2005 (12) TMI 577 - SC - Indian Laws

Supreme Court Rules Against Unjustified Regularisation, Limits Appointments to Legal Vacancies Only.

State of U.P Versus Neeraj Awasthi & Others

The SC allowed the appeals filed by the Board and the State of U.P., dismissing the appeal from SLP(C) No. 15797 of 2001. The SC set aside the judgments ... Validity of Termination of services - Appointments made in Mandi Parishad and Mandi Samities - Unauthorized/ irregular - Scheme for regularisation of the employees of the U.P. State Agricultural Produce Market Board ('the Board') - Regulations of terms and conditions of the service of the employees framed by the Board u/s 25-A and 26-X of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 ('the Act') - Similar regulations also framed by the Board in respect of its own employees being the Uttar Pradesh Agricultural Produce Markets Board Regulations, 1984 ('Establishment Regulations') - Violation of Principles of Natural Justice - HELD THAT:- The fact that all appointments have been made without following the procedure or services of some persons appointed have been regularised in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well- settled. Furthermore, no post was sanctioned. It is now well-settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill-up the same in terms of the existing rules. They, having regard to the provisions of the regulations, may not fill up all the posts. Conclusion - The upshot of our discussions is: (i) The Board and the Market Committees were bound by the Act, the Rules and Regulations framed thereunder in making appointments. Statutory provisions as also the constitutional requirements were required to be complied with. (ii) The Board had no jurisdiction to frame any scheme for regularization in the pith of the statutory regulations operating in the field. Any legislation involving appointment or laying down the conditions of service of the employees would require prior sanction of the State. (iii) The State of Uttar Pradesh in exercise of its purported power u/s 26-M of the Act could not have issued the directions as it has been done but such a direction cannot be said to be wholly unreasonable. (iv) The State although could not exercise a statutory power beyond the provisions of the statute but the same although might have been done under a misconception of law but was not otherwise arbitrary or mala fide. (v) Availability of vacancies and/ or the fund by themselves would not allow the Market Committees or the Board to make appointments in flagrant violation of the statutory provisions. Although the direction of the State of U.P. which had been acted upon by the Board did not have a statutory backing, the High Court could not have issued a writ of or in the nature of mandamus as the writ petitioners Respondents did not have any legal right. (vi) We are not oblivious of the fact that there may be some employees whose services have been terminated without any rhyme or reason. Mr. Verma appearing on behalf of the Board has assured us that the Board shall look into cases of such employees whose termination has been effected beyond the policy decision taken by the State although we do not intend to express any opinion as regards such employees. We, however, direct the Board and the Market Committees to fill up all existing vacancies strictly in accordance with law as expeditiously as possible and preferably within six months from date. While doing so, amongst other eligible candidates, the candidature of the employees whose services have been terminated should also be taken into consideration and in the event, the appropriate authority of the Market Committees or the Board can relax the age-bar, the same would be done. The respective Market Committees, however, in the meanwhile, if for exigencies of the work, intend to appoint any person, it may do so. However, post facto approval therefor should be obtained from the Board. In the offers of appointment which may be issued to such temporary or ad hoc employees it shall be made clear that their appointments would be ad hoc in nature and the same shall be co-terminus with the appointment of regular employees. Thus, we are of the opinion that the judgment and order passed by the learned Single Judge which has been upheld by the Division Bench by its order does not lay down the law correctly and the judgment and order passed by a Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1093 (S/B) of 1999 lays down the law correctly. In the result, Civil Appeal is dismissed and other civil appeals filed by the Board and the State of Uttar Pradesh as also civil appeal filed by the Board are allowed. Issues Involved:1. Jurisdiction of the High Court to issue a direction for framing a scheme for regularisation of employees.2. Legality of the appointments made by the U.P. State Agricultural Produce Market Board.3. Power of the State to issue directions to the Board.4. Compliance with principles of natural justice in the termination of employees.5. Validity of the High Court's directions for regularisation and reinstatement of employees.Detailed Analysis:1. Jurisdiction of the High Court to Issue a Direction for Framing a Scheme for Regularisation of Employees:The High Court directed the Board to frame a scheme for regularisation of employees who had completed one thousand days of service. However, the Supreme Court held that the High Court's direction was not justified. The Board and the Market Committees were bound by the Act, the Rules, and the Regulations framed thereunder in making appointments. The Board had no jurisdiction to frame any scheme for regularisation in the pith of the statutory regulations operating in the field. Any legislation involving appointment or laying down the conditions of service of the employees would require prior sanction of the State.2. Legality of the Appointments Made by the U.P. State Agricultural Produce Market Board:The appointments made were in utter disregard of the mandatory provisions of the Services Regulations and the Establishment Regulations. The Supreme Court observed that no appointment could be made in violation of the provisions of the statute and statutory rules. The appointments were made on a pick-and-choose method and on an adhoc basis, which the Court found unsustainable. The Court emphasized that the Board and the Market Committees must act strictly in terms of the Act and the regulations framed thereunder.3. Power of the State to Issue Directions to the Board:The State in exercise of its power conferred upon it could issue directions on questions of policy but could not interfere in the day-to-day functioning of the Board. The directions must be in relation to the activities of the Board under the Act and not de' hors the same. The Supreme Court found that the direction by the State was not strictly in accordance with law but was not wholly irrational. The State had taken into consideration the last segment of employment and ensured that the principles of last-come-first-go basis were followed.4. Compliance with Principles of Natural Justice in the Termination of Employees:The Supreme Court held that the principles of natural justice were not required to be complied with in the termination of the employees as the terminations were not punitive measures nor did they attach any stigma. The employees were protected under the U.P. Industrial Disputes Act, which provided for notice or pay in lieu thereof and compensation. The Court found that the High Court erred in holding that the principles of natural justice were required to be complied with.5. Validity of the High Court's Directions for Regularisation and Reinstatement of Employees:The Supreme Court held that the High Court's directions to frame a scheme for regularisation and to reinstate the employees were not justified. The Court emphasized that regularisation cannot be a mode of appointment and that illegal appointments cannot be regularised. The Court directed the Board and the Market Committees to fill up all existing vacancies strictly in accordance with law and to consider the candidature of the terminated employees, relaxing the age-bar if necessary. The Supreme Court concluded that the judgment and order dated 11.8.2000 passed by the learned Single Judge, which was upheld by the Division Bench on 5.9.2000, did not lay down the law correctly, whereas the judgment and order dated 13.11.2000 passed by another Division Bench laid down the law correctly.Conclusion:The Supreme Court allowed the appeals filed by the Board and the State of Uttar Pradesh, dismissing the appeal arising out of SLP(C) No. 15797 of 2001. The Court directed the Board and the Market Committees to fill up all existing vacancies in accordance with law and consider the candidature of the terminated employees. The judgment and order dated 11.8.2000 and 5.9.2000 were set aside, and the judgment dated 13.11.2000 was upheld.