6 - 06 - 2002 Vs Midde Rathan Kishore and 2 Others On 1 January, 1800

6--06--2002 vs Midde Rathan Kishore And 2 Others on 1 January, 1800
THE HON'BLE SRI JUSTICE S.R. NAYAK WRIT PETITION Nos. 26659 of 1997, 26923 of 1995, 12871 of 1998, 13120 of 1999, 36845 of 1998, 2748 of 1999 and 7954 of 1999. 6--06--2002 Midde Rathan Kishore and 2 others The Registrar (Admn), High Court of A.P. Hyderabad and three others. Counsel for the petitioners : Mr. V.V.N. Narasimham Mr. P.Govinda Reddy Mr. K.Venkatesh Gupta Mr. S.Niranjan Reddy Mr. A.Chandraiah Naidu Mr. M.V.Durga Prasad Mr. K.Venkatesh Gupta Counsel for the respondents : Mr. C.V. Nagarjuna Reddy Standing Counsel for High Court. Smt. M.Bhaskara Lakshmi G.P. for Home. Mr. V.V. Prabhakar Rao Standing Counsel for APPSC. :JUDGMENT: (per S.R. Nayak, J): The main and substantive relief sought by the petitioners in all these writ petitions is the regularization of their services in the posts in which they have been working. Since the facts of the case and the questions of law that arise for decision are substantially similar, all these writ petitions were clubbed and heard together and they are being disposed of by this common judgment. All the petitioners are judicial employees. Writ Petition No.26659 of 1997 is filed by three employees working in the West Godavari District Unit Judiciary seeking a direction to the respondents to regularize their services in the post of Steno-typist from the year 1993. W.P.No.7954 of 1999 is filed by as many as forty one (41) employees working in Chittoor District Unit Judiciary in cadres of Junior Assistants, Typists, Steno-typists and these petitioners have also sought for a direction to the learned District Judge, Chittoor District to regularize their services in the respective cadres from the date of their recruitment to the concerned posts. W.P.No.26923 of 1995 is filed by the petitioners twelve (12) in all, working in the Visakhapatnam District Unit Judiciary seeking regularization of their services in the cadre of Steno-typists from the date of
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their initial appointment. In W.P.No.36485 of 1998 and W.P.No.2748 of 1999 filed by the employees working in the Mahabubnagar District Unit Judiciary, a direction is sought to the learned District and Sessions Judge to regularize their services in the cadre of Steno-typists with effect from the respective dates of their initial appointment. W.P.No.13120 of 1999 is filed by nine (9) employees of Nellore District Unit Judiciary praying for a direction to the learned District and Sessions Judge, Nellore, to regularize their services in the cadre of Steno-typists. W.P.No.12871 of 1998 is filed by the petitioner therein, who is presently working as Copyist in the Chittoor District Unit Judiciary questioning the validity of the Government Order G.O.Ms.No.298, Law (L.A.&J-Courts.D) Department, dated 11.12.1997 rejecting his request and the request of certain others to regularize their services and for a consequential direction to regularize his services as Copyist. In all these writ petitions, the petitioners claim that when they were appointed to the concerned posts on temporary basis, they had possessed all the prescribed qualifications for the concerned post in terms of Rule 23 of the Andhra Pradesh Judicial Ministerial Service Rules, 1964, for short `Ministerial Service Rules'. They also claim that since they had worked in the respective cadres for large number of years, they are entitled to be regularized in service in respective cadres with effect from the dates of their initial appointments and that the action of the respondents in continuing the services of the petitioner on temporary basis for number of years or to terminate the services of the petitioners in order to fill up those posts by candidates regularly selected by the Andhra Pradesh Public Service Commission (for short `APPSC') would violate the mandate of Article 14 and 16 of Constitution of India. So claiming the petitioners have filed these writ petitions praying for the reliefs already noticed above. The writ petitions are opposed by the respondents by filing counter affidavits. We have heard M/s.M.V.Durga Prasad, T.Niranjan Reddy, P.Govind Reddy, K.Venkatesh Gupta, learned counsel for the petitioners and Sri C.V.Nagarjuna Reddy and others, learned Standing Counsel for the respondents. The arguments of the learned counsel for the petitioners run as follows : Although the APPSC is the recruiting agency under the Ministerial Service Rules to make appointments to the posts of Junior Assistants, Typists and Steno-typists, and since it did not conduct proceedings to recruit the personnel to the posts of Junior Assistants, Typists and Steno-typists, regularly, that necessitated the District Unit Judiciary Heads to make temporary appointments as