REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7347     OF 2008 (Arising out of SLP (C) No.4357 of 2006)

State of Punjab … Appellant

Versus

Bahadur Singh & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 2.8.2005

passed by the Division Bench of the High Court  of Punjab and Haryana

disposing  of  the  writ  petition  in  terms  of  its  earlier  judgment  dated

12.8.2003 in Civil Writ Petition No.1287 of 2003.   

3. The basic fact of the matter is not in dispute.  

The  First  Respondent  was  appointed  on  9.5.1982  in  the  post  of  a

Driver on a work charge basis.  He continued to be employed in the said

capacity  without  being  regularized.   Respondent  No.1  filed  C.W.A.

No.7389  of  2004  in  the  Punjab  &  Haryana  High  Court  seeking

regularization  of  his  service.   As  per  the  impugned  order,  the  said  writ

petition was disposed of in terms of judgment dated 12.8.2003 in C.W.P.

No.1287 of 2003

4. Some Work charged employees like Respondent No.1 filed C.W.A.

No.1287  of  2003  in  the  High  Court  of  Punjab  &  Haryana  seeking

regularization of their service.  By an order dated 12.8.2003 (Annexure P-

3), a Division Bench of the High Court in Writ Petition No.1287 of 2003

directed as under :

“In the case in hand, the petitioners have rendered more  than  16  years  of  regular  service  with  the SYL Canal Project.  They are drawing running pay scale.  Their service books have been maintained by  the  Department  and  their  provident  fund  is being  deducted.   They  all  fulfill  the  requisite qualifications  for  the  post  held  by  them.   Thus, present  one  is  not  even  a  case  of  relaxation  of qualification for the absorption of the petitioners. The  Government  has  issued  instructions  for absorption of the petitioners.  The Government has issued instructions  for absorption  of  the  workers who have rendered three years of regular service. In spite of all  this, the petitioners have not  been regularized  in  the  service.   The  action  of  the

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concerned  authorities  in  not  regularizing  the services of the petitioners is contrary to the letter and  spirit  of  the  instructions  issued  by  the Government,  which  also  runs  counter  to  the dictum of their Lordships of the Supreme Court in the  aforementioned  Authorities.   In  Civil  Writ Petition  No.16959  of  2000  (Girdhari  Lal  Vs. P.R.T.C. etc.), it was held by this Court that even a part time employee, working for a few hours every day,  is  entitled  to  regularization  under  the instructions issued by the State Government.

To sum up, it  is  the admitted position that the  authorities  have  adopted  a  pick  and  choose policy while regularizing the services of the work- charge employees of the SYL Canal Project.  Even as  per  the  instructions  dated  January  23,  2001 (Annexure P-11) the regularization is to be made on the basis of seniority.  However, the principle of seniority has been given goodbye.  Keeping in view the aforementioned decisions of Hon’ble the Supreme Court as well  as of this  Court,  we find lease justification in the conduct of the authorities in not regularizing the services of the petitioners despite their having rendered more than 16 years of service.

For the reasons recorded above, the petition is  allowed.   The  respondents  are  directed  to regularize the services of the  petitioners with all consequential reliefs within two months from the date of receipt of a certified copy of this order.”

5. A  Special  Leave  Petition  was  preferred  thereagainst  which  was

marked as SLP (C) No.24325 of 2003.  By an order dated 27.2.2004 notices

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were issued. It appears that similar matters came up before this Court and a

Division Bench in its order dated 26.3.2007 directed as under :

“Leave granted.

Counsel on both the sides submit that the case in hand  is  squarely  covered  by  a  decision  of  this Court  in  State  of  Punjab  & Ors.  v.  Lakhwinder Singh & Ors., (2007) 2 SCC 502.  In view thereof, the  appeals  are  allowed  and  the  judgment  and orders under challenge are set aside.  The matters are  remanded  back  to  the  High  Court  for  fresh consideration of the writ petitions.  It is made clear that this court is not expressing any opinion on the merits  of  the  claim  made  by  the  concerned employees.”

6. Indisputably, a Constitution Bench of this Court in Secretary, State of

Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4 SCC 1], inter alia, held

that  any  appointment  made  in  violation  of  the  constitutional  scheme of

equality would be wholly illegal and, thus a nullity, stating :

“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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions  for  absorption,  regularization,  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  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  Page 1945 found entitled to relief, it may be possible for it  to  mould  the  relief  in  such  a  manner  that

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ultimately  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.”

