Judgment N. Kumar, J. In all these writ petitions, the petitioners have challenged the order passed by the Karnataka Administrative Tribunal dated 25.5.2009 striking down The Karnataka Civil Services (Absorption of persons appointed on contract basis against backlog vacancies in the category of Assistant Engineers and Junior Engineers) in the Departments of the Public Works Engineering, Water Resources and Rural Development and Panchayath Raj (Special Rules) 2005 as being contrary to the provisions of Articles 14 and 16 of the Constitution of India and several decisions of the Supreme Court and consequently declaring that all appointments under the said rules are illegal, null and void. The writ petitions are preferred both by the State as well as by the persons whose employment under the said Rules were struck down. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original applications. FACTUAL MATRIX 3. The Government of Karnataka, on 4.7.1977, revised the policy of reservation in appointments and posts in the State Civil Services and determined 15% in favour of the Scheduled Castes and 3% in favour of the Scheduled Tribes. The Government on 17.10.1983 constituted a High Level Committee for observing the proper implementation of the Government Order relating to reservation of vacancies for SC/STs. It was found that the representation of persons belonging to SC/STs in certain posts of Assistant Engineers, Junior Engineers is lower than the prescribed percentage of reservation. When the quota reserved for Scheduled Castes and Scheduled Tribes were not fully utilized, the Government by order dated 25.9.1984 directed that the percentage of reservation in direct recruitment in all the cadres in which representation of Scheduled Castes and Scheduled Tribes was less than 15% and 3% should be enhanced to 20% and 5% respectively, till their representation in each cadre reach 15% and 3%. For this purpose, a separate roster was also prescribed. When a further review was made to ascertain the actual percentage of employees belonging to Scheduled Castes and Scheduled Tribes in the State Civil Services as on 1.1.1988, it disclosed that over all percentage of employees belonging to Scheduled Castes and Scheduled Tribes in the State Civil Service was 14.27% and 2.4% respectively. When a further review was made to ascertain the actual percentage of employees belonging to Scheduled Castes and Scheduled Tribes in the State Civil Services as on 1.1.1988, it disclosed that over all percentage of employees belonging to Scheduled Castes and Scheduled Tribes in the State Civil Service was 14.27% and 2.4% respectively. Therefore, the Government considered it necessary to take further steps to give greater philip to the process of utilisation of quota for reservation meant for them with the goal of reaching the extent of utilisation to 15% and 3% respectively. Accordingly, an order came to be made on 12.7.1989 whereunder, the vacancies respectively classified for Scheduled Castes and Scheduled Tribes, but not filled up by appointment from each of such categories due to non-availability of candidates belonging to said community in all the direct recruitments made on or after 1st January 1986 so far, shall be categorised as backlog vacancies and one attempt shall be made for recruiting suitable candidates belonging only to Scheduled Castes and Scheduled Tribes through the appropriate recruiting agencies. On 12.7.1989 the Government issued an order with a direction to identity those vacancies which were to be filled up by eligible SC/STs and which were filled up by SC/STs by direct recruitment till 1.1.1984. 4. In the above background, the Government considered it necessary to have Special Rules framed for the purpose of complete implementation of the identified reserved vacancies earmarked for SC/STs. Accordingly, the Government framed The Karnataka Civil Services (unfilled vacancies reserved for the persons belonging to SC/STs) (Special Recruitment) Rules, 2001 (for short hereinafter referred to as "Backlog Rules"). In fact a draft of the aforesaid Rules was notified on 6.8.2001 calling for objections. After considering the objections, a final notification came to be issued on 21.11.2001. In pursuance of the aforesaid notification, KPSC issued notification dated 20.2.2002 and 19.3.2002 calling for applications to fill up 208 posts of Assistant Engineers from the members of SC/STs in PWD and Irrigation Department. Subsequently, the Chief Engineer issued the notification dated 31.1.2002 and 28.1.2002 calling for applications to fill up 166 posts of Junior Engineers in both PWD as well as Irrigation Department. In pursuance of the said notification, number of persons applied including some of the applicants before the Tribunal in these proceedings. 5. Subsequently, the Chief Engineer issued the notification dated 31.1.2002 and 28.1.2002 calling for applications to fill up 166 posts of Junior Engineers in both PWD as well as Irrigation Department. In pursuance of the said notification, number of persons applied including some of the applicants before the Tribunal in these proceedings. 5. The Cabinet Sub-Committee on Reservation in its meeting held on 11th September 2002, to give effect to its recommendations made in the meeting held on 10th July 2002 and the decision of the Cabinet in the Cabinet meeting held on 03.08.2002 in Subject No.C-338/02 resolved to withdraw vacancies of Assistant Engineers released to the Karnataka Public Service Commission by the Public Works Department and the Water Resources Department for recruitment in accordance with the Backlog Rules. Further, they also resolved to withdraw the notification dated 31.1.2002 issued by the Public Works Department to make recruitment to fill up the unfilled vacancies of Junior Engineers in the Public Works Department in accordance with the aforesaid rules. Thereafter they resolved to fill up the unfilled vacancies of Assistant Engineers and Junior Engineers in the Department of Public Works and Water Resources, on contract basis, on the lines similar to those adopted in respect of appointment of Doctors on contract basis in the Department of Health and Family Welfare Department. For the said purpose, the unfilled vacancies, both in the Public Works and Water Resources Department were clubbed together, category wise. The Public Works Department was entrusted with the task of filling up the unfilled vacancies as defined in the Backlog Rules on contract basis, based on age-cum-merit. Necessary guidelines/norms were issued in this regard. 6. In pursuance of the aforesaid recommendations made by the Cabinet Sub-Committee, a Government Order came to be passed on 12.12.2002. In the preamble to the said Government Order it is stated that the State Government has decided to expedite the policy framed by the State Government to give proper representation to the persons belonging to the Scheduled Castes and Scheduled Tribes in the Government employment. There is deficiency in the representation of persons belonging to Scheduled Castes and Scheduled Tribes while making general recruitment and appointment of Engineers on contract basis. There is deficiency in the representation of persons belonging to Scheduled Castes and Scheduled Tribes while making general recruitment and appointment of Engineers on contract basis. Since there is no proper representation of the persons belonging to Scheduled Castes and Scheduled Tribes in the cadre of Assistant Engineers and Junior Engineers in the Public Works Department, the Government has decided to fill up the backlog posts so as to make good the shortfall. The post of Assistant Engineers and Junior Engineers which are the primary post, play a dominant role to implement the works taken up by the Government effectively. As on 01.11.2002 there were 1179 posts in the Assistant Engineers cadre and 1133 posts in the cadre of Junior Engineers in PWD. It has become very difficult to discharge the day-to-day function of the PWD and it has adversely affected the execution of various projects. In terms of the provisions made as per the notification dated 21.11.2001, there are 411 backlog posts in the cadre of Assistant Engineers and 193 backlog posts in the cadre of Junior Engineers in the Public Works Department. Accordingly the Government has decided to fill up the above backlog posts on contract basis by filling up 90% of the post by appointment of Civil Engineers and 10% of the post by appointment of Mechanical Engineers on the basis of need. This has been treated as a special case, as one time measure. For the purpose of recruitment, the Deputy Commissioners of different districts have been nominated as recruiting authorities. The Deputy Commissioner is required to take suitable action to fill up backlog posts in their respective districts. The said Government Order made it clear that this recruitment shall be on contract basis for a period of 12 months on a consolidated pay of Rs.6,000-00 to the Assistant Engineers and Rs.4575-00 per month to the Junior Engineers. It prescribed educational qualification for both the category of posts as well as age. Clause (6) of the order provided that minimum age shall be 18 years and maximum age 40 years as on 22.11.2001.Clause (7) provided that the recruiting authority shall classify the candidates on the basis of their age in the age group of 35-40, 29-34 and 18-28 and the select list may be prepared on the basis of merit. Clause (6) of the order provided that minimum age shall be 18 years and maximum age 40 years as on 22.11.2001.Clause (7) provided that the recruiting authority shall classify the candidates on the basis of their age in the age group of 35-40, 29-34 and 18-28 and the select list may be prepared on the basis of merit. At the first instance the candidates from the age group 35-40 shall be selected on the basis of the percentage of marks secured by them. In the event of candidates not being available in the said age group, the candidates from the age group of 29-34 shall be considered for selection on the basis of merit. By following the same procedure, candidates belonging to age group of 18-28 shall also be considered on the basis of the respective merit subject to the availability of vacant posts. 7. Annexure-A2 to the aforesaid Government Order prescribed the Conditions and Regulations for the appointment of the Assistant Engineers and Junior Engineers on contract basis. The relevant conditions are as under:- Condition (1) reads as under "The selection on contract basis is for a period of one year. This selection on contract basis is purely temporary and the same may be cancelled or terminated at any time without issuing any notice" Condition (7) reads as under: “The persons who are appointed on contract basis to the cadre of Assistant Engineers/Junior Engineers are not entitled for permanent appointment, absorption in service, retirement benefits, yearly increments”. Condition (8) reads as under: "The persons who are appointed on contract basis to the cadre of Assistant Engineers/Junior Engineers are required to give consent and execute indemnity bond mentioning the aforesaid condition on Rs.50-00 stamp paper to the Chief Engineer." 8. In pursuance of this Government Order, the Deputy Commissioner of different districts issued notifications calling for applications from eligible candidates belonging to Scheduled Castes and Scheduled Tribes only, on 18.12.2002. 9. The said Government Order and the notifications issued were challenged by some of the applicants before the Karnataka Administrative Tribunal in Application No. 15422-431/02 on the ground that the recruitment to the said posts ought to have been made according to the Backlog Rules and also on the ground that classification of candidates into three age groups giving preference to the persons who are elders to the total exclusion of youngsters is bad. The Tribunal granted interim stay of the order as well as the notification. The State filed an application for vacating the interim order of stay. After hearing the parties, the Tribunal, with a view to avoid endless delay in appointment of Scheduled Castes and Scheduled Tribe candidates in respect of backlog vacancies, made certain suggestions to the State to which even the applicants did not have any objection. The suggestion made by the Tribunal related to working out common merit lists for all the applicants who have applied for selection pursuant to the notifications issued in various districts and thereafter the selected candidates to be distributed by the Government in accordance with the need in the various districts of the State. The second suggestion was that the selection as per Backlog Rules may be simultaneously initiated, so that the regular recruitment is completed expeditiously. The third suggestion was that when the recruitment under the Backlog Rules is notified, the State may make provisions for relaxation of age of candidates who are selected as contract Engineers under the impugned Government Order and notification to the extent of age of the candidates exceeding the maximum age fixed for recruitment under the Backlog Rules, in the event of contract Engineers being selected by virtue of the said notification seeking regular recruitment. 10. The learned Advocate General who took time to secure response of the State submitted that the State is willing to accept all the three suggestions made by the Tribunal with a view to expedite recruitment of candidates under the Backlog Rules. In fact, before the learned Advocate General gave consent, the suggestion made by the Tribunal was discussed in the meeting of the Cabinet Sub-Committee held on 16.01.2003 and on 21.01.2003. They resolved to resort to contract appointment with three slab age groups and simultaneously initiate the process of recruitment as per the Backlog Rules. The learned Advocate General was instructed to inform the Tribunal the stand of the Government and enable the State to fill up the vacancies expeditiously. 11. In the light of the aforesaid consensus reached, the applications were disposed of with a direction that the above suggestions be acted upon in relation to contract recruitment. The contract appointment notified in pursuance of the notification was modified to the extent indicated in the order. 11. In the light of the aforesaid consensus reached, the applications were disposed of with a direction that the above suggestions be acted upon in relation to contract recruitment. The contract appointment notified in pursuance of the notification was modified to the extent indicated in the order. It was made clear that the said order shall not be regarded as a precedent applicable to any other recruitment. All other contentions raised in the applications were left open for being urged at any future point of time in the event of need. This order of the Tribunal came to be made on 05.03.2003. In pursuance of the aforesaid order passed by the Tribunal, the Government issued an order dated 05.04.2003 and decided to fill up backlog vacancies of 411 posts in the cadre of Assistant Engineers and 195 posts in the cadre of Junior Engineers. The Chief Engineer was directed to take immediate steps to get it published in the Gazette and popular daily news papers in respect of recruitment of backlog vacancies. The Chief Engineer was nominated as appointing authority instead of Deputy Commissioner. All other conditions and Regulations as stipulated in the earlier order dated 12.12.2002 remained intact. 12. In pursuance of the Government Order dated 05.04.2003, the Chief Engineer issued notification dated 10.04.2003 for appointment of backlog posts to be filled up in the cadre of Assistant Engineers and Junior Engineers in Public Works Department and Water Resources Department among Scheduled Castes and Scheduled Tribes on contract basis. The age limit prescribed was to be determined as on 22.11.2001, when the Backlog Rules came into effect. It is relevant to mention herein at this stage that the order passed by the Tribunal dated 05.03.2003 in terms of its suggestion as accepted by the State was under challenge before this Court in W.P.No.24601-24603/03 and other connected matters by the applicants. Before the High Court it was contended by the applicants that they did not give any consent for contract appointments. It is their case that they had insisted that there should be only regular recruitment as per Special Recruitment Rules, i.e., Backlog Rules and that there was no need to resort to any contract employment as stop gap arrangement. Before the High Court it was contended by the applicants that they did not give any consent for contract appointments. It is their case that they had insisted that there should be only regular recruitment as per Special Recruitment Rules, i.e., Backlog Rules and that there was no need to resort to any contract employment as stop gap arrangement. Even if any contract recruitment is to be made pending regular appointment, then the contract recruitment should also be done in the manner provided under Rule 6 of the Backlog Rules, prepare a list of candidates falling between age group of 29-40 years and a supplementary list of candidates aged between 18-28 years to be used if sufficient number of candidates were not available in the age group of 29-40 years in the order of merit. The notification issued prescribing three age groups violates Rule 6 of the Backlog Rules. 13. When the Writ Petition came up for hearing, the Counsel for the applicants submitted that the applicants had no objection for contract recruitment and implementation of the three suggestions of the Tribunal, provided the list of candidates for contract employment was also prepared in the manner laid down in Rule 6. Their grievance was that the contract recruitment cannot be made with the intention of defeating the Backlog Rules. Even the contract recruitment should be by preparing only two age groups of 29-40 years and 18-28 years as per Rule 6 and not by preparing three age groups 35-40, 29-34 and 18-28 years, as stated in the Government order dated 12.12.2002 and 05.04.2003. 14. This Court was of the view in the aforesaid writ petitions that a reading of the order of the Tribunal in entirety would show that contract appointment notification had to be modified in order to bring it in consonance with the Special Recruitment Rules, i.e., Backlog Rules. Otherwise, there was no need for the Tribunal to refer to the Backlog Rules when referring to the contract recruitment in paragraph 8 of the order. The order of the Tribunal meant that while contract recruitment can be made pending regular recruitment under Backlog Rules, preparation of merit/selection lists will necessarily have to be in accordance with the Backlog Rules, i.e., Rule 6. The order of the Tribunal meant that while contract recruitment can be made pending regular recruitment under Backlog Rules, preparation of merit/selection lists will necessarily have to be in accordance with the Backlog Rules, i.e., Rule 6. When the Tribunal has stated that contract recruitment should be as per the Government Order dated 12.12.2002 as well as the Backlog Rules, the provisions of Rule 6 cannot obviously be ignored while making contract recruitment. 15. Dealing with the grievance voiced by the petitioners in W.P.Nos.30498 & 30772/2003 that recruitment under the Backlog Rules may be delayed and therefore they may not be entitled to apply at all having regard to the fact that they are in Government employment in some other capacity, it is sufficient to notice that second suggestion of the Tribunal that recruitment under the Backlog Rules should be initiated simultaneously, has been accepted by the State Government. Therefore, they did not find any justification to interfere with the order of the Tribunal except to clarify the true effect of the order of the Tribunal as under: - "The State Government can proceed with the filling up of the backlog vacancy posts on contract basis, purely as a stop-gap arrangement as stated in the Government Order dated 12.12.2002 and the subsequent Government Order dated 5.4.2003 to meet the urgent needs of the Department pending regular recruitment, making it clear that preparation of statewise list should be in accordance with Rule 6 of the Special Recruitment Rules i.e., first list of candidate in the age group of 29 to 40 years and second contingency list of candidates in the age group of 18 to 29 years (instead of three lists relating to the age groups 35-40, 29-34 and 18-28). Respondents are directed to re-issue or issue appropriate corrigendum to the G.O. dated 5.4.2003 and the consequent notification dated 10.4.2003. In view of the modification, it necessarily follows that time for application will have to be suitably extended." 16. The said order of the High Court was passed on 17.7.2003. 17. Respondents are directed to re-issue or issue appropriate corrigendum to the G.O. dated 5.4.2003 and the consequent notification dated 10.4.2003. In view of the modification, it necessarily follows that time for application will have to be suitably extended." 16. The said order of the High Court was passed on 17.7.2003. 17. The State preferred Review Petition Nos.540-545/2003 contending that since the order of the Tribunal was based on consent, the applicants could not have challenged the order of the Tribunal, the number of posts that were to be filled up on contract basis was only a small percentage of total existing backlog vacancies, there is no requirement in law that the mode of recruitment for contract appointment should be the same as the mode prescribed under the Rules for regular appointment. The applicants in the original proceedings submitted in the said review petition that, if they are also appointed on contract basis, they will not have any objections in regard to the selection of Contract Engineers made in pursuance of the Government Order dated 12.12.2002 categorising the candidates into 3 age groups that is 35 to 40 years, 29 to 34 years and 18 to 28 years. The State has no objection for appointing them. A memo dated 18.8.2003 came to be filed agreeing to include 22 out of 38 applicants who had approached the Tribunal and whose names have not been included in the list dated 25.7.2003. Further it was stated that, if there are other candidates who have approached the Tribunal for similar relief on or before 25.7.2003, their names shall also be included in the list of appointees on contract basis. They also included the 5 petitioners in W.P. Nos.36927-931/2003. It was made clear that the aforesaid appointment shall be subject to the condition that the candidates possessed requisite qualification. Accordingly, the Review Petitions came to be disposed of making it clear that the order of the Tribunal dated 5.3.2002 was not disturbed and the clarification made by the High Court to the effect that the preparation of selection list of Contract Engineers should be in accordance with Rule 6 of the Special Recruitment Rules was deleted. Again it was made clear that the said order shall not be treated as a precedent. Again it was made clear that the said order shall not be treated as a precedent. In fact, another batch of applicants had filed Applications before the Tribunal in Application Nos.6170 to 6203/2003 challenging the Government Order dated 5.4.2003 and the notification issued in pursuance of the same dated 10.4.2003. The said Applications were disposed of in terms of the order passed by the Tribunal earlier as aforesaid. Challenging the said order passed, applicants preferred W.P.Nos.37663-37696/2003. The said Writ Petitions were also dismissed on identical grounds. However, the order of this Court at para 13 is relevant. Therefore, it is extracted hereunder:- "13. The petitioners next expressed an apprehension that the contract appointments are likely to be continued thereby delaying the regular appointments under the Special Recruitment Rules or deny them the benefit of appointment under the Special Recruitment Rules. The Tribunal in its Order dated 9.3.2002 had specifically recorded the consent of the learned Advocate General to the suggestion that the process of recruitment under the Special Recruitment Rules 2001 will be commenced and completed expeditiously. That was recorded by the Tribunal. In fact when the Review Petitions were considered, the learned Advocate General reiterated that the process of regular appointments under the Special Recruitment Rules will be commenced shortly. Therefore, the apprehension of the petitioners is without basis. If the State Government fails to initiate steps for regular recruitment, in accordance with the Special Recruitment Rules, and attempts to perpetuate the contract appointments, it is open to the petitioners at that stage, to seek appropriate relief." 18. Aggrieved by the said order, the applicants approached the Supreme Court of India in Special Leave Petition (C) No.55254/2003. The Special Leave Petition came to be dismissed without being admitted. Thus, the said order attained finality. Thereafter, on 25.8.2003 the applicants who were eligible to be appointed were appointed as Contract Engineers. Though order of appointments were issued to fill up the aforesaid vacancies, when some of them did not report to duty to fill up those posts, one more appointment order came to be issued on 1.9.2003 to fill up those unfilled vacancies. Many of the applicants who were not successful in securing the employment and some of them who had not applied in pursuance of the notification filed applications before the Karnataka Administrative Tribunal in Application Nos. Many of the applicants who were not successful in securing the employment and some of them who had not applied in pursuance of the notification filed applications before the Karnataka Administrative Tribunal in Application Nos. 6257-6274/2003, 8298 to 8300, 8302 to 04/2003 and connected cases seeking a direction to the State to initiate recruitment proceedings under the Backlog Rules and in the alternative to recruit them also as Contract Engineers. 19. At this juncture, it is relevant to mention that though the notifications were issued for only 411 posts of Assistant Engineers and 195 Junior Engineers, in fact they filled up 462 Assistant Engineers and 243 Junior Engineer posts as they had to accommodate the applicants who had said no objection, subject to they being appointed. However, even after appointing 462 Assistant Engineers and 243 Junior Engineers, the Department identified that still there were 384 backlog vacancies in the cadre of Assistant Engineers and 258 backlog vacancies in the cadre of Junior Engineers. When attempts were made to fill up those vacancies, in the aforesaid application, the applicants sought an order of stay for filling up those vacancies and an interim order of stay was passed which order was continued from time to time. Therefore, the total backlog vacancies in all would come to 846 in Assistant Engineers cadre and 501 in Junior Engineers cadre. In other words, after filling up of 462 posts of Assistant Engineers, the backlog remains to be filled up is 384 posts and out of 501 Junior Engineer posts, after 243 posts were filled up, the balance to be filled is 258 posts. Though the order of stay was granted on 22.1.2004 presumably after 10.30 AM, the Government came up with a version that before the stay order, on the very same day they have filled up all these posts and thus, rendering the interim order of stay infructuous. In the meanwhile, as 12 months period of Contract Engineers was coming to an end, as there was an apprehension that it is going to be renewed in the pending cases sought for an interim order not to renew the contract employment after the expiry of 12 months period. In the meanwhile, as 12 months period of Contract Engineers was coming to an end, as there was an apprehension that it is going to be renewed in the pending cases sought for an interim order not to renew the contract employment after the expiry of 12 months period. By an order dated 24.2.2005 the Tribunal passed an interim order directing the State not to renew the contract appointment if the tenure of the contract appointees were to come to an end or expired by 28.2.2005 till 4.3.2005. The contract engineers whose tenure was coming to an end got themselves impleaded in the said proceedings and sought for vacating the said interim order. The Tribunal by an order dated 28.2.2005 passed an order keeping the order dated 24.2.2005 in abeyance till 8.4.2005. Therefore, the contract employment was renewed from 29.3.20O5 to 8.4.2005. 20. During the pendency of these proceedings, on 7.4.2005 the Cabinet approved the draft of the Karnataka Civil Services (Absorption of Persons Appointed on Contract Basis Against Backlog Vacancies in the Category of Assistant Engineers and Junior Engineers in the Departments of Public Works Engineering, Water Resources and Rural Development and Panchayath Raj) (Special) Rules, 2005, [for short hereinafter referred to as the "Absorption Rules"]subject to approval of the Karnataka Administrative Tribunal. However, it is not in dispute between the parties that the said Rules were never placed before the Tribunal for its approval. The said draft Rules came to be published in the Karnataka Gazette on 12.4.2005 calling for objections or suggestions likely to be affected by the said Rules. All the applicants have filed their objections to these draft Rules. It is relevant to point out that the note prepared by the Law Department explicitly made it clear that the persons who are working on contract basis cannot be absorbed to fill the backlog vacancies as it would run counter to the undertaking given by the Government in W.P. Nos.15422-432/2002 and W.P.Nos.24601-24603/2003 and 37633-37696/2003. They opined that it is better to request the Advocate General to inform the Tribunal about the cabinet decision to absorb these employees. Accordingly, the cabinet instructed the Advocate General to inform the Tribunal. In the meanwhile as the term of these contract engineers were expiring on 8.4.2005, their services were extended by another 6 months which is also subject to the approval of the Tribunal. Accordingly, the cabinet instructed the Advocate General to inform the Tribunal. In the meanwhile as the term of these contract engineers were expiring on 8.4.2005, their services were extended by another 6 months which is also subject to the approval of the Tribunal. However, the said Rules were notified on 24.5.2005 over-ruling all the objections. The said Absorption Rules contain a schedule giving the names of all persons who are appointed on contract basis as having been absorbed into service as Assistant Engineers and Junior Engineers which includes the persons who are appointed as Contract Engineers by the Government Order dated 5.4.2003 and 20.1.2004. The Absorption Rules and the absorption of Contract Engineers was challenged before the Tribunal by filing applications. 