Gujarat High Court
Rajendrakumar Amrutbhai Rajguru vs State Of Gujarat on 27 January, 2020
Equivalent citations: AIRONLINE 2020 GUJ 31
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, V.P. Patel
C/LPA/1317/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1317 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 10496 of 2002
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 1317 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJENDRAKUMAR AMRUTBHAI RAJGURU & 30 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
================================================================
Appearance:
MR HEMANG M SHAH(5399) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,4,5
,6,7,8,9
MR AD OZA(515) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 27/01/2020
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C/LPA/1317/2016 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE V.P.PATEL)
1. This appeal is filed by the Appellants original petitioners under Clause 15 of the Letters Patent being aggrieved and dissatisfied with the judgment and order dated 07.09.2016 passed by learned Single Judge in Special Civil Application No. 10496 of 2002.
2. Heard learned advocate Mr. Shalin Mehta, Senior Counsel with Mr.Hemang M. Shah, learned advocate for the appellants. Learned Senior Counsel Mr. Kamal B. Trivedi with Mr.A.D.Oza, learned advocate for the Respondent No.1 and Mr.Utkarsh Sharma, learned AGP for the respondent No. 1 - State of Gujarat.
Order under challenge:-
3. The appellants have filed Special Civil Application No. 10496 of 2002 under Articles 14, 16, 21, 38, 39A, 41, 42, 43, 46 and 226 of the Constitution of India claiming reliefs as prayed for in para 19 (A), (B) and (C as under:
"(A) declaring the prescription of written test and oral interview by office order dated 1/10/2002 as irrational, arbitrary, unreasonable and unjustified and against the letter and spirit of the Court's order and, therefore, violative of Articles 14, 16 and 21 of the Constitution of India, illegal, nul and void and quashing the same;
(B) restraining the respondents from insisting upon the passing of the written test and the oral test for the petitioners in order to be absorbed in the Board by way of implementation of the office order dated 1/10/2002;Page 2 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT
(C) directing the respondents to judge the efficiency and quality of the petitioners on the basis of their total experience of more than 18 to 20 years and to absorb them in the services of the Board and to regularize them with all consequential benefits without insisting upon the passing of the written test and oral interview as prescribed the impugned office order;"
3.1 The learned Single Judge has dismissed Special Civil Application No. 10496 of 2002 by order dated 7.9.2006 holding as under:
(a) That the scheme prepared by the Sate for regularisation is not in any manner in conflict with the direction issued by the Division Bench in Letters Patent Appeal No. 357 of 2000.
(b) That the terms of regularization are in no manner in conflict with the direction issued by the Division Bench.
(c) That the terms of regularization are not unreasonable, arbitrary or in violation of Article 14 of the Constitution of India.
(d) That the terms of regularization wherein the board has decided to conduct the written examination followed by oral interview cannot be said to be a arbitrary decision or an unreasonable condition.
(e) That the petitioner has not made any attempt till 2007 as regards to the clarification if the writ Applicants were of the view Page 3 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT that the scheme was not in consonance with the direction issued by the Division Bench.
Brief facts of the case:-
4. Argument For the appellants :
4.1 Mr.Shalin Mehta, learned Senior Advocate for the appellants submitted that oral judgment dated 07/09/2016 passed by the Hon'ble Court in Special Civil Application No. 10496 of 2002 is required to be quashed and set aside as the learned Single Judge had erred in appreciating the true and correct facts, hence, it has resulted in grave injustice to the appellants. That the petitioners except Appellant Nos. 5, 11, 31 belongs either to Schedule Castes or Scheduled Tribe or OBC. That they have been employed by the Board through Employment Exchange and after selection by Selection Committee though on daily wages. They were continuously working as such sine 1982 and at the time original proceedings they had completed more than 18 to 20 years service.
That there were no complaint regarding their conduct or performance and no disciplinary action has been taken against any of them. The had discharged their duties honestly, efficiently and to the best of the abilities through their service.
4.2 Learned Senior Counsel further submitted that the appellants except 2 had crossed 45 years of age and have families with children who themselves are appearing in the examination. The Government Resolution dated 01/10/1999 exempts the employees from departmental examination if they had completed 45 years of age at the time of departmental examination. Therefore, also it would be strenuous and harsh to ask them to Page 4 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT appear in examination for their absorption.