provided under Rule 16 of the Ministerial Service Rules to meet the need and exigencies of the service and all the petitioners when they were appointed to the concerned posts on temporary basis, did possess the qualifications prescribed under the Ministerial Service Rules and they were appointed in the then existing vacancies in the sanctioned posts. It is most unjust and irrational on the part of the respondents to refuse regularization of the services of the petitioners solely on the ground that they were appointed on temporary basis under Rule 16 of the Ministerial Service Rules and not by the APPSC. It is also unjust and irrational for the respondents not to consider the cases of the petitioners for promotion to the higher cadre solely on the ground that they are not the confirmed probationers in the feeder cadre. Even assuming that there is some irregularity or illegality in the appointments of the petitioners to the concerned posts, it is totally unjust, at this distance of time, not to regularize the services of the petitioners on the ground that their initial appointment was under Rule 16 of the Rules on temporary basis. The services of the petitioners could not be terminated and the posts held by them could not be filled up by persons selected by the APPSC on regular basis and such a course of action is impermissible in law particularly in the light of the judgments of the Supreme Court in H.C.Puttaswamy v. Hon'ble Chief Justice of Karnataka1, Lila Dhar v.State of Rajasthan2, A.V.S.H.B.Shankaran v. CIEFL, Hyderabad3, Vijay Goel v. Union of India4, State of Karnataka v. B.Suvarna Malini5, K.A.Abdul Majeed v. State of Kerala6 and the Judgment of this Court in Y.Rambabu v. University of Health Sciences, Vijayawada7. Sri C.V.Nagarjuna Reddy, learned Standing Counsel for the High Court, on the other hand, contended that admittedly the appointments of the petitioners were made on temporary basis by the District Unit Heads under Rule 16 of the Ministerial Service Rules and therefore they have no vested right to seek Mandamus to regularize their services in the posts in which they are working on temporary basis and that if the relief sought by the petitioner is granted, it would violate the prohibition contained in sub-rule (4) of Rule 16 of the Ministerial Service Rules which impliedly prohibits regularization of services of the employees appointed
under Rule 16 on temporary basis. The learned Standing Counsel contended that the mere fact that the petitioners had prescribed qualifications when they were appointed or that merely because they have worked for number of years on temporary basis, that factor itself could not be a valid ground or circumstance for the Court to order regularization of their services in breach of the mandatory provisions contained in Rules 10 and 13 of the Ministerial Service Rules. The learned Standing Counsel contended that in the light of the judgments of the Supreme Court in J&K Public Service Commission v. Dr.Narinder Mohan8, Dr.M.A.Haque v. Union of India9, State of H.P., through the Secretary (Rural Development) to the Government of H.P., Shimla v. Ashwani Kumar and others,10 Hindustan Shipyard Ltd v. Dr.P.Sambasiva Rao11 and Ashwani Kumar v. State of Bihar12, the petitioners are not entitled to seek regularization of their services. Before dealing with the contentions of the learned counsel for the parties, the relevant rules need to be noticed. Rule 10 of Ministerial Service Rules reads as follows: "Appointing Authorities : The appointing authorities for the divisions and the categories specified in column (1) of Annexure I to these rules shall he authorities specified in the corresponding entry in column (2) thereof. The appointing authorities shall exercise their power subject to the control of the High Court." Rule 13 of the Ministerial Service Rules reads as follows : "Rule 13. Manner of appointment by direct recruitment:- The manner of appoint by direct recruitment is prescribed in Annexure II to these rules. Clause (a) (i) and (ii) and Clause b (i) and (ii) of Annexure II prescribed under Rule 13 of the Ministerial Service Rules reads as follows: Manner of appointment by direct recruitment:(a)(i) Subject to the provisions of paragraph (g), lists of approved candidates for appointment to Category 7 of Division I (Junior Assistants, Typists and Steno Typists) by direct recruitment shall be prepared by the Commission from time to time for the City of Hyderabad as a whole separately for Clerks, Typists and Steno-typists and in accordance with the rule of reservation of appointments (Rule 12). The names of candidates in each of these lists shall be arranged in order of preference. Each such list shall be in force until the issue of a fresh list. (ii) The lists referred to in clause (i) shall be sent to the Registrar, High Court, Andhra