NATIONAL FERTILIZERS LTD. & ORS.versusSOMVIR SINGH

               NATIONAL FERTILIZERS LTD. & ORS.                                A
                                    v.
                            SOMVIR SINGH

                              MAY 12, 2006

               [S.B. SINHA AND P.P. NAOLEKAR, JJ.]
                                                                               B

     Service Law :

     Appointment-By Government Company-In violation of Recruitment
Rules-Regularisation thereof-Permissibility of-Held Appointments in            C
violation ofRecruitment Rules would render them as nullities-Ifappointment
is without following the Rules, the question of regularization thereof would
not arise.

      Appellant, a Government Company took a policy decision not to
make further recruitment. Despite such ban 52 employees including
                                                                               D
respondents were appointed without any advertisement and without any
intimation to employment exchange i.e. in violation of the Recruitment
Rules made by the appellant. Writ Petitions were filed in various High
Courts. Different views were expressed by different High Courts. Writ
Petitions filed by the respondents were allowed directing the appellant        E
to regularize the services of the respondents.

    In appeal to this Court respondent contended that their
appointments might be irregular but not illegal, that for Class IV
employees, Employment Exchanges were not required to be notified.              F

      Allowing the appeals, the Court

    HELD : 1.1. The appointments of the Respondents are illegal. They
do not, thus, have any legal right to continue in service. (407-E-FJ
                                                                               G
     1.2. The Respondents herein were appointed only on applications
made by them. Admittedly, no advertisement was issued in a newspaper
nor the employment exchange was notified as regard existence of
vacancies. It is now trite law that a 'State' within t~e meaning of Article
12 of the Constitution oflndia is bound to comply with the constitutional      H
                                    397
    398                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   requirements as adumbrated in Articles 14 and 16 thereof. When
    Recruitment Rules are made, the employer would be bound to comply
    with the same. Any appointment in violation of such Rules would render
    them as nullities. It is also well-settled that no recruitment should be
    permitted to be made through backdoor. [402-E-G)

B       Secretary, State of Karnataka and Ors. v. Umadevi and Ors., [20061
    4 SCALE 197, followed.

          Union Public Service Commission v. Girish Jayanti Lal Vaghela and
    Ors., (2006) 2 SCALE 115; State of Mysore v. S.V. Narayanappa, (1967)
    1 SCR 799; Nanjundapa v. T Thimmiah and Anr., (197212 SCR 799 and
c   B.N. Nagarajan and Ors. v. State of Karnataka and Ors., (1979) 3 SCR
    937, relied on.

         1.3. Regularisation is not a mode of appointment. If appointment
    is made without following the Rules, the same being a nullity the
D   question of confirmation of an employee upon the expiry of the purported
    period of probation would not arise. (404-A-B)

          1.4. It cannot be said that the appointments were irregular and not
    illegal. Respondents were appointed only on the basis of their applications.
    The Recruitment Rules were not followed. Even the Selection Committee
E   had not been properly constituted. In view of the ban in employment,
    no recruitment was permissible in law. The reservation policy adopted
    by the appellant had not been maintained. Even cases of minorities had
    not been given due consideration. (407-A-CI

          1.5. It is true that the Respondents had been working for a long
F   time. It may also be true that they had not been paid wages on a regular
    scale of pay. But, they did not hold any post. They were, therefore, not
    entitled to be paid salary on a regular scale of pay. Furthermore, only
    because the Respondents have worked for some time, the same by itself
    would not be a ground for directing regularisation of their services.
G                                                                 [407-F-GJ

        2. The plea that for Class IV employees, the Employment Exchanges
    were not required to be notified in view of Section 3(1)(d) of the 1959
    Act does not appear to have been raised before the High Court. No
H   material was placed by the employer to show as to whether the job of
     NATIONAL FERTILIZERS LTD. v. SOMVIR SINGH [SINHA, J.] 399

the respondents was within the purview of the aforementioned                  A
provision. (402-G-H, 403-C-D]

     3. The respondents said to be working, may be relieved of their
posts. However, their cases may be considered for future appointment
and age bar, if any, in view of the policy decision of the appellant itself
maybe relaxed to the extent they had worktrl. The salary or any
                                                                              B
remuneration paid to them, however, may not be recovered. This order,
however, is being passed in exerd~e of jurisdiction under Article 142 of
the Constitution of India keeping in view the principles embodied in
Section 70 of the Contract Act. (408-A-B]
                                                                              c
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6337 of
2003.

