Holding

Appointments made in contravention of statutory recruitment rules and constitutional equality provisions are void, and temporary project employees have no right to regularisation; therefore, the High Court's direction to create posts and regularise their services is illegal.

Summary

The respondents were appointed as Assistant Computer Instructors on a purely temporary basis under a Community Polytechnics project funded by the Ministry of Human Resource Development. No vacancy had been advertised, nor was the post notified to the Employment Exchange, and the appointments were not made in accordance with the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 or the recruitment rules required by Articles 14 and 16 of the Constitution. The respondents sought regularisation and a scale of pay; the Punjab & Haryana High Court directed the appellant to create posts and regularise their services. On appeal, the Supreme Court held that appointments made in violation of statutory recruitment procedures are void, that temporary project employees have no legal right to regularisation, and that the High Court could not lawfully order the creation of posts. Consequently, the part of the High Court judgment directing regularisation was set aside and the appeals were partly allowed.

Issues considered

The legality of regularising temporary employees appointed under a project scheme without a sanctioned vacancy or compliance with recruitment rules.
Whether the High Court could direct the creation of posts and regularisation of such employees.
Applicability of Articles 14, 16 and 309 of the Constitution and the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 to the appointments.

Legislation cited

Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959

Subjects

public employmentregularisationtemporary appointmentArticle 14Article 16Employment Exchange Actequality clauserecruitment rulesproject schemeconstitutional law

Judgment

A PRINCIPAL, MEHAR CHAND POLYTECHNIC AND ANR.
v.
ANU LUMBA AND ORS.

AUGUST 8, 2006

B [S.B. SINHA AND DAL VEER BHANDARI, JJ.]

Constitution of India, 1950-Article 16-Public employment-Project
under scheme of Ministry of Human Resources Development, Government of
C Jndia--Under norms for implementation of scheme expenditure on wages of
employees had to be within a fixed limit of total recurring expenditure and
taking them on scale was not permissible-High Court directing creation of
posts and allowing grant of scale of pay-Correctness of-Held-Prior to
appointment of employees no vacancy or sanctioned post existed-Posts
were neither advertised nor notified to Employment Exchange-Recruitment
D was not in terms of statutory rules and/or upon compliance of requirements
envisaged under Articles 14 and 16 the Constitution-Employees did not
have legal right to be absorbed in service especially as they were appointed
purely on temporary basis and the project, although continued for some time,
was initially intended to be a time bound one.

E Respondents were appointed as Assistant Computer Instructors with
appellant who had undertaken a Community Polytechinc Project under a
scheme of the Ministry of Human Resources Development, Government of
India. Under norms issued for implementing the s<;heme, expenses were to be
granted by the Central Government. As regards recurring expenditure,
F Instructors were to be appointed on a consolidated amount within a fixed limit
of total recurring expenditure. It was also directed that taking of person on
scale was not permissible for purposes of the scheme. Respondents made
representation for grant of scale of pay, which was rejected. However, High
Court allowed their writ petition directing the appellant to create suitable posts
and also consider the question of regularization of their services to the said
G post. Hence, the present appeal.
,
Appellants contended that respondent was appointed in a project and
hence their services could not be regularized.

Respondents contended that (i) Union of India, being a model employer,
H 436
PRINCIPAL, MEHARCHANDPOLYTECHNIC v. ANULUMBA 437

could not have taken recourse to arbitrary exercise of power by imposing such A
harsh conditions of service (ii) putting of long years of service itself would be
sufficient for directing regularization of service.

Partly allowing the appeals, the Court

HELD I.I. Public employment is a facet of right to equality envisaged B
under Article 16 of the Constitution of India. The State although is a model
employer, its right to create posts and recruit people therefor emanates from
the statutes or statutory rules and/or rule framed under the proviso appended
to Article 309 of the Constitution of India. The recruitment rules are framed
with a view to give equal opportunity to all the citizens of India entitled for C
being considered for recruitment in the vacant posts. [442-DI

1.2. The Parliament for giving effect to the provisions of Article 16 of
the Constitution enacted the Employment Exchange (Compulsory Notification
of Vacancies) Act, 1959. The statutes and the statutory rules framed by the
Union of India and other State also invariably requite issuance of public notices D
so as to enable all eligible candidates to file applications thereof. The
Constitution and/or statutes or statutory rules do not make any distinction
between post and posts. The recruitment process for all posts is the same.
(442-EI