Pradesh. When a candidate is required for appointment to the service in the said category the appointing authority shall apply to the Registrar stating the particulars with reference to Rule 12, and the Registrar shall then allot accordingly the senior candidate on the appropriate list in force who is qualified under these rules. (b) (i) Subject to the provisions of paragraph (g), lists of approved candidates for appointment to category 5 of Division IV (junior Assistants, Assistant Nazirs, Junior Superintendents of Copyists, Typists and Steno-Typists) by direct recruitment shall be prepared by the Commission from time to time for each district separately for Clerks, Typists and Steno-Typists and in accordance with the Rule 12 and for each of the languages specified in Annexure III to these rules. The names of candidates in each of these lists shall be arranged in order of preference. Each such list shall be in fore until the issue of a fresh list. (ii) These lists referred to in clause (i) relating to a particular district shall be sent to the District Judge or if in any district there is more than one District Judge, to the District Judge concerned. When a candidate is required for appointment to the service to any post in the said category the District shall allot the senior candidate on the appropriate list in force who is qualified under these rules." Rule 16 of the Ministerial Service Rules reads as follows : Rule 16. Temporary appointment:- (1)(a) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a
post borne on the cadre of the service, and there would be undue delay in making such appointment in accordance with these rules, the appointing authority may appoint a person, otherwise than in accordance with these rules, temporarily, until a person is appointed in accordance with the rules. (b) No appointment under clause (a) shall ordinarily be made of a person who does not possess the qualifications, if any, prescribed for the post. Every person who does not possess such qualification and who has been or is appointed under clause (a) shall be replaced as soon as possible by a person possessing such qualifications. (2) Where it is necessary to fill a short vacancy in a post borne on the cadre of the service, and the appointment of the person who is entitled for such appointment under these rules would involve expenditure on traveling allowance or exceptional administrative inconvenience, the appointing authority may appoint any other person who possesses the prescribed qualification, if any. (3) A person appointed under sub-rule (1) shall whether or not be possesses the qualifications prescribed for the post to which he is appointed be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under these rules. (4) A person appointed under sub-rule (1) or (2) to a post borne on the cadre of the service shall not be regarded as a probationer or be entitled by reason only of such appointment to any preferential claim to future appointment : Provided that where such person is subsequently appointed to the same post in accordance with these rules he shall commence his probation therein from the date of such subsequent appointment or from such earlier date as the appointing authority may determine. (5) The appointing authority shall have the right to terminate the service of any person in the post to which he is appointed under sub-rule (1) or sub-rule (2) at any time without assigning any reason and without notice. (This provision shall be deemed to have come into force on the 7th March, 1963). (6) A person appointed temporarily during the period commencing on the 1st November, 1956 and ending with the 6th March, 1962 shall count his temporary service for increments in the time scale of pay of the post concerned without entitling him to arrears of the period from 1st November, 1956 to 20ty April 1961. (both days inclusive if he has completed the required period of satisfactory service)." The provisions of Annexure II framed under Rule 13 of the Ministerial Service Rules makes it very clear that APPSC is the recruiting agency as regards Junior Assistants, Assistant Nazirs, Junior Superintendents of Copyists, Typists and Steno-typists and it has to select the candidates for the posts of Clerks, Typists and Steno-typists in accordance with Rule 12 and for each of the languages specified in Annexure III to the Ministerial Service Rules. In the instant case, admittedly the appointments of the petitioners were not made by the APPSC. The District Unit Heads are not the appointing authorities under Rule 10 of the Ministerial Service Rules as regards posts of Typists and Steno- typists on regular basis. The exclusive appointing authority is the APPSC. It is true that temporary appointments could be made by the District Unit Heads by virtue of Rule 16 and in fact, all the petitioners were