The High Court
Case Details
THE HIGH COURT OF MEGHALAYA W.P.(C)No.(SH)113 OF 2011 1. 2. 3. 4. 5. 6. 7. 8. 9. Shri.Tanbor Langbnang, S/o (L) Nesland Kharbuki, R/o Shipara Cottage, Lumdemthring, Shillong, District: East Khasi Hills, Meghalaya Smti.Jenita Shallam @ Challan, D/o (L) K. Marphet, R/o Mawtawar Umjarain, Shillong, District: East Khasi Hills, Meghalaya. Smti.Janailyn Nongkynrih D/o (L) E.D. Lyndoh, R/o Qualapaty, Shillong, District:East Khasi Hills, Meghalaya. Smti.Rupa Gurung, D/o P.B. Gurung, R/o Laiumkhrah, New Colony, Shillong, District:East Khasi Hills, Meghalaya. Shri.Langstar Jarain, S/o (L) Konsing Lyndoh, R/o Lumbalang Compound, Malki, Shillong, District: East Khasi Hills, Meghalaya. Shri.Niatlien Syiem S/o Worsin Kharbani, R/o Lapalang Pdengshnong, Shillong, District: East Khasi Hills, Meghalaya. Shri.Webstar Jyrwa, S/o (L) Y.R. Jana, R/o Mawlai Mawdatbaki, Nongpathaw, Shillong, District: East Khasi Hills, Meghalaya. Shri.Jesterwell Khongstit, S/o Kondri Kharsohnoh, R/o Nongumlong, Upper Shillong, District: East Khasi Hills, Meghalaya. Shri.George Charles Basiawmoit, S/o (L) T. Basaiawmoit, R/o Mawryngkneng, Shillong, District: East Khasi Hills, Meghalaya. 10. Smti.Banri Kharumnuid, S/o P Kshair, R/o Mawkynroh, Umshing, W.P.(C)No.(SH)113 OF 2011 Page 1 of 29 Mawlai, Shillong, District: East Khasi Hills, Meghalaya. 11. Shri. K Mawiong, S/o D. Lyndoh, R/o Nongkrem Village, Shillong, District: East Khasi Hills, Meghalaya. 12. Shri.Aldrin Nongdhar, S/o (L) P. Nongbri, R/o Mawlai Mawtawar, Shillong, District: East Khasi Hills, Meghalaya. 13. Shri.Anthony Lyndoh, S/o Christopher C. Nongrum, R/o Nongumlong, Upper Shillong, District: East Khasi Hills, Meghalaya. 14. Shri. Polin Thabah, S/o (L) Meklien Lyngdoh Nonglait, R/o Mawlai Mawtawar, Shillong, District: East Khasi Hills, Meghalaya. 15. Shri.Martin M.Umlong, S/o (L) T Sunn, R/o Nongkseh, Upper Shillong, District: East Khasi Hills, Meghalaya. 16. Shri.Arbanson Thawmuit, S/o (L) W Sohtun, R/o Mawlai Nonkwar, Shillong, District: East Khasi Hills, Meghalaya. 17. Shri.Daniel Passi, S/o D.K. Barua, R/o Kyntonmassar, Mawlai, Shillong, District: East Khasi Hills, Meghalaya. 18. Shri.Grassing Marbaniang, S/o (L) F. Buhsan, R/o Jaiaw Langsning, Shillong, District: East Khasi Hills, Meghalaya. 19. Shri.Malcome Nongkynrh, S/o S. Blah, R/o Lumkshaid, Mawprem, Shillong, District: East Khasi Hills, Meghalaya. 20. Shri. Kalbestar Pathaw, S/o Thomin Massar, R/o Mawlai Datbaki Nongpathaw, Shillong, District: East Khasi Hills, Meghalaya. 21. Shri. Welson Khongwir, S/o A. Kharsati, R/o Mawlai, Mandatbaki, Shillong, District: East Khasi Hills, Meghalaya. W.P.(C)No.(SH)113 OF 2011 Page 2 of 29 22. Shri.Dining Star Dkhar, S/o (L) P Kharmujai, R/o Mawlai, Kynonmassar, Shillong, District: East Khasi Hills, Meghalaya. 23. Shri.Sittal Singh, S/o Sulkhan Singh, R/o Bara Bazar, Punjab Line, Shillong, District: East Khasi Hills, Meghalaya. 24. Shri. Kamal Manih, S/o (L) U.B. Bailung, R/o Mawlai Nongkwar, Shillong, District: East Khasi Hills, Meghalaya. 25. Shri.Winchestar Marboh, S/o W Mawrie, R/o Rngi Jynriew Neng Lawjynriew, Nongthymmai, Shillong, District: East Khasi Hills, Meghalaya.
