STATE OF U.P. AND ORS.versusDESH RAJ

A                            STATE OF U.P. AND ORS.
                                         v.
                                     DESHRAJ

                               NOVEMBER 23, 2006

B                  [S.B. SINHA AND MARKANDEY KA TJU, JJ.)


          Labour Laws:

          Appointment of workman on daily wages for specific work-Filing of
C   writ petition for direction to employer for regularization-Single Judge of
    High Court directing employer to create supernumerary post to consider his
    claim, till such creation the incumbent shall be paid wages equivalent to
    minimum ofpay scale-Appeal was rejected by Division Bench of High Court
    as barred by limitation-On appeal, Held: Appointment made in violation of
D   constitutional scheme of equality would be rendered illegal and thus void
    ab initio-No regularization rules could be framed by State in derogation to
    the statut01y or constitutional scheme-And it must be made in terms of
    Proviso to Article 309 of the Constitution of India-Regularisation of the
    employee in terms of any policy decision by the State is impermissible in
    law-Order of the High Court suffer from legal error, hence, set aside-A sum
E   of Rs. 10,0001- shall be paid to the incumbent as compensation amount-
    Constitution of India, 1950-Articles 14, 16 and 309-Right to equality.

          Words and Phrases:

          'Irregularity' and 'illegality'-Distinction between in the context of
F   appointment, Service Law.

          Respondent was appointed on daily wages for specific work on Muster
    Roll of the Public Works Department. A writ petition was filed by the
    respondent praying for his regularization. A Single Judge of the High Court
    directed the opposite parties to examine the petitioner's claim for
G   regularization, till a decision is taken he shall be paid wages equivalent to
    the minimum pay scale admissible to a Male workman working in the
    department with effect from 1st January, 2004. A special appeal filed
    thereagainst was dismissed by the Division Bench of the High Court. Hence
    the present appeal.
H                                        352
                          STATEOFU.P. v. DESHRAJ                             353

      Allowing the appeal, the Court                                                 A
      HELD:l.l. Single Judge of the High Court for all intent and purport
had allowed the writ petition on the very first day which was not justified. It is
now well-settled that a relief which can be granted only at the final hearing of
the matter, should not ordinarily be granted by way of an interim order. It is
also doubtful as to whether the impugned directions could have been issued           B
even at the final hearing of the matter which would amount to creation of
supernumerary post in purported compliance of the regularization rules.
                                                                       1355-C-D)
       1.2. It is now well-settled that the &;Jpointments, if made in violation of
the constitutional scheme of equality as enshrined under Article 14 and 16           C
of the Constitution of India, would be rendered illegal and, thus void ab initio.
Furthermore, the State must have made rules in terms of the proviso appended
to Article 309 of the Constitution of India, providing for the mode and manner
in which recruitments are to be made. Such rules have statutory force.
                                                                       1355-E-F)     D
       Secretary State of Karnataka & Ors. v. Umadevi & Ors., 120061 4 SCC
I followed.
      2.1. An appointment which was made throwing all constitutional
obligations and statutory rules to winds would render the same illegal whereas
irregularity pre supposes substantial compliance of the rules. [356-F-G) .     E
     State of Mysore v. S. V. Narayanappa, 11967] 1 SCR 128; R.N.
Nanjundappa v. T. Thimmiah, [1972) 4 SCC 507 and National Fertilizers Ltd.
& Ors. v. Somvir Singh, [2006) 5 SCC 493, referred to.

     2.2. It is not the case of the respondents that they were recruited in          p
terms of the provisions of the recruitment rules framed under the proviso
appended to Article 309 of the Constitution oflndia. In that view of the matter,
exfacie their appointments were illegal. [357-F-G]

      National Fertilizers Ltd. & Ors. v. Somvir Singh, 12006) 5 SCC 493,
relied on.                                                                           G
     2.3. In any event, the question of regularization of the employees by
reason of any policy decision adopted by the State is impermissible in law.
The judgment of the High Court suffer from a legal error. It is set aside
accordingly. However, the respondents should be compensated, as the appeal
preferred by the State was barred by limitation. The amount of compensation          H
    354                      SUPREME COURT REPORTS [2006} SUPP. 9 S.C.R.