21. The Tribunal, after hearing all the parties, held that the Absorption Rules are de hors the Rules and the Constitutional Scheme of Public Employment and violative of the Equality Clause as enshrined in Articles 14 and 16 of the Constitution of India. The Absorption Rules are contrary to the earlier decisions of the Tribunal, the High Court and the Supreme Court and the Absorption Rules have the effect of nullifying the said decisions. The State Government has acted in an arbitrary manner in absorbing the services of the Contract Engineers. The State Government has acted in a partisan manner to favour the Contract Engineers at the cost of the applicants and other eligible candidates. The law laid down by the Apex Court in Umadevi's case is a general law and the absorption of Contract Engineers in the present case is hit by the said general law. The State Government was estopped from absorbing the services of the Contract Engineers in view of the undertaking given by it before the Tribunal and the High Court that it would simultaneously resort to regular recruitment under the Backlog Rules. The action of the State Government in resorting to absorption of Contract Engineers instead of adhering to the regular recruitment under the Backlog Rules is not justified. The State Government has taken the Tribunal and the High Court for granted not only for continuing the services of the Contract Engineers beyond one year, but also for appointing many more candidates during the pendency of the proceedings before the Tribunal and the High Court and ultimately absorbing the services of the Contract Engineers. The State Government has taken the Tribunal and the High Court for granted not only for continuing the services of the Contract Engineers beyond one year, but also for appointing many more candidates during the pendency of the proceedings before the Tribunal and the High Court and ultimately absorbing the services of the Contract Engineers. Even though the Cabinet took a decision to continue the services of the Contract Engineers subject to the approval by the Tribunal, approval was not obtained from the Tribunal. The State Government did not bring the decisions of the Cabinet to the notice of the Tribunal not only in the earlier proceedings, but also in the present proceedings. This is a serious lapse on the part of the Government. Therefore, they struck down the Absorption Rules as being ultra vires the provisions of the Constitution and the decisions of the Supreme Court. After declaring that the Absorption Rules are illegal, null and void, in view of the undertaking given by the Government before the Tribunal and the High Court in the earlier proceedings that the Government would simultaneously resort to regular recruitment under the Backlog Rules and also the directions of the Tribunal to simultaneously make direct recruitment, a direction was given to respondents to fill up the backlog vacancies of Junior Engineers and Assistant Engineers in the PWD and other Departments in accordance with the Backlog Rules and two months time was fixed for compliance of the order. Consequently, the applications filed by the applicants who had prayed for a mandamus to the State Government to fill up the backlog vacancies strictly in accordance with the Backlog Rules and to consider their candidature for appointment to the posts of Assistant Engineers and Junior Engineers on contract basis was not granted on the ground that it does not arise for consideration. It is against the said order, the present Writ Petitions are filed both by the State Government as well as by the Engineers who were absorbed under the Absorption Rules, whose appointment stands set aside. RIVAL CONTENTIONS 22. Sri Ashok Haranahalli, learned Senior Counsel appearing for the State submitted the following points for consideration - 23. It is against the said order, the present Writ Petitions are filed both by the State Government as well as by the Engineers who were absorbed under the Absorption Rules, whose appointment stands set aside. RIVAL CONTENTIONS 22. Sri Ashok Haranahalli, learned Senior Counsel appearing for the State submitted the following points for consideration - 23. Firstly, he submitted that, it is well settled that, statute can be invalidated or held unconstitutional on limited grounds namely on the ground of the incompetence of the Legislature which enacts it and on the ground it breaches or violates any of the fundamental rights or other constitutional rights and on no other grounds. The competency of the State Legislature to pass these Rules is beyond question as Section 3(1) read with Section 8 of the Act empowers the State Legislature to pass the said Rules. These Rules are passed with reference to the mandate of Article 16 of the Constitution of India. Therefore, the argument that it is unconstitutional is without any substance. 24. Secondly, he contended that the absorption is one of the mode of recruitment which the Legislature has devised by virtue of the power conferred by Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978 and therefore, the legislative competence cannot be questioned. 25. Thirdly, he contended that merely because the Government has given an undertaking to the Tribunal to recruit engineers under the Backlog Rules, it does not take away the power of the Government to come up with the legislation to recruit persons by way of absorption. There cannot be an estoppel against the Government to exercise such power. 26. Fourthly, he contended that it is not a case of regularisation of daily wagers who are employed temporarily contrary to the law governing recruitment. They are not recruited contravening the reservation policy of the State. It is also not a case where they are recruited to posts which were not in existence. Therefore, he submits that the case of these persons who are recruited as contract employees is not comparable to the cases of regularization of daily wagers. 27. Fifthly, he contended that in Para 53 of UMADEVI’s case the Apex Court has held that all such recruitments validly done should not be reopened. Therefore, he submits that the case of these persons who are recruited as contract employees is not comparable to the cases of regularization of daily wagers. 27. Fifthly, he contended that in Para 53 of UMADEVI’s case the Apex Court has held that all such recruitments validly done should not be reopened. Admittedly all these absorptions have taken place prior to the judgment of the Apex Court in Umadevi's case and the recruitment has been made validly under the Rules formulated by the Government and as such the same cannot be held invalid in view of the law laid down by the Apex Court in Umadevi's case. 28. Lastly, he contended that the absorption is in the nature of one time measure. For nearly two decades no recruitment took place to these departments. Therefore, the backlog vacancies which ought to have been filled up from persons belonging to Scheduled Caste and Scheduled Tribe were not filled. It is under those circumstances as a policy decision Backlog Rules of 2001 was framed. Subsequently, when it is felt that the recruitment under the aforesaid Rules is time consuming, by virtue of the Government Order after following all the procedures, these eligible persons were recruited on contract basis. Thereafter by virtue of the impugned Rules persons working on contract basis were absorbed in the service. Under those circumstances, keeping in mind the background which necessitated the aforesaid Rules coupled with the fact that persons who were age barred, but, who possessed requisite qualifications were absorbed in the employment. The Court should not interfere with the policy decision of the Government as reflected in these Rules. 29. Sri M S Bhagawat, learned counsel appearing for the petitioners contended that in the instant case the appointments are made after following the procedure and in accordance with the Rules. If the appointment itself is in infraction of the Rules or if it is in violation of the Constitution, then it is a case of illegal appointment and illegality cannot be regularised. However, if it is a case of non-compliance with the procedure, it does not go to the root of the appointment and then such an appointment cannot be struck down. In this case there is no illegality in the appointment. This is not a case of back-door entry which is sought to be regularised. However, if it is a case of non-compliance with the procedure, it does not go to the root of the appointment and then such an appointment cannot be struck down. In this case there is no illegality in the appointment. This is not a case of back-door entry which is sought to be regularised. A committee was constituted to go into the question of modalities to fill-up the backlog vacancies. Qualifications were prescribed, applications were invited, purely on merit selection has been made and therefore, this is not a case of illegal appointment and therefore the Rules framed do not violate any of the provisions of the constitution. Even if it is to be held that there is some infraction of procedure, the appointments are not vitiated. Umadevi's case has no application to the facts of this case because, in Umadevi's case they were only dealing with the case of regularisation of illegal or irregular appointments. That was not a case of absorption under the Rules framed by the Government. The learned counsel relied on the judgment of the Apex Court in the case of State of Karnataka and another Versus Suvarna Malini reported in 2001(1) SCC 728 where similar Absorption Rules made to absorb part-time lecturers was upheld by the Apex Court, which according to him squarely applies to the facts of this case. Lastly, he contended the applicants who challenged these Absorption Rules before the tribunal were not contract engineers and they had no locus standi to challenge the validity of these rules. 30. Sri K Subba Rao, learned senior counsel appearing for some of the petitioners, contended after the backlog rules of 2001 is framed, as recruitment under the said rules would have taken considerable time and public interest was suffering, the Government issued the order dated 12.12.2002 to recruit persons, who are eligible to be considered for recruitment against those back log vacancies on contract basis for a period of 12 months. Similarly, one more Government order was issued on 5.4.2003 modifying slightly the qualification prescribed for selection. There is no conflict between these two Government orders and the back log vacancy Rules of 2001. Wide publicity was given inviting applications from all eligible candidates. The Government orders prescribed the terms and conditions for such recruitment. Similarly, one more Government order was issued on 5.4.2003 modifying slightly the qualification prescribed for selection. There is no conflict between these two Government orders and the back log vacancy Rules of 2001. Wide publicity was given inviting applications from all eligible candidates. The Government orders prescribed the terms and conditions for such recruitment. It is only after considering the qualification of each of the candidate purely on merit, the selections of these contract engineers were made. It was a legal selection and the Government cannot be accused of any favoritism. In fact, both these Government orders were challenged before the tribunal and the said orders were upheld. The High Court and also the Apex Court has upheld those Government Orders. The persons who were selected in pursuance of the aforesaid two Government orders constituted a special group by themselves. It is for absorption of these engineers, the 2005 Absorption Rules were framed and absorptions were made under the said Rules. They are now working in the Government for the last one decade. The 'absorption' is one mode of regularisation. Persons who are in service continuously for a particular period who have acquired experience, if they are to be continued in service on regular basis, it is open to the legislature to pass law for absorption of such employees, by which the services of persons, who are appointed temporarily are regularised as permanent employees. When once it is held that absorption is a mode of regularisation, the law laid down by the Constitution Bench in Umadevi's case is attracted. If the persons who are irregularly appointed are not continued in service for ten years without the aid of the Court orders, all that happens is that their case is to be considered after completion of ten years for regularisation, but they should not be terminated from the services. 31. He further submitted that in order to meet the extreme exigencies the Legislature has passed backlog rules, which are in the nature of special rules when compared to Karnataka Civil Services (General Recruitment) Rules, 1977. The backlog rules will prevail over the general rules 1977. Similarly, when the legislature found that backlog rules is inadequate to meet the emergency situation they have made the impugned rules which is also a special rules. The backlog rules will prevail over the general rules 1977. Similarly, when the legislature found that backlog rules is inadequate to meet the emergency situation they have made the impugned rules which is also a special rules. Between backlog rules and the impugned rules, the backlog rules would become general rules and the impugned rule would become the special rules. In view of non obstante clause used in the impugned rules, it prevails over the backlog rules. Therefore, when once it is not disputed that the Legislature has power to make the rules and when they have made the impugned rules with a non obstante clause, it has the effect of over riding the backlog rules. The appointments made by way of absorption is validly made and it cannot be found fault with. 32. The persons who have challenged these Absorption Rules have no locus standi. They have not pointed out how these Rules adversely affect their interest. If they have not applied in pursuance of the Government orders, they have no locus standi to challenge the Absorption Rules. Human considerations also have to be taken into consideration while considering the constitutional validity of a law. All these persons who are selected belong to the Schedule Castes and Schedule Tribes. From 1984 they were deprived of employment. It is to do justice to them the Government came up with these Backlog Rules to fill up back log vacancies and the subsequent Government order. The policy of the Government is given effect to and persons who are appointed under the two government orders are now sought to be absorbed under these rules and therefore, not only legislature has competence to make Rules, the Rules made are valid and do not contravene any of the provisions of the Constitution. The Tribunal committed serious error in setting aside the said Rules at the instance of the persons who have no locus standi. 33. Prof. Raviverma Kumar, the learned senior counsel appearing for some of the petitioners submitted that, while considering the validity of the impugned Rules, the Courts have to take into consideration the necessity and the circumstances under which these Special Rules came to be made. The persons who are appointed by virtue of the Government Order dated 12.12.2002 and 5.4.2003 possessed all the qualifications, which are prescribed under the Backlog Rules. Even notifications were issued. The persons who are appointed by virtue of the Government Order dated 12.12.2002 and 5.4.2003 possessed all the qualifications, which are prescribed under the Backlog Rules. Even notifications were issued. Only persons who applied against the said notification and who possessed the requisite qualification were appointed on contract basis. All the requirements are substantially complied with. Therefore, it is only to regularize the services of those contract engineers these Absorption Rules were thought of and they were absorbed into the service. The persons who are challenging those absorption have no subsisting interest. They are set up by persons with ulterior motive and at their instance the validity of the Rules cannot be gone into and at any rate after a lapse of 10 years, the said Rules cannot be set aside. He submitted that these persons have worked for 10 long years, gained experience, but for their services the projects could not have been completed. They are an asset to the Department. Now they are over aged. If fresh recruitment has to take place in terms of the Backlog Rules they would be age barred. It is a human problem and therefore in such similar circumstances the Supreme Court has upheld the Absorption Rules absorbing such persons as it is a one time arrangement. The Tribunal committed a serious error in not appreciating these facts and in setting aside the impugned Rules. Therefore, the judgment of the Tribunal requires to be interfered with. He also contended that all these applicants did not choose to make application for recruitment as Contract Engineers and thus they are estopped from challenging the impugned Rules as they have no locus standi. When the Government wanted the services of the Engineers, they did not offer their services. It is these Engineers who offered service, rendered service, completed the projects and in those circumstances as a policy of the Government they have come up with these Rules to absorb them into the service permanently which cannot be found fault with. By their conduct in not applying to the post of Contract Engineers, they have lost their right to challenge the impugned Rules. 34. Sri B B Bajentri, learned counsel appearing for the applicants submitted that Rule 15 of the Karnataka Civil Services (General Recruitment) Rules, 1977 deals with appointment of retired Government servants and appointment on contract. By their conduct in not applying to the post of Contract Engineers, they have lost their right to challenge the impugned Rules. 34. Sri B B Bajentri, learned counsel appearing for the applicants submitted that Rule 15 of the Karnataka Civil Services (General Recruitment) Rules, 1977 deals with appointment of retired Government servants and appointment on contract. According to him, the case falls under Section 15(1)(B)(2) i.e. posts requiring technical qualifications. Both Assistant Engineers and Junior Engineers require the technical qualification of B.E. in Engineering and Diploma in Engineering. According to the said Rule, it is the Government which has to make an appointment under the said Rules. At any rate, the Government has not delegated its authority to appoint contract Engineers to the Chief Engineer. In the instant case, both the Junior Engineers and Assistant Engineers are appointed by the Chief Engineer. Therefore, their appointments are per se illegal. Rule 7 of the Karnataka Civil Services (CC and A) Rules, 1957 deals with appointing authorities. The post of Assistant Engineer is a Group-"B" post. The first appointment should be made by the Government. Therefore, he submitted that the appointments are illegal and contrary to the aforesaid statutory provision. 35. He contended that the Government Orders were issued providing for contract employment. The said Government Orders were challenged by these applicants. The application filed was dismissed by the Tribunal, which was upheld by this Court. A reading of the order of this Court clearly demonstrates that the order was not interfered with, not on the ground that it was legal, but on the ground that it was only a stop gap arrangement. Because of the assurance given by the Government that they would initiate steps for recruitment according to the Backlog Rules, in public interest so that the work of the department should not suffer, they did not strike down the appointments made in pursuance of the Government Orders, which is patently illegal. Therefore, it is not open to the State now to contend that the Government Orders passed and recruitment made in terms of the Government Orders have been upheld by the Courts and those persons who are absorbed under the Absorption Rules, are validly appointed. 36. He also submitted that Backlog Rules were enacted to fill up backlog vacancies in all Governmental Departments, which was a general rule. 36. He also submitted that Backlog Rules were enacted to fill up backlog vacancies in all Governmental Departments, which was a general rule. In fact, in PWD itself, the backlog vacancies in Group-C, B and D are filled up under the said Rules. Only in the instant case, to fill up the posts of Assistant Engineers and Junior Engineers, they chose to issue Government orders, which is followed by this Absorption Rules. 37. Sri Ullal, learned counsel appearing for the respondent submitted that, the Recruiting Authority under the Backlog Rules insofar as B group posts are concerned, is the KPSC, whereas in the Government Orders the said power is conferred on the Chief Engineer. Asst. Engineer's post being a Group B post, the said Government order runs counter to the Rules and therefore, any recruitment made in the said Government order is illegal recruitment and not irregular recruitment. Rule 6 of the said Backlog Rules speaks of merit amongst persons who are in the age group of 29 to 40, whereas in the Government order one more age group is introduced which has taken away the opportunity of the person whom he is representing, who were more meritorious. If that age group had been kept in tact, his client would have been in Sl.No.2 in the list. He further contended that in terms of the Backlog Rules, a notification came to be issued on 20.2.2002 calling for applications to recruit 208 engineers to fill up the posts of back log vacancies i.e. on 31.1.2002 to fill 86 back log vacancies of Junior Engineers. The said recruitment has to be done on state-wise. However, they were withdrawn on 2.10.2002 on the promise that the recruitment would be done on district wise basis. However, thereafter, recruitment under the Rules either for District wise or State wise was given up by the Government. When the respondents came to know about the intention of the Government not to recruit under the Rules, they made a request to the authorities to consider their case for recruitment as contract engineers as, earlier they had not made applications in pursuance to the Government order and the notification issued thereunder. On the premise that it was for 12 months and the applications would be invited under the Rules, their request was not considered. On the premise that it was for 12 months and the applications would be invited under the Rules, their request was not considered. Moreover, he submitted the back-log vacancy for which this exercise was done is in respect of 411 Asst. Engineers, 193 Junior Engineers, but now under the guise of absorption, they have absorbed 803 persons under the Asst. Engineer category and 473 persons under Junior Engineer category thus depriving all eligible meritorious persons from even applying for appointment as against the said back log vacancies. Therefore, he submits the entire recruitment is illegal and the absorption of such illegally recruited engineers is also illegal and it cannot be regularised by way of absorption. As such, the absorption rules offend Articles 14 and 16 of the Constitution. 38. Sri T. Narayana Swamy, learned counsel appearing for some of the applicants submitted that, with the avowed object of filling up backlog vacancies, Backlog Rules came to be passed. In pursuance of the same, notifications were issued and in respect of the post of Assistant Engineers, KPSC was requested to initiate recruitment process. After the issue of notification calling for applications and after applications were filed, suddenly on 11.9.2002 the sub-committee of the cabinet took a decision not to proceed with the aforesaid recruitment and withdrew their request. On the contrary, on their recommendation a Government Order came to be passed on 12.12.2002 directing for recruitment on contract basis for a temporary period of 12 months. In pursuance of the said Government Order, on 18.12.2002 a notification came to be issued calling for applications District-wise, in all the Districts. The said notification was challenged by some of the applicants in Civil Application Nos.15422-31/2002 and an interim order was also granted. At that stage when the Government appeared, the Tribunal made three suggestions which were in fact accepted by the Government and adopting the said suggestions an order came to be passed on 5.4.2003 which was duly published on 10.4.2003 in newspapers calling for applications to fill 411 Assistant Engineer posts and 195 Junior Engineer posts in the PWD Department as well as the Irrigation Department. At that stage, some of the applicants filed W.P. Nos.24601-603/2003 challenging both the order of the Tribunal as well the Government Order and the notification issued in pursuance of the Government Orders. At that stage, some of the applicants filed W.P. Nos.24601-603/2003 challenging both the order of the Tribunal as well the Government Order and the notification issued in pursuance of the Government Orders. In the Writ Petition though this Court did not interfere with the said Government Order and notification, the 3 slabs which were proposed were reduced to 2 slabs and a direction was issued to initiate recruitment according to the Backlog Rules. After the said order a Review Petition came to be filed in Review Petition No.540-45/2003 in which the order directing 2 slabs was deleted and 3 slabs was restored by its order dated 19.8.2003. It is thereafter, the first batch of appointments was made on 25.7.2003 and as the entire vacancies were not filled, the second batch of appointments were made on 1.9.2003. At that stage it was found that there were additional backlog vacancies numbering 384 Assistant Engineers and 258 Junior Engineer posts. An order came to be passed to fill up the same. Subsequently, it was found there were still some more backlog vacancies, i.e., 208 Assistant Engineer posts and 147 Junior Engineer posts. Some of the applicants rushed to the Tribunal pointing out that the Department is filling up even future vacancies and they wanted an interim order. Though an interim order was passed on 22.1.2004 not to fill up any vacancies, by an order of the same date, the aforesaid 384 and 258 posts were filled up. Again in spite of the interim order dated 28.1.2004, on the very same day another 208 and 147 vacancies were filled up. Thereafter, the cabinet took a decision on 30.8.2004 to regularize the services of these contract engineers and that is how in spite of the Court orders not to fill up vacancies, to initiate recruitment proceedings in pursuance of Backlog Rules and in spite of the Courts making it very clear that it is only a stop gap arrangement for a temporary period and therefore they are not interfering with those appointments, a calculated attempt was made by the Government to absorb all those persons appointed by passing the impugned Rules which is totally contrary to the existing Rules. Further, it is submitted that, by such an act the fundamental right guaranteed to these applicants under Article 16 of the Constitution in respect of public employment is taken away. Further, it is submitted that, by such an act the fundamental right guaranteed to these applicants under Article 16 of the Constitution in respect of public employment is taken away. Therefore, it was contended that the impugned Rules are violative of Articles 14 and 16 of the Constitution of India and the Tribunal rightly struck down the said Rules. 39. Though the impugned Rules starts with a non obstante clause in Rule 3 and subsequently certain rules have been mentioned which is intended to be abrogated, the backlog rules is not mentioned in the said Section. Therefore, the non obstante clause will not have the effect of over-riding the provisions in the backlog rules. Any provision in the impugned rules which is inconsistent with the backlog rules, backlog rules prevail. He further contended that the sub-ordinate legislation can be questioned on the grounds on which the legislation could be questioned. But, in addition to the said grounds, the sub-ordinate legislation can be questioned also on the ground that it is not in consonance with the Act under which the said sub-ordination legislation is passed or on the ground that the sub-ordinate legislation is contrary to any other statutory provision. 40. The validity of the Government order and notifications issued in pursuance of the Government order and appointments made in pursuance of such notification was challenged before this Court. Because the government gave an undertaking to the Court that these appointments are purely temporary in nature for a period of 12 months and that they are going to recruit in accordance with the Rules already framed, this Court did not go into the validity of the Government order and notification and appointments made in pursuance of the notification. It is thereafter the Government has gone back on their promise to the Court and has absorbed these persons under the impugned rules. Therefore, these rules run counter to the undertakings/promise given by the Government to the Court and it is a case of arbitrary exercise of power by the legislature, which is hit by Article 14 of the Constitution. 