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2018 DIGILAW 208 (ALL)

ANURADHA TIWARI v. STATE OF U. P.

2018-01-25

SUDHIR AGARWAL, VIRENDRA KUMAR II

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JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Shri S. S. L. Srivastava, learned counsel for petitioners and learned Standing Counsel for State of U.P. and its authorities. 2. This writ petition has been filed by sixteen petitioners, having failed to get any relief from State Public Services Tribunal, Lucknow (hereinafter referred to as, ‘Tribunal’) in Claim Petition No. 81 of 2002 which has been dismissed vide judgment and order dated 30.3.2009. 3. The facts in brief, giving rise to present writ petition are as under: 4. All the petitioners were working in different capacity like Typist-cum-Clerk, Peons, Electricians, etc., in U.P. State Sugar Corporation Limited, Head Office, Lucknow (hereinafter referred to as, ‘UPSSCL’). They were paid consolidated wages. They were terminated by an order of termination simplicitor dated 30.1.2001 observing that financial condition of UPSSCL is not good and, therefore, their continuance in service is not required. This order of termination was challenged in Writ Petition No. 810 (S/S) of 2001, Ram Samujh Saini and others v. State of U.P. and another. Learned Single Judge (Hon’ble Mr. Justice U.K. Dhaon), vide judgment dated 20.3.2001 allowed writ petition and set aside order of termination dated 30.1.2001 on the ground that as provided in Rule 21(3) of U.P. State Sugar Corporation Limited Service Rules, 1988 (hereinafter referred to as, ‘Rules, 1988’), petitioners while terminated have not been paid one month’s salary in lieu of notice. The aforesaid order was complied and Managing Director, UPSSCL, vide order dated 18.4.2001, reinstated petitioners. 5. Petitioners, since had completed more than ten years of service, claimed that they should be regularized and paid salary in regular pay scale applicable to persons regularly appointed on the posts of peon, typist-cum-clerk, etc. However, Managing Director, UPSSCL passed another order of termination dated 23.4.2001 which was challenged in Claim Petition No. 81 of 2002. Petitioners claimed that instead of regularizing petitioners, order of termination has been passed, which is patently illegal and arbitrary. This claim petition has been dismissed vide judgment impugned in this writ petition. 6. It is not in dispute that earlier order of termination was set aside by learned Single Judge vide judgment dated 20.3.2001 only on the ground that one month’s salary in lieu of notice as provided in Rule 21(3) of Rules 1988 was not paid. However, respondents were given liberty to act in accordance with law. 6. It is not in dispute that earlier order of termination was set aside by learned Single Judge vide judgment dated 20.3.2001 only on the ground that one month’s salary in lieu of notice as provided in Rule 21(3) of Rules 1988 was not paid. However, respondents were given liberty to act in accordance with law. The relevant extract of the judgment dated 20.3.2001 is reproduced as under: “I have considered the arguments of the learned counsel for the parties and gone through the averments made in the writ petition and the counter-affidavit. There is no dispute that the petitioners are working at the Headquarters of the Corporation for the last more than 9 years. The impugned orders reveal that the services of the petitioners have been terminated looking into the financial position of the Corporation. The petitioners were getting the consolidated wages from 1996-97 and as such they have acquired the status of ‘ASTHAI’ employee of the Corporation and, thus, there is violation of Rule 21(3) of the U.P. State Sugar Corporation Limited Service Rules, 1988 as one month’s salary has not been paid to the petitioners while passing the impugned termination order. In the result, the writ petition succeeds and the impugned termination orders dated 30.1.2001 contained in Annexures 1 to 16 are hereby quashed. However, it will be open for the opposite parties to act in accordance with law.” (emphasis added) 7. Learned counsel for petitioners could not dispute before us that said ground on which earlier order of termination was set aside is not available and it cannot be said that rules have been violated. His submission is now confined to the fact that since petitioners completed more than 10 years, therefore, they ought to have been regularized. Their termination is nothing but an act of sheer arbitrariness. His submission is now confined to the fact that since petitioners completed more than 10 years, therefore, they ought to have been regularized. Their termination is nothing but an act of sheer arbitrariness. Reliance is placed by learned counsel for petitioners on the observation of Constitution Bench in State of Karnataka and others v. Uma Devi and others, 2006 (4) SCC 1 , paragraph-53, wherein Court has held that if persons appointed on ad hoc, casual or contract basis were duly qualified, working against a sanctioned post and continued to work for several years without any intervention of an order of the Court, in such an eventuality, the process of regularisation could be made and if it was ultimately found that the employee was entitled for the relief, it would be possible for a Court to accordingly mould relief. 