N. KUMAR J.
In these batch of writ petitions the petitioners have challenged the order passed by the Karnataka Administrative Tribunal at Bangalore dt.9.4.2010 dismissing the applications filed by the applicants challenging the constitutional validity of Karnataka State Civil Services (Absorption of Asst. Engineers and Junior Engineers appointed on contract basis and on ad-hoc basis in the water resource services) (Special) Rules, 2002 (for short Absorption Rules).
BACKGROUND
2. The Upper Krishna Project was started by the Government of Karnataka during the year 1964. The project was envisaged to provide irrigation facilities to the lands in the basis area covering the then Bijapur, Gulbarga, Bidar, Raichur and Bellary Districts which are chronic deficit rain fall areas. To utilise its share of river water, the State was required to complete the project within a definite time frame and any delay would have endangered the project itself with the lower riparian States insisting that actual utilisation should be taken as the basis for inter-State sharing of river waters. Even after 30 years of commencement of the project, there was absolutely dismal progress and completion of the project was nowhere in site. Faced with the problems arising out of lack of progress in the project consequent failure to provide irrigation facilities in the proposed project area, the State Govt, had to find a way out to see that work on the project is speeded up. On the ground that the delay in recruitment of Asst. Engineers and Junior Engineers was impeding the progress of UKP and there was need for accelerating the work in UKP, the State Government took a decision to fill up the vacant posts locally for a temporary period. During the year 1991 the Government decided to appoint Assistant Engineers and Junior Engineers on contract basis by appointing persons hailing from the 5 districts situated in the project area.
FACTUAL MATRIX
3. The Chief Engineers of Water Resource Development Organisation Committee, issued notification dated 15.6.91 inviting applications from eligible candidates for the post of Asst. Engineers for UKP under Karnataka State Civil Services (Recruitment Committee) 1982 in consonance with recruitment Rules 1973 and Irrigation Cadre and Recruitment) rules published in 1989 and amended from time to time. The total number of vacancies to be filled up is 300. The notification stated that it was issued in pursuance of the Government order dated 1.6.1991 and letter dated 6.6.1991 and 14.6.1991. Some of the applicants before the tribunal applied in pursuance of the said notification. However, on the pretext that there is the urgent need for filling up the large number of vacancies in the Engineering Cadres in Upper Krishna Project, the Government decided to recruit 300 Assistant Engineers and 150 Junior Engineers on Contract basis. Therefore, they decided to cancel the process of recruitment of 300 Assistant Engineers already initiated by the Chief Engineer, Water Resources Development Organisation through its Notification dated 18th June 1992. The said proposal was approved by the Cabinet in its Meeting held on 15th October, 1992. Thereafter, the Government constituted a Recruitment Committee consisting of Engineer-in-Chief cum Project Co-Ordinator, UKP, Almati, Engineer-in-Chief cum Project Co-ordinator, Cauvery Basin Projects, Mysore, Chief Engineer, Water Resources Development Organisation, Bangalore. It was made clear that regarding the appointment of Assistant Engineers, the Recruitment Committee shall consider the applications already received by the Chief Engineers Water Resources Development Organisation for recruitment of Assistant Engineers through his Notification dated 19th October 1992, and also receive fresh applications from the eligible candidates by obtaining the list of candidates from the concerned Employment Exchange. As regards the appointment of Junior Engineers, the Recruitment Committee shall receive applications from the eligible candidates by obtaining the list of such candidates from the concerned Employment Exchange. 5% of the posts should be filled by the candidates from the displaced families. 20% of the post should be filled from the candidates from outside the Upper Krishna Basin Area. 75% of the posts should be filled by candidates from Upper Krishna Project Basin Area covering Bijapur, Gulbarga, Raichur, Bidar and Bellary Districts only. The appointment of Assistant Engineers and Junior Engineers shall be for a period of 3 years in the first instance. The Assistant Engineers and Junior Engineers so appointed on contract basis shall be paid a consolidated salary of Rs.3,500/- and Rs.2,600/- per month respectively. The said Government order also contained conditions to be incorporated in the undertaking obtained from the Asst. Engineers and Junior Engineers appointed on contract basis. The first condition was a maximum period of this appointment on contract basis is fixed as three years. Clause 10 made it clear that the Asst. Engineers and Junior Engineers appointed on contract basis shall not be entitled for permanent appointment, absorption, pension, DCRG, Annual increment or promotion. Clause 11 stipulated that the Assistant Engineers and Junior Engineers so appointed should give an undertaking to higher officers in a stamped paper of Rs.10/- giving their consent to all the above terms and conditions, at the time of reporting for duty. By subsequent Govt. Order dated 29.10.1992 rural candidates were given weightage of 15 marks at the time of selection.
4. In pursuance of it, the State Govt, by letter dated 22.7.1993 directed the Engineer in chief cum Ex. officio Special Secretary, Irrigation Department to exercise the power under Rule 15 of the Karnataka Civil Service (General Recruitment) Rules 1977 which provides for contract appointment in certain contingencies, to make contract appointments of 320 Asst. Engineers and 120 Junior Engineers in UKP and that the process of such recruitment be commenced by obtaining the list of candidates locally from the employment exchanges. The guidelines to be followed for the above recruitment to be made from UKP area, was approved by the Deputy Chief Minister on 2.8.1993 and 20.8.1993. Accordingly, the Project Co-ordinator for UKP, addressed letters dated 11.8.1993, 25.8.1993 and 18.9.1993 to the Employment Exchanges to send the names in August, September and October 1993. Engineer In-Chief and Ex-Officio Special Secretary to the Government, Irrigation Department issued a notification dated 23.11.1993 calling for applications to fill up 320 Assistant Engineers in terms of the Rule 15 of the KCS (General Recruitment) Rules enclosing the statement showing the details of appointment of Asst. Engineers for a period of one year.
5. The said selection was challenged in Application Nos.22-23 of 1994 before the Karnataka Administrative Tribunal. In the said application the selected candidates were not arrayed as parties. Only the State and the concerned officials were made parties. After hearing the parties the Tribunal set aside the said Government Order and the appointments made in pursuance of the said Government Order by its order dated 20.10.1994. The State preferred a special leave petition in SLP Nos.3841-3880/1995 challenging the said order. The engineers who were appointed in pursuance of the Government Order preferred a review petition in R.P. Nos.91 - 378/1995 and connected matters challenging the aforesaid order on the ground that they were not heard. The Special Leave Petition preferred by the State against the said order came to be withdrawn in view of the selected candidates filing a review petition before the Tribunal. After hearing the review petitioners, the Tribunal declined to set aside the order quashing the Government Orders and the notifications issued and the appointments made. The reason given is by setting aside those appointments no right of the appointees is affected. All of them were appointed for a period of one year, renewed for a similar period thereafter. None has the right to demand renewal. Therefore, even now the State Government can take steps to recruit eligible candidates by affording opportunity to all the appointees for being considered for recruitment/appointment. Though the appointment in question contravenes Article 16 of the Constitution and it is imperative for the Tribunal to strike down the appointments being violative of the fundamental rights, however the Tribunal in its discretion permitted the continuance of the appointees till the State Government acts to erase the unconstitutionality and make proper appointments. They clarified that these appointees shall continue in the services till the State takes steps to make proper recruitment or appoint in terms of this order. It is thereafter the Government of Karnataka made the Karnataka Public Works (Irrigation Service) (Recruitment of Assistant Engineers and Junior Engineers)(Special) Rules, 1998. Rule 7 (2) (b) of the said Rules provided for weightage of 5% for each year of service subject to maximum of 30% to candidates who have served on contract basis. That Rule was challenged by filing a Writ Petition before this Court in W.P. Nos. 9602-40/1999. In the alternative they also sought for a direction to make recruitment within a reasonable time in accordance with the Rules. This Court allowed the Writ Petition in part restricting the weightage to be given for the services between 25.7.1995 and 8.12.1997 or part thereof. Challenging the said order a Writ Appeal came to be filed. It is during the subsistence of the Writ Appeal, the impugned Rules came to be passed. As the impugned Rules were challenged before the Tribunal, the Writ Appeal was disposed of as infructuous, reserving liberty to the parties to put forth their contentions before the Tribunal in the application filed challenging the impugned Rules. The Tribunal has declined to set aside the Rules. Aggrieved by the same, the applicants are before this Court in these Writ Petitions.
RIVAL CONTENTIONS:
6. Sri S V Narasimhan, the learned Advocate appearing for some of the petitioners contends that the petitioners who were also registered in employment exchange were denied the benefit of employment, as it was confined only to persons who are appointed on contract basis or on ad-hoc basis in the Upper Krishna Project. Secondly, it was contended that in the earlier proceedings the Karnataka Administrative Tribunal had held, the Government order in pursuance to which these appointments were made on contract basis or on ad-hoc basis is violative of Articles 14 and 16 of the Constitution of India and therefore, per se the appointment is illegal. An illegal appointment could not be regularised by way of absorption. Absorption is not a mode of recruitment and therefore, by way of absorption the respondents could not have absorbed persons whose initial appointment was illegal. He further contended the reasons given by the Tribunal to negative the contentions urged are found at page 454, 480, 499, 507 and 514 which runs counter to the law declared by the Apex Court in the aforesaid judgment. Therefore, it is unsustainable and it is liable to be set aside. One of the reasons which made the Tribunal to reject the claim of the petitioners is that they were over aged and therefore, they are not entitled to any relief. Consequently, they have no locus standi to file the applications. In fact, what the Tribunal meant was, even if the petitioners were to succeed in the application they would not get employment. Therefore, it is a futile exercise. They would not get employment because they are over aged. The learned counsel for the petitioners further submits it proceeds on a misconception all the petitioners were over aged. Majority of them were within the prescribed age limit. On that score also the finding recorded by the Tribunal is liable to be set aside.
7. Sri Vigneshwar S Shastri, learned counsel appearing for some of the petitioners contended the Tribunal after declaring the Government order as unconstitutional and consequently the appointment made are illegal per se, permitted continuance of the contract employees (whose appointments were set aside) till the State Govt, acted to erase the unconstitutionality and makes proper appointments. The said permission was granted for continuance in public interest to ensure that the work was not hampered and not with an intention to enable such illegal appointees to continue in service for long period so as to enable them to claim absorption or regularisation on the basis of such long service.
8. The Tribunal in the said order directed the Govt, to frame relevant Rules and complete the regular recruitment within 12 months i.e. on or before 18.12.1997. In fact, it categorised 440 contract engineers who were appointed in three categories. However, in utter disregard to the order of the Tribunal which has attained finality, though the Government framed Rules, without giving effect to the Rules they passed the impugned rules for absorption virtually regularising the appointment of all illegal appointees by way of absorption. It is a fraud on power. It is a case of colourable exercise of power and fraud on constitution.
9. He further submitted as their initial appointment was declared as illegal, question of regularising them by way of absorption is also illegal. The very rules framed for such absorption is also illegal. The very Rules framed for such absorption is arbitrary and within the mischief of Articles 14, 16 of the Constitution of India.
10. Sri V Lakshminarayan, learned counsel appearing for some of the petitioners submitted that in the instant case the initial appointment of contract engineers was hit by Article 16 (3) of the Constitution of India. Therefore, the Tribunal declared the Government Orders, the notification issued as unconstitutional. Consequently, appointments made in pursuance of the same also became unconstitutional. The said order was challenged in the Apex Court and the special leave petition was rejected. When a review petition was filed, the Tribunal declined to set aside the said finding. It only passed an order enabling the persons so appointed to continue in service till regular recruitment according to Rules took place. Those persons who continued in service by virtue of the interim order of stay granted in the review petition or by virtue of the observations made in the final order in the review petiton continued in service by virtue of those Court orders which cannot be taken into consideration to give any legitimacy. Therefore, the impugned Rules of absorption sought to recruit the very same persons whose appointments was held to be unconstitutional by the Tribunal. Whether the said Rules have to be construed as Rules regularising appointments or new recruitment, in either event, the said Rules are violative of Articles 14 and 16 of the Constitution of India. Therefore, not only the Rules which are unconstitutional but the appointments made in pursuance of that rules are also illegal.
11. These Absorption Rules are violative of Clause (3) of Article 16 of the Constitution of India. The legislative power to create residential qualification for employment is exclusively conferred on parliament and the said power is denied to the legislatures of the State. Therefore, neither the Government order providing for contract employment nor the impugned rules providing opportunity to engineers residing in only five districts of the State of Karnataka is violative of Article 16(3) of the Constitution of India and on that short ground the said rules have to be annulled.
12. Sri S. Vijayashankar, the learned Advocate General submitted the law makes a very clear distinction between an illegal appointment and an irregular appointment. If it is an illegal appointment, it cannot be saved. Whereas an irregular appointment would not ipso facto void ab initio and it can be saved by way of regularisation. In support of his contention he pointed out that the Tribunal declared that the Government orders under which appointments were made are violative of Article 16 (1) (2) and (3) of the Constitution and the appointments made were all quashed. When the review petition was filed the said order came to be modified and Tribunal read out the rigour of the earlier order. When once the Tribunal directed the continuation of the appointees till the said Government acts to erase the unconstitutionality and make proper appointments, it took note of the circumstances under which and the compulsion under which these appointments were made. In fact, it also observed whether appointment should be made permanently or temporarily it is a matter of policy. In case appointments are to be made only for the purpose of the project in question, it is not difficult to form a special cadre of engineers with a life span of 5 or 7 years to which the special procedure of recruitment could be evolved to suit the situation. Therefore, he submitted as all the persons who are appointed in pursuance of the aforesaid order had the requisite qualification to hold the said post and after declaring that the Government orders are illegal when the Tribunal permitted them to continue till the unconstitutionality is erased in those appointments, it cannot be said that it is an illegal appointment which is void ab initio. In the light of the aforesaid facts, it is clear the appointments in question are at best irregular appointments.
13. He further submitted the persons who are absorbed are all duly qualified, they were eligible to be appointed to the post to which they are absorbed. Therefore, when all these persons are working from 1994 till today, nearly for more than 18 years, it will be cruel to set aside their appointments. The Supreme Court in more than one case has upheld the absorption of the employees who have put in more than 10 years of continuous service. While dealing with such cases, apart from looking into the legality of their appointment, the circumstance under which they were employed and the services rendered by them to the State cannot be forgotten. He further contended the impugned rules are framed by the State Govt, by virtue of the power conferred under Section 3 (1) (b) of the Act. Though the Rules are styled as 'Absorption Rules', absorption is also one of the mode of recruitment and therefore, it cannot be said it is without the authority such Rules have been made.
14. The learned Advocate General further submitted that these Engineers were employed to complete the project. They have rendered service to the State. Without their assistance the project would not have been completed. Taking into consideration the services rendered by them, the fact that they are over-aged and if they are called upon to participate in the regular recruitment process, they may not be eligible at all. The State classified these persons as class by themselves. The applicants before the Tribunal constitute different class. There is no similarity between these two classes. It is well settled law that the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian Territory or that the same remedies should be made available to them irrespective of difference of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws will have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject matter of legislation, their position is substantially the same.
15. Sri P.S. Rajagopal, the learned senior counsel appearing for the private respondents contended that, these engineers appointed on contract basis form a class by themselves. In the earlier proceedings it has been held their appointment is invalid from the day, in the review petition the Tribunal permitted their continuance as contract engineers. The circumstances under which these contract employment came to be made is to be taken note of in deciding the validity of the impugned Rules. The persons who are now challenging these Rules are not similarly placed as that of these contract engineers. In such circumstances, what the Court should bear in mind while deciding the validity of such Rules when its validity is attacked on the ground of violative of Articles 14 and 16 of the Constitution is clearly set down in the judgment of the Apex Court. He brought to our notice the judgment of the Supreme Court in the case of Prabodh Verma and others etc. Versus State of Uttar Pradesh and others-AIR 1985 SC 167 to contend that the classification made by the State for the purpose of absorbing them in service is concerned is reasonable and not violative of Articles 14 and 16 as held by the Apex Court in the aforesaid judgment.
