IMPORTANT POINT
Appointment if made in violation of constitutional scheme of equality enshrined under Articles 14 and 16 of Constitution of India would be rendered illegal and void ab initio.

Headnote:LABOUR LAW—Interim order in a writ praying for regularisation—Respondent was appointed on daily wages for specific work on Muster Roll—Appeal against interim order was dismissed by Division Bench—Appeal—Relief which could be granted only at final hearing should not ordinarily be granted by way of interim relief—Impugned direction even could not have been issued at final hearing which amounted to creation of supernumerary post in purported compliance of regularisation rules—Impugned order was liable to be set aside.
       Held : A bare perusal of the impugned order should show that the learned Single Judge for all intent and purport had allowed the writ petition on the very first day, which in our opinion, was not justified. It is now well-settled that a relief which can be granted only at the final hearing of the matter, should not ordinarily be granted by way of an interim order. It is also doubtful as to whether the impugned directions could have been issued even at the final hearing of the matter which would amount to creation of supernumerary post in purported compliance of the regularisation rules.(Para 6)
       It is not the case of the respondents that they were recruited in terms of the provisions of the recruitment rules framed under the proviso appended to Article 309 of the Constitution of India. In that view of the matter ex facie their appointments were illegal.(Para 12)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The State of U.P has herein questioned an interim order dated 15.1.04 passed by the learned Single Judge of the Allahabad High Court as also order dated 22.8.2005 passed by a Division Bench of the said Court affirming the same.

3. The respondent was said to have been appointed on daily wages for specific work on Muster Roll purported to be under the provisions of paragraphs 429, 430 and 431 of the Financial Hand Book Volume-VI read with paragraph 476 of the Part-I of the Public Works Department of Manual of orders in local arrangements.

4. A writ petition was filed by the respondent herein, inter alia, praying for his regularization. A learned Single Judge of the Lucknow Bench of the Allahabad High Court on the day of preliminary hearing while issuing rule passed the following order:

"In the meantime, the opposite parties no.3 to 5 shall examine the petitioners claim for regularization under the Regularization Rules 2001 and pass appropriate orders. However, his claim shall not be rejected on the ground of the post being not available. Supernumerary posts have to be created to comply with the provisions of the Regularization Rules and kept alive until regular posts fall vacant. Till a decision is taken, the petitioner shall be paid wages equivalent to the minimum of pay scale admissible to a Mate working in the department with effect from 1st January, 2004."

5. A special appeal filed therein against but the same was barred by limitation. The Division Bench, inter alia, on the said premise refused to interfere with the order passed by the learned Single Judge stating:

"In these circumstances, the appeal Court should not interfere but leave the matter to be decided by the Honble single Judge on a final basis. The appeal is thus dismissed on merits and also on the ground of delay which we are not minded to condone, although this is illogical, we thought it better to make our minds known."

6. A bare perusal of the impugned order should show that the learned Single Judge for all intent and purport had allowed the writ petition on the very first day, which in our opinion, was not justified. It is now well-settled that a relief which can be granted only at the final hearing of the matter, should not ordinarily be granted by way of an interim order. It is also doubtful as to whether the impugned directions could have been issued even at the final hearing of the matter which would amount to creation of supernumerary post in purported compliance of the regularisation rules.

7. Whatever may be the import and purport of such regularization rules, in view of the recent Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. [(2006) 4 SCC 1)], it is now well-settled that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus void ab initio. No regularization rules, therefore, could have been made by the State of Uttar Pradesh in derogation to the statutory or constitutional scheme.

8. Furthermore, the State of Uttar Pradesh must have made rules in terms of the proviso appended to Article 309 of the Constitution of India, providing for the mode and manner in which recruitments are to be made. Such rules have statutory force.

9. The learned counsel for the respondents, however, drew our attention to paragraphs 53 of Umadevi (supra), which reads as under:

"One aspect needs to be clarified. There may be cases where irregular appointments [not illegal appointments] as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularizati

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2006 Supreme(SC) 1167

IMPORTANT POINT Appointment if made in violation of constitutional scheme of equality enshrined under Articles 14 and 16 of Constitution of India would be rendered illegal and void ab initio.

Cases Referred (5)

IMPORTANT POINT
Appointment if made in violation of constitutional scheme of equality enshrined under Articles 14 and 16 of Constitution of India would be rendered illegal and void ab initio.