4.3 Learned Senior Counsel further submitted that the direction of the Hon'ble Court to the respondent is to prepare a scheme of regularization or absorption of the appellants by process of scrutiny or selection based on efficiency and past performance of the appellants. However, respondents have formulated the scheme of written test and oral test which includes 30 marks for Gujarati (with Grammer); 15 marks for Arithmetic; 20 marks for English with Grammer; 35 marks for General Knowledge and 25 marks for oral test. Written test or oral test cannot be the sole method of assessing the efficiency and experience of person. Moreover, if a person worked on a particular post for a long period of more than 15 to 20 years and if work is satisfactory and without any complaint then written test of SSC level is not at all necessary and justified only to decide to absorb them in their regulr work.
4.4 Learned Senior Counsel further submitted that the as per the direction of this Hon'ble Court, absorption is to be based on scrutiny or selection based upon efficiency and past performance only. The direction does not speak of any written test or oral interview. Therefore, the appellants should be judge on the basis of their past performance of 15 to 20 years service and on the basis of their efficiency only. That, by directing them to appear in written or oral examination would virtually amount to deprive them of their opportunity to be absorbed in the Board's service and thereby adequate means of livelihood in violation of Article 21 of the Constitution of India.
Page 5 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT4.5 That, most of them have retired and only two appellants are working in the Board at present. That, by not appreciating the true and correct facts nor interpreting the direction issued by the Division Bench in Letters Patent Appeal No. 357/00 such situation has been arised. After retirement these appellant would be left high and dry as they would not be entitle to draw any retiral benefits, as a result of which during the old age these appellants would have to live in a hand to mouth condition. This would amount to violation of Article 21 of the Constitution of India.
4.6 Ld. Senior Counsel further submitted that the action on the part of the Board is highly arbitrary and frustrates the the very object with which the Division Bench passed an order dated 04/05/2001. That, the Division Bench had never intended the conduct of any written exam as well as oral interview. That, the terms of regularization travels much beyond the scope of directions issued by this Hon'ble Court. That the learned Single Judge erred by coming to the conclusion that the appellants ought to have filed an application for the purpose of seeking clarification rather than filing Special Civil Application No. 10496/02. That, the learned Single Judge ought not to have recorded such finding especially when the order dated 22/10/2011 passed by the Division Bench in the review application that had been filed by the Board had rejected the same.
4.7 That, appellants raised grievance before the Board at the relevant point of time and had expectation that the scheme would be scrapped or amended, but no effective steps were taken, therefore, they constrained to file Special Civil Application Page 6 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT No.10496/02. That, the benefits flowing from the directions issued by the Division Bench of this Hon'ble Court vide judgment and order dated 04/08/2001 must flow as it is and without and deviation or misconstruing the expressions "efficiency" and "past performance". The expression clearly mandate that the service performed/discharged by the appellants would have to be given importance.
4.8 Concluding, the learned Senior Counsel submitted that the judgment dated 07/09/2016 is thus required to be quashed and set aside as the learned Single Juddge has erred in appreciating the true and correct facts, as result of which the appellants have deprived of their right to even receive retire benefits after serving in the Board for more than 18 to 20 years.
Arguments for Respondents:
5. On the other hand learned Senior Advocate Mr.Kamal B. Trivedi, with Mr.A.D.Oza, learned Advocate for the respondent- Board has submitted that during the course of recruitments effect in past for the post in question on regular basis, the mode, manner and the procedure in the recruitments were in no way less rigorous as compared to the mode, manner and the procedure fixed in the scheme of regularization dated 01/10/2002 which was offered to the appellants herein amongst others, pursuant to the directions of this Hon'ble Court.
5.1 That as per the said scheme those who would not succeed in their first attempt were supposed to be given three chance within a time bound programme, so as to enable to pass through the Page 7 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT same. However, the fact remains that nine persons in all, from among the persons like the Appellants herein, had successfully passed through the said process, whichi is sought to be challenged by rest of the appellants, who appear to be seeking a sort of a privilage for being exempt from the said process on the alleged ground that the same cannot be the sole method of "Scrutiny or selection based on their efficiency and past performance" as per the direction of this Hon'ble Court.