Legal Reasoning
26. Shri. Bning Star Less Lyndoh, S/o Dwess Mawlieh, R/o Mawkynroh, Mawlai, Shillong, District: East Khasi Hills, Meghalaya. 27. Shri. Sharless Lyndoh, S/o Dwesland Mawlieh, R/o Mawblei, Madanriting, Shillong, District: East Khasi Hills, Meghalaya. 28. Shri. Swaren Singh Nongbri, S/o D Nongdhar, R/o Upper Shillong, Mawklot, Shillong, District: East Khasi Hills, Meghalaya. 29. Shri. March Ryntathiang, S/o (L) K Nongsiey, R/o Mawlai Nongkwar, Shillong, District: East Khasi Hills, Meghalaya. 30. Shri. Barristar Well Surong, S/o W Mukhim, R/o Nongmynsong, Umkdait, Shillong, District: East Khasi Hills, Meghalaya. 31. Shri. Bernard Kharnaior, S/o (L) A Lyngkhoj, R/o Mawlai Nongpdeng Block-B, Shillong, District: East Khasi Hills, Meghalaya. 32. Shri. Prester Kharumnuid, S/o (L) P Kharkamni, R/o Mawlai Mawkynroh Block-I, Shillong, District: East Khasi Hills, Meghalaya. 33. Shri.Shanbor Mawbliew, W.P.(C)No.(SH)113 OF 2011 Page 3 of 29 S/o Spinglon Kharhujon, R/o Mawkynroh, Mawlai, Shillong, District: East Khasi Hills, Meghalaya. 34. Shri. Tonic Thawmuit, S/o (L) W Sohtun, R/o Mawlai Mawiong, Umjapung, Shillong, District: East Khasi Hills, Meghalaya. (All the petitioners having common Cause of action). :::: Petitioners 1 2. 3. 4. - Vrs - North Eastern Hill University, Represented by its Registrar at Permanent University Campus at Shillong, District: East Khasi Hills, Meghalaya. Vice Chancellor At Permanent University Campus at Shillong, District: East Khasi Hills, Meghalaya. Assistant Registrar (Administration), At Permanent University Campus at Shillong, District: East Khasi Hills, Meghalaya. Union of India, Represented by the Secretary to the Human Resource Development, New Delhi. :::: Respondent BEFORE THE HON’BLE MR. JUSTICE T NANDAKUMAR SINGH For the petitioners For the respondent Date of hearing Date of Judgment : : : : Mr. SS Dey, Mr.M Nath, Miss.SG Momin, Advs. Mr. S Sen, SC NEHU 16.04.2013 03.05.2013 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:5)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:5)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:5)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:5)(cid:12)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:5)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:5)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:5)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:5)(cid:12) (cid:9)(cid:9)(cid:9)(cid:9) learned counsel appearing Heard Mr. SS Dey, for the (cid:9)(cid:9)(cid:9)(cid:9) (cid:9)(cid:9)(cid:9)(cid:9) petitioners and Mr. S Sen, learned standing counsel for NEHU. 2. In this writ petition, writ petitioners 34 in numbers are praying for a direction to the respondents to grant the status of regular employees to W.P.(C)No.(SH)113 OF 2011 Page 4 of 29 the petitioners along with other consequential benefits by framing a time bound scheme. For deciding the matter in issue in the present writ petition, it is not required to mention the facts in details relating with the filing of the present writ petition, it would suffice to note only the facts admitted by the parties. 3. Factual backgrounds:- The writ petitioners were engaged/appointed as casual labourers/Peon/Gatekeeper on daily wage/fixed salary basis by the respondent No.3 i.e. Assistant Registrar(Administration), North Easter Hill University (for short ‘NEHU’) and the date of their appointments/engagements are given below:- Qualification Date of Appointment/ Engagement 8.12.1988 Initial Appointment/Engagement period of Upto 31.12.1988 Petitioner No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Class-VI passed Class-VIII passed Class-IX passed Class-IX passed Pre- University passed HSLC passed HSLC passed Class-VIII passed Class-VIII passed HSLC passed HSLC passed Class-IX passed Class-IX passed Class-IX passed HSLC passed Class-IX passed Class-VIII passed Designation/ Post Casual Labourer Cleaner Cleaner Cleaner Gate- Keeper 19.10.1989 3 months 12.1.1990 22.10.1990 5.01.1990 w.e.f 22.01.1990 until orders 1.7.90 to 31.12.90 to further 02.12.1991 Upto 14.12.1991 19.1.1993 1.1.1993 to 31.1.1993 Chowkidar 13.1.1993 1.1.1993 to 31.3.1993 13.1.1993 1.1.1993 to 31.3.1993 13.1.1993 1.1.1993 to 31.3.1993 27.4.1993 18.3.1993 to 31.7.1993 27.4.1993 22.3.1993 to 31.7.1993 18.5.1993 30.3.1993 to 13.4.1993 Casual Labourer Casual Labourer Casual Labourer Casual Labourer Casual Labourer Chowkidar 7.9.1993 2.8.1993 to 30.9.1993 Chowkidar 27.10.1993 4.10.1993 to 31.12.1993 Chowkidar 12.11.1993 14.10.1993 to 31.12.1993 Chowkidar 24.2.2994 1.1.1994 to 28.2.1994 Chowkidar 24.2.1994 17.2.1994 to 30.6.1994 Chowkidar W.P.(C)No.