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vs. Union of India & Ors.11 and Union of India & Anr. vs. V. N. Bhat12.

9] Learned counsel for respondents-employees submitted that their initial appointments were not on work charge basis, ad-hoc basis, daily wage basis, but rather, they were on temporary basis against clear permanent, substantive and sanctioned vacancies. They point out that the names of the respondents-employees had been sponsored by employment exchange and the selection process was itself fair, transparent and above board. They point out that such appointments were made by the State Government, as it was in dire need of such services and there were, at the relevant time, difficulties in involving the Maharashtra Public Service Commission (MPSC). The GR dated 1 December 1994, upon which reliance has been placed by Mr. Kumbhakoni itself makes reference to the circumstances in which such appointments were made on temporary basis and the resultant discrimination practised against the respondents-employees. The GR 10 (2006) 6 SCC 57 11 (1999) 2 SCC 119 12 (2003) 8 SCC 714 12 of 50 skc 13 JUDGMENT-WP-9051-13-GROUP dated 1 December 1994, ultimately records the decision of the State Government to treat the services of such respondents-employees "as regularised" w.e.f. 1 December 1994 . Relying upon the expression used in GR dated 1 December 1994, learned counsel for the respondents-employees contend that the State Government had not committed any mistake or illegality in counting the services before 1 December 1994 for the purposes of grant of benefit under TBPS and ACPS to several of its employees.

(C) The names of the respondent - employees were sponsored by respective employment exchanges or other authorised agencies;

(D) The selection process was fair, transparent and above board;

(E) The respondent - employees fulfilled the qualifications prescribed in the recruitment rules as applicable;

(F) From the date of initial appointments, the respondent -

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      skc                                        46         JUDGMENT-WP-9051-13-GROUP

     47]      In terms of the decisions of the Hon'ble Supreme Court in

State of M.P. and Ors. Vs. Lalit Kumar Verma 17, and Secretary, State of Karnataka vs. Umadevi (3) 18, there is no scope for regarding the service rendered by the respondent - employees prior to 1 December 1994 as illegal. This is precisely the reason which prompted the State Government to regularise such services vide GR dated 1 December 1994. As noted earlier, the services of the respondent - employees right from the dates of their initial appointments has been taken into consideration for several service benefits ig like regular pay scale, increment, pension etc. The very engagement of the respondent - employees was not on daily wage basis or work charged basis or purely on ad hoc basis de hors the recruitment rules. In fact, the appointments, though temporary, were against clear, permanent, substantive and sanctioned vacancies. The names of such employees were sponsored by employment exchanges or other recognised recruitment agencies. The selection process was also fair, transparent and above board. The GR dated 1 December 1994 inter alia sets out the circumstances in which such appointments came to be made and records that denial of regularisation might result in discrimination. The State Government has taken full benefit of such appointments and further, even directed that the services of such employees should be treated as regularised. The State Government failed to involve the MPSC at the stage of making initial appointments. There is not even any allegation that the respondent - employees were in any manner responsible for this situation. The State Government, 17 (2007) 1 SCC (L& S) 405 18 (2006) 4 SCC 1 46 of 50 skc 47 JUDGMENT-WP-9051-13-GROUP in such a situation, cannot be permitted to take advantage of its own failure to follow the procedural requirements. In these peculiar facts and circumstances, the maxim nullus commodum capere potest de injuria sua propria, meaning 'no man can take advantage of his own wrong', squarely applies. In Broom's Legal Maxim (10th Edn.) at p.191, it is stated:

".... it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure19"

48] In Pratap Kishore Panda vs. Agni Charan Das20, the issue arose as to whether the grant of benefit of regularisation to employees who were recruited without involving Orissa Public Service Commission (OPSC) was legal and valid, considering in particular, the decision of the Constitution Bench in Secretary, State of Karnataka vs. Umadevi21, the Hon'ble Supreme Court after adverting to the fact situation ruled that such regularisation from the date of initial appointment was legal and valid, particularly since the recruitment made was neither capricious nor arbitrary, even though, the OPSC was not involved in the recruitment process. The Hon'ble Supreme Court observed that this was not a case of ad hoc employees being selected in a whimsical, inconsistent or haphazard manner or in order to favour some individuals. The incumbents were sponsored by employment exchange and over 400 candidates were found suitable by duly constituted selection committee which interviewed them. It 19 M/s. Mideast Integrated Steel Limited and anr. Vs. State of Odisha - W.P.(C) No. 17403 of 2012 decided on 16-12-2015, by Division Bench comprising Hon'ble Chief Justice Mr. D.H. Waghela and the Hon'ble Mr. Justice Biswanath Rath 20 2016 (2) ALL MR 461 (S.C.) 21 (2006) 4 SCC 1 47 of 50 skc 48 JUDGMENT-WP-9051-13-GROUP was not a relaxation of the rules in order to favour a few, but was the consequence of following an alternate method of selection intended to remedy a malady in the recruitment of SC/ST candidates. The sponsorship of employment exchange and subsequent interview by a duly constituted selection committee was itself a valid alternate for recruitment by way of OPSC competitive examination. For this purpose, the Hon'ble Supreme Court also made reference to the provisions contained in Article 320(4) of the Constitution of India and Section 9 (4) of O.R.V. Act. In this batch of petitions also, we are concerned with the appointment of respondents employees appointed to permanent, clear, substantive and sanctioned vacancies, though on temporary basis consequent upon sponsorship of their names by employment exchange and in pursuance of selection process which was fair, transparent and above board. Such respondent - employees, right from the date of their initial appointment have been extended benefits of regular pay scale, increments, leave, transfer, GPF etc. The services of such respondent - employees from the date of their initial appointment has been taken into consideration for practically all purposes, including pensionary benefits (except perhaps seniority).