TMI Blog2005 (12) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... comprehension as to how such illegality can be allowed to perpetrate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well- settled. Furthermore, no post was sanctioned. It is now well-settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill-up the same in terms of the existing rules. They, having regard to the provisions of the regulations, may not fill up all the posts. Conclusion - The upshot of our discussions is: (i) The Board and the Market Committees were bound by the Act, the Rules and Regulations framed thereunder in making appointments. Statutory provisions as also the constitutional requirements were required to be complied with. (ii) The Board had no jurisdiction to frame any scheme for regularization in the pith of the statutory regulations operating in the field. Any legislation involving appointment or laying down the conditions of service of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der does not lay down the law correctly and the judgment and order passed by a Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1093 (S/B) of 1999 lays down the law correctly. In the result, Civil Appeal is dismissed and other civil appeals filed by the Board and the State of Uttar Pradesh as also civil appeal filed by the Board are allowed. - HON'BLE S.B. SINHA AND P.P. NAOLEKAR, JJ. For the Appellant : M.L. Verma, Uday Umesh Lalit, G.L. Sanghi, Anoop George Chaudhari and Shobha Dixit, Sr. Advs., N.C. Mehrotra, Aarohi Bhalla, Satya Mitra, Sujata Kurdukar, S.A. Syed, M. Tayyab Khan, Firasat Ali Siddique, Shashindra Tripathi, M.P. Shorawala, M.C. Dhingra, Kumar Parimal, Aniruddha P. Mayee, Hema Sahu, C.L. Shau, Rachana Srivastava, Irshad Ahmad, D. Mahesh Babu, Raj Singh Rana and Shail Kumar Dwivedi, Adv For the Respondent : None JUDGMENT S.B. Sinha, J. 1. The jurisdiction of the High Court to issue a direction for framing a scheme for regularisation of the employees of the U.P. State Agricultural Produce Market Board (for short the Board ) is in question in this batch of appeals which arise out of judgments and orders passed by the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had been irregularly appointed during the period 1.4.1996 to 30.10.1997 be cancelled on last-come-first-go-basis stating: 1. The irregular appointment made in the Mandi Parishad and Mandi Samities during the period w.e.f. 1.4.96 to 30.10.97 should be cancelled immediately. The following course should be adopted to terminate such appointments: (a) There is no legal impediment in terminating the service of the employee concerned after cancelling the appointments which have been made without any created/ sanctioned post but the reason therefor shall have to be recorded in the order. (b) There is no legal impediment in terminating the service after cancelling the appointments of such persons as did not have educational qualifications prescribed for the post concerned but the reason therefor should be recorded in the order. (c) The termination of service of such persons, as have been appointed in relation to some post and also have educational qualification prescribed for that post, should be made in accordance with the procedure mentioned in their appointment order. In case, no procedure is mentioned in the appointments order, their service should be terminated after giving either no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before a Division Bench of the Allahabad High Court in April, 1999. By a judgment and order dated 11.8.2000, a learned Single Judge of the Allahabad High Court allowed the same holding that the orders of termination issued pursuant to the orders of the State Government dated 12.2.1992 were illegal. A Division Bench of the High Court, Lucknow Bench, put its seal of approval to the order of the learned Single Judge by a judgment and order dated 5.9.2000 in similar writ petitions filed by other dismissed employees. A writ petition filed by one Anshuman Misra, however, was dismissed by another Division Bench of the Allahabad High Court at Lucknow upholding the said order of the State Government. The parties are, thus, before us. SUBMISSIONS On behalf of the Board: 8. Submission of Mr. M. L. Verma, learned senior counsel appearing on behalf of the Board are: (i) In terms of the statutory mandate contained in Section 26-M of the Act, the Board was bound by the directions issued by the State. (ii) The appointments having been made in utter disregard of the mandatory provisions of the Services Regulations and the Establishment Regulations, the employees did not derive any legal right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported directions issued under Section 26-M, the rights and privileges granted to the employees under other statutes cannot be taken away. (v) In view of the decision of this Court in Rakesh Ranjan Verma and Others v. State of Bihar and Others [1992 Supp (2) SCC 343] and U.P. State Electricity Board v. Ram Autar and Another [(1996) 8 SCC 506], the statutory power of appointment being vested in the Board, the State could not interfere therewith. (vi) In any view of the matter, the purported policy decision adopted by the State must be held to be wholly illegal and without jurisdiction as prior thereto the requirements of each of the samities had not been taken into consideration. It was pointed out that even by 1998 full reports had not been submitted by the Board as regards the financial position of the Market Committees vis-a-vis the strength of the employees and, thus, the policy decision must be held to have been made without any application of mind. (vii) A policy decision of a State cannot be communicated by a demi-official letter without complying with the constitutional norms. (viii) One set of adhoc employees and/ or daily wagers should not be replaced by another set of adh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of regular employees and not adhoc employees or daily wagers. (iii) No principle has been laid down as to why adhoc employees engaged before 1.4.1996 and after 30.10.1997 should be retained in service and, thus, the action of the State was discriminatory in nature. (iv) The Government instead of formulating any policy resorted to an arbitrary method of issuing a 'Tugalaki' order in terminating the services of the employees recruited between 1.4.1996 and 30.10.1997 were also terminated. (v) Although such irregular appointments have been made by several directors