(SH)113 OF 2011 Page 5 of 29 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 21.3.1994 Class-VII passed Class-VII passed B.A. passed 16.4.1994 1.4.1994 16.5.1994 28.6.1994 Class-IX passed Class-VIII passed Class-VIII passed HSLC passed B.A. passed 19.11.1994 19.9.1994 1.9.1994 3 months w.e.f.7.3.1994 Peon 1.4.1994 to 31.5.1994 until 1.4.1994 orders 25.4.1994 to 30.6.1994 further Casual Labourer Chowkidar Chowkidar 28.4.1994 orders until further Peon Till 11.12.1994 10.10.1994 to 9.11.1994 Safaiwala Laboratory Attendant Library Attendant Chowkidar Class-VIII passed Class-VIII passed HSLC passed Class-IX passed Class-VIII passed HSLC passed Class-IX passed Class-VIII passed Class-X 13.12.1994 1.12.1994 to 31.12.1994 1/3/1995 1.1.1995 to 31.3.1995 Chowkidar 16.2.1995 3.1.1995 to 15.2.1995 Chowkidar 7.3.1995 27.1.1995 to 26.4.1995 Safaiwala 7.3.1995 27.1.1995 to 26.4.1995 Safaiwala 10.5.1995 7.4.1995 to 30.6.1995 Chowkidar 10.5.1995 10.4.1995 to 30.6.1995 Chowkidar 10.5.1995 11.4.1995 to 30.6.1995 Chowkidar 31.10.1997 17.12.1996 to 10.12.1997 Chowkidar The terms of engagement/appointment of the petitioners have been extended on various occasions. The last extensions were granted to the petitioners by the respondent authorities by issuing various orders dated 17.09.2010, 22.09.2010, 08.10.2010, 15.10.2010, 10.11.2010, 16.11.2010, 11.10.2010, 26.10.2010, 09.12.2010, 05.01.2011 and 27.01.2011. The nature of engagement of the petitioners as casual labourers on daily wage basis under the orders of the Assistant Registrar (Administration), NEHU are similar and for ready reference, three of the engagement orders are quoted below:- “North Eastern Hills University NEHU Campus Shillong – 793022 (Meghalaya) W.P.(C)No.(SH)113 OF 2011 Page 6 of 29 No. F.13-6/Estt.1/Apptt/90(Vol.XI)/254, Dated 26-10-2010
Decision
O R D E R Approval of the Registrar, NEHU, Shillong is hereby conveyed to the term of engagement of Shri. W. Myrboh as Casual labourer attached to the Department of Environment Studies on Daily Wage basis for 8(eight) hours duty a day @ 1/30th of the minimum pay of IS Pay band of Rs. 4440-7440/- with grade pay of Rs. 1300/- plus DA on pro-rata basis for a period of 3(three) months i.e. with effect from 22.10.2010 to 21.01.2011 or until further orders whichever is earlier. The above arrangement is purely on casual basis which shall stand terminated on the expiry of the term and will not bestow on him a claim for regular appointment. The expenditure is debitable to the Head “Part 1(NP), A. Estt. Charges.1.Salaries (A) Non-Teaching. Registrar’s Office.” Sd/- Section Officer Estt.1(Apptt) North Eastern Hills University NEHU Campus Shillong – 793022 (Meghalaya) No. F.13-6/Estt.1/Apptt/90-94(Vol.III)/233, Dated 08-10-2010 O R D E R to labourer attached Approval of the Registrar, NEHU, Shillong is hereby conveyed to the term of engagement of Shri. M. Ryntathiang as Casual the Department of Environment Studies on Daily Wage basis for 8(eight) hours duty a day @ 1/30th of the minimum pay of IS Pay band of Rs. 4440-7440/- with grade pay of Rs. 1300/- plus DA on pro-rata basis for a period of 3(three) months i.e. with effect from 28.12.2010 to 27.03.2011 or until further orders whichever is earlier. The above arrangement is purely on casual basis which shall stand terminated on the expiry of the term for regular and will not bestow on him a claim appointment. The expenditure is debitable to the Head “Part 1(NP), A. Estt. Charges.1.Salaries (A) Non-Teaching. Registrar’s Office. Sd/- Section Officer Estt.1(Apptt) North Eastern Hills University NEHU Campus Shillong – 793022 (Meghalaya) No. F.13-6/Estt.1/Apptt/90(Vol.XI)/235, Dated 11-10-2010 O R D E R W.P.(C)No.(SH)113 OF 2011 Page 7 of 29 Approval of the Registrar, NEHU, Shillong is hereby conveyed to the term of engagement of Shri. B. Surong as Casual labourer attached to the Department of Environment Studies on Daily Wage basis for 8(eight) hours duty a day @ 1/30th of the minimum pay of IS Pay band of Rs. 4440-7440/- with grade pay of Rs. 1300/- plus DA on pro-rata basis for a period of 3(three) months i.e. with effect from 26.10.2010 to 25.01.2011 or until further orders whichever is earlier. The above arrangement is purely on casual basis which shall stand terminated on the expiry of the term and will not bestow on him a claim for regular appointment. The expenditure is debitable to the Head “Part 1(NP), A. Estt. Charges.1.Salaries (A) Non-Teaching. Registrar’s Office.” Sd/- Section Officer Estt.1(Apptt)” It is the practice of the respondents that on various occasions, the terms of appointment/engagement of the petitioners are extended by issuing fresh orders covering the