16. He further submitted that in the first round of litigations the applicants who challenged the order of the Government and the notification issued to fill-up those vacancies, are not the applicants in the present round of litigation. They do not possess the requisite qualification to apply for the said post. No other applicants in the earlier round of litigation have challenged the contract of employment. In those circumstances, they have no locus standi to maintain the application as well as this writ petition. He submitted in view of the law laid down by the Apex Court in the aforesaid judgment as the petitioners do not possess the requisite qualification, even if they succeed in the writ petition they would not get any benefit and therefore, at the instance of such persons the Rules cannot be quashed as it is not a public interest litigation. Further, he submitted if these writ petitions are allowed with a direction to recruit persons in accordance with law, by the relevant rules the applicants who are in these applications would be ineligible. Therefore, they would not get any employment. It is settled law that the court could not issue a futile writ. He further submitted absorption is a method of recruitment which is permissible under Section 3(1) of the Act r/w.309 of the Constitution of India.
17. Sri Ashok Haranahalli, the learned senior counsel, submitted that these persons who are appointed are innocent. They have not committed any mistake. They made no mis-representation. After they were appointed as contract engineers, by virtue of the order passed in review petition, their services is continued till the regular Rules are framed for recruitment and they are recruited. When the Rules were framed that became the subject matter of litigation and that Rules was not given effect to. Under these circumstances, from 1992 to 2003 these persons were working uninterruptedly. The Government as a policy decision enacted these Rules to absorb them into the regular service. Now, they have acquired experience. The persons who are before this Court are age barred. Even if those persons are removed from services, these persons cannot be recruited. In such circumstances it would be a futile to issue any writ. He relied on several judgments of the Apex Court, where, in exercise of equitable discretion, the Apex Court has declined to set aside such appointment on the ground that they are working continuously, they have acquired experience and they cannot be sent home at the belated stage.
18. He contended the constitutional validity of a Rule or an Act cannot be decided without a proper lis between parties properly ranged on either side and a crossing of the swords Court should decline to issue such writ. In the instant case all the petitioners are not entitled to any relief at all. As on today the question of the Court going into the question of validity of the Rules which is of no use to the applicants would be a case of exercise in futile, which the Court should avoid. For the aforesaid reasons he submitted that this is not a fit case where the Court should interfere with the well considered order passed by the Tribunal which has upheld the constitutional validity of the absorption Rules. He submitted that during the pendency of this case, 61 Assistant Engineers have been promoted, another 14 Junior Engineers have been promoted and this factor has to be kept in mind before the Court pronounces its judgment on merits.
POINT FOR CONSIDERATION
19. In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration in these batch of Writ Petitions is,
Whether the Karnataka State Civil Services (Absorption of Assistant Engineers and Junior Engineers appointed on contract basis and on ad-hoc basis in the Water Resources Services) (Special) Rules, 2002 is ultra vires the Constitution of India and therefore is liable to be set aside?
GOVERNMENT ORDER
20. The challenge to these Rules is on the ground the persons who were also registered in employment exchange were denied the opportunity to secure employment in the State as it was confined only to persons who are appointed on contract basis or on ad-hoc basis in the Upper Krishna Project. Similarly though all of them possess the requisite qualification, they are denied the opportunity to secure employment. These impugned Rules are made to perpetuate the illegality in as much as when the Tribunal declared that the Government Orders, notifications issued in pursuance of the Government Order and the appointments made in pursuance of the notification are all void as being contrary to Articles 14 and 16 of the Constitution by the impugned Rules instead of erasing unconstitutionality in the said appointment, it is perpetuated. Though it is called Absorption Rules, what is intended to be done by the impugned Rules is to regularize the services of persons whose initial appointment was declared to be unconstitutional and illegal which is totally impermissible in law. The illegal appointment cannot be regularized by way of absorption. The persons who are now absorbed into service are those persons whose appointment is hit by Article 16(3) of the Constitution and therefore it is contended the Tribunal committed a serious error in not striking down the impugned Rules. Therefore, it is necessary to look into the nature of initial appointment. The initial appointment was made in pursuance of the Government Order dated 19-10-1992. The said Government Order was issued by virtue of the power conferred on the Government under Article 162 of the Constitution of India to recruit 300 Assistant Engineers and 150 Junior Engineers for Upper Krishna Project on contract basis. The said Government order reads as under:-
ORDER
"1. Government are pleased to constitute a Recruitment Committed consisting of the following Members for Recruitment of 300 Assistant Engineers and 150 Junior Engineers for Upper Krishna Project on contract basis:-
(i) Engineer-in-Chief cum Project Co-Ordinator, UKP, Almati, CHAIRMAN
(ii) Engineer-in-Chief cum Project Co-ordinator, Cauvery Basin Projects, Mysore .. MEMBER
(iii) Chief Engineer, Water Resources Development Organisation, Bangalore. ..MEMBER SECRETARY
2. Regarding the appointment of Assistant Engineers, the Recruitment Committee shall consider the applications already received by the Chief Engineers Water Resources Development Organisation for recruitment of Assistant Engineers through his Notification dated 18th June 1991, and also receive fresh applications from the eligible candidates by obtaining the list of such candidates from the concerned Employment Exchange.
3. As regards the appointment of Junior Engineers, the Recruitment Committee shall receive applications from the eligible candidates by obtaining the list of such candidates from the concerned Employment Exchange.
4. 5% of the posts should be filled by the candidates from the displaced families.
5. 20% of the posts should be filled by the candidates from Outside the Upper Krishna Basin Area.
6. 75% of the posts should be filled by candidates from Upper Krishna Project Basin Area covering Bijapur, Gulbarga, Raichur, Bidar and Bellary Districts only.
7. The appointments shall be made purely on merit, without conducting interviews, by scrupulously following the prevailing roster system and reservation policy of the Government.
8. The appointment of Assistant Engineers and Junior Engineers shall be for a period of 3 years in the first instance. The Assistant Engineers and Junior Engineers so appointed on contract basis shall be paid a consolidated salary of Rs.3,500/- and Rs.2,600/- per month respectively.
9. The Engineer-in-Chief-cum-Project Co- ordinator, UKP, Almatti is authorised to issue appointment orders and also re-posting orders within UKP, for the Assistant Engineers and Junior Engineers so selected by the Recruitment Committee.
10. A suitable undertaking should be obtained on a stamped paper of Rs.10/- from the Assistant Engineers and Junior Engineers appointed on contract basis incorporating all the conditions mentioned in the annexure to this order.
11. The process of recruitment already initiated by the Chief Engineer, WRDO through his notification dated 18th June 1991, is hereby cancelled.
By order and in the name of Governor of Karnataka
Sd/-
(M.K. VENKATARAM) 19.10.92
Under Secretary to Government, Irrigation Department (World Bank Projects)
21. The Annexure thereto reads thus:
"CONDITIONS TO BE INCORPORATED IN THE UNDER-TAKING TO BE OBTAINED FROM THE ASSISTANT ENGINEERS AND JUNIOR ENGINEERS APPOINTED ON CONTRACT BASIS".
1. The maximum period of this appointment on contract basis is fixed as three years.
2. Since this appointment is exclusively for Upper Krishna Project, there will be no provision for transfer or deputation to other places.
3. The Assistant Engineers and Junior Engineers so appointed shall discharge the duties and responsibilities assigned to them from time to time by higher officers.
4. The Assistant Engineers and Junior Engineers appointed on contract basis will be paid a consolidated salary of Rs.35//- and Rs.2600/- per month subject to satisfactory discharging of their duties. Other benefits given to their equivalent Government Servants will also be extended to them.
5. This appointment can be cancelled at any time without any reason by giving one months notice by either party or by paying one months salary instead of such notice.
6. The Assistant Engineers and Junior Engineers so appointed should produce all the required certificates at the time of reporting for duty.
7. The Assistant Engineers and Junior Engineers so appointed will be eligible for all leaves as applicable to temporary/Government servants.
8. The Assistant Engineers and Junior Engineers so appointed will be eligible for medical facilities as applicable to their equivalent Government servants.
9. If there is any loss to Government due to the lapses/ undisciplined by the Assistant Engineers and Junior Engineers so appointed on contract basis, they should make good such losses.
10. The Assistant Engineers and Junior Engineers appointed on contract basis shall not be entitled for permanent appointment, absorption, Pension, DGRG, Annual Increment or promotion.
11. The Assistant Engineers and Junior Engineers so appointed should give an undertaking to higher officers in a stamped paper of Rs.10/- giving their cosent to all the above terms and conditions, at the time of reporting for duty.
Sd/-
(M.K. VENKATARAM) 19.10.92
Under Secretary to Government Irrigation Department (World Bank Projects).
22. By G.O. dated 29.10.1992 certain modifications were made to that G.O. dated 19.10.1992. That G.O. reads thus:
"GOVERNMENT ORDER ID 251 WBM92, BANGALORE, DATED 29.10.1992.
PREAMBLE:
In Government Order dated 19.10.1992 read above approval has been accorded for Recruitment of 300 Assistant Engineers and 150 Junior Engineers for upper Krishna Project on contract basis. In the same Government Order a Recruitment Committee has been constituted and the reservation of posts, modalities of selection etc., have also been spelt out. It is now decided to give a weightage of 15 marks for the Rural Candidates at the time of selection vide decision of the Cabinet in Subject No.DCA(c) 115/92 dated 28.10.1992.
ORDER
It is hereby ordered that the Rural Candidates shall be given a weightage of 15 marks at he time of selection of the Assistant Engineers and Junior Engineers for appointment on Contract Basis in Upper Krishna Project for which orders have already been issue in G.O.NO.ID251 WBM92 dated 19.10.1992.
Sd/-
(M.K. VENKATARAM) 19.10.92
Under Secretary to Government Irrigation Department (World Bank Projects).
23. Thus the designation of the Chairman of the recruitment committee by G.C. dated 19.10.1992 was modified by notification dated 15.7.1993 which reads thus:
GOVERNMENT OF KARNATAKA No.DPAR 15SLC93
Karnataka government Secretariat Vidhana Soudha Bangalore, dated 15.07.1993.
NOTIFICATION
The Engineer - in - Chief, Upper Krishna Project, Almatti, is designated as ''Engineer-in-Chief and Ex-officio Special Secretary to Government", Irrigation Department with immediate effect and until further orders.
His Head Quarters shall continue to be at Almatti.
By order and in the name of Governor of Karnataka
Sd/-
(RINSANGA)
Department of Personnel and Administrative Reforms.
24. In pursuance of the aforesaid Government Order Engineer - in - Chief and Ex-Officio Special Secretary to the Government, Irrigation Department issued a notification dated 23.11.1993 calling for applications to fill up 320 Assistant Engineers in terms of the Rule 15 of the KCSRs (General Recruitment) Rules, 1976 which reads as under:-
GOVERNMENT OF KARNATAKA
Office of the Engineer - in -Chief and Ex-Officio Special Secretary to Government,
Irrigation Department, UKP, ALMATTI-586 201 (Bijapur Dist.)
No.BCSS.RECRUIT/AES/93-94 DATE:23.11.1993
NOTIFICATION
Sub: Recruitment of 320 Assistant Engineers in terms of Rule 15 of K.C.S. (General Recruitment) Rules, 1977 for UKP-Approval for select list - regarding.
Ref: 1) Govt letter No. ID. 169 SPN 93, DT.27.7.1993
2) Govt. Noftn. No.DPAR.5.SCL 93, DT. 15.7.93.
3) Guidelines Note approved by Dy.C.M. on dated 2.8.1993
4) -do- dated 21.8.1993
5) Govt. Ltr. No. ID 169 SPN 93 dt.22.11.1993
Government in its letter dated 27.7.1993 cited under reference (1) authorised Engineer-in-Chief cum Project Co-ordinator, UKP, Almatti to recruit 320 Assistant Engineers in terms of Rule 15 KCS (General Recruitment) Rules, 1977 on contract basis and for this purpose redesigned the post of Engineer-in-Chief cum Project Co ordinator as Engineer-in-Chief and Ex-Officio Special Secretary to Government in the letter cited under reference (2) above. The guidelines to be followed for the above recruitment is approved by the Honourable Deputy Chief Minister on 2.8.1993 and 20.8.1993. Based on the above guidelines and directions of the Government, names from the Employment Exchange was obtained and processed keeping the prevailing roster and merit in view, 10% of the seats are kept reserved for mechanical graduates and 10% of seats are kept reserved for the children of families who have lost lands and property under projects coming in Krishna and Godavari basin of Karnataka State. Out of 320 posts of Assistant Engineers to be filled on contract basis, 288 are for Civil and 32 are fore Mechanical Engineer degree holders.
The recruitment on contract basis is purely temporary and subject to the terms and conditions stipulated in the Annexure attached to this notification. The selected Assistant Engineers should given an undertaking to the officer to whom they will be reporting, for duty; on a stamp paper of value ofRs.10/-, agreeing to work as per the said terms and conditions. Period of appointment on contract basis will be one year from the date of reporting at the place of posting to begin with. The Assistant Engineer will be paid a consolidated salary of Rs.3,500/- per month subject to satisfactory discharging of the duties.
The selection made is subject to the verification and confirmation by the competent authority of the particulars furnished by the candidates in respect of the caste, group income period of study in the identified districts and the land lost status in respect of those who are selected under that category. The appointment orders will be communicated by Registered post with Acknowledgement Due to the selected candidates after the receipt of the verification and confirmation from the concerned authority which will take about 3 to 4 weeks time. The candidates selected for recruitment on contract basis in terms of Rule 15 of the KCS (General Recruitment) Rules, 1977 against 320 posts of Assistant Engineers (Civil and Mechanical) are notified herewith for the information of all concerned.
Sd/-
(CAPT. S.RAJA RAO)
Engineer-in-Chief & Ex-Officio Special Secretary to Government
Irrigation Department, ALMATTI.
APPOINTMENT WITHOUT ADVERTISEMENT
25. From the aforesaid material it is clear that, the reason given for by-passing the regular mode of recruitment and resorting to short-cut method is, UKP project had to be completed within the period fixed by the World Bank. There was delay in completion of the project. Engineers appointed from the other parts of the State on being posted to UKP either they were refusing to go, or if they went to duty, they applied for leave and they were not giving their best to implement the project. Therefore, it became necessary to recruit engineers from these 5 Districts. Restricting the choice of persons to those hailing from the project area became necessary having regard to the experience of the State Government right from 1964 which showed that engineers from other parts of the State were either unwilling to work in the said project area and even when they are forcibly sent there, such engineers would not devote their wholehearted attention and devotion to the work of the project and always finding way and means to remain away from the project work. Efforts of the Government to make the Engineers of other parts of the state to work at the project having failed to yield desired results, it became necessary for the State Government in public interest to appoint engineers hailing from local area only.
26. In fact in the statement of objection filed by the State they have not given this reason. It is the persons who are appointed who are putting forth this reason. However, the material on record shows the same finds a place as the cause for not completing the UKP project in time as recorded by the officials who represented the World Bank. To the pointed question by us at the time of hearing, the learned Advocate General fairly submitted that there is no material on record to substantiate the said conduct, except an affidavit of the Chief Secretary filed before the Tribunal. Even if the said contention is to be accepted as true, what follows is the engineers who are earlier appointed to work in projects in the old Mysore part were not willing to go to UKP. Therefore, there was a need to recruit engineers. It is nobody's case that, in pursuance of the notification issued under the relevant Rules, the engineers from other parts of the State were not willing to apply and work in UKP. If a notification had been issued calling for applications from all eligible candidates throughout the State, if what the State states is true, if no one from the other part of the State filed applications and engineers from these 5 districts applied, the Government was well within its jurisdiction to employ all these engineers. But, the procedure adopted is, they have confined the recruitment to engineers only from these 5 districts and that too by taking the information from the employment exchange. Therefore, on the face of it, the explanation offered by the Government and by the contract engineers who are absorbed in service is without any substance.
