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CASE NO.: Appeal (civil)  5607 of 2006

PETITIONER: Municipal Corporation, Jabalpur

RESPONDENT: Om Prakash Dubey

DATE OF JUDGMENT: 05/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No.  5065 of 2006)

S.B. Sinha, J.

       Leave granted.

       Appellant is a Municipal Corporation constituted under the Madhya  Pradesh Municipal Corporation Act, 1956 (for short, ’the Act’).   Indisputably, the terms and conditions of service of its employees are  governed by statutory rules.  Yet again in terms of Section 58 of the Act, the  State of Madhya Pradesh may issue directions, which the Corporation is  obliged to follow.   

       A large number of employees were appointed by the Corporation on  daily wages.  The terms and conditions of their appointment are not known.   It is, however, not disputed that recruitment procedure, as laid down by the  rules framed by the State of Madhya Pradesh in terms of the said provisions  of the Act, had not been followed.  Industrial disputes were said to have  been raised and different labour courts in their Awards arrived at different  conclusions.  The Municipal Corporation purported to have laid down a  policy decision to regularise the services of the employees in terms whereof  those who had been working from a period prior to 31st December, 1983  were to be regularized according to seniority and availability of posts on  fulfilling the eligibility criteria laid down therefor.  Several writ petitions  were filed questioning the correctness or otherwise of the said Awards.   When the matter was pending before the High Court, the counsel appearing  on behalf of the Corporation brought to its notice about the said purported  scheme of the State.   

       Respondent herein was one of the six petitioners in Writ Petition  No.4739 of 1998, which was also disposed of together with other writ  applications pending before the High Court.  A contempt petition came to be  filed by the respondent herein alone, although, as noticed hereinbefore, the  scheme involved a large number of workmen who were parties before the  High Court.  The said contempt petition was filed, inter alia, on the premise  that the Corporation had been making discrimination amongst the employees  in the matter of regularisation of their services.  By reason of the impugned  judgment dated 18.8.2005, having regard to the submissions made before it  on behalf of the parties, the High Court directed :

       "Considering the contention of the non-applicant  and after hearing the applicant, it will be appropriate if  respondent is permitted to prepare a fresh gradation list  as per date of engagement of all the daily rated  employees.  The gradation list shall also reflect education

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qualifications of all respective employees.  Aforesaid  gradation list be prepared by the respondent within a  period of 45 days from today and shall be published on a  notice board of the Municipal Corporation inviting  objection, if any from the employees.  A period of 15  days shall be given to the employees to submit their  objection.  If any objection is filed by any of the  employees in respect of gradation list, it shall be  considered and decided by the respondent within a period  of two weeks thereafter.  Then a final gradation list shall  be published in the notice board of the Corporation.   Thereafter, respondent shall take the exercise for  regularisation of the employees as directed by this Court  in Ramdhar Case (W.P.No.1464/01) Decided on  27.2.2003).  Aforesaid exercise shall be completed within  a period of three months.         From the perusal of the order of the Commissioner  dated 10.8.2005, it appears that some of the officers of  the Municipal Corporation joined hands with the  employees and manipulated the gradation list and or  issued regularisation orders which are contrary to the  directions issued by this Court in Ramadhar case.  All the  concerned employees who are responsible for the  aforesaid mischief deserve an appropriate action by the  Commissioner, Municipal Corporation, in these  circumstances, Commissioner, Municipal Corporation is  directed to take departmental action against all the erring  officers who have played mischief or played some  malafide rate (sic) in issuing the order of regularisation  which are contrary to the directions issued by this Court  in Ramadhar Case or have manipulated the things for the  purpose of issuing regularisation orders of the employees  who were not eligible for the regularisation.  Aforesaid  action shall be taken by the Commissioner, Municipal  Corporation within a period of three months from today.   In case some action is to be taken by the State, an  appropriate step shall be taken by him in this regard  drawing attention of the State within a period of 30 days  from today.         The Commissioner, Municipal Corporation shall  be responsible for the compliance of this order.  A  compliance report of this order be sent to the Registry of  this Court within a period as fixed by this Court  hereinabove.         Report filed in a sealed cover is returned to Shri  Sharad Verma, learned counsel."      

       The Municipal Corporation is, thus, before us.

