Allahabad High Court
State Of U.P. And 3 Ors vs Ganga Sagar Tiwari(Since Deceased) And ... on 2 September, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:141179-DB Reserved on 05.08.2024 Delivered on 02.09.2024 Court No. - 29 Case :- SPECIAL APPEAL No. - 663 of 2024 Appellant :- State Of U.P. And 3 Ors Respondent :- Ganga Sagar Tiwari(Since Deceased) And 9 Ors Counsel for Appellant :- Nagendra Kumar Pandey Counsel for Respondent :- Virendra Pal Varshney Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
(Per: Hon'ble Mahesh Chandra Tripathi, J.)
1. Heard Shri M. C. Chaturvedi, learned Additional Advocate General assisted by Shri J. N. Maurya, learned Chief Standing Counsel for the State-Appellants and Shri Virendra Pal Varshney, learned Counsel for petitioners-respondents, who has joined through video conferencing.
2. The instant intra Court appeal is directed against the judgement and order dated 8.1.2018 passed by learned Single Judge in Civil Misc. Writ Petition No.14686 of 1991 (Ganga Sagar Tiwari and others vs. State of U.P. and others).
FACTS
3. The facts of the case, in a nutshell, which are relevant and essential for disposal of aforesaid appeal are noted here-in-below.
4. It is claimed that petitioner no.1-Ganga Sagar Tiwari (since deceased) was appointed as a peon in Jubilee Sanskrit College, Balliya on 15.11.1976, petitioner no.2-Ram Badan Singh was appointed as peon in Shri Siddheshwar Nath Aadarsh Sanskrit Pathshala Kuti Kotwa, Narayanpur, District Baliya on 1.11.1976, petitioner no.3-Swami Nath was appointed as peon in Shri Amar Sanskrit Vidyalay Khajuri, District Balliya, petitioner no.-4-Shiv Narayan was appointed as peon on 1.4.1989 in Shri Chiteshwar Nath Sanskrit Pathshala Chit Baragaon, District Balliya and petitioner no.5- Ram Aadhar Ram was appointed as a peon in Adarsh Sanskrit Vidyalaya, Kishore Chetan on 1.12.1978. All the institutions named above are affiliated to Shri Sampurna Nand Sanskrit Vishwavidyalaya, Varanasi.
5. In the said institutions, salaries of peons (Class IV employees) were paid at the rate of Rs.43 per month and Rs.60.80 per month was paid as maintenance grant. As the payment to the petitioners was stopped since 1987, hence petitioners-respondents had preferred Civil Miscellaneous Writ Petition No.14686 of 1991 (Ganga Sagar Tiwari and others versus State of U.P. and others) with following reliefs:
(a) to issue a writ in the nature of the writ of mandamus commanding the respondents to pay grant-in-aid for the payment of salaries to the petitioners like the peons of similar institution i.e. Post Graduate College and Intermediate Colleges.
(b) to issue a writ in the nature of rite of mandamus to release the maintenance grants and interim relief, the payment of which has been stopped since March 1987.
(c) to issue any other writ, order or direction, which this Hon'ble High Court may deem fit and proper in the circumstances of the case and the petition be allowed with costs.
6. Before learned Single Judge, the appellants-respondents had placed reliance on the Government Order (in short 'G.O.') dated 14.10.1974, wherein, the Sanskrit institutions in the State of Uttar Pradesh were classified into four categories, which are reproduced below:-
(i) Category 'A'-Those institutions in which at least 40 students were regularly present and getting education and out of them atleast 15 students must be appeared in Shastri (Graduate) and Acharya (Post Graduate) Examination every year and their result shall not be less than 35%.
(ii) Category 'B' Those institutions where number of regular students from Prathama (equivalent to Junior High School) to Acharya (Post Graduate) level were 40 and out of them at least 30 students must appeared in the examination and out of them atleast 5 students must be of the Shastri (Graduate) Examination and their result shall not be less than 35%.
(iii) Category 'C'- Those institutions where number or regular students must not be less than 35 out of which atleast 25 students were required to appear in the examination from Prathama to Acharya level and out of them atleast 10 students should be of Uttar Madhyama (Intermediate level) and Purva Madhyama(High School level) and their result must not be less than 35%.
(iv) Category 'D' Those institutions in which there were atleast 25 regular students studying from Prathma Level to Acharya Level and out of them atleast 10 students should have appeared in over all examinations and their result must not be less than 35%.