41. In the batch of writ petitions he is representing all the applicants have been to this day are within the age limit prescribed. All of them had applied against the notification issued in pursuance of the Government order and also the notification issued by the KPSC. 41. In the batch of writ petitions he is representing all the applicants have been to this day are within the age limit prescribed. All of them had applied against the notification issued in pursuance of the Government order and also the notification issued by the KPSC. If the two slabs age requirement had been followed, they would have been selected. Because of the modification of that particular condition and making three slabs they could not be selected. Therefore, even to this day, all of them have subsisting interest and the challenge made by them is valid. If the impugned rules are set aside and if a direction is issued to recruit in terms of the backlog rules, they would certainly get employment. The Absorption Rules have deprived them the benefit of getting public employment. In their writ petition, they have not only challenged the Absorption Rule, but also the Government Order and the notification issued under the Government order providing for contract employment. They have also sought a positive direction to the State to make recruitment in terms of the backlog rules. During the pendency of these applications, when they were trying to enforce the backlog rules, the State has come up with the impugned Rules, which is not only contrary to the backlog rules but it took away the right of the applicants for public employment. III - POINT FOR CONSIDERATION 42. In the light of the aforesaid facts and rival contentions, the point that arises for consideration in these batch of writ petitions is as under:- "Whether the Karnataka Civil Services (Absorption of persons appointed on contract basis against the backlog vacancies in the category of Assistant Engineers and Junior Engineers) in the department of Public Works Engineering, Water Resource and Rural Development and Panchayath Raj (Special Rules), 2005 (Absorption Rules) is violative of Articles 14 and 16 of the Constitution as held by the Tribunal?" 43. In view of the divergent and inconsistent arguments placed by the learned counsel on certain basic concepts coupled with the reliance on the several judgments of the Apex Court which are some times in conflict with each other, which in fact necessitated the constitution of a Constitution Bench to clarify the legal position on certain aspects of Service jurisprudence, it is necessary to have a clear understanding of the basic concepts, before we try to answer the point that arise for consideration in these cases. CIVIL SERVICE-APPOINTMENT-CONSTITUTIONAL SPHERE 44. The Administration of the States has to be carried on through the agency of large number of persons employed in the various services and posts under the States. The services under the State Governments consist of civil services only. There is relationship of master and servant between the States and its servants. The relationship between the States and its servants is not left to be regulated as a mere contractual relationship in view of the provisions contained in part III of the Constitution (Fundamental rights) and part XIV (Articles 309 to 323). Their rights and obligations are all required to be determined by the provisions of statutes and statutory rules which may be framed or altered by the competent authority unilaterally and are not to be determined by consent of both the parties as in the case of contractual relationship. The services under the State fall within the legislative power of Parliament vide entry 70 of list 1 of the VII schedule to the Constitution read with Articles 245 and 246(1). By virtue of these legislative powers it is competent for Parliament or the legislature, as the case may be, to make any law relating to the services. Matters relating to the services include the power to create or abolish the services or posts fixing the strength of a cadre, prescription of powers and duties attached to the post and every matter relating to services including matters relating to recruitment and conditions of service. It is competent for the legislature to provide by legislation for all matters relating to the services in exercise of its legislative power. Rules framed under Article 309 have to be strictly confined to recruitment and conditions of services of persons mentioned therein. It is competent for the legislature to provide by legislation for all matters relating to the services in exercise of its legislative power. Rules framed under Article 309 have to be strictly confined to recruitment and conditions of services of persons mentioned therein. Under Article 309 the power of legislature to regulate recruitment and conditions of service is wide and includes power to constitute a new cadre by merging certain existing cadres. Subject to the law made by legislature the rule has the same efficacy as that of legislative enactment. This legislative power carries with it the power to amend or alter the rules with retrospective effect. Though non-statutory rules cannot modify statutory rules there is nothing to prevent the Government from issuing administrative instructions on matter upon which the statutory rules are silent. While making instructions for promotion etc., the instruction should not override statutory rules. A rule made in exercise of the power under the proviso to Article 309 constitutes law within the meaning of Article 235. For the same reason such rule may be struck down only on such ground as may invalidate a legislative measure, e.g., violation of Articles 14 and 16 and not because the Court considers it to be unreasonable. The executive power of the States under Article 162 is co-extensive with that of legislative power of the States. Therefore, it is competent for the State Government to regulate recruitment and conditions of service relating to the services under them in exercise of executive power in the absence of legislation or until statutory rules are framed under proviso to Article 309 of the Constitution. But once the field is occupied either by legislation or by statutory rules, it is not competent for the executive to act contrary to or ignoring the provisions of the statutory provisions. 45. Equality in matters relating to employment under the State is found in the three provisions of the Constitution, namely, Articles 14, 15 and 16, which form part of the same constitutional code of guarantees and supplement each other. The doctrine of equality before law is a necessary corollary of rule of law, which pervades the Indian Constitution. The preamble to the Constitution emphasises upon the principle of equality as basic to the Constitution. Recognising this the Supreme Court has declared equality as one of the basic features of the Indian Constitution. The doctrine of equality before law is a necessary corollary of rule of law, which pervades the Indian Constitution. The preamble to the Constitution emphasises upon the principle of equality as basic to the Constitution. Recognising this the Supreme Court has declared equality as one of the basic features of the Indian Constitution. Among the constitutional provisions Article 14 is the genus while Articles 15 and 16 are the species. Article 14 says that: "14. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." 46. Two concepts are involved in Article 14 namely 'equality before law' and 'equal protection of laws'. Among this the first is a negative concept which ensures that there is no special privilege in favour of any one, that all are equally subject to the ordinary law of the land and that no person, whatever be his rank or condition, is above law. The second concept, is positive in nature and does not postulate equal treatment to all persons without distinction. It postulates that the same laws should be applied to all persons who are similarly situated. It means that among equals the law should be equal and equally administered. 47. Article 15 prohibits discrimination on any ground. It reads as under:- I5. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." (2) xxx xxx, (3)xxx xxx, (4) xxx xxx, (5) xxx xxx 48. It is an extension of Article 14, which expresses a particular application of the general principle of equality. 49. Article 16 which takes its root again from Article 14, ensures equality of opportunity in matters of employment under the State. It reads as under:- "16. Equality of opportunity in matters of public employment. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the services under the State. (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." 50. It guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. It guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. Clauses (1) and (2) of Article 16 really give effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Clause (1) of Article 15 with specific reference to the services under the State. Article 14 is an injunction to both the legislative and executive organs of the State and other subordinate authorities not to deny any person equality before law or the equal protection of the laws. Article 16 is only an instance of the general rule of equality laid down in Article 14. The equality envisaged in the Indian Constitution outlaws discrimination in a general way and guarantees equality before law to all persons. The guarantee of equality in matters relating to employment under the State given under Articles 14 and 16 of the Constitution does not prohibit the state from making a reasonable classification of its services and to prescribe reasonable rules relating to recruitment and conditions of service. The fundamental right of equality means that persons in like situations, under like circumstances, are entitled to be treated alike. Article 14 of the Constitution ensures equality among equals and its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law. The quality of opportunity for purposes of seniority, promotion and like matters of employment is available only for persons who fall substantially within the same class or unit of service. The Constitution does not command that in all matters of employment absolute symmetry be maintained. The classification, in order to avoid the vice of inequality must be founded on an intelligible differentia, which, on rational grounds, distinguishes persons grouped together from those left out. The difference, which warrants a classification, must be real and substantial. In other words, there must be a reasonable classification. The classification, in order to avoid the vice of inequality must be founded on an intelligible differentia, which, on rational grounds, distinguishes persons grouped together from those left out. The difference, which warrants a classification, must be real and substantial. In other words, there must be a reasonable classification. In addition to there being a reasonable classification, the difference which is sought to be brought about must bear a just and reasonable relation to the object sought to be achieved i.e. there should be a nexus between the classification made and the object sought to be achieved. If the above tests are satisfied, then the classification cannot be hit by the vice of inequality. If any one of above tests was not satisfied by any law or rules made by the State it would suffer from the vice of inequality. The equality before law guaranteed under Articles 14, 15 and 16 being a constitutional injunction against both the legislature and the executive organ of the State, neither legislature nor the rule-making authority can make a law or rule which is violative of these articles. The same principle applies to even to the government or other authorities exercising administrative or executive power. 51. There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly appreciates the need of its own people. The validity of every state action whether executive or legislative, is liable to be tested on the touchstone of the reasonableness. If the provision is found to be unreasonable or arbitrary, the same is liable to be struck down as offending Articles 14 or 16(1) as the case may be, notwithstanding the fact that it applies to all persons similarly situated. Now arbitrariness in the state action itself constitutes an independent ground for declaring the law invalid. (Ref. Service under the State by Justice Rama Jois). STATUTORY PROVISIONS 52. Now arbitrariness in the state action itself constitutes an independent ground for declaring the law invalid. (Ref. Service under the State by Justice Rama Jois). STATUTORY PROVISIONS 52. Article 309 of the Constitution of India provides for recruitment and conditions of service of persons serving the Union or a State which reads as under: "309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate 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 any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act." 53. In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor of Karnataka has framed the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 for short hereinafter referred to as the Rules 1957. Rule 7 of the said Rules, which finds a place in Part 3 of the Rules, deals with the appointments to State Civil Services, which reads as under: "7. Appointments to State Civil Services -(1) Save as otherwise provided, all first appointments to the State Civil Services Group 'A' and Group 'B' shall be made by the Government; Provided that, where, in respect of any posts under State Civil Services, Group ‘B’ any other Appointing Authority is specified, first appointments to such posts shall be made by the authority so specified. (2) All first appointments to the State Civil Services Groups ‘C’ and ‘D’ shall be made by the authorities mentioned in column (2) of Schedules II and III [x x x xx]." 54. (2) All first appointments to the State Civil Services Groups ‘C’ and ‘D’ shall be made by the authorities mentioned in column (2) of Schedules II and III [x x x xx]." 54. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Karnataka has made the Karnataka Civil Services (General Recruitment) Rules 1977 [for short hereinafter referred to as “Rules 1977”]which applies to the recruitment to all State services and to all posts in connection with the affairs of the State of Karnataka and to Boards of all State Civil Services and to the holders of the posts whether temporary or permanent except to the extent otherwise expressly provided by or under any law for the time being in force or in respect any Board of such service by a contract or agreement subsisting between such Board and the State Government. The relevant Rules reads as under:- 2(g) 'Direct recruitment' in relation to any service or post means appointment otherwise than by promotion or transfer from any State Civil Service, but shall not include appointment under Rule 15. 2(m) 'Promotion' means the appointment of a Government Servant from a post or grade of service or class of service to a higher post or higher grade of service or higher class of service" 2(n) 'Selection' means selection in accordance with the provisions of these rules - i) after consulting the Commission where such consultation is necessary; or ii) by the Advisory or Selection Committee, if any, appointed for the purpose by the Government or iii) by the Appointing Authority where no Advisory or Selection Committee has been appointed. 3. Method of recruitment.-[(1) Except as otherwise provided in these rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority-cum-merit. 3. Method of recruitment.-[(1) Except as otherwise provided in these rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority-cum-merit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment specially made in the behalf: Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authority as the case may be: Provided further that no person shall be eligible for promotion unless he has satisfactorily completed the period of probation or officiation, as the case may be, in the post held by him”. "4. Procedure of appointment.- Subject to the provisions of these rules, appointments to any service or post shall be made.- (1) In the case of recruitment by direct recruitment. - (a) if it is by competitive examinations, in the order of merit from the list of candidates prepared by the Commission or other examining authority; (b) if it is by selection, after giving such adequate publicity to the recruitment as the Appointing Authority may determine, in the order of merit of candidates as determined by the Commission, the Advisory or Section Committee, or the Appointing Authority as the case may be;” 55. Rule 15 of the Rules, 1977 provides for appointment of retired Government servants and for appointment by a contract, which reads as under: "15. Rule 15 of the Rules, 1977 provides for appointment of retired Government servants and for appointment by a contract, which reads as under: "15. Provision for appointment of retired Government Servants and for appointment by contract.-(1) Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the Government may, if it considers necessary for reasons to be recorded in writing, that it is in public interest so to do.- (a) appoint to a service or a post any person who has retired from the service of the Government, Central Government or any other State Government on such terms and conditions and for such period, as may be necessary, and after consultation with the commission where such consultation is necessary; (b) appoint to the following categories of posts any person who in its opinion is able to discharge the duties of such post on such terms and conditions as may be determined by agreement- (i) posts of Heads of Departments when suitable officers are not available for appointment, according to the rules of recruitment applicable to the posts. (ii) posts requiring technical qualifications. (iii) posts in the personal establishment of a Minister, a Minister of State or a Deputy Minister. (iv) posts in the personal establishment of a Chairperson of a Commission or a Committee constituted by the Government, where such Chairperson is a non-official and has been given the status of a Deputy Minister; (v) Group C posts in the legal cell of the Karnataka Bhavan, New Delhi, when suitable persons are not available for appointment, according to the rules of recruitment applicable to the posts. (vi) Posts of Personnel Assistants, Second Division Assistants, Drivers and Group ‘D’ posts sanctioned in Revenue Department for assisting the Members of Parliament and any other post which may be sanctioned in Revenue department for the said purpose. (vi) Posts of Personnel Assistants, Second Division Assistants, Drivers and Group ‘D’ posts sanctioned in Revenue Department for assisting the Members of Parliament and any other post which may be sanctioned in Revenue department for the said purpose. Provided that notwithstanding anything to the contrary contained in any rule made under the proviso to Article 309 of the Constitution of India or in the agreement or the terms, conditions and the period of appointment of any person under clause (a) or clause (b), the services of a person so appointed shall be liable for termination at any time by a notice in writing given either by such person to the Government or by the Government to such person and the period of such notice shall be one month. Provided further that the services of any such person may be terminated forthwith and on such termination he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month. (2) The total period of appointment of any person or the total period of appointment in any post under clause (b) of sub-rule (1) shall not exceed five years: Provided that appointments to posts mentioned in sub-clause (iii) and sub-clause (vi) of clause (b) of sub-rule (1) may be made for a period co-terminus with the tenure of office of the Minister, the Minister of State the Deputy Minister or the Member of Parliament concerned. (3) Notwithstanding anything contained in clause (b) of sub-rule (1) a person in the service of the Government shall not be eligible for appointment under the said clause." 56. (3) Notwithstanding anything contained in clause (b) of sub-rule (1) a person in the service of the Government shall not be eligible for appointment under the said clause." 56. The Karnataka State Legislature in pursuance of the power vested in them under Clause (2) of Article 187, Clause (2) of Article 229 and Article 309 and under Entries 3 and 41 of List II of VII Schedule to the Constitution of India has enacted the Karnataka State Civil Services Act, 1978 [for short hereinafter referred to as 'the Act'] for the purpose of regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs to the State of Karnataka and to the Secretarial Staff to the house of the Karnataka State Legislature and in regard to conditions of service of officers and service of the High Court of Karnataka. 57. Section 3 of the Act deals with the regulation of recruitment and conditions of service, which is as under: “3. Regulation of recruitment and the conditions of service.- (1) Subject to the provisions of this Act, the State Government, may, by notification, make rules,- (a) specifying the different categories of posts in the different branches of public services of the State, the total number and nature of posts in each such category and the scale of pay admissible to each such category; (b) for regulation of the recruitment and conditions of service of persons appointed to public services; Provided that in respect of the officers and servants of the High Court the powers of the State Government under this sub-section, shall be exercised by the Chief Justice of the High Court: Provided further that in respect of the Secretariat Staff of the Houses of the Legislature, the powers of the State Government under this sub-section, shall be exercised by the Special Board. (2) The power to make rules conferred by subsection (1) shall be subject to the following conditions, namely:- (a) the rules shall be made after previous publication for a period not less than thirty days; (b) where the proposed rules relate to the methods of recruitment to civil services or civil posts in respect of which the Karnataka Public Service Commission has to be consulted under clause (3) of Article 320 of the Constitution of India and in the case of officers and servants of the High Court under the proviso to clause (1) of Article 229 of the Constitution of India, a copy of the draft rules as published under clause (a) shall be forwarded to the Secretary of the Karnataka Public Service Commission for communicating the views of the Commission on the proposed rules within the period specified under the said clause; (c) the State Government or the Chief Justice of the High Court or the Special Board shall consider the views of the Karnataka Public Service Commission and any objection or suggestion from any person likely to be affected by the said rules received before the expiry of the period specified under clause (a) and make the rules with such modifications as it or he may deem fit; Provided that nothing in this sub-section shall apply to rules regulating the pay and other emoluments of persons appointed to public services. (3) All rules relating to matters referred to in subsection (1) and in force on the date of commencement of this Act,- (i) made by the Governor under clause (3) of article 187 of the Constitution of India regulating the recruitment and conditions of service of persons appointed to the Secretarial staff of the Houses of Legislature; (ii) made by the Chief Justice of the High Court of Karnataka or some other Judge or officer of the High Court of Karnataka authorised by the Chief Justice under clause (2) of article 229 of the Constitution of India regulating the conditions of service of the officers and servants of the High Court of Karnataka; and (iii) made by the Governor under the proviso to article 309 of the Constitution of India, regulating the recruitment and conditions of service of persons appointed to the civil services and posts in connection with the affairs of the State; and (iv) made by the Government under any law for the time being in force, shall be deemed to be rules made under sub-section (1) and shall continue in force until they are modified or replaced by rules made under this Act. 58. Section 8 of the Act confers power on the State Government to make rules by issue of notifications to carry out the purpose of the Act, which reads as under: "8. Power to make rules.-(1)The State Government may, by notification, make rules to carry out the purposes of this Act. (2) Any rule made under this Act may be made with retrospective effect and when such a rule is made, the reasons for making the rule shall be specified in a statement to be laid before both Houses of the State Legislature and subject to any modification made under sub-section (3), every rule made under this Act shall have effect as if it is enacted in this Act. (3) Every rule made under this Act shall be laid as soon as may be, after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if before the expiry of the session in which it is so laid or the sessions immediately following both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 59. By virtue of the power conferred by Sub-Section (1) of Section (3) read with Section 8 of the Act, the Government of Karnataka has made the Karnataka Public Works (Irrigation Services) (Recruitment of Assistant Engineers and Junior Engineers) (Special) Rules, 1998 providing for manner and method of selection of candidates for the post of Assistant Engineers and Junior Engineers working in the Department. The relevant Rules are as under:- 6. Application for recruitment:- (1) Selection Authority shall advertise the vacancies in the official Gazette specifying the conditions of eligibility, the nature of selection, the number of vacancies to be filled and classification in accordance with the orders of reservation in force and invited applications from the intending candidates. Abstract of such advertisement shall also be published in two news papers having wide circulation in the State. (2) The candidates who have already made applications in response to the Notification No.CE.WRD.RCE.Est.6.CR 56.91-92 dated 18th June 1991 and also the candidates sponsored by Employment Exchange vide letters specified in the Annexures to these Rules shall also apply afresh with fresh declaration in support of their claims for reservation, if any, in accordance with the orders inforce”. 7. (2) The candidates who have already made applications in response to the Notification No.CE.WRD.RCE.Est.6.CR 56.91-92 dated 18th June 1991 and also the candidates sponsored by Employment Exchange vide letters specified in the Annexures to these Rules shall also apply afresh with fresh declaration in support of their claims for reservation, if any, in accordance with the orders inforce”. 7. Method of selection of candidates:- (1) The selection Authority shall on the basis of the aggregate of the percentage of marks secured in the qualifying examination and taking into consideration the weightage allowed under these rules, and subject to orders in force providing for reservation for posts for the Scheduled Castes, Scheduled Tribes and other Backward Classes, prepare in the order of merit, lists of candidates eligible for appointment under these rules to the posts of Assistant Engineers and Junior Engineers. If the marks obtained by two or more applicants is equal, the order or merit in respect of such candidates shall be fixed on the basis of their age the older in age being placed above the younger. (2) The number of candidates to be selected under Sub Rule (1) shall be equal to the number of vacancies notified:- Provided that while preparing the above lists:- (a) weightage shall be given to rural candidates in accordance with the Karnataka Civil Service (General Recruitment) Rules, 1977, (b) a weightage of five percent for each year of service subject to a maximum of thirty percent shall be added to the percentage of total marks secured by the candidates in the qualifying examination, if such candidate has served on contract basis, as Assistant Engineer or Junior Engineer, as the case may be in the Irrigation Department in the State; and (c) a weightage of one percent shall be added to the percentage of marks secured in the qualifying examination in respect of the candidates belonging to displaced families. Explanation 1: For the purpose of the weightage under Clauses (b), service rendered for fraction of a year shall also be reckoned as service rendered for a whole year. Explanation 1: For the purpose of the weightage under Clauses (b), service rendered for fraction of a year shall also be reckoned as service rendered for a whole year. Explanation 2: Displaced family in relation to a person means the individual, the husband or wife as the case may be, or such individual and their son and un-married daughter residing with them and dependent on them for livelihood and such person being a tenure holder, tenant, Government lessee or owner of property has been displaced from his land or other property on account of acquisition of such land including a plot in the Gramathana or other property in the affected zone for the purpose of the Irrigation Project The ‘Authority’ for issuing the certificate relating to a displaced family shall be the Deputy Commissioner? (3) The select list should be published on the notice board of the office of the Selection Authority and a copy thereof shall be sent to the Appointing Authority”. 60. Article 320 of the Constitution deals with the functions of the Public Service Commission, which reads as under: "320. Functions of Public Service Commissions.- xxxxxxxx xxxxxxxx (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted - (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers." 61. Clause 3 of Article 320 of the Constitution makes it obligatory on the State to consult the State Public Service Commission on all matters relating to methods of recruitment in services and for civil posts and on the principles to be followed in making appointments to civil services and posts and in making promotions and advertisements from one service to another and on the suitability of the candidates for such appointments, promotions or transfers. 