Holding

The High Court's contempt order directing regularisation was set aside, as the corporation, being a State, must adhere to constitutional recruitment norms and the Court exceeded its jurisdiction.

Summary

The Municipal Corporation of Jabalpur appointed a large number of daily‑wage workers without following the recruitment rules prescribed under the Madhya Pradesh Municipal Corporation Act. Several labour disputes arose and the High Court, exercising contempt jurisdiction, directed the corporation to prepare a gradation list and regularise the employees’ services. The corporation appealed, contending that it was bound by a later state circular and that the High Court had exceeded its authority. The Supreme Court held that the corporation is a "State" under Article 12 and therefore must comply with constitutional provisions on public employment (Articles 14 and 16) and the applicable recruitment rules; regularisation is not a mode of appointment and cannot cure an illegal appointment. The Court also found that the High Court issued contempt directions without a proper finding of breach, exceeding its jurisdiction under the Contempt of Courts Act, and set aside the order. The appeal was allowed.

Issues considered

The status of the Municipal Corporation as a "State" under Article 12 and its constitutional obligations in recruitment.
Whether the High Court could direct regularisation of services through contempt jurisdiction without a finding of violation.
The distinction between irregular and illegal appointments and the effect on regularisation.
Whether the corporation committed contempt by not complying with the High Court order in view of a subsequent state circular.

Legislation cited

Constitution of Indias. Article 12, s. Article 136, s. Article 14, s. Article 16, s. Article 162, s. Article 309
Contempt of Courts Act, 1971s. Section 12, s. Section 13, s. Section 19
Industrial Disputes Act, 1947
Madhya Pradesh Municipal Corporation Act, 1956s. Section 58

Subjects

municipal corporationpublic employmentregularisationirregular appointmentillegal appointmentconstitutional lawArticle 12Article 14Article 16contempt of courtlabour lawrecruitment rules

Judgment

MUNICIPAL CORPORATION, JABALPUR A
v.
OM PRAKASH DUBEY

DECEMBER 5, 2006

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Labour Laws:

Constitution of India, 1950; Articles 12, 14, 16, 136/Madhya Pradesh
Municipal Corporation Act, 1956: C
Regularization of services of daily wagers-Municipal Corporation
appointing large number of workmen without complying with the recruitment
procedure in terms of Rules-Industrial [>isputes-Awards--Challenge to--
Contempt petition filed on ground that corporation discriminating amongst D
employees in regularizing their services-High Court directing the
Corporation to make a proper gradation list of employees before considering
their regularization-On appeal, Held: Corporation is a State in terms of
Article 12 of the Constitution-Bound by constitutional provisions contained
in Articles 14 and 16 of the Constitution and rules and regulations made
thereunder-Principles of public e'!lployment as contained therein not E
complied with-High Court issued direction to the Corporation in exercise
of its jurisdiction under Section 12 of 1971 Act without arriving at a finding
that how the Corporation violated its order-Judgment of High Court is
subject to correction by this Court i~ appeal-Hence set aside--ConJempt of
Courts Act, 1971-ss. 12 and 13-lndustrial Disputes Act, 1947-lndustrial F
Dispute.

Words and Phrases:

'Irregular appointment' and 'illegal appointment'-Distinction
between-Discussed.
G
'Regularisation'-Meaning of in the context of service jurisprudence-
Discussed.

A large number of employees were appointed by the Appellant-Municipal

85 H
86 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Corporation, Jabalpur on daily wages. The recruitment procedure, as laid down
under the rules framed by the State of Madhya Pradesh had not been followed.
An industrial dispute has been raised. Labour Courts, in their Awards, arrived
at different conclusions. The Corporation purported to have laid down a policy
decision to regularise the services of the employees. Several writ petitions
B were filed by the aggrieved employees questioning the correctness or otherwise
of the Awards. A contempt petition was also filed by the respondent-employee
alone, inter alia, on the premi"se that the Corporation was making
discrimination amongst the employees in the matter of regularisation of their
services. High Court directing the Corporation to make a proper gradation
list of the employees in question before regularizing their services. Hence
C ' the present appeal.
Appellant-Corporation contended that the High Court committed a
serious error in directing regulariZiltion of services of the employee, as the
purported policy decision on the basis whereof the High Court passed its order
framing a scheme of rt>gularisation, has been superceded by issuing a
D Circular by the State; and that having regard to the various decisions of this
Court and in particular, the Constitution Bench Judgment in Secretary, State
ofKarnataka & Ors. v. Umadevi (3) & Ors., the impugned judgment cannot
be sustained.