2. It is not the case of the respondents that prior to issuance of the said E
offer of appointment any vacancy existed. It is furthermore not their case that
they were recruited in terms of the statutory rules and/or upon compliance
of the requirements envisaged under Articles 14 and 16 of the Constitution
of India. It is also not their case that prior to their appointments any
advertisement was issued enabling the eligible candidates to file applications
therefor or the vacancies were notified to the Employment Exchange. F
(440-G-H; 441-AI

3. Neither a policy decision was taken by the Central Government nor
there existed any rules in this behalf. The respondents did not have legal right
to be absorbed in service. They were appointed purely on temporary basis. G
[445-G-H; 447-G-HJ

Secretary, State of Karnataka and Ors. v. Umadevi and Ors., (20061 4
SCC 1, Delhi Development Horticulture Employees' Union v. Delhi
Administrative, Delhi and Ors., (199214 SCC 99, followed.
y<.
State ofHimachal Pradesh v. Nodha Ram and Ors., AIR (1997) SC 1445, H
438 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A A. Uma Rani v. Registrar, Cooperative Societies and Ors., 120041 7 SCC 112
and National Fertili=ers ltd and Ors. v. Somvir Singh. (2006) 6 SCALE IOI,
relied on.
State of U.P. v. Neeraj Aswathi and Ors., 1200611SCC667 and Secretary,
State of Karnataka and Ors. v. Umadevi and Ors., 1200614SCC44, referred
B to.
Jacob M. Puthuparambi and Ors. etc. v. Kera/a Water Authority and
Ors., 119911 I SCC 28 and Karnataka State Private College Stop-Gap
lecturers Association etc. v. State of Karnataka and Ors., jl992j 2 SCC 29
distinguished.
c M Madari and Ors. v. State ofKarnataka and Ors., 119951 Supp. 4 SCC
111, held inapplicable.

State of Haryana and Ors. v. Piara Singh and Ors., 119921 4 SCC II8,
dissented.

D 4. 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 meant for generating employment. It was meant
for providing technical education to the agriculturalists. In absence of any
legal right in the respondents, the High Court could not have issued a writ of
E or in the nature of mandamus. 1447-H; 448-A-BI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7051 of2002.

From the Judgment and Order dated 16.3.2001 of the High Court Punjab
and Haryana at Chandigarh in C.W.P. No. 11275/1998 (O&M).

F WITH
C.A. Nos. 7052/2002, 6028-6030,7505-750612004, 292212005, 3436, 3437,
343812006, T.C. Nos. 65 to 71/2004, T.C. (C) No. 107/2006 arising out ofT.P.
(C) No. 850/2005.

T.L.V. Iyer, Pramod Dayal, Vivek Vishnoi, Ranbir Yadav, S. Anand Krishan
G Raj, L.D. Sharma, Rajiv Tyagi, Himanshu Mitra, B. Dixit, Indira Sawhney,
Sunita Sharma, Sandhya Goswami, Heman! Sharma, Anil Katiyar, V.K. Verma,
Krishnanand Pandey, Anita Verma and Sushma Suri for the appearing parties.

The Judgment of the Court was delivered by

H S.B. SINHA, J. Delay condoned in S.L.Ps.
PRINCIPAL, MEHAR CHAND POLYTECHNIC v. ANU LUMBA [SINHA,!.] 439
Leave granted in S.L.Ps. A
These civil appeals and transfer applications involve a common question
as regards the legal right of regularization of the Respondents in services,
although appointed for a fixed period in a project and, thus, are being disposed
of by this common judgment.
B
We would notice the factual matrix of the matter from Civil Appeal No.
7051 of 2002. The First Respondent was appointed as an Assistant Computer
Instructor. Mehar Chand Polytechnic, Jalandhar, undertook a Community
Polytechnic Project, a scheme issued by the Ministry of Human Resources
Development, Government of India. The Central Government issued
"provisional norms" for implementing the scheme. Specific amounts by way C
of both recurring and non-recurring expenses used to be granted by the
Central Government. Under the head 'non-recurring' expenses, a sum of Rs.
Ten lacs was earmakred for acquisition of tools and equipments for five
extension centres. As regards recurring nature of expenditure,. Instructor were
to be appointed on a consolidated amount of Rs.1,500/- or Rsc2,000/- as the D
case may be. The total amount of recurring expenditure was fixed at Rs. Seven
lacs only. In the circular letter, it was, inter alia, stated :

"The expenditure shown above are at the maximum limit and the
actual expenditure on each item should be limited to the bare minimum.
The payment of salary/honorarium should also be limited considering E
the nature of duties and responsibilities entrusted and no regular staff
should be appointed till the final guideline document is approved and
necessary instructions are intimated. Engagement of Part-time/Full-
Time staff should be based on the actual requirement."