appointed on temporary basis under Rule 16 only. Sub-rule (1) of Rule 16 permits temporary appointments to meet the public interest owing to an emergency. At the same time, sub-rule (3) of Rule 16 makes it very clear that such temporary appointees are liable to be replaced by regularly appointed members of the service. A careful reading of provisions of sub-rule (4) of Rule 16 makes it very clear that that sub-rule impliedly prohibits regularization of services of the temporary appointees appointed under Rule 16. In that view of the matter, simply because the petitioner had passed the test or examination specified in Rule 23 of the Ministerial Service Rules at the time of their appointment, it cannot be said that they are entitled to regularization of their services in the posts to which they were appointed on temporary basis. Similarly, it cannot be said that though the appointment of the petitioners are
temporary and they do not have any legal right to seek Mandamus to regularize their services in the posts to which they were temporarily appointed, nevertheless, their services are required to be regularized merely because they have been working in the posts for number of years. In B.Bavu v. Vice-Chancellor, A.P.Agricultural University13, this Court held that the question as to whether a person is entitled to be regularized or not depends upon his status. Mere continuation in service for a long period of time, will by itself not change the status in the absence of any statutory rule providing therefor. In this case, it is not disputed before us that the petitioners were appointed on temporary basis under Rule 16 of the Rules. At the time of their appointments, the Ministerial Service Rules framed in terms of the proviso to Article 309 of the Constitution of India were in vogue and they had not been followed. The State while granting appointment to a person is not only bound to follow the recruitment rules made in terms of the proviso appended to Article 309 of the Constitution of India, but is also bound to give effect to the provisions of Articles 14 and 16 of the Constitution of India. No right, far less any enforceable right flows from such illegal appointments. A person who is appointed to a public post in breach of statutory rules cannot claim permanence in that post merely because he had been working for considerable time. Authorities are not wanting. Reference in this regard may be made to the case of Dr.Arundhati Aji Pargaonkar v. State of Maharashtra14 and large number of other decisions of the Apex Court to follow the same. It is well established that only an irregular appointment can be regularized and not an illegal appointment. The appointments of the petitioners are undoubtedly illegal appointments inasmuch as they were not made by the competent authority specified under Rule 10 of the Ministerial Service Rules and also not in accordance with the procedure contemplated under Rule 13 of the Ministerial Service Rules read with Annexure II framed under Rule 13 of the Ministerial Service Rules. It is further well settled by the decisions of the Apex Court in R.N.Nanjundappa v. T.Thimmaiah15 and B.N.Nagarajan v. State of Karnataka16 that regularization is not a mode of recruitment. Similar view was also taken by a Division Bench of this Court in BHEL Higher Secondary School v. BHEL17. The view taken by the Apex Court in the above judgments were subsequently considered and reaffirmed by the Supreme Court in V.Sreenivasa Reddy v. Government of Andhra Pradesh18. Further, it is well settled in view of the recent judgment of the Supreme Court in State of M.P. v. Dharam Bir19 that the status of a person cannot be changed with the passage of time. In other words, a person who was appointed on temporary or adhoc basis cannot claim the status of a permanent employee merely because he had worked for some considerable time. The Supreme Court in Dr.Narinder Mohan's case ( 8 supra ) dealing with the question whether the State Government having framed the statutory recruitment rules, could fall back upon its general power under Article 162 to regularize the adhoc appointments, has held : " Existence of statutory rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but only supplement the law. The governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State government to make adhoc appointments. No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the adhoc appointments under the Rules. Rule 9(3 empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment. To tide over unforeseen exigencies, power to make adhoc appointments, may be visualised as envisaged by Explanation (b) to Rule 4 but it expressly states that by virtue of such appointment, the adhoc appointee does not become member of the service. The Rules prescribe direct recruitment/promotion by selection as the mode of recruitment which would be done only by PSC or promotion committee duly constituted and by no other body. Therefore, adhoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make adhoc appointment due to emergent exigencies, does not clothe the executive government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with rules. Back door adhoc appointments at the behest of power source or otherwise and recruitment
