REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1366  OF 2009 (Arising out of SLP (C) No.6500 of 2004)

Man Singh … Appellant

Versus

Commissioner, Garhwal Mandal, Pauri & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant had been appointed as a Peon on a short term vacancy from

time to time for a fixed period.  Such appointments were said to have been

made  on  diverse  dates,  namely  -  on  9.5.1989,  20.9.2989,  4.12.1989,

2.2.1991, 2.3.1991, 29.6.1991, 27.8.1991, 11.12.1991, 1.1.1992, 31.3.1992,

26.8.1992, 5.3.1993, 2.8.1993, 28.9.1993, 4.12.1993, 4.1.1994, 23.5.1994,

6.9.1995, 6.11.1995 and 15.2.1996.

Names were called for from Employment Exchange in the year 1995.

Appellant applied for the post of Peon which fell vacant in the District of

Chamoli.   A  Selection  Committee  was  constituted  for  selection  of  the

candidates.   Appellant  is  said  to  have  appeared  before  the  Selection

Committee.   The name of  the  appellant  was placed at  serial  No.3 in  the

general  category.   However,  on  or  about  29.5.1995,  the  name  of  the

appellant  was deleted  and in  his  place the  name of one  Mohan Lal  was

inserted.  Appellant’s services were terminated on 5.4.1996.

3. Aggrieved by and dissatisfied therewith, he filed a writ petition on or

about 3.12.2002 before the High Court of Uttaranchal which by reason of

the impugned judgment has been dismissed.

4. Mr.  R.  Krishnamorthi,  learned  counsel  appearing  on  behalf  of  the

appellant,  would  urge  that  appellant  having  been  working  since  1989

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continuously,  his  services  could not  have been terminated particularly in

view of the fact that he was selected for regular appointment by a selection

committee.

5. It  has  been  brought  on  record  that  the  name of  the  appellant  was

wrongly placed at  serial  No.3  in  the  wait-list  as  Mohal  Lal  had  secured

higher  marks  than  the  appellant.   As  there  were  only  three  vacancies,

appellant’s name had to be deleted.

6. Appellant does not attribute any mala fide to the respondent.  It is not

his case that Mohan Lal, in fact, had not secured higher marks than him.  If

a mistake was committed, the respondents were entitled to rectify the same.   

All  persons  similarly  situated  under  our  constitutional  scheme are

required to be treated equally.  Some mistakes were found in the selection

list.  If those mistakes have been rectified and the irregularities have been

removed by preparing the selection list strictly in accordance with rules, no

exception thereto can be taken.   

7. Mohan Lal was wrongly placed in the category of reserved candidates

as  he  had  competed  with  the  general  category  candidates.   Appellant,

indisputably,  had  been  appointed  on  periodical  basis.   He  might  have

continued to work as a Peon for a long time but by reason thereof, he did

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not acquire any indefeasible right to become a permanent employee of the

department.   

Regularization of services, as is well-known, is impermissible in law.

Though  belatedly  respondents  had  taken  steps  to  fill  up  the  existing

vacancies  in  terms  of  the  recruitment  rules  and  upon  following  the

constitutional scheme of equality as adumbrated under Articles 14 and 16 of

the Constitution of India.  

8. Contention of the appellant that as he has been working for a long

time, should have been given preference over said Shri Mohan Lal, in our

considered opinion, cannot be accepted.   

In  Secretary,  State  of  Karnataka  &  Ors. v.  Umadevi  (3)  &  Ors.

[(2006) 4 SCC 1], a Constitution Bench of this Court has laid down the law

in the following terms :

“43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution,  a court  would certainly be  disabled  from passing  an  order  upholding  a violation  of  Article  14  or  in  ordering  the overlooking  of  the  need  to  comply  with  the requirements of Article 14 read with Article 16 of the  Constitution.  Therefore,  consistent  with  the scheme for  public  employment,  this  Court  while laying down the law, has necessarily to hold that

