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CASE NO.: Appeal (civil)  3981 of 2006

PETITIONER: Surendra Prasad Tewari

RESPONDENT: Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad & Others

DATE OF JUDGMENT: 08/09/2006

BENCH: G.P. MATHUR & DALVEER BHANDARI

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 23114 of 2003]

Dalveer Bhandari, J.

       Leave granted.

       Regularization in public employment is the main  issue which falls for adjudication in this appeal.

       This appeal is directed against the judgment dated  21.10.2003 passed in Civil Writ Petition No. 6475 of 1992  by the High Court of Judicature at Allahabad, Lucknow  Bench, Lucknow, UP.

       Brief facts which are necessary to dispose of the  appeal are recapitulated as under:

The appellant was appointed by Rajya Krishi  Utpadan Mandi Parishad, U.P., vide order dated  17.7.1989, for a period of three months on contractual  basis on a remuneration of Rs.1,500/- for conducting a  survey in the deficiency of procurement of the  agricultural produce of Meerut Division, namely, Potato  etc.   Since the nature of employment has been disputed  by the appellant, therefore, we deem it appropriate to set  out the relevant portion of the order dated 17.7.1989 as  under: "Shri Surinder Prasad Tiwari, 17, Rana Partap  Marg, Lucknow, is hereby appointed for a period of  three months only, on contractual basis on a  remuneration of Rs.1,500/- (Rupees one thousand  five hundred only) per month for conducting a  survey in the deficiency of procurement of the  agricultural produce of Meerut Division, namely  Potato etc.                  The services of Shri Tiwari shall stand  terminated automatically after the expiry of the  above period of three months and his services can  also be terminated earlier also without assigning  any reason, if there is no need or under special  circumstances.  However, no compensation will be  given to Shri Tiwari in this regard.

Sd/- Vijendra Pal Director, Mandi."

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       The appellant, on 6.12.1989, was again appointed  for a period of three months on contractual basis on a  remuneration of Rs.1500/- for surveying the land of the  village community and to determine whether Gramin  Bazar/Haat is held on the lands of Gram Samaj or Zila  Parishad and how many wholesalers/commission agents  were working.  The relevant part of order dated 6.12.1989  reads as under: "In continuation of the efforts of the Mandi  Parishad for terminating/abolishing prevalent  system of Tehbazari in the Faizabad and  Gorakhpur Divisions, Shri Surinder Prasad Tiwari  through Shri V.P. Mishra, 17, Rana Partap Marg,  Lucknow, is hereby appointed for a period of three  months only, on contractual basis on a  remuneration of Rs.1,500/- (Rupees one thousand  five hundred only) per month for conducting a  survey of the following works-

(1)     Details of the land of the village community;

(2)     Whether Gramin Bazar/Haat is held on the  lands of Gram Samaj or Zila Parishad;

(3)     How many wholesalers/commission agents  are working.

The services of Shri Tiwari shall stand terminated  automatically after the expiry of the above period  and his services can be terminated earlier also  without assigning any reason, if there is no need  or under special circumstances.  However, no  compensation will be given to Shri Tiwari in this  regard.

Sd/- Arvind Mohan Director, Mandi"

       On 23.3.1990, the appellant was again appointed  on contractual basis for a period of five months.  The  relevant part of the order dated 23.3.1990 reads as  follows: "In continuation of the efforts of the Mandi  Parishad terminating/abolishing prevalent system  of Tehbazari in the Faizabad and Gorakhpur  Divisions, Shri Surinder Prasad Tiwari, 17, Rana  Partap Marg, Lucknow, is hereby appointed for a  period of five months, on contractual basis, on a  remuneration of Rs.1,500/- (Rupees one thousand  five hundred only) per month for conducting a  survey of the following works-

(1)     Details of the land of the village community;

(2)     Whether Gramin Bazar/Haat is held on the  lands of Gram Samaj or Zila Parishad;

(3)     How many wholesalers/commission agents  are working.