E Allowing the appeal, the Court

HELD:l.l. 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
F framed by it. 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 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
G oflndia has not been complied with. Regularisation, as is well known, is not
a mode of appointment. Regularisation does not mean permanence.
l91-C-D-E)
Secret_ary, State of Karnataka & Ors. v. Umadevi, 2 and Ors. [20061 4
SCC 44: \2003) 10 SCALE 388, followed.
H
MUNICIPAL CORPRN. JABALPUR v. OM PRAKASH DUBEY 87

1.2. In the event the appointment is made in total disregard of the A
constitutional scheme as also the recruitment rules framed by the employer,
which is State within the meaning of Article 12 of the Constitution oflndia,
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. (94-E-Fj B
R.N. Nanjundappa v. T. Thimmiah & Anr. (19721 1 SCC 409; B.N.
Nagarajan & Ors. v. State of Karnataka & Ors. (1979) 4 SCC 507; National
Fetilizers Ltd. & Ors. v. Somvir Singh, (2006) 5 SCC 493; State of Gujarat &
Anr. v. Karshanbhai K. Rabari & Ors. (2006) 6 SCC21; Principal, Mehar C
Chand Polytechnic & Anr. v. Anu Lamba & Ors. [2006] 7 SCC 161 Surinder
Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. [2006) 7
sec 684; Mineral Exploration Corpn. Employees' Un.ion v. Mineral
Exploration Corpn. Ltd & Anr. [2006) 6 SCC 310 and State of Mysore &
Anr. v. S. V. Narayanappa AIR (1967) SC 1071, referred to.
D
1.3. There is another aspect of the matter which cannot be lost sight of.
The Corporation may be bound by the decision oft.he 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. [98-F-G I
E
State of Orissa & Anr. v. Aswini Kumar Baliar Singh, (2006) 6 SCC
759, referred to.

2. This Court is not called upon to consider the implication of the
Awards, which might have been passed in favour of the workmen. The Division
Bench of the High Court, by reason of the impugned judgment had issued F
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 Single Judge of the High Court. The judgment
of the Division Bench of the High Court is, thus, subject to correction by this G
Court both under Article 136 of the Constitution of India as also under Section
19 of the Contempt of Court Act. [99-B-C-D]

Modi Telefibres Ltd & Ors. v. Sujit Kumar Choudhaty & Ors., (2005) 7
SCC 40 and Vivek Sarin v. Multi Metal Udyog, [2005) 11 SCC 495, referred
to. H
88 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A R. v. Serumaga, (20051_2 All ELR 160, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5607 of2006.

From the final Judgment and Order dated 18.8.2005 of the High Court
of Madhya Pradesh at Jabalpur in Contempt Petition No; 70 of 2004.
B
Ranjan Mukherjee for the Appellant.

Ravindra Shrivastava, C.G. Solshe, M. Mannan V.C. Solshe, Kunal Verma
and Raju! Shrivastava for the Respondent.

C The Judgment of the Court was deHvered by

S.B. SINHA, J. Leave granted.

Appellant is a Municipal Corporation constituted under the Madhya
Pradesh Municipal Corporation Act, 1956 (for sho~, 'the Act'). Indisputably,
D 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.

A large number of employees were appointed by the Corporation on
daily wages. The terms and conditions of their appointment are not known.
E It is, however, not disputed that recruitment procedure, as laid down by the
ru Jes 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
F policy decision to regularise the services of the employees in terms whereof
those who had been working from a period prior to 3 lst 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
G of the Corporation brought to its notice about the said purported scheme of
the State.

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
H
,
MUNICIPAL CORPRN. JABALPUR v. OM PRAKASH DUBEY [S.B. SINHA, J.] 89
respondent herein alone, although, as noticed hereinbefore, the scheme involved A
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 B
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 C
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, D
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.
E

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
F
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 malajide rate (sic) in issuing the order G
of regularisation which are contrary to the directions issued by this
Court in Ramadhar Case or have manipulated the things for the purpose
of issuing regularisation orders of the employees who were not eligible
for the regularisation. Aforesaid action shall be taken by the
Commissioner, Municipal Corporation within a period of three months H
90 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. .....

A from today. In case some action is to be taken by the State, an
appropriate step shall be taken by him in this regard drawing attention
of the State within a period of 30 days from today.