       Mr. Ranjan Mukherjee, learned counsel appearing on behalf of the  appellant would submit that the High Court committed a serious error in  issuing the aforesaid directions, as the purported policy decision dated  31.3.1997, on the basis whereof the High Court passed its order framing a  scheme of regularisation on 27.2.2003, has been superceded by the State by  issuing a circular dated 12.4.2005, inter alia, stating :

"Appointments made on the above daily wage were not  made keeping in view the provisions of Departmental  Recruitment Rules and other reservation provisions,  rather employees were engaged as per the requirement of  the work.  Supreme Court has made the observation in  regard to the civil posts of daily wage employees/workers  and regularisation in the services in the Case  No.3492/1996 titled State of Himachal Pradesh Vs.

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Suresh Kumar Verma and such regularisation had been  deemed violation of Articles 14 and 16 of the  Constitution.  It has also been observed in the above case  by the Supreme Court that appointment made on the  basis of daily wages could not be deemed the  appointment made as per the relevant recruitment rules  against the Civil Posts and appointment could be made  against the Civil Posts only after following the procedure  of recruitment as per the relevant recruitment rules.   Above ruling laid down by the Supreme Court has  already been submitted to all the Departments/  Appointing Authorities vide even numbered memo dated  01.11.2004 of this Department."  

       The learned counsel would contend that having regard to the various  decisions of this Court and in particular, the Constitution Bench Judgment in  Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors. [(2006) 4  SCC 1] the impugned judgment cannot be sustained.                    Mr. Ravindra Shrivastava, learned Senior Counsel appearing on  behalf of the respondent, on the other hand, would contend that the High  Court issued direction to regularise the services of the workmen, keeping in  view different Awards passed in their favour by the Labour Court as also the  policy decision adopted by the appellant itself.  It was further submitted that  in this case the directions contained in paragraph 53 of the decision of the  issued by the Constitution Bench of this Court in Umadevi (supra), shall be  applicable.   

       Appellant is a "State" within the meaning of Article 12 of the  Constitution of India.  It, being a statutory authority, in the matter of  recruitment of employees is bound by the constitutional provisions contained  in Articles 14 and 16 of the Constitution as also the rules and regulations  framed by it.  Indisputably, it did not have the last say as all appointments  were subject to approval of the State of Madhya Pradesh, whose decision  was to be final.  Indisputably again, the concerned employees were recruited  in terms of the extant rules.  Prior to their appointment, no advertisement has  been issued.  The employment exchange had not been notified in regard to  the existing vacancy.  In short, the principle of ’public employment’ laid  down under Article 16 of the Constitution of India has not been complied  with.  Regularisation, as is well known, is not a mode of appointment.   Regularisation, again indisputably, does not mean permanence.  However,  having noticed that different Benches of this Court had been passing  different orders, in Secretary, State of Karnataka & Ors. vs. Umadevi (2)  & Ors. [(2006) 4 SCC 44 : (2003) 10 SCALE 388], a Three Judge Bench  referred the matter to the Constitution Bench.  In Umadevi (3) (supra), the  Constitution Bench held :

"During the course of the arguments, various  orders of the courts either interim or final were brought  to our notice. The purport of those orders more or less  was the issue of directions for continuation or absorption  without referring to the legal position obtaining. Learned  counsel for the State of Karnataka submitted that chaos  has been created by such orders without reference to the  legal principles and it is time that this Court settled the  law once and for all so that in case the Court finds that  such orders should not be made, the courts, especially,  the High Courts would be precluded from issuing such  directions or passing such orders. The submission of  learned counsel for the respondents based on the various  orders passed by the High Court or by the Government  pursuant to the directions of the Court also highlights the  need for settling the law by this Court. The bypassing of  the constitutional scheme cannot be perpetuated by the  passing of orders without dealing with and deciding the

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validity of such orders on the touchstone of  constitutionality. While approaching the questions falling  for our decision, it is necessary to bear this in mind and  to bring about certainty in the matter of public  employment. The argument on behalf of some of the  respondents is that this Court having once directed  regularisation in Dharwad case all those appointed  temporarily at any point of time would be entitled to be  regularised since otherwise it would be discrimination  between those similarly situated and in that view, all  appointments made on daily wages, temporarily or  contractually, must be directed to be regularised.  Acceptance of this argument would mean that  appointments made otherwise than by a regular process  of selection would become the order of the day  completely jettisoning the constitutional scheme of  appointment. This argument also highlights the need for  this Court to formally lay down the law on the question  and ensure certainty in dealings relating to public  employment. The very divergence in approach in this  Court, the so-called equitable approach made in some, as  against those decisions which have insisted on the rules  being followed, also justifies a firm decision by this  Court one way or the other. It is necessary to put an end  to uncertainty and clarify the legal position emerging  from the constitutional scheme, leaving the High Courts  to follow necessarily, the law thus laid down."

