Madras High Court
)The Registrar Of Co-Operative ... vs )M.Panneer Losini ... 1St on 8 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Appeal(MD)Nos.135 of 2015 and 138 of 2015
and
M.P(MD)Nos.1, 1 and 2 of 2015
1)The Registrar of Co-operative Societies,
No.170, EVR Periyar Road,
Kilpauk, Chennai-10.
2)The Joint Registrar of Co-operative Societies,
Block-2, Near District Employment Office,
Theni, Theni District.
3)The Deputy Registrar of Co-operative Societies,
Land Development Bank Upstairs,
Uthamapalayam Taluk, Theni District. .... Appellants in both
appeals
vs.
1)M.Panneer Losini ... 1st respondent in W.A.135/15
2)M.Karthiyayini .... 1st respondent in W.A.138/15
3)The Special Officer/Secretary,
A.1187 Primary Agricultural
Co-operative Credit Society,
C.Pudupatti, Uthamapalayam Taluk,
Theni District. .... 2nd Respondent in both appeals
Appeals filed under Clause 15 of Letters Patent, against the order made
in W.P(MD)Nos.605 and 607 of 2013 dated 18.12.2014.
!For Appellants : Mr.B.Pugalenthi
Special Government Pleader
^For R1(both appeals) : Mr.B.Saravanan
For R2 : Mr.D.Shanmugaraja Sethupathi
:COMMON JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) By consent of both parties, the writ appeals are taken up for final disposal. As facts and submissions are similar, both the writ appeals are heard together and disposed of, by a common judgment.
2.Challenge in theses appeals, is to a common order, made in W.P(MD)Nos.605 and 607 of 2013, dated 18.12.2014, by which, a learned single Judge, has directed the appellants, to regularise the services of the 1st respondent in both the appeals/writ petitioners, within a time frame.
3.M.Panneer Losini 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13), has contended that she was appointed as Office Assistant in A.1187 Primary Agricultural Co-operative Credit Society, C.Pudupatti, Uthamapalayam Taluk, Theni District. She had passed higher secondary examination and a holder of Diploma in Co-operative Management, on the date of her appointment i.e., 03.10.2003. She has been working as Office Assistant till March 2010. Based on the resolution No.6 dated 31.03.2010, she also continued in the day-to-day affairs of Co-operative Society, on daily wages at Rs.100/- per day, with effect from 03.04.2010. It is also her contention that as no order of regularisation was passed, she was constrained to file W.P(MD)No.605 of 2013.
4.M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13), has contended that she was appointed as Assistant on 07.06.1999 in A.1187 Primary Agricultural Co-operative Credit Society, C.Pudupatti, Uthamapalayam Taluk, Theni District, on daily wages, at the rate of Rs.100/- per day. Contending inter alia that she has been continuously working since 1999, without any break in service, she made a representation dated 17.12.2012, to the appellants, by registered post and prayed for regularisation in the post of Assistant, with salary. She had also completed Diploma in Co-operation course, in the year 1995 and 1996 to 1997 respectively. Finding no response, she has filed W.P(MD)No.607 of 2013.
5.Opposing the prayer sought for in both the writ petitions, the 3rd appellant herein/Deputy Registrar of Co-operative Societies, Uthamapalayam, Theni District, in his counter affidavit, has submitted that M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13) was an outsourced employee, to meet out the exigencies, on daily wage basis. Her appointment was illegal. In so far as M.Panneer Losini, 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13, is concerned, the society had contended that to meet out the exigencies, for a short duration, vide resolution dated 31.03.2010, with effect from 03.04.2010, she was appointed on daily wage basis, at the rate of Rs.100/- per day. After 5 months, the said engagement came to end. Once again, by another resolution dated 10.10.2011, she was engaged on daily wage basis, at the rate of Rs.100/- per day.
6.The society has further contended that appointment of the writ petitioners is contrary to rule 149 of Tamilnadu Co-operative Societies Rules, 1988, and the rules made thereunder. Contentions have also been made that such appointments cannot be regularised.
7.Before the Writ Court, respondents have relied on a decision of the Hon'ble Supreme Court in State of Karnataka vs. M.L.Kesari, reported in (2010) 9 SCC 247, and contended that the embargo introduced in Umadevi's case , has been clarified, by saying that there could be an exception, if the employees fulfil two conditions, viz., (i)the employee who have put in more than ten years of continuous service, without the benefit or protection of any interim orders of any Court or Tribunal, and (ii)the appointment of such employee should not be illegal, even if irregular.
