Central Administrative Tribunal - Delhi
Smt. Shakuntla vs The Govt. Of Nct on 17 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4020/2012 Friday, this the 17th day of May 2013 Honble Shri A.K. Bhardwaj, Member (J) Smt. Shakuntla w/o Shri Babu Ram r/o 15/6 MCD Colony Model Town IIIrd, Delhi ..Applicant (By Advocate: Shri Manish Garg) Versus 1. The Govt. of NCT Through the Chief Secretary Secretariat, IP Extension, New Delhi 2. The Secretary SC/ST/OBC/Minority/Handicapped Welfare Department, Govt. of NCT Of Delhi B Block, Vikas Bhawan, New Delhi-2 3. The Director SC/ST/OBC/Minority/Handicapped Welfare Department, Govt. of NCT Of Delhi 61/32, Ramjas Road, New Delhi ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R (ORAL)
It is the case of the applicant in the present O.A. that she was appointed as Sweeper on daily wage basis in the Directorate of Welfare of SC/ST/OBC/Minority/Handicapped, Welfare Department, Govt. of NCT of Delhi after passing through the process prescribed for regular recruitment, yet she was treated as part time Sweeper on her appointment w.e.f. 17.2.1997. She filed O.A.No.3191/2010 before this Tribunal, which was disposed of in terms of order dated 20.5.2011. Relevant excerpt of the order reads as under:-
6. After considering the facts and circumstances of the present case in totality, the Tribunal is of the considered opinion that respondents should be directed to consider the case of the applicant for regularization against the next available Group D post of Helper, etc. or any other appropriate post, as and when it falls vacant, as per rules, within a period of six months from the date of receipt of a copy of this order. This will, however, not preclude the respondents from getting a clear vacancy in Group D post for the applicant created or sanctioned for considering the case of the applicant for regularization in question, if so advised.
2. Having considered the claim of the applicant as directed by this Tribunal, the respondents passed order dated 03.08.2012, taking the view that there is no Group D post in the department and applicant is not eligible for appointment to Group C post.
3. Shri Manish Garg, learned counsel appearing for the applicant contended that the respondents cannot be allowed to take the benefit of their own wrong, as it was for them to regularize the services of the applicant at the point of time when the post of Sweeper had not been re-designated as Group C. Relying on the judgments of the Honble Supreme Court in Madan Mohan Pathak & another v. Union of India & others, AIR 1978 SC 803, Life Insurance Corporation of India v. D.J. Bahadur & others AIR 1980 SC 2181 and A.V. Nachane & another v. Union of India & another, AIR 1982 SC 1126, he has submitted that once a judgment has been delivered it cannot be circumscribed even by the subsequent legislation and the entitlement of the applicant for regularization has to be determined with reference to the law/regulation prevalent at that time when she acquired such right. The ground stated by the applicant in paragraph 5 (D) of the O.A. does not arise in the present O.A. at all and appears to be wholly irrelevant to the issue. For easy reference, the same is extracted hereinbelow:-
For that the respondents have merely adopted a procedure which amounts to empty formalities because there is no purpose behind to have this kind of procedure before passing the dismissal order. Straightaway issuing show cause notice and coming to conclusion that the misconduct is proved without holding departmental inquiry which amounts to denial of reasonable opportunity of hearing to the petitioner which violates basic principles of natural justice and form of inquiry as disclosed by Apex Court in aforesaid two decisions, that detailed inquiry is necessary in such a serious misconduct alleged against the petitioner and the procedure which was adopted by respondents is contrary to the principles of natural justice and also contrary to the provisions of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1997 as well as decision of Division Bench of this Honble Court.
3. The respondents have not initiated any disciplinary action initiated against the applicant. It is not understood that how the applicant has referred to issuance of show cause notice and misconduct in aforementioned ground raised in the O.A. The sole reason stated in the impugned order for not regularizing the services of the applicant is that at present there is no Group D post in respondents-department and the applicant is not eligible for regularization as Group C employee, thus the question of regularization of the services of the applicant does not arise.