8. Having given our anxious considerations, we do not find any force in the submission and reliance on para 53 of judgment in Secretary, State of Karnataka v. Uma Devi is erroneous. 9. In para 53 of judgment, in Secretary, State of Karnataka v. Uma Devi (supra), the exception carved out by Apex Court is confined to the cases where appointments are ‘irregular’ and not ‘illegal’ as explained in State of Mysore v. S.V.Narayanappa, AIR 1967 SC 1071 , R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagrajan v. State of Karnataka, 1949 SCC 507. 10. The distinction between “irregular” and “illegal” appointments as referred to in para 53 of the judgment in Secretary, State of Karnataka v. Uma Devi (supra) has been dealt with in a subsequent decision in State of M.P. and others v. Lalit Kumar Verma, (2007) 1 SCC 575, wherein para 12, Court has held: “12. The question which, thus, arises for consideration, would be: Is there any distinction between “irregular appointment” and “illegal appointment”? The distinction between the two terms is apparent. The question which, thus, arises for consideration, would be: Is there any distinction between “irregular appointment” and “illegal appointment”? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the Constitutional scheme as also the recruitment rules framed by the employer, which is ‘State’ within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.” 11. Learned counsel for petitioners at this stage submitted that in Mineral Exploration Corpn. Employees’ Union v. Mineral Exploration Corpn. Limited and another, (2006) 6 SCC 310 , Court issued some direction for regularization of the workmen who were continuing for a long time, referring to para 53 in Secretary, State of Karnataka v. Uma Devi (supra), therefore, petitioners are also entitled for the same benefit. However, it would be useful to notice that relying on Mineral Exploration Corpn. Employees’ Union v. Mineral Exploration Corpn. Limited and another (supra), a similar argument was raised in State of M.P. v. Lalit Kumar Verma (supra), but same has been negatived by Apex Court by referring to para 39 of Mineral Exploration Corpn. Employees’ (supra), and observations of Court in paras 13 to 16 of the judgment in Lalit Kumar Verma (supra) are as under: “13. In National Fertilizers Ltd. v. Somvir Singh (supra) it has been held: (SCC pp.500-01) paras 23-25) “23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minority had not been given due consideration. 24. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minority had not been given due consideration. 24. The Constitution Bench thought of directing regularization of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V.Narayanappa, R.N. Najundappa v. T.Thimmiah and B.N. Nagaranaj v. State of Karnataka, wherein this Court observed: (Uma Devi (3) case, SCC p.24, para 16). “16. In B.N.Nagarajan v. State of Karnataka, this Court clearly held that the words “regular” or “regularisation” 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.” 25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.” 14. In R.S.Garg v. State of U.P., 2006(6) SCC 430 , it has been held by this Court : (SCC p.448,para 24) “24. The original appointment of the 3rd respondent being illegal and not irregular, the case would not come within the exception carved out by the Constitution Bench. Furthermore, relaxation, if any, could have been accorded only in terms of Rule 28 of the Rules; Rule 28 would be attracted when undue hardship in any particular case is caused. Such relaxation of Rules shall be permissible only in consultation with the Commission. It is not a case where an undue hardship suffered by the 3rd respondent could legitimately be raised being belonging to a particular class of employee. No such case, in law could have been made out. It, in fact, caused hardship to other employees belonging to the same category, who were senior to him; and thus, there was absolutely no reason why an exception should have been made in his case.” (See also State of Gujarat v. Karshanbhai K. Rabari, (2006) 6 SCC 21 .) 15. No such case, in law could have been made out. It, in fact, caused hardship to other employees belonging to the same category, who were senior to him; and thus, there was absolutely no reason why an exception should have been made in his case.” (See also State of Gujarat v. Karshanbhai K. Rabari, (2006) 6 SCC 21 .) 15. Yet, recently, in Principal, Mehar Chand Polytechnic v. Anu Lamba, (2006) 7 SCC 161 , it was held: (SCC p.171, para 35) “35. The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The Project undertaken by the Union of India although continued for some time was initially intended to be a time bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturists. In the absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ of or in the nature of mandamus.” 16. We may, however, notice that in Mineral Exploration the attention of this Court was not drawn to the earlier precedents including a three-judge Bench of this Court in B.N. Nagarajan v. State of Karnataka.” 