62. The Governor of Karnataka, by virtue of the power conferred on him under the proviso to Clause (3) of Article 320 of the Constitution, has framed the Karnataka Public Service Commission (Consultation) Regulations, 2000. 63. Regulation 3 of the Karnataka Public Service Commission (Consultation) Regulations, 2000 deals with the method of recruitment, which reads as under: "3. 62. The Governor of Karnataka, by virtue of the power conferred on him under the proviso to Clause (3) of Article 320 of the Constitution, has framed the Karnataka Public Service Commission (Consultation) Regulations, 2000. 63. Regulation 3 of the Karnataka Public Service Commission (Consultation) Regulations, 2000 deals with the method of recruitment, which reads as under: "3. It shall not be necessary to consult the Commission-(a) as respects any of the matters mentioned in sub-clauses (a) to (e) of clause (3) of Article 320 of the Constitution, in the case of the services and the posts specified in Annexure-Ito these regulations; (b) as respects any of the matters mentioned in sub-clauses (a) and (b) of clause (3) of Article 320 of the Constitution in the case of the services and the posts specified in Annexure-II to these regulations; (c) in regard to the suitability of Government servants for promotion to any of the posts or services or for appointment by transfer to any post or service except the promotions in accordance with the provisions of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 and the rules made thereunder; (d) in regard to making rules regulating recruitment to Civil Services of the State and civil posts in connection with the affairs of the State; (e) in regard to making of any appointments to any post the terms of which are governed by contract; Provided that in every case of appointment on contract which may involve a total period of service on contract exceeding five years, and the appointment has to be made to a post to which recruitment can be made only in consultation with the Commission, the Commission shall be consulted before the contract is made or renewed; (f) in regard to re-employment to any service or post of a person who has retired on a civil pension or gratuity or who, while in service, was a subscriber to a Contributory Provident Fund; Provided that the Commission shall be consulted in every case where the period of reemployment exceeds five years and re-employment is in a service or post appointment to which can be made only in consultation with the Commission; (g) in regard to prescription or modification or deletion of any examination under the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974. 64. 64. The aforesaid Acts and the Rules are in force and holding the field. For a proper appreciation of these statutory provisions, it is necessary to have the meaning of the words which are defined in the said Rules and those words which are freely used in service jurisprudence which are not defined under the Act and Rules. 65. One such word, which requires to be noticed is the word 'Post'. POST 66. There is no formal definition of "post" and "civil post". The meaning of the said word is to be gathered from the judgments, where the said word is used. A Constitutional Bench of the Apex Court in the case of STATE OF ASSAM Versus KANAK CHANDRA DUTTA reported in AIR 1967 SC 884 while interpreting Articles 310 and 311 have explained the meaning of the word 'Post' as under: "9. The question is whether a Mauzadar is a person holding a civil post under the State within Art. 311 of the Constitution. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, see marginal note to Art.311. In Art. 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil service. A post is a service or employment. A person holding a post under a State is a person servicing or employed under the State, see the marginal notes of Arts. 309, 310 and 311. The heading and the sub-heading of Part-XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. 309, 310 and 311. The heading and the sub-heading of Part-XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. 10. In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post." 67. The Honourable Supreme Court in the case of P.R. NAIK Versus UNION OF INDIA reported in 1972(1) SCC 332 explaining the meaning of the word ‘Post’ has held as under: "35. Article 565(a) of the Civil Service Regulations spoke of office' and thereafter Fundamental Rule 56(c)(i) and Fundamental Rule 56(f) spoke of 'post'. The Honourable Supreme Court in the case of P.R. NAIK Versus UNION OF INDIA reported in 1972(1) SCC 332 explaining the meaning of the word ‘Post’ has held as under: "35. Article 565(a) of the Civil Service Regulations spoke of office' and thereafter Fundamental Rule 56(c)(i) and Fundamental Rule 56(f) spoke of 'post'. The word 'post' and its previous counterpart the word 'office' mean position in service. In the Indian Administrative Service (Cadre) Rule, 1954 cadre post means any of the posts specified under item I of each cadre in the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. In the 1955 Regulations posts are mentioned for each State. In the Centre there is no cadre. There are senior posts. The members of the Indian Civil Service come and occupy senior posts under the Government of India. Such officers of the Indian Civil 'Service who come and occupy posts in the Central Government move from one Ministry to another Therefore, at the end of 35 years' service when the services of a member of the Indian Civil Service are extended normally he assumes or retains that post. Post here will therefore mean the place and position in service-held by him. The words “retains high post mean, first that he remains a member of, the Indian, Civil Service, and secondly, he is kept in that place position and is allowed to remain there in service." 68. Again, yet another Constitutional Bench of the Apex Court, in the case of R.K. SABHARWAL AND OTHERS Versus STATE OF PUNJAB AND OTHERS reported in 1995(2) SCC 745 explaining the difference between the expressions ‘Posts’ and ‘Vacancies’ has held as under: "6. The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical The word 'post' means an appointment, job, office or employment A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation." 69. From the aforesaid judgments of the Apex Court, it is clear that the word ‘Post’ means an appointment, job, office or employment and a position to which a person is appointed. 'Post' is a service or employment. A post denotes an office. 'Post' therefore means the place and position in service held by him. In fact the word 'Post' and its previous counter part, the office means the position in service. A person holding a post under a State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person said to be holding a post under it. A relationship of master and servant may be established by the presence of all or some of the indicia. However, ‘Post’ means a post not connected with defence outside regular civil services. A civil post is distinguished in Art. 310 from a post connected with defence. A civil post means a post not connected with defence outside the regular civil service. A person who holds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. RECRUITMENT 70. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. RECRUITMENT 70. The word 'Recruitment' used in the Act and the Rules has been the subject matter of interpretation by the Apex Court. 71. The Apex Court in the case of K.NARAYANAN AND OTHERS Versus STATE OF KARNATAKA reported in AIR 1994 SC 55 explaining the meaning of the word 'Recruitment' has held as under: "6. Art.309 of the Constitution empowers appropriate legislature to frame rules to regulate recruitment to public services and the post. 'Recruitment' according to dictionary means 'enlist'. It is comprehensive term and includes any method provided for inducting person in public service. Appointment, selection, promotion, deputation are all well known methods of recruitment Even appointment by transfer is not unknown. But any rule framed is subject to other provisions of the Constitution. Therefore, it has to be tested on rule of equality. Transfer is normally resorted in same cadre. But when it is made in a different and in a higher cadre it must not be violative of constitutional guarantee and the rule of fairness." 72. The Supreme Court in the case of UNION OF INDIA Versus A.R. SHINDE AND ANOTHER reported in 1987 (2) SCC 1 has dealt with three modes of recruitments. They are: (i) By promotion; failing which (ii) By deputation; and failing which (iii) By direct recruitment 73. 'Recruitment' according to dictionary means 'enlist'. The object of recruitment is to appoint persons capable of satisfactorily discharging the duties and responsibilities of the posts to which they are appointed. They are: (i) By promotion; failing which (ii) By deputation; and failing which (iii) By direct recruitment 73. 'Recruitment' according to dictionary means 'enlist'. The object of recruitment is to appoint persons capable of satisfactorily discharging the duties and responsibilities of the posts to which they are appointed. The important aspects relating to recruitment are (i) the prescription of qualification, (ii) the determination of sources of recruitment i.e., whether by direct recruitment and promotion, (iii) the method of procedure for selection i.e., whether by interview, viva voce or by competitive examination or by combination of some or all of the above tests in the case of direct recruitment as also the authority competent to make the selection, i.e., whether the public service commission or by a recruitment committee constituted for the purpose or by the appointing authority itself, or in the case of promotion whether the case of persons should be considered by the appointing authority by itself or with the assistance of screening committee or a departmental promotion committee. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well known methods of recruitment. Even appointment by transfer is not unknown. It is for the state to regulate these matters either by making a law and by subordinate legislation, or by rules framed under proviso to Article 309 and in the absence of both by executive orders of instructions. The State is free to regulate these matters according to its own requirements only subject to the provisions of the fundamental rights and specific provisions contained in the Constitution. No person without prescribed qualification can be appointed. A person to be appointed to a civil post under the state must possess the qualification prescribed under the rules. No person can be appointed to a post under the State unless he possesses the prescribed qualification. A person appointed in violation of the rules has no right to claim on a regular basis in view of his service and experience. 74. No person can be appointed to a post under the State unless he possesses the prescribed qualification. A person appointed in violation of the rules has no right to claim on a regular basis in view of his service and experience. 74. While the normal method for appointment is direct recruitment or promotion, sometimes it becomes necessary either because of the service of a particular Government servant in other department of State Government or on account of abolition of posts or reorganization of department to appoint a person already in service to a post in some other department of the Government. The State has the necessary power to do so. An appointment of a person already in Government service to a different department is called appointment by transfer. Subject to the condition prescribed in the rules, it is competent for the State to transfer government servant from one post to another. The transfer, however, could be only to an equivalent post and as provided in the rules. However, recruitment by transfer can only be made from any other service. It cannot be done where both the posts are under the same service. The employees transferred bring along with them the seniority and are entitled to hold substantively the permanent posts to which they are transferred. It will necessarily affect the chances of promotion of persons in the department to which such officers are transferred. But it is open for the state to impose a condition to the effect that officials will be absorbed in the specified department if only they agree to forego their earlier service for seniority. ABSORPTION 75. Though the word 'absorption' is used freely by the legislature while making rules, or by the Courts, the word 'absorption' as such has not been defined in any of the Acts or Rules. Therefore, to understand the meaning of the word 'absorption' as understood in the context of service jurisprudence, we have to look to the decisions where the said word has been freely used. The earliest judgment in this regard is the judgment of this Court in the case of A.G.HASABNIS Versus STATE OF MYSORE reported in 1967(1) Mys. L.J. 118 where the word 'absorption' has been explained which reads as under: "We think that we should not give the word "absorbed" occurring in the clause any sharp definition. The earliest judgment in this regard is the judgment of this Court in the case of A.G.HASABNIS Versus STATE OF MYSORE reported in 1967(1) Mys. L.J. 118 where the word 'absorption' has been explained which reads as under: "We think that we should not give the word "absorbed" occurring in the clause any sharp definition. We should give that word a meaning, which promotes the legislative intent and fits into the context. The purpose of this clause is to continue in service of an employee under the abolished District Board, so that employee may have an uninterrupted employment either in the Taluk Board or under Government. The restricted power created in Government by that clause is the power to determine whether such absorption should be made by the Taluk Board or by Government The consequence emanating from such absorption is continuity in service without a break. The abolished District Local Board was established and functioning under the Bombay Local Boards Act, 1923 and its place was taken by the Taluk Board which now functions under the repealing Act. The clear legislative intent which manifests itself in the relevant provisions of the repealing Act to which we have referred was to bring about an assimilation between service under the District Local Board and service under the Taluk Board or under Government as the case may be, by the process of absorption. By such assimilation there is a coalescence and fusion of the two services, and such union makes the service in the absorbing unit a continuation of the service in the other. In the Dictionary on English Law by Earl Jowitt, it is stated that the word absorption should be given the meaning, which the word "amalgamation'' should receive. "Amalgamation" as explained in that book involves a process by which two things become united. We think that that is how also we should understand the process of absorption of which the repealing Act speaks. The true position, therefore, is that the service under the District Board becomes united with the Service under the Taluk Board or under Government as the case may be, and that union excludes the concept of the termination of one and the commencement of the other. On the contrary, such absorption ensures continuity without intermission. The true position, therefore, is that the service under the District Board becomes united with the Service under the Taluk Board or under Government as the case may be, and that union excludes the concept of the termination of one and the commencement of the other. On the contrary, such absorption ensures continuity without intermission. So, the petitioner became statutorily entitled to the inclusion of every part of the service rendered by him in the Local Board in the period of service to be rendered by him under Government It was not within the competence of Government, even if they were so advised by the high power committee, which they appointed, to exclude from such service a moiety thereof. 76. The word 'absorption' fell for consideration by the Apex Court in the case of DEVDUTTA AND OTHERS Versus STATE OF M.P. AND OTHERS reported in 1991 Supp (2) SCC 553. At para-8 the Honourable Supreme Court has held as under:- "8. Now coming to the question of seniority, the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post No one asserts that the instant one was a case of the absorbed Sales Tax Inspectors being initially sent on deputation from the post of Block Level extension Officer to the post of Sales Tax Inspector and being subsequently absorbed in that post Consequently, when as pointed out by the High Court, it was not disputed that the surplus Block Level Extension Officers had been absorbed in the post of Sales Tax Inspectors it is obvious that it was a case of absorption by transfer. In this connection it would be useful to recapitulate that the minutes of the meeting referred to above held on September 30, 1965 laying down the principles of procedure for absorbing the surplus personnel specifically stated that the surplus staff which was to be "absorbed" should be treated as having been transferred from one post to another so that there may be no break in their service." 77. The Apex Court in the case of RAMAKANT SHRIPAD SINAI ADVALPALKAR Versus UNION OF INDIA AND OTHERS reported in 1991 SUPP (2) SCC 733 has dealt with the difference between an absorbed post and an absorbed employee. In that connection at para-7, it has been held as under: "7. The second contention is that the definition of expressions "absorbed post" and "absorbed employee" in section 2 of the act are wide enough to take in their sweep not only a person holding an "absorbed post" before December 20, 1961, but also one who has been merely serving in a higher post and that, accordingly, such higher post is also rendered, in relation to that person "an absorbed post". We are afraid, this construction is clearly unsupportable. 78. Then they set out the definitions contained in the Act regarding 'absorbed employee' and 'absorbed post' and held as under:- "These provisions in the interpretation clause merely indicate that an "absorbed employee" should have held the "absorbed post" immediately before the December 20, 1961 and that it did not detract from that position if subsequently he was serving in any other post in connection with the administration of the Union of Territory of Goa. It is erroneous to construe that in such circumstances the 'other' post would also become an "absorbed post" in relation to such person. He would continue to be "absorbed employee" only in relation to the post he held immediately prior to December 20, 1961..." 79. In the Dictionary on English Law by Earl Jowitt, it is stated that the word absorption should be given the meaning, which the word "amalgamation" should receive. "Amalgamation" as explained in that book involves a process by which two things become united. Union excludes the concept of the termination of one and the commencement of the other. On the contrary, such absorption ensures continuity without intermission. The consequence emanating from such absorption is continuity in service without a break. "Amalgamation" as explained in that book involves a process by which two things become united. Union excludes the concept of the termination of one and the commencement of the other. On the contrary, such absorption ensures continuity without intermission. The consequence emanating from such absorption is continuity in service without a break. An assimilation of services rendered in two posts. By such assimilation, there is coalescence and person of the two services and such union makes the service in the absorbing unit a continuation of the service in the other. 80. The term "absorb" in service jurisprudence with reference to a post in the very nature of things implies that, an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post, but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post. The surplus staff which was to be "absorbed" should be treated as having been transferred from one post to another so that there may be no break in their service. On several occasions on account of the taking over of the establishments or institutions belonging to local or other authorities or even private organizations along with the members of the staff, the employees of such non-governmental bodies are absorbed in the Government service. For a permanent absorption, a formal order of the absorbing body is necessary. Similarly, where employees of a sick Government company are deployed in the Government service pursuant to a scheme settled by the BIFR, it would amount to absorption of such employees and the scheme would be as good as statute and cannot be defeated by the State Legislation. Where a private educational institution is taken over by the State Government subject to the condition that the services rendered by the members to the staff in such institution will be treated as public service, an officer who is absorbed by that process in Government service is entitled to count his previous service in the equivalent cadre for purposes of seniority. In such a case, it is not competent for the Government to treat him as a fresh recruit in the service. In such a case, it is not competent for the Government to treat him as a fresh recruit in the service. Similarly, where an enactment provides that servants of the erstwhile district boards should be absorbed in Government service, the clear meaning of the word 'absorption' is continuation of service of an employee without interruption. The consequence emanating from such absorption is continuity in service without any break. The true position in such a case is that services under the erstwhile district board become united with the services under the Government and such an absorption excludes the concept of termination of previous service and the commencement of service in the Government. In such a case, it is not competent for the Government to exclude the whole or part of the previous service for purpose of seniority in the State service. Similar is the effect where a private organization is taken over by a Government order. The antecedent service has to be taken into account for consideration of seniority under the Government. Such taking over excludes the concept of fresh appointment. A deputationist has no enforceable right to absorption in deputed department. The employer always has a right to repatriate the deputationist to the parent organization. That means consent of the parent authority as well as the authority under which deputation takes place is necessary. 81. Therefore, absorption pre-supposes that the person absorbed is recruited to service in a legal manner. When he is absorbed it is not a fresh appointment. Absorption ensures continuity without intermission. The person absorbed must be holding a permanent post in service in his own right by virtue of either recruitment or promotion to the post. The consequence emanating from such absorption is continuity in service without any break. Service rendered under the old post unites with the service under the new post, which excludes the concept of termination of previous service and the commencement of service under the new post. The thread which connects the old employment from new employment is the legality of employment. If this link is missing there cannot be absorption. Normally the absorption is resorted to after a transfer or deputation. The absorbed should be treated as having been transferred or deputed from one post to another, so that there may be no break in their service. ABSORPTION AS A MODE OF RECRUITMENT 82. If this link is missing there cannot be absorption. Normally the absorption is resorted to after a transfer or deputation. The absorbed should be treated as having been transferred or deputed from one post to another, so that there may be no break in their service. ABSORPTION AS A MODE OF RECRUITMENT 82. An employee is recruited to service to hold a post or office, in terms of the law applicable to such recruitment. Therefore, his appointment is legal and valid. Thereafter, if he is transferred or deputed to a different department, or a different establishment to an equivalent post. His tenure in the post to which he is transferred or deputed is only temporary. After the expiry of the period, he is liable to be repatriated to his parent organization. But if his services are very much required in the transferred post on a permanent basis, it is possible to 'absorb' him in the transferred post. From the date of absorption, he becomes a holder of the said post in his own right, and loses his lien in the parent post. In other words it amounts to his recruitment to the new post. After he is recruited to the new post, he will enjoy all the benefits attached to the new post as if he is appointed to the said post and also the benefit of continuity of service without any break, rendered by him in his parent organisation. 83. Therefore, the person who is absorbed should be holding an equivalent valid post in service. By absorption his appointment to the post cannot be validated for the first time. A person illegally appointed cannot be absorbed into service. Absorption cannot be resorted to regularize an illegal appointment. Absorption is not a mode of recruitment to issue fresh appointment to persons who are appointed for a temporary period on daily wages or on contract basis. REGULARISATION 84. The next word, which is of utmost important in deciding the issue in this case, is the meaning of the word ‘regularisation’. The Constitution Bench of the Apex Court in the case of SECRETARY, STATE OF KARNATAKA AND OTHERS Versus UMADEVI AND OTHERS reported in 2006 (4) 1 SCC has approved the judgment in (1) S.V. Narayanappa's case, (2) R.N. Nanjundappa's and (3) B.N. Nagarajan's case, where this word has been explained. The Constitution Bench of the Apex Court in the case of SECRETARY, STATE OF KARNATAKA AND OTHERS Versus UMADEVI AND OTHERS reported in 2006 (4) 1 SCC has approved the judgment in (1) S.V. Narayanappa's case, (2) R.N. Nanjundappa's and (3) B.N. Nagarajan's case, where this word has been explained. To understand the concept of regularisation, it is necessary to look into these decisions. 85. In the case of STATE OF KARNATAKA Versus S.V. NARAYANAPPA reported in AIR 1967 SC 1071 , the Apex Court dealing with the regularisation of services of the local candidates at para-10 has held as under: “It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September, 22, 1961. This construction finds support from sub-clause (iii) which provides that local service prior to regularisation would be counted for the purpose of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in Sub-Clause (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both Sub-clauses 2 and 3. The High Court was, therefore, in error when it said that Sub-Clause (iv) did not relate to considerations under Sub-Clause (ii) or that it had reference only to a break in service before December 31, 1959. Continuity of service is thus a condition for both Sub-clauses 2 and 3. The High Court was, therefore, in error when it said that Sub-Clause (iv) did not relate to considerations under Sub-Clause (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed Sub-Clause (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, 1960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuous service provided they were in service on the two relevant dates viz., January 1, 1960 and September 22, 1961, would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, 1960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against others who were recruited properly under the Rules of Recruitment. Under Sub-Clause (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961, such service is to be taken into account for purposes of leave, pension and increments but not for purposes of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise. For the reasons aforesaid the construction placed by the High Court cannot be sustained." 86. The next judgment is the case of R.N. NANJUNDAPPA Versus T. THIMMAIAH reported in (1972) 1 SCC 409 . For the reasons aforesaid the construction placed by the High Court cannot be sustained." 86. The next judgment is the case of R.N. NANJUNDAPPA Versus T. THIMMAIAH reported in (1972) 1 SCC 409 . The Honourable Supreme Court while considering the rules providing for methods of recruitment by promotion, selection or competitive examination has held as under: "23. It was contended on behalf of the State that under Article 309 of the Constitution the State has power to make a rule regularising the appointment. Shelter was taken behind Article 162 of the Constitution and the power of the Government to appoint. No one can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination. 24. It was contended on behalf of the State that Rule 3 of the Mysore State Civil Services Rules, 1957 spoke of method of recruitment to be by competitive examination, or by selection, or by promotion. The method of recruitment and qualifications for each State Civil Service were to be set forth in the rules of recruitment but there were no rules until the year 1964. The method of recruitment and qualifications for each State Civil Service were to be set forth in the rules of recruitment but there were no rules until the year 1964. In 1964 the rule spoke of the Principal of School of Mines to be Class-I and the method of recruitment for the Principal of School of Mines was to fill up the post by promotion from the cadre of Heads of Sections or by direct recruitment. It was said on behalf of the respondent that he was the only eligible candidate in 1964, and, therefore, his appointment was valid. This is opposed to facts. It is not a case of direct recruitment in the year 1958 or at any time. The State made rules in the year 1967 to regularise the appointment from the month of February, 1958. Again, if it were a case of direct recruitment one would expect proper materials for the direct recruitment. There should be advertisements for the post Candidates have to be selected. Their respective merits would have to be considered. To say that the appellant was the only eligible candidate is to deny the rights of others to apply for such eligibility tests. 