The Commissioner, Municipal Corporation shall be responsible for
the compliance of this order. A compliance report of this order be
B sent to the Registry of this Court within a period as fixed by this Court
hereinabove.

Report filed in a sealed cover is returned to Shri Sharad Verma,
learned counsel."

C The Municipal Corporation is, thus, before us.

Mr. Ranjan Mukherjee, learned counsel appearing on behalf of the
appellant would submit that the High Court committed a serious error in
issuing the aforesaid directions, as the purported policy decision dated
31.3 .1997, on the basis whereof the High Court passed its order framing a
D scheme of regularisation on 27.2.2003, has been superceded by the State by
issuing a circular dated 12.4.2005, inter alia, stating :

"Appointments made on the above daily wage were not made keeping
in view the provisions of Departmental Recruitment Rules and other
reservation provisions, rather employees were engaged as per the
E requirement of the work. Supreme Court has made the observation in
regard to the civil posts of daily wage employees/workers and
regularisation in the services in the Case No.349211996 titled State of
Himachal Pradesh v. Suresh Kumar Verma and such regularisation
had been deemed violation of Articles 14 and 16 of the Constitution.
F It has also been observed in the above case by the S1,1preme Court
that appointment made on the basis of daily wages could not be
deemed the appointment made as per the relevant recruitment rules
against the Civil Posts and appointment could be made against the
Civil Poi;ts only after following the procedure of recruitment as per the
relevant recruitment rules. Above ruling laid down by the Supreme
G Court has already been submitted to all the Departments/ Appointing .
Authorities vide even numbered memo dated 01.11.2004 of this
Department."

The learned counsel would contend that having regard to the various
decisions of this Court and in particular, the Constitution Bench Judgment in
H
MUNICIPAL CORPN. JABALPUR v. OM PRAKASH DUBEY [S.B. SINHA, J.] 91
Secretary, State of Karnataka & Ors. v. Umadevi, 3 and Ors., [2006] 4 SCC A
I the impugned judgment cannot be sustained.

Mr. Ravindra Shrivastava, learned Senior Counsel appearing on behalf
of the respondent, on the other hand, would contend that the High Court
issued direction to regularise the services of the workmen, keeping in view
different Awards passed in their favour by the Labour Court as also the policy B
decision adopted by the appellant itself. It was further submitted that in this
case the directions contained in paragraph 53 of the decision of the issued
by the Constitution Bench of this Court in Umadevi (supra), shall be applicable.

Appellant is a "State" within the meaning of Article 12 of the Constitution C
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 D
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. Regclarisation,
again indisputably, does not mean permanence. However, having noticed that E
different Benches of this Court had been passing different orders, in Secretary,
State of Karnataka & Ors. v. Umadevi (2) & Ors. [2006] 4 SCC 44 : (2003)
10 SCALE 388, a Three Judge Bench referred the matter to the Constitution
Bench. In Umadevi (3) (supra), the Constitution Bench held :

"During the course of the arguments, various orders of the courts
F
either interim or final were brought to our notice. The purport of those
orders more or less was the issue of directions for continuation or
absorption without referring to the legal position obtaining. Learned ·
counsel for the State of Karnataka submitted that chaos has been
created by such orders without reference to the legal principles and G
it is time that this Court settled the law once and for all so that in case
the Court finds that such orders should not be made, the courts,
especially, the High Courts would be precluded from issuing such
directions or passing such orders. The submission of learned counsel
for the respondents based on the various orders passed by the High
H
92 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Court or by the Government pursuant to the directions of the Court
also highlights the need for settling the law by this Court. The
bypassing of the constitutional scheme cannot be perpetuated by the
passing of orders without dealing with and deciding the validity of
such orders on the touchstone of constitutionality. While approaching
the questions falling for our decision, it is necessary to bear this in
B mind and to bring about certainty in the matter of public employment.
The argument on behalf of some of the respondents is that this Court
having once directed regularisation in Dharwad case all those
appoint_ed temporarily at any point of time would be entitled to be
regularised since otherwise it would be discrimination between those
c similarly situated and in that view, all appointments made on daily
wages, temporarily or contractually, must be directed to be regularised.
Acceptance of this argument would mean that appointments made
otherwise than by a regular process of selection would become the
order of the day completely jettisoning the constitutional scheme of •
appointment. This argument also highlights the need for this Court to
D formaily lay down the law on the question and ensure certainty in
dealings relating to public employment. The very divergence in
approach in this Court, the so-called equitable approach made in
some, a:: against those decisions which have insisted on ·the rules
being followed, also justifies a firm decision by this Court one way
E or the other. It is necessary to put an end to uncertainty and clarity
the legal position emerging from the constitutional scheme, leaving
the High Courts to follow necessarily, the law thus laid down."