according to rules are mutually antagonistic and strange bed partners. They cannot co-exist in the same sheath. The former is in negation of fair play. The later are the product of order and regularity. Every eligible person need not necessarily be fit to be appointed to a post or office under the State, selection according to rules by a properly constituted commission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanation (b) to Rule 4. the adhoc appointments to any post in any of the three wings of the services under the Rules are therefore de hors the Rules. Appointments of Respondents 1 to 6 cannot be held to be in accordance with the Rules." The above opinion of the Apex Court is the binding authority to state that when recruitment to a post is governed by statutory rules, then, recruitment to that post should strictly be in conformity with those rules and the recruiting agency in exercise of its general executive power cannot meddle with the statutory rules and that in exercise of the executive power, the recruiting agency can issue administrative instructions as regards recruitment to that post only to supplement and not to supplant. In that case, the respondent No.1 to 6 therein were appointed as Lecturers during the years 1986 and 1987 on adhoc basis in different disciplines of medical education. The Government relaxed the rules of recruitment and appointed on regular basis the respondents 1 and 2 therein on 19th September, 1988 and 16th September, 1989 respectively. Their appointments and appointments of respondents 3 to 6 were challenged in writ petitions by the appellant therein. The respondents, on the other hand, filed Writ Petitions for directions to regularize their services. A learned single Judge of the High Court of Jammu & Kashmir by his judgment declared that the appointments of respondents should be in accordance with the Jammu and Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 and that the Government neither have power to relax the rules of recruitment nor have power to regularize the appointment of respondents 1 and 2 on regular basis. In that view of the matter, the learned single Judge quashed the appointments of respondents 1 and 2. However, he directed their continuance in the posts for a period of three months thereafter and the government was directed to fill up the posts of lecturers on permanent basis as per the Rules through the Public Service Commission within three months from the date. The respondents were permitted to apply for regular recruitment. The learned Judge further directed that in case anyone becomes overaged, the cases may be sympathetically considered by relaxing age qualification under Rule 9(3) and that the posts of lecturers in Medical Education shall be 'filled up as per the Rules' and if no regular appointments are made within three months, on its expiry, the appointments of the respondents shall stand lapsed. On appeal, the Division Bench held that as the Rules provide for appointment of adhoc lecturers; the appointments of the respondents 1 and 2 were according to Rules; the respondents are possessed of the requisite qualifications to hold the posts; the government have no power under Section 133 of the Jammu and Kashmir Constitution to relax the rules of recruitment; the respondents are not members of the service, since they were not recruited according to the Rules. So opining, the Division Bench directed the respondents-"We direct the respondents in terms of decision in A.K. Jain v. Union of India [(1987) Suppl. SCC 497], to regularise the services of all the appellants in consultation with the public service commission on evaluation of their work and conduct based on the confidential reports within three months. Such evaluation shall be done by the public service commission. The doctors so regularised shall be appointed as Lecturers with effect from the date from which they had been continuously working as Lecturers. The respondents shall be at liberty to terminate the services of those appellants who are not so regularised." Calling in question these directions, the Public Service Commission filed the appeals before the Supreme Court. Dr Vinay Rampal who claimed for his appointment but was not granted relief, also filed a separate appeal. The State came in appeal against the finding that government have no power to relax the Rules and jurisdiction to make appointment of the respondents in disregard of the Rules. In that case, Rule 3 of the Rules empowers the State Government to constitute Jammu and Kashmir Medical Education (Gazetted) Service comprising of (i) teaching (ii) administrative and (iii) general. According to the Rules, the service shall consist of such posts and classes and categories and such number of them to be determined by the government from time to time. At the commencement of the Rules on 19.09.1979, the