4. In the counter reply filed on behalf of the respondents, it is stated that the relief prayed in the O.A. cannot be granted in view of the judgment delivered by the Constitution Bench of Honble Supreme Court in Secretary, State of Karnataka & others v. Umadevi (3) & others, (2006) 4 SCC 1. According to them, as per the recommendations of the 6th Central Pay Commission no future recruitment shall be made to Group D posts and the minimum qualification required for recruitment to lowest Group C post in pay band -1 with grade pay of Rs.1800/- is matric and/or ITI. As per the record available with the respondents, the applicant is illiterate and is not eligible for recruitment to any Group C post in pay band -1 with grade pay of Rs.1800/-. For easy reference, paragraph 4.8 of the counter reply is extracted hereinbelow:-
4.8 In reply to para 4.8 it is submitted that the Competent Authority after going through the rule position facts and circumstances of the case of applicant in totality passed the order dated 2.8.2011 in compliance of the orders of the Honble Tribunal dated 20.5.2011, whereby the request of applicant for her appointment on regular basis or daily wages basis in the department was not acceded to. It is pertinent to mention, that as per recommendations of 6th Pay Commission, all the present employees belonging to Group D, who possesses the prescribed qualification for entry level in Group C, placed in Group C running pay band straight away w.e.f. 1.1.2006 and the recommendations do not allow for future recruitment in Group D posts. In compliance of the orders of the Honble Tribunal, in M.A. No.869/2012 dated 13.7.2012, wherein Honble Tribunal has directed the respondents may pass appropriate order dealing with said issue within two weeks. The Competent Authority has reviewed with reference to the recommendation of 6th Pay Commission and as per the recommendation of 6th Pay Commission, no future recruitment shall be made to Group-D Posts and the minimum qualification required for recruitment to lowest Group-C post in Pay Band-1 with grade pay of Rs.1800/- is matric and/or ITI. As per the available record Smt. Shakuntala Devi is illiterate & hence not eligible for recruitment to any Group-C post in pay Band-1 with grade pay of Rs.1800/- which is the lowest Group-C post as she does not possess the minimum qualification. The request of applicant for her appointment on regular basis or daily wages basis in the department was not acceded to.
5. I have heard the learned counsels for the parties and perused the record.
6. In Director, Institute of Management Development, U.P. v. Pushpa Srivastava, (1992) 4 SCC 33, the Honble Supreme Court viewed that the appointment purely on contractual and ad hoc basis on consolidated pay for a fixed period is 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 regularisation after the period of service. In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra, (2005) 5 SCC 122, it has been held by the Honble Supreme Court that the ad hoc appointees/ temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. In State of H.P.v. Suresh Kumar Verma, (1996) 7 SCC 562, it could be held that a person appointed on daily-wage basis was not an appointee to a post according to rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. In Umarani v. Registrar, Coop. Societies, (2004) 7 SCC 112, it could be held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularisation. In State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, it is held that the past alleged regularisation or appointment does not connote entitlement to further regularisation or appointment.
7. The aforementioned judgments have been noticed and discussed by the Honble Supreme Court in Umadevis case (supra), relevant excerpt of which reads as under:-
28. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava (Smt.) (1992 (3) SCR 712), 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.
29. In MadhyamikShikshaParishad, U.P. Vs. Anil Kumar Mishra and Others [AIR 1994 SC 1638], a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.
30. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said:
"It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, "the judicial process would become another mode of recruitment dehors the rules.
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34. In A. Umarani Vs. Registrar, Cooperative Societies and Others (2004 (7) SCC 112), a three judge bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.
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37. 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. vs. Niraj Awasthi and others (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 regularization 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 vs. KGSD Canteen Employees Welfare Association (JT 2006 (1) SC 84).
14. The aforementioned position was reiterated in Harminder Kaur & others v. Union of India & others, 2009 (7) SCALE 204. Relevant excerpt of said judgment is extracted hereinbelow:-
14. Appointments had been made strictly in terms of contract by contract. No doubt, for the said purpose an office order had been issued. It furthermore appears that the names of the appellant have been called for from the Regional Employment Exchange. It is, however, beyond any doubt or dispute that they had been appointed only fora specified period. The power conferred on the Heads of the School to engage Lecturers, Masters/Mistresses was for a limited purpose, namely, when the incumbent has proceeded on leave or is not available for teaching beyond 45 days and when no substitute could be provided for in terms of the Rules. We may furthermore notice that the offers of appointment in no uncertain terms provided that the appointee would have no claim for regular appointment available in the Institute.