Referring to a large number of decisions which have been rendered by
different Benches of this Court from time to time, the Constitution Bench
F categorically opined :

"While directing that appointments, temporary or casual, be
regularised or made permanent, the courts are swayed by the fact that
the person concerned has worked for some time and in some cases
for a considerable length of time. It is not as if the person who accepts
G an engagement either temporary or casual in nature, is not aware of
the nature of his employment. He accepts the employment with open
eyes. It may be true that he is not in a position to bargain - not at
arms length - since he might have been searching for some employment
so as to eke out his livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to jettison the
H
MUNICIPAL CORPN. JABALPUR v. OM PRAKASH DUBEY [S.B. SINHA, J ] 93

constitutional scheme of appointment and to take the view that a A
person who has temporarily or casually got employed should be
directed to be continued permanently. By doing so, it will be creating
another mode of public appointment which is not permissible. If the
court were to void a contractual employment of this nature on the
ground that the parties were not having equal bargaining power, that B
too would not enable the court to grant any relief to that employee.
A total embargo on such casual or temporary employment is not
possible, given the exigencies of administration and if imposed, would
only mean that some people who at least get employment temporarily,
contractually or casually, would not be getting even that employment
when securing of such employment brings at least some succour to C
them. After all, innumerable citizens of our vast country are in search
of employment and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an employment.
It is in that context that one has to proceed on the basis that the
employment was accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even while accepting D
the employment, the person concerned knows the nature of his
employment. It is not an appointment to a post in the real sense of
the term. The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be considered
to be of such a magnitude as to enable the giving up of the procedure E
established, for making regular appointments to available posts in the
services of the State. The argument that since one has been working
for some time in the post, it will not be just to discontinue him, even
though he was. aware of the nature of the. employment when he first .
took it up, is not (sic) one that would enable the jettisoning of the
procedure established by law for public employment and would have F
to fail when tested on the touchstone of constitutionality and equality
of opportunity enshrined in Article 14 of the Constitution."

By way of clarification, however, in paragraph 53 of its judgment this
Court clarified :
G
"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 ar.d referred
to in para 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employee~ have continued H
94 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A to work for ten years or more but without the intervention of orders
of the courts or of tribunals. The question of regularisation of the
services of such employees may have to be considered on merits in
the light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context, the Union
of India, ·the .State Governments and their instrumentalities should
B take steps to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of the courts or of
tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be
c filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if any
already made, but not sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent, those
D not duly appointed as per the constitutional scheme."

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
E 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
F rules might not have been strictly adhered to.

In R.N Nanjundappa v. T. Thimmiah & Anr., [1972] l SCC 409, this
Court held:

"The contention on behalf of the State· that a rule under Article
G 309 for regularisation of the appointment ofa person would be a form
of recruitment read with reference to power under Article 162 is unsound
and unacceptable. The executive has the power to appoint. That
power may have its source in Article 162. In the present case the rule
which regularised the appointment of the respondent with effect from
February 15, 1958, notwithstanding any rules cannot be said to be in
H
MUNICIPAL CORPN. JABALPUR v. OM PRAKASH DUBEY [S.B. SINHA, J.) 95

exercise of power under Article 162. First, Article 162 does not speak A
of rules whereas Article 309 speaks of rules. Therefore, the present
case touches the power of the State to make rules under Article 309
of the nature impeached here. Secondly when the Government acted
under Article· 309 the Government cannot be said to have acted also
under Article 162 in the same breath. The two articles operate in
different areas. Regularisation cannot be said to be a form of B
appointment. Counsel on behalf of the respondent contended that
regularisation would mean conferring the quality of permanence on
the appointment whereas counsel on behalf of the State contended
that regularisation did dot mean permanence but that it was a case of
regularisation of the rules under Article 309. Both the contentions are C
'
(

fallacious. If the appointment itself is in infraction of the rules or if
it is in violation of the provisions of the Constitution illegality
cannot be regularised. Ratification or regularisation is possible of
an act which is within the power and province of the authority but
there has been some non-compliance with procedure or manner
which does not go to the root of the appointment. Regularisation D
cannot be said to be a mode of recruitment. To accede to such a
proposition would be to introduce a new head of appointment in
defiance vf rules or it may have the effect of setting at naught the
rules."