7. In the writ proceeding, the appellants-respondents had also taken an objection that as per the strength of student in the institutions, where the petitioners-respondents were alleged to have been appointed, the said instituions fell under Category 'D'. The appellants-respondents had also relied upon the subsequent G.O. dated 12.04.1982, wherein, the State Government had created one post of Clerk in the payscale of Rs.354-550 and one post of Peon in the payscale of Rs.305-390, in 117 Sanskrit institutions across the State, which were classified as Category 'A' institutions, whereas, no post of Clerk or Peon (Class IV employees) were sanctioned for other category of institutions i.e. Category 'B', 'C' and 'D'. The appellants-respondents had further taken an objection that all the five institutions in question, where the petitioners-respondents were claiming to be appointed as Peon (Class IV employees), were brought under the grant-in-aid list of the State Government vide G.O. dated 10.02.1987, as the said institutions were classified as Category 'D' institutions. Since issuance of the G.O. dated 10.02.1987, the maintenance grant was stopped and as the posts of Peon were not sanctioned in the institutions in question, which were Category 'D' institutions, the payment of wages/salary had never been released against the post of Peon or Clerk for the institution. It is also claimed that by another G.O. dated 16.01.1992 issued by Shiksha (8) Anubhag, Government of U.P. Lucknow, one post of Clerk in the payscale of Rs.950-1500 and one post of Paricharak (Peon) in the payscale of Rs.750-940 were sanctioned, in each 35 Sanskrit institutions, which were placed in Category 'A' in the years 1981-82 and 1982-83.
8. The Learned Single Judge, after hearing the submissions of counsel for the parties, had allowed the said writ petition by the order impugned dated 08.01.2018 with following observations:-
"In view of the above,respondents have illegally deprived the petitioners of their dues which were being paid to them till February 1987.It has been stated by the learned counsel for the petitioner that except petitioner no.1, who has died during the pendency of the writ petition, all the petitioners are working.
In view of above factual and legal position respondents are directed to pay the petitioners' arrears of salary from grant in aid provided by the State Government since March 1987 till date treating them in continues service within three months from the date of presentation of certified copy of this order before him.The respondents shall also consider compassionate appointment of one eligible legal heir of deceased petitioner No.1within the same period of three months provided above.
The writ petition is allowed. No order as to costs "
SUBMISSION OF APPELLANTS-RESPONDENTS
9. Shri M.C. Chaturvedi, learned Additional Advocate General appearing for the State-appellants has taken a categorical stand that the said institutions were never classified as Institution of 'A' Category, whereas, as per the list, which was appended alongwith supplementary counter affidavit before learned Single Judge, it is clear that the Jublee Sanskrit College, Ballia is recognized upto 'Acharya' level, but not classified as a Sanskrit Insitution of 'A' Category, rather it is 'D' Category institution; the other institutions namley Shri Siddheshwar Nath Adarsh Sanskrit Pathshala, Kuti Kotwa Narainpur, Distirct Ballia is recognized upto 'Sashtri' level only; the remaining three institutions namely Shri Amar Sanskrit Vidyalaya, Khajuri, Ballia; Chinteshwar Nath Sanskrit Pathshala, Chit Baragaon and Adarsh Sanskrit Vidyalaya, Kishore Chetan Ballia are recognised upto Uttar Madhyama level only. He vehemently submitted that as all the institutions fell in 'D' Category and at no point of time any post of Clerk or Peon were ever created, therefore, there was no question for an appointment and in case any appointment was made, by the Management on its own accord in absence of any post, the salary cannot be paid from the State exchequer. The alleged appointments of petitioners-respondents on the post of Class-IV (Peon) are void ab initio as no post of Clerk or Peon had ever been created by the State Government for the Institutions in question, therefore, grant-in-aid cannot be extended to those Institutions in question for payment of salary.
10. Shri Chaturvedi, learned Additional Advocate General further submitted that during pendency of the Writ A No.14686 of 1991, the respondents-petitioners had preferred Special Appeal No.1161/2008 'Ganga Sagar Tiwari (since deceased) and others vs. State of U.P. and others', which was entertained by the Division Bench of this Court on 29.10.2010 and direction was issued to conduct the physical enquiry of the five institutions in question. In pursuance thereof, the District Inspector of Schools, Ballia had made an inquiry and report was submitted, which was brought on record before learned Single Judge as Annexure SCA-6 to the Supplementary Counter Affidavit, wherein, the District Inspector of Schools, Ballia had opined that the Authorities of the Institutions in question failed to show any document with regard to the creation of posts and approval of the appointments of the petitioners-respondents and the said report had never been challenged. He further submitted that the appointment of petitioners-respondents were illegal and void, hence, they are not entitled for payment of salary from the State exchequer.