It was directed that the total wages payable to the employees should F
not exceed 2/3rd of the amount of the grant. It was further stated that even
deputation should not be encouraged. By a circular letter dated 07 .04.1998,
the Technical Teachers' Training Institute, inter alia, issued the following
directions to the Principal of the Polytechnic :

"2. Those who have been taken on deputation from the Polytechnic G
to Community Polytechnic, their salaries can be protected but total
• wage salaries of whole CP Scheme should not in any circumstances
exceed 2/3rd of the allotted recurring grant. As such CPs must be
careful in taking the person on deputation and in no circumstances,
two persons-Project Officer and Asstt. Project Officer or both should H
440 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A not be taken on deputation.

3. As already indicated, as per the guidelines of Govt. of India which
have already been circulated, persons can be taken on deputation or
on contract/tenure basis. But certain cases have come to the notice
of undersigned where CP have appointed PO or APO or both on scale
B basis. As this i5 a plan and project scheme of GO!, taking the person
on the scale is not permissible as per the instructions of GOI, MHRD
and also this is not permissible to give them revised scales as per the
5th Pay Commission of Central Government or 4th Pay Commission of
respective State Government. As such, it is intimated that under no
circumstances, you should give the revised scales to the persons
c working under CP/CDRT Scheme unless clear-cut guidelines are issued
by GO!, MHRD."

Indisputably, no post was created. The objective of the project was not
to provide employment but to give some input to the peopie at the rural level
D by educating them so as to enable them to utilize their lands more beneficially.
The project although lasted for a long time, but visualized to be of limited
duration, by reason thereof no substantive appointment was to be giv.,n. The
project was to be manned by a few persons on a temporary basis.

The First Respondent herein was appointed in the said project in terms
E of the said policy dtcision of the Central Government. One of the appointment
letters issued to the First Respondent reads as under :-

"Please refer to your application dated 31.7.1992 for the post of
Asstt. Computer Instructor at this wing.

You are hereby offered the post of Asstt. Computer Instructor on
F
purely temporary basis w.e.f. 3.8.1992 on a consolidated salary of
Rs.1500/- per month for a period of one year i.e. upto 31.7.1993.

3. Your services can be terminated by giving 15 days notice on either
side."
G It is not the case of the Respondents that prior to issuance of the said
offer of appointment any vacancy existed or the same was notified to the
Employment Exchange. It is furthermore not their case that they were recruited
in terms of the statutory rules and/or upon compliance of the requirements
envisaged under Articles 14 and 16 of the Constitution of India. It is also not
H their case that prior to their appointments any advertisement was issued
PRINCIPAL, MEHARCHAND POLYTECHNIC v. ANU LUMBA [SINHA,J.] 441

enabling the eligible candidates to file applications therefor or the vacancies A
were notified to the Employment Exchange.

They made a representation for grant of scale of pay, which was rejected.
A writ petition was filed before the Punjab & Haryana High Court. An interim
order was passed directing the Central Government to put them on a regular
scale of pay. B

While considering the matter, the officials of the Directorate of Technical
Education, Punjab, sought for an information as to whether the Respondents
had obtained a certificate in computer training from a recognized institute. A
resolution to the said effect was taken by the appropriate committee.
c
Pursuant to the said resolution, the said Respondent was asked as to
whether she possessed the requisite qualification, to which she stated that
she had obtained a certificate from M/s Babbage Institute of Computer Studies,
which although was registered with the Registrar of Firms and Societies but
was not recognized by any competent authority.
D
The High Court by reason of the impugned judgment allowed the writ
petition directing the appellant to create suitable posts as also consider the
question of regularization of her services to the said post within three months,
directing:
E
" ... The petitioner has been in position since the year 1992. The post
is still needed. In this situation, we consider it appropriate to direct
that the petitioner's case for regularization on the post held by her
shall be considered within three months. The respondents shall fix an
appropriate scale of pay and place her in that scale. The emoluments
shall not be below Rs.5500/- per month as mentioned above." F
A limited noticed was issued by this Court confined only to the question
as to whether the High Court could direct for regularization of services of the
Respondent.