existing posts, classes and categories were specified in Schedule-I. Rule 4 provides membership of the service. The members of the service shall be such persons "as are appointed to the service under the Rules". The proviso says that the members continuing immediately before the Rules under Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1974 shall be deemed to have been appointed to the corresponding posts in the service specified in Schedule-II. Clause (b) of the Explanation to Rule 4 provides that for the purpose of this Rule "any persons appointed to any post in service only by virtue of such deputation, contract, or adhoc appointment, shall not be members of the Service". In the context of Rules 3 and 4, in that case, the Apex Court held that unless a member either appointed under 1974 Rules and continuing as such or appointed to the service in accordance with the Rules, he could not become a member of the service. In so opining, the Apex Court took note of the Explanation (b). It is trite that Rules 3 and 4 of the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1974 are similar to the provisions contained in Rule 16 of Ministerial Service Rules. Since when the petitioners were appointed on temporary basis, the statutory rules were holding the field, the services of the petitioners could be regularized only if the Ministerial Service Rules permit such regularization. As noticed above, in fact, sub-rule (4) of Rule 16 impliedly prohibits regularization of services of persons appointed under Rule 16 on temporary basis. Therefore, the claims of the petitioners have no statutory basis and on the other hand, statute itself denies the right to the petitioners to seek regularization. In Dr.M.A.Haque's case (supra 9), the Supreme Court held : "....however, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-passing of the public service commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the public service commission. It appears that since this court has in some cases permitted regularisation of the irregularly recruited employees, some governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the public service commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course." The Supreme Court in State of H.P. v. Ashwani Kumar20 held that no vested right is created in temporary employment and therefore the High Court was not justified in issuing direction to regularize the services of the temporary employees. In Hindustan Shipyard Ltd.'s case (supra 11), it was held that regularization of an adhoc appointee can be effected only in accordance with the rules for direct appointment. In that case, since the rules of the Hindustan Shipyard Limited provided for regular appointment of medical officer only after being found suitable by duly constituted Selection Committee, the direction issued by the High Court for regularization of Medical Officer appointed on adhoc basis was held impermissible by the Apex Court. In that case, it was also held that the mere fact that the regular appointments had not been made after appointment of some medical officers due to which they had no opportunity for being considered for regular selection, could not entitle them to regularization. In B.Satyanarayana v. TTD21, this Court held that no Mandamus would lie to the employer to regularize the services of an employee unless he satisfies that he was appointed against the existing vacancy and that the selection procedure laid down by the relevant recruitment rules was followed in appointing him. Clause (1) of Article 16 of the Constitution of India mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and Clause (2) of that Article further mandates that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or any other employment, under the State. Article 16 is only an instance of the application of the general rule of equality laid down in Article 14 and it should be construed as such. What Article 16(1) guarantees is an equal opportunity to all citizens to apply for employment under the State. The right guaranteed by Article 16(1) includes the right to make an application for any post under the Government as held by the Supreme Court in Krishna Chander v. Central Tractor Organisation22; and a right