5.2 Learned Senior Counsel further submitted that during the period between 1980 to 1983, the respondent Board had not recruited as Junior Clerk. However, during the pendency of the Special Civil Application No. 4622 of 1986, the respondent Board had followed an exhaustive recruitment procedure and 42 persons have been recruited. It is further submitted that at that time, the examination was taken at two places namely Vadodara and Gandhinagar of the question paper was of 100 marks consisting of three parts/subjects, v.z. 10 Intellectual Test 2) Arithmetic Test and 30 General Knowledge Test. Thereafter, the interview of the candidates who were successfully passed in written test was taken by the committee consisting of five members. However, the appellants who had failed in the aforesaid recruitment drive.
5.3 It is further submitted that the Board had undertaken the task of recruitment in the year of 1978, wherein in response to the advertisement, six thousand applications were received and 200 applications were received from employment exchange and 20 applications were received from social welfare department and on the basis of marks obtained in SSC or graduation, a number of the Page 8 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT candidates was short listed followed by written test and on the basis of which, the recruitment was made, but without offering further opportunities to those who had failed in their first attempt.
5.4 It is further argued that the scheme for regularization was made to absorb the appellants. The reasonable opportunities were granted. Age limit was relaxed. Appellants may avail more than one attempt. The scheme is prepared to proceed scrutiny or selection based on efficiency in consonance with the direction issued by this court in LPA 357/2000. As per direction, the special 40 posts were created and recruitment process was held. 9 original appellants were selected that shows the written test and oral interview was reasonable and scheme is proper, appropriate, fair, judicious and befiting to cop up the situation. There are no infirmities in judgment and order passed by the learned Single Judge. It is requested to dismiss this appeal with costs.
6. Brief Facts of the Case: It is necessary to place herein the chronology of important events happened since recruitment of the petitioner till date, which reads as under:
Sr. Date / Year and Events
1. 1978 - Gujarat Secondary and Higher Secondary Board (Respondent No.2) issued an advertisement for recruitment of Junior Clerk on permanent and regular basis followed by interview and written test, ultimately culminated into a recruitment of successful candidate.
2. 1982-1983 - 40 persons including the Appellant were retained on daily wager clerk for doing pre and post examination work of the Board.
Page 9 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENTEarlier Litigation
3. 25.8.1986 - 40 persons had filed Special Civil Application No. 4622 of 1986 seeking regularization of their service with all consequential benefits though all of them were engaged as daily wagers in recent past.
4. 1986-1996 -During the pendency of the aforesaid Special Civil Application No. 4622 of 1986, the Respondent No.2 offered a selection test to recruit Junior Clerk by following exhaustive recruitment process including conduct of written test and interview. In this recruitment process 42 persons came to be recruited on permanent and regular basis. The petitioners and other similarly situated persons were also given an opportunity to participate in the recruitment drive. Only 7 of the writ petitioners succeeded.
5. 22.10.1996 - The name of the succeeded 7 petitioners came to be deleted from the cause title of the writ petition being SCA 4622/1986.
6. 12.6.2000 - SCA 4622/1986 came to be dismissed by the learned Single Judge of this court by observing as under:
"The action of the Board in giving test to such employees before offering them permanent employment is absolutely just and legal. Such action cannot be vitiated as claimed by the petitioners. It further appears that respondents nos.3 to 37 are the employees of the Board who have been selected and appointed on the permanent establishment. Some of those employees were initially appointed on daily wages alongwith the petitioners herein. However, since they successfully took the selection test, their services have been regularized from the date of their selection. The action of the Board in regularizing the services of such employees who have successfully undergone the selection test cannot be faulted with. However, considering the Page 10 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT long service rendered by these petitioners, it should be justiciable that these petitioners are given an opportunity for regular selection as and when such selections are being made. It is, therefore, directed that as and when regular selections are made, the Board shall also consider the case of the petitioners for regular selection, irrespective of the age-bar which may be faced by such petitioners, provided the concerned petitioners are were within the age limit on the date of their first appointment."
7. 19.6.2000 - The services of the remaining 33 petitioners of SCA 4622/1986 came to be terminated.
8. 4.10.2000 - SCA 10522/2000 came to be filed challenging the legality of the termination order dated 19.6.2000.
9. 9.10.2000 - Being aggrieved and dissatisfied with the order dated 12.6.2000 passed by the learned Single Judge in SCA 4622/1986, LPA 357/2000 was filed. The Division Bench granted stay, staying the termination of the services of the petitioners.