26. The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case, the rule, which regularised the appointment of the respondent with effect from February 15th, 1958 notwithstanding any rules cannot be said to be in exercise of the power under Article 162. First, Article 162 does not speak of rules whereas Article 309 speaks of the rules. Therefore, the present case touches the power of the State to make rules under Article 309 of the nature impeached here. Secondly, when the Government acted under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two articles operate in different areas. Therefore, the present case touches the power of the State to make rules under Article 309 of the nature impeached here. Secondly, when the Government acted under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two articles operate in different areas. Regularisation cannot be said to be a form of appointment Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas Counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act, which is within the power and province of the authority, but there has been some non-compliance with procedure or manner, which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. 87. Then they proceeded to hold that regularisation bad for the following reasons: 33. First, regularisation is not itself a mode of appointment. Secondly, the modes of appointments are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under Rule 16 by transfer of a person holding an equivalent grade the appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of the School of Mines." Then they concluded by saying, "34. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of the School of Mines." Then they concluded by saying, "34. Article 162 does not confer power of regularisation. Article 162 does not empower on the Government to make rules for the recruitment or conditions of service. There can be rule for one person or one post but rules are made for recruitment and conditions of service. Rules are not for the purpose of validating an illegal appointment or for making an appointments or promotions or approval. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, the regularisation by way of Rules under Article 309 in the present case by stating that notwithstanding anything in the rules the appointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection. If the respondent were to be appointed by direct recruitment, there should have been advertisements. Then others would have got the opportunity of applying. That would be proper selection." 88. Again the Apex Court in the case of B.N. NAGARAJAN Versus STATE OF KARNATAKA reported in AIR 1979 SC 1681 explaining the meaning of the word ‘regular’ and ‘regularisation’ has held as under: "Firstly, the words "regular" or "regularisation" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. When rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Art. 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from the 1st of November., 1956 would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art.309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art. 309 of the Constitution." 89. A three judge of the Apex Court in A. VMARANI Versus REGISTRAR OF COOPERATIVE SOCIETIES AND OTHERS reported in (2004) 7 SCC 112 dealing with regularisation has held as under: "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. 40. It is equally well settled that those who come by back door should go through that door. 41. Regularisation furthermore cannot give permanence to an employee whose services are accused hoc in nature. 45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointment have been made in contravention of the statutory rules. 90. 41. Regularisation furthermore cannot give permanence to an employee whose services are accused hoc in nature. 45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointment have been made in contravention of the statutory rules. 90. The Constitution Bench in Uma Devi'sdealing with regularisation has held as under:- "15.Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Versus S.V. NARAYANAPPA [ 1967 (1) S.C.R. 128 ], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA VersusT. THIMMIAH & ANR. [ (1972) 2 S.C.R. 799 ], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:- "Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. 16. In B.N. Nagarajan & Ors. VersusState of Karnataka & Ors. [ (1979) 3 SCR 937 ], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. 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. 19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive." 91. The expression "regularisation" has a definite connotation. The concept of regularisation pre-supposes irregular appointment at the first instance so as to enable the employer to regularise the same. There is a vital distinction between "regularisation" and "conferment of permanence", in service jurisprudence. The words "regular" or "regularisation" do not connote permanence. They cannot be construed to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure the defects in the method of appointments. It is a misconception to equate regularisation with permanence. Regularisation is not a mode of appointment. Regularisation 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. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act, which is within the power and province of the authority, where there has been some noncompliance with procedure or manner, of recruitment which does not go to the root of the appointment. In case of a direct recruitment there should be an advertisement for the post. Everyone who is duly qualified should have an opportunity of applying. The respective merits would have to be considered. Candidates have to be selected. Then only it could be called a proper selection. In case of a direct recruitment there should be an advertisement for the post. Everyone who is duly qualified should have an opportunity of applying. The respective merits would have to be considered. Candidates have to be selected. Then only it could be called a proper selection. If in the process of such selection, if any irregularity is crept in, the said irregularity could be corrected by way of regularization. Rules under Article 309 are for the purpose of laying down the conditions for service and recruitment. Therefore, regularisation by way of Rules under Article 309 by stating that notwithstanding anything in the rules, the appointment is being regularised is itself in violation of the rules as to appointment as to cadre and also as to the proper selection. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is liable to be struck down on the ground that it is in violation of current rules. By regularization, an illegal appointment cannot be regularized. Similarly, regularization cannot be resorted to, to give permanence to an employment. If the appointment is a contractual one it should come to an end with the expiry of the terms for which they were appointed. If it is an employment on daily basis it comes to an end when it is discontinued. If it is a temporary employment it comes to an end after the expiry of the period for which he was appointed. In all these cases regularization cannot be adopted to confer permanence on such employment. The aforesaid persons cannot be recruited into service permanently by way of regularization. If the appointment is in infraction of the Rules or if it is in violation of the Constitution, then it is a case of illegal appointment and illegality cannot be regularised. REGULARISATION AS A MODE OF RECRUITMENT 92. Regularisation is not a mode of recruitment/appointment. Regularisation cannot give permanence to an employee who is appointed on contract basis or temporarily or as daily wages. By regularisation an illegal appointment cannot be regularised. REGULARISATION AS A MODE OF RECRUITMENT 92. Regularisation is not a mode of recruitment/appointment. Regularisation cannot give permanence to an employee who is appointed on contract basis or temporarily or as daily wages. By regularisation an illegal appointment cannot be regularised. If in the process of recruitment, there is some non-compliance of the procedure, which does not go to the root of the appointment, such an irregularity could be condoned by way of regularisation. By way of absorption such an irregularity cannot be condoned. The condition precedent for absorption, is, the person to be absorbed should have been recruited into service validly. A valid appointment is a sine quo non for absorption. Such an appointment does not require regularisation. Therefore absorption by way of regularisation is a misnomer. If an illegal or irregular appointment is sought to be regularised by way of absorption, the absorption becomes bad, and the absorption confers no right to the person in the post to which he is absorbed. LAW WHICH HOLDS THE FIELD TODAY 93. Now let us see what is the law laid down by the Constitution Bench of the Apex Court in the judgment in Uma Devi's case. At paras 2, 3, 4, 5, 43 and 45 it is held as under:- 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. 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. 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. 43. It is this conflict that is reflected in these cases referred to the Constitution Bench. 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. 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. 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution”. 94. 94. Subsequently, the ratio of the Constitution Bench judgment has been followed by two judges bench for declining to entertain the claim of regularisation of service made by adhoc/temporary/daily wage/casual employment or for reversing the orders of the high court granting relief to such employees in the case Indian Drugs and Pharmaceuticals Ltd. Versus Workmen (2007) 1 SCC 408 ; Gangadhar Pillai Versus Siemens Ltd. (2007)1 SCC 533 ; Kendriya Vidyalaya Sangthan Versus L.V. Subramanyeshwara and another reported (2007)5 SCC 326 ; Hindustan Aeronautics Ltd. Versus Dan Bahadur Singh and Others reported in (2007)6 SCC 207 . 95. However, in UP STATE ELECTRICITY BOARD Versus POORAN CHANDRA PANDEY reported in (2007) 11 SCC 92 , the two judges Bench attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the Judgment in UMA DEVI's case is in conflict with the judgment of the seven judges bench in Maneka Gandhi Versus Union of India (1978) 1 SCC 248 . When this was brought to the notice of a three judges bench of the Apex Court in the case of OFFICIAL LIQUIDATOR Versus DAYANAND AND OTHERS [(2008) 10 SCC] after carefully analysing the judgment in Pooran's case they were of the view that the observations were not called for. 96. After pointing out how to the facts of the case in Pooran's case, the said judgment has no application, they observed that the two Judge Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in the State of Karnataka Versus Umadevi. Then referring to various judgments of the Apex Court dealing with role of judicial discipline which is a Sine-quo-non for sustaining system they held as under :- 90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its deals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. 92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge bench in U.P.SEB versus Pooran Chandra Pandey 12 should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench. 97. 97. Therefore, the comments and observations made by the two Judges Bench in Pooran Chandra's case, at best is only an obiter and the same is not binding on this Court and the said judgment cannot be relied upon or made basis for by passing principles laid down by the Constitution Bench. In other words, the law laid down by the Constitution Bench in Umadevi's case is reiterated. 98. Therefore, from the aforesaid discussion it is clear that the law regarding regularisation is now settled by the decision of the Constitution Bench of the Apex Court in Umadevi's case. When an attempt was made to dilute the said law, the larger bench found fault with such an attempt and declared the said judgment as only a obiter and not a binding decision on the High Court. A series of judgments of the Apex Court have reiterated the said legal position. Therefore, the said judgment holds the field. 99. What could be deduced from the aforesaid judgment is as under: - 1. Any public employment has to be in terms of the Constitutional scheme. 2. Adherence to the rule of equality in public employment is a basic feature of our Constitution. 3. Regular appointment must be the rule. 4. 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. 5. The appointment should be in terms of relevant rules and after a proper competition among the qualified persons. Otherwise, such appointment would not confer any right on the appointee. 6. If a contractual appointment is made, the appointment comes to an end at the end of the contract. The Government or the instrumentality of the State cannot confer any permanency of such employment either by way of regularisation or by way of absorption. 7. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. 8. A temporary employee could not claim to be made permanent on the expiry of his term of appointment. 9. 7. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. 8. A temporary employee could not claim to be made permanent on the expiry of his term of appointment. 9. Merely because a temporary employee or a casual wage worker is continued for a time being beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength on such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. 10. Regularisation is not a mode of appointment. 11. Regularisation can be only of irregular appointment. 12. Regularisation of an illegal appointment is not permissible in law. It is not permissible in law, to confer permanence on the employee, whose appointment is illegal. 13. The Government or the instrumentality of the State cannot regularise the appointment made contrary to the course of selection as envisaged by the relevant rules. 14. The High Court acting under Article 226 of the Constitution of India 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. 15. There should be no further by-passing of the constitutional requirement and regularisation or making permanent those not duly appointed as per the constitutional scheme. 100. However, in Umadevi's case, the Apex Court was conscious of the fact that because of divergent opinions of the Apex Court itself, directions had been issued from time to time for regularisation which was given effect to and persons who are irregularly appointed were regularised in service. Therefore, they carved out an exception to the law laid down by them regarding regularisation. It finds a place in para 53 of the said judgment which reads as under :- 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S. V. Narayanappa (Supra), R.N. Nanjundappa (Supra) and B.N.Nagarajan (Supra) 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 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 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. 101. In fact, subsequently, the two judge Bench of the Apex Court had an occasion to explain this para 53 in the case of STATE OF KARNATAKA & ORS. Versus M.L. KESARI & ORS reported in AIR 2010 SC 2587 , as under:- 5. It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi ( AIR 2006 SC 1806 : 2006 AIR SCW 1991), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). 6. The term ‘one-time measure’ has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services. Again at para 8 it is held as under :- 8. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ ad-hoc/ casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure. 102. The explanation carved out by the Apex Court in Umadevi's case is applicable only to cases where the following conditions are fulfilled. i) A person should have been appointed temporarily to work against a sanctioned post; ii) Such a person should possess the required qualification prescribed under law to hold the said post; iii) Such a person should have continued to hold the said post uninterruptedly for a period of 10 years or more; iv) Such a continuous service should have been rendered without the aid of or under the cover of order of the courts or the Tribunals; v) Conditions stipulated in (i) to (iv) should have been fulfilled anterior to the pronouncement of the judgment in Umadevi's case i.e., 10th April 2006. vi) It has no prospective application. vii) The appointment should be only irregular and not illegal. 103. Only in cases where the aforesaid conditions are fulfilled, as "one time" measure the Government or the instrumentalities of the State could regularise such irregular appointments. It is manifestly made clear that the regularisation can be only of irregular appointments and not illegal appointments. If the appointment is illegal at the inception, even if a person is in continuous service for more than 10 years, possesses the prescribed qualification and is working against a sanctioned post, regularisation is not permissible. The said benefit is extended only to irregular appointments. 104. If the appointment is illegal at the inception, even if a person is in continuous service for more than 10 years, possesses the prescribed qualification and is working against a sanctioned post, regularisation is not permissible. The said benefit is extended only to irregular appointments. 104. Two other aspects which are settled by the aforesaid judgment of the Apex Court are:- (1) It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents, (vide para 54) (2) 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, (vide para 53) 105. In fact, the judgment on which strong reliance was placed in support of such regularisation by absorption is the judgment of the Apex Court in the case of State of Karnataka and another Versus Suvarna Malini reported in 2001(1) SCC 728 wherein reliance is placed on paras 8 and 9. 8. From time to time, the Government has also been issuing instructions for canalising the method of appointment and directing that even Part-time Lecturers could be appointed through the Directorate of Collegiate Education and not otherwise. The Directorate of Collegiate Education also has been issuing circulars indicating the guidelines. The reasons which weighed with the High Court to sustain striking down of the Absorption Rules are that the so-called Part-time Lecturers had not been appointed after a process of selection in accordance with the prescribed rules but on the other hand, their appointment is dehors the rules. Further such candidates are not scrutinised by the Public Service Commission and they do not possess the NET test, as provided by the University Grants Commission, which is one of the essential requisites for recruitment under the statutory Recruitment Rules of 1993. 9. From the materials on record, it appears that the State Government has been regulating the mode of appointment of Part-time Lecturers and it is not Correct that there has been no process of selection before such appointment of Part-time Lecturers. 9. From the materials on record, it appears that the State Government has been regulating the mode of appointment of Part-time Lecturers and it is not Correct that there has been no process of selection before such appointment of Part-time Lecturers. Even though the selection had not been made by the Public Service Commission, yet there was a process of selection and it further appears that unqualified people were not being appointed as Part-time Lecturers. Part-time Lecturers having formed a class by themselves and for some reason are the other, they having been deprived of the benefits of the earlier directions of this court on account of inaction of the part of the State Government, the matter was re-examined by a Committee of experts as to how best, the services of these Part-time Lecturers can be utilised and at the same time, there will be no dilution in the quality of teaching nor can there be any infraction in the minimum qualification necessary for appointment as a lecturer. The concept of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. All that Article 14 guarantees is a similarity of treatment contradistinguished from identical treatment. Equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though, they are the same. It of course means denial of any special privilege by reason of birth, creed or the like. The legislature as well as the executive Government, while dealing with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws, to attain any particular object and to achieve that object, it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination. Mere differentiation or inequality of treatment does not per se amount to discrimination. When the absorption rules are examined from the aforesaid stand point and when we consider the circumstances under which the said Rules were made to solve a human problem and that the Rules made were put to objection to the general public and even the Public Service Commission was consulted and finally was (sic were laid) before the State Legislature to have their concurrence, we are of the considered opinion that the High Court committed an error in striking down the Rules on the ground that they were discriminatory. When this Court deprecates the regularisation and absorption when it comes to the conclusion that such regularisation and absorption has become a common method of allowing back-door entries and then regularising such entries, it is not that in every case, the court would be justified in striking down the process of absorption or regularisation, more so when such absorption has been made as a legislative measure and that also as a one time measure, and at the same time insisting upon the essential qualifications to be duly complied with, by the persons intended to be absorbed on regular basis. In the aforesaid premises, we have no hesitation to come to the conclusion that the Tribunal as well as the High Court committed serious error in striking down the impugned absorption rules. We, therefore, set aside the judgment of the Tribunal and the High Court and allow these appeals. While we hold the absorption rules to be valid, we would further direct that the State government must insist upon the candidates to pass the NET test, as required by the University Grants Commission within the period three years and it is only on passing of such test, the absorbed employees will be entitled to the scale of pay, available for the regular qualified lecturers. Failure on their part to pass the NET test would debar them from being absorbed and regularised. 106. A Division Bench of this Court in the case of M.S. GANESH AND OTHERS versus SUBRAMANYA AND OTHERS [ILR 2002 KAR 4123] had an occasion to consider this argument as well as this judgment and the said argument was answered in the following manner : "15. 106. A Division Bench of this Court in the case of M.S. GANESH AND OTHERS versus SUBRAMANYA AND OTHERS [ILR 2002 KAR 4123] had an occasion to consider this argument as well as this judgment and the said argument was answered in the following manner : "15. The petitioners point out that even the two Absorption Rules with which we are concerned, require possessing of minimum academic qualifications and also require that the candidates should not be disqualified under the General Recruitment Rules and also provide that the absorption is a one time measure. They contend that the Absorption Rules should be upheld on the basis of the ratio laid down in Suvarna Malini's case. But the distinguishing feature in Suvarna Malini's case is that it dealt with the absorption of part-time lecturers who had served for periods varying from 10 years to 20 years. The Supreme Court proceeded on the basis that the case involved not only a question of law, but also a human problem and that if they were not regularised and treated as regular service, they will not be able to get themselves engaged anywhere else and at the same time, their experience in teaching would be lost to the student community. The significant aspect is that the Rules provided for absorption of lecturers who had put in 10 to 20 years of service. It is now recognised by a series of decisions that there is need to make an exception to the general rule (requiring the notifying or advertising posts, inviting applications from all eligible candidates) where persons have served continuously either temporarily or on ad hoc basis or on contract basis for long periods (say 10 years) by framing a scheme for regularizing their service. Therefore, if the Absorption Rules with which we are concerned had provided for absorption on completion of any 10 years service as contract employees, it would have been possible to hold the rules as valid with reference to the decision in Suvarna Malini's case, and the series of other decisions which have permitted regularisation on completion of a long period of temporary service. But where appointed a day earlier, without undergoing the process f selection and thereby denies opportunity to other eligible candidates to compete, it would be nothing but an arbitrary exercise of power violating Articles 14 and 16 of the Constitution. But where appointed a day earlier, without undergoing the process f selection and thereby denies opportunity to other eligible candidates to compete, it would be nothing but an arbitrary exercise of power violating Articles 14 and 16 of the Constitution. It is this aspect that persuaded the Tribunal to hold that the impugned rules were unconstitutional. 18. The petitioners plead hardship. The question is whether petitioners in these cases and others whose names are found in the Schedules to Groups ‘C’ and ‘D’ Absorption Rules, are entitled to any relief? We are informed that some of them are still working as contractual employees in the establishment of Ministers. The services of many were discontinued either as a result of the modification of the interim order granted in these cases and on account of Ministers under whom they were working, ceasing to be Ministers. Some of them have obtained regular employment by undergoing recruitment process. Exact number of the persons who have entered regular service is not valuable. 19. The decisions of the Supreme Court have made it clear that human angle is something that cannot be ignored. We have already referred to the decision in Suvarna Malini's case. We may also refer to the decision of the Supreme Court in H. C. Puttaswamy and Ors. versus The Honourable Chief Justice of Karnataka High Court, Bangalore and Ors. In that case, it was found that certain appointments made violated constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16(1) of the Constitution. The High Court quashed the appointments so made. The said decision of the High Court was affirmed by the Supreme Court. Subsequently, affected employees filed review petitions. While allowing the said review petitions, the Supreme Court held thus: "The human problem stands at the outset in these cases and it is that problem that motivated in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva-voce to be conducted by the Public Service Commission for fresh selection". The Supreme Court directed that such employees shall be treated as regularly appointed with all benefits of past service. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva-voce to be conducted by the Public Service Commission for fresh selection". The Supreme Court directed that such employees shall be treated as regularly appointed with all benefits of past service. Here again, the fact that the employees had been in service for more than 10 years persuaded the Supreme Court to give relief. 20. In pursuance of the decision in Dharwad District Public Works Department Literate Daily Wages Employees Association and Ors. versus State of Karnataka and Ors., the State had formulated the scheme for regularizing the services of persons who were employed on daily wage before 1-7-1984 and who had served for 10 years. This Court in several decisions had recognised the need for regularizing the services of those who have served for 10 years by formulation of some scheme, even if their initial appointment was not as per Rules. 21. The Absorption Rules relate to a group of people who were appointed, not on daily wage basis but on contract basis to serve the Ministers. If such employees had served Ministers for only one term and had left, obviously, they will not be entitled to claim any benefit. But, several of them have been continuously re-employed except for small breaks which shows that they have been found to be efficient and their services are found to be necessary. In the circumstances the quashing of the Rules by the Tribunal will not come in the way of any Rules or scheme being made by the Government enabling absorption in the case of those who have served either for 10 years or as special case for those who have worked not less than 2,400 days in a block period of 10 years. Even those who have not completed 10 years of contract service but who are continued in contract employment may be considered for absorption on completion of that period. We make it clear that ultimately, it is for the State Government to prescribe the minimum period required for absorption, while framing the scheme, provided such period is not arbitrary and is in consonance with the period that is prescribed for absorption/regularization by the Government in other cases." 107. We make it clear that ultimately, it is for the State Government to prescribe the minimum period required for absorption, while framing the scheme, provided such period is not arbitrary and is in consonance with the period that is prescribed for absorption/regularization by the Government in other cases." 