IMPORTANT POINT
Any appointment made by State in violation of recruitment rules would be illegal and merely because the employee had worked for some time, same by itself would not be a ground for directing regularisation of their services.

Headnote:SERVICE LAW—Regularisation of service of person recruited on adhoc basis—Any appointment in violation of recruitment rules would render appointment as nullity—Question of confirmation of such an employee on expiry of purported period of probation would not arise—Respondents were appointed as peons-messangers without intimation to employment exchange or any advertisement issued for that—Recruitment rules were not followed—Writ petitions filed by respondents were allowed directing appellant to regularize the services with all monetary benefits—Appeal—Appointment of respondents were illegal and not just irregular and they did not have any legal right to continue in service—Only because respondents had worked for some time, same by itself could not be a ground for directing regularisation of their services—Impugned order was liable to be set aside.
       Held : The Respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor the employment exchange was notified as regard existence of vacancies. It is now trite law that a ‘State’ within the meaning of Article 12 of the Constitution of India is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities . It is also well-settled that no recruitment should be permitted to be made through backdoor.(Para 13)
       The contention of the learned counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration.(Para 22)
       Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service. It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Uma Devi, 2006(4) Scale 197.(Paras 24 and 25)

JUDGMENT

S.B. Sinha, J.—The Appellant is a Government Company. It is a public sector undertaking. It is a ‘State’ within the meaning of Article 12 of the Constitution of India. A policy decision was taken by the Appellant not to make any further recruitment in Marketing Division in any category of post stating:

“It has been decided that with immediate effect the strength of the Marketing Division be pagged to the number of individuals in position in the Marketing Division as on 31.03.1998. It has also been decided that no further recruitment be made in the Marketing Division in any category of post. However, as and when if any post is required to be filled up in any category due to exigencies of work, the approval of D(F)/MD be obtained and the paper routed through the Corporate Office Personnel Department.”

2. Despite such ban the Respondents had been appointed. Before such appointment the employment exchange was not intimated about the vacancy in terms of the provisions of Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 (for short “the 1959 Act”). Admittedly, no advertisement was also issued. According to the Respondent, he worked at the Shimla Office of the Appellant for a period of six months and, thus, he was entitled for recruitment in terms of Rule 1.5(g) of the Recruitment and Promotion Rules. Rule 1.5(g) of the Rules does not envisage regular recruitment but a recruitment on a contractual basis. The Respondent, thus, on his own showing was appointed on a contractual basis. It is trite that a person who obtained recruitment on contractual basis cannot claim regularisation in service. The Respondents herein filed applications for their recruitment without any vacancy having been notified. They were said to have been interviewed on 24.3.1991 by a purported Committee constituted by the General Manager. Appointment letters were issued on or about 9.4.1991. An advertisement was admittedly issued only on 30.11.1993 for the post of Peon-cum-Messenger.

3. The Appellant in the year 1994, however, took a decision to fill up the posts in the Marketing Division inter alia stating:

“During the coordination committee meeting held in October 1994, at C.O. the recognized union of marketing division requested for removal of ban in filling up vacant posts in marketing division. It was agreed that action to fill up the vacant posts in marketing division will be taken by marketing division, keeping in view the recruitments within the overall manpower strength.”

4. Actions were initiated to fill up the vacant posts on permanent status by following the recruitment procedure. The Respondents were also granted an opportunity to file applications thereagainst. Relaxation of age to the extent of their services as temporary employees had also been granted.

5. The Appellant has framed its own Recruitment and Promotion Rules. The recruitment of an employee is governed by the said Rules. The terms and conditions of services are also governed by the same Rules. In terms of Rule 1.5 of the said Rules, recruitment of various posts were to be made inter alia from the following sources:

(a)Employment Exchange as per the provisions of the 1959 Act.

(b)Zila Saink Boards Director General Resettlement.

(c)Direct Recruitment by advertisement.

6. Rule 1.6.1 provides for method and procedure for recruitment in terms whereof all posts in the scale of pay of Rs. 1560-2160 is required to be considered as ‘corporate level’. Direct recruitment can be resorted to only when no suitable candidate for promotion was available in the appropriate rank. Rule 1.6.8 provides for the mode and manner in which the advertisement is to be issued. Rule 1.6.9 provides for reservation. The manner in which Selection Committee has to be constituted has been laid down in paragraph 1.11. Such Selection Committee inter alia must consist of two members from the discipline for which recruitment is to be made apart from an officer from the Personnel Department as Member Secretary.

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2006 Supreme(SC) 510

IMPORTANT POINTAny appointment made by State in violation of recruitment rules would be illegal and merely because the employee had worked for some time, same by itself would not be a ground for directing regularisation of their services.

Cases Referred (4)

IMPORTANT POINT
Any appointment made by State in violation of recruitment rules would be illegal and merely because the employee had worked for some time, same by itself would not be a ground for directing regularisation of their services.