However, it was furthermore opined :

“One aspect needs to be clarified. There may be cases  where  irregular  appointments  (not  illegal appointments)  as  explained in  S.V. Narayanappa (supra),  R.N.  Nanjundappa (supra),  and  B.N. Nagarajan (supra), and referred to in paragraph 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  courts  or  of  tribunals.  The question of regularization  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 regularize 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 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

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are being now employed. The process must be set in  motion  within  six  months  from this  date.  We also  clarify  that  regularization,  if  any  already made,  but  not  subjudice,  need  not  be  reopened based  on  this  judgment,  but  there  should  be  no further  by-passing  of  the  constitutional requirement  and  regularizing  or  making permanent,  those  not  duly  appointed  as  per  the constitutional scheme.”

7. Learned counsel appearing on behalf of the respondent would submit

that in view of the aforementioned directions of this Court in Uma Devi (3)

(supra), the matter should be remitted to the High Court.  It was furthermore

contended that appointment of the respondents on a work charge basis being

permissible  in  law,  the  decision  of  the Constitution  Bench of  this  Court

would not be applicable.

8. We are aware of the fact that paragraph 53 of  Uma Devi (3) (supra)

had  been  read  differently  by different  Benches.   We have,  however,  no

doubt  in  our  mind  that  the  Constitution  Bench  deprecated  appointment

through side door/back door being contrary to the constitutional scheme of

equality.   Paragraph 53 of the said  decision by way of one time scheme

refers to those cases, inter alia, where orders of regularization had attained

finality.  The very fact that this Court therein referred to the decisions of this

Court in  State of Mysore & Anr. v.  S.V. Narayanappa [(1967) 1 SCR 128

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and  B.N. Nagarajan & Ors. v.  State of Karnataka & Ors. [(1979) 4 SCC

507] clearly goes to show that the same has to be read in the context thereof

and not de hors the same.

This  Court  in  B.N.  Nagarajan clearly  stated  that  whereas  any

irregularity  can  be  regularized  but  an  illegality  cannot  be.   It  was

furthermore stated that  regularization would not  mean permanency.  This

aspect of the matter has been highlighted in a number of decisions.

9. In State of M.P. & Ors. v.  Lalit Kumar Verma [(2007) 1 SCC 575],

this Court stated :

“12. 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 with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.”

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10. In relation  to  almost  similar  orders,  it  was  noticed  in  Post  Master

General, Kolkata & Ors. v.  Tutu Das (Dutta) [(2007) 5 SCC 317], it was

noticed :

“20. The statement of law contained in para 53 of Uma Devi (supra) cannot also be invoked in this case.  The  question  has  been  considered  by  this Court in a large number of decisions. We would, however, refer to only a few of them.

21. In  Punjab Water Supply and Sewerage Board v.  Ranjodh Singh and Ors. [(2007)  2  SCC 491} referring to paragraphs 15, 16 and 53 of Uma Devi (supra), this Court :

‘A combined reading of the aforementioned paragraphs would clearly indicate that what the  Constitution  Bench  had  in  mind  in directing  regularization  was  in  relation  to such appointments, which were irregular in nature and not illegal ones.’

Distinction  between  irregularity  and  illegality  is explicit.  It  has  been  so  pointed  out  in  National Fetilizers Ltd. and Ors. v. Somvir Singh [(2006) 5 SCC 493] in the following terms:

‘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  Page 2419  ban  on  employment,  no  recruitment was  permissible  in  law.  The  reservation policy  adopted  by  the  appellant  had  not

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been  maintained.  Even  cases  of  minorities had not been given due consideration.’

The  Constitution  Bench  thought  of  directing regularization  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:  

‘16.  In  B.N.  Nagarajan  v.  State  of Karnataka 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.’

Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.

{See  also  State  of  Madhya Pradesh  and Ors.  v. Yogesh Chandra Dubey and Ors. [(2006) 8 SCC 67]  and  State  of  M.P.  and  Ors.  v.  Lalit  Kumar Verma[(2007) 1 SCC 575]}

22. The same principle has been reiterated recently in Punjab State Warehousing Corp., Chandigarh v. Manmohan  Singh  and  Anr. [2007  (3)  SCALE 401].”

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11. In this view of the matter, we are of the opinion that the impugned

judgment of the High Court cannot be sustained.  It is set aside accordingly

and the matter is remitted to the High Court for consideration of the matter

afresh in the light of the observations made hereinbefore keeping in view

the statement made by Mr. Jain that  the appointment in  the work charge

establishment was permissible in law and the recruitments had been made in

accordance with law.   

12. The appeal is allowed with the aforementioned direction.  In the facts

and circumstance of the case, there shall be no order as to costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; December 17, 2008

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