107. In the instant case the employees had put in hardly two years of service, on the day the Absorption Rules came into force under which they were absorbed. Therefore, the law laid down by the Supreme Court in Suvarna Malini's case has no application. However, even otherwise, in view of what has been laid down by the Apex Court in Umadevi's case at para 54 that those decisions which run counter to the principle settled in Umadevi's case or in which directions running counter to what they have held herein are given, will stand denuded of their status as precedents. Directions issued in the said decision run counter to the law laid down and declared by the Constitution Bench of the Apex Court. Therefore, they ceased to enjoy the status as a precedents and therefore, that judgment cannot be relied on as a precedent. 108. Then, the latest decision on the points is in STATE OF ORISSA AND ANOTHER Versus MAMATHA MOHANTY reported in (2011) 3 SCC 436 . Dealing with the question of appointment/employment without advertisement it was observed as under:- 35. At one time this Court had been of the view that calling the names 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. 36. 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 with 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. Dealing with the question what is the legal position if an order is bad in its inception, it is held as under:- 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 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 nonest and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. The concept of adverse possession of lien on post or holding over are not applicable in service Jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. Dealing with Article 14 it is held as under:- 56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. Dealing with Article 14 it is held as under:- 56. 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. 57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. 109. Relying upon the judgment of the Apex Court in Hotel Balaji Versus State of Andhra Pradesh reported in 1993 SC 1048 at para 12 it is observed that, to perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce versus Delameter 52 at p. 18. "A Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to lean: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors". Then dealing with 'arbitrariness' it held as under:- 59. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision making process remains bad. ON FACTS 110. It is in this background, we have to consider in the facts of these cases, whether the impugned Rules are arbitrary, violative of Article 14 and 16 of the Constitution and run counter to the Backlog Rules. 111. The decision making process remains bad. ON FACTS 110. It is in this background, we have to consider in the facts of these cases, whether the impugned Rules are arbitrary, violative of Article 14 and 16 of the Constitution and run counter to the Backlog Rules. 111. The applicants before the Tribunal can be broadly categorized under four heads: (1) Persons who had applied against notification issued by the KPSC, which was subsequently withdrawn and did not apply against the notification issued in pursuance of the Government Order which was on contract basis for 12 months period. (2) Persons whose claim was not considered as they belong to age group between 28-29, 34-35. Persons who are above 40 years, whose claim were not considered, whereas persons who are similarly placed, have been given contract employment. (4) The persons who had applied against the notification issued by the KPSC and who also applied against the notification issued for recruiting on contract basis but who were not selected. 112. By virtue of the power conferred under clause-(a) of sub-section (2) and Section 3 of the Act and also sub-section (1) of Section 3 r/w Section 8 of the Act, the Backlog Rules are made by Government of Karnataka. The object of the said Rules is to fill up backlog vacancies. While passing the said Rules, they have taken into consideration the fact that as no recruitment took place for considerable time, persons who possessed eligible required qualification did not get opportunity to be appointed. In the mean-while, with passage of time they were advanced in age. Therefore, it became necessary to provide for a higher age limit when compared with the existing rules to see that those who are over-aged are also accommodated. It is understandable and it is reasonable. 113. In the Backlog Rules, Rule 3 deals with the age which read as under:- "Notwithstanding anything to the contrary contained in the Karnataka Civil Services (General Recruitment) Rules, 1977, or the rules of recruitment specially made for recruitment to any service or post, the candidate, for recruitment to any service or post under these rules must have attained the age of eighteen years but not attained the age of forty years." 114. Therefore by this Rule, what is intended to be done is to enhance the age of candidate for being eligible to be considered for appointment as Assistant Engineers or Junior Engineers. 115. Then, we have Rule 5 which deals with the Mode of recruitment, which reads as under:- "(1) Notwithstanding anything to the contrary contained in the Karnataka Civil Serives (General Recruitment) Rules, 1977 or the rules of recruitment specially made for recruitment to any service or post, recruitment under these rules shall be made by the Selecting Authority. (2) The Selecting Authority shall, for recruitment to the category of posts referred to in rule 4, cause to invite applications from the candidates possessing the qualification by publishing in the official Gazette and in more than one widely circulated regional newspaper, of which, at least, one shall be in Kannada." 116. Next, an attempt is made to bifurcate the candidates between age group of 18-40 into two categories. First category 29-40 years, second category 18-29 years. Though selection was purely on merit, it was made clear that the persons who are in the category of 18-29 would be considered for selection only in the event of sufficient number of persons are not available in the category of 29-40. Therefore, age became the criteria and it superseded the merit. The said bifurcation based purely on age, in which merit was casualty, remains on the statute Book. 117.Rule 6 deals with the aspect, which reads as under:- 6. Therefore, age became the criteria and it superseded the merit. The said bifurcation based purely on age, in which merit was casualty, remains on the statute Book. 117.Rule 6 deals with the aspect, which reads as under:- 6. Authority shall, from among the candidate who have applied in pursuance to the publication inviting applications under rule 5and who have attained the age of 29 years but not attained the age of 40 years, prepare a list of candidates for each category of posts in the order of merit on the basis of percentage of total marks secured in the qualifying examination and taking into consideration the reservation for women, ex-servicemen, physically handicapped and project displaced persons in accordance with the Karnataka Civil Services (General Recruitment) Rules, 1977 and the rural candidates in accordance with the Karnataka Reservations of Appointments or posts (In the Civil Services of the State for Rural candidates, who have attained the age of 29 years but not attained the age of 40 years are not available, the candidates, who have attained the age of 18 years but not attained the age of 29 years shall also be included in the select list in accordance with the provisions specified above to the extent of such insufficient number: Provided that if two or more candidates have secured equal percentage of total marks in the qualifying examination, the order of merit in respect of such candidates shall be fixed on the basis of their age, the one older in age being placed higher in the order of merit. The number of candidates to be included in such list of eligible candidates shall be equal to the total number of vacancies notified under these rules. (2) The list prepared in accordance with sub-rule (1) shall be published in the official Gazette and shall be valid till all the candidates suitable for appointment notified under these rules are appointed. 118. Then we have Rule 8 which reads as under: 8. (2) The list prepared in accordance with sub-rule (1) shall be published in the official Gazette and shall be valid till all the candidates suitable for appointment notified under these rules are appointed. 118. Then we have Rule 8 which reads as under: 8. Application of other rules-The Karnataka Civil Services Rules, the Karnataka Civil Services (Probation) Rules, 1977 and such other rules for the time being in force regulating the conditions of service made or deemed to have been made under the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990) in so far as they are not inconsistent with the provisions of those rules shall be applicable to the persons appointed under these rules." 119. Therefore, in pursuance of the said Backlog Rules, KPSC was requested to recruit Assistant Engineers. The Chief Engineer was requested to recruit Junior Engineers. Notifications were issued. Eligible persons applied in pursuance to the said notification. Absolutely there was no difficulty to complete the recruitment in pursuance of the said notifications. If Government was sincere, when they have taken pains to make these backlog rules, they could have completed the selection process and appointed all eligible persons to the said posts. In fact in all the departments of the Government these backlog vacancies were filled up in terms of these backlog Rules expeditiously without any difficulty. In fact, in the PWD itself, all other backlog vacancies were filled up under the Backlog Rules. However, after the selection process was set in motion, to recruit Assistant and Junior Engineer abruptly the cabinet took a decision to cancel the entire selection process. The Cabinet sub-committee made a recommendation on 10th July 2002 to the cabinet to withdraw the said process. The cabinet held a meeting on 3.8.2002 in Subject No.C-3 38/2002 resolving to withdraw vacancies for Assistant Engineers released to the Karnataka Public Service Commission. They also resolved to withdraw the notification issued to recruit Junior Engineers. Thereafter they have resolved to fill up vacancies on contract basis on the lines similar to those adopted in respect of appointment of Doctors on contract basis in the Department of Health and Family Welfare Department. In fact, this decision to withdraw was taken when the applications challenging the Backlog Rules were pending consideration before the Administrative Tribunal. Thereafter they have resolved to fill up vacancies on contract basis on the lines similar to those adopted in respect of appointment of Doctors on contract basis in the Department of Health and Family Welfare Department. In fact, this decision to withdraw was taken when the applications challenging the Backlog Rules were pending consideration before the Administrative Tribunal. Thus only in Irrigation and PWD Departments, they have not followed the Rules in so far as recruitment of Assistant and Junior Engineers and they have resorted to these Government Orders and thereafter, the absorption Rules. GOVERNMENT ORDER 120. It is in this background, the Government order dated 12.12.2002 came to be passed. The Deputy Commissioner was authorised to initiate recruitment proceedings to fill up backlog posts on the basis of District wise. In this Government order, they have introduced two clauses. They are:- Clause 6- Minimum age shall be 18 years and maximum age 40 years as on 22.11.2001. Clause 7-Recruiting Authority shall classify the candidates on the basis of their age, in the age group of 35-40, 29-34 and 18-28 and the selection list may be prepared on the basis of merit. 121. The said Government order provided that selection would be based on merit. The persons who are in the age group of 35-40 would be preferred first. If sufficient number of persons are not available in the said age group, then the selection would be made in the age group between 29-34 again on the basis of merit. Even in that group, if sufficient number of persons are not available, then persons in the age group of 18-28 are to be selected. Therefore this classification of candidates into three categories run counter to Rule 6 of the Backlog Rules. Again, merit became casualty, age became the sole criteria for selection. This Government order was challenged before the Tribunal. After hearing the parties, to avoid needless delay in the appointments, Tribunal made three suggestions: 122. The first suggestion was to have a common merit list of those who have applied for selection pursuant to the Government order in various Districts and thereafter the selected candidates to be distributed by the Government in accordance with the need in various Districts of the State. 123. The second suggestion was selection as per the Backlog Rules may be simultaneously initiated so that regular recruitment is completed expeditiously. 124. 123. The second suggestion was selection as per the Backlog Rules may be simultaneously initiated so that regular recruitment is completed expeditiously. 124. The third suggestion was when recruitment under the Backlog Rules are notified, the respondents may make provisions for relaxation of the age of candidates who are selected as contract engineers under the Government order to the extent of age of the candidates exceeding the maximum age fixed for recruitment under the Backlog Rules, in the event of contract engineers selected by virtue of the Government order seeking regular recruitment. 125. The learned Advocate General communicated the said suggestions to the Cabinet Sub-committee. The Cabinet Sub-committee after considering the said suggestions accepted the said three suggestions and resolved to appoint contract engineers with three slab age groups and simultaneously to initiate process of recruitment as per the Backlog Rules of 2001. They also accepted the suggestion to make age relaxation. The learned Advocate General was instructed to inform the Honourable Administrative Tribunal the stand of the Government. Thereafter submission was made before the Tribunal that the Government accepts all the three suggestions. Therefore, the Tribunal by its order dated 5.3.2003 disposed of the applications with a direction that the suggestions made by it may be acted upon in relation to contract recruitment as per the Government order as well as the Backlog Rules. Therefore, it held that the contract recruitment notified under the Government order shall stand modified to the extent indicated in the said order. It also made it clear that the said order shall not be regarded as a precedent applicable to any other recruitment. All contentions raised in the applications are left open for being urged at any future point of time in the event of need. Therefore, the Tribunal did not go into the question of legality of the Government order. The contention that the validity of the said Government Order was upheld by the Tribunal is not correct. 126. The Government by giving effect to the said suggestions passed a Government order dated 5.4.2003 modifying the terms of the earlier order in terms of the suggestions of the Tribunal. The recruitment was done in terms of the Government order dated 5.4.2003. It is to be noticed here that the said recruitment of contract engineers was for a period of only 12 months. They recruited 846 Assistant Engineers and 501 Junior Engineers. The recruitment was done in terms of the Government order dated 5.4.2003. It is to be noticed here that the said recruitment of contract engineers was for a period of only 12 months. They recruited 846 Assistant Engineers and 501 Junior Engineers. These appointments are admittedly made on contract basis by invoking Rule 15 of the Rules 1977. The said Rules start with an non-obstante clause. Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the Government may, if it considers necessary for reasons to be recorded in writing, that it is in public interest so to do, appoint to the posts requiring technical qualifications, any person, who in its opinion is able to discharge the duties of such post on such terms and conditions as may be determined by the agreement. The total period of appointment of any person or the total period of appointment in any post under clause (b) of sub-rule (1) shall not exceed five years. The power to make appointment is conferred on the Government. The said power was not delegated to the Chief Engineer who has made these contract appointments. Therefore the appointment of these contract Engineers by a person who is not authorised to appoint, renders his appointment illegal from the inception. If an order appointing a contract engineer is bad in law, then this irregularity strikes at the root of the order, renders it non est in the eye of law and it cannot be sanctifed at a later stage in any manner. 127. Rule 7 of the Karnataka Civil Services (CC and A) Rules, 1957 provides, save as otherwise provided, all first appointments to the State Civil Services Group 'A' and Group 'B' shall be made by the Government, provided that, where, in respect of any posts under the said State Civil Services, Group ‘B’, any other appointing authority is specified, first appointments to such posts shall be made by the authority so specified. All first appointments to the State Civil Services Groups ‘C’ and ‘D’ shall be made by the authorities mentioned in column (2) of Schedules II and III. The post of Assistant Engineers is a Group-B post. The first appointment should be made by the Government. All first appointments to the State Civil Services Groups ‘C’ and ‘D’ shall be made by the authorities mentioned in column (2) of Schedules II and III. The post of Assistant Engineers is a Group-B post. The first appointment should be made by the Government. Again the initial appointment of these contract Engineers, in particular the Assistant Engineers is per se illegal, contrary to law and non est in the eye of law. Therefore the recruitment made in pursuance of the said Government Order is illegal recruitment and it is not irregular recruitment. 128. Under Rules 1977, the recruitment by direct recruitment is two fold. It is either by competitive examination or by selection. In the instant case the recruitment was by way of selection. Clause (b) of Sub-Rule (1) of Rule 4 provides that, if it is by selection, after giving such adequate publicity to the recruitment, as the appointment authority may determine, in the order of merit of candidates as determined by the Commission, the Advisory or Selection Committee or the Appointing Authority. "Commission" means the Karnataka Public Service Commission. No Advisory or Selection Committee was constituted. Selection means in accordance with the provisions of the Rules, 1977, i.e., after consulting the Commission where such consultation is necessary. The recruiting authority under the Backlog Rules 2001 in so far as B-Group is concerned is KPSC. That is the reason why a request was made to KPSC to initiate proceedings for recruitment under the said Rules. Later, the said lawful recruitment procedure was abandoned. The Government Order conferred the said power on the Chief Engineer. Assistant Engineer's post being a Group-B post, the said Government Order runs counter to the Rules. 129. The appointment made under this rule cannot be construed as direct recruitment. Because Rule 2(g) of the Rules of 1977 explicitly makes it clear that the direct recruitment in relation to any service or post means appointment otherwise than by promotion or transfer from any State Civil Service, but shall not include appointment under Rule 15. Therefore, the appointment of these engineers cannot be construed as direct recruitment, which is a condition precedent for conferring permanency on such appointment. 130. Rule 6 of the Backlog Rules speaks of preparation of list of candidates for each category of post in the order of merit on the basis of the percentage of total marks secured in the qualifying examination. 130. Rule 6 of the Backlog Rules speaks of preparation of list of candidates for each category of post in the order of merit on the basis of the percentage of total marks secured in the qualifying examination. The age prescribed is 18-40 years. Among them two groups are formed viz., 18-29 years and 29-40 years. The persons who fell under the category of 29-40 are to be appointed in the first instance. Only when sufficient number of persons are not available in that group, appointment has to be made between age group of 18-29. There is discrimination between persons who are similarly placed who possess requisite qualification and who possess merit are discriminated on the ground of age, which is against the constitutional scheme. In the Government Order one more age group contrary to the aforesaid Rule is introduced bifurcating candidates belonging to the age group of 29 years to 40 years into two categories, i.e., 29-33 years and 34 years to 40 years. The right accrued to a person under the Backlog Rules, where he was between age group of 29-40 and possessed requisite merit, he would have preferential right over a person who did not possess merit even though he is more aged. By virtue of these three slabs system, merit is compromised and there is discrimination apparent on the face of the record. There are petitioners before this Court who complain that Government has not made any provision at all for persons of the age group between 28 & 29, 34 and 35, though all persons aged between 18-40 are eligible to apply. It is only the persons who are between age group of 35 and 40 get preference and then persons who are in the age group of 29-34 get preference and then the persons who are in the age group of 18 & 28 get preference. In the bargain, persons who are in age group of 28 & 29 and 34 and 35 are not even considered. Therefore, the said classification is unreasonable. This classification is arbitrary. There is no nexus sought to be achieved and merit is sacrificed. Age became sole criteria for a public employment. In the bargain, persons who are in age group of 28 & 29 and 34 and 35 are not even considered. Therefore, the said classification is unreasonable. This classification is arbitrary. There is no nexus sought to be achieved and merit is sacrificed. Age became sole criteria for a public employment. Therefore, this classification which is resorted to successfully excluding persons who possess requisite qualification, who belong to the same age group and who did not opt for contract employment, are kept away from employment, which is violative of Article 14 and 16 of the Constitution. Therefore on that ground also, the impugned order is vitiated. ARTICLE 162 131. Article 162 of the Constitution provides for extension of the executive power of the State to the matters with respect to which the legislature of the State has power to make laws. The Article, in short, says that the executive power of a State shall be coextensive with its legislative power. Under Article 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the legislature of a State has power to make laws. If there is no legislation covering the field of selection of candidates, the State Government would, undoubtedly, be competent to pass executive orders in this regard. Even though the executive power may, in the absence of a constitutional bar, be exercised in the absence of any legislation to support such action, it cannot be so exercised as to contravene any law relating to the matter or Rules having the force of law. The Executive has the power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field. Article 162 of the Constitution cannot prevail over a statute or statutory Rules framed under the proviso to Article 309. In case of any conflict between an executive Instruction and a Rule made under Article 309, the latter shall prevail. 132. Therefore, when an executive order is called in question, while exercising the power of judicial review, the Court is required to see whether the Government has departed from such rule and if so, the action of the Government is liable to be struck down. 133. In the instant case, Backlog special Rules were framed for filling up the Backlog vacancies. Therefore, when an executive order is called in question, while exercising the power of judicial review, the Court is required to see whether the Government has departed from such rule and if so, the action of the Government is liable to be struck down. 133. In the instant case, Backlog special Rules were framed for filling up the Backlog vacancies. In fact, in pursuance of the said Rules, KPSC was asked to initiate recruitment proceedings for recruitment of Assistant Engineers which they did. Similarly, the Chief Engineer was asked to initiate proceedings for recruiting Junior Engineers. If the Assistant and Junior Engineers have to be recruited on contract basis, Rule 15 of the Karnataka Civil Services (General Recruitment) Rules, 1977 provided for recruitment on contract basis. Therefore, the entire field for recruitment of engineers to fill up the Backlog vacancies either as permanent employees or on contract basis was governed by these Rules. Therefore, when the field was governed by the Rules providing for recruitment, the question of the State exercising its power under Article 162 of the Constitution would not arise. The executive power of the State under Article 162 is co-extensive with that of legislative power of the States. Therefore, it is competent for the State Government to regulate recruitment and conditions of service relating to the service under them in exercise of executive power, in the absence of legislation or statutory Rules framed under proviso to Article 309 of the Constitution. But, once the field is occupied either by legislation or by statutory Rules it is not open to the executive to act contrary to or ignoring the statutory provisions. In the instant case there is legislation as well as the statutory Rules to regulate recruitment and conditions of service relating to the service under them and also to fill up Backlog vacancies. The Governor of Karnataka, by virtue of the proviso to Article 309 of the Constitution of India, had made the Karnataka Civil Services (Classification, Control, and Appeal) Rules, 1957, which defined who is the appointing authority and how appointments should be made to State Civil Service. Again by virtue of the aforesaid provision the Governor has made the Karnataka Civil Services (General Recruitment) Rules, 1977 providing for method of recruitment and procedure of appointment as well as for appointment by contract. Again by virtue of the aforesaid provision the Governor has made the Karnataka Civil Services (General Recruitment) Rules, 1977 providing for method of recruitment and procedure of appointment as well as for appointment by contract. The Karnataka Legislature by virtue of the power conferred under Clause (2) of Article 187, Clause (2) of Article 229 and Article 309 and under entries 3 and 41 of List II of the seventh schedule to the Constitution of India has passed the Karnataka State Civil Services Act, 1978 for regulating the recruitment and the conditions of service of persons appointed to public services and posts in connection with the affairs of the State of Karnataka. By virtue of the power conferred by Sub-Section (1) of Section 3 read with Section 8 of the aforesaid Act, the Government of Karnataka has made the Karnataka Public Works (Irrigation Services) (Recruitment of Assistant Engineers and Junior Engineers) (Special) Rules, 1998 to recruit Assistant and Junior Engineers in the Department, providing for the manner and method of selection and for their appointment. Lastly, again by invoking the very same provision the Government of Karnataka made the Karnataka Civil Services (Unfilled Vacancies Reserved for Persons Belonging to Scheduled Caste / Scheduled Tribes) (Special Recruitment) Rules, 2001 i.e., Backlog Rules providing for age relaxation, mode and manner of selection to the backlog vacancies. In spite of availability of such legislation and the Rules, and when the field is completely occupied, the executive acted contrary to the statutory provisions in the matter of recruitment. Therefore, the Government order issued under the purported exercise of the executive power under Article 162 of the Constitution is void ab initio. Consequently, the appointment orders on contract basis under such void order is also void ab initio. It is not a case of irregular appointment. It is a case of illegal appointment, an appointment without the authority of law and therefore an appointment which is void abinitio. ABSORPTION RULES 134. Then the Cabinet instructed that action may be initiated to regularise the services of the said engineers who have worked on contract basis against the backlog vacancies by bringing necessary amendments to the rules and the above decision may also to be informed to the Tribunal. Pending finalisation of the process, their services may be extended by six months at a time from time to time. Pending finalisation of the process, their services may be extended by six months at a time from time to time. Accordingly, orders were issued extending the services of the contract engineers by six months. The DPAR was of the view that if the services of contract engineers is to be regularised, special rules have to be framed. Therefore, they framed draft rules and sent it to the Law department. The Law department put up a note stating that Applications filed to fill the posts as per the Backlog Rules are pending in the High Court in W.P.Nos.37663-37696/2003 and in the said writ petitions, the High Court has passed the order as under:- "If the State Government fails to initiate steps for regular recruitment, in accordance with the Special Recruitment Rules, and attempts to perpetuate the contract appointments, it is open to the petitioners at that stage, to seek appropriate relief ". 