27. The Apex Court in the case of STATE OF ORISSA AND ANOTHER Versus MAMATHA MOHANTY reported in (2011) 3 SCO 436. dealing with the question of appointment/employment without advertisement observed as under:-
"35. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution."
"36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit".
28. Dealing with the question what is the legal position if an order is bad in its inception, it is held as under:-
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be nonest and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.
The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
29. Dealing with Article 14 it is held as under:-
"56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.
57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same."
30. Relying upon the judgment of the Apex Court in Hotel Balaji Versus State of Andhra Pradesh reported in 1993 SC 1048 at para 12 it is observed that, to perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce Versus Delameter 52 at p. 18.
"A Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to lean; great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead; and courageous enough to acknowledge his errors".
31. Then dealing with 'arbitrariness' it held as under:-
"59. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision making process remains bad".
32. Therefore, it is clear that the procedure followed in recruiting these contract Engineers is not legal. Applications are not invited from all eligible candidates. Merely, inviting names from the employment exchange will not meet the requirement of Article 14 and 16 of the Constitution. Even in adopting the said procedure, the persons who have registered their names though out the State were not considered. Selection is confined to only five districts. Such a course violates the mandate of Articles 14 and 16 of the Constitution of India and deprived the candidates who are eligible for the post, from being considered. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. Therefore, the initial appointment of all these contract Engineers is bad in its inception and unconstitutional.
DISCRIMINATION ON THE GROUND OF RESIDENCE
33. Article 16 of the Constitution on which reliance is placed reads as under: -
"16. Equality of opportunity in matters of public employment.
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) 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.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
34. What follows is Article 14 mandates that the State shall not deny to any person equality before law. Article 15 mandates that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 mandates there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 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. Therefore, on the ground of descent, residence or place of birth, a citizen of this country cannot be discriminated. The only exception is found in Article 16(3). Parliament has been given the power to make a law prescribing in regard to a class or classes of employment, any requirement as to residence within that State prior to such employment or appointment.
35. While under clause (2), residence in a State cannot be a ground for discrimination in the matter of employment under the state, an exception is made under clause (3), by which Parliament (not any State Legislature) is empowered to make any law prescribing residence in a particular State to be a requirement for employment within that State. The power to make such exception belongs exclusively to the Parliament. Hence, in the absence of any such legislation by the Parliament, the condition imposed by any State Government or local authority that a person shall not be employed unless he is a ‘local’ candidate, would be violative of Article 16(1). The words ‘within that State’ refer to the State as a unit and not any part of it. In other words, residence in a particular district or sub division or city or village cannot be made the requirement for employment in a State in the law made by the Parliament under clause (3). The law would be ultra vires Article 16(3) if and in so for as such law seeks to do so.
36. The Supreme Court had an occasion to consider this clause in the case of A.V.S. NARASIMHARAO versus STATE OFANDHRA PRADESH [1970 SC 422] wherein it was held as under ; -
"
6. The clause thus enables Parliament to make a law in a special case prescribing any requirement as to residence within a State or Union Territory prior to appointment, as a condition of employment in the State or Union territory. Under Art. 35(a) this power is conferred upon Parliament but is denied to the Legislatures of the States, notwithstanding anything in the Constitution, and under (b) any law in force immediately before the commencement of the Constitution in respect to the matter shall subject to the terms thereof and subject to such adaptations that may be made under Art. 372 is to continue in force until altered or repealed or amended by Parliament."
"7. The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament Parliament can make any law which prescribes any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory. Two questions arise here. Firstly, whether Parliament, while prescribing the requirement, may prescribe the requirement of residence in a particular part of the State; and, secondly, whether Parliament can delegate this function by making a declaration and leaving the details to be filled in by the rule making power of the Central or State Governments."
8. Mr. S. V. Gupte, for the petitioners, points out that the Constitution is speaking of State and Union Territory. It has already made a declaration that no person shall be disqualified for any office in the territory of India because of his residence in any particular part of India. The exception, therefore, must be viewed narrowly and not carried to excess by interpretation. The article speaks of residence in a State and means only that. If it chose to speak of residence in parts of State such as Districts, Taluqas, cities, towns etc. more appropriate and specific language could have been used such as 'any requirement as to residence within that State or Union territory or part of that State or Union territory'. Having used the word State, the unit State is only meant and not any part thereof. Reference is made to the history of the drafting of the Article and the debates in the Constituent Assembly which bear out this contention.
9. On the other hand, Mr. Setalvad bases his argument on two things. He contends that the power is given to Parliament to make any law and, therefore, Parliament is supreme and can make any law on the subject as the article says. He very ingeniously shifts the emphasis to the words 'any requirement' and contends that the requirement may be also as to residence in the State or any particular part of state.
10. The claim for supremacy of Parliament is misconceived. Parliament in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must act within its appointed functions and not transgress them. What the Constitution says is a matter for construction of the language of the Constitution. Which is the proper construction of the two suggested? By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in Clause (3) was made. Even so, that clause spoke of residence within the State. The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words 'any law' and 'any requirement'. These words are obviously controlled by the words 'residence within the State or Union territory' which words mean what they say, neither more nor less. It follows, therefore, that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telangana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution."
37. Therefore, the legislative power to create residential qualification for employment is exclusively conferred on Parliament. The State legislature has no power to prescribe the qualification of residence in the matter of public employment. If the State legislature has no such power, the Government by virtue of this power under Article 162 of the Constitution cannot prescribe a condition which the State legislature is prohibited from prescribing. Therefore, providing an opportunity to the engineers of Bijapur, Gulbarga, Raichur, Bidar and Bellary Districts is violative of Article 16(3) of the Constitution. The Tribunal in the earlier proceedings had struck down the Government Order, the notification and the appointments made in pursuance of the said notification. The Tribunal while doing so, held that under Article 16(3) of the Constitution, the power to prescribe residential qualification for recruitment to State Civil Services vests exclusively in the parliament by Legislative enactment and it is permissible to prescribe by law only residence in a State and not in a part of the State as done in this case. The import of that decision is that a residential qualification cannot be prescribed by the State even by legislative enactment. In this case it has been done by executive order and it is clearly without competence. Article 16 does not make any exception between a temporary or tenure appointments on contract basis. Rule 15 of the General Recruitment Rules 1977 does not contemplate mass appointment to mass recruitment and appointing after obtaining names from the employment exchange and after making reservations for different categories of candidates would not fall within scope of Rule 15 of General Recruitment Rules and therefore, it cannot be sustained. Therefore, the said appointments are per se illegal and unconstitutional. They are violative of Article 16(3) of the Constitution.
GOVERNMENT ORDER CONTRARY TO RULES
38. The Tribunal further held there is considerable difference between the Government order dated 19.10.1992 which was issued in pursuance of the decision of the Cabinet and the notification of the Engineer in Chief dated 23.11.1993 and the letter of the Government dated 27.7.1993. The terms of appointment according to the Government order dated 19.10.1992 is 3 years and it is mentioned as one year in the notification dated 23.11.1993. The percentage of the vacancies set apart for different categories mentioned in Government order dated 19.10.1992 is not mentioned in the notification dated 23.11.1992 or in the letter dated 27.7.1993. According to the Government order dated 19.10.1992 selection is to be made by a committee on the basis of merit, but something else is stated in the notification dated 23.11.1993. The letter of the Government dated 27.7.1993 is said to have been issued in pursuance of a cabinet decision dated 8.7.1993. However, the order issued subsequent thereto is the order modifying the designation of Engineer-in-Chief. No other government order modifying the Government Order dated 19.10.1992 has been issued in pursuance to the decision of the Cabinet on 8.7.1993. There is nothing in the file made available to show that the scheme indicated in the Government order dated 19.10.1992 has been modified in regard to the mode of selection of candidates and authority to make selection. According to the Government order dated 19.10.1992, selection is to be made on the basis of merit by a committee. In the notification of the Engineer-in-Chief it is stated that the selection was made by him on the basis of guidelines approved by the Deputy Chief Minister. Those guidelines are not found in the file made available. The Deputy Chief Minister cannot modify the decision taken by the Cabinet since he has not been authorised for the purpose. Therefore, the selection made cannot be sustained as it is not in accordance with the decision of the Government order dated 19.10.1992. Further, it was held there are rules of recruitment made under the proviso to Article 309 of the Constitution in respect of the cadres of Asst. Engineers and Engineers and those rules are now deemed to have been made under the Karnataka Civil Services Act 1978. Recruitment if any will have to be made under those or any valid rules. The Government order dated 19.10.1992 as well as the notification of the Engineer-in-Chief dated 23.11.1993 and the Government letter dt.27.7.1993 are repugnant to those rules. Hence, the Executive order dated 19.10.1992 or the above said notification of the Engineer-in-Chief dated 23.11.1993 or the Government letter dated 27.7.1993 cannot prevail over the Rules made under the 1978 Act. The executive order cannot over-ride is a well established principle of law. For the aforesaid reasons, the Tribunal held it is difficult to sustain the scheme for recruitment of Asst. Engineers and Junior Engineers as provided either by the Government order dated 19.10.1992 or the letter of the Government dt. 27.7.1993 read with the notification dt.23.11.1993 issued by the Engineer in Chief since they were violative of Article 16(1) (2) (3) of the Constitution. Accordingly, the applications were allowed and the Government order dated 19.10.1992, letter of the Government dt.27.7.1993 and the notification issued by the Engineer-in-Chief and the selection of the candidates for appointment as Asst. Engineers and Junior Engineers as per Annexure-A2 to the Government order dated 23.11.1993 and another list and the appointment if any of those selected candidates as Asst. Engineers and Junior Engineers were quashed by the order dt.20.10.1994.
39. Aggrieved by the said order, the State preferred special leave petitions in SLP Nos.3841-3880/1995 before the Apex Court. Some of the engineers who were appointed in pursuance of the said notification also filed special leave petitions before the Honourable Supreme Court. In the meanwhile, other engineers who were appointed in pursuance of the said notification filed a review petition before the Tribunal in Review Petition Nos.91-378/1995 and connected matters. There was an interim order of stay in the said review petition. The said fact was brought to the notice of the Honourable Supreme Court. Therefore, the Apex Court observed that in view of stay granted by the Karnataka Administrative Tribunal in Review Petitions, SLPs' of the State Government is dismissed as premature.
ORDER IN REVIEW
40. The review petition was heard and by an order dated 25th July 1995 it was disposed of with the following observations:-
"48. By setting aside these appointments, no right of the appointees is affected. All of them were appointed for a period of one year, renewed for a similar period at a time thereafter. They should be perfectly aware of the slippery path followed by them. None has a right to demand renewal of the appointment under the terms of the contract of employment. Therefore, even now, the State Government can take steps to recruit eligible candidates by affording opportunity to all the aspirants for being considered for recruitment/appointment. Whether appointments should be made permanently or temporarily is a matter of policy. In case, appointments are to be made only for the purpose of the Project in question, it is not difficult to form a special cadre of Engineers with a life span of 5 or 7 years, to which special procedure of recruitment could be evolved to suit the situation. Actually, it is the will and the intention behind it that would inspire a proper decision.
49. We do not find any merit in the contentions of the Review Applicants (whose appointments are under challenge). The order made in the original applications does not require any substantial modification. The original applications stand allowed subject to the observations made herein. We are of the view that when the appointment in question contravenes the provisions of Article 16 of the Constitution, it is imperative for this Tribunal to strike down the said appointments. Any State action violative of the fundamental rights, is void,. However, this Tribunal, in its discretion, may permit the continuance of the appointees till the State Government acts to erase the unconstitutionality and make proper appointments. We clarify that these appointees shall continue in service till the State takes steps to make a proper recruitment or appoints in terms of this order. We further clarify that notwithstanding what we have said above, the appointments of the candidates against the 10% or 5% as the case may be of the total posts reserved for the displaced families are challenged before us and, therefore, their appointments are not to be considered as irregular or unconstitutional.
50. All Review applications are dismissed. The original applications challenging the appointment and the recruitment process are allowed in terms of this order."
41. Some of the review petitioners preferred a special leave petition in SLP Nos.109-142/1996 challenging the aforesaid orders. However, the special leave petitions came to be dismissed by an order dated 15.4.1996 leaving open to the review petitioners to move the authorities concerned or also the Tribunal for any further directions. Thus the order passed by the Tribunal both on the applications as well as on the review petitions have attained finality. The effect of the aforesaid orders is the initial appointment of these contract engineers is violative of the fundamental rights. It is void ab initio. Government had no authority to make such appointments. Therefore, the appointment made is without the authority of law. The order of the Tribunal declaring such appointment as void and without of law has attained finality. It is binding on the Government.
42. From the aforesaid order of the Tribunal passed in review it is clear the Tribunal after declaring their appointment as void, permitted their continuance till the State Government acts to erase the unconstitutionality and make proper appointments. It was clarified that these appointees shall continue in service till the State take steps to make a proper recruitment or appointment in terms of their order. It is litigious employment. It confers no right on such employees in law. The litigious employment come to an end, on the day the regular appointment is made in accordance with law.
RECRUITMENT RULES
43. In pursuance of the aforesaid direction issued by the Tribunal, the Government of Karnataka made the Karnataka Public Works (Irrigation Service) (Recruitment of Asst. Engineers and Junior Engineers) (Special Rules) 1998. The said Rules came into effect from 11.2.1999, the date of publication. Rule 7 of the said Rules prescribe the method of selection of the candidates. It reads a under:-
"Rule - 7. Method of selection of candidates: - (1) The selection Authority shall on the basis of the aggregate of the percentage of marks secured in the qualifying examination and taking into consideration the weightage allowed under these rules, and subject to orders in force providing for reservation for posts for the Scheduled Castes, Scheduled Tribes and other Backward classes, prepare in the order of merit, lists of candidates eligible for appointment under these rules to the posts of Assistant Engineers and Junior Engineers. If the marks obtained by two or more applicants in equal, the order or merit in respect of such candidates shall be fixed on the basis of their age of order in age being placed above the younger.
44. Some of the eligible engineers preferred W.P.No.9602-40/1999 and other connected matters challenging the constitutional validity of Rule 7(2)(b) of the said Rules which provides for 5% of each year of service (subject to maximum of 30%) to candidates who have served on contract basis as Asst. Engineers and Junior Engineers in the State Irrigation Department. They also sought a declaration that the said Rule is void. Alternatively, they sought a direction to the respondents to extend them also a similar weightage, even though they have not worked in the Irrigation Department. Alternatively, they sought a direction to respondents to make recruitment to the post of Asst. Engineers and Junior Engineers by considering their case, within a reasonable time frame to be fixed by the court under any reasonable method, keeping in view the seniority from the date on which they have registered themselves with employment exchanges.
45. This Court after considering the contentions advanced on behalf of all the parties held as under:-
"47. In view of above, these petitions are allowed in part, reading down Rule 7(2) (b) of the special Rules as follows, in regard to the 320 Assistant Engineers and 120 Junior Engineers appointed on contract basis, whose appointments were quashed by the order dated 20-10-1994 of the Tribunal:-.