Mr. Su nil Gupta, the learned Senior Counsel appearing on behalf of the G
Appellants, submitted that in view of the fact that the Respondent was
appointed in a project, the High Court could not have directed regularization
of her services. Such a direction, the learned counsel contended, is contrary
tC' the decisions of this Court in Delhi Development Horticulture Employees'
,... Union v. Delhi Administration, Delhi and Ors., [1992] 4 SCC 99, State of H
442 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A Himacha/ Pradesh v. Nodha Ram and Ors., AIR (1997) SC 1445 as also a
recent Constitution Bench decision in Secretary, State of Karnataka and Ors.
v. Umadevi and Ors .. [2006] 4 SCC I.

Mr. T.L. Iyer, the learned Senior Counsel appearing on behalf of the
Respondents, on the other hand, urged that keeping view the fact that the
B scheme was in operation since 1979, and the number of such Community
Polytechnics has gone up throughout India, the Union of India, being a model
employer, could not have taken recourse to arbitrary exercise of power by
imposing such harsh conditions of service. Putting of long years of service,
according to the learned counsel, itself would be sufficient for directing
C regularization of service.

Public employment is a facet of right to equality envisaged under
Article 16 of the Constitution of India. The State although is a model employer,
its right to create posts and recruit people therefor emanates from the statutes
or statutory rules and/or rules framed under the proviso appended to Article
D 309 of the Constitution of India. The recruitment rules are framed with a view
to give equal opportunity to all the citizens of India entitled for beirig
considered for recruitment in the vacant posts.

The Parliament for giving effect to the provisions of the Article 16 of
the Constitution enacted the Employment Exchanges (Compuisory Notification
E of Vacancies) Act, 1959. The sta:utes and the statutory rules framed by the
Union of India and other S;ates also invariably require issuance of a public
notices so as to enable all eligible candidates to file applications thereof. The
Constitution and/or statutes or statutory rules do not make any distinction
between post and posts. The recruitment process for all posts is the same.

F In a large number of cases, this Court noticed that the holders of public
posts had been making recruitments in total violation of the recruitment
process. In regard to the question of regularization also, different orders had
been passed by different benches. Some benches pointed out that the equality
doctrine enshrined in Articles 14 and 16 of the Constitution of India had been
G grossly violated by the authorities, and the provisions of recruitment rules
were given a complete go by. Even the beneficent provisions of the reservation
applicable to the backward classes of people had not been adhered to.

This Court also noticed a growing tendency of giving backdoor
appointments to a large section of employees on ad hoc basis or on daily
H wages.
PRINCIPAL,MEHARCHANDPOLYTECHNIC v.ANULUMBA[SINHA,J.] 443

With a view to give a quietus to the controversies arising out of A
differences in opinion expressed in different decisions, in Secretary, State of
Karnataka and Ors. v. Umadevi and Ors., (2006] 4 SCC 44, a three-Judge
Bench of this Court thought it fit to refer the matter for authoritative
pronouncements by a Constitution Bench, stating :

"I. Apart from the conflicting opinions between the three-Judge B
Bench decisions in Ashwani Kumar v. State of Bihar; State ofHaryana
v. Piara Singh; and Dharwad District PWD Literate Daily Wage
Employees Assn. v. State of Karnataka on the one hand and State of
H.P. v. Suresh Kumar Verma; State of Punjab v. Surinder Kumar; and
B.N. Nagarajan v. State of Karna/aka on the other, which have been C
brought out in one of the judgments under appeal of the Karnataka
High Court in State of Karnataka v. H. Ganesh Rao, decided on
1.6.2001 the learned Additional Solicitor General urged that the scheme
for regularization is repugnant to Articles 16(4), 309, 320 and 335 of
the Constitution and, therefore, these cases are required to be heard
by a Bench of five learned Judges (Constitution Bench). D
2. On the other hand, Mr. M.C. Bhandare, learned Senior Counsel,
appearing for the employees urged that such a scheme for
regularization is consistent with the provisions of Articles 14 and 21
of the Constitution.
E
3. Mr. V. Lakshmi Narayan, learned counsel appearing in CCs
Nos. 109-498 of2003, has filed the GO dated 19.7.2002 and submitted
that the orders have already been implemented.