10. 4.5.2001 - The Division Bench of this court disposed of the LPA 357/2000 with the following direction:
"10.Taking support from the observations of the Supreme Court in the case of Gujarat Agricultural University (supra), we allow this appeal by substituting the directions of the learned Single Judge dated 12.6.2000 by the following directions:
(i) The State of Gujarat through Secretary, Education Department (respondent No.1) on being approached by the Gujarat Secondary Education Board (respondent No.2),shall consider creation of 40 or more supernumerary posts of junior clerks with designation, nomenclature and pay-scale as considered suitable for such posts. For this purpose, a formal approach in writing shall be made by the Board to the State Government within a period of one month;
(ii) On creation of supernumerary posts of junior clerks, the Page 11 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT respondent Board shall prepare a scheme of regularization or absorption of the appellants by process of scrutiny or selection based on efficiency and past performance of the appellants;
(iii) So far as respondents Nos.3 to 37 are concerned, since they have been appointed subject to the result of the petition and against existing sanctioned posts, the respondent Board may proceed for finalization of appointment process but without prejudice to the rights and claim for absorption or regularization of services of the appellants.
(iv) Let the process of creation of posts, framing a scheme for absorption or regularization of service of the appellants on newly created posts and respondents Nos.3 to 37 on the sanctioned posts be completed by respondents Nos.1 and 2 within an outer limit of three months from today. Until then, the appellants and respondents Nos.3 to 37 shall be continued in service of the respondent Board on the same terms and conditions existing on the date of making of this order.
In the facts and circumstances of the case, however, we leave the parties bear their own costs. No orders on the civil applications."
11. 6.6.2001 - Pursuant to the order passed by this court in LPA 357/2000, the State Government issued Government Resolution creating 40 supernumerary posts of Junior Clerk for the Respondent No.2.
12. 30.8.2001 - The State Government has preferred Special Leave to Appeal (Civil) No. 10469 of 2001 before the Supreme Court wherein the Hon Supreme Court on 30.8.2001 permitted the Respondent No.2 to approach this court with appropriate relief.
13. 22.10.2001 - The Respondent No.2 has preferred Misc. Civil Application No. 1633/2001 for review which was rejected vide order dated 22.10.2001.
Page 12 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT14. 26.6.2002 - The learned Single Judge passed an order permitting reinstatement of the petitioners w.e.f 4.5.2001 in SCA No. 10522/2002.
15. 1.10.2002 - Pursuant to the direction issued by this court in LPA 357/2000 the Respondent No.2 Board has formulated a scheme for regularization comprising the conduct of written test and interview.
16. 1.10.2002 - 32 petitioenrs gave requisite undertaking to comply an abide by the procedure, terms and conditions of regularization scheme.
Present Litigation
17. 21.10.2002 - 31 petitioners have filed the writ petition being SCA No. 10496/2002 challenging the regularization scheme on the ground that the test proposed to be conducted in the scheme would be harsh and too difficult for the petitioners and seeking the following relief:
"...Your Lordships may be pleased to issue a writ of certiorari, mandamus or any other appropriate writ, direction or order -
(A) declaring the prescription of written test and oral interview by office order dated 1.10.2002 as irrational, arbitrary, unreasonable and unjustified and against the letter and spirit of the Court's order and, therefore, violative of Articles 14, 16 and 21 of the Constitution of India, illegal, null and void and quashing the same;
(B) restraining the respondents from insisting upon the passing of the written test and the oral test for the petitioners in order to be absorbed in the Board by way of implementation of the office order dated 1.10.2002;
(C) directing the respondents to judge the efficiency and Page 13 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT quality of the petitioners on the basis of their total experience of more than 18 to 20 years and to absorb them in the services of the Board and to regularize them with all consequential benefits without insisting upon the passing of the written test and oral interview as prescribed by the impugned office order;
(D) passing any other appropriate order; (E) granting interim relief including ad interim relief in terms of above and restraining the respondents from holding the written test and oral interview of the petitioners for the purpose of absorption during the pendency and till disposal of this petition."
18. 23.7.2003 - Learned Single Judge granted relief int terms of paragraph 19(E), restraining the Board from holding the written test and oral interview under the regularization scheme for the purpose of absorption of the petitioners in the services during the pendency and till the disposal of the writ petition.