The services of Shri Tiwari shall stand terminated  automatically after the expiry of the above period  and his services can be terminated earlier also

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without assigning any reason, if there is no need  or under special circumstances and no  compensation will be given to Shri Tiwari in this  regard.

Sd/- Arvind Mohan Director, Mandi"

       The appellant, on 23.8.1990, was again appointed  for a period of four months on contractual basis.  The  relevant part of the order dated 23.8.1990 reads as  under: "Shri Surinder Prasad Tiwari is hereby appointed  for a period of four months only, on contractual  basis on a remuneration of Rs.1,800/- (Rupees  one thousand eight hundred only) per month for  executing the development works of Kanpur Area  viz., Wood Mandi and Leather Mandi and for  development of Vegetable Mandi and for survey  and other works, from the date of his joining the  Mandi Samiti, Kanpur.  All the terms and  conditions of the contract shall remain as before.  Shri Tiwari will work under the control of  Secretary, Mandi Samiti, Kanpur and payments  also will be made to him by the Mandi Samiti,  Kanpur.

Sd/- Arvind Mohan Director, Mandi"

       The appellant was again appointed for a period of  four months by an order dated 14.2.1991.  Relevant part  of the said order reads as under: "Shri Surinder Prasad Tiwari through Shri V.P.  Mishra, 17, Rana Pratap Marg, Lucknow is hereby  appointed for a period of four months only on a  monthly remuneration of Rs.1,800/- (Rupees one  thousand eight hundred only) for conducting  survey of the construction/development works of  the New Mandis of Wood and Leather in Kanpur.   He is being appointed in the Mandi Samiti,  Kanpur as per the terms and conditions of the  contract.  Thereafter, this contract work shall  automatically stand terminated.

Payments of the aforesaid remuneration will be  made to Shri Surinder Tiwari by the Mandi Samiti,  Kanpur.  

Sd/- Arvind Mohan Director, Mandi"

       On 1.7.1991 the appellant was again appointed for  a period of four months on contractual basis.  The  relevant part of the order dated 1.7.1991 reads as under: "By Board’s Order No.A-K/91-328 dated  14.2.1991, Shri Surinder Prasad Tiwari was  appointed in the Mandi Samiti, Kanpur, for a  period of four months only, on contractual basis  on a remuneration of Rs.1,800/- (Rupees one  thousand eight hundred only) per month as per  the terms and conditions of the Contract. Now,

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after completion of the period of the contract, the  services of Shri Tiwari are hereby extended for a  further period of three months from the date of  issuance of this order, in the interests of general  public.  The contractual period shall stand  terminated automatically after expiry of three  months.  However, his services can also be  terminated any time before contractual period of  three months, in case he is not required, or under  any special circumstances, and for which Shri  Tiwari will not be entitled to any compensation.   The remuneration of Shri Tiwari will be paid by  the Mandi Samiti, Kanpur, as per the terms and  conditions of earlier contract.

He should join only after agreeing to the terms and  conditions of the previous contract.     

Sd/- Arvind Mohan Director, Mandi"

       Lastly, on 14.10.1991, the appellant was again  appointed for a period of six months on contractual  basis.  The relevant part of the order dated 14.10.1991  reads as under: "Shri Surinder Prasad Tiwari through Shri V.P.  Mishra,  17, Rana Pratap Marg, Lucknow is  hereby appointed for a period of six months only,  on contractual basis, on a monthly remuneration  of Rs.1,800/- (Rupees one thousand eight  hundred only) per month for executing the  election/re-organization works of Mandi Samitis,  under the terms and conditions of the contract.   He is being kept on contract with effect from the  date of his joining and he will remain under the  control of the Deputy Director (Marketing) Mandi  Parishad, H.O.