11. In this backdrop, Shri Chaturvedi, learned Additional Advocate General vehemently submitted that Learned Single Judge while allowing the writ petition had failed to notice that the relief prayed by the petitioners was only to issue a writ for mandamus, whereas, the Learned Single Judge had erred in law and accorded the relief which were not even sought for by the petitioners. He lastly submitted that in absence of any sanctioned post, no salary can be paid and in case no reprieve is accorded by this Court, the same would tantamount to creation of post and finances of the State may go haywire. He submitted that for appointment on regular/permanent post four essential ingredients must exist i.e. (i) existence of sanctioned posts, (ii) vacancies existing in such sanctioned posts, (iii) eligibility criteria being fulfilled by the candidates as specified in the recruitment rules or other applicable guidelines/circular, and (iv) competition between the candidates by calling the candidates through advertisement in newspapers and through employment exchange. No such pleading had been set up before learned Single Judge and in absence thereof, the relief, as has been accorded, is per-se unsustainable and the order impugned is liable to be set aside.
SUBMISSION OF RESPONDENTS-PETITIONERS
12. Per contra, Shri Virendra Pal Varshney, learned counsel for respondents-petitioners while opposing the appeal assertively submitted that the petitioners were employed in the Institutions, where-in, they were accorded payment of Rs.60 towards maintenance and Rs.43 as an interim relief for every month by the State Government and in arbitrary manner the same was stopped since March 1987. The said action was agitated by the petitioners as the same was arbitrary and discriminatory and in violation of Article 14 and 16 of the Constitution of India. He relied upon the letter dated 08.03.1983 issued by the Director of Education, Uttar Pradesh, addressed to all Regional Deputy Directors of Education and submitted that the petitioners were working in five different institutions, which were receiving grant-in-aid for payment of salaries to teachers and other employees.
13. Shri Vashney, learned counsel for the respondents further submitted that there was no rationale to discontinue the payment since March 1987 and since then the petitioners were not receiving salary without any rhyme or reason. He contended that the Learned Single Judge has rightly identified the material on record and recorded unassailable reasoning for granting relief to the petitioners and thus the present appeal merits dismissal.
DISCUSSION
14. We have taken into consideration the submissions advanced at bar by counsel for the parties and have gone through the impugned judgement and material placed on record.
15. Effectively, the order impugned directs the appellants-respondents to ensure payment of salary to the respondents-petitioners since March 1987 from the grant-in-aid provided by the State Government.
16. In the writ petition and even before this Court in Special Appeal, it is the incessant case of the appellants-respondents that the respondents-petitioners are not validily appointed on sanctioned posts in the respective institutions.
17. Hon'ble Apex Court in the case of Secretary, State of Karnataka and others vs. Umadevi and others1 had effectively put to an end the 'Industry' created of temporary appointments and thereafter regularisation of such temporary employees. The Apex Court had made it abundantly clear that before appointing of persons on a regular/permanent basis, there have to exist recruitment rules or specific eligibility criteria laid down for the appointments, there must be sanctioned posts, there must be vacancies in the sanctioned posts, and finally there must be issued advertisements for filling the posts, not as temporary or contractual posts but as permanent posts; so that there should be a level playing field of competition with respect to prospective appointees. The candidates can also be called from the lists of employment exchanges. Hon'ble Supreme Court in Uma Devi (supra) has laid down the following ratio:-
"(I) The questions to be asked before regularization are:-
(a)(i)Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of
(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter. (II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is violated.
(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed.
Such irregularly appointed persons cannot claim to be regularized alleging violation of Article. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.
(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.
(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.
(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.
(VII)The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution."
18. The aforesaid ratio of the Supreme Court can be culled out from the following paragraphs of the judgement of Supreme Court in Umadevi's case (supra):-
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules.
The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.
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11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
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14. During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned Counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once directed regularization in theDharwad case (supra), all those appointed temporarily at any point of time would be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.
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17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non- fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
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26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
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33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
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39. There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkuda Colliery of Central Coalfields Ltd. v. The Management of Bhurkunda Colliery of Central Coalfields Ltd. MANU/SC/0625/2006 : (2006)ILLJ842SC , though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re- engagement or making them permanent.
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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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is 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.
44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
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50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Article 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
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53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N.Nanjundappa (supra),and B.N.Nagarajan ( supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
19. It is now no longer res integra that in terms of the Constitution Bench judgment of the Supreme Court in the case of Umadevi's (supra) before a person can seek regularization, four aspects must exist viz., firstly there should be existing sanctioned posts, secondly there should be existing vacancies in sanctioned posts for which there exists authority/entitlement to fill up, thirdly the persons, who are appointed in vacancies against sanctioned posts are duly qualified persons, and fourthly the appointment is to be made of such persons, who have been called through advertisements widely circulated so that there is open competition among the eligible persons.