past period. Till now, the services of the petitioners are being extracted by the respondent authorities with assurance that respective fresh appointment/engagement/extension order would be issued for the petitioners. The petitioners being assured by the respondent authorities that their terms of engagement would be extended, they have been performing their assigned duties with utmost honesty, sincerity and without any complaint from any quarters. The petitioners and others approached this Court by filing a joint writ petition being WP(C)No.69(SH)1999 praying for granting of temporary status to the petitioners and also for setting aside the impugned restriction imposed by the authorities from granting temporary status to the petitioners who were engaged after 10.09.1993 by sub-paragraph (2) of para-1 of letter No.F-6- 2/97(CU) dated 22.04.1998. This Court vide judgment and order dated 24.05.2002, allowed the writ petition by setting aside the said impugned restriction with a further direction to the respondents to grant temporary status to the writ petitioners from 01.09.1993 or on completion of one year according to the respective dates of their engagement/appointment. The W.P.(C)No.(SH)113 OF 2011 Page 8 of 29 Division Bench of this Court in W.A. No.24(SH)2002 filed by the respondents against the said judgment and order of the learned Single Judge dated 24.05.2002 had set aside the judgment and order of the learned Single Judge vide judgment and order dated 07.06.2005 passed in WA No.24(SH)2002. It is the further case of the petitioners that as they had rendered more than 20 years in service as Casual employees, their case are covered by Para-53 of the (SCC) of the judgment and order of the Apex Court (Constitution Bench) in Secretary, State of Karnataka vs. Umadevi (3) reported in 2006 4 SCC 1. Para-53 of the SCC in Uma Devi’s case (Supra) reads as follows:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128: AIR 1967 SC 1071, R.N. Nanjundappa (1972) 1 SCC 409: (1972) 2 SCR 799 and B.N. Nagarajan (1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937 and referred to in paragraph 15 above, 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 courts or of tribunals. The question of regularization 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 regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” In compliance with the Para-53 in Umadevi’s case (Supra), the respondents should have taken steps to regularize the casual employment of the writ petitioners as a one-time measure. It is the further case of the W.P.(C)No.(SH)113 OF 2011 Page 9 of 29 petitioners that in AIR 2010 SC 2587 in State of Karnataka vs. M.L. Kesari & Ors, the Apex Court had made an observation that:- “8…………………………. The true effect of the direction is that all persons who have worked for more than ten years as on 10.04.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possession the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure ………………..” 4. The respondents filed their joint affidavit-in-opposition, wherein it is stated categorically that the petitioners had been appointed as Casual workers depending on the availability of works and not against any sanctioned posts or vacancies. Further, while appointing the petitioners even on casual basis, the procedure prescribed under the Constitutional Scheme of public appointment were not followed. The petitioners have not been serving continuously as there were some breaks in their services. 5. From the pleaded case of the petitioners in the writ petition, nature of their engagements and the affidavit-in-opposition filed by the respondents, it is clear that the petitioners have been engaged as casual employees or daily wage basis for a certain period without following the procedure prescribed under the Constitutional Scheme of public appointment. Over and above, the petitioners were not appointed/engaged in a sanctioned post but they were engaged in daily wage basis without following the required procedure for public employment as their services were needed to meet the needs of the Institution. The services of the petitioners come to an end when it is discontinued. It is fairly settled that the recruit process of recruitment or employment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up pf those vacancies cannot be done in a haphazard manner or W.P.(C)No.(SH)113 OF 2011 Page 10 of 29 based on patronage or other considerations. Regular appointment must be the rule. But in this instant case, there are no regular posts or regular vacancies for regular appointment of the petitioners and therefore, there is no question of filling up of regular vacancies or regularizations of the casual services of the petitioners. However, this Court in the following paras will discuss as to whether the case of the petitioners are covered by Para-53 of the Umadevi’s case (Supra). 