15. Rule 6 of the Rules empowers the Administrator to make relaxation of the applicability of the Rules only in the event if he is of the opinion that it was necessary or expedient so to do, wherefor not only an appropriate order was required to be issued but also reasons were to be recorded in writing therefore. Relaxation of the Rules could be made only in respect of any class or category of persons and not with regard to the mode "of recruitment. The offers of appointment issued in favour of the appellants clearly go to show that the Rules had been relaxed only for the purpose mentioned therein. We, however, have not been informed as to whether the requisite prior permission from the Department had been obtained by the Heads of the Schools upon assigning detailed reasons/justification therefor as stated in Paragraph 1 of the order dated 27.11.1997.
Be that as it may, it is now well known that long service by itself may not be a ground for directing regularization. Regularization as is well known is not a mode of appointment. When appointments in public office are required to be made, the provisions of Articles 14 and 16 of the Constitution of India are required to be scrupulously followed. When a departure is made for not scrupulously following the conditions precedent laid down in the statutory rules as also the constitutional scheme, it is imperative that the same must be done within the four corners of the delegated power by the Authority concerned. The High Court in its judgment has referred to a few decisions of this Court. We need not advert thereto as the matter has since been considered by a Constitution Bench of this Court in Uma Devi (supra). Therein, it has categorically been held:
"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 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." Paragraph 53 of the said decision on which reliance has been placed by Mr. Patwalia reads as under:
"53. 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 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 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 regularization, 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 regularizing or making permanent, those not duly appointed as per the constitutional scheme."
16. A judgment of a Constitution Bench of this Court laying down the law within the meaning of Article 141 of the Constitution of India must be read in its entirely for the purpose of finding out the ratio laid down therein. The Constitution Bench, in no uncertain terms, based its decision on the touchstone of the 'equality clause' contained in Articles 14 and 16 of the Constitution of India. Emphasis has been laid at more than one place for making appointments only upon giving an opportunity to all concerned. Appointment through side-door has been held to be constitutionally impermissible.
17. We are not oblivious of the fact that in some decisions rendered by different benches of this Court taking a sympathetic view in favour of the employees who had been serving the State for a long time, the rigours test laid down therein were sought to be dilated. However, some other benches of this Court had interpreted Paragraph 53 of the Uma Devi (supra) in the light of the decisions mentioned therein.
In Mineral Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd [(2006) 6 SCC 310J wherein this Court, while following limadevi (3) (supra), invoked para 53 of the said decision to opine:
"39. 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) (supra) 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."
However, in National Fertilizers Ltd. & ors. vs. Somvir Singh (2006) 5 SCC 493, this Court held:-
"23. 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.
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25. 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.
26. It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Umadevi(3)"
In State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575], this Court held:-
"20. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation. The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post.
21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (3) (supra). It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularization. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India." In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & ors., [(2007) 2 SCC 491], this Court held:-
19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires." In Postmaster General, Kolkata & Others vs. Tutu Das (Dutta) [(2007) 5 SCC 317], this Court held as under:-
"20. The statement of law contained in para 53 of Umadevi (3) 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 & Sewerage Board v. Ranjodh Singh referring to paras 15, 16 and 53 of Umadevi (3) this Court:
"17.A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones.
18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh in the following terms:
23. 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.
24. 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 andB.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 '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 1 the appointments."
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents 1 are illegal. They do not, thus, have any legal right to continue in service.'"
(See also State of M.P. v. Yogesh Chandra Dubey and State of M.P. v. Lalit Kumar Verma.) The controversy, if any, in our opinion, has been given a quietus by a three Judge Bench of this Court in Official Liquidator 25 vs. Dayanand & ors. [(2008) 10 SCC I], holding:
"75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of 30 Karnataka v. Uma Devi (3) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two- 35 Judges Benches for declining to entertain the claim of regularization of service made by ad hoc/temporary/daily wage/ casual employees or for reversing the orders of the High Court granting relief 40 to such employees - Indian Drugs and Pharamaceuticals Ltd. v. Workmen [(2007) 1 SCC 408], Gangadhar Pillai v. Siemens Ltd. [(2007) 1 SCC 533], Kendriya Vidyalaya Sangathan v. L. V. 45 Subramanyeswara [(2007) 5 SCC 326], Hindustan Aeronautics Ltd. v. Dan Bahadur Singh [(2007) 6 SCC 207]. However, in U.P. SEB v. Pooran Chand Pandey (2007) 11 SCC 92 on which reliance has been placed by Shri Gupta, a two-Judges Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi v. Union ofIndia [(197'8) 1 SCC 248]." The Court noticed that in U.P. SEB v. Pooran Chandra Pandey (supra), this Court had held:
" 18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt, Maneka Gandhi case does not 'specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
(Emphasis supplied) However, the said observations were held to have been uncalled for.
