Judgment:
ORDER
Ram Mohan Reddy, J.
1. The petitioner aggrieved by the order dated 03.09.2009 Annexure-N of the respondents, rejecting his request for appointment on compassionate grounds, consequent upon the death of his father on 01.07.2007 while serving as a driver in the 3rd respondent/City Municipal Council, Tumkur, has presented this petition.
2. Indisputably the petitioner's father was a driver on daily wages in the 3rd respondent/City Municipal Council as on 01.07.2007 the date of his death. Although it is contended that the petitioner's father was appointed to a vacant post of driver by drawing from the Employment Exchange, said to be one of the modes of recruitment to permanent posts in the 3rd respondent/City Municipal Council, there is no material to support the contention.
3. Recruitment, to vacant posts in the third respondent/City Municipal Council is regulated by the Karnataka Municipalities (Recruitment of Officers and Servants) Rules, 1971 (for short, 'the Rules'). Rule 3 provides for method of recruitment, minimum qualification and period of probation in respect of posts enumerated in Schedule 1. Sl. No. 1 to Schedule I Part B (Other posts) relates to Drivers and the method of recruitment reads thus:
'By direct recruitment by select on the basis of an interview' and the minimum qualification and period of probation is current driving licence, practical experience of 3 years and 3 years First Aid Certificate.
4. Rule 4 provides the procedure for appointment and states that the appointment to municipal services shall be made in case of recruitment by selection, after giving such adequate publicity to the recruitment as the Appointing Authority may determine, in I he order of merit of candidates as determined by the Commission or the Appointing Authority as the case may be.
Sub-rule (2) of Rule 4 reads thus:
(2) Notwithstanding anything contained in these rules in respect of any service or post, the Appointing Authority may temporarily fill up. by appointment after an interview of a suitable candidate recruited through the employment exchange, any vacancy relating to a post which is required to be filled by direct recruitment where selection to the post has not been officially made and there is likelihood of undue delay in making direct recruitment to the post or where the candidates selected for the post as per these rules has not yet joined duty: provided that (i) qualifications prescribed for recruitment to the post; and (ii) such appointment shall not be for a period exceeding one year and shall be only after a requisition has been sent to the Appropriate Recruiting Authority for recruitment to the post.
N.B. - A candidate temporarily appointed tinder this Sub-rule shall not have any preferential claim for regular appointment. Further such candidate on expiry of one year or the appointment of the direct recruit selected in accordance with the rule of recruitment applicable to the post, whichever is earlier, be discharged from service.
[Provided further that the conditions other than the conditions that the selection shall be through the employment exchange and that the candidates shall possess the prescribed qualification shall not apply to such appointment of persons belonging to Scheduled Castes and Scheduled Tribes to make up the deficiency in the percentage of vacancies reserved for such castes and classes under Rule 5).
5. Rule 7 provides for lower and upper age limit of 18 years and 35 years respectively for appointment, of persons belonging to the Scheduled Castes and Scheduled Tribes and 30 years for other persons, as on the last date fixed for receipt of applications in respect of any post or classes of posts.
6. Rule 8 provides for conditions relating to suitability, fitness and certificate of character of the candidates. While, Rule 11 provides for relaxation of rules.
7. Having regard to the aforesaid rules relating to recruitment in the 3rd respondent/City Municipal Council, it is needless to state that it is not the case of the petitioner that his father, since deceased, was appointed to the substantive vacant post of driver by selection after adequate publicity of recruitment in compliance with Rule 4 of the Rules, However, assuming that the petitioner's father was appointed as a driver in the 3rd respondent/City Municipal Council through the Employment Exchange, that employment being in accordance with Sub-rule (2) of Rule 4 cannot be construed as an appointment by direct recruitment, but an employment to temporarily fill up the post of driver until such time selection to the said post by direct recruitment is initiated and concluded. The petitioner's father cannot be said to have acquired a right to regular appointment or preferential claim, merely because he was appointed as a driver through the Employment Exchange. Moreover, other provisions of the Rules relating to the age limit, conditions regarding suitability, fitness and certificate of character of candidates etc., were not complied with.
8. The contention of the learned Counsel for petitioner that the process of selection of petitioner's father to the post of driver does not go to the root of the process and could be regularised in the light of paragraph 53 of the Constitution Bench decision in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. reported in : AIR 2006 SC 1806, is without merit.
