Important Point
If appointment itself is in infraction of rules or if it is in violation of provisions of Constitution, illegality cannot be regularized.

Headnote:Service Law – Post of primary teachers – Plea of regularization – Appointment of respondent as primary teachers on leave vacancies by appellant society – Respondents appointed as a stop–gap arrangement for a particular period in academic year - Petition praying for regularization – Dismissed by Tribunal holding that there had been no regular vacancies - Writ petition there against – Allowed by High Court relying upon decision in case of Ashwani Kumar and others v. State of Bihar and other – Appeal there against on plea that Respondents having recruited in terms of Rule 9 of Rules by way of a temporary arrangement to meet exigencies of work and they having continued as ad hoc/part time /contractual employees inter alia by reason of interim orders passed by Court, their services ought not to have been directed to be regularized – Validity – Evidence to show that Respondents not got their names registered in Central Employment Exchange - Advertisement was issued for a limited purpose, namely, for leave vacancies, local employment exchanges were contacted only for filling of such posts and not regular posts - Selections were held only at local level and not on All India Level – Even though respondent had continued in service for a long time, but they had been thrust upon appellant by reason of interim orders passed by High Court - It was a misconception to consider that regularization meant permanence – Held If appointment itself is in infraction of rules or if it is in violation of provisions of Constitution illegality cannot be regularized - Ratification or regularization is possible of an act which is within power and province of the authority but there has been some non-compliance with procedure or manner which does not go to root of appointment - Direction to regularize services of respondents in view of authority by Constitution Bench in Secretary, State of Karnataka and Others v Umadevi (3) and Others [(2006) 4 SCC1] hence held not of any significance so as to deny relief to appellant - Impugned judgment of High Court being unsustainable held liable to be set aside - Appeals allowed. (Paras 10, 11, 12, 13, 14, 16, 18)
       Facts of the case :
       The respondents herein in the instant case were appointed as primary teachers on leave vacancies by appellant society. Respondents were appointed as a stop–gap arrangement for a particular period in academic year. A Petition was filed praying for regularization. Said petition was dismissed by Tribunal holding that there had been no regular vacancies. Writ petition there against was allowed by High Court relying upon decision in case of Ashwani Kumar and others v. State of Bihar and other.
       Present appeal has been filed by Appellants contending that respondents having recruited in terms of Rule 9 of Rules by way of a temporary arrangement to meet exigencies of work and they having continued as ad hoc/part time/contractual employees inter alia by reason of interim orders passed by Court, their services ought not to have been directed to be regularized.
       Findings of the Court :
       The Court held that evidence on record showed that Respondents not got their names registered in Central Employment Exchange. Advertisement was issued for a limited purpose, namely, for leave vacancies, local employment exchanges were contacted only for filling of such posts and not regular posts. Selections were held only at local level and not on All India Level. Even though respondent had continued in service for a long time, but they had been thrust upon appellant by reason of interim orders passed by High Court. It was a misconception to consider that regularization meant permanence. Held If appointment itself is in infraction of rules or if it is in violation of provisions of Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within power and province of the authority but there has been some non-compliance with procedure or manner which does not go to root of appointment. Direction to regularize services of respondents in view of authority by Constitution Bench in Secretary, State of Karnataka and Others v Umadevi (3) and Others [(2006) 4 SCC 1] hence held not of any significance so as to deny relief to appellant. Impugned judgment of High Court being unsustainable held liable to be set aside.

JUDGMENT

S.B. SINHA, J.—

1.Appellant is an autonomous body. It is a society registered under the Societies Registration Act. Government of India, Ministry of Human Resource Development, however, exercises control over it. The recruitment of teachers and other staff is governed by rules known as Appointment, Promotion, Security etc. Rules, 1971. Rules were framed by the Board of Governors of the Appellant, the relevant provisions whereof are as under :

4.Authorised permanent strength and temporary strength of the Service :-

(i)The authorised permanent and temporary strength of the various grades of the service on the appointed day shall be as specified in Schedule I.

(ii)After the appoined day, the authorised permanent and temporary strength of the various grades of the service shall be such as may, from time to time, be determined by or under the authority of the Board.

Provided that the competent authority may make temporary additions to any grade of the service as found necessary in the interest of the work of the Sangathan.

6.Recruitment

(i)The method of filling up of the posts in the various grades of the Service, age limit and other qualifications relating thereto shall be as specified in Schedule I (In case of posts not covered in Schedule I, procedure, qualifications and similar matters shall be determined by the Commissioner).

Provided that the upper age limit prescribed for direct recruitment may be relaxed in the case of candidates belonging to the Scheduled Castes/Scheduled Tribes and other specified categories of persons in accordance with the orders issued in this behalf from time to time by the Central Government.

(ii)Appointments by direct recruitment or by promotion of departmental candidates shall be made, except when there are special reasons to be recorded in writing with the approval also of the Chairman, in the order in which the names of eligible candidates are included in the Select Panel of the appropriate grade prepared according to the procedure laid down in Rule 7.

7.Preparation of Select Panels

(1)In the case of posts being filled up by direct recruitment the appropriate selection authority shall, after test or interview or both, as the case may be, place the candidates considered suitable for appointment to the particular grade/post in a select panel in the order of their merit.

(2)In the case of posts being filled up by promotion on the principle of seniority subject to the rejection of the unfit, the Departmental Promotion Committee or other selecting authorities will first decide the field of choice i.e. the number of eligible employees who are to be considered for inclusion in the Select Panel. From among such employees those who are considered unfit for promotion are to be excluded. The “Select Panel” will then be prepared by placing the names of the remaining employees without disturbing the seniority interest.

(3)In the case of promotion on the basis of the seniority-cum-merit or on the principle of merit with due regard to seniority the field of choice will first be decided and the employees considered unfit excluded in the same way as in the sub-rule (2) above. The remaining employees are then to be classified as “outstanding” “very good” and “good” on the basis of merit, as determined by their respective records of service and also test or interview if considered necessary. The “Select Panel” will thereafter be prepared by placing the names in the order of those categories, without disturbing the seniority interest within each category.

(4)Where the posts are to be filled up partly by direct recruitment and partly by promotion, the select panel will be prepared as follows :

The appropriate selecting authority will first prepare two separate select panels for the two categories in accordance with the procedure laid down above. The required panel will then be drawn up by combining these two separate panels according to the quota of posts reserved for each category. That is to say, the names of direct re

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2007 Supreme(SC) 701

Important PointIf appointment itself is in infraction of rules or if it is in violation of provisions of Constitution, illegality cannot be regularized.

Cases Referred (5)

Important Point
If appointment itself is in infraction of rules or if it is in violation of provisions of Constitution, illegality cannot be regularized.