     From the Final Order dated 22.02.2002 of High Court ofChhatish Garh
at Bilaspur in Writ Petition No. 4946/1998.
                                                                              D
                                  WITH

     Civil Appeal No. 464 of 2004.

     Civil Appeal No. 465 of 2004.
                                                                              E
     Civil Appeal No. 466 of 2004.

     Civil Appeal No. 467 of 2004.

     Civil Appeal No. 7575 of 2005.
                                                                              F
     Bhaskar P. Gupta, Sr. Adv., Ghanshyam Joshi, Sanjiv Kumar Saxena
and Partha Sil, Advs. with him for the Appellants.

      Dinesh Kumar Garg (NP), Ashok Mathur, Devendra Singh (NP), Ad vs.
for the Respondent.
                                                                              G
     The Judgment of the Court was delivered by

      S.B. SINHA, J : The Appellant is a Government Company. It is a
public sector undertaking. It is a 'State' within the meaning of Article 12
of the Constitution of India. A policy decision was taken by the Appellant    H
    400                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   not to make any further recruitment in Marketing Division in any category
    of post stating:

             "It has been decided that with immediate effect the strength of the
             Marketing Division be pagged to the number of individuals in
             position in the Marketing Division as on 31.03.1998. It has also
B            been decided that no further recruitment be made in the Marketing
             Division in any category of post. However, as and when if any post
             is required to be filled up in any category due to exigencies of work,
             the approval of D(F)/MD be obtained and the paper routed through
             the Corporate Office Personnel Department."
c
           Despite such ban the Respondents had been appointed. Before such
    appointment the employment exchange was not intimated about the vacancy
    in terms of the provisions of Employment Exchange (Compulsory Notification
    of Vacancies) Act, I 959 (for short "the I 959 Act"). Admittedly, no
    advertisement was also issued. According to the Respondent, he worked at
D   the Shimla Office of the Appellant for a period of six months and, thus, he
    was entitled for recruitment in terms of Rule l.5(g) of the Recruitment and
    Promotion Rules. Rule I .5(g) of the Rules does not envisage regular
    recruitment but a recruitment on a contractual basis. The Respondent, thus,
    on his own showing was appointed on a contractual basis. It is trite that a
E   person who obtained recruitment on contractual basis cannot claim
    regularisation in service. The Respondents herein filed applications for their
    recruitment without any vacancy having been notified. They were said to
    have been interviewed on 24.3. I99 I by a purported Committee constituted
    by the General Manager. Appointment letters were issued on or about
F   9.4.1991. An advertisement was admittedly issued only on 30 111993 for
    the post of Peon-cum-Messenger.

         The Appellant in the year 1994, however, took a decision to fill up the
    posts in the Marketing Division inter alia stating:

G            "During the coordination committee meeting held in October 1994,
             at C.O. the recognized union of marketing division requested for
             removal of ban in filling up vacant posts in marketing division. It
             was agreed that action to fill up the vacant posts in marketing
             division will be taken by marketing divbion, keeping in view th.:
H            recruitments within the overall manpower strength."
      NATIONAL FERTILIZERS LTD. v. SOMVIR SINGH [SINHA, J.] 401

     Actions were initiated to fill up the vacant posts on permanent status         A
by following the recruitment procedure. The Respondents were also granted
an opportunity to file applications thereagainst. Relaxation of age to the
extent of their services as temporary employees had also been granted.

     The Appellant has framed its own Recruitment and Promotion Rules.              B
The recruitment of an employee is governed by the said Rules. The terms
and conditions of services are also governed by the same Rules. In terms
of Rule 1.5 of the said Rules, recruitment of various posts were to be made
 inter alia from the following sources:

      (a)   Employment Exchange as per the provisions of the 1959 Act.              C

      (b)   Zila Saink Boards Director General Resettlement.