6. The legal position of a Govt. servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The Apex-Court (Constitution Bench) in Roshan Lal Tandon & Ors vs. Union of India & Anr reported in AIR 1967 SC 1889, held that:- “6. ………… It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires status his right and obligations are no longer determined by consent of both the parties, but by statue or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is one of status than on contract. The hall- mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by the statue or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. ……………………..” 7. Again the Apex Court (Constitution Bench) in Union of India & Anr vs. Tulsiram Patel reported in AIR 1985 SC 1416, held that:- W.P.(C)No.(SH)113 OF 2011 Page 11 of 29 “43(A). The position that the pleasure doctrine is not based upon any special prerogative of the Crown but upon public policy has been accepted by this Court in The States of Uttar Pradesh & Ors. v. Babu Ram Upadhya, (1961) 2 SCR 679, 696: (AIR 1961 SC 751 at p. 759) and Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu etc., (1964) 5 SCR 683, 734-5: (AIR 1964 SC 600 at pp. 620-21) This Court has also accepted the principle that society has an interest in the due discharge of their duties by government servants. In Roshan Lal Tandon v. Union of India, (1968) 1 S.C.R. 185: (AIR 1967 SC 1889) Ramaswami, J., speaking for the Court said (at page 195 of SCR): (at p.1894 of AIR): the parties. The emolument of "It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status that of contract. The Hall- mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere the agreement of Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned." (Emphasis supplied) 8. From the conjoint reading of the ratio decidendi in Roshan Lal Tandon’s case (Supra) and Tulsiram Patel’s case (Supra), it is clear that the origin of Govt. service is contractual. But once appointed to his post or office the Govt. servant acquires a status and his rights and obligations are no longer determined by consent of both the parties, but by a statue or statutory rules which may be framed. The hall-mark of status is the W.P.(C)No.(SH)113 OF 2011 Page 12 of 29 attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. Therefore, the legal relationship of rights and duties cannot be imposed by a mere agreement of the parties but by public law. 9. The public employment as laid down by the Constitution and the law made there-under and the Constitutional Scheme envisages employment by the Govt. and its instrumentalities on the basis of procedure established in that behalf. Any public employment has to be in terms of the Constitutional Scheme. The Courts have always kept the legal aspects in mind and therefore, the persons who get employed, without the following of a regular procedure or even through backdoor or on daily wage basis, approaching the Courts, seeking directions to make them permanent are not welcomed by the Courts and their case are not entertained inasmuch as the High Courts are not invoking the wide jurisdiction under Article 226 of the Constitution of India to defeat the concept of social justice and equal opportunity for all in the matter of public employment as recognized by our Constitution. The Courts desists from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. It is equally well settled that the wide power of the High Courts under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating, illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. 10. Regularization cannot be said to be a form of appointment and also cannot be said to be a mode of recruitment. If the regularization is to be accepted as a mode of recruitment or regular appointment or one of the Constitutional Scheme in public employment, it would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at W.P.(C)No.(SH)113 OF 2011 Page 13 of 29 naught the rules. The Apex Court in R.N. Nanjundappa vs. T. Thimmiah and Another reported in (1972) 1 SCC 409, held that:- “26. ………….. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with the procedure or manner which does not go the appointment. the Regularization cannot be said to be a mode of recruitment. …………………………” root of to 11. The Apex Court in B.N. Nagarajan & Ors vs. State of Karnataka & Ors reported in (1979) 4 SCC 507, 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 terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Procedural irregularities which could have been corrected are those in the process of selection which do not go to the root of appointment. 