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2006 (12) TMI 567

..... ra Shrivastava, Sr. Adv., C.G. Solshe, M. Mannan, V.C. Solshe, Kunal Verma and Rajul Shrivastava, Advs. JUDGMENT S.B. Sinha, 1. Leave granted. 2. Appellant is a Municipal Corporation constituted under the Madhya Pradesh Municipal Corporation Act, 1956 (for short, 'the Act'). Indisputably, the terms and conditions of service of its employees are governed by statutory rules. Yet again in terms of Section 58 of the Act, the State of Madhya Pradesh may issue directions, which the Corporation is obliged to follow. 3. A large number of employees were appointed by the Corporation on daily wages. The terms and conditions of their appointment are not known. It is, however, not disputed 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 regul .....

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..... and or issued regularisation orders which are contrary to the directions issued by this Court in Ramadhar case. All the concerned employees who are responsible for the aforesaid mischief deserve an appropriate action by the Commissioner, Municipal Corporation, in these circumstances, Commissioner, Municipal Corporation is directed to take departmental action against all the erring officers who have played mischief or played some malafide rate (sic) in issuing the order of regularisation which are contrary to the directions issued by this Court in Ramadhar Case or have manipulated the things for the purpose of issuing regularisation orders of the employees 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 .....

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..... Bench of this Court in Umadevi (supra), shall be applicable. 7. Appellant is a "State" within the meaning of Article 12 of the Constitution of India. It, being a statutory authority, in the matter of recruitment of employees is bound by the constitutional provisions contained in Articles 14 and 16 of the Constitution as also the rules and regulations framed by it. Indisputably, it did not have the last say as all appointments were subject to approval of the State of Madhya Pradesh, whose decision was to be final. Indisputably again, the concerned employees were recruited in terms of 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 .....

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..... is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down. 8. Referring to a large number of decisions which have been rendered by different Benches of this Court from time to time, the Constitution Bench categorically opined: While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length 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, i .....

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..... the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred 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 regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals 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 ther .....

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..... intment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. [Emphasis supplied] 11. Yet again, in B.N. Nagarajan and Ors. v. State of Karnataka and Ors. (1979)IILLJ209SC , this Court followed the said dicta stating: Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second 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 th .....

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..... nd Ors. (2006) 7 SCC 161, it was held: The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The Project undertaken by the Union of India although continued 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 .....

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..... arajan (supra) was rendered by a Three Judge Bench. Evidently, the attention of the Court had also not been drawn to the decision of this Court in National Fertilizers Ltd. (supra). There is another aspect of the matter which cannot be lost sight of. The Corporation may be bound by the decision of the High Court, but it was also bound by the direction of the State of 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 .....

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