Full Judgment
S.B. Sinha, C.J.
1. These four writ petitions involving common questions of law and factwere taken up for hearing together and are being disposed of by this common judgment.
FACTS
2. The petitioners in these writ petitions, approached this court, inter alia, forissuance of a writ of or in the nature of mandamus directing the respondents to pay untothem all monetary benefits including scale of pay and allowances of regular employeesand other benefits including increments, with interest, as also for confirmation in servicefrom their respective dates of joining.
3. The contention of the petitioners in these writ petitions is that they hadbeen appointed on a regular basis in terms of offer of appointment dated 19th March1991 on a starting basic pay of Rs. 1100/- on the pay scale of 1100-20-1400 1100-20-1400 in the year1991 but they had all along been paid a consolidated sum of Rs. 1500/-. The writpetitioners further contended that persons similarly situated had obtained reliefs againstthe respondents from Madhya Pradesh High Court, Rajasthan High Court and even a suitfiled in High Court of Punjab & Haryana had been decreed and the Special LeavePetitions filed by the respondents herein had been dismissed.
SUBMISSIONS
4. It was submitted that having regard to the terms and conditions ofappointment, on their having completed the period of probation, the writ petitionersbecame entitled, as a matter of right, to be confirmed in their services. It was urged thatas a conscious decision had been taken by the management appointing the petitioners,they cannot be permitted to resile there from. Our attention had been drawn to the factthat the respondent use one set of form of offer of appointment for regular appointeesand another for the ad hoc appointees. It as contended that in any event, an employeecannot be kept on probation for an unduly log period. Strong reliance in this regard hasbeen placed on Om Prakash Maurya v. UP Cooperative Sugar Factories Federation,Lucknow and Ors. (1986) 3 SCR 86, Ashok v. David, : AIR 1996 SC2165 and Union ofIndia and Ors. v. N. Hargopal and Ors., : (1987)ILLJ545SC .
5. The respondent is a 'State within the meaning of Article 12 of theConstitution of India and, thus, the learned counsel would contend, should act like amodel employer. Reliance, in this connection has been placed on S.K. Verma v. MaheshChandra and Anr. : (1983)IILLJ429SC .
6. Mr. V.P. Singh, the learned senior counsel appearing on behalf of therespondents, on the other hand, would submit that the petitioners were appointed throughbackdoor. Our attention in this connection has bene drawn to the statements made in thecounter-affidavit, from a perusal whereof it appears that the purported appointments hadbeen made without following the recruitment procedure laid down thereof. it had beencontended that the petitioners had been appointed by K.S. Kanwar and R.K. Khanna ontheir own, as regard whereto even the Finance and Accounts Departments were notinvolved.
7. At the relevant point of time, it appears, a ban of appointment had beenissued but despite the same, appointments of the writ petitioners have been made. In anyevent, the respondents would contend that when regular vacancies arose, all theemployees who had requisite qualifications, took their chance of being appointed andonly when they were unsuccessful, they filed the writ petition. The respondents have alsocontended that the purported appointment letters remained a secret affair between thepetitioners and the officials which were issued in contravention of he recruitment rulesand thus, the afore-mentioned illegal activities of he said officers are not binding on therespondents.
8. Only after the retirement of the said officers, the writ petitions have beenfiled after a period of about 5 years and during the said period, they had, without anydemur whatsoever, all along been accepting the wages at a consolidated rate of Rs. 1500/-.The fact that the petitioners were appointed by those two officers who allegedly hadconspired between themselves to grant some such illegal appointments, is not disputed.
9. It had been contended that even the Employment Exchange had not been notified asregard existence of he vacancies in terms of the provisions of the Employment Exchange(Compulsory Notification of Vacancies Act), 1959 nor even an advertisement was issuednotifying the vacancies in the newspapers, as a result whereof, the respondent which is apublic sector undertaking, was deprived of selecting the best candidates.
QUESTION
10. The question which arises for consideration in these petitions is as towhether the services of the petitioners can be directed to be regularized
FINDINGS
11. It is not in dispute that the respondent had, from time to time, made rulesgoverning the conditions of service of its employees. Para 1.5 of the Recruitment Rulesis as follows.