"A weightage of five percent for each year of service shall be added to the percentage of total marks secured by the candidates in the qualifying examination, if such candidate has served on contract basis, an Assistant Engineer or Junior Engineer, as the case may be in the irrigation department of the State, in regard to such service between 25-7-1995 an 8-12-1997 or part thereof"
46. Aggrieved by the said order a writ appeal came to be filed in W.A.No.6418/2000 and connected cases. During the pendency of the said writ appeal, on 18-10-2002 the State Govt, passed Karnataka State Civil Services (Absorption of Asst. Engineers and Junior Engineers) appointed on contract basis and on ad-hoc basis in the Water Resources Services (Special) Rules 2002, hereinafter referred to as the "Absorption Rules".
47. The said Rules were challenged before the Karnataka Administrative Tribunal. Therefore, the appellants in the writ appeal submitted that in view of the aforesaid Rules having been made, the said appeal may be disposed of as having become infructuous with liberty reserved to the parties to put forth their contentions before the Tribunal in the matters where the validity of the Rules referred to above is under challenge with observations that the Tribunal shall consider the validity of the Rules without being influenced by the observations made by the learned Single Judge in the course of the order impugned in the appeals. In the light of the aforesaid submissions, the writ appeals were disposed of as having become infructuous with liberty reserved to the parties to putforth such pleas as may be available to them with regard to the contention already raised or to be raised before the Tribunal with regard to the validity of the Rules referred to above. It was further observed that the tribunal shall consider the Rules without being influenced by the observations made by the learned Single Judge in the course of the order impugned in the appeals. The said order came to be passed on 16.11.2004.
ABSORPTION RULES
48. The Absorption Rules reads as under:-
2. Definitions :- (1) In these rules, unless the context otherwise requires :-
(a) Contract Assistant Engineers and Junior Engineers and adhoc Assistant Engineers and Junior Engineers means the Assistants Engineers and Junior Engineers appointed in notification No.
1. ECSS/RECRUIT/AES/93-94/ dated 2311.1993
2. ECSS/EFA/RECRUIT/93-94dated 05.02.1994
3. ECSS/ESA/Nemaskati/AE/ 93-94 dt. 16.08.1994;
4. ECSS/ESA/NEMAKATHI/CONTRACT/ A.E /97-98/3507 DATED 02.03.1998
5. ECSS/ESA/NEMAKATHI/AE-97-98/1119 dated 14.7.1998
6. MD/KBJ.N.L/ESA/RECRUIT/ADHOC/A.E./99-2000/3175 DATED 3.2.1998 AND 2139 DT.1.9.1999
7. ECSS/RECRUIT/JE'S/93-94/DATED: 23.11.1993
8. ECSS/EFA/RECRUIT/93-94/DATED: 05.02.1994
9. ECSS/ESA/NEMAKATHI/JE'S/94-95 DATED: 16.08.1994
10. ECSS/ESA/RECRUIT/ CONTRACT/JE'S/97-98/3508 DATED.02.03.1998
11. ECSS/ESA/RECRUIT/ CONTRACT/JE'S/ 97-98/3855 DATED:25.03.1998
12. ECSS/ESA/RECRUIT/CONTRACT/JE'S/ 97-98/3895 DATED:27.03.1998
13. ECSS/ESA/RECRUIT/ADHOC/JE'S/97-98/3176 DATED:03.02.1998
appointed on contract basis and on ad hoc basis in the upper Krishna Project through Employment Exchange.
b) 'Schedule' means the schedule appended to these rules.
(2) Other words and expressions used in these rules but not defined shall have the same meaning respectively assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977.
3. Absorption of Contract, Adhoc Assistant Engineers and Junior Engineers :-
Notwithstanding anything contained in the Karnataka Civil Services (General Recruitment) Rules, 1977 or in the Karnataka Public Works (Irrigation Services) Recruitment of Assistant Engineers and Junior Engineers (Special) Rules, 1998 or in any other rules governing the recruitment made or deemed to have been made under the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990), the contract Assistant Engineer and Junior Engineer and adhoc Assistant Engineer and Junior Engineer mentioned in coloumn (2) of the Schedule and who are working a such in the Water Resources department on the date of commencement of these rules, shall be absorbed in the corresponding category of post carrying the scale of pay specified in coloumn (5) and (6) thereof in the Water Resources Services.
Provided that no such persons shall be absorbed.
(i) if he was disqualified for appointment under the Karnataka Civil Services (General
Recruitment) Rules, 1977 on the date of his appointment as Assistant Engineer or Junior Engineer, on contract basis or on adhoc basis as the case may be.
(ii) If he does not possess the minimum academic qualification specified in the rules of recruitment applicable for the recruitment to the said post.
(iii) In any post reserved for the persons belonging to the scheduled castes, schedule tribes or other backward classes to which he was appointed as contract Assistant Engineer or Junior Engineer, or adhoc Assistant Engineer and Junior Engineer as the case may be, if he is found to be not belonging to such castes, tribes or classes, as the case may be.
4. Pay, pension, leave and seniority of persons absorbed under these rules :-
Notwithstanding anything contained in the Karnataka Civil Service rules:-
i) the initial basic pay of the Contract Assistant Engineers and Junior Engineers and Adhoc Assistant Engineers and Junior Engineers absorbed under these rules shall be fixed at the minimum of the pay scale applicable to the category of post in which he is absorbed under rule 3.
ii) the service rendered by a person as contract Assistant Engineer or Junior Engineer, or adhoc Assistant Engineer or Junior Engineer, as the case may be, prior to the date of absorption shall not count for the purpose of leave, pay, pension, seniority and grant of selection time scale of pay or senior scale of pay under the Karnataka Civil Services (Time Bound Advancement) Rules, 1983 or the Karnataka Civil Services (Automatic Grant of Special promotion to the senior scale of pay) Rule, 1991.
49. A perusal of the aforementioned Rules makes it clear, it is case of regularisation. As is clear from clauses (i) and (ii) of Rule 4 the contract engineers are appointed with effect from the date of his absorption under the Absorption Rules. They were fixed a minimum scale of pay from the date of absorption. Their service rendered during the period of contract employment is not counted for the purpose of leave, pay, pension, seniority and grant of selection time scale of pay or senior scale of pay. Therefore, it is not a case of absorption. By the aforesaid process they were recruited to service by granting permanence to their service, which otherwise was purely contractual, which was coming to an end at the expiry of the period of contract. This is because though they were recruited directly as contract engineers under Rule 15 of Rules 1977, it is not a direct recruitment under the Rules 1977, because of the definition of direct recruitment contained in Rules 2(5) of the Rules, which expressly did not include within its ambit recruitment of employees on contract basis. It is to get over these legal hurdle, the device of Absorption Rules is thought off.
TRIBUNAL ORDER NULLIFIED
50. One of the ground urged before the Tribunal was the Absorption Rules has the effect of nullifying the orders of the Tribunal, the High Court and the Supreme Court in the earlier proceedings. Dealing with the said ground the Tribunal held that the Absorption Rules were made by virtue of the power conferred by sub-section (1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978. Therefore the legislature possess the competence over the subject matter. The observations made by the Tribunal earlier would not come in the way of the State Government absorbing the services of the private respondents in the peculiar facts and circumstances of the case. A binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting the provision, which in substance over rules the said judgments and is not in the realm of legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to classes of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. Though it is well settled legal position that legislative power cannot be pressed in service to undo the binding effects of decisions of Courts, in the case on hand, there was no direction either by the Tribunal or High Court or the Supreme Court to the State not to absorb the services of the private respondents. The Tribunal earlier in fact permitted appointment and continuance of ad hoc Engineers in the administrative exigencies till the State Government frames a scheme for regular recruitment. The earlier decision of the Tribunal is not binding on the private respondents as they were not impleaded as parties. Secondly as the said appointments were not in accordance with the Rules, the question of absorption had to be considered by the Government. If the initial appointments had been made in accordance with the Rules, there was no need for the impugned Absorption Rules. The services of persons who have served the Government continuously for nearly a decade had to be absorbed as denial of the benefit of absorption to such persons would be unfair, unreasonable and unjust. In none of the earlier decisions, there is any direction prohibiting the State Government from making the Rules of Absorption of Contract Engineers who had put in long years of service. Absorption was never an issue in the earlier litigation. The matter in issue was only validity of the initial appointment in the context of the Rules of Recruitment. It is unreasonable to hold that the Absorption Rules have the effect of nullifying the earlier decisions of the Tribunal. The Absorption Rules do not seek to bypass or over-ride binding effect of the judgments. The State by absorbing the services of the contract engineers has not sought to nullify or abrogate the binding decisions of this Tribunal, High Court and Supreme Court nor has it encroached upon the judicial power entrusted to the various authorities functioning under the relevant statutes and the Constitution. It is well settled that even where initial appointments were not made in accordance with the Rules of recruitment, if the appointees had continued in service for over years, then it is the duty of the Government to formulate scheme for the absorption, provided, they possess the qualification prescribed and were within the age limit prescribed in the Rules of Recruitment on the respective dates of appointment. They proceeded to hold that the action of the Government in absorbing the services of the private respondents by the impugned Absorption Rules is legal and in accordance with the law laid down by the Supreme Court in similar case. It also held that the impugned Rules of Absorption do not provide for regularisation of past irregular appointments. They provide for absorption prospectively without giving any benefit of past service for the purpose of pay, pension, leave, seniority and grant of selection and senior scale of pay to the private respondents. It is not as though the private respondents have been granted seniority from the date of their initial appointment on contract basis so as to affect the seniority of Engineers who are already working in the Department on permanent basis. In view of the affidavit filed by the Secretary to Government in the instant case, pointing out the circumstances under which it became necessary to confine the recruitment on contract basis to five districts, it cannot be said that there was any violation of Article 14 or Article 16(1) of the Constitution of India.
51. Therefore the question that arise for consideration is whether those appointments which were unconstitutional at the inception and thereafter continued by the cover of the order as a stop gap arrangement, till the regular recruitment is made under the Special Rules, could be regularised by way of absorption. Before answering the said question it is necessary to have clear picture of these words "Absorption" and "Regularisation" and the law which
holds the field today.
ABSORPTION
52. Though the word 'absorption' is used freely by the legislature while making rules, or by the Courts, the word 'absorption' as such has not been defined in any of the Acts or Rules. Therefore, to understand the meaning of the word 'absorption' as understood in the context of service jurisprudence, we have to look to the decisions where the said word has been freely used. The earliest judgment in this regard is the judgment of this Court in the case of A.G.HASABNIS Versus STATE OF MYSORE reported in 1967(1) Mys. L. J. 118 where the word ‘absorption’ has been explained which reads as under:
"We think that we should not give the word "absorbed" occurring in the clause any sharp definition. We should give that word a meaning, which promotes the legislative intent and fits into the context. The purpose of this clause is to continue in service of an employee under the abolished District Board, so that employee may have an uninterrupted employment either in the Taluk Board or under Government. The restricted power created in Government by that clause is the power to determine whether such absorption should be made by the Taluk Board or by Government The consequence emanating from such absorption is continuity in service without a break. The abolished District Local Board was established and functioning under the Bombay Local Boards Act, 1923 and its place was taken by the Taluk Board which now functions under the repealing Act. The clear legislative intent which manifests itself in the relevant provisions of the repealing Act to which we have referred was to bring about an assimilation between service under the District Local Board and service under the Taluk Board or under Government as the case may be, by the process of absorption. By such assimilation there is a coalescence and fusion of the two services, and such union makes the service in the absorbing unit a continuation of the service in the other.
In the Dictionary on English Law by Earl Jowitt, it is stated that the word absorption should be given the meaning, which the word "amalgamation" should receive. "Amalgamation" as explained in that book involves a process by which two things become united. We think that that is how also we should understand the process of absorption of which the repealing Act speaks. The true position, therefore, is that the service under the District Board becomes united with the Service under the Taluk Board or under Government as the case may be, and that union excludes the concept of the termination of one and the commencement of the other. On the contrary, such absorption ensures continuity without intermission.
So, the petitioner became statutorily entitled to the inclusion of every part of the service rendered by him in the Local Board in the period of service to be rendered by him under Government. It was not within the competence of Government, even if they were so advised by the high power committee, which they appointed, to exclude from such service a moiety thereof.
53. The word 'absorption' fell for consideration by the Apex Court in the case of DEVDUTTA AND OTHERS Versus STATE OF M.P. AND OTHERS reported in 1991 Supp(2) SCC 553. At para-8 the Honourable Supreme Court has held as under:-
"8. Now coming to the question of seniority, the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post. No one asserts that the instant one was a case of the absorbed Sales Tax Inspectors being initially sent on deputation from the post of Block Level extension Officer to the post of Sales Tax Inspector and being subsequently absorbed in that post. Consequently, when as pointed out by the High Court, it was not disputed that the surplus Block Level Extension Officers had been absorbed in the post of Sales Tax Inspectors it is obvious that it was a case of absorption by transfer. In this connection it would be useful to recapitulate that the minutes of the meeting referred to above held on September 30, 1965 laying down the principles of procedure for absorbing the surplus personnel specifically stated that the surplus staff which was to be "absorbed" should be treated as having been transferred from one post to another so that there may be no break in their service. "
54. The Apex Court in the case of RAMAKANT SHRIPAD SINAI ADVALPALKAR Versus UNION OF INDIA AND OTHERS reported in 1991 SUPP (2) SCC 733 has dealt with the difference between an absorbed post and an absorbed employee. In that connection at para-7, it has been held as under:
"7. The second contention is that the definition of expressions "absorbed post" and "absorbed employee" in section 2 of the act are wide enough to take in their sweep not only a person holding an "absorbed post" before December 20, 1961, but also one who has been merely serving in a higher post and that, accordingly, such higher post is also rendered, in relation to that person "an absorbed post". We are afraid, this construction is clearly unsupportable.
55. Then they set out the definitions contained in the Act regarding 'absorbed employee' and 'absorbed post' and held as under :-
"These provisions in the interpretation clause merely indicate that an "absorbed employee" should have held the "absorbed post" immediately before the December 20, 1961 and that it did not detract from that position if subsequently he was serving in any other post in connection with the administration of the Union of Territory of Goa. It is erroneous to construe that in such circumstances the 'other' post would also become an "absorbed post" in relation to such person. He would continue to be "absorbed employee" only in relation to the post he held immediately prior to December 20, 1961..."
56. In the Dictionary on English Law by Earl Jowitt, it is stated that the word absorption should be given the meaning, which the word "amalgamation" should
receive. "Amalgamation" as explained in that book involves a process by which two things become united. Union excludes the concept of the termination of one and the commencement of the other. On the contrary, such absorption ensures continuity without intermission. The consequence emanating from such absorption is continuity in service without a break. An assimilation of services rendered in two posts. By such assimilation, there is coalescence and person of the two services and such union makes the service in the absorbing unit a continuation of the service in the other.
