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2006(9) Supreme 523
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and Markandey Katju, JJ.
Municipal Corporation, Jabalpur - Appellant
versus
Om Prakash Dubey - Respondent
Civil Appeal No. 5607 of 2006
(Arising out of SLP (C) No. 5065 of 2006)
Decided on 5-12-2006
Counsel for the Parties :
For the Appellant : Ranjan Mukherjee, Advocate.
For the Respondent : Ravindra Shrivastava, Sr. Advocate, C.G. Solshe, M. Mannan, V.C. Solshe, Kunal Verma and Rajul Shrivastava, Advocates.
Held : Appellant is a "State" within the meaning of Article 12 of the Constitution of India. It, being a statutory authority, in the matter of recruitment of employees is bound by the constitutional provisions contained in Articles 14 and 16 of the Constitution as also the rules and regulations framed by it. Indisputably, it did not have the last say as all appointments were subject to approval of the State of Madhya Pradesh, whose decision was to be final. Indisputably again, the concerned employees were recruited in terms of the extant rules. Prior to their appointment, no advertisement has been issued. The employment exchange had not been notified in regard to the existing vacancy. In short, the principle of public employment laid down under Article 16 of the Constitution of India has not been complied with. Regularisation, as is well known, is not a mode of appointment. Regularisation, again indisputably, does not mean permanence. (Para 8)
The question which, thus, arises for consideration, would be : Is there any distinction between irregular appointment and illegal appointment? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to.(Para 11)
There is another aspect of the matter which cannot be lost sight of. The Corporation may be bound by the decision of the High Court, but it was also bound by the direction of the State of Madhya Pradesh. If it had violated the direction of the State, in terms whereof its earlier policy decision stood reversed, it cannot be said to have committed a contempt of court.(Para 13)
We are in this case not called upon to consider the implication of the Awards, which might have been passed in favour of the workmen. The Division Bench, by reason of the impugned judgment had issued directions in exercise of its jurisdiction under Section 12 of the Contempt of Courts Act, 1971, without arriving at a finding as to how the Corporation has violated its order. It issued directions which are contrary to or inconsistent with the directions issued by a learned Single Judge by an order dated 27.2.2003.(Para 14)
The judgment of the Division Bench is, thus, subject to correction by this Court both under Article 136 of the Constitution of India as also under Section 19 of the Contempt of Court Act.(Para 15)
JUDGMENT
S.B. Sinha, J. - Leave granted.
2. Appellant is a Municipal Corporation constituted under the Madhya Pradesh Municipal Corporation Act, 1956 (for short, the Act). Indisputably, the terms and conditions of service of its employees are governed by statutory rules. Yet again in terms of Section 58 of the Act, the State of Madhya Pradesh may issue directions, which the Corporation is obliged to follow.
3. A large number of employees were appointed by the Corporation on daily wages. The terms and conditions of their appointment are not known. It is, however, not disputed that recruitment procedure, as laid down by the rules framed by the State of Madhya Pradesh in terms of the said provisions of the Act, had not been followed. Industrial disputes were said to have been raised and different labour courts in their Awards arrived at different conclusions. The Municipal Corporation purported to have laid down a policy decision to regularise the services of the employees in terms whereof those who had been working from a period prior to 31st December, 1983 were to be regularized according to seniority and availability of posts on fulfilling the eligibility criteria laid down therefor. Several writ petitions were filed questioning the correctness or otherwise of the said Awards. When the matter was pending before the High Court, the counsel appearing on behalf of the Corporation brought to its notice about the said purported scheme of the State.
4. Respondent herein was one of the six petitioners in Writ Petition No.4739 of 1998, which was also disposed of together with other writ applications pending before the High Court. A contempt petition came to be filed by the respondent herein alone, although, as noticed hereinbefore, the scheme involved a large number of workmen who were parties before the High Court. The said contempt petition was filed, inter alia, on the premise that the Corporation had been making discrimination amongst the employees in the matter of regularisation of their services. By reason of the impugned judgment dated 18.8.2005, having regard to the submissions made before it on behalf of the parties, the High Court directed :
"Considering the contention of the non-applicant and after hearing the applicant, it will be appropriate if respondent is permitted to prepare a fresh gradation list as per date of engagement of all the daily rated employees. The gradation list shall also reflect education qualifications of all respective employees. Aforesaid gradation list be prepared by the respondent within a period of 45 days from today and shall be published on a notice board of the Municipal Corporation inviting objection, if any from the employees. A period of 15 days shall be given to the employees to submit their objection. If any objection is filed by any of the employees in respect of gradation list, it shall be considered and decided by the respondent within a period of two weeks thereafter. Then a final gradation list shall be published in the notice board of the Corporation. Thereafter, respondent shall take the exercise for regularisation of the employees as directed by this Court in Ramdhar Case (W.P. No. 1464/01) Decided on 27.2.2003). Aforesaid exercise shall be completed within a period of three months.
From the perusal of the order of the Commissioner dated 10.8.2005, it appears that some of the officers of the Municipal Corporation joined hands with the employees and manipulated the gradation list and or issued regularisation orders which are contrary to the directions issued by this Court in Ramadhar case. All the concerned employees who are responsible for the aforesaid mischief deserve an appropriate action by the Commissioner, Municipal Corporation, in these circumstances, Commissioner, Municipal Corporation is directed to take departmental action against all the erring officers who have played mischief or played some malafide rate (sic) in issuing the order of regularisation which are con
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