19. 2009-2016 - During this period, while pendency of the writ petition, the services of 27 petitioners upon attaining the age of 58, came to an end whereas 2 petitioners i.e. Petitioner No.19 and Petitioner No. 12 passed away on 3.5.2011 and 10.11.2010 respectively. The remaining 2 i.e. Petitioner No.5 and Petitioner No.12 were continued as such.
20. 7.9.2016 - The learned Single Judge has dismissed SCA 10496/2002 by observing as under:
"For the foregoing reasons, this writ-application fails and is hereby rejected. All those writ-applicants who are still in service may appear in the written exam as well as the oral interview in accordance with the scheme of regularisation dated 1st October 2002. If they qualify in accordance with the scheme, their services shall be regularized. Ad-interim relief Page 14 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT granted earlier stands vacated. Rule discharged."
21. 7.10.2016 - The present LPA came to be filed against the aforesaid judgment dated 7.9.2016 passed by the learned Single Judge in SCA 10496/2002.
22. 4.1.2017 - Pursuant to the order passed by the learned Single Judge in SCA 10496 of 2002 the remaining petitioners i.e. Petitioner Nos. 5 and 25 appeared in the written examination and oral interview as provided in the scheme of regularization and got the same cleared. They came to be regularized in service of the Board.
Claim of Regularization:
7. The main argument of the learned Senior Counsel Mr. Shalin Mehta for the petitioners is that the petitioners had been appointed by the Board through employment exchange and after selection of selection committee on daily wager. That the length of the service of the petitioners are more than 18 to 20 years. That no complaint as regards to performance work carried by the petitioners. That no disciplinary action has been taken against the petitioners. That legitimate expectation of regularization is existed due to direction of the High Court in LPA 357/2000.
8. For this purpose, following judgments of the Hon'ble Supreme Court cited by the learned Senior Advocate Mr. Kamal Trivedi are required to be referred which are quoted hereunder:
8.1 Hon'ble Apex Court has held in a judgment reported in (2011) 3 SCC 436 - State of Orissa and Anr. v. Mamta Mohanty as under: "35. At one time this Court had been of the view that calling the names Page 15 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789;
State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
ORDER BAD IN INCEPTION:
37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent Page 16 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: Upen Chandra Gogoi v. State of Assam & Ors., AIR 1998 SC 1289;
Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005 SC1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823)."
8.2 The State of Bihar & Ors. v. Kirti Narayan Prasad - In the Supreme Court of India Civil Appeal No. 8649 of 2018 (Arising out of S.L.P. (Civil) No. 24742 of 2012
13. In Umadevi (supra) the Constitution Bench has held that unless appointment is made 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 was an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. A temporary employee could not claim to be made permanent on the expiry of his term of appointment. It was also 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. In paragraph 43 of Umadevi (supra), it was held 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 Page 17 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT 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, regularisation, 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."
(Emphasis supplied)
14. However, in paragraph 53 an exception is made to the general principles against regularisation as a one-time measure which is as under:
Page 18 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT"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 regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3 SCC 436, this Court has held that once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage. It was held thus:
"68(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/ teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the notice board of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage".
(Emphasis supplied)
17. In the instant cases the writ petitioners have filed the Page 19 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisation of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise."
8.3 Hon'ble Apex Court has held in a judgment reported in (2006) 4 SCC 1 - Secretary, State of Karnataka and Ors. v. Umadevi (3) and ors. as under:
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they Page 20 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed.
That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
Page 21 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these Page 22 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."
9. In view of the principle laid down by the Hon'ble Supreme Court in above referred cases same are applicable to present case of the Appellant which reads as under:
(a) It is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancy in newspapers having wide circulation or Page 23 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT by announcement in radio and television as merely calling the names from the employment exchange
(b) If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside.
(c) Unless appointment is made in terms of relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.
(d) If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it was an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
(e) A temporary employee could not claim to be made permanent on the expiry of his term of appointment. It was also 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.
(f) Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" ... he would not be entitled to any right to be Page 24 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT absorbed or made permanent in the service.
(g) Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State.
(h) No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment.
(i) There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service.
(j) The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed.
(k) The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture.
(l) As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post of employment.
(m) Since, they are only daily wage earners, ... that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court Page 25 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT directing the Government to consider their cases for regularization.
(n) If sanctioned posts are vacant, the State will take immediate steps for filling those posts by a regular process of selection.
