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CASE NO.: Appeal (civil)  3018 of 2006

PETITIONER: State of Gujarat & Anr.

RESPONDENT: Karshanbhai K. Rabari & Ors.

DATE OF JUDGMENT: 18/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nof . 6979 of 2005)

ARIJIT PASAYAT, J.  

Leave granted.          The State of Gujarat and Superintending Engineer,  Capital Project Circle, Gandhinagar, Gujarat, question legality  of the judgment rendered by a Division Bench of the Gujarat  High Court .  By the impugned judgment the Division Bench  set aside the judgment of a learned Single judge who had  dismissed the writ petition filed by the respondents.  Learned  Single Judge held that the respondents were daily workers  who were temporarily appointed for transitory work on a work  charge basis and could not be treated at par with regular  employees who were appointed on the basis of Recruitment  Rules.                  The Division Bench by the impugned judgment held that  the respondents were entitled to all the benefits available to  permanent employees of the State Government under the  Government Resolution dated 17.10.1988 and no order  diluting/reversing the same can/could be  passed by any  other Authority/Functionaries of the State Government.   Accordingly the Letters Patent Appeal filed by the respondents  was allowed and the Communication/Order dated 12.8.1991  by the State Government was quashed. It was held that  benefits apart from those clearly mentioned in the resolution  dated 17.10.1988 like leave travel concession, leave increment,  various advances, allotment of Government quarter were   admissible to daily wagers covered under the said resolution.  Learned counsel for the appellant submitted that the  view expressed by the Division Bench is clearly contrary to  what has been stated by a Constitution Bench of this Court in  Secretary, State of Karnataka  and Others  v. Umadevi and  Ors. [2006 (4) SCC 1].  It was further submitted that the  Division Bench erroneously held that other benefits apart from  those expressly mentioned in the Resolution dated 17.10.1988  were admissible as the expression "etc"(etcetera) has been  mentioned.  It was submitted that the view expressed in this  Court is clearly contrary to what has been stated in  Union of  India and Another  v. Manu Dev Arya [2004(5) SCC 232].

Learned counsel for the respondents on the other hand  submitted that the High Court has adopted the view necessary  to be taken in the case of poor employees who have been  rendering services for a very long period.  

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We find that the case of the parties has to be considered  in the light of  what has been stated by this Court in Uma  Devi’s case (supra). It has been inter alia observed by the  Constitution Bench as follows : "Even at the threshold, it is necessary to keep  in mind the distinction between regularization  and conferment of permanence in service  jurisprudence. In State of Mysore v. S.V.  Narayanappa AIR 1967 SC 1071 this Court  stated that it was a mis-conception to consider  that regularization meant permanence. In R.N.  Nanjundappa v. T. Thimmiah and Anr. [1972  (1) SCC 409], this Court dealt with an  argument that regularization would mean  conferring the quality of permanence on the  appointment. This Court stated:- "Counsel on behalf of the  respondent contended that  regularization would mean  conferring the quality of  permanence on the appointment,  whereas counsel on behalf of the  State contended that regularization  did not mean permanence but that  it was a case of regularization 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 regularized.  Ratification or regularization 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.  Regularization 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."

In B.N. Nagarajan and Ors. v. State of  Karnataka and Ors. [(1979) 4 SCC 507]  this court clearly held that the words  "regular" or "regularization" 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 emphasized  that when rules framed under Article 309  of the Constitution of India are in force,  no regularization 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

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recognized 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 regularized and that it  alone can be regularized and granting  permanence of employment is a totally  different concept and cannot be equated  with regularization. One aspect arises. Obviously, the State is  also controlled by economic  considerations and financial implications  of any public employment. The viability of  the department or the instrumentality or  of the project is also of equal concern for  the State. The State works out the  scheme taking into consideration the  financial implications and the economic  aspects. Can the court impose on the  State a financial burden of this nature by  insisting on regularization or permanence  in employment, when those employed  temporarily are not needed permanently  or regularly? As an example, we can  envisage a direction to give permanent  employment to all those who are being  temporarily or casually employed in a  public sector undertaking. The burden  may become so heavy by such a direction  that the undertaking itself may collapse  under its own weight. It is not as if this  had not happened. So, the court ought  not to impose a financial burden on the  State by such directions, as such  directions may turn counter- productive. In Director, Institute of Management  Development, U.P. v. Pushpa Srivastava (Smt.)  [1992 (4) SCC 33], this Court held that since  the appointment was on purely contractual  and ad hoc basis on consolidated pay for a  fixed period and terminable without notice,  when the appointment came to an end by  efflux of time, the appointee had no right to  continue in the post and to claim  regularization in service in the absence of any  rule providing for regularization after the  period of service. A limited relief of directing  that the appointee be permitted on  sympathetic consideration to be continued in  service till the end of the concerned calendar  year was issued. This Court noticed that when  the appointment was purely on ad hoc and  contractual basis for a limited period, on the  expiry of the period, the right to remain in the  post came to an end. This Court stated that  the view they were taking was the only view  possible and set aside the judgment of the  High Court which had given relief to the  appointee.

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This Court also quoted with approval the  observations of this Court in Teri Oat Estates  (P) Ltd. v. U.T., Chandigarh [2004 (2) SCC 130]  to the effect: "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 extraordinary  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." This decision kept in mind the distinction  between ’regularization’ and ’permanency’ and  laid down that regularization is not and cannot  be the mode of recruitment by any State. It  also held that regularization cannot give  permanence to an employee whose services are  ad hoc in nature. It is not necessary to multiply authorities on  this aspect. It is only necessary to refer to one  or two of the recent decisions in this context.  In State of U.P. v. Niraj Awasthi and Ors. 2006  (1) SCC 667 this Court after referring to a  number of prior decisions held that there was  no power in the State under Art. 162 of the  Constitution of India to make appointments  and even if there was any such power, no  appointment could be made in contravention  of statutory rules. This Court also held that  past alleged regularisation or appointment  does not connote entitlement to further  regularization or appointment. It was further  held that the High Court has no jurisdiction to  frame a scheme by itself or direct the framing  of a scheme for regularization. This view was  reiterated in State of Karnataka v. KGSD  Canteen Employees Welfare Association  [(2006) 1 SCC 567]."

       So far as the entitlement of the respondents on the basis  of the Resolution dated 17.10.1988 where the word ’etc’ has   been used is concerned, has to be considered in the light of  what has been stated by this Court in  Manu Dev Arya’s case  (supra).         We, therefore, remit the matter to the High Court for  fresh consideration, keeping in view what has been indicated  by this Court in Uma Devi’s Case (supra) and Manu Dev Arya’s  case (supra).           Accordingly, the appeal is allowed, but without any order  as to costs.