8.Adverting to the objections of the society, the Writ Court repelled the same as hereunder:-
''11.Accepting the reason given by the learned counsel for the fourth respondent, this Court is of the view that the relief sought for by the petitioners should be disallowed. But, this Court is unable to find any merits in the stand taken by the fourth respondent for the following reasons.
Firstly, the petitioners, namely, Panneer Losini and Karthiyayini were appointed as Office Assistant and Assistant in the respondent Society on 03.10.2003 and 07.06.1999 respectively.
Secondly, resolution No.2, dated 30.05.2009 appointing the petitioner Karthiyayini on daily wage basis at the rate of Rs.100/- per day with effect from 01.01.2010 and another resolution No.6, dated 31.03.2010 appointing the other petitioner M.Panneer Losini on daily wage basis at the rate of Rs.100/- per day with effect from 03.04.2010 clearly show that they were appointed in a sanctioned post in the fourth respondent society.''
9.The Writ Court also proceeded to record a fact that M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13), was in service from 07.06.1999 onwards. By observing that at the time of appointment, both the writ petitioners, had requisite qualification namely, a pass in +2, Diploma in Co-operation course and that they have been working for a long time, as against sanctioned posts, vide common order, made in W.P(MD)Nos.605 and 607 of 2013, dated 18.12.2014, Writ Court directed the appellants, to regularise the services of the writ petitioners, in their respective posts and further directed that the said exercise should be completed, within a period of six weeks from the date of receipt of the copy of the order. Being aggrieved by the said order, present appeals have been filed.
10.Assailing the correctness of the common order made in W.P(MD)Nos.605 and 607 of 2013, dated 18.12.2014, and by inviting rule 149 of the Tamilnadu Co-operative Societies Rules, 1988, Mr.B.Pugalenthi, learned Special Government Pleader, appearing for the appellants, submitted that appointment of the employees in a Co-operative Society, can be made only, as per the said rule, which prescribes a definite procedure to be followed. He also submitted that any appointment made by the society should conform to the special bye-laws of the society, by which, cadre strength is fixed. It is also his contention that any back door entry to the society, is illegal.
11.Learned Special Government Pleader further submitted that the Government have issued G.O.Ms.No.131, Co-operative Food and Consumer Protection Department, dated 04.06.1999, G.O.Ms.No.258, dated 13.08.2008, G.O.Ms.No.189, Co-operative, Food and Consumer Protection Department, dated 17.11.2001, and on the basis of the last G.O., the Registrar of Co-operative Societies, Chennai, has issued instructions, for fixing the cadre strength, based on the financial position of the respective societies.
12.Taking this Court, through the Resolution No.6, dated 31.03.2010 of the society, learned Special Government Pleader, submitted that M.Panneer Losini 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13), had been appointed on 03.04.2010, purely by resorting to outsourcing, on daily wages at Rs.100/- per day.
13.He also submitted that M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13), was appointed in 2009 as a trainee employee, on daily wages at Rs.100/- per day, vide resolution No.2 dated 10.10.2011, passed by the society.
14.Learned Special Government Pleader further submitted that appointment of both the writ petitioners, is not in accordance with rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988 and therefore, they have no right to insist for regularisation of such illegal appointments.
15.Placing reliance on a Hon'ble Full Bench decision of this Court in R.Radhakrishnan vs. The Deputy Registrar of Co-operative Societies, Dindigul Circle, Dindigul, reported in 2007 (5) CTC 369, he further submitted that even the Government have no power to regularise illegal appointments. In sum and substance, he submitted that both on facts and law, when there is no scope for regularisation of illegal or irregular appointments, contrary to the statutory rule 149 of the Tamilnadu Co-operative Societies Rules, 1988 and hence, the Writ Court ought not to have issued directions for regularisation.
16.Per contra, placing reliance on an information, dated 20.11.2012, stated to have been given by the Secretary of the society, Mr.B.Saravanan, learned counsel for M.Panneer Losini, 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13, submitted that she was employed as Assistant, in the said society from 03.10.2003 to March 2010 without any salary and thereafter, vide resolution No.6 of the Special Officer of the 2nd respondent society dated 31.03.2010, she was engaged as an Office Assistant, at the rate of Rs.100/- per day.
17.Placing reliance on the decision of the Hon'ble Supreme Court in State of Karnataka vs. M.L.Kesari, reported in (2010) 9 SCC 247, learned counsel for the 1st respondent in both the appeals/employees, submitted that the embargo introduced in Umadevi's case, has been clarified as stated supra, and therefore, it would be inappropriate, to contend that the 1st respondent in both the appeals, cannot seek for regularisation, despite their length of service. He further submitted that there is no manifest illegality in directing regularisation.
