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TMI Blog2006 (8) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... d period in a project and, thus, are being disposed of by this common judgment. We would notice the factual matrix of the matter from Civil Appeal No. 7051 of 2002. The First Respondent was appointed as an Assistant Computer Instructor. Mehar Chand Polytechnic, Jalandhar, undertook a Community Polytechnic Project, a scheme issued by the Ministry of Human Resources Development, Government of India. The Central Government issued "provisional norms" for implementing the scheme. Specific amounts by way of both recurring and non-recurring expenses used to be granted by the Central Government. Under the head non-recurring expenses, a sum of Rs. Ten lacs was earmakred for acquisition of tools and equipments for five extension centres. As regards recurring nature of expenditure, Instructor were to be appointed on a consolidated amount of Rs.1,500/- or Rs.2,000/- as the case may be. The total amount of recurring expenditure was fixed at Rs. Seven lacs only. In the circular letter, it was, inter alia, stated: "The expenditure shown above are at the maximum limit and the actual expenditure on each item should be limited to the bare minimum. The payment of salary/honorarium should also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government. One of the appointment letters issued to the First Respondent reads as under :- "Please refer to your application dated 31.7.1992 for the post of Asstt. Computer Instructor at this wing. You are hereby offered the post of Asstt. Computer Instructor on purely temporary basis w.e.f. 3.8.1992 on a consolidated salary of Rs.1500/- per month for a period of one year i.e. upto 31.7.1993. 3. Your services can be terminated by giving 15 days notice on either side." It is not the case of the Respondents that prior to issuance of the said offer of appointment any vacancy existed or the same was notified to the Employment Exchange. It is furthermore not their case that they were recruited in terms of the statutory rules and/or upon compliance of the requirements envisaged under Articles 14 and 16 of the Constitution of India. It is also not their case that prior to their appointments any advertisement was issued enabling the eligible candidates to file applications therefor or the vacancies were notified to the Employment Exchange. They made a representation for grant of scale of pay, which was rejected. A writ petition was filed before the Punjab Haryana High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the number of such Community Polytechnics has gone up throughout India, the Union of India, being a model employer, could not have taken recourse to arbitrary exercise of power by imposing such harsh conditions of service. Putting of long years of service, according to the learned counsel, itself would be sufficient for directing regularization of service. Public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India. The State although is a model employer, its right to create posts and recruit people therefor emanates from the statutes or statutory rules and/or rules framed under the proviso appended to Article 309 of the Constitution of India. The recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts. The Parliament for giving effect to the provisions of the Article 16 of the Constitution enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The statutes and the statutory rules framed by the Union of India and other States also invariably require issuance of a public notices so as to enable all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed the GO dated 19.7.2002 and submitted that the orders have already been implemented. 4. After having found that there is conflict of opinion between the three-Judge Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges. 5. Let these matters be placed before the Hon ble the Chief Justice for appropriate orders." The Constitution Bench of this Court while answering some of the said questions in no uncertain terms held that any appointment made in violation of the statute or in derogation of the equality clause contained in Articles 14 and 16 of the Constitution would be void and of no effect. It was opined that such persons who had obtained such illegal appointments were not entitled to claim regularization. We may at this juncture notice that way back in 1992, a three-Judge Bench of this Court in Delhi Development Horticulture Employees Union (supra) observed as under: "The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng our interference. The order of the High Court is, therefore, set side." Strong reliance has been placed by Mr. Iyer in Jacob M. Puthuparambil and Others etc. v. Kerala Water Authority and Others [(1991) 1 SCC 28], for the proposition that even if statutory rules do not operate in the field, direction for regularization is permissible in law. Jacob (supra) was decided in a different fact situation. In that case the employees concerned were working in the erstwhile Public Health Engineering Department. Upon creation of the Kerala Water and Waste Water Authority constituted under Section 3(1) of the Ordinance 14 of 1984 repealed and replaced by Act 14 of 1986, their services were transferred. The cases of regularization of the employees appointed during different periods came up for consideration in the light of Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 and the Resolution adopted by the Authority in terms thereof. The contention of the employees therein was that they were having been appointed in terms of the Rule 9(1) of the Rules and their names having been called for from the Employment Exchange, the services of those who possessed requisite qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uns counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent." Baseruddin M. Madari and Others v. State of Karnataka and Others [(1995) Supp. 4 SCC 111], whereupon again reliance has again been placed by the Senior Counsel, this Court following the decision in Karnataka State Private College Stop-Gap Lecturers Association (supra) did not lay down any law that services of all ad hoc employees are required to be regularized. The Constitution Bench in Umadevi (supra) in regard to the temporary employees clearly opined: "There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Umadevi (supra), it was stated: "There have been decisions which have taken the cue from the Dharwad case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent" See also State of U.P. v. Neeraj Awasthi and Others [(2006) 1 SCC 667]. Yet again in National Fertilizers Ltd. Ors. v. Somvir Singh [(2006) 6 SCALE 101], it was held : "Regularization, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise" It was further opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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