IMPORTANT POINT
A person appointed on temporary basis in a project would not have legal right to be absorbed in service and could not claim a regularisation in service.

Headnote:Constitution of India — Articles 14, 16 and 309 — Public appointment is a facet of right to equality — Any appointment made in violation of the statute or in derogation of equality clause would be void — Question in appeal as regards legal right of regularisation of respondents in service though appointed for a fixed period in a project — Respondent was appointed as an Assistant Computer Instructor — Appellant had taken up a project issued by Ministry of Human Resource Development, Govt. of India and “provisional norms” for implementation of scheme were issued — No post was created and object of project was to give some input to people at rural level by educating them to utilize their lands more beneficially — Project lasted for a long time though visualized to be of limited period — High Court allowing writ directed appellant to create suitable posts as also consider question of regularisation of services to the post — Appeal — Whether High Court could direct for regularization of services of Respondent? No.
       Held : Public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India. The State although is a model employer, its right to create posts and recruit people therefor emanates from the statutes or statutory rules and/or rules framed under the proviso appended to Article 309 of the Constitution of India. The recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts. (Para 15)
       The Parliament for giving effect to the provisions of the Article 16 of the Constitution enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The statutes and the statutory rules framed by the Union of India and other States also invariably require issuance of a public notices so as to enable all eligible candidates to file applications thereof. The Constitution and/or statutes or statutory rules do not make any distinction between post and posts. The recruitment process for all posts is the same. (Para 16)
       The Constitution Bench of this Court while answering some of the said questions in no uncertain terms held that any appointment made in violation of the statute or in derogation of the equality clause contained in Articles 14 and 16 of the Constitution would be void and of no effect. It was opined that such persons who had obtained such illegal appointments were not entitled to claim regularization.(Para 20)
       The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The project undertaken by the Union of India although continued for some time was initially intended to be a time bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturalists. In absence of any legal right in the respondents, the High Court, thus, in our considered view, could not have issued a writ of or in the nature of mandamus. (Para 33)
       For the reasons aforementioned, the impugned judgments cannot be sustained. In view of the fact that limited notice was issued in Civil Appeal Nos. 7051 and 7052 of 2002 arising out of S.L.P. (Civil) Nos. 11597 and 22493 of 2001, we set aside only that part of the judgment whereby and whereunder the Appellants had been directed to create posts and regularize the services of the Respondents therein. The impugned judgments of the High Court to the aforementioned extent are set aside. (Para 36)

JUDGMENT

S.B. Sinha, J. — Delay condoned in S.L.Ps.

Leave granted in S.L.Ps.

2. These civil appeals and transfer applications involve a common question as regards the legal right of regularization of the Respondents in services, although appointed for a fixed period in a project and, thus, are being disposed of by this common judgment.

3. We would notice the factual matrix of the matter from Civil Appeal No. 7051 of 2002. The First Respondent was appointed as an Assistant Computer Instructor. Mehar Chand Polytechnic, Jalandhar, undertook a Community Polytechnic Project, a scheme issued by the Ministry of Human Resources Development, Government of India. The Central Government issued "provisional norms" for implementing the scheme. Specific amounts by way of both recurring and non-recurring expenses used to be granted by the Central Government. Under the head non-recurring expenses, a sum of Rs. Ten lacs was earmarked for acquisition of tools and equipments for five extension centres. As regards recurring nature of expenditure, Instructor were to be appointed on a consolidated amount of Rs.1,500/- or Rs.2,000/- as the case may be. The total amount of recurring expenditure was fixed at Rs. Seven lacs only. In the circular letter, it was, inter alia, stated :

"The expenditure shown above are at the maximum limit and the actual expenditure on each item should be limited to the bare minimum. The payment of salary/honorarium should also be limited considering the nature of duties and responsibilities entrusted and no regular staff should be appointed till the final guideline document is approved and necessary instructions are intimated. Engagement of Part-time/Full-Time staff should be based on the actual requirement."

4. It was directed that the total wages payable to the employees should not exceed 2/3rd of the amount of the grant. It was further stated that even deputation should not be encouraged. By a circular letter dated 07.04.1998, the Technical Teachers Training Institute, inter alia, issued the following directions to the Principal of the Polytechnic :

"2. Those who have been taken on deputation from the Polytechnic to Community Polytechnic, their salaries can be protected but total wage salaries of whole CP Scheme should not in any circumstances exceed 2/3rd of the allotted recurring grant. As such CPs must be careful in taking the person on deputation and in no circumstances, two persons – Project Officer and Asstt. Project Officer or both should not be taken on deputation.

3. As already indicated, as per the guidelines of Govt. of India which have already been circulated, persons can be taken on deputation or on contract/tenure basis. But certain cases have come to the notice of undersigned where CP have appointed PO or APO or both on scale basis. As this is a plan and project scheme of GOI, taking the person on the scale is not permissible as per the instructions of GOI, MHRD and also this is not permissible to give them revised scales as per the 5th Pay Commission of Central Government or 4th Pay Commission of respective State Government. As such, it is intimated that under no circumstances, you should give the revised scales to the persons working under CP/CDRT Scheme unless clear-cut guidelines are issued by GOI, MHRD."

5. Indisputably, no post was created. The objective of the project was not to provide employment but to give some input to the people at the rural level by educating them so as to enable them to utilize their lands more beneficially. The project although lasted for a long time, but visualized to be of limited duration, by reason thereof no substantive appointment was to be given. The project was to be manned by a few persons on a temporary basis.

6. The First Respondent herein was appointed in the said project in terms of the said policy decision of the Central Government. One of the appointment letters issued to the First Respondent reads as under :-

"Please refer to your application dated 31.7.199

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2006 Supreme(SC) 706

IMPORTANT POINTA person appointed on temporary basis in a project would not have legal right to be absorbed in service and could not claim a regularisation in service.

Cases Referred (11)

IMPORTANT POINT
A person appointed on temporary basis in a project would not have legal right to be absorbed in service and could not claim a regularisation in service.