18.Opposing the said letter dated 20.11.2012, purported to have been issued by the Secretary of the society, learned Special Government Pleader submitted that the present document is introduced for the first time, before this Court. It is also his objection that even taking it for granted that there was any such information, under the Right to Information Act, 2005, the 2nd respondent is not the competent authority, to furnish any such information, and under the provisions of the Right to Information Act, 2005, it is the Special Officer of the said society, who is competent to furnish any information. He therefore, prayed that the letter dated 20.11.2012, need not be given any credence.
19.Learned Special Government Pleader further submitted that M.L.Kesari's case, is inapposite to the facts on hand where, clarifications have been issued to Umadevi's case. According to him, Umadevi's case cannot be made applicable to the facts on hand. According to him, facts on hand attract the well considered decision of the Apex Court in A.Umarani vs. Registrar of Co-operative Societies, reported in 2004 (4) LLN 8.
Heard the learned counsel for the parties and perused the materials available on record.
20.Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988, deals with conditions of service of paid officers and servants of societies, and every society shall, taking into account its nature of business, volume of transaction and financial position, adopt with the prior approval of the Registrar, a Special by-law covering the service conditions of its employees. The special by-law shall, inter alia, prescribe the following:-
(i)Cadre strength and classification of various categories of posts and the qualifications required thereof for each such posts.
(ii)The method of recruitment for each such posts.
21.As per sub rule 2 of rule 149, no appointment by direct recruitment to any post shall be made except by calling for a list of eligible candidates from the Employment exchange and also giving due publicity by means of announcement in the notice board of the society and also of the affiliated societies, inviting application from the eligible employees of such socieities. Where the employment exchange issues a non-availability certificate, the society shall invite applications by giving advertisement in more than one daily newspapers in which one should be in regional language having wide circulation throughout the State:-
Provided that the above stipulation shall not apply---
(i)to the appointment made on compassionate grounds;
(ii)for the absorption of surplus employees of other Co-operative Socieities;
(iii)to the posts for which a Recruitment Bureau has been constituted under Section 74 of the Act or in respect of which a common cadre of service has been constituted under Section 75 of the Act.
22.Sub-rule (3) of Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988, reads as under:
"(a) No appointment by direct recruitment to any post shall be made except by calling for from the societies applications from their employees who possess the qualifications for the post and unless the Government have accorded special sanction for recruitment by advertisement in dailies, by also calling for a list of eligible candidates from the Employment Exchange.
(b) Where the Employment Exchange issues a non-availability certificate or the Government have accorded special sanction for recruitment by advertisement in dailies, the society shall invite applications from candidates including those working in other societies by advertisements in one English daily and two Tamil dailies having circulation within the area of operations of the society approved by the Government for the purposes of issue of Government advertisements.
(c) Every appointment by direct recruitment shall be made by holding written examination and interview or by holding only interview as decided by the board and on the basis of the rank given with reference to the marks obtained in the written examination, if any, and the marks awarded in the interview:
Provided that nothing contained in this sub-rule shall apply to any of the posts for the recruitment of which a Recruitment Bureau has been constituted under section 74 or in respect of which common cadre of service has been constituted under section 75;
Provided further that nothing contained in this sub- rule shall apply to appointments of dependents of the employees of any society who died or medically invalidated while in service."
23.Sub-rule (4) of Rule 149 mandates that no person shall be appointed to the service of a society if he has on the date on which he joins the post, attained the age of thirty years and in the case of persons belonging to Scheduled Castes and Scheduled Tribes thirty-five years.
24.The Government have issued G.O.Ms.No.131, Co-operative Food and Consumer Protection Department, dated 04.06.1999, setting out the norms to cadre strength in the societies, and it should be fixed based on the working capital of the respective societies.
25.Though M.Panneer Losini 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13), has contended that she was appointed in the post of Assistant in the society from 07.06.1999, and continued to work till December 2009, without any salary, and thereafter, the society passed resolution No.2 dated 30.05.2009, to the effect that she was engaged on daily wages at Rs.100/- per day, indisputably, she has not filed any document before the Writ Court to substantiate her contention to prove that she was appointed in 1999. At this juncture, this Court deems it fit to extract Paragraph No.13 of the judgment made in Bharat Singh and others Vs. State of Hariyana and others, [1988 (4) SCC 534], wherein, the Hon'ble Supreme Court has explained the difference in pleadings and evidence, between a proceeding under the Code of Civil Procedure and a Writ Petition.