4. After having found that there is conflict of opinion between the
three-Judge Bench decisions of this Court, we are of the view that p
these cases are required to be heard by a Bench of five learned
Judges.

5. Let these matters be placed before the Hon'ble the Chief Justice
for appropriate orders."
G
The Constitution Bench of this Court while answering some of the said
questions in no uncertain tenns held that any appointment made in violation
of the statute or in derogation of the equality clause contained in Articles 14
and 16 of the Constitution would be void and of no effect. It was opined that
such persons who had obtained such illegal appointments were not entitled
to claim regularization. H
444 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A We may at this juncture notice that way back in 1992, a three-Judge
Bench of this Court in Delhi Development Horticulture Employees' Union
(supra) observed as under :

"The above figures show that if the resources used for the Jawahar
Rozgar Yojna were in their entirety to be used for providing full
B employment throughout the year, they would have given employment
only to a small percentage of the population in need of income, the
remaining vast majority being left with no income whatsoever. No fault
could, therefore, be found with the limited object of the scheme given
the limited resources at the disposal of the State. Those employed
under the scheme, therefore, could not ask for more than what the
c scheme intended to give them. To get an employment under such
scheme and to claim on the basis of the said employment, a right to
regularisation, is to frustrate the scheme itself. No court can be a party
to such exercise. It is wrong to approach the problems of those
employed under such schemes with a view to providing them with full
D employment and guaranteeing equal pay for equal work. These
concepts, in the context of such schemes are both unwarranted and
misplaced. They will do more harm than good by depriving the many
of the little income that they may get to keep them from starvation.
They would benefit a few at the cost of the many starving poor for
whom the schemes are meant. That would also force the State to wind
E up the existing schemes and forbid them from introducing the new
ones, for want of resources. This is not to say that the problems of
the unemployed deserve no consideration or sympathy. This is only
to emphasise that even among the unemployed a distinction exists
between those who live below and above the poverty line; those in
F need of partial and those in need of full employment, the educated and
uneducated, the rural and urban unemployed etc."

Yet again in Nodha Ram (supra) in regard to the status of the temporary
employees em:iloyed in the Government project, it was held :

G "It is seen that when the project is completed and closed due to
non-availability of funds, the employees have to go along with its
closure, The High Court was not right in giving the direction to
regularise them or to continue them in other places. No vested right
is created in temporary employment. Directions cannot be given to
regularise their services in the absence of any existing vacancies nor
H can directions be given to the State to create posts in a non-existent
PRINCIPAL, MEHARCHAND POLYTECHNIC v. ANULUMBA [SINHA,J.] 445

establishment. The Court would adopt pragmatic approach in giving A
directions. The directions would amount to creating of posts and
continuing them despite non-availability of the work. We are of the
considered view that the directions issued by the High Court are
absolutely illegal warranting our interference. The order of the High
Court is, therefore, set side."
B
Strong reliance has been placed by Mr. Iyer in Jacob M Puthuparambil
and Ors etc. v. Kera/a Water Authority and Ors., [1991] I SCC 28, for the
proposition that even if statutory rules do not operate in the field, direction
for regularization is permissible in law.

Jacob (supra) was decided in a different fact situation. In that case the C
employees concerned were working in the erstwhile Public Health Engineering
Department. Upon creation of the Kerala Water and Waste Water Authority
constituted under Section 3(1) of the Ordinance 14 of 1984 repealed and
replaced by Act 14 of 1986, their services were transferred. The cases of
regularization of the employees appointed during different periods came up D
for consideration in the light of Rule 9(a)(i) of the Kerala State and Subordinate
Service Rules, 1958 and the Resolution adopted by the Authority in terms
thereof.

The contention of the employees therein was that they were having
been appointed in terms of the Rule 9( I) of the Rules and their names having E
been called for from the Employment Exchange, the services of those who
possessed requisite qualifications, could not be terminated. Clause (iii) of
Rule 9 provided for regularization of service of any person appointed under
clause (i) of sub-rule (a). A resolution had also been passed by th.e Authority
recommending to the State regularization of the service of the employees F
recruited in the erstwhile PHED and still working in the Kerala Water Authority.