12. The Apex Court in B.N. Nagarajan’s case (Supra) held that: “23. Orders made by the State Government later on and right upto the 31st of October, 1961 when the direct recruits were appointed Assistant Engineers did not improve the position of any of the promotees in any manner. Those orders were either silent on the point of the nature of the tenure of the promotees as Assistant Engineers, or stated in no uncertain terms that the promotees would hold the posts of Assistant Engineers on a temporary or officiating basis. That is why Dr. Chitaley and Mr. Sen, learned counsel for the promotees, mainly placed their reliance on the two notifications dated the 27th of February, 1962, and order exhibit D dated the 6th of October, 1962, the combined effect of which was to promote the said 107 officers as Assistant Engineers with effect from the 1st of November, 1956 "on a regular basis". It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st of November, 1956. The argument however is unacceptable to us for two reasons. Firstly the words "regular" or "regularisation" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the W.P.(C)No.(SH)113 OF 2011 Page 14 of 29 methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. In this connection reference may with advantage be made to State of Mysore v. S. V. Narayanappa (1967) 1 SCR 128, 132: AIR 1967 SC 1071 and R. N. Nanjundappa v. T. Thimmiah, (1972) 2 SCR 799: (1972) 1 SCC 409. In the former this Court observed: Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an require appointment confirmation. this assumption on the part of both the parties the High Court equated regularisation with permanence." to be permanent would still It seems that on account of 24. In Nanjundappa's case (1972) 2 SCR 799: (1972) 1 SCC 409 also the question of regularisation of an appointment arose and this Court dealt with it thus: (SCC p.416, para 26) that Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not it was a case of mean permanence but regularisation of the rules under Article 309. Both the contentions are fallacious. It the appointment itself is in infraction of the rules or if it is in violation of the illegality cannot be provisions of regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not to to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such 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." the Constitution 13. The Apex Court in Dr. Chanchal Goyal (Mrs) vs. State of Rajasthan reported in (2003) 3 SCC 485, held that:- “6. There is no scope of regularization unless the appointment was on regular basis. Considerable emphasis has been laid down by the appellant to the position that even for temporary appointment there was a selection. That is really of no consequence. Another plea of the appellant needs to be noted. With reference to the extension granted it was contended that a W.P.(C)No.(SH)113 OF 2011 Page 15 of 29 presumption of the Service Commission's concurrence can be drawn, when extensions were granted from time to time. This plea is without any substance. As noted above, there is no scope for drawing a presumption about such concurrence in terms of sub-rule (2) of Rule 27. After one year, currency of appointment is lost. The extension orders operated only during the period of effectiveness. 7. The decisions relied upon by the learned counsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and not for what could be inferred from the conclusion.” 14. There cannot be a legitimate expectation of a persons whose appointments on casual basis without following the procedure prescribed under the Constitutional Scheme in public appointment that their illegal appointments would be regularized only for their continuation of their employment/engagement for a decade inasmuch as, the legitimacy of an expectation can be inferred only if it is founded on the sanction of law. 15. The Apex Court in Union of India & Ors vs. Hindustan Development Corporation & Ors reported in (1993) 3 SCC 499, held that:- “28. Time is a three-fold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation can not be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves can not amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation can not amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.” The Apex Court also followed the said ratio laid down in Hindustan Development Corporation’s case (Supra) and Dr. Chanchal Goyal’s case (Supra). W.P.(C)No.