Sd/- Arvind Mohan Director, Mandi"

       The case of the appellant is that his services were  orally terminated on 1.9.1992, whereas, according to the  respondents, the appellant’s appointment was on  contractual basis and his services came to an end after  the period of the contract was completed.   The appellant  aggrieved by the oral termination and/or non- continuation in service preferred a writ petition before the  Allahabad High Court at Lucknow Bench, Lucknow.    

       The Division Bench of the High Court after hearing  the parties observed that, in law, there are only two kinds  of appointments.  The first is the permanent appointment  and the second is the temporary appointment.  According  to the Division Bench, temporary appointments have  further various sub-categories, such as casual appointee,  daily wager, ad-hoc appointee, contractual appointee,  probationer etc.  The Court observed that a temporary  appointee has no right to the post.   Only a permanent  appointee has such a right to the post.  The Court  observed that the appointments to the permanent posts  are made after following the procedure under Article 16  of the Constitution.  The Court observed that the

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appellant was never appointed by following the said  procedure and he was never confirmed and,  consequently, he has no right to the post as well.  The  Court further observed that merely because the appellant  had succeeded in getting an interim order of this Court, it  does not entitle him to have any right and the writ  petition filed by the appellant was dismissed by the High  Court on 21.10.2003.

       The appellant, aggrieved by the said order of the  High Court, preferred this appeal before this Court.      The  appellant has raised a number of questions of law in this  appeal.  The same are reproduced as under: a.      Whether engaging the employees on contract  basis without any security of their tenure  and continuing them for years on meager  wages for the works of perennial nature, is  not illegal, arbitrary, unconstitutional and  within the ambit of Unfair Labour Practice?

b.      Whether an employee continuing on post  from last more than 14 years is not entitled  to the regularization of his services?

c.      Whether the appointment of the petitioner  can be termed as irregular and illegal when  the Mandi Regulations 1984 itself provide  the provisions of a contract appointment?

d.      Whether it is permissible under law to  terminate the services of the petitioner while  the hundreds of juniors appointed in the  same manner are still retained in the  service?

e.      Whether the High Court has not committed  the error of law in dismissing the writ  petition of the petitioner when approximately  110 civil appeals of the employees appointed  in the same manner are still pending before  the Hon’ble Supreme Court?

f.      Whether the High Court has not erred in  dismissing the writ petition of the petitioner  ignoring the fact that the matter of  regularization of the petitioner is still under  consideration before the authorities?

g.      Whether the oral order terminating the  service of the petitioner can be justified  when the same was passed without  assigning any reason and without giving  opportunity of hearing?

h.      Whether the High Court was justified in  dismissing the petition filed by the  petitioner?

i.      Whether in any event the judgment and  order passed by the High Court is liable to  be set aside?

       The appellant submitted that the impugned  judgment is manifestly illegal, incorrect and against the

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record of the case.  The appellant also submitted that the  respondents are guilty of unfair labour practice by  engaging the employees on contract basis without any  security of their tenure and continuing them for years on  meager wages for the works of perennial nature.  It was  further submitted that the appellant has been working  continuously for 14 years and was entitled to be  regularized in service. The appellant also submitted that  number of persons similarly placed are still continuing in  their services, whereas the services of the appellant have  been dispensed with.    

       This Court issued a show-cause notice and, in  pursuance to the said show-cause notice, a  comprehensive counter affidavit was filed by Lokesh  Kumar, Deputy Director (Administration), Head Quarters,  Mandi Parishad, Lucknow on behalf of the respondents.   At the outset, it was incorporated in the counter affidavit  that the appellant had suppressed the material facts  from this Court.  The appellant had not disclosed to the  Court that his tenure of 14 years was due to the interim  order dated 15.9.1992 granted in favour of the appellant  by the High Court and it was because of the interim order  that the respondents had to continue the appellant in the  department.  It was further stated in the counter affidavit  that the appellant was merely a temporary employee who  was given employment as per the needs and exigencies of  different projects undertaken by the Mandi Parishad.  It  was further stated that the appointment of the appellant  was not against any substantive post, as alleged by the  appellant in the writ petition.  It was also incorporated in  the counter affidavit that the appellant was given fixed  term appointments on contractual basis and his services  were automatically terminated after the expiry of the  contract period.  The copies of the orders giving  contractual appointments to the appellant have been  produced along with the counter affidavit, which have  already been reproduced in the preceding paragraphs of  this judgment.  According to the respondents, the  appellant’s case for regularization has no merit and the  High Court was correct and justified in dismissing the  writ petition filed by the appellant.  