10. Considering the facts and circumstances of the present case, the following facts emerge:
(a) That the petitioners are appointed on a daily wage basis.
(b) That the petitioners were not appointed on a sanctioned post.
(c) That before the time of recruitment no public advertisement was issued only the names were called from employment exchange.
(d) That the petitioners were protected in service by the order of the court.
(e) That no legitimate expectation is existed for the irregular and illegal appointment.
In view of the above we found that the claim of regularization of the petitioners is not tenable in the eye of law.
Scheme for regularization - validity:
11. Learned Counsel for the petitioners has emphasized that;
(a) the scheme for regularization is irrational, arbitrary, unreasonable and unjustified in view of the direction issued by this court in LPA 357/2000.
(b) That the government has issued a circular dated 1.1.1999 for Page 26 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT granting exemption to the employees from departmental examination if they had completed 45 years of age.
(c) That the conditions to appear in examination by the
petitioners is too strenuous and harsh.
(d) That the petitioners have to shoulder heavy responsibility of
family and they have crossed the certain age limit.
(e) That the written examination as well as oral interview are
not in consonance with the direction issued by this court in LPA 357/2000.
12. For the purpose of deciding as to whether the scheme of regularization is valid or not, the following concept are required to be taken into consideration.
13. Selection: Learned Advocate for the Appellant has submitted that the selection can be made by the past performance of the petitioners and not by the written examination and oral interview.
Learned Senior Advocate Shri Kamal Trivedi has cited the judgment of the Hon'ble Apex Court wherein the word 'selection' is interpreted. The concept of selection is required to be interpreted in light of the judgment of the Hon'ble Apex Court in case of A.P. Public Service Commission, Hyderabad And Anr. v. B. Sarat Chandra And Ors., reported in (1990) 2 SCC 669. The Hon'ble Apex Court has observed in paragraph 7 as under:
"If the word 'selection' is understood in a sense meaning thereby Page 27 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are 467 eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to con- strue the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the Rule making authority."
14. Suitability: Learned Advocate for the petitioners have relied upon the judgment reported in (2007) 11 SCALE 431 in case of Valsala Kumari Devi m. v/s Director, Higher Secondary Education & Ors. The Hon'ble Apex Court has observed in paragraph 13 as under:
"11) The expression "subject to seniority and suitability"
occurring in G.O. dated 27.6.1990 does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. In view of the distinction between the appointment by promotion from General Education Subordinate Service and an appointment to the 75% vacancies ear- marked for direct recruitment, we are of the view that the finding Page 28 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT arrived at by the Director, Higher Secondary School, Thiruvananthapuram, Kerala that seniority is not the criterion for 'appointment by promotion to HSST' is erroneous and is not in terms of the Government Orders referred to above. Though in the order, it is stated that the 5th respondent is more suitable than the appellant, as rightly pointed out by learned counsel appearing for the appellant, it has not been shown or indicated the reasons or grounds for arriving such decision that the 5th respondent was found more suitable than the appellant for the post. We are also in agreement with the contention that the Director has mechanically accepted the decision of the Selection Committee that the 5th respondent is more suitable than the appellant without reference to selection for appointment by promotion to HSST against 25% quota ear- marked for qualified High School Assistants. We are of the view that the Director has committed an illegality in upholding the selection of the 5th respondent for appointment to the post of HSST. Further the 5th respondent has been preferred to the appellant for the reason that his main subject in B.A. is History which is totally irrelevant for promotion to HSST from among HSAs. In G.O. dated 27.6.1990 the qualification prescribed is a second class Master's Degree in the concerned subject with B.Ed. It is relevant to point out that the appellant and the 5th respondent have obtained M.A. Degree from Mysore University and the 5th respondent took B.Ed with Social Studies. The other reason given by the Selection Committee for preferring 5th respondent is that he has proficiency in English, Kannada and Malayalam whereas the appellant has proficiency in English and Malayalam. As rightly pointed out by learned counsel appearing for the appellant, once the requirement of the prescribed qualification is satisfied, the selection must be made on the basis of the seniority and suitability and there is no scope for making comparison of qualifications or comparative assessment of suitability. The expression 'suitability' means that a person to be appointed shall be legally eligible and 'eligible' should be taken to mean 'fit to be chosen'."