1.5.1 SOURCES OF RECRITMENT
Recruitment to various pots will normally be madefrom the following sources:-
(a) Employment Exchange as per the provisions of theEmployment Exchange (Compulsory Notification ofVacancies) Act, 1959.
(b) Zila Sainik Boards Director General Resettlement.
(c) Direct Recruitment by Advertisement.
(d) Company's own trainees who have satisfactorilycompleted their training.
(e) Employees on deputation from Government andother Public Sector Undertakings.
(f) By transfer, selection and/or promotion fromamongst the existing employees of the Company.
(g) On contract for a specified period.
(h) By transfer from other Public Sector Undertakings.
(i) Apprentices recruited under the Apprentices Act,1961.
(j) Persons as declared 'surplus employees' of theCompany or of other Public Sector Undertakings.
(k) Ousters/or their dependants whose lands have beenacquired for construction of the factories of NationalFertilizers Limited as per prescribed procedure.
Para 1.7.1 of the said Rules provides for reservation in posts andpreference in appointment. Para 1.7.2. thereof provides for appointment in posts in Group'C' and 'D' in the manner as laid down therein.
12. From a perusal of the statements made in para 3 of the writ petitioners asalso the offer of appointment as contained in Annexure P/7 of the writ petition, it ismanifest that the petitioners had been appointed pursuant to the application made bythem. It is not a case of the writ petitioners that prior to their appointment, anyadvertisement had been issued in the newspaper or the Employment Exchange wasnotified as regards the existence of vacancies. The respondent being a 'State' within theArticle 12 of the Constitution of India, was in the matter of recruitment, bound to complywith the constitutional requirements, as adumbrated in Articles 14 and 16 of theConstitution of India. It is now a well settled principle of law that when an employer.frames any recruitment rules, it is bound to comply therewith. The officers of a Statecannot make any appointment in violation of such recruitment rules. Any appointmentmade in violation of the recruitment rules as also in Articles 14 and 16 of the Constitutionof India, would be nullities. Although in terms of Article 16 of the Constitution of India,nobody has nay right of appointment, all persons who were eligible thereforee, had a rightto be considered. Even no document had been produced by the petitioner to show thatsuch appointments had been made in terms of the recruitment rules or prior thereto anyadvertisement had been issued. There is nothing on record to show on what basis thewrit petitioners filed their applications for recruitment. No reason has also been assignedas to why the recruitment rules could not be complied with.
13. It is well known that he who comes by backdoor must go by that door (see State of UP and Ors. v. UP State Law Officers Association and Ors. .
14. As noticed hereinbefore, the respondents had framed recruitment rules.Had any appointment on a regular basis been contemplated, the recruitment rules wouldhave been followed. It further appears that a circular letter dated 19th April 1989 wasissued which reads as under:
'Manager (Pers.), C.O.
General Manager (Mktg.), NFL, New Delhi
NFL/Pers. 1(21)/1321
Dated. 19.4.1989
It has been decided that with immediate effect thestrength of the Marketing Division be pegged to the numberof individuals in position in the Marketing Division as on31.3.89. It has also been decided that no further recruitmentbe made in the Marketing Division in any category of post.However, as and when, if any post is required to be filled upin any category due to exigencies of work, the approval ofD(F)/MD be obtained and the paper routed through theCorporate Office Personnel Department.
This may please be noted and receipt of thiscommunication acknowledged.
Sd/-
(Karan Singh).
Manager(Pers.)
15. Appointments of the petitioners were made despite such ban onappointments. The offer appointment, as contained in Ex.P/6 says that theappointments had been made for a period of six months n a purely temporary basis.
16. In State of M.P. and Anr.k v. Dharam Bir, , the apex courthas clearly held that if an ad hoc appointment continued for about a decade, the nature ofappointment would not change in the absence of any statutory rules. The apex court heldthat:
23. It is not disputed that the respondent waspromoted to the post of Principal, Class II for ashort period of six months or till the availabilityof candidates duly selected by the Commission,whichever was earlier. It is also not dispute andthe Tribunal itself has found it as a fact that therespondent was placed on the post of Principalonly in an ad hoc capacity. Consequently, thepost, having not bene filled up on a regular basisin accordance with the Rules, was rightly treatedby the appellant to be vacant. That being so, therespondent had only ad hoc status which hewould continue to hold till it was altered by theappointing authority.