(Emphasis supplied]
E

Yet again, in B.N. Nagarajan & Ors. v. State of Karnataka & Ors.,
(1979] 4 SCC 507, this Court followed the said dicta stating:

"Apart from repelling the contention that regularisation connotes
permanence, these observations furnish the second reason for rejection. F
of the argument advanced on behalf of the promotees and that reason
is that when rules framed under Article 309 of the Constitution of
India are in force, no regularisation is permissible in exercise of the
executive powers of the Government under Article 162 thereof in
contravention of-the rules. The regularisation order was made long G
after the Probation Rules, the Seniority Rules and the Recruitment
Rules were promu !gated and could not therefore direct something
which would do violence to any of the provisions thereof.
Regularisation in the present case, if it meant pennanence operative
from November l, 1956, would have the effect of giving seniority to
H
96 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A promotees over the direct recruits who, in the absence of such
regularisation, would rank senior to the former because of the Seniority
Rules read with the Probation Rules and may in consequence also
confer on the promotees a right of priority in the matter of sharing the
quota under the Recruitment Rules. In other words, the regularisation
order, in colouring the appointments of promotees as Assistant
B Engineers with permanence would run counter to the rules framed
under Article 309 of the Constitution of India. What could not be
done under the three sets of Rules as they stood, would thus be
achieved by an executive fiat. And such a course is not permissible
because an act done in the exercise of the executive power of the
c Government, as already stated, cannot override rules framed under
Article 309 of the Constitution."

This aspect of the matter has been considered in National Fetilizers
Ltd & Ors. v. Somvir Singh, [2006] 5 SCC 493, stating :

D "The contention of the learned counsel appearing on behalf of the
respondents that the appointments were irregular and not illegal,
carinot 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 on employment, no recruitment was
E permissible in law. The reservation policy adopted by the appellant
had not been maintained. Even cases of minorities had not been given
due consideration.

The Constitution Bench thought of directing re&ularisation of the
services only of those employees whose appointments were irregular
F as explained in State ofMysore v. S. V. Narayanappa, R.N. Nan}undappa
v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka, wherein
this Court observed: [Umadevi (3) case, SCC p. 24, para 16]

"16. In B.N. Nagarajan v. State of Karnataka this Court clearly
held that the words regular or regularisation do not connote
G permanence and cannot be construed so as to convey an idea
of the nature oftenure of appointments. They are terms calculated
to condone any procedural irregularities and are meant to cure
only such defects as are attributable to methodology followed in
making the appointments."
H
MUNICIPAL CORPN. JABALPUR v. OM PRAKASH DUBEY [S.B. SINHA, J.] 97

{See also State of Gujarat & Anr. v. Karshanbhai K. Rabari & Ors., A
(2006] 6 sec 21.}

Yet, recently in Principal, Mehar Chand Polytechnic & Anr. v. Anu
Lamba & Ors., [2006] 7 SCC 161, it was held:

"The respondents did not have legal right to be absorbed in B
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 C
meant for generating employment. It was meant for providing technical
education to the agriculturists. In the 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."

This Court, in Surinder Prasad Tiwari v. UP. Rajya Krishi Utpadan
D
Mandi Parishad & Ors., [2006] 7 SCC 684, held :

"Our constitutional scheme clearly envisages equality of
opportunity in public employment. The Founding Fathers of the
Constitution intended that no one should be denied opportunity of E
being considered for public employment on the ground of sex, caste,
place of birth, residence and religion. This part of the constitutional
scheme clearly reflects strong desire and constitutional philosophy to
implement the principle of equality in the true sense in the matter of
public employment.
F
In view of the clear and unambiguous constitutional scheme, the
courts cannot countenance appointments to public office which have
been made against the constitutional scheme. In the· backdrop of
constitutional philosophy, it would be improper for the courts to give
directions for regularisation of services of the person who is working
either as daily-wager, ad hoc employee, probationer, temporary or G
contractual employee, not appointed following the procedure laid
down under Articles 14, 16 and 309 of the Constitution. In our
constitutional scheme, there is no room for back door entry in the
matter of public employment."

We are, however, not oblivious that another Division Bench of this H
98 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.