      (c)   Direct Recruitment by advertisement.
                                                                                    D
        Rule 1.6.1 provides for method and procedure for recruitment in terms
  whereof all posts in the scale of pay of Rs. 1560-2160 is required to be
  considered as 'corporate level'. Direct recruitment can be resorted to only
  when no suitable candidate for promotion was available in the appropriate
  rank. Rule 1.6.8 provides for the mode and manner in which the advertisement
  is to be issued. Rule 1.6.9 provides for reservation. The manner in which
                                                                                    E
· Selection Committee has to be constituted has been laid down in paragraph
  1.11. Such Selection Committee inter alia must consist of two members·
  from the discipline for which recruitment is to be made apart from an officer
  from the Personnel Department as Member Secretary. In the event, a
  selection is to be made for reserved category, an officer of appropriate status   F
  belonging to SC/ST will be included as a member. In a case of recruitment
  to Group C & D posts, a member representing minority community will also
  be associated in the selection committee. The matter relating to interview
  is provided for in paragraph 12.l. Appointments are to be made in terms
  of paragraph l.13.                                                                G

      The said Rules, therefore, lay down in great details as to how and in
 what manner the selection process was to be initiated, the minimum
 qualification therefor, the constitution of Selection Committee and other
 relevant factors.
                                                                                    H
    402                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A         It is not in dispute that the Respondents herein were appointed without
    any advertisements and without any intimation to the employment exchange.
    Appointments are said to be made at the instance of two officers. Only after
    retirement of the said officers, writ petitions were filed before several High
    Courts including Chhattisgarh, Punjab and Haryana, Himachal Pradesh,
    Delhi, Madhya Pradesh and Rajasthan.
B
         The writ petitions involved 52 employees.         Different views were
    expressed by different High Courts.

        The writ petitions filed by the Respondents were allowed directing the
c   Appellant to regularise the services of the Respondents to pay them all
    monetary benefits in terms of the appointment letters.

         Mr. Bhaskar P. Gupta, learned senior counsel appearing on behalf of
    the Appellant submitted that the matter relating to regularisation of services
    recruited on ad hoc basis is no longer res integra in view of the recent
D
    Constitution Bench decision of this Court in Secretary, State of Karnataka
    and Others v. Umadevi and Others, [2006] 4 SCALE 197.

         Mr. Ashok Mathur, learned counsel appearing on behalf of the
    Respondents, on the other hand, submitted that the appointments of the
E   Respondents may be irregular but not illegal and in that view of the matter,
    the impugned judgments need not be interfered with.

          The Respondents herein were appointed only on applications made by
    them. Admittedly, no advertisement was issued in a newspaper nor the
F   employment exchange was notified as regard existence of vacancies. It is
    now trite law that a 'State' within the meaning of Article 12 of the
    Constitution of India is bound to comply with the constitutional requirements
    as adumbrated in Articles 14 and 16 thereof. When Recruitment Rules are
    made, the employer would be bound to comply with the same. Any
    appointment in violation of such Rules would render them as nullities. It
G   i~ also well-settled that no recruitment should be permitted to be made
    through backdoor.

        It was contended that for Class IV employees, the Employment
    Exchanges were not required to be notified in view of Section 3( I)( d) of the
H   1959 Act. Section 3(1)(d) of the 1959 Act reads as under:
     NATIONAL FERTILIZERS LTD. v. SOMVIR SINGH [SINHA, J.] 403

        "3. Act not to apply in relation to certain vacancies -(I) This Act      A
        shall not apply in relation to vacancies


        (a)   ***
        (b)   ***                                                                B
        (c)   ***
        (d)   in any employment to do unskilled office work;"

     Such a plea does not appear to have been raised before the High Court.      c
The question as regards the nature of duties required to be perfonned by the
Respondents having not been raised. No material was placed by the
employer to show as to whether the job of the Respondents was within the
purview of the aforementioned provision. The Respondents themselves
stated that they raised the question of applicability of the said provision of
the Act in a suit filed at Jagadhri when another person was appointed as Peon-
                                                                                 D
cum-Messenger. It, therefore, cannot be said that they were not aware of
the statutory provisions contained in the said suit.

