Service law - equality of opportunity in appointments

Sharmila Devi Sharma Vs YS Par­mar Uni­ver­sity 14.05.2009 (uniqueunique)
CWP. No. 2270 of 2008
RAJIV SHARMA

2009 LIC 3470

2010 (1) SCT 749

Con­sti­tu­tion of India — Arti­cle 309, 14 and 16 — HP Uni­ver­si­ties of Agri­cul­ture, Hor­ti­cul­ture and Forestry Act, 1986 — appoint­ment — equal­ity of oppor­tu­ni­ties — Reg­is­trar of respondent-university sent appoint­ment let­ter to peti­tioner on 6.1.1998 — State Gov­ern­ment had accorded approval to respondent-university to reg­u­lar­ize daily paid/contingent paid work­ers four­teen in num­bers on 9.9.2008 — Court had directed respondent-university on 11-11-2008 to inter­view peti­tioner for reg­u­lar­iza­tion, how­ever, her result was directed to be placed before Court in a sealed cover on next date — appoint­ment to var­i­ous posts in Uni­ver­sity is reg­u­lated by Uni­ver­sity Statute framed under “Himachal Pradesh Uni­ver­si­ties of Agri­cul­ture, Hor­ti­cul­ture and Forestry Act, 1986″ — peti­tioner had only sub­mit­ted an appli­ca­tion on 30.10.1996 seek­ing appoint­ment as Library Assis­tant in respondent-university — Con­se­quently, appoint­ment let­ter was issued to peti­tioner on 6.1.1998 — pro­ce­dure adopted by uni­ver­sity to appoint peti­tioner was arbi­trary — Every cit­i­zen has a right to be con­sid­ered for appoint­ment as per pro­ce­dure estab­lished under law — post was never adver­tised nor was any req­ui­si­tion sent to Employ­ment Exchanges through­out State of Himachal Pradesh — Con­sti­tu­tional Bench in Sec­re­tary, State of Kar­nataka Vs Umadevi (3), (2006) 4 SCC 1 has laid down that per­sons appointed on temporary/contractual/casual/adhoc or daily wage basis have no legal right to reg­u­lar or per­ma­nent pub­lic employ­ment — Their Lord­ships have fur­ther held that absorp­tion, reg­u­lar­iza­tion or per­ma­nent con­tin­u­ance of tem­po­rary, con­trac­tual, casual, daily wage or adhoc employ­ees appointed/recruited and con­tin­ued for long in pub­lic employ­ment dehors con­sti­tu­tional scheme of pub­lic employ­ment amounts to another mode of recruit­ment in pub­lic employ­ment which is not per­mis­si­ble — It is time, that Courts desist from issu­ing orders pre­vent­ing reg­u­lar selec­tion or recruit­ment at instance of such per­sons and from issu­ing direc­tions for con­tin­u­ance of those who have not secured reg­u­lar appoint­ments as per pro­ce­dure estab­lished — pass­ing of orders for con­tin­u­ance, tends to defeat very Con­sti­tu­tional scheme of pub­lic employ­ment — It is not open to court to pre­vent reg­u­lar recruit­ment at instance of tem­po­rary employ­ees whose period of employ­ment has come to an end or of adhoc employ­ees who by very nature of their appoint­ment, do not acquire any right — High Courts act­ing under Arti­cle 226 of Con­sti­tu­tion of India, should not ordi­nar­ily issue direc­tions for absorp­tion, reg­u­lar­iza­tion, or per­ma­nent con­tin­u­ance unless recruit­ment itself was made reg­u­larly and in terms of con­sti­tu­tional scheme — It is not an appoint­ment to a post in real sense of term — rule of law com­pels State to make appoint­ments as envis­aged by Con­sti­tu­tion and in man­ner we have indi­cated ear­lier — Reg­u­lar appoint­ment must be rule — In addi­tion to equal­ity clause rep­re­sented by Arti­cle 14 of Con­sti­tu­tion, Arti­cle 16 has specif­i­cally pro­vided for equal­ity of oppor­tu­nity in mat­ters of pub­lic employ­ment — But­tress­ing these fun­da­men­tal rights, Arti­cle 309 pro­vides that sub­ject to pro­vi­sions of Con­sti­tu­tion, Acts of leg­is­la­ture may reg­u­late recruit­ment and con­di­tions of ser­vice of per­sons appointed to pub­lic ser­vices and posts in con­nec­tion with affairs of Union or of a State — With a view to make pro­ce­dure for selec­tion fair, Con­sti­tu­tion by Arti­cle 315 has also cre­ated a Pub­lic Ser­vice Com­mis­sion for Union and Pub­lic Ser­vice Com­mis­sions for States — Arti­cle 320 deals with func­tions of Pub­lic Ser­vice Com­mis­sions and man­dates con­sul­ta­tion with Com­mis­sion on all mat­ters relat­ing to meth­ods of recruit­ment to civil ser­vices and for civil posts and other related mat­ters — Con­sti­tu­tion does not envis­age any employ­ment out­side this con­sti­tu­tional scheme and with­out fol­low­ing require­ments set down therein — In present case since appoint­ment of peti­tioner was ille­gal, she can­not seek reg­u­lar­iza­tion — Arti­cle 309 of Con­sti­tu­tion gives Gov­ern­ment power to frame rules for pur­pose of lay­ing down con­di­tions of ser­vice and recruit­ment of per­sons to be appointed to pub­lic