20. In the case of Radhey Shyam & Ors. Vs. GNCT of Delhi & Ors.2, learned Single Judge of Delhi High Court had observed that to allow regularization of contractual employees or short period appointment employees, merely because such persons meet 3 out of 4 criteria in terms of the ratio of Umadevi's case (supra) being that they are qualified persons and appointed against vacancies in sanctioned posts, the same would result in fraud upon the ratio of Umadevi's case as also the general public because the object of Umadevi's case was to prevent back-door entry and spoils system in public appointment and there cannot be regularization of employees who have got appointment in terms of the advertisement only for a fixed period.
21. Supreme Court recently in the judgment in the case of Kendria Vidyalaya Sangathan and Others Vs. L.V. Subramanyeswara and Another (2007) 5 SCC 326 has held that if all the eligible candidates are not called by means of the advertisement, then, the process of recruitment will violate the ratio in the case of Umadevi (supra) as also Articles 14 and 16 of the Constitution of India.These observations have been made by the Supreme Court in para 10 of the judgment in the case of Kendria Vidyalaya Sangathan (supra) and this para 10 reads as under:- "10. Had such regular vacancies been created, appellants would have been directed to be appointed on All India Basis. Respondents did not get their names registered in the Central Employment Exchange. Keeping in view the nature of the job and in particular that the posts are transferable throughout the country, an opportunity within the meaning of Articles 14 and 16 of the Constitution of India would mean an opportunity to all who are eligible therefore. Advertisement was issued for a limited purpose, namely, for leave vacancies, local employment exchanges were contacted only for filling of such posts and not regular posts."
22. Another judgment of the Supreme Court, which in a way lays down the same ratio is the judgment in the case of State of Orissa and Another Vs. Mamata Mohanty3, wherein, the Supreme Court has held that candidates who are not duly qualified if are appointed, the same would cause grave and irreparable injury to other unqualified candidates who would have otherwise applied, and therefore in such a case when unqualified persons seek regularization, that would be violative of the ratio in the case of Umadevi (supra) as also Articles 14 and 16 of the Constitution of India. The relevant observations of the Supreme Court in the case of Mamta Mohanty (supra) are made in para 36 of the judgment, and para 35 also is relevant because the same makes the legal position very clear that the object of issuing advertisement is to ensure open competition by calling of all the eligible candidates.
23. The ethos with respect to the ratio of Umadevi's case (supra) is that the entire object was to prevent the spoils that prevail in the system of public employment which was existing prior to the Constitution Bench judgment in Umadevi's case (supra).
24. A reading of the ratios of various Supreme Court judgements, which have been reproduced above, leaves no manner of doubt that unless and until the four essential ingredients exist, as elucidated in the judgement of Umadevi (supra), the appointments cannot be made in a regular/permanent basis. The said four ingredients are:- sanctioned posts existing, vacancies existing in such sanctioned posts, eligibility criteria being fulfilled by the candidates as specified in the recruitment rules or other applicable guidelines/circular, and finally of competition between the candidates by calling the candidates by advertisements in newspapers and through employment exchange.
FINDINGS
25. In the instant matter, we find the appellants-respondents had taken a categorical stand that at no point of time any post of Clerk or Peon was sanctioned in the institutions, as the institutions were in Category 'D' as per G.O. dated 14.10.1974. Even nowhere any pleading was set up by the petitioners-respondents that their initial engagement was in accordance with law. The documents, which are appended alongwith the writ petition, the same do not give an impression to the Court that the established procedure was duly adopted for initial engagement of respondents-petitioners. The alleged appointments on the post of Class IV employee (Peon) are therefore void ab initio as no post of Clerk/Peon had ever been created/sanctioned by the State Government for the Institution in question and in absence thereof, the salary could not been accorded. In case any such appointment was made by the Management, the State cannot be saddled with the burden to pay them salary from the State Exchequer.
26. Even no such finding has been returned by learned Single Judge to the effect that the posts were created and initial engagement of petitioners-respondents were in accordance with law and in absence of any such finding, the relief, as has been accorded by the Learned Single Judge directing the appellants-respondents to pay the respondents-petitioners arrears of salary from the grant-in-aid provided by the State Government since March 1987 till date treating them in continuous service, is per-se unsustainable.
27. While passing the impugned judgement, the Learned Single Judge has failed to take into consideration the report submitted by the District Inspector of Schools, Ballia dated 09.12.2010, which was submitted after conducting inquiry as per direction of Division Bench of this Court dated 29.10.2010 in Special Appeal No.1164 of 2008, wherein, a categorical finding is recorded that there was no sanction to the non-educational posts in the all five institutions in question and, therefore, this Court is of firm opinion that no such payment can be released in favour of petitioners.
CONCLUSION
28. In view of the above discussion, we find that the order impugned dated 08.01.2018 passed by the Learned Single Judge is unfeasible in the eyes of law and the same is set-aside. The Special Appeal is allowed.
29. No order as to costs.
Order Dated: 02.09.2024 A. Pandey