9. The clarification in paragraph 53 of the decision is as regards regularisation of irregular appointments (not illegal appointments) as explained in the cases of S.V. Narayanappa; R.N. Nanjundappa; and B.N. Nagarajan referred to in paragraph 15 therein. Their Lordships extracted the observations in R.N. Nanjundappa v. T. Thimmaiah reported in : (1972) Volume 1 SCC 409 and meaning of words 'regular' and 'regularisation' in B.N. Nagarajan v. State of Karnataka reported in : (1979) 4 SCC 507 to hold thus:
16. In B.N. Nagarajan v. State of Karnataka (supra) this Court clearly held that the words 'regular' or 'regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation 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 recognised 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 regularised and that is alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.
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 regularise 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.
10. In the light of the aforesaid authoritative pronouncement of the Apex Court and applying the same facts to this case it cannot be said that, the employment of the petitioner's father as a driver in the 3nl respondent/City Municipal Council does not go to the root of the process of recruitment in accordance with the Rules, so as to regularise the employment and entitle the petitioner to the benefit of compassionate appointment.
11. The Apex Court, repelled the contention that dependants of deceased daily wage/ad hoc workers, could invoke the rules for regularisation of the services of the deceased, in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Ors. reported in : AIR 2009 SC 3121, observing thus:
19. XXXX.
The said case, in our opinion, would have no application to the present case. These observations only lend support to the presumption as to a regular need for work of the daily wage worker but not as to the existence of a regular vacancy in this respect. In any event, it is one thing to say that by reason of such contingencies the services of the work charged employee should be directed to be regularized but it is another thing to say that, although they were not, absorbed in the permanent cadre, still on their deaths, their dependants would be entitled to invoke the Rules.
12. Thus, the petitioner, a dependant of the deceased, cannot invoke the Rules to regularise the service of the deceased although he was not absorbed in the permanent cadre of driver, so as to claim a right to compassionate appointment.
13. The next contention that the petitioner's father having worked as a driver on daily wages since 04.02.1993 and died in harness on 01.07.2007 confers permanency and hence the petitioner is entitled to compassionate appointment is without merit. The identical contention when advanced before the Apex Court was repelled in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and Ors. reported in : AIR 2009 SC 3121, following the decision of the Constitution Bench in Umadevi's case (supra) and in Indian Drugs & Pharmaceuticals Ltd. v. Workmen reported in : (2007) 1 SCC 408 as well as in I.G. (Karmik) v. Prahalad Mani Tripathi reported in : (2007) 6 SCC 162. Their Lordships observed thus:
24. As to the first submission above, it is worth mentioning that judicial decisions unless otherwise specified are retrospective. They would only be prospective in nature if it has been provided therein. Such is clearly not the case in Umadevi (supra). Accordingly, even though the cause of action would have arisen in 2002 but the decision of Umadevi (supra) would squarely be applicable to the facts and circumstances of the case. Secondly, before a person can claim a status of a government servant not only his appointment must, be made in terms of the recruitment rules, he must otherwise fulfil the criterion therefor. Appointment made in violation of the constitutional scheme is a nullity. Rendition of service for a long time, it is well known, does not confer permanency. It is furthermore not a mode of appointment.
14. The last of the contentions that in identical circumstances, a learned single Judge of this Court in Smt. Meena v. The Directorate of Municipal Administration in Karnataka and Ors. in W.P. 11192/2006 D.D.28.05.2008 Annexure 'P', directed consideration of the representation for compassionate appointment, and hence similar relief be extended to the petitioner herein cannot be countenanced. A perusal of the decision, discloses that no ratio was laid down nor law declared, to be followed as a precedent. Moreover the facts of that case are not set out in the order Annexure 'P' so as to claim to be identical to the facts of this case.
15. In Quinn v. Leathern 1901 AC 495 (H.L.) Earl of Halsbury L.C. observed that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, therefore the generality of the expressions which are found there are not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authortty for what it actually decides.
16. The rejection of the petitioner's claim for compassionate appointment, by order dated 03.09.2009 Annexure-N of the 1st respondent, cannot be found fault with, Petition is without merit and is accordingly rejected.