135. Therefore, they were of the view that if these absorption rules are challenged in a Court of law, it would be difficult to defend the same. They were also of the view that the learned Advocate General has given an undertaking to the Karnataka Administrative Tribunal as well as to the High Court in W.P.Nos.15422-15431/2002 and W.P.Nos.24601-24603/ 2003 and W.P.Nos.37663-37696/2003 to the effect that action will be taken to recruit these contract engineers under the Backlog Rules and therefore, the proposal to regularise their services by making absorption rules is not acceptable. Therefore, they sought for reconsideration of the decision by the Government. The cabinet considered the said suggestion of the law department and were not persuaded to reconsider the earlier decision. The Cabinet instructed the Department to request the Advocate General to inform the Karnataka Administrative Tribunal that they would like to continue and absorb the candidates recruited on contract basis. Towards this end, the Government decided to extend the services of those candidates whose term was expiring on 8.4.2005 by another six months subject to approval of Karnataka Administrative Tribunal. Further they also approved the draft of the impugned Rules of 2005, again subject to approval of Karnataka Administrative Tribunal. The said fact was never brought to the notice of Karnataka Administrative Tribunal. However, the Government proceeded to issue impugned Rules. Alongwith the Rules, they also made a list of all the Engineers who are recruited as contract engineers and regularised their service. The said fact was never brought to the notice of Karnataka Administrative Tribunal. However, the Government proceeded to issue impugned Rules. Alongwith the Rules, they also made a list of all the Engineers who are recruited as contract engineers and regularised their service. Therefore, the Government of the day did not keep its word given to the Tribunal and this Court to initiate recruitment under the Backlog Rules. They went back on the undertaking given to the Tribunal. 136. The Rule 3 & 4 of the absorption Rules impugned, reads as under:- "3. Absorption of Contract Assistant Engineers and Junior Engineers appointed against backlog vacanies in the Department of Public Works Engineering, Water Resources and Rural Development and Panchayat Raj into the State Civil Services Notwithstanding anything contained in the Karnataka Civil Services (General Recruitment) Rules, 1977 or the Karnataka Public Works Engineering Department Service (Recruitment) Rules, 1988 or Karnataka Public Works (Irrigation Services) (Recruitment) Rules, 1988 or the rules of recruitment pertaining to Rural Development and Panchayat Raj Department or any other rules made or deemed to have been made under the provisions of the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990) every contract Assistant Engineers and Junior Engineers mentioned in column (2) of the schedule and continued as such on the date of commencement of these rules, shall with effect from such date of commencement be absorbed in the corresponding category of posts and pay scales specified in columns (5) and (6) thereof respectively, in the Departments of Public Works Engineering, Water Resources and Rural Development and Panchayat Raj respectively; Provided that no such person shall be absorbed - (i) If, he was disqualified for appointment under the Karnataka Civil Services (General Recruitment) Rules, 1977 on the date of his appointment as Assistant Engineer or Junior Engineer; (ii) If, he does not possess the minimum academic qualification, specified in the rules of recruitment applicable for recruitment to the said post in the respective services; (iii) In any post reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes to which he was appointed as contract Assistant Engineers or Junior Engineers, if he is found to be not belonging to such castes or tribes, as the case may be. Rule 4: Pay, pension, leave and seniority of Assistant Engineers and Junior engineers absorbed under these Rules - Notwithstanding anything contained in the Karnataka Civil Services Rules - (i) The initial basic pay of a contract Assistant Engineer and Junior Engineer absorbed under these rules shall be fixed at the minimum in the scale of pay of the Assistant Engineers and Junior Engineers as the case may be, to which, he is appointed with effect the date of his absorption under these rules. (ii) The services rendered as a Assistant Engineer or Junior Engineer, as the case may be, on contract basis shall count for the purpose of leave and pension only and services rendered on contract basis shall not count for purpose of seniority and for grant of Selection Time scale of Pay under the Karnataka Civil Services (Time Bound Advancement) Rules, 1983 and the Karnataka Civil Services (Automatic grant of Special Promotion to Senior Scale of Pay) Rules, 1991. (iii) The seniority interse among persons regularised under these rules shall be in accordance with the seniority determined by the selection authority at the time of their appointment on contract basis. Rule 5. Application of other rules:-The provisions of the Karnataka State Civil Services Rules, the Karnataka Civil Services (Conduct) Rules, 1966 and all other rules regulating the conditions of services of the Government servants, in so far as they are not inconsistent with the provisions of these rules, shall apply to persons absorbed under these rules. 137. A perusal of the aforementioned Rules makes it clear that it is case of regularisation. As is clear from clauses (i) to (iii) of Rule 4 the contract engineers are appointed with effect from the date of his absorption under the Absorption Rules. They were fixed a minimum scale of pay from the date of absorption. Their service rendered during the period of contract employment is not counted for the purpose of seniority and for grant of selection time pay scale. However, it is taken into consideration for the purpose of leave and pension. Therefore, it is not a case of absorption. By the aforesaid process they were recruited to service by granting permanence to their service, which otherwise was purely contractual, which was coming to an end at the expiry of the period of contract. However, it is taken into consideration for the purpose of leave and pension. Therefore, it is not a case of absorption. By the aforesaid process they were recruited to service by granting permanence to their service, which otherwise was purely contractual, which was coming to an end at the expiry of the period of contract. This is because though they were recruited directly as contract engineers under Rule 15 of Rules 1977, it is not a direct recruitment under the Rules 1977, because of the definition of direct recruitment contained in Rules 2 (5) of the Rules, which expressly did not include within its ambit recruitment of employees on contract basis. It is to get over these legal hurdle, the device of Absorption Rules is thought off. Is it permissible is the question? 138. These absorption rules are attacked on the ground that if it is to be treated as recruitment, it is violative of Article 14 and 16, because persons belonging to Scheduled Castes and Scheduled Tribes who possess requisite qualification to be appointed to the said posts of Assistant Engineers and Junior Engineers were denied opportunity even to participate in the selection process. These rules confine public appointment only to persons who were earlier recruited as contract engineers. Therefore, impugned rules is violative of Article 14 and 16 of the Constitution. Repelling the said arguments, it was contended on behalf of the State as well as the absorbed engineers that though there is discrimination between persons who are working as contract engineers and persons who are engineers who possess requisite qualification to be appointed to the said posts among Scheduled caste, these contract engineers formed a class among themselves and therefore Article 14 is not attracted. 139. Article 14 of the Constitution forbids the State to deny to any person equality before the law or the equal protection of the laws within the territory of India. Thus, Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. Today, the Government is the largest employer in the country and employment or appointment to an office under it is a valuable right possessed by citizens. Article 14, however, does not forbid classification. Today, the Government is the largest employer in the country and employment or appointment to an office under it is a valuable right possessed by citizens. Article 14, however, does not forbid classification. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the territory of India irrespective of differences of circumstances. It only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another as regards the subject-matter of the legislation and their position is substantially the same. By the process of classification, the State has the power to determine who should be regarded as a class for the purposes of legislation and in relation to a law enacted on a particular subject. The classification to be valid, however, must not be arbitrary, but must be rational. It must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, but those qualities or characteristics must have a reasonable nexus or relation to the object of the legislation. In order to pass the test two conditions have to be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation. 140. In the instant case, the question is, whether the classification is based on an intelligible differentia and does it have any rational nexus or relation to the object sought to be achieved? REASONABLE CLASSIFICATION 141. The object set down behind the Backlog Rules makes it clear that as the policy of reservation enunciated in Section 16(4) of the Constitution was not followed at the time of recruitment and in fact the recruitment itself was not done regularly, there was no adequate representation to persons belonging to the social backward classes. REASONABLE CLASSIFICATION 141. The object set down behind the Backlog Rules makes it clear that as the policy of reservation enunciated in Section 16(4) of the Constitution was not followed at the time of recruitment and in fact the recruitment itself was not done regularly, there was no adequate representation to persons belonging to the social backward classes. As they are not sufficiently represented in the services of State and for considerable time there was no recruitment and at the time of regularisation of persons who are regularly appointed under a scheme, there was no proper representation to the persons belonging to those communities, the State passed the Backlog Rules to provide employment to those persons who are denied employment. The whole object of this Backlog Rules is to provide employment opportunity to those engineers who belong to Scheduled Caste and Scheduled Tribes, who are denied employment under the State. Therefore, all the engineers who possess the requisite qualification and who belong to Scheduled caste and Scheduled Tribes and who are between the age group of 18 & 40 constitute a class by themselves. Contrary to the existing Rules the age limit was increased to 40 years. It is because persons who are duly possessing the requisite qualification were not able to get into Government service and therefore an attempt was made to provide employment to such persons who are advanced in age also. But, it does not mean that the persons who possessed the requisite qualification and belong to the socially backward class did not have any opportunity of employment in the private sector or any other sectors at all. Persons who are meritorious among them secured employment and were working. It is only those who were not meritorious could not secure employment elsewhere. These Backlog Rules are not meant for persons who are unable to secure employment elsewhere. It is meant for all persons belonging to the said section and the Backlog Rules made it clear that the basis for recruitment is merit alone. If a person has secured employment elsewhere and was working in a permanent employment and drawing a salary more than what is offered to the contract engineers, though the said employment cannot be equated to employment in Government, they were not willing to get into Government service by way of contract employment. If a person has secured employment elsewhere and was working in a permanent employment and drawing a salary more than what is offered to the contract engineers, though the said employment cannot be equated to employment in Government, they were not willing to get into Government service by way of contract employment. However, they were willing to join the Government service under the Backlog Rules as permanent employees as they possessed the requisite qualification, merit and experience. When Backlog Rules are framed they were made aware that under the said Rules these persons would be recruited to Government employment on permanent basis, merit being the sole criteria. When the Government Order providing for appointment of contract engineers was challenged before the Tribunal, the Tribunal suggested to the Government to initiate recruitment process according to the Backlog Rules expeditiously and the said suggestion was accepted by the Government. The earlier Government order was modified. An undertaking was given to the Tribunal that they would initiate regular recruitment under the Backlog Rules. Under the Backlog Rules, if they had been recruited, they would have secured a permanent post in civil service and were eligible for all consequential benefits. But the State instead of recruiting them under the said Rules chose a shortcut method by issuing the Government order to recruit engineers on contract basis by virtue of the power conferred under Rule 15 of the Rules. However, it was for a period of 12 months and on consolidated pay. No-doubt, notification was issued calling for applications and selection was made on the basis of merit and only persons who had requisite qualification were selected. But Rule 15 of the Rules 1977 was invoked to make contract employment. It was for a period of 12 months only. It was by direct recruitment. But the definition of direct recruitment under Rule 2(g) of the said rules makes it clear that direct recruitment shall not include appointment under Rule 15. Therefore, their recruitment at the inception do not constitute direct recruitment, to be regularized or absorbed. However, persons who belong to Scheduled Caste and Scheduled Tribe, who had requisite qualification, who belong to the said age group who were already employed in various establishments did not opt for such contract employment. Probably, they were more meritorious working in private sector as engineers, as they could secure employment. However, persons who belong to Scheduled Caste and Scheduled Tribe, who had requisite qualification, who belong to the said age group who were already employed in various establishments did not opt for such contract employment. Probably, they were more meritorious working in private sector as engineers, as they could secure employment. If those persons were drawing salary more than the consolidated pay offered to contract engineers and if they were on permanent basis and then the period for which the contract engineers was for a period of 12 months, it is unreasonable to expect them to give up their present employment to an employment which is on contract basis. When notification was issued under the Government order, it was not made known to them that it is only those persons who are recruited as contract engineers would be appointed or would be absorbed in course of time. Therefore, they had every reason not to apply in pursuance to the notification issued for appointing contract engineers. They had every reason to wait for the notification which would be issued under the Backlog Rules for a permanent appointment in the State. Consequently, they did not apply. Sub-Rule (2) of Rule 5 of Backlog Rules provide that the selecting authority shall, for recruitment to the category of posts referred to in Rule 4 namely “unfilled vacancies” cause to invite applications from the candidates possessing the qualification by publishing in the Official Gazette and in more than one widely circulated regional news paper, of which, at least, one shall be in Kannada. This is a constitutional requirement. 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. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. Otherwise, it violates the mandate of Articles 14 and 16 of the Constitution of India, as it deprives the candidates who are eligible for the post, from being considered. EQUALITY 142. The effect of impugned rules is, that all the persons who are working on contract basis whose names find place in the list appended to the said rules were recruited to the services of the Government and posted as Assistant Engineers and Junior Engineers in the vacancies which was prevailing on that date. The mode of recruitment adopted is absorption/regularisation. The effect of impugned rules is, that all the persons who are working on contract basis whose names find place in the list appended to the said rules were recruited to the services of the Government and posted as Assistant Engineers and Junior Engineers in the vacancies which was prevailing on that date. The mode of recruitment adopted is absorption/regularisation. It is settled legal position that no person could be appointed even on temporary or adoc basis without inviting applications from all eligible candidates. That is the reason why, initially when the contract employment was thought of, applications were invited from all eligible candidates by way of a paper notification. 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. However, the said appointment, as is clear from the Government Order as well as from the notification was only for a period of 12 months. After expiry of the said 12 months period or after the expiry of any extended period, the same would come to an end. A contractual appointment comes to an end at the end of the contract. It is also a term of the contract as well as the law regulating recruiting persons on contract basis. Therefore, when such persons are recruited into service on a permanent basis, again, the law should be followed, i.e., all persons who are eligible for being considered for appointment to the said post should be given an opportunity by inviting applications. That is the mandatory requirement of Article 14 and 16 of the Constitution. If that procedure is not followed, such a course violates the mandate of Article 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. DISCRIMINATION 143. Now by virtue of the impugned rules, whether it is called as a new appointment by way of absorption or regularization, this class of engineers belonging to the very same community are excluded from consideration. They are discriminated. The persons who are more meritorious are left out and persons who are less meritorious are recruited into the Government service. It is against all canons of public employment as well as against public interest. Now, by resorting to the impugned Rules virtually recruitment/appointment is made by way of absorption. They are discriminated. The persons who are more meritorious are left out and persons who are less meritorious are recruited into the Government service. It is against all canons of public employment as well as against public interest. Now, by resorting to the impugned Rules virtually recruitment/appointment is made by way of absorption. It is per se illegal and discriminatory as far as those engineers who had the requisite merit and also experience. There is no intelligible differentia to treat these contract engineers as a class by themselves so as to exclude the other engineers who possess requisite qualification and who belong to the same age group from being appointed as engineers in the State service. 144. The condition stipulated in the Government Order made it clear that the employment on contract basis is for a period of one year. It is purely temporary. The same may be cancelled or terminated at any time without issuing any notice. The persons who are appointed on contract basis are not entitled for permanent appointment, absorption in service, retirement benefits and yearly increments. They were required to give consent and execute indemnity bond mentioning the aforesaid conditions, which all of them have done. Therefore, when no right is conferred on them, when it is expressly stated in the Government Order that they are not entitled for absorption in service and also not entitled for permanent appointment and the said appointment may be cancelled or terminated at any time without hearing, notice, they could not have been absorbed in service contrary to the terms of their appointment. The absorption is illegal and does not confer any right on the persons absorbed to hold the post to which they are absorbed. The State at the first instance cannot create an artificial class, bypassing the law and then contend that they form a class by themselves and thereafter contend that equality clause contained in Article 14 of the Constitution is not applicable to them and they have to be treated separately. If this modus operendi is permitted, then Article 14 of the Constitution would be rendered illusory. Then it would encourage the State to nullify the constitutional scheme by flagrant violation of Articles 14, 15 and 16, in the matter of public employment. Then regularisation and absorption would become common method of allowing backdoor entries to be regularised. If this modus operendi is permitted, then Article 14 of the Constitution would be rendered illusory. Then it would encourage the State to nullify the constitutional scheme by flagrant violation of Articles 14, 15 and 16, in the matter of public employment. Then regularisation and absorption would become common method of allowing backdoor entries to be regularised. If the initial appointment is bad, it cannot get sanctified at a later stage by regularisation or absorption. A subsequent action / development cannot validate an action which was not lawful at its inception. The illegality strikes at the root of the order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. A right in law exists only when it has a lawful origin. There is no nexus between classification and the object sought to be achieved. The ultimate object was to provide employment in the State to all eligible engineers belonging to Scheduled castes and Scheduled Tribes who possess requisite qualification, and who are meritorious. But those who had secured employment elsewhere on the basis of merit are discriminated and persons who could not secure employment are preferred to the State service. Therefore, these impugned rules are violative of Article 14 and 16 of the Constitution. CHALLENGE TO SUBORDINATE LEGISLATION 145. The Apex Court in the case of INDIAN EXPRESS NEWSPAPERS (BOMBAY) PRIVATE LIMITED AND OTHERS versus UNION OF INDIA AND OTHERS [AIR 1986 SC 515] dealing with the question on what grounds a subordinate legislation could be questioned held as under:- "73. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the judges would say "Parliament never intended authority to make such rules. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires". The present position of law bearing on the above point is stated by Diplock, L.J. in Mixnam Properties Ltd. versus Chertsey U.D.C. (1964 (1) QB214 thus; “The various grounds upon which subordinate legislation has sometimes been said to be void can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid must be shown to be within the powers conferred by the statute. Thus the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules: they are unreasonable and ultra vires.' If the courts can declare subordinate legislation to be invalid for 'uncertainty', as distinct from unenforceable, this must be because Parliament is to be presumed not to have intended to authorize the subordinate legislative authority to make changes in the existing law which are uncertain” 74. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation: The Test of Reasonableness' in 36 modern Law Review 611 at pages 622-23 has summarised the present position in England as follows: "(i) It is possible that the courts might invalidate statutory instrument on the grounds of unreasonableness or uncertainty, vagueness or arbitrariness; but the writer's view is that for all practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test. (ii) The courts are prepared to invalidate by-laws, or any other form of legislation, emanating from an elected, representative authority, on the grounds of unreasonableness uncertainty or repugnance to the ordinary law; but they are reluctant to do so and will exercise their power only in clear cases. (ii) The courts are prepared to invalidate by-laws, or any other form of legislation, emanating from an elected, representative authority, on the grounds of unreasonableness uncertainty or repugnance to the ordinary law; but they are reluctant to do so and will exercise their power only in clear cases. (iii) The courts may be readier to invalidate by-laws passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse versus Johnson, might not now be applied so stringently. (iv) As far as subordinate legislation of non-statutory origin is concerned, this is virtually obsolete, but it is clear from In re French Protestant Hospital [1951] ch. 567 that it would be subject to strict control." 75. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 76. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held by in The Tulsipur Sugar Co. Ltd. versus The Notified Area Committee, Tulsipur 1980 (2) SCR 1111 ), Rameshchandra Kachardas Porwal versus State of Maharashtra (1981) 2 SCR 866 and in Bates versus Lord Hailsham of St Marylebone (1972) 1 WLR 1373. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. On the facts and circumstances of a case, a subordinate legislation be may struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19 (1) (a) of the Constitution. It cannot, no doubt, be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant. 77. We do not, therefore, find much substance in the contention that the courts cannot at all exercise judicial control over the impugned notifications. In cases where the power vested in the Government is a power which has got to be exercised in the public interest, as it happens to be here, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. The fact that a notification issued under section 25 (1) of the Customs Act, 1962 is required to be laid before Parliament under section 159 thereof does not make any substantial difference as regards the jurisdiction of the court to pronounce on its validity." 