The Bench noticed several judgments/ orders of different Benches taking a view contrary to Uma Devi (3) (supra) to opine that those cases were illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. It was opined:
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in U.P. State Electricity Board v. Poor an Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial for as nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
We feel bound by the observations made therein.
{See also State of Karnataka & Ors. vs. Sri G.V. Chandrashekar [2009 (3) SCALE 653} Recently, in State of Bihar vs. Upendra Narayan Singh [2009 (4) SCALE 282], a Bench of this Court, while holding that equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit and despite the fact there may be certain exceptions thereto, observed:
"17. Notwithstanding the basic r mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together." The court noticed the spoil system as also a large number of decisions rendered thereon including Uma Devi (supra) to hold:
"33. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits."
18. We, therefore, are of the opinion that the High Court was correct in its view. We were, however, informed that 800 posts of teachers are lying vacant. Ms. Kamini Jaiswal informed that the Administration is ready and willing to fill up the said posts on a regular basis. While doing so, we have no doubt in our mind that the cases of the appellants shall also be taken into consideration and the Administrator may consider the desirability of relaxing the age limit provided for in the Rules.
15. Nevertheless, in order dated 20.5.2011 passed by this Tribunal in O.A.No.3191/2010, the direction was issued to the respondents to consider the applicant for her regularization against the next available Group D post of Helper or any other post as and when it falls vacant as per rules, within a period of six months from the date of receipt of a copy of the order. When the consideration of the applicant for regularization was subjected to rule and eventuality of arising of vacancies, respondents were not precluded from creating the clear vacancy in Group D category. In the impugned order passed by the respondents, it is explained that as per the recommendations of 6th CPC no future recruitment shall be made to any Group D post and the minimum qualification for lowest Group C post in pay band -1 with grade pay of Rs.1800/- is matric and/or ITI. It is stated by them that all erstwhile Group D posts have been upgraded to Group C posts in pay band -1. The applicant does not satisfy and fulfill the conditions, i.e., qualification for regularization / appointment to Group C post. It was not directed by this Tribunal in terms of the aforementioned order dated 20.5.2011 that the applicant could be given regular appointment even in disregard of the rules or prescribed qualification for the post in question. Even in the Writ Petition (C) No.14160/2009 decided on by the Honble High Court of Delhi on 9.1.2013 a direction was given to the respondents to advertise the posts and hold selection through DSSSB. In the said case, the petitioners were directed to be given the benefit of regularization only. It was not in dispute before Honble High Court that the petitioners do not possess the necessary qualification. Paragraph 28 of the aforesaid judgment reads as under:-
28. Since appointment of the petitioners was irregular and not illegal, in that, their existed vacant posts of Engineers in DSIDC when petitioners were inducted as Engineers and the petitioners were qualified, we dispose of the writ petition confirming the impugned decision pronounced by the Tribunal but modify the same with reference to direction issued to advertise the posts and effect selection through DSSSB: by substituting the direction that the respondents would devise a suitable methodology to subject the writ petitioners to an induction test which would be designed with reference to application and not theory. Age relaxation benefit would be granted to the petitioners. As noted by us the fact not in dispute is that the petitioners possess the necessary educational qualifications. In the present case, admittedly, the applicant does not satisfy the requisite qualification for the post in question.
15. In view of the aforementioned factual and legal position, it is not possible to grant the reliefs prayed in the O.A., thus the prayer made therein is declined. However, the applicant has the experience of the post for 16 years and it may be permissible for the concerned authority to accord concession and relax the recruitment rules. They may also take a view that the applicant was in service for a period of more than 10 years on the date when the recommendations of 6th CPC were accepted on 1.9.2008, thus a right for regularization, in terms of the judgment of Honble Supreme Court in Umadevis case (supra), could accrue to her much earlier. In any case, it is purely for the authority competent to do so to exercise its discretion or not. This Tribunal cannot give any positive direction in this regard.
16. Subject to aforesaid observations, the O.A. is disposed of. No costs.
( A.K. Bhardwaj ) Member (J) /sunil/