to be considered on the merits for the post for which an application has been made as held by the Supreme Court in Rama Rao v. State of Andhra Pradesh23; and High Court, Calcutta v. Amal Kumar24. The guarantee in clause (1) of Article 16 is to each individual and with reference to each occasion of recruitment as held by the Supreme Court in Devadasan v. Union of India.25 What Article 16(1) guarantees is an equality of opportunity and not any right to be appointed to the post to which he applies or any other post under the State. Added to this general guarantee under Article 16 of the Constitution, right to apply and right to be considered for public employment for appointment is also guaranteed in favour of the citizens belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes under the protective discrimination schemes evolved by the State. In recent times, there are several pronouncements of the Apex Court dealing with regularization or confirmation of the services of adhoc/temporary employees. The Supreme Court in Union of India v. Bishamber Dutt26 held that appointment on regular basis after selection according to recruitment rules is a condition precedent for granting regularization. A three-Judge Bench of the Supreme Court in the case Ashwani Kumar and other v. State of Bihar and others27 held : "So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility. It would amount to decorating a still born baby". In the case of P.Ravindran v. Union Territory of Pondicherry28, the Apex Court held that the regularization of the services of the adhoc persons who had come to the service through back-door entry cannot be ordered. In E.Ramakrishnan v. State of Kerala29, the refusal of the High Court of Kerala to grant the relief of regularization to the petitioners appointed de hors the recruitment rule although officiating for a long time of 14 years is upheld by the Supreme Court. The plea of the petitioners therein to direct the employer to relax age limit was also turned down by the Supreme Court on the ground that it is not for the Court to relax age limit but for the employer. This Court speaking through one of us (S.R.NAYAK,J) in G.Sudhakar v. LIC of India30 on consideration of the binding authorities of the Apex Court on the point held : "What could be gathered from the above decisions of the Supreme Court is that in order to grant relief of regularization, two conditions, called conditions-precedent should co-exist. The first condition is that the entry of the applicant for the writ on temporary or adhoc basis should be against an existing vacancy. The second condition is that his appointment was made after going through the selection procedure laid down by the relevant recruitment rules." In the present case, the appointments of the petitioners to the posts of typists, steno-typists etc., were not by the competent authority i.e., APPSC nor they were in conformity with the provisions of Rules 10, 12 and 13 of the Ministerial Service Rules. In that view of the matter, the petitioners are not entitled to the reliefs sought by them in these writ petitions. However, learned counsel for the petitioners placing reliance on the Judgments of the Supreme Court in H.C.Puttaswamy's case ( 1 supra), Lila Dhar's case (2 supra), A.V.S.H.B.Shankaran's case (3 supra), Vijay Goel's case (4 supra), B.Suvarna Malini's case (5 supra), K.A.Abdul Majeed's case (6 supra) and the Judgment of this Court in Y.Rambabu's case (7 supra) appealed to the Court to grant regularization of services to the petitioners on grounds of humane considerations and compassion and appreciating the hardship that may be caused to the petitioners in the event of the Court declining the reliefs. When a similar appeal was made to this Court, in G.Sudhakar's case (30 supra), this Court speaking through one of us (S.R. Nayak, J) observed :
".... Sympathy of a man, therefore of a Judge, in the very nature of things is subjective, and I am afraid, that would be a basis for the decision of the Judge, though it is widely believed that a Judge cannot escape the current of the underlying philosophy of his life any more than other mortals, and that his decision may reflect philosophy of his life. But, appeal to the Court's sympathy and compassion should not create a shadow or act as a obscurant in seeing legal justification to grant a relief to a litigant. The relief that a Judge grants should be grounded on legal justification and not on the benevolence of the Judge. Alternatively, it may be stated that if the Court has to decide on the grievance with a touch of sympathy and compassion such sympathy or compassion should lean towards the deprived and wronged persons and not towards the wrong-doers or the beneficiaries of the breach of public law. Admittedly, the petitioners made back-door entry into the service of the Corporation de hors the recruitment procedure thereby violating the Fundamental Rights guaranteed to the others similarly circumstanced under Articles 14 and 16 of the