (3) and Others [(2006) 4 SCC 1].

   8. Mr. K. Ramakrishna Reddy, learned senior counsel, Mr. P.S.  Narasimha, learned counsel on the other hand would submit that the  respondents have worked for a long period and having the requisite  qualifications, the services of the respondents could not have been  discontinued by the appellant.  The entry of the respondents in the services  being not a back door one and as prior thereto, their names were sponsored  by the employment exchange and they have been selected by a selection  committee.   The Rule of Equality in public employment and equal  opportunity as emphasized by this Court in Umadevi (supra) as also the rule  of reservation and the rules framed by the appellant having been satisfied,  their appointment satisfies the test laid down in Umadevi (supra).  In any  event, the exceptions carved out in Umadevi (supra) clearly apply in the  instant case as their selection in terms of Rule 9 of the Rules should be  treated to be only irregular and not illegal.

   9.  As in case of one of the respondents, the judgment of the High Court  directing the appellant to pay regular scale of pay having attained finality as  the special leave petition filed thereagainst has been dismissed.  The  impugned judgment should not be interfered with.   In any event, this Court  taking into consideration the human element of the matter should not  interfere with the impugned judgment.

   10. Had such regular vacancies been created, appellants would have been  directed to be appointed on All India Basis.  Respondents did not get their  names registered in the Central Employment Exchange.   Keeping in view  the nature of the job and in particular that the posts are transferable

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throughout the country, an opportunity within the meaning of Articles 14  and 16 of the Constitution of India would mean an opportunity to all who are  eligible therefor.  Advertisement was issued for a limited purpose, namely,  for leave vacancies, local employment exchanges were contacted only for  filling of such posts and not regular posts.

  11.  Selections were held only at the local level and not on All India Level.

  12.  It is true that they had continued in service for such a long time, but  they have been thrust upon the appellant by reason of interim orders passed  by the High Court.  The Constitution Bench of this Court in Umadevi  (supra) held:- 15. 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  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."  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. 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.  ***                ***                ***                       ***  53. One aspect needs to be clarified. There may be cases

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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 of the constitutional  requirement and regularising or making permanent, those  not duly appointed as per the constitutional scheme.    54. 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.  

   13. It is therefore, not correct to contend that in the aforementioned  backdrop of events, respondents satisfy the tests of equality, reservation or  rule of law as adumberated in Umadevi (supra).  Reliance placed on  paragraph 53 of Umadevi (supra) is also mis-placed.  What would be meant  by the term irregularity must be understood in the context of the decision of  this Court in Punjab Water Supply and Sewerage Board v Ranjodh Singh &  Ors [2006 (13) SCALE 426].   The said paragraph has been explained by  this Court in Punjab State Warehousing Corp., Chandigarh v Manmohan  Singh & Anr. [2007 (3) SCALE 401].

 14.   Furthermore, the respondents even did not complete the period of 10  years without intervention by the Court, they would not have been in service  for more than 10 years but for intervention of the High Court, they had been  continued in service in terms of the interim order passed by the High Court.

  15.  So far as the submission of the learned counsel that in the case of  some of the respondents, the High Court had applied the principle of equal  pay for equal work.  That aspect of the matter has also been considered  by a  Constitution Bench in Umadevi (supra):- "44. The concept of "equal pay for equal work" is  different from the concept of conferring permanency on  those who have been appointed on ad hoc basis,  temporary basis, or based on no process of selection as  envisaged by the rules. This Court has in various  decisions applied the principle of equal pay for equal  work and has laid down the parameters for the  application of that principle. The decisions are rested on  the concept of equality enshrined in our Constitution in  the light of the directive principles in that behalf. But  the acceptance of that principle cannot lead to a  position where the court could direct that appointments  made without following the due procedure established

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by law, be deemed permanent or issue directions to  treat them as permanent. Doing so, would be negation  of the principle of equality of opportunity. The power to  make an order as is necessary for doing complete  justice in any cause or matter pending before this Court,  would not normally be used for giving the go-by to the  procedure established by law in the matter of public  employment. Take the situation arising in the cases  before us from the State of Karnataka. Therein, after  Dharwad decision  the Government had issued repeated  directions and mandatory orders that no temporary or  ad hoc employment or engagement be given. Some of  the authorities and departments had ignored those  directions or defied those directions and had continued  to give employment, specifically interdicted by the  orders issued by the executive. Some of the appointing  officers have even been punished for their defiance. It  would not be just or proper to pass an order in exercise  of jurisdiction under Article 226 or 32 of the  Constitution or in exercise of power under Article 142  of the Constitution permitting those persons engaged, to  be absorbed or to be made permanent, based on their  appointments or engagements. Complete justice would  be justice according to law and though it would be open  to this Court to mould the relief, this Court would not  grant a relief which would amount to perpetuating an  illegality."             16.  Direction to regularize the services of the respondents in view of the  authority by Constitution Bench in Umadevi (supra), therefore cannot be  said to be of any significance so as to deny the relief to the appellant.

   17.   Ashwani Kumar (supra) has also been noticed by the Constitution  Bench.  A distinction furthermore must be noted in mind between  regularisation and permanency, the regularisation does not mean  permanency.  In A. Umarani v Registrar, Cooperative Societies and Others   [(2004) 7 SCC 112,], this Court had made the distinction, it was furthermore  held:- "34. 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.  35. No appointment, therefore, can be made in  deviation of or departure from the procedures laid  down in the said statutory rules.   36. The terms and conditions of services are also  laid down in the said rules."

   18.  For the reasons aforementioned, we are of the opinion that the  impugned judgment cannot be sustained.  The Appeals are allowed.  The  impugned judgment is set aside.   In the facts and circumstances of this case,  there shall be no order as to costs.