"13.As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
26.Resolution No.2, dated 30.05.2009, by which, M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13), had been engaged on daily wages, is extracted hereunder:-
27.Reading of the same does not indicate that she was engaged as Office Assistant on 07.06.1999. The resolution only states that she was working as a Trainee employee till December 2009 and from 01.01.2010, engaged on daily wage basis. As stated supra, no documentary evidence has been produced by M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13, to substantiate the contention that she was appointed as Office Assistant on 07.06.1999.
28.Yet another aspect, to be considered by this Court, is that no employee would work as Office Assistant without any salary, for 10 years from 1999 until 01.01.2010, when she was engaged on daily wage basis. As rightly pointed out by the learned Special Government Pleader that document dated 20.11.2012 purported to have been issued by the Secretary of the 2nd respondent society under the Right to Information Act, 2005, now introduced for the first time before the appellate Court, without there being any pleadings in the supporting affidavit to the writ petition cannot be accepted, at the appellate stage.
29.Even taking it for granted that some evidence is adduced by M.Karthiyayini, contention of the learned Special Government Pleader that the Secretary of the 2nd respondent society, is not the competent authority, under the Right to Information Act, 2005, and that he is not a Public Information Officer of the said society to issue any such certificate, is not disputed.
30.Perusal of the letter dated 20.11.2012 purported to be an information under the Right to Information Act, 2005, shows that the said information, is stated to have been given, in response to a registered post dated 20.11.2012 sent by Mr.Murugesan Husband of Tmt.M.Karthiyayini.
31.Thus, as rightly contended by the learned Special Government Pleader, there is no concrete material evidence supporting the contention of M.Karthiyayini that she was in continuous engagement from 1999 onwards, as Office Assistant.
32.In the light of the above discussion, we are constrained to hold the decision of the Writ Court to the effect that M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13 was engaged as Office Assistant on 07.06.1999, and continued to work for more than 10 years, is without any basis.
33.Coming to the appointment of M.Panneer Losini 1st respondent in W.A(MD)No.135/15 (Petitioner in W.P(MD)No.605/13), resolution No.6 dated 31.03.2010 of the society reads as follows:-
Reading of the above shows that she has been engaged on 03.04.2010 purely through outsourcing, to meet out the exigencies.
34.Though M.Karthiyayini, 1st respondent in W.A(MD)No.138/15 (Petitioner in W.P(MD)No.607/13) has contended that she was appointed as Assistant in the 2nd respondent society on 07.06.1999, there is absolutely no material document to substantiate the same. Both the appointments are not in accordance with rule 149 of the Tamilnadu Co-operative Societies Rules. Both of them have not been appointed through the employment exchange. Appointments are contrary to the rules. In both the cases, no order of appointment has been produced. Had there been an appointment on 07.06.1999, as contended, the respondents could have produced the same before this Court.
(a)In Ashwani Kumar case ((1997) 2 SCC 1 : 1997 SCC (L&S) 267), the Hon'ble Supreme Court Court in no uncertain terms held that as the appointments had been made illegally and contrary to all recognised recruitment procedures and were highly arbitrary, the same were not binding on the State of Bihar. The Court further went on to hold in the aforesaid case that the initial appointments having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorised and no right would accrue to the incumbent on that score.''
(b)In Suraj Prakash Gupta and others Vs. State of J & K and others [(2000) 7 SCC 371], the Hon'ble Supreme Court opined:
"28.The decisions of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment."
(c)In Ramakrishna Kamat & Ors. Vs. State of Karnataka & Ors. [JT 2003 (2) SC 88], the Hon'ble Supreme Court rejected a similar plea for regularization of services stating :
"We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by zilla parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
(d)In Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan [(2003) 3 SCC 485] the Hon'ble Supreme Court categorically held that there was no scope of regularization unless the appointment was made on a regular basis.
(e)In Haryana Tourism Corporation Ltd. Vs. Fakir Chand and Others [(2003) 8 SCC 248], noticing that the respondents were not recruited through the employment exchange or through any other accepted mode of selection and further noticing that it was also not known whether there was any advertisement calling for applications for these appointments, the prayer for reinstatement of service was rejected.
(f)In Jawaharlal Nehru Technological University Vs. T. Sumalatha (Smt.) and Others [(2003) 10 SCC 405], the Hon'ble Supreme Court rejected a similar contention stating:
"8.The learned counsel therefore contends that there is every justification for absorbing the respondents concerned on regular basis in recognition of their long satisfactory service. The learned counsel further contends that the ad hoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularization. There is nothing on record to show that the employees concerned were appointed after following due procedure for selection. Apparently, they were picked and chosen by the university authorities to cater to the exigencies of work in the Nodal Centre."