Per contra, learned Counsel Shri Kamal Trivedi has relied upon the judgment of the Hon'ble Apex Court in case of Union of India And Ors. v. Devendra Vir Sahi reported in (1995) 2 SCC 463 wherein in paragraph 4 and 5 the Hon'ble Apex Court has observed as under:
"4. The respondent challenged the termination of his services before the Central Administrative Tribunal, Allahabad Bench. The Page 29 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT Tribunal by its impugned judgment and order has held that the respondent should have been considered for regularisation only on the basis of his Confidential Reports as was done in the case of Assistant Medical Officers who were covered by the judgment of this Court in Dr. A.K. Jain's case (supra). The Tribunal further held that until the respondent's case was considered for regularisation on this basis, his services should not be terminated. The appellants have filed the present appeal challenging the order of the Tribunal.
5. The respondent was appointed after 1,10.1984 and hence he cannot get the benefit of the directions given in Dr. A.K. Jain's case (supra). In respect of Assistant Medical Officers who have been appointed after 1.10.1984, the appellants decided to regularise the services of those doctors who were considered suitable for regularisation by the Union Public Ser-vice Commission. The Union Public Service Commission took into account the service record of the Assistant Medical Officers and also interviewed them in order to decide their suitability for regularisation. We do not see any reason for finding fault with this process of regularisation."
15. Efficiency: It is also argued that the efficiency may be assessed by the past services. There is no requirement of written examination and oral interview. Learned Senior Counsel Shri Kamal Trivedi has cited the judgment in case of State of U.P. And anr. v. Dr. K.U.Anari and ors., reported in (2002) 1 SCC 616 The Hon'ble Apex Court in paragaph 10 has observed as under:
"10. From the discussions in the judgment quoted above, it appears that the High Court has drawn a distinction between considerations for crossing the efficiency bar and those for promotion. The High Court has taken the view that research work is not necessary for judging the efficiency of a teacher of the medical college though it may be an "additional qualification for the purpose of promotion. The observations and findings recorded by the High Court in the judgment are clearly erroneous. We are indeed perplexed to find that the High Court has propounded a principle that in the 21st Century a teacher in a medical college Page 30 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT need not engage himself in any research work. The concept is not only out of tune with time but an impediment on improving the standard of teaching in medical colleges. If the observations/findings are accepted as correct then it will mean encouraging mediocrity in the line of medical teaching. Research by a teacher in medical college is desirable and relevant for maintaining a high degree of proficiency in teaching. Medical science has progressed very much in recent times and constant efforts are being made in institutions engaged in medical education and research all over the globe for further development in different specialities. In such state of things to take a view that research is not relevant for a teacher in medical college for the crossing of efficiency bar or even promotion (stated to be only an additional qualification) is not correct. We have no hesitation to hold that the observations and findings of the High Court to which reference has been made earlier are unsustainable. Crossing of efficiency bar is a well recognised means of monitoring the efficiency of the employee which helps him to make progress in his service career. In the expression efficiency are included all relevant matters necessary for discharging his duties efficiently and satisfactorily. In the case of a teacher, particularly a teacher in medical college, it is absolutely necessary that he keeps abreast of all developments in the field of the medical science of his specialisation and he can achieve this better if he is engaged in research work. The manner in which he carries out the research and assessment of the results he obtains are matters of scrutiny by experts; but it cannot be said that a teacher in medical college is not expected to do any research. In order to teach his students properly the teacher has to maintain a high degree of proficiency in the subject. It is relevant to note here that in the prescribed format for making entries in the character roll there is a column relating to research work done by the teacher. This, in our view, is sufficient to hold that the authorities did consider and in our view rightly research to be a relevant consideration for the purpose of making proper assessment of the employee. The position is well settled that while making entries in the character roll proper assessment on the basis of objective standards should be made since character roll is a primary material which forms the basis for further progress of the employee in his service career. The entries in the character roll are necessary and material for the purpose of permitting the employee to cross the efficiency bar as well as for promotion. Unfortunately, the observations and findings of the High Court tend to indicate as if crossing of efficiency bar is a matter of course Page 31 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT and an idle formality. Such impression, as noted earlier, is clearly erroneous. Therefore, the judgment of the High Court in W.P.No.14686/88 is unsustainable and has to be set aside. Since the judgment in the other case i.e. W.P.No.15989/87 is entirely based on the judgment in the said writ petition, that has also to be set aside."