A   is quantified at Rs.10,000/-. It would be open to the State to recover the amount
    from the officers who may be found responsible for causing the delay in
    preferring the appeal. (358-A-B)

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5674 of2006.

B         From the final Judgment/Order dated 22.8.2005 of the High Court of
    Judicature at Allahbad, Lucknow Bench, Lucknow in Special Appeal No.487
    of2005.

          Dr. R.G. Padia, Ashok K. Srivastava, Praveen Swarup and Jatinder Kumar
    Bhatia for the Appellants.
c
          Praveen Agrawal for the Respondent.

          The Judgment of the Court was delivered by

          S.B. SINHA, J. Leave granted.
D
          The State of U.P has herein questioned an interim order dated 15.1.04
    passed by the learned Single Judge of the Allahabad High Court as also order
    dated 22.8.2005 passed by a Division Bench of the said Court affirming the
    same.

E         The respondent was said to have been appointed on daily wages for
    specific work on Muster Roll purported to be under the provisions of
    paragraphs 429, 430 and 431 of the Financial Hand Book Volume-VI read with
    paragraph 476 of the Part-I of the Public Works Department of Manual of
    orders in local arrangell!ents.

F         A writ petition was filed by the respondent herein, inter alia, praying
    for his regularization. A learned Single Judge of the Lucknow Bench of the
    Allahabad High Court on the day of preliminary hearing while issuing rule
    passed the following order:

               "In the meantime, the opposite parties ho.3 to 5 shall examine the
G          petitioner's claim for regularization under the Regularization Rules
           2001 and pass appropriate orders. However, his claim shall not be
           rejected on the ground of the post being not available. Supernumerary
           posts have to. be created to comply with the provisions of the
           Regularization Rules and kept alive until regular posts fall vacant. Till
H          a decision is taken, the petitioner shall be paid wages equivalent to
                   STATEOFU.P. v. DESHRAJ [S.B. SINHA,J.)                   355
         the minimum of pay scale admissible to a Mate working in the               A
         department with effect from 1st January, 2004."

        A special appeal filed thereinagainst but the same was barred by
 limitation. The Division Bench, inter alia, on the said premise refused to
 interfere with the order passed by the learned Single Judge stating:
                                                                                    B
             "In these circumstances, the appeal Court should not interfere but
         leave the matter to be decided by the Hon'ble single Judge on a final
         basis. The appeal is thus dismissed on merits and also on the ground
         of delay which we are not minded to coridone, although this is
         illogical, we thought it better to make our minds known."
                                                                                    c
       A bare perusal of the impugned order could show that the learned
 Single Judge for all intent and purport had allowed the writ petition on the
 very first day, which in our opinion, was not justified. It is now well-settled
 that a relief which can be granted only at the final hearing of the matter,
 should not ordinarily be granted by way of an interim order. It is also doubtful   D
 as to whether the impugned directions could have been issued even at the
 final hearing of the matter which would amount to creation of supernumerary
 post in purported compliance of the regularisation rules.

         Whatever may be the import and purport of such regularization rules,
  in view of the recent Constitution Bench decision of this Court in Secretary,     E
  State of Karnataka & Ors. v. Umadevi & Ors., [2006] 4 SCC I, it is now well-
  settled that the appointments, ifmade in violation of the constitutional scheme
· of equality as enshrined under Articles 14 and 16 of the Constitution of India,
  would be rendered illegal and, thus void ab initio. No regularization rules,
  therefore, could have been made by the State of Uttar Pradesh in derogation
  to the statutory or r,onstitutional scheme.                                       F
       Furthermore, the State of Uttar Pradesh must have made rules in terms
 of the proviso appended to Article 309 of the Constitution oflndia, providing
 for the mode and manner in which recruitments are to be made. Such rules
 have statutory force.
                                                                                    G
       The learned counsel for the respondents, however, drew our attention
 to paragraphs 53 of Umadevi (supra), which reads as under:

             "One aspect needs to be clarified. There may be cases where
         irregular appointments [not illegal appointments] as explained in S.V.
                                                                                    H
    356                      SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A           Narayanappa, R.N. Nanjundappa and 8.N. Nagarajan and referred to
            in para 15 above, of duly qualified persons 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 regularization of the services of such employees may have to be
B           considered on merits in the light of the principles settled by this Court
            in the cases abovereferred 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 regularize as one time measure,
            the services of said irregularly appointed, who have worked for ten
c           years and more in duly sanctioned post but not under cover of orders
            of the Courts or of Tribunals and should further ensure that regular
            recruitments are undertaken to fiil that vacant sanctioned posts that
            required to be filled up, in cases v.here 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 regularization,
D           if any already made, but not subjudice, need not be reopened based
            on this judgment, but there shou!d be no further byepassing of the
            constitutional requirement and regularizing or making permanent, those
            not duly appointed as per the constitutional scheme."

E          The observations made in the said paragraph must be read in the light
    of the observations made in paragraphs 15 and 16 of the judgment. The
    Constitution Bench referred to the decisions of this Court in State of Mysore
    v. S. V Narayanappa, [1967] 1 SCR 128, R.N. Nanjundappa v. T. Thimmiah,
    (1972] 1SCC409 and B.N. Nagarajan v. State of Karnataka, [1979] 4 SCC
    507, B.N. Nagarajan is a d':'!cision rendered by a three judge bench of this
F   Court in which it has clearly been held that the regularisation does not mean
    permanence. A distinction has clearly been made in those decisions between
    'irregularity' and 'illegality'. An appointment which was made throwing all
    constitutional obligations and statutory rules to wirtds would render the same
    illegal whereas irregularity pre supposes substantial compliance of the rules.

G         Distinction between irregularity and illegality is explicit. It has been so
    pointed out in National Fertilizers Ltd. & Ors. v. Somvir Singh, [2006] 5 SCC
    493 in the following terms:

                "the contention of the learned counsel appearing on behalf of the
            respondents that the appointments were irregular and not illegal,
H           cannot be accepted for more than one reason. They were appointed
                  STATEOFU.P. v. DESH RA.I [S.B. SJNHA,.I.]               357
        only on the basis of their applications. The Recruitment Rules were      A
        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 minorities had not been given
        due consideration.
                                                                                 B
            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.
        Narayandappa v. T. Thimmiah and B.N. Nagarajan v. State of
        Karnataka, wherein this Court observed: [ Umadevi (3) case I, SCC C
        p.24. para 16[

            "16. In B.N. Nagarajan v. State of Karnataka 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 tenns calculated to condone   D
        any procedural irregularities and are meant to cure only such defects
        as are attributable to methodology followed in making the
        appointments."

            Judged by standards laid down by this Court in the aforementioned
        decisions, the appointments of the respondents are illegal. They do      E
        not thus, have any legal right to continue in service."

        [See also State of Madhya Pradesh & Ors. v. Yogesh Chandra Dubey
        & Ors., [2006] 8 sec 67]

       It is notthe case of the respondents that they were recruited in terms
of the provisions of the recruitment rules framed under the proviso appended     F
to Article 309 of the Constitution oflndia. In that view of the matter exfacie
their appointments were illegal. We, however, must observe that we have not
been taken through the purport and import or the various provisions of the
PWD rules to which we have made reference heretobefore. But in any event,
the question of regularisation of the employees by reason of any policy          G
deci;;ion adopted by the State is impermissible in Jaw. The learned Division
Bench could have dismissed the special appeal filed by the appellant on the
ground of delay. It did not do so. It purported to uphold the order of the
learned Single Judge even on merits.

      In that view of the matter only we had to enter into the merits of the     H
    358                     SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A matter. The judgment of the High Court, for the reasons stated hereinbefore,
    suffer from a legal error. It is set aside accordingly. We are however of the
    opinion that the respondents should be compensated, as the appeal preferred
    by the State of Uttar Pradesh was barred by limitation. We quantify the same
    at Rs.10,000/- (Rupees ten thousands only). We, however, may observe that
    it would be open to the State to recover the said amount from the officers
B   who may be found responsible for causing the delay in preferring the appeal.

         With the aforementioned directions, the impugned orders are set aside.
    The appeal is allowed. No costs.

                                                              Appeal dismissed.
c. S.K.S.