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TMI Blog2006 (12) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that recruitment procedure, as laid down by the rules framed by the State of Madhya Pradesh in terms of the said provisions of the Act, had not been followed. Industrial disputes were said to have been raised and different labour courts in their Awards arrived at different conclusions. The Municipal Corporation purported to have laid down a policy decision to regularise the services of the employees in terms whereof those who had been working from a period prior to 31st December, 1983 were to be regularized according to seniority and availability of posts on fulfilling the eligibility criteria laid down therefore. Several writ petitions were filed questioning the correctness or otherwise of the said Awards. When the matter was pending before the High Court, the counsel appearing on behalf of the Corporation brought to its notice about the said purported scheme of the State. 4. Respondent herein was one of the six petitioners in Writ Petition No. 4739 of 1998, which was also disposed of together with other writ applications pending before the High Court. A contempt petition came to be filed by the respondent herein alone, although, as noticed hereinbefore, the scheme in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who were not eligible for the regularisation. Aforesaid action shall be taken by the Commissioner, Municipal Corporation within a period of three months from today. In case some action is to be taken by the State, an appropriate step shall be taken by him in this regard drawing attention of the State within a period of 30 days from today. The Commissioner, Municipal Corporation shall be responsible for the compliance of this order. A compliance report of this order be sent to the Registry of this Court within a period as fixed by this Court hereinabove. Report filed in a sealed cover is returned to Shri Sharad Verma, learned Counsel. The Municipal Corporation is, thus, before us. 5. Mr. Ranjan Mukherjee, learned Counsel appearing on behalf of the appellant would submit that the High Court committed a serious error in issuing the aforesaid directions, as the purported policy decision dated 31.3.1997, on the basis whereof the High Court passed its order framing a scheme of regularisation on 27.2.2003, has been superseded by the State by issuing a circular dated 12.4.2005, inter alia, stating: Appointments made on the above daily wage were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the extant rules. Prior to their appointment, no advertisement has been issued. The employment exchange had not been notified in regard to the existing vacancy. In short, the principle of 'public employment' laid down under Article 16 of the Constitution of India has not been complied with. Regularisation, as is well known, is not a mode of appointment. Regularisation, again indisputably, does not mean permanence. However, having noticed that different Benches of this Court had been passing different orders, in Secretary, State of Karnataka and Ors. v. Umadevi (2) and Ors. (2006) 4 SCC 44 : (2003) 10 SCALE 388, a Three Judge Bench referred the matter to the Constitution Bench. In Umadevi (3) (supra), the Constitution Bench held: During the course of the arguments, various orders of the courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned Counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to the legal principles and it is time that this Court settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 open eyes. 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. 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 secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unals 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. 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 of the constitutional scheme as also the rules have been made, the appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reason for rejection of the argument advanced on behalf of the promotees and that reason is that 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 Article 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. Regularisation in the present case, if it meant permanence operative from November 1, 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 Article 309 of the Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 14. This Court, in Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad and Ors. (2006) 7 SCC 684, held: Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Madhya Pradesh. If it had violated the direction of the State, in terms whereof its earlier policy decision stood reversed, it cannot be said to have committed a contempt of court. The question recently came up for consideration in State of Orissa and Anr. v. Aswini Kumar Baliar Singh (2006)6SCC759 , wherein a Division Bench of this Court held that the Court is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment and order. It was held: In the instant case, the action taken by the respondent in purported violation of the Court's order arose owing to a subsequent cause of action, namely, orders passed by the State of Orissa and unless the said orders were set aside, the Inspector of Schools can be said to have flouted the order of the High Court . We are in this case not called upon to consider the implication of the Awards, which might have been passed in favour of the workmen. The Division Bench, by reason of the impugned judgment had issued directions in exercise of its jurisdiction under Section 12 of the Contempt of Courts Act, 1971, without a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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