24. Government service is essentially a matter ofstatus rather than a contract. A ConstitutionBench of this Court in Roshan Lal Tandon v.Union of India had observed as under: 'It is true that the origin of governmentservice is contractual. There is an offer andacceptance in every case. But once appointed to hispost or office the government servant acquires astatus and his rights and obligations are no longerdetermined by consent of both parties, but by statuteor statutory rules which may be framed and alteredunilaterally by the Government. In other words, thelegal position of government servant is more one ofstatus than a contract. The hallmark of status is theattachment to a legal relationship of rights and dutiesimposed by the public law and not by mereagreement of the parties. The emolument of thegovernment servant and his terms of service aregoverned by statue or statutory rules which may beunilaterally altered by the Government without theconsent of the employee. It is true that Article 311 imposes Constitutional restrictions upon the powerof removal granted to the President and the Governorunder Article 310. But it is obvious that therelationship between the Government and its servantis not like an ordinary contract of service between amaster and servant. The legal relationship issomething entirely different, something in the natureof status. It is much more than a purely contractualrelationship voluntarily entered into between theparties. The duties of status are fixed by the law andin the enforcement of these duties society has aninterest. In the language of jurisprudence status is acondition of membership of group of which powersand duties are exclusively determined by law and notby agreement between the parties concerned.'
17. In Municipal Corporation, Bilsaspur v. Veer Singh Rajput and Ors. , it has been clearly held that where serious irregularities in the matter ofappointment had been discovered and if the same had been made on politicalconsideration, no relief can be granted by courts. The apex court observed:
3'.. The appointments, however are irregular andmade on political considerations. There are cleargovernment directions for reduction of establishmentexpenditure and a prohibition on the filling of vacant postsor creating new posts including regularization of daily-waged employees. The order of the High Court forregularization of such employees is not warranted. It is inthe teetli of these administrative directions and cannot besustained...'
18. Yet again, in Nazira Begum Lashkar and Ors. v. State of Assam and Ors. JT2000 Supp SC 417, it was noticed:
14. '....The decisions cited by Mr. Parikh, insupport of his contention not only do not support hiscontention but on the other hand appear to us to be againsthis contention. In Ashwani Kumar's Case, , this Court in no uncertain terms heldthat as the appointments had been made illegally andcontrary to all recognized recruitment procedures and werehighly arbitrary, the same were not binding on the State ofBihar. This Court further went on to hold in the aforesaidcase that the initial appointments having been contrary to thestatutory rules, the continuance of such appointees must beheld to be totally unauthorized and no right would accrue tothe incumbent on that score. The Court had also held that itcannot be said that principles of natural justice were violatedor full opportunity was not given to the employeesconcerned to have their say in the matter before theirappointments were recalled and terminated.'
19. In any event, as the petitioners themselves took a chance by taking part in the recruitment process and having not succeeded therein, now cannot be permitted toturn around and contend that they had regularly been appointed. From the fact that theyhad never made any complaint until the retirement of the above-mentioned two officers,is itself a pointer to show that they were aware that their appointments were illegal. Hadthey contended that their appointments have been made on a regular basis, they wouldnot have applied for appointments on regular pots and compete with the other candidates.It is evident from the statements made from the counter-affidavit that some of the writpetitioners did not apply thereforee, as they did not have the requisite qualifications.
20. Recently a Divisions Bench of the Andhra Pradesh High Court, of which one of us was aMember, in Superintending Engineer, CPWD, Hyderabad v. Tekmalla Raj Shekhar andOrs. reported in : 2001(6)ALD64 noticed various decisions of different High Courts andheld as under:
14. In Secretary, A.P. Social WelfareResidential Educational Institutions Society v. P.Venkata Kumari: 2001(1) ALT 366. [Para 14] a DivisionBench of this Court has clearly held that regularization isnot a mode of appointment and in absence of any statutoryrules the Part-time employees,ad hoc employees andNMRs did not derive and legal right whatsoever tocontinue in service and no such direction can be issuedinasmuch as for the purpose of obtaining a writ of or in thenature of mandamus the petitioner must establishexistence of a legal right in himself and a correspondinglegal duty in the respondents.