12. The same view has been reiterated in Municipal Corporation, Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373 (para 10 to 19); State of U.P. and others v. Deshraj, (2007) 1 SCC 257 (para 9 to 12); and, Government of Andhra Pradesh and others v. K. Brahmanandam and others, (2008) 5 SCC 241 . 13. All these judgements considering distinction between “irregular” and “illegal” appointment have been noticed in State of Karnataka and others v. Sri G.V. Chandrashekar, JT 2009(4) SC 367 and it has been held that law laid down by Constitution Bench in Uma Devi (supra) is binding on all the Courts including Apex Court till the same is overruled by a larger Bench and cannot be ignored at all. It has been followed even thereafter in State of Bihar v. Upendra Narayan Singh and others, 2009(4) SCC 77; State of Uttranchal v. Alok Sharma and others, JT 2009(6) SC 463; Harminder Kaur and others v. Union of India and others, (2009) 13 SCC 90 ; Union of India and another v. Kartick Chandra Mondal and another, (2010) 2 SCC 422 ; Satya Prakash and others v. State of Bihar and others, (2010) 4 SCC 179 ; and, State of Rajasthan and others v. Daya Lal and others, 2011(2) SCC 429 . 14. Recently this aspect has been considered again in State of Jammu and Kashmir and others v. District Bar Association Bandipora, 2016 (12) SCALE 564; 2017 (3) SCC 410 and after referring to various authorities, post Constitution Bench judgment in Secretary, State of Karnataka v. Uma Devi (supra) it has been held that, the principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee, right to seek a writ commanding State to frame a scheme for regularisation, otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Secretary, State of Karnataka v. Uma Devi (supra). Ultimately, it would have to be left to State and its instrumentalities to consider whether circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded status of an enforceable right. Ultimately, it would have to be left to State and its instrumentalities to consider whether circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in paragraph 53 and falls within the ambit of a scheme that may be formulated by State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Secretary, State of Karnataka v. Uma Devi (supra) and be upheld. 15. Thus observations made in Secretary, State of Karnataka v. Uma Devi (supra) in paragraph-53 of the judgment will not help petitioners for the reason that they could not show that their appointments were irregular. Neither it is pleaded nor any material has been placed before us to show that even a letter of appointment was issued to petitioners at any point of time. When questioned, it also could not be disputed that at no point of time, post or vacancy was advertised and after considering all eligible candidates, aspiring for advertised vacancy any selection or appointment was made. Petitioners were not appointed after following such a procedure complying requirement of equal opportunity of employment ensuing under Article 16 of the Constitution. 16. In written statement filed by respondents before Tribunal it is stated that petitioners were engaged to perform duties of certain nature of posts on consolidated wages and no letters of appointment were ever issued. Engagement of petitioners were dehors the Rule and in total non compliance of requirement of Article 16(1). There also existed no provision which may confer any right upon petitioners to claim regularization. It is in this backdrop, the law laid down by Constitution Bench in Secretary, State of Karnataka v. Uma Devi (supra) would apply to hold that petitioners are not entitled for any regularization since appointments were not made following procedure prescribed under Rules and consistent with Article 16(1) of the Constitution. 17. Moreover, it has neither been argued nor shown that petitioners have been dealt with arbitrarily and their terminations are bad. Petitioners’ engagement was a back door entry and they have been terminated by their employer by an order of termination simplicitor. 18. 17. Moreover, it has neither been argued nor shown that petitioners have been dealt with arbitrarily and their terminations are bad. Petitioners’ engagement was a back door entry and they have been terminated by their employer by an order of termination simplicitor. 18. In absence of violation of Rules or any terms of contract, we find no reason to hold that termination is bad and liable to be set aside. 19. It is no doubt true that petitioners later approached this Court by filing writ petition that respondents should regularize them and therein respondents were directed to consider petitioners for regularization in accordance with law but respondent-competent authority did not find any claim of petitioners for regularization since they had no right to continue and thus their termination cannot be said invalid. We find no infirmity in the view taken by respondent-competent authority in the light of discussions made hereinabove. 20. In view of above we find no legal, factual or otherwise error, apparent on the face of record in the judgment and order of Tribunal, impugned in this writ petition so as to warrant interference. 21. Writ petition being devoid of merit, is dismissed accordingly.