but only those made by two of them, namely, Shri P.N. Misra and Dr. Raja Ram, having been picked up for being cancelled, the same being discriminatory and mala fide, the order impugned in the writ application were unsustainable. (vi) An employee should not be continued to be kept as adhoc employee for more than 240 days. (vii) The resolution of the Board to regularise services of such employees who have completed one thousand days of service was valid. As the writ petitioners have been working in various Committees for a long period ranging from six to nine years, termination of their services was arbitrary. (viii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be defrayed out of the said fund and the surplus, if any, shall be invested in such a manner as may be prescribed. Sub-section (3) of Section 19 inter alia illustrates as to how such funds are to be utilised including salaries, pensions and allowances, etc. and other expenses, as may be prescribed, as specified in clause (ii). The proviso appended thereto mandates that annual expenditure in respect of matters specified in clause (ii) shall not exceed 10% of the total annual receipts of the Committee excluding loans raised by it and advances or grants made to it except with the prior approval of the Board. 19. Section 23 of the Act occurring in Chapter IV provides for appointments of officers and servants of the Market Committee and their conditions of services. The appointments of such officers who may be appointed for carrying out the purpose of the Act must be done in terms of the bye-laws framed by it. Sub-section (2) of Section 23 envisages that every Committee shall have such number of Secretaries and such other officers as may be considered necessary by the Board for the effective discharge of the functions of the Committee, appointed by the Board on such terms and condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that the decision or order of the Committee should be modified, annulled or reversed. Section 33-B of the Act reads as under: Powers of the State Government.-(1) The State Government with a view to satisfying itself that the powers, functions and duties of the Board or a Committee by or under this Act are exercised or performed by it properly, may require the Commissioner or the Collector or any other person or persons to inspect or cause to be inspected any property, office, document or any work, of the Board or the Committee or to make inquiries into all or any of the activities of the Board or the Committee in such manner as may be prescribed and to report to it the result of such inquiry within such period as may be specified. (2) The Board or the Committee, as the case may be, shall give to the Commissioner or the Collector, or other person or persons, all facilities during inspection and for the proper conduct of the inquiry and shall produce any document or information in its possession, when so demanded for the purpose of such inspections or inquiry, as the case may be. 24. Section 39 of the Act provides for the bye-laws making power in the Market Committee. Proviso ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Committee for recruitment to Class C and D posts. Regulation 12 empowers the appointing authority to determine the number of vacancies in all the classes to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Schedules Castes and Scheduled Tribes and other categories under Regulation 8. The other sub-regulations contained in Regulation 12 provides for the mode and manner in which such vacancies shall be filled up. Chapter V lays down the conditions of service by way of appointment, probation, confirmation and seniority. Chapter VI provides for superannuation, pay, allowances and other service conditions. The Services Regulations contain similar provisions. Part III of the said Regulations deal with recruitment and procedure. Regulation 10 lays down that recruitment may be made either from the open market or from promotion. Regulation 11 provides for reservation. Constitution of Selection Committee is contained in Regulation 12. Regulation 14 provides for determination of vacancies whereas Regulation 16 provides for the procedure of selection by direct recruitment. Chapter V of the said Regulations lays down the mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration is as to whether any appointment can be made de'hors the provisions of the Act and the rules. Our attention has been drawn to the definition of 'employee' which does not include persons employed on daily wages, work charged and/ or part-time basis. If the expression employee does not bring within its fold any person employed on daily wages, work charged or on part- time basis, the same would mean that the persons so appointed would not be the employees within the meaning of the said regulation. It would, therefore, not be correct to contend that the Market Committee or the Board have the jurisdiction to appoint anybody on daily wages, work charged or on part-time basis de'hors the rules. The power to make appointments by the committee or the board whether contained in Section 23 or Section 26-F of the Act are statutory in nature. In absence of any provisions conferred upon them to appoint any employee de'hors the provisions of Sections 23 and 26-F and the regulations framed thereunder, indisputably would mean that such appointments are de'hors the Act and the rules. The Rules also provide that any appointment made by the Committee under Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfere in the day to day functionings of the Board. Such policy decision, however, must be in relation to the activities of the Board under the Act and not de'hors the same. [See Rakesh Ranjan Verma (supra), Ram Autar (supra) and Bangalore Development Authority Others v. R. Hanumaiah Others 2005 (8) SCALE 80] 36. Such a decision on the part of the State Government must be taken in terms of the constitutional scheme, i.e., upon compliance of the requirement of Article 162 read with Article 166 of the Constitution of India. In the instant case, the directions were purported to have been issued by an officer of the State. Such directions were not shown to have been issued pursuant to any decision taken by a competent authority in terms of the Rules of Executive Business of the State framed under Article 166 of the Constitution of India. 