15. It was further held in no uncertain termsthat the Court cannot direct creation of more posts.
16. Recently in State of West Bengal v. KrishnaKumar Majumdar, it was held:
...An appointment on regular post mustbe made in terms of the Recruitment Rules havingregard to the principles adumbrated under Articles14 and 16 of the Constitution of India. In theinstant case, as indicated hereinbefore, neither anyappointment has been made by the writ petitionerthat such appointment has been made inaccordance with the Recruitment Rules or inconsonance with the principle laid down underArticles 14 and 16 of the Constitution of India.Such appointment, thereforee, cannot beencouraged. Furthermore, a finding of act hasbeen arrived at by the competent authority that thewrit petitioners were appointed on contractualbasis and that too for a period of 2 years at onepoint of time 17. Even in State of Haryana v. Piara Singh theapex Court has clearly held that when an employee isappointment on ad hoc basis the same itself is pointerto the effect that no regular post is available. Thesaid principle should be applied also in relation to NMR. It has bene held in the said case thus:
Ordinarily speaking, the creation andabolition of post is the prerogative of theExecutive. It is the Executive again that lays downthe conditions of service subject, of course, to alaw made by the appropriate Legislature. Thispower to prescribe the conditions of service can beexercised either by making Rules under the provisoto Article 309 of the Constitution or (in the absence ofsuch Rules) by issuing Rules/instructions inexercise of its executive power. The Court comesinto the picture only to ensure observance offundamental rights, statutory provisions, Rules andother instructions, if any, governing the conditionsof service. The main concern of the Court in suchmatters is to ensure the Rule of law and to see thatthe executive act fairly and gives a fair deal to itsemployees consistent with the requirements ofArticles 14 and 16. 18. We may notice that it has clearly been heldthat even the definition of worker under the Factories Actcan only be read for the said purposes only. It is for theappropriate Government to decide whether employment ofcontract labour should be prohibited or only regulate.d TheCourt or the Tribunal has no say therein. [See SujanBenerjee v. Union of India, Ranjit Kumar Chanda v. Stateof West Bengal] In Union of India v. Shri Rajinder Singh it has been held:
An employee must be appointed uponcompliance of the provisions of the RecruitmentRules. When a particular status is conferred upon anemployee, the same cannot be changed unless thereexists any statutory provisions thereof.
A regular appointment can only be made interms of the Recruitment Rules and subject to thecandidate's possessing the requisite qualification andalso subject to existence of any sanctioned post.
An employee is borne in the cadre only whenhe is appointment upon fulfilling the requirementtherefor in a sanctioned post.
19. Referring to W.B. Essential CommoditiesSupply Corporation v. MD Sarif, Director of PublicInstructions W.B. v. Krishna Prasad GhoshandAnr. and Swapan Kumar Benerjee v. Union of India, ithas been held in Union of India v. Registar: The question as to whether the petitioners hadfulfilled the essential conditions for regularization or not isessentially a question of fact. In law, nobody is entitled toclaim regularization unless there exists any statutoryprovision in this regard. Only because a person has workedfor more than 240 days, the same by itself would not be aground for direction to regularize the service of theconcerned employee.
21. The decisions of Madhya Pradesh, High Court, Rajasthan High Court andthe decree passed by a civil court, do not create a binding precedent. In those cases, theparties preceded on the basis as to whether the employee should have been confirmedupon expiry of the period of probation. The question of confirmation of an employee onthe expiry of the period of probation or within a reasonable period arises, provided anappointment is made on a regular basis. When the appointment itself is illegal, the samewas a nullity and thus the question of confirmation of their services of expiry of theperiod of probation would not arise. We, with utmost respect do not subscribe to the saidview. It may be that SLP against the said decisions have been dismissed by the SupremeCourt but by reason thereof, no binding precedent has been created. No right, for less, anenforceable right is accrued to the concerned employees which is enforceable by the HighCourt in exercise of its jurisdiction under Article 226 of the Constitution of India. It istrite that a writ of mandamus can be issued only when the petitioners plead and establishlegal right in themselves and a corresponding duty in the respondents.