57. The term "absorb" in service jurisprudence with reference to a post in the very nature of things implies that, an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post. The surplus staff which was to be "absorbed" should be treated as having been transferred from one post to another so that there may be no break in their service. On several occasions on account of the taking over of the establishments or institutions belonging to local or other authorities or even private organizations along with the members of the staff, the employees of such non-governmental bodies are absorbed in the Government service. For a permanent absorption, a formal order of the absorbing body is necessary. Similarly, where employees of a sick Government company are deployed in the Government service pursuant to a scheme settled by the BIFR, it would amount to absorption of such employees and the scheme would be as good as statute and cannot be defeated by the State Legislation. Where a private educational institution is taken over by the State Government subject to the condition that the services rendered by the members to the staff in such institution will be treated as public service, an officer who absorbed by that process in Government service is entitled to count his previous service in the equivalent cadre for purposes of seniority. In such a case, it is not competent for the Government to treat him as a fresh recruit in the service. Similarly, where an enactment provides that servants of the erstwhile district boards should be absorbed in Government service, the clear meaning of the word ‘absorption’ is continuation of service of an employee without interruption. The consequence emanating from such absorption is continuity in service without any break. The true position in such a case is that services under the erstwhile district board becomes united with the services under the Government and such an absorption excludes the concept of termination of previous service and the commencement of service in the Government. In such a case, it is not competent for the Government to exclude the whole or part of the previous service for purpose of seniority in the State service. Similar is the effect where a private organization is taken over by a Government order. The antecedent service has to be taken into account for consideration of seniority under the Government. Such taking over excludes the concept of fresh appointment. A deputationist has no enforceable right to absorption in deputed department. The employer always has a right to repatriate the deputationist to the parent organization. That means consent of the parent authority as well as the authority under which deputation takes place is necessary.
58. Therefore, the absorption pre-supposes that the person absorbed is recruited to service in a legal manner. When he is absorbed it is not a fresh appointment. Absorption ensures continuity without intermission. The person absorbed must be holding a permanent post in service in his own right by virtue of either recruitment or promotion to the post. The consequence emanating from such absorption is continuity in service without any break. Service rendered under the old post unites with the service under the new post, which excludes the concept of termination of previous service and the commencement of service under the new post. The thread which connects the old employment from new employment is the legality of employment. If this link is missing there cannot be absorption. Normally the absorption is resorted to after a transfer or deputation. The absorbed should be treated as having been transferred or deputed from one post to another, so that there may be no break in their service.
ABSORPTION AS A MODE OF RECRUITMENT
59. An employee is recruited to service to hold a post or office, in terms of the law applicable to such recruitment. Therefore, his appointment is legal and valid. Thereafter he is transferred or deputed to a different department, or a different establishment to an equivalent post. His tenure in the post to which he is transferred or deputed is only temporary. After the expiry of the period, he is liable to be repatriated to his parent organization. But if his services are very much required in the transferred post on a permanent basis, it is possible to 'absorb' him in the transferred post. From the date of absorption, he becomes a holder of the said post in his own right, and loses his lien in the parent post. In other words it amounts to his recruitment to the new post. After he is recruited to the new post, he will enjoy all the benefits attached to the new post as if he is appointed to the said post and also the benefit of continuity of service without any break, rendered by him in his parent organisation.
60. Therefore, the person who is absorbed should be holding an equivalent valid post in service. By absorption his appointment to the post cannot be validated for the first time. A person illegally appointed cannot be absorbed into service. Absorption cannot be resorted to regularize an illegal appointment. Absorption is not a mode of recruitment to issue fresh appointment to persons who are appointed for a temporary period on daily wages or on contract basis.
REGULARISATION
61. The next word, which is of utmost important in deciding the issue in this case, is the meaning of the word 'regularisation'. The Constitution Bench of the Apex Court in the case of SECRETARY, STATE OF KARNATAKA AND OTHERS Versus UMADEVI AND OTHERS reported in 2006 (4) 1 SCC has approved the judgment in (1) S.V. Narayanappa's case, (2) R.N. Nanjundappa's and (3) B.N. Nagarajan's case, where this word has been explained. To understand the concept of regularisation, it is necessary to look into these decisions.
62. In the case of STATE OF KARNATAKA Versus S. V. NARAYANAPPA reported in AIR 1967 SC 1071, the Apex Court dealing with the regularisation of services of the local candidates at para-10 has held as under:
It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September, 22, 1961. This construction finds support from sub-clause (iii) which provides that local service prior to regularisation would be counted for the purpose of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in Sub-Clause (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both Sub-clauses 2 and 3. The High Court was, therefore, in error when it said that Sub-Clause (iv) did not relate to considerations under Sub-Clause (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed Sub-Clause (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, 1960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuous service provided they were in service on the two relevant dates viz., January 1, 1960 and September 22, 1961, would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, 1960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against others who were recruited properly under the Rules of Recruitment. Under Sub-Clause (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961, such service is to be taken into account for purposes of leave, pension and increments but not for purposes of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise. For the reasons aforesaid the construction placed by the High Court cannot be sustained."
"63. The next judgment is the case of R.N. NANJUNDAPPA Versus T. THIMMAIAH reported in (1972) 1 SCC 409. The Honourable Supreme Court while considering the rules providing for methods of recruitment by promotion, selection or competitive examination, held as under:"
"23. It was contended on behalf of the State that under Article 309 of the Constitution the State has power to make a rule regularising the appointment. Shelter was taken behind Article 162 of the Constitution and the power of the Government to appoint. No one can deny the power of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that rules under Article 309 could be made in respect of appointment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination.
"24. It was contended on behalf of the State that Rule 3 of the Mysore State Civil Services Rules, 1957 spoke of method of recruitment to be by competitive examination, or by selection, or by promotion. The method of recruitment and qualifications for each State Civil Service were to be set forth in the rules of recruitment but there were no rules until the year 1964. In 1964 the rule spoke of the Principal of School of Mines to be Class-I and the method of recruitment for the Principal of School of Mines was to fill up the post by promotion from the cadre of Heads of Sections or by direct recruitment. It was said on behalf of the respondent that he was the only eligible candidate in 1964, and, therefore, his appointment was valid. This is opposed to facts. It is not a case of direct recruitment in the year 1958 or at any time. The State made rules in the year 1967 to regularise the appointment from the month of February, 1958. Again, if it were a case of direct recruitment one would expect proper materials for the direct recruitment. There should be advertisements for the post. Candidates have to be selected. Their respective merits would have to be considered. To say that the appellant was the only eligible candidate is to deny the rights of others to apply for such eligibility tests."
"26. The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case, the rule, which regularised the appointment of the respondent with effect from February 15th , 1958 notwithstanding any rules cannot be said to be in exercise of the power under Article 162. First, Article 162 does not speak of rules whereas Article 309 speaks of the rules. Therefore, the present case touches the power of the State to make rules under Article 309 of the nature impeached here. Secondly, when the Government acted under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two articles operate in different areas. Regularisation cannot be said to be a form of appointment. 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 mean permanence but that it was a case of regularisation of the rules under Article 309. 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 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 go to the root of the appointment 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."
64. Then they proceeded to hold that regularization is bad for the following reasons:
33. First, regularisation is not itself a mode of appointment. Secondly, the modes of appointments are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the State. The Government did not contend it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum-merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under Rule 16 by transfer of a person holding an equivalent grade the appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of the School of Mines."
"Then they concluded by saying,"
"34. Article 162 does not confer power of regularisation. Article 162 does not empower on the Government to make rules for the recruitment or conditions of service. There can be rule for one person or one post but rules are made for recruitment and conditions of service. Rules are not for the purpose of validating an illegal appointment or for making an appointments or promotions or approval. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, the regularisation by way of Rules under Article 309 in the present case by stating that notwithstanding anything in the rules the appointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection. If the respondent were to be appointed by direct recruitment, there should have been advertisements. Then others would have got the opportunity of applying. That would be proper selection".
65. Again the Apex Court in the case of B.N. NAGARAJAN Versus STATE OF KARNATAKA reported in AIR 1979 SC 1681 explaining the meaning of the word ‘regular’ and ‘regularisation’ has held as under:
"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 methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments.
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 Art, 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 the 1st of November, 1956 would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art.309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art, 309 of the Constitution."
66. A three judge of the Apex Court in A. UMARANI Versus REGISTRAR OF CO-OPERATIVE SOCIETIES AND OTHERS reported in (2004) 7 SCC 112 dealing with regularisation has held as under:
"Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
40. It is equally well settled that those who come by back door should go through that door.
41. Regularisation furthermore cannot give permanence to an employee whose services are accused hoc in nature.
45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointment have been made in contravention of the statutory rules.
67. The Constitution Bench in Uma Devi'scase dealing with regularisation has held as under:-
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Versus S.V. NARAYANAPPA [1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Versus T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:-
"Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. 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 procedure or manner which does not go to the root of the appointment Regularization 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.
16. In B.N. Nagarajan & Ors. Versus State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are 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. This court emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent
19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter-productive."
68. The expression "regularisation" has a definite connotation. The concept of regularisation pre-supposes irregular appointment at the first instance so as to enable the employer to regularise the same. There is a vital distinction between "regularisation" and "conferment of permanence" in service jurisprudence. The words "regular" or "regularisation" do not connote permanence. They cannot be construed 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 the defects in the method of appointments. It is a misconception to equate regularisation with permanence. Regularisation is not a mode of appointment. Regularisation is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. 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. 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 regularised. Ratification or regularisation is possible of an act, which is within the power and province of the authority, where there has been some non compliance with procedure or manner, of recruitment which does not go to the root of the appointment. In case of a direct recruitment there should be an advertisement for the post. Everyone who is duly qualified should have an opportunity of applying. The respective merits would have to be considered. Candidates have to be selected.
Then only it could be called a proper selection. If in the process of such selection, if any irregularity is crept in, the said irregularity could be corrected by way of regularization. Rules under Article 309 are for the purpose of laying down the conditions for service and recruitment. Therefore, regularisation by way of Rules under Article 309 by stating that notwithstanding anything in the rules, the appointment is being regularised is itself in violation of the rules as to appointment as to cadre and also as to the proper selection. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is liable to be struck down on the ground that it is in violation of current rules. By regularization, an illegal appointment cannot be regularized. Similarly, regularization cannot be resorted to, to give permanence to an employment. If the appointment is a contractual one it should come to an end with the expiry of the terms for which they were appointed. If it is an employment on daily basis it comes to an end when it is discontinued. If it is a temporary employment it comes to an end after the expiry of the period for which he was appointed. In all these cases regularization cannot be adopted to confer permanence on such employment. The aforesaid persons cannot be recruited into service permanently by way of regularization. If the appointment is in infraction of the Rules or if it is in violation of the Constitution, then it is a case of illegal appointment and illegality cannot be regularised.
ABSORPTION BY WAY OF REGULARISATION
69. Regularisation is not a mode of recruitment/appointment. Regularisation cannot give permanence to an employee who is appointed on contract basis or temporarily or as daily wages. By regularisation an illegal appointment cannot be regularised. If in the process of recruitment, there is some non-compliance of the procedure, which does not go to the root of the appointment, such an irregularity could be condoned by way of regularisation. By way of absorption such an irregularity cannot be condoned. The condition precedent for absorption, is, the person to be absorbed should have been recruited into service validly. A valid appointment is a sine quo non for absorption. Such an appointment does not require regularisation. Therefore absorption by way of regularisation is a misnomer. If an illegal or irregular appointment is sought to be regularised by way of absorption, the absorption becomes bad, and the absorption confers no right to the person in the post to which he is absorbed.
LAW WHICH HOLDS THE FIELD TODAY
70. Now let us see what is the law laid down by the Constitutional Bench of the Apex Court in the judgment in Uma Devi's case. At paras 2, 3, 4, 5, 43 and 45 it is held as under:-
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act But, a regular process of recruitment or appointment 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 of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social Justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist 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. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. 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, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution”.
71. Subsequently, the ratio of the Constitution Bench judgment has been followed by two judges bench for declining to entertain the claim of regularisation of service made by adhoc/temporary/daily wage/casual employment or for reversing the orders of the high court granting relief to such employees in the case Indian Drugs and Pharmaceuticals Ltd. versus Workmen (2007) 1 SCC 408; Gangadhar Pillai versus Siemens Ltd. (2007)1 SCC 533; Kendriya Vidyalaya Sangthan versus L.V. Subramanyeshwara and another reported (2007)5 SCC 326; Hindustan Aeronautics Ltd. versus Dan Bahadur Singh and Others reported in (2007) 6 SCC 207.
72. However, in UP STATE ELECTRICITY BOARD VersusPOORAN CHANDRA PANDEY reported in (2007) 11 Supreme Court Cases 92, the two judges Bench attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the Judgment in UMA DEVIs case is in conflict with the judgment of the seven judges bench in Maneka Gandhi VersusUnion of India (1978) 1 SCC 248. When this was brought to the notice of a three judges bench of the Apex Court in the case of OFFICIAL LIQUIDATOR versus DAYANAND AND OTHERS [(2008) 10 SCC] after carefully analysing the judgment in Pooran's case they were of the view that the observations were not called for.
73. After pointing out how to the facts of the case in Pooran's case, the said judgment has no application, they observed that the two Judge Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in the State of Karnataka VersusUmadevi. Then referring to various judgments of the Apex Court dealing with role of judicial discipline which is a Sine-quo-non for sustaining system they held as under :-
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgements of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgements lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its deals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge bench in U.P. SEB v. Pooran Chandra Pandey 12 should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench”.
74. Therefore, the comments and observations made by the two Judges Bench in Pooran Chandra's case at best is only a obiter and the same is not binding on this Court and the said judgment cannot be relied upon or made basis for by passing principles laid down by the Constitution Bench. In other words, the law laid down by the Constitution Bench in Umadevi's case is reiterated.
75. Therefore, from the aforesaid discussion it is clear the law regarding regularisation is now settled by the decision of the Constitution Bench of the Apex Court in Umadevi's case. When an attempt was made to dilute the said law, the larger bench found fault with such an attempt and declared the said judgment as only a obiter and not a binding decision on the High Court. A series of judgments of the Apex Court have reiterated the said legal position. Therefore, the said judgment holds the field.
76. What could be deduced from the aforesaid judgment is as under:-
1. Any public employment has to be in terms of the Constitutional scheme.
2. Adherence to the rule of equality in public employment is a basic feature of our Constitution.
3. Regular appointment must be the rule.
4. A regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up.
5. The appointment should be in terms of relevant rules and after a proper competition among the qualified persons. Otherwise, such appointment would not confer any right on the appointee.
6. If a contractual appointment is made, the appointment comes to an end at the end of the contract. The Government or the instrumentality of the State cannot confer any permanency of such employment either by way of regularisation or by way of absorption.
7. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
8. A temporary employee could not claim to be made permanent on the expiry of his term of appointment.
9. Merely because a temporary employee or a casual wage worker is continued for a time being beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength on such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
10. Regularisation is not a mode of appointment.
11. Regularisation can be only of irregular appointment.
12. Regularisation of an illegal appointment is not permissible in law. It is not permissible in law, to confer permanence on the employee, whose appointment is illegal.
13. The Government or the instrumentality of the State cannot regularise the appointment made contrary to the course of selection as envisaged by the relevant rules.
14. The High Court acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
15. There should be no further by-passing of the constitutional requirement and regularisation or making permanent those not duly appointed as per the constitutional scheme.
EXCEPTION TO UMA DEVI'S CASE
77. However, in Umadevi's case, the Apex Court was conscious of the fact that because of divergent opinion of the Apex Court itself, directions had been issued from time to time for regularisation which was given effect to and persons who are irregularly appointed were regularised in service. Therefore, they carved out an exception to the law laid down by them regarding regularisation. It finds a place in para 53 of the said judgment which reads as under :-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (Supra), R.N.Nanjundappa (Supra) and B.N.Nagarajan (Supra) and referred to in para 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 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".
78. In fact, subsequently, the two judge Bench of the Apex Court had an occasion to explain this para 53 in the case of STATE OF KARNATAKA & ORS. Versus M.L. KESARI & ORS reported in AIR 2010 SC 2587, as under:-
5.It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure, Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
6. The term ‘one-time measure’ has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
Again at para 8 it is held as under :-
8. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ ad-hoc/ casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing 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”.