ser­vices and posts in con­nec­tion with affairs of Union or any of States — That Arti­cle con­tem­plates draw­ing up of a pro­ce­dure and rules to reg­u­late recruit­ment and reg­u­late ser­vice con­di­tions of appointees appointed 15 to pub­lic posts — If rules have been made under Arti­cle 309 of Con­sti­tu­tion, then Gov­ern­ment can make appoint­ments only in accor­dance with rules — Employ­ment Exchanges (Com­pul­sory Noti­fi­ca­tion of Vacan­cies) Act, 1959 was enacted to ensure equal oppor­tu­nity for employ­ment seek­ers — Nor­mally, statu­tory rules are framed under author­ity of law gov­ern­ing employ­ment — A casual or tem­po­rary employ­ment is not an appoint­ment to post — Court can­not cre­ate a post where none exists, nor issue direc­tions to absorb or reg­u­lar­ize tem­po­rary employ­ees — dis­tinc­tion between a tem­po­rary employee and a per­ma­nent employee is well set­tled — Whereas a per­ma­nent employee has a right to post, a tem­po­rary employee has no right to post — Sim­i­larly, no direc­tion can be given that a daily wage employee should be paid salary of a reg­u­lar employee vide State of Haryana vs Tilak Raj 2003 (6) SCC 123 — In case of E Ramakr­ish­nan Vs State of Ker­ala 1996 (10) SCC 565 Supreme Court held that there can be no reg­u­lar­iza­tion de hors rules — direc­tion issued by ser­vices tri­bunal for reg­u­lar­iz­ing ser­vices of per­sons who had not been appointed on reg­u­lar basis in accor­dance with rules was set aside although peti­tioner had been work­ing reg­u­larly for a long time — courts must exer­cise judi­cial restraint in this con­nec­tion — Apex Court in Offi­cial Liq­uida­tor ver­sus Dayanand, (2008) 10 SCC 1 has held that rul­ing of Con­sti­tu­tion Bench in Umadevi 2006 (4) SCC 1 is bind­ing on all Courts till same is over ruled by a Larger Bench — Their Lord­ships have fur­ther held that men­ace of ille­gal and back­door appoint­ments com­pelled courts to rethink and in a large num­ber of sub­se­quent judg­ments Apex Court declined to enter­tain claims of adhoc and tem­po­rary employ­ees for reg­u­lar­iza­tion of ser­vices — In 17th and 18th cen­turies a pecu­liar sys­tem of employ­ment pre­vailed in Amer­ica — By 1840, spoil sys­tem was widely used in Local, State and Fed­eral gov­ern­ments — After Civil War, pres­sure started build­ing up for reforms in recruit­ment to civil ser­vices — In 1871, Con­gress autho­rized Pres­i­dent to make reg­u­la­tions for appoint­ment to pub­lic ser­vices and to con­sti­tute Civil Ser­vice Com­mis­sion for that pur­pose — Fed­eral civil ser­vice leg­is­la­tion has been greatly expanded — Many munic­i­pal­i­ties and states have made train­ing and expe­ri­ence as a con­di­tion prece­dent for appoint­ment to pub­lic offices — Pro­viso to this Arti­cle empow­ers Pres­i­dent or such per­son as he may direct in case of ser­vices and posts in con­nec­tion with affairs of Union and Gov­er­nor of a State or such per­son as he may direct in case of ser­vices and posts and in con­nec­tion with affairs of State, to make rules reg­u­lat­ing recruit­ment, and con­di­tions of ser­vice of per­sons appointed, to such ser­vices and posts till enact­ment of law by appro­pri­ate leg­is­la­ture — pro­vi­sions con­tained in Chap­ter II of Part XIV relate to Pub­lic Ser­vice Com­mis­sions — Arti­cle 315 man­dates that there shall be a Pub­lic Ser­vice Com­mis­sion for Union and a Pub­lic Ser­vice Com­mis­sion for each State — Arti­cle 320(1) casts a duty on Union and State Pub­lic Ser­vice Com­mis­sions to con­duct exam­i­na­tions for appoint­ments to ser­vices of Union and State respec­tively — sce­nario is worst when it comes to appoint­ment to lower strata of civil ser­vices — schemes framed by Gov­ern­ments and pub­lic bod­ies for reg­u­lar­iza­tion of ille­gally appointed temporary/adhoc/daily wage/casual employ­ees got approval of Courts — In some cases, Courts also directed State and its instrumentalities/agencies to frame schemes for reg­u­lar­iza­tion of ser­vices of such employ­ees — propo­si­tions laid down in Piara Singh’s case were fol­lowed by almost all High Courts for direct­ing con­cerned State Gov­ern­ments and pub­lic author­i­ties to reg­u­lar­ize ser­vices of adhoc/temporary/daily wage employ­ees only on ground that they have con­tin­ued for a par­tic­u­lar length of time — Court can­not direct respondent-university to reg­u­lar­ize peti­tioner whose ini­tial appoint­ment was not in accor­dance with law — respondent-university can­not be obliv­i­ous to law laid down by their Lord­ships of Hon’ble Supreme Court, as noticed above.

Service law - equality of opportunity in appointments