       Referring to a large number of decisions which have been rendered by  different Benches of this Court from time to time, the Constitution Bench  categorically opined :

"While directing that appointments, temporary or  casual, be regularised or made permanent, the courts are  swayed by the fact that the person concerned has worked  for some time and in some cases for a considerable  length of time. It is not as if the person who accepts an  engagement either temporary or casual in nature, is not  aware of the nature of his employment. He accepts the  employment with open eyes. It may be true that he is not  in a position to bargain \026 not at arms length \026 since he  might have been searching for some employment so as to  eke out his livelihood and accepts whatever he gets. But  on that ground alone, it would not be appropriate to  jettison the constitutional scheme of appointment and to  take the view that a person who has temporarily or  casually got employed should be directed to be continued  permanently. By doing so, it will be creating another  mode of public appointment which is not permissible. If  the court were to void a contractual employment of this  nature on the ground that the parties were not having  equal bargaining power, that too would not enable the  court to grant any relief to that employee. A total  embargo on such casual or temporary employment is not  possible, given the exigencies of administration and if  imposed, would only mean that some people who at least  get employment temporarily, contractually or casually,  would not be getting even that employment when  securing of such employment brings at least some  succour to them. After all, innumerable citizens of our  vast country are in search of employment and one is not  compelled to accept a casual or temporary employment if  one is not inclined to go in for such an employment. It is  in that context that one has to proceed on the basis that

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the employment was accepted fully knowing the nature  of it and the consequences flowing from it. In other  words, even while accepting the employment, the person  concerned knows the nature of his employment. It is not  an appointment to a post in the real sense of the term.  The claim acquired by him in the post in which he is  temporarily employed or the interest in that post cannot  be considered to be of such a magnitude as to enable the  giving up of the procedure established, for making  regular appointments to available posts in the services of  the State. The argument that since one has been working  for some time in the post, it will not be just to discontinue  him, even though he was aware of the nature of the  employment when he first took it up, is not (sic) one that  would enable the jettisoning of the procedure established  by law for public employment and would have to fail  when tested on the touchstone of constitutionality and  equality of opportunity enshrined in Article 14 of the  Constitution."           By way of clarification, however, in paragraph 53 of its judgment this  Court clarified :  "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 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  above referred 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."                     The question which, thus, arises for consideration, would be : Is there  any distinction between ’irregular appointment’ and ’illegal appointment’?   The distinction between the two terms is apparent.  In the event the  appointment is made in total disregard of the constitutional scheme as also  the recruitment rules framed by the employer, which is State within the  meaning of Article 12 of the Constitution of India, the recruitment would be  an illegal one; whereas there may be cases where, although, substantial  compliance of the constitutional scheme as also the rules have been made,  the appointment may be irregular in the sense that some provisions of the  rules might not have been strictly adhered to.         In R.N. Nanjundappa vs. T. Thimmiah & Anr. [(1972) 1 SCC 409],  this Court held : "The contention on behalf of the State that a rule  under Article 309 for regularisation of the appointment of