Constitution to apply and to be considered for appointment in the Corporation. Life Insurance Corporation of India is considered to be one of the few premier institutions in the country where "living wage" is paid to the employees, and other terms and conditions of service are also said to be quite attractive. Vacancies in the Corporation should be thrown open to all the eligible unemployed youth in the employment market to respect the mandate of Articles 14 and 16, and the Corporation should be prohibited from offering employment only to those who have nexus with or access to the top brass in the administration of the Corporation." If the Court were to direct regularization of the services of the petitioners as requested by the learned counsel for the petitioners on the ground of humane consideration and compassion, it would tantamount to directing the respondents to do something in breach of the mandatory provisions of Ministerial Service Rules. Such a course is not open to this Court under Article 226 of the Constitution. It is well settled by the judgments of the Supreme Court in State of Bihar v. Rama Deo Yadav31 and Dr.Narinder Mohan's case (8 supra) that the High Court cannot issue Mandamus to disobey the law. Further, it needs to be emphasized that if in law a relief cannot be given to a party, the consequences of not granting the relief should not be the concern of the Court. The judgments of the Apex Court in H.C.Puttaswamy's case (1 supra), Lila Dhar's case (2 supra), A.V.S.H.B.Shankaran's case (3 supra), Vijay Goel's case (4 supra), B.Suvarna Malini's case (5 supra), K.A.Abdul Majeed's case (6 supra) and the Judgment of this Court in Y.Rambabu's case (7 supra) on which the learned counsel for the petitioners placed reliance to contend that though the initial appointment of the petitioners were not by the competent authority and not in accordance with the procedure prescribed under Rule 10 and 13 of the Ministerial Service Rules, they are entitled to be regularized in services having regard to the fact that they had been working in the posts for number of years, in order to do justice to the petitioners, are of no help to the petitioners. This Court under Article 226 cannot arrogate to itself the plenary power to do complete justice conferred upon the Apex Court under Article 142. The power of the Supreme Court under Article 142 is meant to supplement the existing legal framework to do complete justice between the parties. This extra-ordinary power is conceived and conferred on the Apex Court being the Court of last resort in the domain of legal remedies to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law, as opined by the Apex Court itself in Delhi Development Authority v. Skipper Construction Co. (P) Limited32. Article 142 provides that the Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any `cause' or `matter', which would include any proceeding pending in that Court and would cover almost every kind of proceeding in that Court. This extra-ordinary/plenary constitutional power vested in the Apex Court cannot be restricted or curtailed by any statutory provisions. In the first instance, such a plenary power is not available to this Court under Article 226. In Sanchalakshri v. Vijayakumar Raghuvirprasad Mehta33 and C.M.Singh v. H.P.Krishi Vishva Vidyalaya34, the Apex Court held that in the absence of the provisions analogous to the provisions of Article 142, the High Court/Tribunals do not have similar power conferred upon the Apex Court to do complete justice. In the result and for the foregoing reasons, we do not find any merit in these writ petitions and they are accordingly dismissed with no order as to costs.
?1 AIR 1991 SC 295 2 AIR 1981 SC 1777 : (1982) 1 SCR 320 3 1996(3) SLR 762 (AP) 4 1997(5) SLR 803 (SC) 5 2001(1) Supreme 17 6 (2001) 6 SCC 292 7 1997(1) SLR 503 (AP) 8 (1994) 2 SCC 630 9 (1993) 2 SCC 213 10 (1996) 1 SCC 773 11 (1996) 7 SCC 499 12 AIR 1997 SC 1628 13 2001(3) ALT 554 (DB) 14 AIR 1995 SC 962 15 1972(2) SCR 799 16 1979(3) SCR 937 17 2001(4) ALT 333 (DB) 18 AIR 1995 SC 586 19 (1998) 6 SCC 165 20 (1996) 1 SCC 773 21 1999(1) ALT 383 22 AIR 1962 SC 602 23 AIR 1961 SC 564 24 AIR 1962 SC 1704 25 (1964) 4 SCR 680 26 (1996) 11 SCC 341
27 (1997) 2 SCC 1 : AIR 1997 SC 1628 28 (1997)1 SCC 350 29 (1996) 10 SCC 565 30 1998(6) ALT 147 31 (1996)3 SCC 493 32 (1996) 4 SCC 622 : AIR 1996 SC 2005 33 (1998) 8 SCC 245 34 (1999) 9 SCC 40
Indian Kanoon - http://indiankanoon.org/doc/1310150/
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6 - 06 - 2002 Vs Midde Rathan Kishore and 2 Others On 1 January, 1800

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6 - 06 - 2002 Vs Midde Rathan Kishore and 2 Others On 1 January, 1800

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6--06--2002 vs Midde Rathan Kishore And 2 Others on 1 January, 1800