(g)In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others [(2004) 2 SCC 130], it is stated:
"We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extra-ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision.''
(h)After considering the statutory provisions, the Hon'ble Supreme Court in A.Umarani vs. Registrar, Co-operative Societies, reported in 2004 (4) LLN 8, at paragraphs 35, 37, 38, 39, 40 and 45, held as follows:-
''35.No appointment, therefore, can be made in deviation of or departure from the procedures laid down in the said statutory rules.
37.The terms and conditions of services are also laid down in the said rules. The 1983 Act was furthermore amended in the year 1995 providing for cadre strength which is directly relatable to the income of the cooperative societies.
38.Provisions of the Act and the Rules framed thereunder reflect the legislative recruitment policy. The said provisions are, thus, mandatory in nature.
39.Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. Vs. Suresh Kumar Verma and Another, (1996) 7 SCC 562).
40.It is equally well-settled that those who come by backdoor should go through that door. (See State of U.P. and Others Vs. U.P. State Law Officers Association & Others, (1994) 2 SCC 204) Regularisation furthermore cannot give permanence to an employee whose services are ad-hoc in nature.
45.No regularisation is, thus, permissible in exercise of the statutory power conferred under article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.''
(i)The Hon'ble Supreme Court in State of Karnataka vs. Umadevi, reported in (2006) 4 SCC 1 = 2006 II LLJ 722 SC, held that persons appointed in violation of Article 14 and 16 are class by themselves, such appointees, though appointed de hors the statutory rule, their services cannot be regularised. In the said case of Uma Devi (supra), the Hon'ble Supreme Court further cautioned the High Courts and made the following observations :-
"4. ............ Whether the wide powers under Article 226 of the Constitution are 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 recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection of 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 emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution 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.
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.
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. ........ Once this right of the Government is recognised 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 the 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.
(j)In R.Rathakrishnan vs. The Deputy Registrar of Co-operative societies, reported in 2007 (5) CTC 369, a Full Bench of this Court held as follows:-
''19. In view of the authoritative pronouncement of the Supreme Court, we hold as follows :-
i) The State Government cannot exercise its jurisdiction under Article 162 of the Constitution of India or under any Act to direct regularisation of service of any employee, including employees of a co-operative society, if the appointments have been made in contravention of the statutory rule or constitutional mandate.
ii) Article 226 of the Constitution of India cannot be used for the purpose of giving interim relief as the only and final relief, without determination of the main issue.
(k)In Punjab Water Supply & Sewerage Board vs Ranjodh Singh, reported in (2007) 2 LLJ 1052 SC, the Hon'ble Supreme Court, while distinguishing irregular and illegal appointments, and taking note of the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka vs Uma Devi reported in (2006) 4 SCC 1, held that departmental instruction cannot prevail over statutory rule and constitutional provisions. ''Any appointment, thus, made without following the procedure will be ultra vires.'' (Emphasis added).
35.As rightly contended by the learned Special Government Pleader, reference to the decision in State of Karnataka vs. M.L.Kesari, reported in (2010) 9 SCC 247, is inapposite to the facts on hand. M.L.Kesari's case though submitted to be a clarification to the embargo in Umadevi's case, the same cannot be applied even to the facts on hand, more particularly, when there are no material documents to prove the contention of the respondents that they were appointed on 07.06.1999.
36.In the light of the above discussion and decisions, we are of the considered view that the appointments of both the 1st respondent/writ petitioners, are not in accordance with statutory rules. There is no proof of their appointment in 1999. There is no proof of continuous engagement from 1999. Decisions relied on by the appellants squarely apply to the facts of the case. Appellants have made out a strong case for interference with the impugned order. Accordingly, the impugned common order made in W.P(MD)Nos.605 and 607 of 2013 dated 18.12.2014 is set aside. Consequently, the writ appeals are allowed and W.P(MD)Nos.605 and 607 of 2013 are dismissed. No costs. Consequently, M.P(MD)Nos.1, 1 and 2 of 2015 are closed.
To
1)The Registrar of Co-operative Societies, No.170, EVR Periyar Road, Kilpauk, Chennai-10.
2)The Joint Registrar of Co-operative Societies, Block-2, Near District Employment Office, Theni, Theni District.
3)The Deputy Registrar of Co-operative Societies, Land Development Bank Upstairs, Uthamapalayam Taluk, Theni District..