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a person would be a form of recruitment read with  reference to power under Article 162 is unsound and  unacceptable. The executive has the power to appoint.  That power may have its source in Article 162. In the  present case the rule which regularised the appointment  of the respondent with effect from February 15, 1958,  notwithstanding any rules cannot be said to be in exercise  of power under Article 162. First, Article 162 does not  speak of rules whereas Article 309 speaks of rules.  Therefore, the present case touches the power of the State  to make rules under Article 309 of the nature impeached  here. Secondly when the Government acted under Article  309 the Government cannot be said to have acted also  under Article 162 in the same breath. The two articles  operate in different areas. Regularisation cannot be said  to be a form of appointment. 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 dot 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."                         [Emphasis supplied]                  Yet again, in B.N. Nagarajan & Ors. vs. State of Karnataka & Ors.  [(1979) 4 SCC 507], this Court followed the said dicta stating : "Apart from repelling the contention that  regularisation connotes permanence, these observations  furnish the second reason for rejection of the argument  advanced on behalf of the promotees and that reason is  that when rules framed under Article 309 of the  Constitution of India are in force, no regularisation is  permissible in exercise of the executive powers of the  Government under Article 162 thereof in contravention  of the rules. The regularisation order was made long after  the Probation Rules, the Seniority Rules and the  Recruitment Rules were promulgated and could not  therefore direct something which would do violence to  any of the provisions thereof. Regularisation in the  present case, if it meant permanence operative from  November 1, 1956, would have the effect of giving  seniority to promotees over the direct recruits who, in the  absence of such regularisation, would rank senior to the  former because of the Seniority Rules read with the  Probation Rules and may in consequence also confer on  the promotees a right of priority in the matter of sharing  the quota under the Recruitment Rules. In other words,  the regularisation order, in colouring the appointments of  promotees as Assistant Engineers with permanence  would run counter to the rules framed under Article 309  of the Constitution of India. What could not be done  under the three sets of Rules as they stood, would thus be  achieved by an executive fiat. And such a course is not  permissible because an act done in the exercise of the  executive power of the Government, as already stated,

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cannot override rules framed under Article 309 of the  Constitution."            This aspect of the matter has been considered in National Fetilizers  Ltd. & Ors. vs. Somvir Singh [(2006) 5 SCC 493], stating : "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 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  regularisation of the services only of those employees  whose appointments were irregular as explained in State  of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T.  Thimmiah and B.N. Nagarajan v. State of Karnataka  wherein this Court observed: [Umadevi (3) case, SCC p.  24, para 16]  "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.""

       {See also State of Gujarat & Anr. vs. Karshanbhai K. Rabari &  Ors. [(2006) 6 SCC 21].}         Yet, recently in Principal, Mehar Chand Polytechnic & Anr. vs.  Anu Lamba & Ors. [(2006) 7 SCC 161], it was held :         "The respondents did not have legal right to be  absorbed in service.  They were appointed purely on  temporary basis.  It has not been shown by them that  prior to their appointments, the requirements of the  provisions of Articles 14 and 16 of the Constitution had  been complied with.  Admittedly, there did not exist any  sanctioned post.  The Project undertaken by the Union of  India although continued for some time was initially  intended to be a time-bound one.  It was not meant for  generating employment.  It was meant for providing  technical education to the agriculturists.  In the absence  of any legal right in the respondents, the High Court,  thus, in our considered view, could not have issued a writ  of or in the nature of mandamus."   

       This Court, in Surinder Prasad Tiwari vs. U.P. Rajya Krishi  Utpadan Mandi Parishad & Ors. [(2006) 7 SCC 684), held : "Our constitutional scheme clearly envisages  equality of opportunity in public employment.  The  Founding Fathers of the Constitution intended that no  one should be denied opportunity of being considered for  public employment on the ground of sex, caste, place of  birth, residence and religion.  This part of the  constitutional scheme clearly reflects strong desire and  constitutional philosophy to implement the principle of  equality in the true sense in the matter of public  employment. In view of the clear and unambiguous

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constitutional scheme, the courts cannot countenance  appointments to public office which have been made  against the constitutional scheme.  In the backdrop of  constitutional philosophy, it would be improper for the  courts to give directions for regularisation of services of  the person who is working either as daily-wager, ad hoc  employee, probationer, temporary or contractual  employee, not appointed following the procedure laid  down under Articles 14, 16 and 309 of the Constitution.   In our constitutional scheme, there is no room for back  door entry in the matter of public employment."

