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CASE NO.: Appeal (civil)  191 of 2007

PETITIONER: Mahadeo Bhau Khilare (Mane) & Ors

RESPONDENT: State of Maharashtra & Ors

DATE OF JUDGMENT: 09/05/2007

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

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NO. 192 OF 2007  Sopan Vishnu Kapase                                             ..      Appellant Versus State of Maharashtra & Another                         ..       Respondents

S.B. Sinha, J.

1.      Appellant No. 2 was initially appointed as a serving unpaid candidate  in the Office of ’Talathi’.   Such an appointment was made purported to be  under the Orders of Talathi permitting him to work in his office as unpaid  candidate. Appellant No. 1 was appointed as Assistant to Talathi on  2.4.1979.  Appellants had been engaged from time to time in the said post.   Unpaid candidates, according to appellants themselves, used to receive 30  per cent out of every rupee received by the first respondent for writing of the  document by the candidate.   Revenue officials were directed by the State to  stop such recruitment.  Despite the same, however, recruitment of Assistants  from persons like the appellants continued.

2.  Allegedly, in the year 1995, some of the unpaid candidates filed an  original application before the Maharashtra Administrative Tribunal wherein  they sought for a direction in regard to their absorption in  the services of the  State.  Therein a scheme was directed to be framed by the Tribunal by a  Judgment and Order dated 30.11.1995.   A scheme was thereafter framed by  the State, the relevant portions whereof read as under:-

"Government Resolution

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(a)  For absorption of unpaid copiers from the  Revenue Department in the service of  Administration the date of eligibility should be  decided as the date of issuance of Order of  Maharashtra Administrative Tribunal i.e. 30th  November 1995 (cut of date).

(aa)    The candidates who have completed 10  years of service on 30-11-1995 and are in service  for more than year if apply for the post of Steno- typist, Typist in the IIIrd grade, Talathi or similar  posts of Revenue Department, or for the post of IV  grade and if they hold the educational qualification  for such posts and if they have registered their

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names in the Employment Exchange Office while  absorption in the said vacant post the age limit be  relaxed.  Similar condition of their appointment by  the Recruitment Committee will not apply.

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(uu)   In the case of unpaid copiers the Collector  and other local Revenue Officers should execute as  follows :-

(a)     The unpaid copiers from the Revenue  Department who have been serving till 30th  November 1995 for more than 10 years such cases  may be scrutinized by the Collector and he should  enquire from the copier to which posts he wishes  to absorb.  If the candidate has educational  qualification prescribed and if he has registered his  name in the Employment Exchange then a list of  seniority of such copiers be prepared and he be  appointed as per the above scheme.

2)      Those unpaid copiers have served less than  10 years or more than 3 years as on 30th November  1995 then after taking into consideration their  education qualification, their names be forwarded  to the local Section committee and in case of  continuous three candidates relaxation of age limit  as per the Government Scheme be informed.  Such  an unpaid copier be asked to make application  directly to the Selection Board.

3.      Henceforth, all the Revenue Officer are  asked to carefully follow the orders issued by the  Government Circular No. EAST/1083/3618/483- E-7 dated 13th February, 1987, Revenue & Forest  Department."

3.  Appellants, however, were not appointed under the said scheme. They  moved the Tribunal again.  By a judgment dated 29.1.1999, respondents  were directed by the Tribunal to bring the appellants within the purview of  the said scheme.  Aggrieved by and dissatisfied therewith, the respondents  filed several writ applications which were allowed and the matter was  remitted back to the Tribunal.

4.   Ultimately, the Tribunal in its Order dated 20.7.2001 opined that the  work from the appellants were taken by the Tehsildars on their own without  having any authority whatsoever in that behalf. Writ Petitions preferred by  the appellants thereagainst have been dismissed by reason of the impugned  judgment.   

5.      Mr. R.S. Hegde, the learned counsel appearing on behalf of the  appellant submitted that the Scheme dated 22.10.1996  framed by the State  of Maharashtra would apply also to the appellants also and in that view of  the matter as also having regard to the fact that a large number of persons  similarly situated have already been absorbed in the services of the State,  there is absolutely no reason as to why they should be discriminated against.

6.      The learned counsel appearing on behalf of the respondents, on the  other hand, submitted that not only there is no sanctioned post, the purported  recruitments had been made by the Tehsildars to assist them and as such the  appellants do not come within the purview of the said Scheme.

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7.      Indisputably, the State of Maharashtra has framed recruitment rules.   Any scheme by way of an executive instruction in terms of Article 162 of  the Constitution of India, if violative of such statutory rules would not be  legally sustainable.  [See A. Umarani v Registrar, Cooperative Societies and  Others,  (2004) 7 SCC 112].

8.      The question in regard to the existence of any vested legal right, inter  alia is such   by above appointees and/or daily wagers, to be absorbed /  regularized in the State Services came up for consideration before a  Constitution Bench of this Court in Secretary, State of Karnataka & Ors. v  Umadevi (3) & Ors  [(2006) 4 SCC 1].

9.      It was categorically held therein that regularisation in  service, in  cases where the appointments were void ab initio, having been made in utter  disregard of the existing recruitment rules and/or constitutional scheme  adumberated under Article 14 and 16 of the Constitution of India would be  wholly illegal and thus the direction in this behalf can be issued. [See also  Punjab Water Supply & Sewerage Board v. Ranjodh Singh & Ors., 2006  (13) SCALE 426 and Punjab State Warehousing Corporation Chandigarh v  Manmohan Singh & Anr, 2007 (3) SCALE 401]

10.     In terms of the said Scheme, Steno-typists, Typists on the IIIrd grade  or similar posts of the Revenue Department could be absorbed in the State  service.  We would assume that the said scheme was valid in law, although it  was not in view of the decision of this Court in Umarani (supra).    Appellants were appointed by Talathis as their assistants.  They only used to  assist the Talathis in their day to day work.   They were never appointed as  Talathis. No such post of Assistant to Talathis had been created and/or  sanctioned by any competent authority.  No recruitment rule therefor  was  framed. Therefore, their appointments were illegal.  The State had also  imposed a ban on appointment of such persons.  In any event, they were  appointed by the employees themselves to help them and not by any  authority having the requisite jurisdiction therefor.

11.     Appointments made without following the statutory rules by the State  and that too without any remuneration whatsoever was itself  unconstitutional.    

12.     Before a person furthermore can claim regularisation in the services of  the State, he must be in the service of the State.  If the appellants were not in  the services of the State, question of their being regularized therein, in our  opinion,  would be wholly impermissible.  Appellants might have worked  for a long time but the same by itself is not decisive inasmuch as they had  not been occupying any post having not been appointed by the State.  Any  action on the part of a servant of a State on his own, having no authority in  that behalf, would be wholly illegal and without jurisdiction.

13.     For the reasons aforementioned, we are of the view that no case has  been made out for our interference with the impugned judgment.  Appeals  are, therefore, dismissed.  No costs.