       In the rejoinder affidavit, the appellant has  reiterated the averments incorporated in the petition.   

       On careful analysis of the appointment orders, it is  revealed that the appellant’s contractual appointment  was for a fixed term for carrying out the work of a  specified project.  The appellant was engaged from time  to time to work on different projects and the last contract  was dated 14.10.1991 and thereafter, the appellant was  not appointed. The appellant’s appointment was purely a  fixed term appointment.  By no stretch of imagination it  could be said that the appointment of the appellant was  made while following the procedure as laid down under  Articles 14 and 16 of the Constitution.  A three-Judge  Bench of this Court in Delhi Development Horticulture  Employees’ Union v. Delhi Administration, Delhi &  Others reported in (1992) 4 SCC 99, observed as under: "The above figures show that if the resources used  for the Jawahar Rozgar Yojna were in their  entirety to be used for providing full employment  throughout the year, they would have given  employment only to a small percentage of the

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population in need of income, the remaining vast  majority being left with no income whatsoever. No  fault could, therefore, be found with the limited  object of the scheme given the limited resources at  the disposal of the State. Those employed under  the scheme, therefore, could not ask for more than  what the scheme intended to give them. To get an  employment under such scheme and to claim on  the basis of the said employment, a right to  regularization, is to frustrate the scheme itself. No  court can be a party to such exercise. It is wrong  to approach the problems of those employed under  such schemes with a view to providing them with  full employment and guaranteeing equal pay for  equal work. These concepts, in the context of such  schemes are both unwarranted and misplaced.  They will do more harm than good by depriving  the many of the little income that they may get to  keep them from starvation. They would benefit a  few at the cost of the many starving poor for whom  the schemes are meant. That would also force the  State to wind up the existing schemes and forbid  them from introducing the new ones, for want of  resources. This is not to say that the problems of  the unemployed deserve no consideration or  sympathy. This is only to emphasise that even  among the unemployed a distinction exists  between those who live below and above the  poverty line, those in need of partial and those in  need of full employment, the educated and  uneducated, the rural and urban unemployed  etc."

In State of Himachal Pradesh, through the  Secretary, Agriculture to the Govt. of Himachal  Pradesh v. Nodha Ram & Others reported in 1998 SCC  (L&S) 478 : AIR 1997 SC 1445, in regard to the status of  the temporary project employees employed in the  Government project, the Court held as under: "It is seen that when the project is completed and  closed due to non-availability of funds, the  employees have to go along with its closure. The  High Court was not right in giving the direction to  regularize them or to continue them in other  places. No vested right is created in temporary  employment. Directions cannot be given to  regularize their services in the absence of any  existing vacancies nor can directions be given to  the State to create posts in a non-existent  establishment. The Court would adopt pragmatic  approach in giving directions. The directions  would amount to creating of posts and continuing  them despite non-availability of the work. We are  of the considered view that the directions issued  by the High Court are absolutely illegal warranting  our interference. The order of the High Court is,  therefore, set side."

The ratio of this case squarely applies to the facts of this  appeal. In Karnataka State Private College Stop-Gap  Lecturers Association etc. v. State of Karnataka &  Others reported in (1992) 2 SCC 29, the Court held as  under:   ".. A temporary or ad hoc employee may not have

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a claim to become permanent without facing  selection or being absorbed in accordance with  rules but no discrimination can be made for same  job on basis of method of recruitment. Such  injustice is abhorrent to the constitutional  scheme."