79. The explanation carved out by the Apex Court in Umadevi's case is applicable only to cases where the following conditions are fulfilled.
i) A person should have been appointed temporarily to work against a sanctioned post;
ii) Such a person should possess the required qualification prescribed under law to hold the said post;
iii) Such a person should have continued to hold the said post uninterruptedly for a period of 10 years or more;
iv) Such a continuous service should have been rendered without the aid of or under the cover of order of the courts or the Tribunals;
v) Conditions stipulated in (i) to (iv) should have been fulfilled anterior to the pronouncement of the judgment in Umadevi's case i.e., 10th April 2006.
vi) It has no prospective application.
vii) The appointment should be only irregular and not illegal.
80. Only in cases where the aforesaid conditions are fulfilled, as "one time" measure the Government or the instrumentalities of the State could regularise such irregular appointments. It is manifestly made clear the regularisation can be only of irregular appointments and not illegal appointments. If the appointment is illegal at the inception, even if a person is in continuous service for more than 10 years, possess the prescribed qualification and working against a sanctioned post, regularisation is not permissible. The said benefit is extended only to irregular appointments.
81. Two other aspects which is settled by the aforesaid judgment of the Apex Court are:-
(1) It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents, (vide para 54)
(2) 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, (vide para S3)
82. In fact, the judgment on which strong reliance was placed in support of such regularisation by absorption is the judgment of the Apex Court in the case of State of Karnataka and another Versus Suvarna Malini reported in 2001(1) SCC 728 wherein reliance is placed on paras 8 and 9.
"8. From time to time, the Government has also been issuing instructions for canalising the method of appointment and directing that even Part-time Lecturers could be appointed through the Directorate of Collegiate Education and not otherwise. The Directorate of Collegiate Education also has been issuing circulars indicating the guidelines. The reasons which weighed with the High Court to sustain striking down of the Absorption Rules are that the so-called Part-time Lecturers had not been appointed after a process of selection in accordance with the prescribed rules but on the other hand, their appointment is dehors the rules. Further such candidates are not scrutinised by the Public Service Commission and they do not possess the NET test, as provided by the University Grants Commission, which is one of the essential requisites for recruitment under the statutory Recruitment Rules of 1993."
"9. From the materials on record, it appears that the State Government has been regulating the mode of appointment of Part-time Lecturers and it is not Correct that there has been no process of selection before such appointment of Part-time Lecturers. Even though the selection had not been made by the Public Service Commission, yet there was a process of selection and it further appears that unqualified people were not being appointed as Part-time Lecturers. Part-time Lecturers having formed a class by themselves and for some reason are the other, they having been deprived of the benefits of the earlier directions of this court on account of inaction of the part of the State Government, the matter was re-examined by a Committee of experts as to how best, the services of these Part-time Lecturers can be utilised and at the same time, there will be no dilution in the quality of teaching nor can there be any infraction in the minimum qualification necessary for appointment as a lecturer. The concept of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. All that Article 14 guarantees is a similarity of treatment contradistinguished from identical treatment. Equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though, they are the same. It of course means denial of any special privilege by reason of birth, creed or the like. The legislature as well as the executive Government, while dealing with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws, to attain any particular object and to achieve that object, it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination. When the absorption rules are examined from the aforesaid stand point and when we consider the circumstances under which the said Rules were made to solve a human problem and that the Rules made were put to objection to the general public and even the Public Service Commission was consulted and finally was (sic were laid) before the State Legislature to have their concurrence, we are of the considered opinion that the High Court committed an error in striking down the Rules on the ground that they were discriminatory. When this Court deprecates the regularisation and absorption when it comes to the conclusion that such regularisation and absorption has become a common method of allowing back-door entries and then regularising such entries, it is not that in every case, the court would be justified in striking down the process of absorption or regularisation, more so when such absorption has been made as a legislative measure and that also as a one time measure, and at the same time insisting upon the essential qualifications to be duly complied with, by the persons intended to be absorbed on regular basis. In the aforesaid premises, we have no hesitation to come to the conclusion that the Tribunal as well as the High Court committed serious error in striking down the impugned absorption rules. We, therefore, set aside the judgment of the Tribunal and the High Court and allow these appeals. While we hold the absorption rules to be valid, we would further direct that the State government must insist upon the candidates to pass the NET test, as required by the University Grants Commission within the period three years and it is only on passing of such test, the absorbed employees will be entitled to the scale of pay, available for the regular qualified lecturers. Failure on their part to pass the NET test would debar them from being absorbed and regularised."
83. A Division Bench of this Court in the case of M.S. GANESH AND OTHERS versus SUBRAMANYA AND OTHERS [ILR 2002 KAR 4123] had an occasion to consider this argument as well as this judgment and the said argument was answered in the following manner : -
15. The petitioners point out that even the two Absorption Rules with which we are concerned, require possessing of minimum academic qualifications and also require that the candidates should not be disqualified under the General Recruitment Rules and also provide that the absorption is a one time measure. They contend that the Absorption Rules should be upheld on the basis of the ratio laid down in Suvarna Malini's case. But the distinguishing feature in Suvarna Malini's case is that it dealt with the absorption of part-time lecturers who had served for periods varying from 10 years to 20 years. The Supreme Court proceeded on the basis that the case involved not only a question of law, but also a human problem and that if they were not regularised and treated as regular service, they will not be able to get themselves engaged anywhere else and at the same time, their experience in teaching would be lost to the student community. The significant aspect is that the Rules provided for absorption of lecturers who had put in 10 to 20 years of service. It is now recognised by a series of decisions that there is need to make an exception to the general rule (requiring the notifying or advertising posts, inviting applications from all eligible candidates) where persons have served continuously either temporarily or on ad hoc basis or on contract basis for long periods (say 10 years) by framing a scheme for regularizing their service. Therefore, if the Absorption Rules with which we are concerned had provided for absorption on completion of any 10 years service as contract employees, it would have been possible to hold the rules as valid with reference to the decision in Suvarna Malini's case, and the series of other decisions which have permitted regularisation on completion of a long period of temporary service. But where appointed a day earlier, without undergoing the process of selection and thereby denies opportunity to other eligible candidates to compete, it would be nothing but an arbitrary exercise of power violating Articles 14 and 16 of the Constitution. It is this aspect that persuaded the Tribunal to hold that the impugned rules were unconstitutional.
18.The petitioners plead hardship. The question is whether petitioners in these cases and others whose names are found in the Schedules to Groups ‘C’ and ‘D’ Absorption Rules, are entitled to any relief? We are informed that some of them are still working as contractual employees in the establishment of Ministers. The services of many were discontinued either as a result of the modification of the interim order granted in these cases and on account of Ministers under whom they were working, ceasing to be Ministers. Some of them have obtained regular employment by undergoing recruitment process. Exact number of the persons who have entered regular service is not valuable.
19.The decisions of the Supreme Court have made it clear that human angle is something that cannot be ignored. We have already referred to the decision in Suvarna Malini's case. We may also refer to the decision of the Supreme Court in H. C. Puttaswamy and Ors. versus The Honourable Chief Justice of Karnataka High Court, Bangalore and Ors.,. In that case, it was found that certain appointments made violated constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16 (1) of the Constitution. The High Court quashed the appointments so made. The said decision of the High Court was affirmed by the Supreme Court. Subsequently, affected employees filed review petitions. While allowing the said review petitions, the Supreme Court held thus:
"The human problem stands at the outset in these cases and it is that problem that motivated in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva-voce to be conducted by the Public Service Commission for fresh selection".
The Supreme Court directed that such employees shall be treated as regularly appointed with all benefits of past service. Here again, the fact that the employees had been in service for more than 10 years persuaded the Supreme Court to give relief
"20. In pursuance of the decision in Dharwad District Public Works Department Literate Daily Wages Employees Association and Ors. VersusState of Karnataka and Ors., the State had formulated the scheme for regularizing the services of persons who were employed on daily wage before 1-7-1984 and who had served for 10 years. This Court in several decisions had recognised the need for regularizing the services of those who have served for 10 years by formulation of some scheme, even if their initial appointment was not as per Rules."
"21.The Absorption Rules relate to a group of people who were appointed, not on daily wage basis but on contract basis to serve the Ministers. If such employees had served Ministers for only one term and had left, obviously, they will not be entitled to claim any benefit. But, several of them have been continuously re-employed except for small breaks which shows that they have been found to be efficient and their services are found to be necessary. In the circumstances the quashing of the Rules by the Tribunal will not come in the way of any Rules or scheme being made by the Government enabling absorption in the case of those who have served either for 10 years or as special case for those who have worked not less than 2,400 days in a block period of 10 years. Even those who have not completed 10 years of contract service but who are continued in contract employment may be considered for absorption on completion of that period. We make it clear that ultimately, it is for the State Government to prescribe the minimum period required for absorption, while framing the scheme, provided such period is not arbitrary and is in consonance with the period that is prescribed for absorption/regularization by the Government in other cases".
84. The Tribunal relied on the judgment of the Apex Court in the case of Suvarnamalini and another and held that action of the Government in absorbing the services is legal and in accordance with law laid down by the Supreme Court in similar case.
85. In the instant case the employees had not put in ten years of service, on the day the Absorption Rules came into force under which they were absorbed. Therefore, the law laid down by the Supreme Court in Suvarna Malini's case has no application. However, even otherwise in view of what has been laid down by the Apex Court in Umadevi's case at para 54 that those decisions which run counter to the principle settled in Umadevi's case or in which directions running counter to what they have held herein are given, will stand denuded of their status as precedents. Directions issued in the said decision runs counter to the law laid down and declared by the Constitution Bench of the Apex Court. Therefore, they ceased to enjoy the status as a precedents and therefore, that judgment cannot be relied on as a precedent. Therefore the Tribunal has relied on the judgment of the Apex Court which ceases to be binding precedent notwithstanding such a declaration by the Constitution Bench in Uma Devi's case. Therefore that reasoning is patently illegal.
86. Though all these persons possessed requisite qualification and were appointed against sanctioned post, their recruitment and appointment is not in accordance with law. Their case would not fall under para 53 in Uma Devi's case because, to have the benefit of that exception carved out by the Apex Court, not only the person must have the requisite qualification and be posted against the sanction post, but he must be in continuous service in that post for a period of ten years and more than that without the aid or cover of the order of the Court. In the instant case notification for appointment on contract basis was issued on 23-11-1993. It is in pursuance of the said notification appointment was made on the contract basis. The appointment was for a period of 12 months only. The said contractual appointment has to come to an end on the expiry of 12 months period, unless extended. According to Rule 15, the maximum period for which the contract employment could be made is 5 years, at the end of which it cannot exist nor it can be extended. However, the Government order, notification, and the appointments were challenged before the Tribunal in Application No.22-23 of 1994 and other connected matters before the Karnataka Administrative Tribunal. The Government order, notification and the appointment were quashed/ set aside by an order dated 20-10-1994. Review petition RP Nos.91-378 of 1995 came to be dismissed on 25-7-1995, permitting continuance of the contract engineers till recruitment is made according to Rules. The Special Leave Petition filed against the said order was dismissed on 15-04-1996. The Special Rules were framed and it came into force on 14-1-1999. The said Rules were challenged and the Writ Petition was dismissed. Writ Appeal was filed. Thus, no recruitment took place in pursuance of the said Rules. By passing the said Rules, without erasing the unconstitutionality in the appointment of contract engineers, the said unconstitutional appointment was regularized by way of absorption, by enacting the Absorption Rules. Therefore the initial appointment is illegal from the inception. It is void ab initio. After holding that the order made in the original application does not require any substantial modification, as the appointment in question contravenes the provisions of Article 16 of the Constitution, the Tribunal held the said action is violative of the fundamental rights and is void. However, in its discretion it permitted the continuance of the appointees till the State Government act to erase the unconstitutionality and make proper appointments. They made it clear that the appointees are permitted to continue in service till the State takes steps to make a proper recruitment or appoint in terms of this order. Therefore, the intention of the Tribunal was not to regularize the appointments which were unconstitutional by permitting their continuance. The Tribunal had no such power. The Tribunal did not exercise its power to regularize these unconstitutional recruitment. It was in the nature of stop gap arrangement. To enable these persons to apply in pursuance of the notification to be issued according to Special Rules and participate in the recruitment proceedings, during the interregnum period as the Government needs their service they were permitted to continue, as all of them possessed the requisite qualification and had been appointed against a sanctioned post. Therefore no rights accrued to them in law by the Tribunal permitting their continuance till the regular recruitment took place. That period is described as litigious employment, which does not confer any right on the employees. Regularisation is permissible only if the appointment is irregular and not illegal and the employee has continued in that irregular employment for a period of 10 years continuously without the aid or cover of the order of the Court. None of those conditions are fulfilled in this case. The Tribunal directed the Government to erase the unconstitutionality. The Government framed the Rules with the intention of erasing unconstitutionality. But, strangely in the midstream they changed the course. After framing the Rules they decided to regularize the services of these employees by the impugned Rules by absorption.
87. When once the appointment of the persons who are absorbed under the impugned Rules was declared as unconstitutional by a judicial authority, which finding has attained finality, when an opportunity was given to the State to erase unconstitutionality in the said appointment, by the impugned Absorption Rules, persons whose appointment was declared as unconstitutional, illegal, by the Court, could not have been regularised. It amounts to regularising an unconstitutional appointment in disobedience to the constitutional mandate contained in Article 16(3) of the Constitution. Therefore the said impugned Rules instead of erasing the unconstitutionality, perpetuated the unconstitutionality and is also hit by Article 16(3) of the Constitution. Therefore, the Absorption Rules are unconstitutional and is liable to be struck down.
SUB JUDICE
88. The Tribunal dealing with the question whether the law declared by the Constitution Bench of the Apex Court in Umadevi's case is applicable to the case on hand or not, was of the view that it is not applicable, because the judgment of the Supreme Court in Umadevi's case, was rendered on 10.04.2006, whereas, the Absorption Rules were issued by the Government on 18.10.2002. The absorption of the applicants was also not sub-judice. Therefore as held by the Supreme Court in Umadevi's case, regularization made prior to 10.04.2006 need not be opened. Even after Umadevi's case, the Supreme Court in several cases has approved similar schemes of Absorption of ad-hoc or temporary employees. Therefore it was held that absorption of the applicants is not contrary to the decision of the Supreme Court in Umadevi's case.
89. It is clear the Tribunal has not noticed correctly what has been laid down by the Apex Court in Umadevi's case. In Umadevi's case in para 53 it is specifically held as
under: -
"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".
90. If on the day Umadevi's case was decided, if any regularisation is made and if the same is not challenged, they need not be reopened based on the said judgment. Therefore, it follows, if the regularisations made prior to Umadevi’ case was the subject matter of litigation or it is challenged in any forum, then the questions involved in the said litigation has to be decided in accordance with the law laid down by the Apex Court in Umadevi's case. The facts set out above clearly demonstrate that, when a Government Order was passed providing for recruitment of these engineers restricting the eligibility to engineers belonging to only 5 Districts of Karnataka, it was challenged immediately thereafter by filing an application before the Karnataka Administrative Tribunal. After contest the applications were allowed. Government Order was set aside and the appointments made under the Government Order were also set aside as unconstitutional and illegal. When a review petition was filed by persons who are affected by the said order, review petition was dismissed holding that no case is made out for setting aside the earlier order. The said orders have attained finality, as the Apex Court did not entertain challenge to the said order. In pursuance of the direction issued by the Tribunal in the said proceedings, the Special Rules were framed for recruitment of the very same persons giving weightage for the past service. The provision providing for weightage was challenged. It is during the pendency of the said Writ Petition challenging the Special Rules, Absorption Rules came to be passed. Immediately the Absorption Rules were challenged on the ground that the persons whose appointment was unconstitutional from the inception, whose appointment was set aside by the Tribunal on that ground are sought to be absorbed and regularised in the service by the Absorption Rules. Therefore, the appointment of all these engineers is subjudice on the day the Constitutional Bench delivered the judgment in Umadevi's case. As is clear from the aforesaid observations it is not a case of reopening of illegal or irregular appointments which are regularised by way of absorption which had attained finality. They are not sought to be reopened by virtue of Umadevi's case. It is a case where these appointments, regularisation and absorption were under attack from the first day of their appointment which was pending on the day Umadevi's case was decided. Therefore, the law laid down in Umadevi's case is applicable in deciding the legality of the appointment of these engineers who are absorbed under the Absorption Rules. Hence, the observation of the Tribunal that Umadevi's case has no application to the facts of the case is not correct.