      The order of ban suggests that if any appointment was to be made due
to exigencies of work, the approval of the Director (Finance) or Managing        E
Director was to be obtained and the paper routed in respect thereof should
be through the corporate office. The Respondents contend that as at the point
of time the Managing Director, Shri S.S. Jain had been placed under
suspension, the file was placed before the General Manager (Marketing).
The said plea cannot be accepted for more than one reason. If the regular        F
incumbent or the Managing Director was placed under suspension, somebody
else must be incharge of the said post. Furthermore, the file could be placed
before the Director (Finance). The General Manager by no stretch of
imagination could accord approval for appointment.

      Submission of the learned counsel appearing on behalf of the               G
Respondents to the effect that the ban was only on paper is not a matter which
would fall for consideration of this Court inasmuch as it is not in dispute
that the ban was lifted only on 16.12.1994. On what premise, an advertisement
was issued on 30.11.1993 is not known. It is not the case of the Respondent
that despite existence of ban some other workman was appointed prior to          H
    404                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   the lifting thereof. Even if, recruitments have been made illegally, the
    Respondents cannot claim any legal right on the basis thereof.

         Regularisation, 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
B   period of probation would not arise. The Constitution Bench in Umadevi
    (supra) made a detailed survey of the case laws operating in the field.

        The referral order to the Constitution Bench was made by a 3-Judge
    Bench of this Court stating:
c
             "!. Apart from the conflicting opinions between the three Judges'
             Bench decisions in Ashwani Kumar and Ors. v. State of Bihar and
             Ors., reported in [1997] 2 SCC I, State of Haryana and Ors. v.,
             Piara Singh and Ors. Reported in [1992] 4 SCC 118 and Dharwad
             Distt. P. W.D. Literate Daily Wage Employees Association and Ors.
D            v. State of Karnataka and Ors. Reported in (1990] 2 SCC 396, on
             the one hand and State of Himacha/ Pradesh v. Suresh Kumar
             Verma and Anr., reported in AIR 1996 SC 1565, State of Punjab
             v. Surinder Kumar and Ors. Reported in AIR (1992) SC 1593, and
             B.N. Nagarajan and Ors. v. State of Karnataka and Ors., reported
E            in [1979] 4 sec 507 on the other, which has been brought out in
             one of the judgments under appeal of Karnataka High Court in
             State ofKarnataka v. H. Ganesh Rao, decided on 1.6.2000, reported
             in 2001 (4) Karnataka Law Journal 466, learned Additional Solicitor
             General urged that the scheme for regularization is repugnant to
             Articles 16(4), 309, 320 and 335 of the Constitution of India and,
F
             therefore, these cases are required to be heard by a Bench of Five
             learned Judges (Constitution Bench).

             2. On the other hand, Mr. M.C. Bhandare, learned senior counsel,
             appearing for the employees urged that such a scheme for
G            regularization is consistent with the provision of Articles 14 and 21
             of the Constitution.

             3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CC
             Nos.109-498 of 2003, has filed the G.O. dated 19.7.2002 and
H            submitted that orders have already been implemented.
      NATIONAL FERTILIZERS LTD. v. SOMVIR SINGH [SINHA, J.] 405

         4. After having found that there is conflict of opinion between            A
         three Judges 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 Hon'ble the Chief Justice            B
         for appropriate orders."

       The Constitution Bench opined that any appointment made in violation
of the Recruitment Rules as also in violation of Articles 14 and 16 of the
Constitution wou Id be nullity. The contenti9n raised on behalf of the
employees that those temporary or ad hoc employees who had continued for            c
a fairly long spell, the authorities must consider their cases for regularisation
was answered, thus:

         "With respect, why should the State be allowed to depart from the
         normal rule and indulge in temporary employment in permanent               D
         posts? This Court, in our view, is bound to insist on the State
         making regular and proper recruitments and is bound not to ·
         encourage or shut its eyes to the persistent transgression of the rules
         of regular recruitment. The direction to make permanent - the
         distinction between regularization and making permanent, was not           E
         emphasized here - can only encourage the State, the model
         employer, to flout its own rules and would confer undue benefits
         on a few at the cost of many waiting to compete. With respect, the
         direction made in paragraph 50 of Piara Singh (supra) are to some
         extent inconsistent with the conclusion in paragraph 45 therein.
         With great respect, it appears to us that the last of the directions       F
         clearly runs 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."                   G

       It was furthermore opined:

         "26. It is not necessary to notice all the decisions of this Court on
         this aspect. By and large what emerges is that regular recruitment         H
    406                  SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R

A            should be insisted upon, only in a contingency an ad hoc appointment
             can be made in a pennanent vacancy, but the same should soon be
             followed by a regular recruitment and that appointments to non-
             available posts should not be taken note of for regularization. The
             cases directing regularization have mainly proceeded on the basis
             that having pennitted the employee to work for some period, he
B            should be absorbed, without really laying down any law to that
             effect, after discussing the constitutional scheme for public
             employment."