The controversy involved in this case is no longer  res integra.

       A Constitution Bench of this Court in the case of  Secretary, State of Karnataka & Others v. Umadevi  (3) & Others reported in (2006) 4 SCC 1 has  comprehensively dealt with the issues involved in this  case.   The Constitution Bench has observed as follows: "2.     Public employment in a sovereign socialist  secular democratic republic, has to be as set down  by the Constitution and the laws made  thereunder. Our constitutional scheme envisages  employment by the Government and its  instrumentalities on the basis of a procedure  established in that behalf. Equality of opportunity  is the hallmark, and the Constitution has provided  also for affirmative action to ensure that unequals  are not treated as equals. Thus, any public  employment has to be in terms of the  constitutional scheme.

4.      But, sometimes this process is not adhered  to and the Constitutional scheme of public  employment is bypassed. The Union, the States,  their departments and instrumentalities have  resorted to irregular appointments, especially in  the lower rungs of the service, without reference to  the duty to ensure a proper appointment  procedure through the Public Service  Commissions or otherwise as per the rules  adopted and to permit these irregular appointees  or those appointed on contract or on daily wages,  to continue year after year, thus, keeping out  those who are qualified to apply for the post  concerned and depriving them of an opportunity  to compete for the post. It has also led to persons  who get employed, without the following of a  regular procedure or even through the backdoor or  on daily wages, approaching the courts, seeking  directions to make them permanent in their posts  and to prevent regular recruitment to the posts  concerned.  

6.      The power of a State as an employer is more  limited than that of a private employer inasmuch  as it is subjected to constitutional limitations and  cannot be exercised arbitrarily (See: Basu’s  Shorter Constitution of India). Article 309 of the  Constitution gives the Government the power to  frame rules for the purpose of laying down the  conditions of service and recruitment of persons to  be appointed to public services and posts in  connection with the affairs of the Union or any of  the States. That article contemplates the drawing  up of a procedure and rules to regulate the  recruitment and regulate the service conditions of  appointees appointed to public posts. It is well  acknowledged that because of this, the entire

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process of recruitment for services is controlled by  detailed procedures which specify the necessary  qualifications, the mode of appointment, etc. If  rules have been made under Article 309 of the  Constitution, then the Government can make  appointments only in accordance with the rules.  The State is meant to be a model employer. The  Employment Exchanges (Compulsory Notification  of Vacancies) Act, 1959 was enacted to ensure  equal opportunity for employment seekers.  Though this Act may not oblige an employer to  employ only those persons who have been  sponsored by employment exchanges, it places an  obligation on the employer to notify the vacancies  that may arise in the various departments and for  filling up of those vacancies, based on a  procedure. Normally, statutory rules are framed  under the authority of law governing employment.  It is recognized that no government order,  notification or circular can be substituted for the  statutory rules framed under the authority of law.  This is because, following any other course could  be disastrous inasmuch as it will deprive the  security of tenure and the right of equality  conferred on civil servants under the  constitutional scheme. It may even amount to  negating the accepted service jurisprudence.  Therefore, when statutory rules are framed under  Article 309 of the Constitution which are  exhaustive, the only fair means to adopt is to  make appointments based on the rules so  framed."

       In the above case, this Court, in para 11, further  observed as under: "11.    In addition to the equality clause  represented by Article 14 of the Constitution,  Article 16 has specifically provided for equality of  opportunity in matters of public employment.  Buttressing these fundamental rights, Article 309  provides that subject to the provisions of the  Constitution, Acts of the legislature may regulate  the recruitment and conditions of service of  persons appointed to public services and posts in  connection with the affairs of the Union or of a  State. In view of the interpretation placed on  Article 12 of the Constitution by this Court,  obviously, these principles also govern the  instrumentalities that come within the purview of  Article 12 of the Constitution. With a view to make  the procedure for selection fair, the Constitution  by Article 315 has also created a Public Service  Commission for the Union and Public Service  Commissions for the States.  Article 320 deals  with the functions of the Public Service  Commissions and mandates consultation with the  Commission on all matters relating to methods of  recruitment to civil services and for civil posts and  other related matters.  As a part of the affirmative  action recognized by Article 16 of the Constitution,  Article 335 provides for special consideration in  the matter of claims of the members of the  Scheduled Castes and Scheduled Tribes for  employment. The States have made Acts, Rules or