       We are, however, not oblivious that another Division Bench of this  Court in Mineral Exploration Corpn. Employees’ Union vs. Mineral  Exploration Corpn. Ltd. & Anr. [(2006) 6 SCC 310], to which our  attention has been drawn by Mr. Shrivastava, held : "We, therefore, direct the Tribunal to decide the  claim of the workmen of the Union strictly in accordance  with and in compliance with all the directions given in  the judgment by the Constitution Bench in Secy., State of  Karnataka v. Umadevi (3) and in particular, paras 53 and  12 relied on by the learned Senior Counsel appearing for  the Union.  The Tribunal is directed to dispose of the  matter afresh within 9 months from the date of receipt of  this judgment without being influenced by any of the  observations made by us in this judgment.  Both the  parties are at liberty to submit and furnish the details in  regard to the names of the workmen, nature of the work,  pay scales and the wages drawn by them from time to  time and the transfers of the workmen made from time to  time, from place to place and other necessary and  requisite details.  The above details shall be submitted  within two months from the date of the receipt of this  judgment before the Tribunal."                     The said directions were issued keeping in view the peculiar facts,  wherewith we are not concerned.  The attention of this Court furthermore  was not drawn to the judgment of this Court rendered in R.N. Nanjundappa  (supra), State of Mysore & Anr. vs. S.V. Narayanappa [AIR 1967 SC  1071] and B.N. Nagarajan (supra).         We may notice that the decision of this Court in B.N. Nagarajan  (supra) was rendered by a Three Judge Bench.  Evidently, the attention of  the Court had also not been drawn to the decision of this Court in National  Fetilizers Ltd. (supra).         There is another aspect of the matter which cannot be lost sight of.   The Corporation may be bound by the decision of the High Court, but it was  also bound by the direction of the State of Madhya Pradesh.  If it had  violated the direction of the State, in terms whereof its earlier policy  decision stood reversed, it cannot be said to have committed a contempt of  court.  The question recently came up for consideration in State of Orissa &  Anr. vs. Aswini Kumar Baliar Singh [(2006) 6 SCC 759], wherein a  Division Bench of this Court held that the Court is primarily concerned with  the question of contumacious conduct of the party who is alleged to have  committed default in complying with the directions in the judgment and  order.  It was held :         "In the instant case, the action taken by the  respondent in purported violation of the Court’s  order arose owing to a subsequent cause of action,  namely, orders passed by the State of Orissa and  unless the said orders were set aside, the Inspector  of Schools can be said to have flouted the order of  the High Court......."   

       We are in this case not called upon to consider the implication of the  Awards, which might have been passed in favour of the workmen.  The

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Division Bench, by reason of the impugned judgment had issued directions  in exercise of its jurisdiction under Section 12 of the Contempt of Courts  Act, 1971, without arriving at a finding as to how the Corporation has  violated its order.  It issued directions which are contrary to or inconsistent  with the directions issued by a learned Single Judge by an order dated  27.2.2003.           The judgment of the Division Bench is, thus, subject to correction by  this Court both under Article 136 of the Constitution of India as also under  Section 19 of the Contempt of Court Act.           Recently in R. v. Serumaga [2005 (2) All ELR 160], it was opined : "Section 13 of the 1960 Act provides as follows :         ’(1) Subject to the provisions of this section, an  appeal shall lie under this section from any order or  decision of a court in the exercise of jurisdiction to  punish for contempt of court (including criminal  contempt); and in relation to any such order or decision  the provisions of this section shall have effect in  substitution for any other enactment relating to appeals in  civil or criminal proceedings.         (2) An appeal under this section shall lie in any  case at the instance of the defendant and, in the case of an  application for committal or attachment, at the instance  of the applicant; and the appeal shall lie ... (bb) from an  order or decision of the Crown Court to the Court of  Appeal ...         (3) The court to which an appeal is brought under  this section may reverse or vary the order or decision of  the court below; and make such other order as may be  just ...’         We have considered two interpretations of s 13(1).   The narrow interpretation is to the effect that it is not  triggered until the contemnor has been convicted of, and  sentenced for, the contempt.  The broad interpretation is  that the language ’any order or decision ... in the exercise  of jurisdiction to punish for contempt’ is sufficiently  wide to relate also to orders or decisions made in the  course of proceedings which may result in a conviction  of and sentence for contempt.  But we have come to the  conclusion that the broad interpretation is the correct one.   The statutory language permits it.  It provides a remedy  in a case of unjustifiably prolonged custody, and it does  so without impinging on cases where the allegation is of  an offence other than contempt of court.  Moreover, there  are exceptional features which surround summary  proceedings for contempt which, as the authorities make  clear, demand an enlarged process of judicial scrutiny...."  

       {See also Modi Telefibres Ltd. & Ors. vs. Sujit Kumar Choudhary  & Ors. [2005 (7) SCC 40] and see also Vivek Sarin vs. Multi Metal  Udyog [(2005) 11 SCC 495].}         We, therefore, for the reasons aforementioned, are unable to uphold  the impugned order which is accordingly set aside.         The appeal is allowed with the aforementioned observations and  directions.  No costs.