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unless the appointment is in terms of the relevant rules  and  after  a  proper  competition  among qualified persons, the same would not confer any right  on  the  appointee.  If  it  is  a  contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment  on  daily  wages  or  casual  basis,  the same  would  come  to  an  end  when  it  is discontinued.  Similarly,  a  temporary  employee could  not  claim  to  be  made  permanent  on  the expiry of his term of appointment. It has also to be clarified  that  merely  because  a  temporary employee or a casual wage worker is continued for a  time  beyond  the  term  of  his  appointment,  he would  not  be  entitled  to  be  absorbed  in  regular service or made permanent, merely on the strength of  such  continuance,  if  the  original  appointment was  not  made  by  following  a  due  process  of selection as envisaged by the relevant rules. It is not  open  to  the  court  to  prevent  regular recruitment  at  the  instance  of  temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature  of  their  appointment,  do  not  acquire  any right. The High Courts acting under Article 226 of the  Constitution,  should  not  ordinarily  issue directions  for  absorption,  regularisation,  or permanent  continuance  unless  the  recruitment itself  was  made  regularly  and  in  terms  of  the constitutional  scheme.  Merely  because  an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part  of the judgment, he  would  not  be  entitled  to  any  right  to  be absorbed  or  made  permanent  in  the  service.  In fact,  in  such  cases,  the  High  Court  may not  be justified in issuing interim directions, since, after all,  if  ultimately  the  employee  approaching  it  is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately

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no  prejudice  will  be  caused  to  him,  whereas  an interim  direction  to  continue  his  employment would hold up the regular procedure for selection or  impose  on  the State  the burden of  paying  an employee  who is  really  not  required.  The courts must  be  careful  in  ensuring  that  they  do  not interfere unduly with the economic arrangement of its  affairs  by the State  or its  instrumentalities  or lend  themselves  the  instruments  to  facilitate  the bypassing  of  the  constitutional  and  statutory mandates.”

9. We are bound by the said decision as opined in Official Liquidator v.

Dayanand & Ors. [(2008) 10 SCC 1], wherein it has categorically been laid

down :

“90. We  are  distressed  to  note  that  despite several  pronouncements  on  the  subject,  there  is substantial  increase  in  the  number  of  cases involving  violation  of  the  basics  of  judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger  Benches  by citing  minor  difference  in  the facts as the ground for doing so. Therefore, it has become  necessary  to  reiterate  that  disrespect  to constitutional ethos and breach of discipline have grave  impact  on  the  credibility  of  judicial institution  and  encourages  chance  litigation.  It must  be  remembered  that  predictability  and certainty  is  an  important  hallmark  of  judicial jurisprudence developed in this country in last six decades  and  increase  in  the  frequency  of conflicting  judgments  of  the  superior  judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to

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decide as to which of the judgment lay down the correct law and which one should be followed.  

91. We may add that in our constitutional set up every  citizen  is  under  a  duty  to  abide  by  the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering  the  system  and  operating  various constituents of the State and who take oath to act in  accordance  with  the  Constitution  and  uphold the  same,  have  to  set  an  example  by  exhibiting total commitment to the Constitutional ideals. This principle  is  required to be observed with greater rigour by the members of judicial  fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient  functioning of the judicial system.  If  the  Courts  command  others  to  act  in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation  of  the constitutional  principle  by those who are required to lay down the law.”

10. Reliance  placed  by Mr.  Krishnamorthi  on  Karnataka  State  Private

College Stop-Gap Lecturers Association v. State of Karnataka & Ors. [AIR

1992 SC 677] is wholly misplaced.  It is not a case where one set of ad hoc

recruits was being replaced by another set of ad hoc recruits.

11. Respondent  had  filled  up  the  vacancies  in  terms  of  the  rules.

Furthermore,  appellant’s  name  was  not  sponsored  by  the  Employment

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Exchange.   He  might  have  got  himself  registered  in  the  Employment

Exchange but in absence of any proof that his name was sponsored by the

Employment Exchange, the same could not have been considered.   

The Employment Exchange sponsors the names of the candidates in

terms of the provisions laid down in the Employment Exchange Manual.

The Employment Exchange authorities are bound to sponsor the names in

accordance with seniority.   Names of a candidate  can be sponsored only

when his turn comes and not prior thereto {[See Arun Tiwari & Ors. v. Zila

Mansavi Shikshak Sangh & Ors. [AIR 1998 SC 331];  Avtar Singh Hit  v.

Delhi  Sikh  Gurdwara  Management  Committee  and  Ors. [(2006)  8  SCC

487)}

12. Mr.  Krishnamorthi  submits  that  Shri  Mohan  Lal  is  no  longer  in

service.  That by itself may not be a ground, particularly at this distant time,

to direct appointment of the appellant.  Recruitment process started in the

year 1995.  A select list was prepared.  Ordinarily, the life of a select list is

one  year.   In  absence  of  any  notification  extending  the  validity  of  such

select list, no appointment can be directed to be made from such select list.   

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13. There is, thus, no merit in this appeal.  It is dismissed accordingly.

However, in the facts and circumstances of this case, there shall be no order

as to costs.

………………………………J. [S.B. Sinha]

………………………………J.  [Dr. Mukundakam Sharma]

New Delhi; March 3, 2009

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