REASONABLE CLASSIFICATION
91. The Tribunal dealing with the question whether the impugned Absorption Rules are violative of Articles 14 and 16 of the Constitution, held that to invoke the right of equality guaranteed by Article 14 and 16(1), the applicants and the private respondents should belong to the same class, as held by the Supreme Court in catena of decisions. The impugned Absorption Rules apply to Assistant Engineers and Junior Engineers who are appointed on contract basis pursuant to the scheme framed by the Government. In the case on hand, the applicants on one hand and the private respondents on the other hand belong to different classes. Consequently, they cannot claim right to equality vis-a-vis the Assistant Engineers and Junior Engineers who have put in long years of service. The private respondents have put in about 17 years of service now. The State Government in its wisdom has absorbed their services by denying all substantial benefits to them like seniority and pay. Therefore the Absorption Rules are not violative of Articles 14 and 16 of the Constitution. The only right which is applicable to the present case is the right of equality. The equality guaranteed by Article 16(1) is only an equality between the members of the same class of employees. The applicants and the private respondents stand on a different footing. Therefore the right of equality cannot be enforced in the present case.
92. The learned Advocate General as well as Sri P.S. Rajagopal, learned Senior Counsel, contended that, the persons who are sought to be absorbed into service constitute a class by themselves and therefore Articles 14 and 16 of the Constitution is not offended. All of them have been working continuously, they have acquired experience, now they are over aged and if they have to be uprooted from the post it would cause great loss to the Government and they will not be able to take any major developmental activities. Reliance is placed on the following judgment.
93. The Apex Court in the case of PRABODH VERMA AND OTHERS ETC. Versus STATE OF UTTAR PRADESH AND OTHERS reported in AIR 1985 SC 167 held as under:
"40. Article 14 of the Constitution forbids the State to deny to any person equality before the law or the equal protection of the laws within the territory of India. While Article 14 applies to all persons within the territory of India, Article 16 applies only to citizens of India. Clause (1) of Article 16 guarantees equality for all citizens in matters relating to employment or appointment to any office under the State. Thus, Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government (see Banarsi Dass and others VersusThe State of Uttar Pradesh and others). Today, the Government is the largest employer in the country and employment or appointment to an office under it is a valuable right possessed by citizens. Article 14, however, does not forbid classification. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the territory of India irrespective of differences of circumstances. It only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another if as regards the subject-matter of the legislation, their position substantially the same. By the process of classification, the State has the power to determine who should be regarded as a class for the purposes of legislation and in relation to a law enacted on a particular subject. The classification to be valid, however, must not be arbitrary but must be rational. It must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable nexus or relation to the object of the legislation. In order to pass the test,: two conditions have to be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation (see In re The Special Courts Bill, 1978 (1979) 2 SCR 476, 535: AIR 1979 SC 478 at P. 509).
41. If Ordinance No.22 of 1978 satisfies these two conditions it cannot be said to infringe the provisions of Article 14 nor would it then be violative of Article 16(1) for it is only when citizens are similarly circumstanced that they can claim equality of opportunity in matters relating to employment or to any office under the State. To afford equal opportunity in these matters to those not similarly circumstanced would be to treat unequals as equal and would violate Article 14.
42. The first question which, therefore, arises is
"Whether there is any intelligible differentia which distinguishes teachers put in the reserve pool by Ordinance No.22 of 1978 from other applicants for posts of teachers in recognized institutions?"The reserve pool teachers were those who had come forward at a time when the teachers employed or a large majority of such teachers, in the recognized institutions, had gone on an indefinite strike and had continued the strike even after it had been declared illegal. Had the strike continued almost all the recognized institutions in the State would have had to close down putting the students to great hardship and suffering and causing a break in their education. It was in these difficult and trying times that the reserve pool teachers came forward to man the recognized institutions. Presumably, it was this that brought about a settlement of the strike, It must be borne in mind that the reserve pool teachers joined the recognized institutions during the period of the strike in circumstances in which they exposed themselves to great hostility from the striking teachers. They, therefore, did so running a certain amount of risk for there is always a possibility of a strike turning violent. Yet another hazard they faced was that, were some of the reserve pool teachers to apply later for the posts of teachers in a recognized institution which had fallen vacant and were to be selected under section 16-E of the Intermediate Education Act, they would have had to work together with those teachers who had gone on strike and had been taken back and they would then have to face their hostility. The assumption made by the High Court that the appointment of reserve pool teachers to the vacancies which had occurred blocked the chances of promotion of those working in the Licentiate Teacher's Grade was actually not correct Sub-section (2) of section 4 of U.P. Ordinance No.10 of 1978 as also of U.P. Ordinance No.22 of 1978 expressly provided that the reserve pool teachers were to be appointed only to those vacancies in recognized institutions which were to be filled by direct recruitment. There was thus no question of a vacancy to be filled by promotion being filled by any teacher in the reserve pool or of such reserve pool teachers blocking the chances of promotion of other teachers working in the Licentiate Teacher's Grade in recognized institutions. The reserve pool teachers were originally appointed during the period of the strike under U.P. Ordinance No.25 of 1977 and it should be borne in mind that this Ordinance expressly required appointment of persons possessing requisite qualification. All the reserve pool teachers thus possessed the requisite qualifications and this fact is not disputed before us. In the course of its judgment the High Court has also proceeded upon the basis that educational institutions in the State of Uttar Pradesh did not constitute an essential service but had been declared so by the notification dated December 24, 1977, issued under the U.P. Essential Services Maintenance Act, 1966. This assumption was also not correct. As pointed out earlier, sub-clause (ii) of clause (a) of section 2 of the U.P. Essential Services Maintenance Act, 1966, made service under an educational institution recognized inter alia by the Board of High School and Intermediate Education, Uttar Pradesh an essential service. The said notification dated December 24, 1977, issued under section 3(1) of that Act was to prohibit strikes in service under educational institutions. An important factor in considering whether the reserve pool teachers could constitute a separate class having an intelligible differentia distinguishing them from other applicants for the posts of teachers in recognized institutions is that usually every year the number of vacancies which occur in recognized institutions is more than the number of reserve pool teachers. Admittedly, the vacancies which were sought to be filled by U.P. Ordinance No.10 of 1978 and thereafter by U.P. Ordinance No.22 of 1978 were more than the number of reserve pool teachers. These vacancies had occurred within a few months of the strike being settled. Almost all who applied for these posts and were not in the reserve pool must have been qualified to be appointed to posts in recognized institutions during the pendency of the strike. None of these applicants, however, came forward to join a recognized institution during that period as the reserve pool teachers did. The other applicants for the posts of teachers, therefore, stood in a different class from the reserve pool teachers and it would be wrong to equate these two classes together as forming just one class.
44. The reserve pool teachers thus formed a separate and distinct class from others applicants for the posts of teachers in recognized institutions. The differentia which distinguished the class of a reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions is the service rendered by the reserve pool teachers to the State and its educational system in a time of crises and this differentia bears a reasonable and rational nexus or relation to the object sought to be achieved by Ordinance Nos.10 and 22 of 1978 read with the Intermediate Education Act, namely, to keep the system of High School and Intermediate Education in the State functioning smoothly without interruption so that the students may not suffer a detriment. Those two classes of persons, namely, the class of reserve pool teachers and the class of other applicants for the posts of teachers in the recognized institutions, are not similarly circumstanced and, therefore, there cannot be any question of giving these two classes of persons equality of opportunity in matters relating to employment guaranteed by Article 16(1) of the Constitution. Thus, neither Article 14 nor Article 16 (1) of the Constitution was violated by the provisions of either U.P. Ordinance No.10 of 1978 or U.P. Ordinance No.22 of 1978”.
94. The Apex Court in the case of KATHI RANING RAWAT Versus STATE OF SAURASHTRA reported in AIR 1952 SC 123 atparas 8, 46 and 47 has held as under:-
"8. In the present case, the affidavit filed on behalf of the respondent State by one of its responsible officers states facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nose-cutting and murder by marauding gangs of dacoits in certain areas of the State, and these details support the claim that "the security of the State and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places in separate courts of law expeditiously." The statement concludes by pointing out that the areas specified in the notification were the "main zones of the activities of the dacoits as mentioned above." The impugned Ordinance having thus been passed to combat the increasing tempo of certain types of regional crime, the two-fold classification on the lines of type and territory adopted in the impugned Ordinance, read with the notification issued thereunder, is, in my view, reasonable and valid, and the degree of disparity of treatment involved is in no way in excess of what the situation demanded.
46. It will be noticed that section 11 of the Saurashtra Ordinance, like section 5 (1), West Bengal Special Courts Act, refers to four distinct categories, namely, "offences", "classes of offences", "cases" and "classes of cases" and empowers the State Government to direct any one or more of these categories to be tried by the Special Court constituted under the Act The expressions "offences", "classes of offences" and "classes of cases" clearly indicate and obviously imply a process of classification of offences or cases. Prima facie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" or "classes of cases." The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offences. In short, the classification implied in this part of the sub section has no reference to, and is not directed towards, the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purpose of the particular legislation as recited in the preamble.
47.I have no doubt in my mind that the surrounding circumstances and the special features mentioned in the affidavit referred to above furnish a very cogent and reasonable basis of classification, for they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the maintenance of public order, the preservation of public safety, the peace and tranquillity of the State. Such a classification will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a Special Court for trial under the special procedure. Persons thus sent up for trial by a Special Court according to the special procedure cannot point their fingers to the other persons who may be charged before an ordinary Court with similar offences alleged to have been committed by them in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals.
95. Article 14 of the Constitution forbids the State to deny to any person equality before the law or the equal protection of the laws within the territory of India. Thus, Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. Today, the Government is the largest employer in the country and employment or appointment to an office under it is a valuable right possessed by citizens. Article 14, however, does not forbid classification. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the territory of India irrespective of differences of circumstances. It only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another if as regards the subject-matter of the legislation, their position is substantially the same. By the process of classification, the State has the power to determine who should be regarded as a class for the purposes of legislation and in relation to a law enacted on a particular subject. The classification to be valid, however, must not be arbitrary but must be rational. It must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable nexus or relation to the object of the legislation. In order to pass the test,: two conditions have to be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation.
96. In the instant case, the question is, whether the classification is based on an intelligible differentia and does it have any rational nexus or relation to the object
sought to be achieved?
EQUALITY
97. The effect of impugned rules is, that all the persons who are working on contract basis whose names find place in the list appended to the said rules were recruited to the services of the Government and posted as Assistant Engineers and Junior Engineers in the vacancies which was prevailing on that date. The mode of recruitment adopted is absorption/regularisation. It is settled legal position that no person could be appointed even on temporary or adoc basis without inviting
applications from all eligible candidates. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. However, the said appointment, as is clear from the Government Order as well as from the notification was only for a period of 12 months. After expiry of the said 12 months period or after the expiry of any extended period, the same would come to an end. A contractual appointment comes to an end at the end of the contract. It is also a term of the contract as well as the law recruiting persons on contract basis. Therefore, when such persons are recruited into service on a permanent basis, again, the law should be followed, i.e., all persons who are eligible for being considered for appointment to the said post should be given an opportunity by inviting applications. That is the mandatory requirement of Article 14 and 16 of the Constitution. If that procedure is not followed, such a course violates the mandate of Article 14 and 16 of the clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. However, the said appointment, as is clear from the Government Order as well as from the notification was only for a period of 12 months. After expiry of the said 12 months period or after the expiry of any extended period, the same would come to an end. A contractual appointment comes to an end at the end of the contract. It is also a term of the contract as well as the law recruiting persons on contract basis. Therefore, when such persons are recruited into service on a permanent basis, again, the law should be followed, i.e., all persons who are eligible for being considered for appointment to the said post should be given an opportunity by inviting applications. That is the mandatory requirement of Article 14 and 16 of the Constitution. If that procedure is not followed, such a course violates the mandate of Article 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.
DISCRIMINATION
98. Now by virtue of the impugned rules, whether it is called as a new appointment by way of absorption or regularization, a class of engineers are excluded from consideration. They are discriminated. Now by resorting to the impugned Rules virtually recruitment/appointment is made by way of absorption. It is per se illegal and discriminatory as far as those engineers who had the requisite merit and also experience. There is no intelligible differentia to treat these contract engineers as a class by themselves so as to exclude the other engineers who possess requisite qualification from being appointed as engineers in the State service. The condition stipulated in the Government Order made it clear that the employment on contract basis is for a period of one year. It is purely temporary. The same may be cancelled or terminated at any time without issuing any notice. The persons who are appointed on contract basis are not entitled for permanent appointment, absorption in service, retirement benefits, yearly increments. They were required to give consent and execute indemnity bond mentioning the aforesaid conditions, which all of them have done. These contract engineers, no doubt, form a class by themselves, a class of unconstitutional appointees, persons who are recruited contrary to law, a class of persons whose appointment is illegal from the inception, a class of persons whose appointment was declared as unconstitutional by competent judicial forum, like the Tribunal. A class of persons whose appointment was set aside by the Tribunal, which has been upheld by the Supreme Court. A class of persons whose appointment came to an end and to be removed. Thus they form a class of persons whose appointments were struck down on the ground that the appointment contravenes the provisions of Article 16 of the Constitution of India. They also form a class of persons whose continuance was permitted by the Tribunal till the State Government acts to erase unconstitutionality and make proper appointments. They are in litigious employment, which does not confer any right on them. Therefore, when no right is conferred on them, when it is expressly stated in the Government Order that they are not entitled for absorption in service and also not entitled for permanent appointment and the said appointment may be cancelled or terminated at any time without hearing, notice, they could not have been absorbed in service contrary to the terms of their appointment. The State at the first instance cannot create an artificial class, bypassing the law and then contend that they form a class by themselves and thereafter contend that equality clause contained in Article 14 of the Constitution is not applicable to them and they have to be treated separately. If this modus operendi is permitted, then Article 14 of the Constitution would be rendered illusory. Then it would encourage the State to nullify the constitutional scheme by flagrant violation of Articles 14, 15 and 16, in the matter of public employment. Then regularisation and absorption would become common method of allowing back-door entries to be regularised. If the initial appointment is bad, it cannot get sanctified at a later stage by regularisation or absorption. A subsequent action/development cannot validate an action which was not lawful at its inception. The illegality strikes at the root of the order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. A right in law exists only when it has a lawful origin. There is no nexus between classification and the object sought to be achieved.
99. The object sought to be achieved by the Absorption Rules is two fold. Firstly, to nullify the effect of the order of the Tribunal and the Supreme Court, which had declared that the appointment of these engineers as violative of Articles 14 and 16 of the Constitution of India and consequent striking down of their appointment. Secondly, to appoint the same engineers in the same post in which they were working, thus perpetuating the unconstitutionality in their appointment instead of erasing the unconstitutionality in their appointment as directed by the Tribunal in its earlier order. It is a legislative device adopted to absorb into service who were appointed illegally. A mode adopted to regularise the services of those persons whose appointment from the inception is illegal. It is a fraud on power. It is a case of colourable exercise of power and fraud on Constitution.