A Court in Mineral Exploration Corpn. Employees' Union v. Mineral
Exploration Corpn. ltd & Anr., (2006) 6 SCC 310, to which our attention has
been drawn by Mr. Shrivastava, held :

"We, therefore, direct the Tribunal to decide the claim of the
workmen of the Union strictly in accordance with and in compliance
B with all the directions given in the judgment by the Constitution
Bench in Secy., State of Karnataka v. Umadevi (3) and in particular,
paras 53 and 12 relied on by the learned Senior Counsel appearing for
the Union. The Tribunal is directed to dispose of the matter afresh
within 9 months from the date of receipt of this judgment without
c being influenced by any of the observations made by us in this
judgment. Both the parties are at liberty to submit and furnish the
details in regard to the names of the workmen, nature of the work, pay
scales and the wages drawn by them from time to time and the
transfers of the workmen made from time to time, from place to place
and other necessary and requisite details. The above details shall be
D submitted within two months from the date of the receipt of this
judgment before the Tribunal."

The said directions were issued ·keeping in view the peculiar facts,
wherewith we are not concerned. The attention of this Court furthermore was
not drawn to the judgment of this Court rendered in R.N. Nanjundappa
E (supra), State ofMysore& Anr. v. S. V. Narayanappa, AIR (1967) SC 1071 and
B.N. Nagarajan (supra).

We may notice that the decision of this Court in B.N. Nagarajan (supra)
was rendered by a Thr~e Judge Bench. Evidently, the attention of the Cot1:rt
had also not been drawn to the decision of this Court in National Feti/izers
F ltd (supra).

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
G 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. The
question recently came up for consideration in State of Orissa & Anr. v.
Aswini Kumar Baliar Singh, (2006) 6 SCC 759, wherein a Division Bench of
this Court held that the Court is primarily concerned with the question of
contumacious conduct of the party who is alleged to have committed default
H in complying with the directions in the judgment and order. It was held :
MUNICIPALCORPN. JABALPUR '"OM PRAKASH DUBEY [S.B. SINHA, J.] 99
"In the instant case, the action taken by the respondent in purported A
violation of the Court's order arose owing to a subsequent cause of
action, namely, orders passed by the State of Orissa and unless the
said orders were set aside, the Inspector of Schools can be said to
have flouted the order of the High Court. ...... "

We are in this case not called upon to consider the implication of the B
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 C
directions issued by a learned Single Judge by an order dated 27.2.2003.

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.
D
Recently in R. v. Serumaga, [2005] 2 All ELR 160, it was opined :

"Section 13 of the 1960 Act provides as follows :

'(1) Subject to the provisions of this section, an appeal shall lie
under this section from any order or decision of a court in the exercise E
of jurisdiction to punish for contempt of court (including criminal
contempt); and in relation to any such order or decision the provisions
of this section shall have effect in substitution for any other enactment
relating to appeals in civil or criminal proceedings.

(2) An appeal under this section shall lie in any case at the instance F
of the defendant and, in the case of an application for committal or
attachment, at the instance of the applicant; and the appeal shall lie
... (bb) from an order or decision of the Crown Court to the Court of
Appeal ...

(3) The court to which an appeal is brought under this section G
may reverse or vary the order or decision of the court below; and
make such other order as may be just ... '

We have considered two interpretations of s 13(1). The narrow
interpretation is to the effect that it is not triggered until the contemnor
has been convicted of, and sentenced for, the contempt. The broad H
100 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A interpretation is that the language 'any order or decision ... in the
exercise of jurisdiction to punish for contempt' is sufficiently wide to
relate also to orders or decisions made in the course of proceedings
which may result in a conviction of and sentence for contempt. But
we have come to the conclusion that the broad interpretation is the
correct one. The statutory language permits it. It provides a remedy
B in a case of unjustifiably prolonged custody, and it does so without
impinging on cases where the allegation is of an offence other than
contempt of court. Moreover, there are exceptional features which
surround summary proceedings for contempt which, as the authorities
make clear, demand an enlarged process of judicial scrutiny .... "
c {See also Modi Telefibres Ltd. & Ors. v. Sujit Kumar Choudhary &
Ors., [2005] 7 SCC 40 and see also Vivek Sarin v. Multi Metal Udyog, [2005]
11sec495.}

We, therefore, for the reasons aforementioned, are unable to uphold the
D impugned order which is accordingly set aside.

The appeal is allowed with the aforementioned observations and
directions. No costs.

S.K.S. Appeal allowed.
E