22. In Superintending Engineer, CPWD, Hyderabad v. Tekmalla RajShekhar and Ors. (supra), the Andhra Pradesh High Court also held that a decisionis an authority for what it decides and not what can be deduced there from. It wasfurther noticed as under:
22. In Salmond on Jurisprudence 12th Edition, page29, it is stated-
One of the essential features of the doctrine ofprecedent in the common law is that rules of law aredeveloped in the very process of application. Thismeans that they are created by Judges and not byteachers and other academic lawyers. However,learned they may be. It also ens that they arecreated by Judges only when acting as Judges i.e.,when deciding cases and not for example when givinglectures or other addresser; statements made by Judgesin their extra-judicial capacity, like other extra-judicialopinions, are without binding authority. Forfundamental notion is that the law should result frombeing applied to live issues raised between actualparties and argued on both sides. In the course of his judgment, however, a Judge maylet fall various observations not precisely relevant to the issuebefore him. He may for instance illustrate his generalreasoning by reference to hypothetical situation and the lawwhich he considers to apply to them. Here of course, since theissue is not one that arises between the parties, full argumentby Counsel will be lacking, so that it would be unwise toaccord the observation equal weight with that given to thisactual decision. Or again, having decided the case on one.point, the Judge may feel it unnecessary to pronounce on theother points raised by the parties, but he may neverthelesswant to indicate how he would have decide these points ifnecessary. Here again we are not given the Judge's finaldecision on a live issue, so that once more it would be unwiseto endow it with as much authority as the actual decision.These observations by the way, obiter dicta are withoutbinding authority, but are nonetheless important, not only dothey help to rationalize the law but they serve to suggestsolutions to problems not yet decided by Courts. Indeed dictaof the House of Lords or of Judges who were masters of theirfield,s like Lord Blackburn, may often in practice enjoygreater prestige than often in practice enjoy greater prestigethan the rationale of lesser Judges.
23. In C.I.T. v. Sun Engineering Works (P)Limited, A.S. Anand, J (as the learned Judge then was)stated the law in the following terms:
It is neither desirable nor permissible to pick out aword or a sentence form the judgment of this Court, divorcedform the context of the question under consideration and treatit to be the complete 'law' declared by this Court. Thejudgment must be read as a whole and the observations fromthe Judgment have to be considered in the light of thequestions which were before this Court....' 24. In Jayasen v. Sujit Kr. Sarkar it was held-
'It is now well-known that a decision in an authorityfor what it decides and not what can logically be deducedthere from. It is also well-known that even a slight distinctionin fact or an additional fact may make a lot of difference indecision making process (See Quinn v. Lealhain [1990 AER 1, Krishna Kumar v. Union of India : (1991)ILLJ191SC , Commissioner of Income Tax, v. Sun EngineeringCo. Ltd. : [1992]198ITR297(SC) , Regional manager v. PawanKumar Debey : (1976)IILLJ266SC and MunicipalCorporation of Delhi v. Gurnam Kaur ' 25. It is also a settled law that a decision is not anauthority on a point which was not argued [See MittalEngineering Works (P) Ltd. v. Collector of Central Excise]
23. It may be true that in a given case, equity may be claimed on the basis of thereliefs granted by a court of law. But it must also be remembered that Article 14 is apositive concept. No person derives any right on the basis of an illegality committed byothers, an order of which has been passed contrary to the provisions of law as alsoConstitution cannot confer a right upon any person whatsoever. We, thereforee, are ofthe opinion that the decisions of the apex court whereupon the learned counsel for the petitioner have relied upon, as regards right of an employee of being confirmed in theservice on the expiry of period of probation or on the expiry of a reasonable period,cannot be said to have any application whatsoever in the instant case.
24. For the reasons afore-mentioned, we do not find any merit in these writpetitions which are accordingly dismissed but in the facts and circumstances, there wouldbe no orders as to costs.