16. Financial Burden: Learned Senior Counsel Shri Kamal Trivedi has vehemently argued that by regularization of the petitioners the State has to take heavy financial burden. Not only that but this may an effect on the other litigants or the similarly situated employees of the State which may cause profound burden on the State ex checker. Learned Senior Counsel has referred to and relied upon the judgment of the Hon'ble Apex Court in case of State of Tamil Nadu Through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Anr. v. A.Singamuthu, reported in (2017) 4 SCC 113. In para 18 the Hon'ble Apex Court has observed as under:
"1. Leave granted. This Civil Appeal arises out of the judgment of the High Court of Judicature at Madras dated 04.07.2012 dismissing the Writ Appeal No.1209 of 2012 thereby affirming the order of the learnedSingleJudge directing to grant regularization to the respondent from the date of completion of ten years of service with salary and other benefits.
18. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs.10,85,113/- (approximately) towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the Page 32 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also."
17. Article 14: The petitioners have claimed parity under Article 14 of the Constitution of India. Article 14 of the Constitution of India. The judgment of the Hon'ble Apex Court in case of State of Orissa and Another v. Mamata Mohanty reported in (2011) 3 SCC 436 is relevant to decide the controversy. In para 56 the Hon'ble Apex Court has observed as under:
"It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief."
18. In view of the above discussion the following things emerge:
(a) It is unreasonable to construe the work selection only as the factum of preparation of the select list. The selection includes conducting examination and calling for interview or viva voce and preparation of list for successful candidates for appointment.
(b) Suitability also denote that person may be interviewed.Page 33 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT
(c) Therefore they cannot claim regularization as legitimate expectation. The work performance only cannot be a criteria for the suitability and selection.
(d) In the expression efficiency are are included all relevant matters necessary for discharging his duties efficiently and satisfactorily.
(e) At the time of regularization of ad hoc employees the financial burden on State ex chequer is required to be counted.
(f) Parity under Article 14 of the Constitution cannot be claimed by the daily wager with regular employees.
19. One of the argument of leaned Advocate for the petitioners is that the judgment in case of Umadevi is delivered after the decision of the LPA 357/2000. Therefore it cannot be applicable to the present case. This argument cannot be tenable because the judgment is based on Article 14, 16, 19 of the Constitution of India, these articles / provision were available before the judgment is passed in LPA 357/2000. The interpretation made in Umadevi may be taken as a guiding factor to decide the contraversy involvlving Articles 14, 16 and 19 of the Constitution of India.
About Regularization Scheme:
20. We have gone through the Regularization Scheme dated 1.10.2002 framed by Respondent No.2 and considered the facts / events happened in this case which can be summarized as under:
Page 34 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT(a) 31 petitioners have given written undertaking on 1.10.2002 to follow the procedure and conditions prescribed in the scheme.
(b) As per relief claimed in Special Civil Application No. 4622/1996, the petitioners have demanded regularization and permanent absorption without holding any test / examination / interview or selection and to grant regular pay scale and all other benefits and allowances.
(c) Mode, manner and procedure mentioned in Regularization Scheme is not strict than the mode, manner and procedure of regular appointment.
(d) No different passing standard adopted in the scheme.
(e) Three chances are provided to the petitioner to appear in examination held under the Regularization Scheme. The 4th chance also given to the candidate if sufficient reasonable cause is shown.
(f) Exemption to the person having 45 years of age is given only for departmental examination but not for recruitment examination.
(g) Nine candidates have been successfully passed through the examination of the scheme, it shows that standard adopted under the scheme is normal and not unreasonable, arbitrary.Page 35 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020 C/LPA/1317/2016 CAV JUDGMENT
21. Considered the averments made in the memo of Appeal, documentary evidence produced on record, the arguments advanced by the learned Advocates for the parties, the ratio laid down by the Hon'ble Supreme Court in above referred to judgments and the facts and circumstances of the case, we are of the view that the Appeal deserves to be dismissed. Accordingly stands dismissed. Stay / interim relief granted, if any, is vacated with immediate effect.
Civil Application disposed of accordingly.
(S.R.BRAHMBHATT, J) (V. P. PATEL,J) J.N. W. Page 36 of 36 Downloaded on : Thu Jan 30 00:00:10 IST 2020