100. Therefore, the classification is not founded on an intelligible differentia. On the contrary it is arbitrary and unconstitutional. Similarly, the object sought to be achieved is to over come a binding decision of the Tribunal and the Supreme Court. Rule making power is abused by the State Government to achieve the aforesaid object. There is no rational nexus or relation between the classification and the object sought to be achieved. Therefore, these impugned rules are violative of Article 14 and 16 of the Constitution. The absorption is illegal and does not confer any right on the persons absorbed to hold the post to which they are absorbed.
SUBORDINATE LEGISLATION
101. A subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. In addition to the grounds on which a statute could be challenged, a subordinate legislation could be challenged on the ground that it does not conform to the statute under which it is made. It could also be challenged on the grounds that it is arbitrary to some other statute, manifestly arbitrary and also that the legislature never intended to make such Rules. It is because the subordinate legislation must yield to plenary legislation. If the subordinate legislation fails to take into account the very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or the Constitution then it can be struck down on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 and 16 of the Constitution. It is because the power vested in the Government to make subordinate legislation is a power which has got to be exercised in public interest in a reasonable way in accordance with the spirit of the Constitution.
102. The Chief Engineers of Water Resource Development Organisation Committee, Asst. Engineers of Irrigation Department issued notification dated 15.6.1991 inviting applications from eligible candidates for the post of Asst. Engineers for UKP under Karnataka State Civil Services (Recruitment Committee) 1982 in consonance with recruitment Rules 1973 and Irrigation Cadre and Recruitment) rules published in 1989 and amended from time to time. However, on the pretext that there is the urgent need for filling up the large number of vacancies in the Engineering Cadres in Upper Krishna Project, they decided to cancel the process of recruitment of 300 Assistant Engineers already initiated by the Chief Assistant Engineer, Water Resources Development Organisation through its Notification dated 18th June 1992. Thereafter, the Government constituted a Recruitment Committee through its Notification dated 19th October 1992. In pursuance of it, the State Govt, by letter dated 22.7.1993 directed the Engineer in chief cum Ex. officio Special Secretary, Irrigation Department to exercise the power under Section 15 of the Karnataka Civil Service (General Recruitment) Rules 1977 which provides for contract appointment in certain contingencies, to make contract appointments of 320 Asst. Engineers and 120 Junior Engineers in UKP and that the process of such recruitment be commenced by obtaining the list of candidates locally from the employment exchanges. Engineer In-Chief and Ex-Officio Special Secretary to the Government, Irrigation Department issued a notification dated 23.11.1993 calling for applications to fill up 320 Assistant Engineers in terms of the Rule 15 of the KCSRs (General Recruitment) Rules enclosing the statement showing the details of appointment of Asst. Engineers for a period of one year.
103. The Government Order, the notification and the appointments were challenged before the Tribunal. All of them were set aside. A review petition filed to review the said order came to be dismissed. The reason for setting aside the said proceedings are, that it is contrary to the existing Rules, it is unconstitutional and violative of Article 14 and 16 of the Constitution. All these order attained finality.
104. The Tribunal in its discretion permitted the continuance of the appointees till the State Government acts to erase the unconstitutionality and make proper appointments. They clarified that these appointees shall continue the services till the State takes steps to make proper recruitment or appoint in terms of this order. It is thereafter the Government of Karnataka made the Karnataka Public Works (Irrigation Service) (Recruitment of Assistant Engineers and Junior Engineers) (Special) Rules, 1998.
105. The said Rules were also challenged. It is during the period of challenge to the said Rules, the impugned Absorption Rules came to be passed, to absorb into service the very same persons whose appointment was struck down on the ground of the appointment being unconstitutional and against the existing Rules. The State has taken recourse to this sub-ordinate legislation with a non obstante clause, to regularise the services of an artificial class created by them, thus excluding again persons who are eligible and similarly placed as that of the absorbed employees from public employment. These impugned rules run counter to the existing earlier rules as well as Special Rules framed for the specific purpose.
NON OBSTANTE CLAUSE
106. The Government seems to think that by invoking a non-obstante clause, their action would be beyond judicial review. In so far as the use of non-obstante clause to by-pass the existing law is concerned, the law on the point is well settled. A clause beginning with a non-obstante clause is sometimes appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. Thus a non-obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non-obstante clause or to override it in specified circumstances. Even though the non-obstante clause is a very widely worded, its scope may be restricted by construction having regard to the intention of the Legislature gathered from the enacting clause or other related provisions in the Act. This may be particularly so when the non-obstante clause does not refer to any particular provision which it intends to override but refers to the provisions of the statute generally. But the wide meaning of the non-obstante clause cannot be curtailed when the use of wide language accords with the object of the Act. However, the adoption of a non-obstante clause would not give freedom to the legislature or to the rule making authority to enact a law which is contrary to the constitutional scheme and the statute governing the field. If there is a law already governing the field, if that law is inadequate or if that is causing any inconvenience in its implementation, at the same time if the legislature do not want to repeal the said law and they want to enact a law to meet a particular situation to which the law in force is not suitable, without repealing the law in force by invoking a non-obstante clause they could enact a law which meets the situation. But, the enacting law also should be in accordance with the constitutional scheme. The said law also could be attacked on all the grounds on which the earlier law could be attacked. The only ground on which the said law cannot be attacked is on the ground that the said law is not inconsistent with the earlier law. If the earlier law is constitutionally valid and if the law enacted with a non-obstante clause is constitutionally invalid, the very mode of invoking the non-obstante clause to over-ride a law which is constitutionally valid would render that law arbitrary and without any further proof the same is liable to be struck down as violative of Article 14 of the Constitution. Viewed from that angle the law which govern the field was in tune with Articles 14 and 16 of the Constitution. The Absorption Rules are in conflict with Articles 14 and 16 of the Constitution. A non-obstante clause would not save the impugned Rules from the vice of unconstitutionality. Therefore, the impugned Rules are liable to be struck down on that score.
SPECIAL CIRCUMSTANCES
107. Yet another reason given is, the circumstances under which these appointments came to be made. When the selection was made after obtaining names from jurisdictional Employment Exchange and after following reservation policy, the public interest warranted absorption of these respondents as they had to complete the time bound project. No regular employee was willing to work in the project area. We have already pointed out that in the statement of objections filed, the Government did not put forth that case. It is the appointees who put forth the case. It is from the material we find some observations that the Engineers appointed in the Mysore State, were not willing to work in UKP and therefore it necessitated this recruitment. As pointed out earlier, absolutely there is no material on record to substantiate this contention. We repeat, if that was the reason, by issuing a paper advertisement calling for applications through out the Country, if persons from other areas were not willing to work, they could have recruited very same persons in which event, they would have complied with the Constitutional requirement prescribed for satisfying the requirement of Article 16. Therefore in our view, it is only a lame excuse given to exclude other eligible candidates from competing for the said posts. This aspect has been completely missed by the Tribunal. The Tribunal took judicial notice of the fact that due to hard summer and lack of basic amenities in North Karnataka Districts like Gulbarga, Bidar, Bijapur, Bellary and Raichur, a person staying in South Karnataka would not be inclined to stay and work in those areas. Either he would go on leave or get transferred and ultimately the work would suffer. We do not understand the basis for the Tribunal to take judicial notice as aforesaid. It is only the imagination of the Tribunal. Absolutely no material is placed on record in support of the said plea. In fact, no such plea is taken in the statement of objections filed by the State.
108. Yet another reason given by the Tribunal is, under the impugned rules they have not regularised the irregular appointment. They provide for absorption without giving any benefit of past service for the purpose of pay, seniority, selection and scale of pay. It is the case of emergency recruitment and therefore it stands totally on a different footing as compared to regular recruitment. They have relied on the averments in the affidavit of the Secretary to the Government pointing out the urgency. Merely because the persons who are absorbed were not given the past benefit, that would not take away the unconstitutionality in their appointment. The appointment which is illegal from the inception cannot be validated retrospectively, is the law declared by the Apex Court and the said finding recorded by the Tribunal runs counter to the law declared by the Apex Court. Therefore, we are afraid, on the said grounds, the unconstitutional appointment cannot be upheld. If it is done, that is the end of rule of law.
FUTILE WRITS
109. The last reason given by the Tribunal is, if the Absorption Rules were held to be unconstitutional, the applicants have sought for a writ of mandamus to consider their case. Taking into consideration the age they have mentioned in the causetitle to the application, with the passage of time, all of them have become age barred. Therefore no effective relief could be granted to them and the Court will be issuing futile writ. If a litigant approaches the Court, on the date he approaches the Court, he has enforceable right. Merely because, the Courts take their own time to decide the dispute and in the mean while they get aged, in the end of the day, they cannot be told that they are age barred, though they had made out a good case, the Court is not extending any relief. If the applicants are not to be blamed for this unfortunate situation, if they possess requisite qualification, if they were eligible for being selected to the post on the date they filed applications, the proper course would be to grant them relief and direct the Government to extend the benefit of age relaxation as even the persons appointed would also be age barred. But the Court is not powerless in this aspect. In the facts of this case, to do complete justice between the parties, if the age is coming in the way, as the Government has ample power to relax the age, appropriate direction could be issued to relax the age both to the applicants and to the respondents who were party to the litigation, so that their claims could be considered on merits and relief to which they are legitimately entitled to is not denied to them on this technical ground of age bar. Therefore, we do not see any justification in the said reasoning of the Tribunal.
HUMAN PROBLEM
110. The Tribunal has held that in the present case, not only a question of law but also a human problem arises, inasmuch as the private respondents have served the Department for nearly 17 years and if they are not regularised and treated as regular servants, then they will not be able to get themselves engaged anywhere else and at the same time, their experience in implementation of project works will be a great loss to the Government. In the present case, selection was made after obtaining names from the jurisdictional Employment Exchange and after following the reservation policy. Public interest warranted absorption of the private respondents as they had toiled hard to complete the time bound and World Bank aided project. If their appointment is to be set aside at this juncture, they and their family would come to the street. Therefore, their appointment should be not be disturbed. This argument is also considered by the Apex Court in the Constitution Bench judgment and they categorically declared that, that cannot be aground for regularising illegal appointment.
111. While dealing with the question of human problem which the Court shall take note of, the Apex Court in the aforesaid Umadevi's judgment held as under: -
“44. the courts are swayed by the fact that the concerned person 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 eyes open. It may be true that he is not in a position to bargain - not at arm's 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, it will be creating another mode of public appointment which is not permissible.
47. When a person enters a temporary employment or gets employment as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees."
112. Further repelling the argument that the State action in not regularising the employees was not fair/within the framework of the rule of law compels the State to make appointments as envisaged by the Constitution and in the manner stipulated under the statutory provisions. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about the pendency of proceedings in tribunals and Courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It was further held, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution.
113. It is in this background, the argument of human problem canvassed in this case requires to be considered. The human problem is a creature of the State by not following the very Rules which are framed by them for the same persons. When the State bypasses the Rule made by it and creates unwarranted human problem, they cannot pass one more set of Rules which are arbitrary, unconstitutional for the purpose of solving such human problem. It is only a lame excuse, well thought of, to perpetuate an illegality. By doing so the State wants to create another mode of public employment which is not provided for under our constitutional scheme and which in fact is contrary to the constitutional scheme. In this regard the State is ill advised. The State cannot be permitted to indulge in such illegal acts under the cover of a legislative device which is nothing but a colourable exercise of such rule making power conferred. It runs counter to Articles 14 and 16 of the Constitution. It is unconstitutional, arbitrary. The human problem which is put forth is only a shield to protect the said unconstitutional law from being attacked. The Court can pierce through the curtains and if the said argument is upheld, it only encourages the State to bypass all constitutional requirement and the statutes governing recruitment to the Government service. Such conduct on the part of the Government cannot be countenanced by the Courts.
FINAL CONCLUSION
114. From the aforesaid discussion, it is clear the way the Government of the day made appointments for the U.K.P Project demonstrate that they have no respect for the Constitution, the laws passed by the legislature and the Special Rules passed by them. The Government has abused its constitutional power conferred under Article 162 of the Constitution of India to deprive meritorious and similarly placed engineers in the State of Karnataka from seeking public employment. They have also abused the rule making power to deny equal opportunities in spite of the Special Rules were framed to meet the contingency. The impugned Rules are framed to set at naught a binding judicial pronouncement which had the seal of the Apex Court. This only shows the Government of the day thinks that they are supreme. What they say is the law, Constitution and the laws passed by the legislature are all sub-servient to their whims and fancies. With impunity the order of the Tribunal is breached. This is not what is expected of a Government which is wedded to the rule of law, and which has to work under the constitutional scheme. They have exercised their power in contravention of the constitutional provisions in an arbitrary, unreasonable, whimsical manner. This is not what is expected of a responsible Government in a democratic set up which is expected to treat all its subjects alike.
115. In so far as the impugned order passed by the Tribunal, it is devoid of any merit. It has extracted all the judgments of the Supreme Court, which the parties have relied on, without proper appreciation and application of mind, has refused relief to the applicants. The Apex Court in UMA DEVI's case, after declaring the law has categorically held that the judgment of the Supreme Court which are inconsistent with the said judgment ceases to be binding precedent. This observation has not been noticed by the Tribunal. If only it had noticed, it would not have taken trouble of citing those decisions which have lost the precedential value because of the Constitution Bench judgment. The impugned Rules framed not only offends Article 16 (3) of the Constitution, it also offends Articles 14 and 16 of the Constitution and offends the law declared by the Apex Court. The impugned judgment runs counter to its earlier judgment. The earlier judgment was not interfered with by the Supreme Court and it has attained finality. The said judgment is equally binding on the Tribunal. The Absorption Rules were challenged on the same grounds as the earlier Government order was challenged. The Absorption Rules suffered from the same vice as the Government Order also suffered. Unfortunately, the Tribunal did not comprehend properly the real issues involved in the case. In spite of the law declared by a Constitution Bench of the Apex Court directly covering the issues involved in the case, it chose to ignore the same on the ground it is not applicable, which is not proper. Therefore, the impugned order is liable to be set aside. Hence, the Absorption Rules as well as the impugned order of the Tribunal are set aside. Hence, we pass the following: -
ORDER
1. All the writ petitions challenging the Karnataka State Civil Services (Absorption of Assistant Engineers and Junior Engineers appointed on contract basis and ad hoc basis in the Water Resources Services) (Special) Rules 2002, are allowed, setting aside the order passed by the Karnataka Administrative Tribunal dated 9th April 2010 in Application No.3005/2003 and other connected matters.
2. The Karnataka State Civil Services (Absorption of Assistant Engineers and Junior Engineers appointed on contract basis and ad hoc basis in the Water Resources Services) (Special) Rules 2002, are contrary to Article 16(3) as well as Article 14 and 16 of the Constitution of India as void ab initio, and accordingly it is struck down.
3. The respondent shall initiate recruitment process to the posts which were absorbed under the impugned Absorption Rules forthwith and complete the same within a period of six months from today and the outer limit being one year from today. All the persons absorbed / appointed / regularised under the impugned Rules are permitted to continue in service till the appointments are made in pursuance of the recruitment in terms of Karnataka Public Works (Irrigation Services (Recruitment of Assistant Engineers and Junior Engineers) (Special) Rules, 1998, within a period of one year, whichever is earlier.
4. The eligibility for applying as against these vacancies would be that all persons who possess the requisite educational qualification as well as age as on 11.2.1999, the day on which the aforesaid special rules came into force. Only those persons who possess the requisite qualification as on 11.2.1999 shall be considered for filling up those vacancies which have been filled up under the impugned Absorption Rules.
Parties to bear their own costs.
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