37. In Punit Rai v. Dinesh Chaudhary, [(2003) 8 SCC 204], this Court held: The said circular letter has not been issued by the State in exercise of its power under Article 162 of the Constitution of India. It is not stated therein that the decision has been taken by the Cabinet or any authority authorized in this behalf in terms of Article 166(3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules provide that before effecting any retrenchment in terms of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days wages for each completed year service by way of compensation. If such a retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principle of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. [See Dr. Suresh Chandra Verma and Others v. The Chancellor, Nagpur University and Others (1990) 4 SCC 55, para 16, Karnataka Public Service Commission and Others v. B.M. Vijaya Shankar and Others, (1992) 2 SCC 206, paras 4 and 5 and State of M.P. and Others v. Shyama Pardhi and Others (1996) 7 SCC 118, paras 4 and 5] 43. In Viveka Nand Sethi v. Chairman, J K Bank Ltd. and Others [(2005) 5 SCC 337], it was held: The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be effected. 48. An attempt to induct an employee without following the procedure would be a backdoor appointment. Such backdoor appointments have been deprecated by this Court times without number. [See for example Delhi Development Horticulture Employees' Union v. Delhi Admn. (1992) 4 SCC 99, para 23] 49. Even in State of Haryana v. Piara Singh [(1992) 4 SCC 118], whereupon the learned counsel for the parties relied upon, it is stated: Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instruct-ions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the rule of law and to see that the Executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation. (See State of U.P. v. Ajay Kumar and Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Bal Kishan Soni.) 55. In Manager, Reserve Bank of India, Bangalore v. S. Mani and Others [(2005) 5 SCC 100], Umarani (supra) was followed holding that in law 240 days of continuous service by itself give rise to permanence which reason has weight with the opinion of learned Single Judge of the High Court. 56. It is, therefore, not correct to contend that only because in the correspondences between the State and the Board the appointments of such persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been laid down. No decision other than Piara Singh (supra) has been referred to. Before this Court, a scheme was submitted in terms whereof the scheme had undertaken to regularize work- charged employees employed prior to 19.9.1985. This Court besides the proposals made therein issued certain other directions. 63. Strong reliance has been placed by Mr. Chaudhary on R.N. Nanjundappa v. T. Thimmiah Anr. [(1972) 2 SCR 799] for the proposition that irregular employees can be regularized. Therein it was held: The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondent with effect from February 15, 1958, notwithstanding any rules cannot be said to be in exercise of power under Article 162. First, Article 162 does not speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the State to make rules under Article 309 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atue and statutory rules and the constitutional mandate contained in Articles 14 and 16 of the Constitution of India had not been taken into consideration. 66. On the other hand, in a series of decisions, which we have noticed hereinbefore, this Court has now firmly laid down the law that regularization cannot be a mode of appointment. OTHER CONTENTIONS 67. Mr. Chaudhari has placed strong reliance upon the provisions of the U.P. Regularisation of Adhoc Appointments (on Posts Outside the Purview of the Public Service Commission) Rules, 1979 purported to have been framed by the State in pursuance of the provisions of Clause (3) of Article 348 of the Constitution of India. Rule 4 of the said Rules reads, thus: 4. Regularisation of ad hoc appointments: (1) Any person who (i) was directly appointed on ad hoc basis on or before June 30, 1998 and is continuing in service as such on the date of commencement of the Uttar Pradesh Regularisation of Ad hoc Appointments (On Posts Outside the Purview of the Public Service Commission) (Third Amendment) Rules, 2001. (ii) possessed requisite qualifications prescribed for regular appointment as the time of such ad hoc appointment; and (iii) has comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed to the services of the Board, furthermore, even according to the learned Counsel appearing on behalf of the Respondents, are those who are regular employees having been appointed in terms of the provisions of the Act and the Regulations framed thereunder. We have, therefore, no doubt in our mind that Regulation 29 of the Establishment Regulations which is in Chapter VII of the Act refers to only such regulations and orders which would be applicable to the regular employees. 71. The fact that all appointments have been made without following the procedure or services of some persons appointed have been regularised in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well- settled. [See State of A.P. v. S.B.P.V. Chalap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to ₹ 128.4 crores. It has also been suggested that in November, 2005, the income has increased in the year 2004-05 to ₹ 400 crores and the annual budget of the Market Committees which has been sanctioned is approximately ₹ 350 crores. The availability of funds is not and cannot be a valid ground to make the appointments of persons without proper sanction and creation of posts and cannot be taken to be an excuse to perpetuate illegalities. 74. A contention has been raised by Mrs. Dixit that there was no material before the Government for issuing the impugned instructions insofar as the financial position vis-`-vis the strength of the employees had been taken into consideration. It is not necessary for us to go into the aforementioned question inasmuch as we are herein concerned with the legality and/ or validity of the impugned orders of termination of services and the same having not been done, the appointment of the concerned employees were wholly illegal and without jurisdiction and, thus, void and of no effect. CONCLUSION 75. The upshot of our aforementioned discussions is: (i) The Board and the Market Committees were bound by the Act, the Rules and Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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