(SH)113 OF 2011 Page 16 of 29 16. The Apex Court in State of Karnataka & Ors vs. G.V. Chandrashekar reported in (2009) 4 SCC 342, had considered the Para-53 of the judgment in Umadevi’s case (Supra) and held that regularization is not permissible where initial recruitment vis-à-vis is illegal and contrary to Constitutional Scheme. Paragraphs 25, 26, 27, 28 & 29 of the SCC in G.V. Chandrashekar’s case (Supra) read as follows:- “25. Interpretation of Para 53 in Umadevi's case (2006) 4 SCC 1: 2006 SCC (L&S) 753 had come up for consideration before this Court in a large number of decisions. In Mineral Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd. (2006) 6 SCC 310: 2006 SCC (L&S) 1318 wherein this Court, while following Umadevi (3) (2006) 4 SCC 1 :2006 SCC (L&S) 753 invoked para 53 of the said decision to opine: (Mineral Exploration (2006) 6 SCC 310: 2006 SCC (L&S) 1318, SCC p.325, para 39) “39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 :2006 SCC (L&S) 753 and in particular, paras 53 and 12 relied on by the learned Senior Counsel appearing for the Union. The Tribunal is directed to dispose of the matter afresh within 9 months from the date of receipt of this the observations made by us in this judgment. Both the parties are at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to time and the transfers of the workmen made from time to time, from place to place and other necessary and requisite details. The above details shall be submitted within two months from the date of the receipt of this judgment before the Tribunal. judgment without being influenced by any of 26. However, in National Fertilizers Ltd. & ors. vs. Somvir Singh (2006)5 SCC 493: 2006 SCC (L&S)1152, this Court held: (SCC pp.500-01, paras 23 and 25-26) 23. The contention of the learned counsel appearing on behalf of the 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 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. * * * W.P.(C)No.(SH)113 OF 2011 Page 17 of 29 25. 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. 26. 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. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Umadevi(3) (2006) 4 SCC 1: 2006 SCC (L&S) 753.” 27. In State of M.P. vs. Lalit Kumar Verma, (2007) 1 SCC 575: (2007) 1 SCC (L&S) 405 this Court held: (SCC p.583, paras 20-21) “20. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation. The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post. 21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753. It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India. 28. In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh, (2007) 2 SCC 491: (2007) 1 SCC (L&S) 713, this Court held: (SCC p.501, para 19) “19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires.” 29. In Postmaster General vs. Tutu Das (Dutta), (2007) 5 SCC 317: (2007) 2 SCC (L&S) 179, this Court held as under: (SCC pp.324-25, paras 20-21) “20. The statement of law contained in para 53 of Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753 cannot also be invoked W.P.(C)No.(SH)113 OF 2011 Page 18 of 29 in this case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them. 21. In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh, (2007) 2 SCC 491: (2007) 1 SCC (L&S) 713, referring to paras 15, 16 and 53 of Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753 this Court observed: (Ranjodh Singh case Sewerage Board vs. Ranjodh Singh, (2007) 2 SCC 491: (2007) 1 SCC (L&S) 713 SCC p. 500-01 paras 17-18) reading of the aforementioned ‘17. A combined the that what paragraphs would clearly in directing Constitution Bench had regularisation was in relation to such appointments, which were irregular in nature and not illegal ones. indicate in mind It has been so pointed out 18. Distinction between irregularity and illegality is explicit. in National Fertilizers Ltd. v. Somvir Singh (2006) 5 SCC 493: 2006 SCC (L&S)1152 in the following terms: (SCC pp. 500- 01, paras 23-25) “23. The contention of the learned counsel appearing on behalf of the 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 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. 24. 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, AIR 1967 SC 1071, R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507: 1980 SCC (L&S) 4 wherein this Court observed: [Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753, SCC p. 24, para 16] ‘16. In B.N. Nagarajan v. Stateof Karnataka, (1979) 4 SCC 507: 1980 SCC (L&S) 4 this Court clearly held that the words `regular' or `regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. 25. 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.” W.P.(C)No.(SH)113 OF 2011 Page 19 of 29