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Regulations for implementing the above  constitutional guarantees and any recruitment to  the service in the State or in the Union is governed  by such Acts, rules and regulations. The  Constitution does not envisage any employment  outside this constitutional scheme and without  following the requirements set down therein."

       This Court, in the aforesaid case, also discussed the  case of Indra Sawhney & Others v. Union of India &  Others reported in 1992 Supp (3) SCC 217.  It is  observed in this case as under: "644. The significance attached by the Founding  Fathers to the right to equality is evident not only  from the fact that they employed both the  expressions ’equality before the law’ and ’equal  protection of the laws’ in Article 14 but proceeded  further to state the same rule in positive and  affirmative terms in Articles 15 to 18.  645. Inasmuch as public employment always gave  a certain status and power\027it has always been  the repository of State power\027besides the means  of livelihood, special care was taken to declare  equality of opportunity in the matter of public  employment by Article 16. Clause (1), expressly  declares that in the matter of public employment  or appointment to any office under the State,  citizens of this country shall have equal  opportunity while clause (2) declares that no  citizen shall be discriminated in the said matter on  the grounds only of religion, race, caste, sex,  descent, place of birth, residence or any of them.  At the same time, care was taken to declare in  clause (4) that nothing in the said Article shall  prevent the State from making any provision for  reservation of appointments or posts in favour of  any backward class of citizens which in the  opinion of the State, is not adequately represented  in the services under the State."  

These binding decisions are clear imperatives that  adherence to Articles 14 and 16 of the Constitution is a  must in the process of public employment.         The Constitution Bench in Umadevi’s case (supra)  has observed that adherence to the rule of equality in  public employment is a basic feature of our Constitution.   It was observed as under: "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  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

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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, 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  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  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." In the instant case, the appellant has continued in  service for 14 years because of the interim order granted  by the High Court on 15.9.1992.  In the aforesaid case,  the Constitution Bench has observed that merely  because an employee had continued under cover of an  order of the court, which the court described as "litigious  employment", he would not be entitled to any right to be  absorbed or made permanent in the service.   In the instant case, the appellant submitted that he  has been continued in service for 14 years and is entitled  for regularization.  This aspect of the matter has also  been specifically dealt with by the said Constitution  Bench in para 45 of the judgment and it was observed as  under: "45.    While directing that appointments,  temporary or casual, be regularized 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

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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\027not at  arms length\027since 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..."

       An argument was made before the Constitution  Bench that the State action in not regularizing the  employees was not fair within the framework of the rule  of law.  The Court observed that if the appointments,  which have not been made according to the  constitutional scheme, are regularized, that would  amount to perpetuate an illegality in the matter of public  employment and that would be a negation of the  constitutional scheme adopted by the people of this  country.         Admittedly, the appellant has not been appointed in  terms of the relevant rules or in adherence to Articles 14  and 16 of the Constitution.         In Umadevi’s case (supra), this Court has also  dealt with another aspect of the matter and observed as  under:  "47.    When a person enters a temporary  employment or gets engagement as a contractual  or casual worker and the engagement is not based  on a proper selection as recognized by the relevant  rules or procedure, he is aware of the  consequences of the appointment being  temporary, casual or contractual in nature. Such  a person cannot invoke the theory of legitimate  expectation for being confirmed in the post when  an appointment to the post could be made only by  following a proper procedure for selection and in  cases concerned, in consultation with the Public  Service Commission\005."