          Taking note of some recent decisions of this Court, it was held that the
c State does not enjoy a power to make appointments in tenns of Article 162
    of the Constitution of India. It further quoted with approval a decision of
                                                                                     .
    this Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela
    & Others, [2006] 2 SCALE 115 in the following tenns:


D            " ... The appointment to any post under the State can only be made
             after a proper advertisement has been made inviting applications
             from eligible candidates and holding of selection by a body of
             experts or a specially constituted committee whose members are fair
             and impartial through a written examination or interview or some
             other rational criteria for judging the inter se merit of candidates
E
             who have applied in response to the advertisement made. A regular
             appointment to a post under the State or Union cannot be made
             without issuing advertisement in the prescribed manner which may
             in some cases include inviting applications from the employment
             exchange where eligible candidates get their names registered. Any
F            regular appointment made on a post under the State or Union
             without issuing advertisement inviting applications from eligible
             candidates and without holding a proper selection where all eligible
             candidates get a fair chance to compete would violate the guarantee
             enshrined under Article 16 of the Constitution ... "
G
          It was clearly held:

             "These binding decisions are clear imperatives that adherence to
             Articles 14 and 16 of the Constitution 1s a must in the process of
             public employment."
H
      NATIONAL FERTILIZERS LTD. v. SOMVIR SINGH [SINHA, J.) 407

      The contention of the learned counsel appearing on behalf of the            A
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
in employment, no recruitment was pennissible in law. The reservation
policy adopted by the Appellant had not been maintained. Even cases of
                                                                                  B
minorities had not been given due consideration.

      The Constitution Bench thought of directing regularisation of the
services only of those employees whose appointments were irregular as
explained in State of Mysore v. S.V Narayanappa, [1967) I SCR 799,                C
Nanjundappa v. T. Thimmiah & Anr., [1972) 2 SCR 799 and B.N. Nagarajan
& Ors. v. State ofKarnataka & Ors., [1979) 3 SCR 937, wherein this Court
observed:

         "In B.N. Nagarajan & Ors. v. State of Karnataka & Ors., [ 1979)          D
         3 SCR 937, this court clearly held that the words "regular" or
         "regularization" do not connote pennanence and cannot be construed
         so as to convey an idea of the nature of tenure of appointments.
         They are tenns calculated to condone any procedural irregularities
         and are meant to cure only such defects as are attributable to
         methodology followed in making the appointments ..."                     E

      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.
                                                                                  F
      It is true that the Respondents had been working for a long time. It
may also be true that they had not been paid wages on a regular scale of
pay. But, they did not hold any post. They were, therefore, not entitled to
be paid salary on a regular scale of pay. Furthennore, only because the
Respondents have worked for some time, the same by itself would not be
a ground for directing regularisation of their services in view of the decision   G
of this Court in Uma Devi (supra).

       In view of the authoritative pronouncement of the Constitution Bench,
  in our opinion, the impugned judgments cannot be sustained. They are set
. aside accordingly.                                                              H
    408                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A         S/Shri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit Singh are
    said to be working. They may be relieved of their posts. We may, however,
    observe that their cases may be considered for future appointment and, age
    bar, if any, in view of the policy decision of the Appellant itself may be
    relaxed to the extent they had worked. The salary or any remuneration paid
    to them, however, may not be recovered. This order, however, is being
B   passed in exercise of our jurisdiction under Article 142 of the Constitution
    of India keeping in view the principles embodied in Section 70 of the
    Contract Act. The appeals are allowed. No costs.

    K.K.T.                                                    Appeals allowed.
                                                                                   .·