146. From the aforesaid judgment it is clear a subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. In addition to the grounds on which a statute could be challenged, a subordinate legislation could be challenged on the ground that it does not conform to the statute under which it is made. It could also be challenged on the grounds that it is arbitrary to some other statute, manifestly arbitrary and also that the legislature never intended to make such Rules. It is because the subordinate legislation must yield to plenary legislation. It could also be challenged on the grounds that it is arbitrary to some other statute, manifestly arbitrary and also that the legislature never intended to make such Rules. It is because the subordinate legislation must yield to plenary legislation. If the subordinate legislation fails to take into account the very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or the Constitution then it can be struck down on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 and 16 of the Constitution. It is because the power vested in the Government to make subordinate legislation is a power which has got to be exercised in public interest in a reasonable way in accordance with the spirit of the Constitution. Therefore, when the Government enacted the Backlog Rules with the sole object of providing employment to all eligible duly qualified engineers belonging to the Scheduled Caste and Scheduled Tribes any further subordinate legislation made by the State cannot run counter to such intention. Articles 14 and 16 of the Constitution confers the right on all persons belonging to Scheduled Caste and Scheduled Tribe to seek employment in Government under the Backlog Rules. By the subordinate legislation an artificial classification is made by employing a non-obstante clause and the General Rules which cater to needs and requirement of all persons who are similarly placed are excluded. Therefore, these impugned Rules run counter to the Backlog Rules which is the general rule which equally applies to all persons belonging to Scheduled Caste and Scheduled Tribes. NON-OBSTANTE CLAUSE 147. The Government seems to think that by invoking a non-obstante clause, their action would be beyond judicial review. In so far as the use of non-obstante clause to by-pass the existing law is concerned, the law on the point is well settled. A clause beginning with a non-obstante clause is sometimes appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. A clause beginning with a non-obstante clause is sometimes appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. Thus a non-obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non-obstante clause or to override it in specified circumstances. Even though the non-obstante clause is a very widely worded, its scope may be restricted by construction having regard to the intention of the Legislature gathered from the enacting clause or other related provisions in the Act. This may be particularly so when the non-obstante clause does not refer to any particular provision which it intends to override, but refers to the provisions of the statute generally. But the wide meaning of the non-obstante clause cannot be curtailed when the use of wide language accords with the object of the Act. However, the adoption of a non-obstante clause would not give freedom to the legislature or to the rule making authority to enact a law which is contrary to the constitutional scheme and the statute governing the field. If there is a law already governing the field, if that law is inadequate or if that is causing any inconvenience in its implementation, at the same time if the legislature does not want to repeal the said law and they want to enact a law to meet a particular situation to which the law in force is not suitable, without repealing the law in force by invoking a non-obstante clause they could enact a law which meets the situation. But, the enacting law also should be in accordance with the constitutional scheme. The said law also could be attacked on all the grounds on which the earlier law could be attacked. The only ground on which the said law cannot be attacked is on the ground that the said law is not inconsistent with the earlier law. But, the enacting law also should be in accordance with the constitutional scheme. The said law also could be attacked on all the grounds on which the earlier law could be attacked. The only ground on which the said law cannot be attacked is on the ground that the said law is not inconsistent with the earlier law. If the earlier law is constitutionally valid and if the law enacted with a non-obstante clause is constitutionally invalid, the very mode of invoking the non-obstante clause to over-ride a law which is constitutionally valid would render that law arbitrary and without any further proof the same is liable to be struck down as violative of Article 14 of the Constitution. Viewed from that angle the law which governs the field was in tune with Articles 14 and 16 of the Constitution. The Absorption Rules are in conflict with Articles 14 and 16 of the Constitution. This non-obstante clause would not save the impugned Rules from the vice of unconstitutionality. Therefore, the impugned Rules are liable to be struck down on that score. RIGHT TO RESILE FROM AN UNDERTAKING 148. Learned counsel appearing for the State contended that, if the State had agreed or even given an undertaking to the Court that they would adopt a particular procedure for recruitment, the State is not power less to go back on such undertaking. When once the Government is vested with the power under the statute to make Rules for recruitment, the said undertaking or agreement would not come in the way of State passing law contrary to such agreement or undertaking. When the State as a litigant before a Court or a Tribunal gives an undertaking in a pending litigation, a Government which is wedded to Rule of Law and functioning under a constitutional scheme is expected to honour such solemn commitment given to a Court or a Tribunal. However, if the agreement entered into or the undertaking given is contrary to law, violates any statutory provision, or is unconstitutional, the principles of estoppel is not attracted. There cannot be an estoppel against statute. This is a well recognised principle. In such circumstances, if the State wants to pass laws in accordance with the constitutional scheme, certainly the State cannot be found fault with for not acting on the agreement or on the undertaking given to the judicial body. There cannot be an estoppel against statute. This is a well recognised principle. In such circumstances, if the State wants to pass laws in accordance with the constitutional scheme, certainly the State cannot be found fault with for not acting on the agreement or on the undertaking given to the judicial body. However, when the action of the State and the order passed is challenged before the Tribunal or a Court on the ground that it is one without jurisdiction, unconstitutional and when the Court makes a suggestion how to bring their actions in accordance with law and when the Government accepts such suggestion and in fact issues a Government Order giving effect to such suggestion made by judicial body which is in conformity with the constitutional scheme and in accordance with law it is not open to the State to resile from such stand. At any rate after resiling from such a stand, they cannot pass law by way of subordinate legislation, which is per se unconstitutional and contrary to the law governing the field. Though the power of the State to pass laws cannot be disputed, the law passed by them should be within the four corners of the Constitution which in turn gives them the power to pass such laws. Seen from this background, we do not see any substance in the contention urged on behalf of the State. ABSORPTION OF CONTRACT EMPLOYEES 149. It was contended that State Legislature has competence to pass rules, which includes their right to pass rules to absorb persons who are employed as contract engineers. Further, it was contented that it is not a case of regularization and therefore the law laid down by the Apex Court in Umadevi's case is not attracted. If it is case of absorption as understood in service jurisprudence, the person to be absorbed should have been recruited in accordance with rules and if such a person is transferred from one department to another department either by transfer or by way of deputation or even lengthy service and if such a person is to be absorbed, it is permissible in law. On such absorption, he loses his lien in the parent department and he becomes an employee where he is posted/absorbed. Therefore, the question of going into the validity of initial appointment would not arise. On such absorption, he loses his lien in the parent department and he becomes an employee where he is posted/absorbed. Therefore, the question of going into the validity of initial appointment would not arise. It is only persons who are initially appointed in the civil services in accordance with law could be absorbed in the newly created post or in the new post to which he is posted. Seen from that angle in the instant case, these contract engineers were appointed in pursuance of Government order, which was passed by the Government without jurisdiction. Their appointment is illegal from the inception. The Government order was not struck down nor it was upheld, because the period of employment was only for 12 months and a solemn undertaking was given to the Tribunal as well as to the High Court that simultaneous proceedings would be initiated for recruitment under the Backlog Rules. Therefore, High Court did not go into the validity of the said Rules and left that question to be adjudicated by the parties if and when it becomes necessary. That is why the applicants were justified in raising these grounds before the Tribunal as well as before the High Court. Therefore, the Tribunal was justified in going into the constitutional validity of the impugned order and the Rules and the finding recorded by the Tribunal is in consonance with law and it was justified in holding that the impugned rules are vitiated as it is violative of Article 14 and 16 of the Constitution. REGULARISATION OF CONTRACT EMPLOYEES 150. Though the State contended that it is not case of regularization, but a case of absorption, learned Advocates appearing for the engineers contended that it is a case of regularization and the State had jurisdiction to pass such orders regularizing their services. Their contention was that the judgment in Umadevi's case came after they were absorbed in services. Therefore that judgment has no application to the facts of these cases. Secondly, it was contended that as on this day the Court is hearing the matters, all those persons have completed 10 years of uninterrupted service as Assistant Engineers and Junior Engineers against the sanctioned post. All of them have requisite qualification and therefore their case falls under paragraph 53 in Umadevi's case where regularization is permissible. 151. We do not see any substance in both these contentions. All of them have requisite qualification and therefore their case falls under paragraph 53 in Umadevi's case where regularization is permissible. 151. We do not see any substance in both these contentions. In Umadevi's case, the Apex Court made it clear that if regularization has taken place and if the same is not challenged and attained finality, on the ground that regularization is contrary to the law declared by the Apex Court in Umadevi's case, it should not be re-opened. They have entered caveat stating that it is not applicable to cases where those regularizations are under challenge. Therefore, merely because the said judgment came after absorption rules came into force, it cannot be contended that the said judgment has no application. When once those absorption rules are challenged and pending on the day Umadevi's case was decided, this Court has to decide the legality of the regularization in terms of the law laid down by the Apex Court. As set out above, as the law stands today, there cannot be any regularization or recruitment or appointment of a person to a civil service except in accordance with Act and the Rules governing the same. Public notice is to be given calling for applications from all those persons who are eligible to hold the said post and then only that would meet the requirements of Article 14 and 16 of the Constitution. Admittedly, in the instant case, the appointment of these engineers is not made in accordance with the Backlog rules framed for filling up backlog vacancies. As is clear from the notification issued for recruiting these engineers on contract basis which was duly published in the News Paper on 10-4-2003, applications are called for to fill up 411 Assistant Engineers post and 195 Junior Engineer Post. Their appointment was made on 25-7-2003. A second batch of appointment was made on 1-9-2003, filing up 384 Assistant Engineers and 254 Junior Engineers purporting to be additional backlog vacancies. Again on 28-1-2004, another 208 Assistant Engineers and 147 Junior Engineers were appointed as a further additional backlog vacancy. Thus these backlog vacancies have been filled up without first computing the number of backlog vacancies, and in an arbitrary and fanciful manner. It is made contrary to the said rules and therefore the said appointments are per se illegal and cannot be regularised. What can be regularised is only an irregular appointment. Thus these backlog vacancies have been filled up without first computing the number of backlog vacancies, and in an arbitrary and fanciful manner. It is made contrary to the said rules and therefore the said appointments are per se illegal and cannot be regularised. What can be regularised is only an irregular appointment. The appointments made in these cases are illegal appointments. Therefore, an illegal appointee can never be regularised by the State. 152. Insofar as application of paragraph 53 of the judgment of Umadevi's case is concerned, though these applicants satisfy the condition that they have requisite qualification; they were appointed against a substantial post; from the date of appointment till the date of their absorption, they had completed hardly two to three years of service. Even that service is because of concessions made. More than 10 years is the period prescribed for continuous service of work against a sanctioned post. None of these engineers possess the said qualification of ten years of continuous service for regularization. Moreover all these appointments are illegal appointments. In that view of the matter, whether we call it absorption or regularization, on both counts, it is contrary to law and it is contrary to the law declared by the Apex Court in Umadevi's case. SUB-JUDICE 153. It was contended that, in para 53 of Umadevi's case, the Apex Court has held that all such recruitments validly done should not be reopened. Admittedly all these absorptions have taken place prior to the judgment of the Apex Court in Umadevi's case and the recruitment has been made validly under the Rules formulated by the Government and as such the same cannot be held invalid in view of the law laid down by the Apex Court in Umadevi's case. 154. In Umadevi's case it is specifically held as under: - "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." 155. If on the day Umadevi's case was decided, if any regularisation is made and if the same is not challenged, they need not be reopened based on the said judgment. If on the day Umadevi's case was decided, if any regularisation is made and if the same is not challenged, they need not be reopened based on the said judgment. Therefore, it follows, if the regularisations made prior to Umadevi's case was the subject matter of litigation or it is challenged in any forum, then the questions involved in the said litigation has to be decided in accordance with the law laid down by the Apex Court in Umadevi's case. 156. In the facts of this case it is clear the appointments were made in pursuance of the Government Order dated 12.12.2002. The said Government Order was challenged before the Tribunal. The Tribunal while considering the legality of the Government Order and the appointment made therein suggested certain modifications by its order dated 5.3.2003. Accordingly, the Government Order dated 5.4.2003 was issued. The said order of the Tribunal dated 5.3.2003 was challenged in W.P. Nos.24601-24603/2003. The Government Orders and the appointments made under the aforesaid appointments were not struck down, not on the ground that the Government Orders were legal and the appointments were legal but on the ground it was a stop gap arrangement and the appointment of contract engineers is only for a period of 12 months and the Government gave an undertaking to the Court that they will recruit them according to Backlog Rules. Contrary to the undertaking given to the Tribunal and in utter disregard to the order made by the Tribunal without resorting to the procedure prescribed under the Backlog Rules, the Absorption Rules came to be passed absorbing all the persons who were appointed under the Government Orders. Immediately thereafter the said Absorption Rules are challenged before the Tribunal. Now, the said Absorption Rules are struck down by the Tribunal. Therefore, the appointment of all these engineers is subjudice on the day the Constitutional Bench delivered the judgment in Umadevi's case. As is clear from the aforesaid observations it is not a case of reopening of illegal or irregular appointments which are regularised by way of absorption which had attained finality. They are not sought to be reopened by virtue of Umadevi's case. It is a case where these appointments, regularisation and absorption were under attack from the first day of their appointment which was pending on the day Umadevi's case was decided. They are not sought to be reopened by virtue of Umadevi's case. It is a case where these appointments, regularisation and absorption were under attack from the first day of their appointment which was pending on the day Umadevi's case was decided. Therefore, the law laid down in Umadevi's case is applicable in deciding the legality of the appointment of these engineers who are absorbed under the Absorption Rules. Hence, the contention that Umadevi's case has no application to the facts of the case is not correct. LOCUS STANDI 157. It was contended that the applicants before the Tribunal did not have locus-standi to challenge the impugned rules on the ground that they had not applied against notification for being recruited as contract engineers. When all these applicants possess the requisite qualification, fell within age group and were eligible to be recruited as engineers under the Backlog Rules, the impugned rules has taken away such a right of public employment offending Article 16 of the Constitution. Their non filing of an application in pursuance to the notification to be recruited as contract engineers would not disentitle them from challenging the impugned rules, as it is the impugned rules which took away their right to participate in the selection process. Several judgments were relied to show that persons who does not possess locus standi cannot challenge the Constitutional validity of the Act or Rules. It is also true that it is not a Public Interest Litigation. But the persons who have challenged these rules have a right to be considered for appointment under the State and that right has been taken away by impugned Rules. In fact for their benefit the Backlog Rules were framed. The impugned Rules take away the right conferred under the Backlog Rules. They are aggrieved by the impugned Rules. Therefore, it cannot be said that they have no locus standi to maintain these applications. FUTILE WRIT 158. It was contended that now all these applicants have become age barred and tomorrow if fresh recruitments are initiated, they will not be eligible to apply. Therefore if Courts were to issue any Writs nullifying the impugned rules, it would be a futile writ and it serves no purpose. FUTILE WRIT 158. It was contended that now all these applicants have become age barred and tomorrow if fresh recruitments are initiated, they will not be eligible to apply. Therefore if Courts were to issue any Writs nullifying the impugned rules, it would be a futile writ and it serves no purpose. Counsel for the applicants submit that majority of them even today have not crossed the age of 40 years and they are eligible to be appointed and therefore they contend there is no merit in the said submission. It is true as held by the Apex Court in various judgments that the Court is not going to issue any futile writ, it is equally well settled that the Court is not going to decide the validity of enactment or rules in vacuum. It decides legality only in an application or writ petition filed by a person who has subsisting interest. In the instant case, if the applicants before the Tribunal are within age group and if the selection process to commence from now onwards, they would be eligible and therefore the question of Court issuing a writ or deciding legality of Rules in vacuum would not arise. DISCRIMINATION AMONG SC AND ST 159. Next, it was contended that all these persons are innocent, they have no role to play in the illegality. They have worked all these years, they have gained experience and that experience would be a loss to the State, if they are disturbed from their position. We do not see any merit in this contention. If the rules are annulled, it does not mean that the persons who are appointed under the annuled rules are ineligible for appointment. If fresh recruitment is to be done, certainly their case also will be considered It is nobody's case that those persons who are selected do not possess requisite qualification nor did they possess merit. What is in challenge is the procedure which is followed and denial of opportunity to persons who are similarly placed as those who are selected. In our constitutional scheme, where equal opportunity has to be provided to every citizen of this Country, discrimination on any ground is not tolerated. The State cannot enact law regarding public employment which discriminates persons who are similarly placed. In our constitutional scheme, where equal opportunity has to be provided to every citizen of this Country, discrimination on any ground is not tolerated. The State cannot enact law regarding public employment which discriminates persons who are similarly placed. Infact, the State seems to think that there should not be any discrimination between persons who are belonging to scheduled castes and scheduled tribes and other communities and there could be discrimination between persons belonging to said community. The law makes no difference. It is not based on community or caste. Even among persons belonging to scheduled caste and scheduled tribes, there should not be any discrimination. All should be treated equally and that aspect appears to have been forgotten while making these rules, especially the bifurcation of age groups which is per se discriminates on the basis of age and in the process sacrifices merit among the persons belonging to scheduled castes and scheduled tribes. ABANDONMENT 160. It was contended that all these applicants when they did not file an application for appointment as contract engineers, it amounts to abandonment of their right or waiver of their right and therefore they are not entitled to be recruited, absorbed or regularized under the impugned rules. The applicants wanted a permanent job in the State. For that purpose, the State took the trouble of passing the special rules. In fact, initially KPSC was requested to recruit Assistant Engineers and Chief Engineer was directed to recruit Junior Engineers. That is the right that the applicants wanted to enforce. When that was recalled and Government order was issued for recruiting only contract engineers for a period of 12 months, they did not want to give up their larger right to the smaller right. They did not choose for smaller right. Their larger right to seek for appointment to permanent post is neither abandoned nor waived and therefore, there is no merit in the said contention. HUMAN PROBLEM 161. Next it was contended that the Court has to look at the problem from an equitable angle. It is a human problem. These persons are working now for more than 10 years. If their appointment is to be set aside at this juncture, they and their family would come to the street. Therefore, their appointment should be not be disturbed. Next it was contended that the Court has to look at the problem from an equitable angle. It is a human problem. These persons are working now for more than 10 years. If their appointment is to be set aside at this juncture, they and their family would come to the street. Therefore, their appointment should be not be disturbed. While dealing with the question of human problem which the Court shall take note of, the Apex Court in the aforesaid Umadevi's judgment held as under: - "44.The courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain not at arm's length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible…. 47. When a person enters a temporary employment or gets employment as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees." 162. Further, repelling the argument that the State action in not regularising the employees was not fair/within the framework of the rule of law compels the State to make appointments as envisaged by the Constitution and in the manner stipulated under the statutory provisions. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees." 162. Further, repelling the argument that the State action in not regularising the employees was not fair/within the framework of the rule of law compels the State to make appointments as envisaged by the Constitution and in the manner stipulated under the statutory provisions. In most of these cases, no doubt, the employees had worked for some length of time, but this has also been brought about 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 was further held, 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 Articles 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, 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. 163. It is in this background, the argument of human problem, canvassed in this case, requires to be considered. The human problem is a creature of the State by not following the very Rules which are framed by them for the same persons. 163. It is in this background, the argument of human problem, canvassed in this case, requires to be considered. The human problem is a creature of the State by not following the very Rules which are framed by them for the same persons. When the State bypasses the Rule made by it for the benefit of the very same section of the society and creates unwarranted human problem, they cannot pass one more set of Rules which are arbitrary, unconstitutional for the purpose of solving such human problem. It is only a lame excuse, well thought of, to perpetuate an illegality. By doing so the State wants to create another mode of public employment which is not provided for under our constitutional scheme and which in fact is contrary to the constitutional scheme. In this regard the State is ill advised. The State cannot be permitted to indulge in such illegal acts under the cover of a legislative device which is nothing but a colourable exercise of such rule making power conferred. It runs counter to Articles 14 and 16 of the Constitution. It is unconstitutional, arbitrary. The human problem which is put forth is only a shield to protect the said unconstitutional law from being attacked. The Court can pierce through the curtains and if the said argument is upheld, it only encourages the State to bypass all constitutional requirement and the statutes governing recruitment to the Government service. Such conduct on the part of the Government cannot be countenanced by the Courts. FINAL CONCLUSION 164. From the aforesaid discussion it is clear the Government of the day though sympathetic to the problems faced by persons belonging to Scheduled Castes/Scheduled Tribes framed special Rules for filling up the backlog vacancies, it was not sincere in providing employment to persons who are belonging to these classes and who possessed merit. The way they have attempted to fill these backlog vacancies clearly demonstrate that the Government has no respect for the Constitution, the laws passed by the legislature and the special laws passed by them. The Government has abused its constitutional power conferred under Article 162 to deprive meritorious engineers who belong to these classes. They have abused the rule making power to deny equal opportunity to the persons to whom these special rules are framed. The Government has abused its constitutional power conferred under Article 162 to deprive meritorious engineers who belong to these classes. They have abused the rule making power to deny equal opportunity to the persons to whom these special rules are framed. When their action was challenged in the Court, to get over the challenge they agreed to the suggestions made by the Tribunal. But, they had no intention of respecting the solemn undertaking given to the Tribunal and the High Court which is evident from their subsequent conduct. Thus, they have demonstrated not only they have no respect for the Constitution and the laws but also to the Tribunal and Courts. They have gone back on the solemn promise made by them to the Tribunal. This only shows the Government of the day thinks that they are supreme. What they say is the law, Constitution and laws passed by legislature are all sub-servient to their whims and fancies. With impunity the Court order and undertaking given to the Court are breached. This is not what is expected of a Government which is wedded to the rule of law and which has to work under the Constitutional scheme, which has conferred on them the power to rule and administer the State. The material on record shows though they had the advice from the Law Department, they preferred to ignore the said sound advice and exercised the power in contravention of the constitutional provisions in an arbitrary, unreasonable and whimsical manner. This is not what is expected of a responsible Government in a democratic set up which is expected to treat all its subjects alike. The conduct of the Government and the orders and the Rules which are impugned in these Writ Petitions are unconstitutional, arbitrary, unreasonable and therefore they are rightly quashed by the Tribunal. There is no illegality in the impugned order which calls for interference by this Court. Hence, we pass the following: (1) All these writ petitions challenging the impugned order passed by the Karnataka Administrative Tribunal in application No.6258/2003 and other connected matters dated 25th day of May, 2009, are dismissed. There is no illegality in the impugned order which calls for interference by this Court. Hence, we pass the following: (1) All these writ petitions challenging the impugned order passed by the Karnataka Administrative Tribunal in application No.6258/2003 and other connected matters dated 25th day of May, 2009, are dismissed. (2) The order passed by the Karnataka Administrative Tribunal declaring that the Karnataka Civil Services (Absorption of persons appointed on contract basis against backlog vacancies in the category of Assistant Engineers and Junior Engineers in the Department of Public Works Engineering, Water Resources and Rural Development and Panchayat Raj) (Special) Rules, 2005 as being contrary to the provisions of Articles 14 and 16 of the Constitution of India and the several decisions of the Supreme Court and consequently striking down the said Rules is hereby affirmed. (3) The respondents shall initiate recruitment process to the backlog vacancies under the provisions of the Karnataka State Civil Services [(Unfilled vacancies reserved for the persons belonging to the Scheduled Caste / Scheduled Tribes) (Special Recruitment)] Rules 2001, i.e., Backlog Rules and complete the same within a period of 6 months from today and the outer limit being one year from today. (4) The eligibility for applying as against those backlog vacancies would be the qualification, educational and age prescribed in the Backlog Rules of 2001 as on the day the said Rules came into force i.e., 21st of November 2001. Only those persons who possessed the requisite qualification as on 21st November 2001 shall be considered for filling up of those backlog vacancies. (5) All the persons absorbed/appointed/regularised under the impugned Rules are permitted to be continued in service till the appointments are made in pursuance of the Rules of 2001 as aforesaid or for a period of one year, which ever is earlier. (6) This recruitment to fill up the backlog vacancies shall apply only to the backlog vacancies which were existing on the day the Backlog Rules came into force i.e., 21st of November, 2001. (7) Parties to bear their own costs.