The ratio of the aforementioned judgment is that the  courts cannot encourage appointments which are made  outside the constitutional scheme and it is improper for  the courts to give any direction for regularization of the  person who has not been appointed by following the  procedure laid down under Articles 14, 16 and 309 of the  Constitution. Recently, this Court again reiterated the same  principle in the case of Haryana State Agricultural  Marketing Board v. Subhash Chand & Another  reported in (2006) 2 SCC 794.  In this case also, the  employees were appointed on contract basis.  The Court  held as under:  "It is the contention of the appellant that the  respondent was appointed during the ’wheat  season’ or ’paddy season’. It is also not in dispute  that the appellant is a statutory body constituted  under the Punjab and Haryana Agriculture  Produce Marketing Board Act. In terms of the  provisions of the said Act, indisputably,

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regulations are framed by the Board laying down  the terms and conditions of services of the  employees working in the Market Committees. A  bare perusal of the offer of appointment clearly  goes to show that the appointments were made on  contract basis. It was not a case where a workman  was continuously appointed with artificial gap of 1  day only. Indisputably, the respondent had been  re-employed after termination of his services on  contract basis after a considerable period(s)."

In a recent judgment in National Fertilizers Ltd.  & Others v. Somvir Singh reported in (2006) 5 SCC  493, this Court had an occasion to examine the matter  after pronouncement of the aforementioned judgment by  the Constitution Bench.  The Court in this case has laid  down that it is now trite law that "State" within the  meaning of Article 12 of the Constitution is bound to  comply with the constitutional requirements as  adumbrated in Articles 14 and 16 thereof.  When the  Recruitment Rules are made, the employer would be  bound to comply with the same.  Any appointment in  violation of such Rules would render them as nullities.  It  is also well settled that no recruitment should be  permitted to be made through back door. In National Fertilizers Ltd. (supra), this Court  referred to the decision in Union Public Service  Commission v. Girish Jayanti Lal Vaghela & Others  reported in (2006) 2 SCC 482, wherein the Court had  observed as under:  "The appointment to any post under the State can  only be made after a proper advertisement has  been made inviting applications from eligible  candidates and holding of selection by a body of  experts or a specially constituted committee whose  members are fair and impartial through a written  examination or interview or some other rational  criteria for judging the inter se merit of candidates  who have applied in response to the advertisement  made.  A regular appointment to a post under the  State or Union cannot be made without issuing  advertisement in the prescribed manner which  may in some cases include inviting applications  from the employment exchange where eligible  candidates get their names registered. Any regular  appointment made on a post under the State or  Union without issuing advertisement inviting  applications from eligible candidates and without  holding a proper selection where all eligible  candidates get a fair chance to compete would  violate the guarantee enshrined under Article 16  of the Constitution."

In Banarsidas & Others v. State of U.P. &  Others [AIR 1956 SC 520], a Constitution Bench of this  Court had an occasion to deal with the scope of Article 16  of the Constitution. The Court laid down that Article 16  of the Constitution is an instance of the application of the  general rule of equality laid down in Article 14 with  special reference to the opportunity for appointment and  employment under the Government.   

We are able to discern the same ratio from the

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judgment of another Constitution Bench of this Court in  General Manager, Southern Railway & Another v.  Rangachari [AIR 1962 SC 36].

Equal opportunity is the basic feature of our  Constitution.  Public employment is repository of the  State power.    Certain status and powers emanate from  public employment.     

H. M. Seervai, in his celebrated book "Constitutional  Law of India" has mentioned that in fact the principle of  recruitment by open competition was first applied in  India and then applied in England.

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 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 regularization 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.

In view of clear enunciation of law laid down in the  recent judgment of the Constitution Bench and other  judgments, we do not find any infirmity in the impugned  judgment of the High Court.  The appeal being devoid of  any merit is accordingly dismissed.  However, in the facts  and circumstances of the case, we direct the parties to  bear their own costs.