It is in the aforementioned backdrop this Court directed regularization
of those who possessed the requisite qualifications.

In this case, neither a policy decision was taken by the Central G
Government nor their existed any rules in this behalf. Although this Court is
not directly concerned as to whether such a policy decision could have been
taken in view of the provisions contained in Article 309 of the Constitution
of India, we may notice that in A. Uma Rani v. Registrar, Cooperative
Societies and Ors., [2004] 7 SCC 112, this Court opined :
H
446 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A "No regularization is, thus, permissible in exercise of the statutory
power conferred under Article 162 of the Constitution if the
appointments have been made in contravention of the statutory rules."

Reliance has also been placed by Mr. Iyer on Karnataka State Private
College Stop-Gap Lecturers Association etc. v. State of Karnataka and Ors.,
B [1992) 2 sec 29, wherein this Court issued some directions; but while doing
so it did not take into consideration the relevant constitutional provisions. It
may, however, be noticed that even therein it was opined :

"... A temporary or ad hoc employee may not have a claim to become
permanent without facing selection or being absorbed in accordance
c with rules but no discrimination can be made for same job on basis
of method of recruitment. Such injustice is abhorrent to ~he
constitutional scheme.

Reliance placed by the learned counsel on the said decision is, therefore,
D misplaced.
Reliance has also been placed on State of Haryana and Ors. v. Piara
Singh and Ors., [ l 992] 4 SCC 118. We need not dilate on the said decision
as the same was considered by the Constitution Bench in Umadevi, supra
opining that the direction made therein to some extent is inconsistent with the
E conclusion, stating :
"With respect, the direction made in paragraph 50 of Piara Singh
is to some extent inconsistent with the conclusion in paragraph 45
therein. With great respect, it appears to us that the last of the
directions clearly runs counter to the constitutional scheme of
F employment recognized in the earlier part ·of the decision. Really, it
cannot be said that this decision has laid down the law that all ad hoc,
temporary or casual employees engaged without following the regular
recruitment procedure should be made permanent."

Baseruddin M. Madari and Ors. v. State of Karnataka and Ors., [ 1995) Supp.
G 4 sec 111, whereupon again reliance has again been placed by the Senior
Counsel, this Court following the decision in Karnataka State Private College
Stop-Gap Lecturers' Association (supra) did not lay down any law that
services of all ad hoc employees are required to be regularized.

The Constitution Bench in Umadevi (supra) in regard to the temporary
H employees clearly opined :
PRINCIPAL,MEHARCHANDPOLYTECHNIC v. ANULUMBA[SINHA,J.] 447

" .... There is no fundamental right in those who have been employed A
on daily wages or temporarily or on contractual basis, to claim that
they have a right to be absorbed in service. As has been held by this
Court, they cannot be said to be holders of a post, since, a regular
appointment could be made only by making appointments consistent
with the requirements of Articles 14 and 16 of the Constitution. The B
right to be treated equally with the other employees employed on
daily wages, cannot be extended to a claim for equal treatment with
those who were regularly employed. That would be treating unequals
as equals. It cannot also be relied on to claim a right to be absorbed
in service even though they have never been selected in terms of the
relevant. recruitment rules. The arguments based on Articles 14 and 16 C
of the Constitution are therefore overruled.

It was further observed :

" .... The rule of law compels the State to make appointments as
envisaged by the Constitution and in the manner we have indicated D
earlier. In most of these cases, no doubt, the employees had worked
for some length of time but this has also been brought about by the
pendency of proceedings in tribunals and courts initiated at the
instance of the employees. Moreover, accepting an argument of this
nature would mean that the State would be permitted to perpetuate an
illegality in the matter of public employment and that would be a E
negation of the constitutional scheme adopted by us, the people of
India. It is therefore not possible to accept the argument that there
must be a directfon to make permanent all the persons employed on
. daily wages. When the court is approached for relief by way of a writ,
the court has necessarily to ask itself whether the person before it had F
any legal right to be enforced. Considered in the light of the very clear
constitutional scheme, it cannot be said that the employees have been
able to establish a legal right to be made permanent even though they
have never been appointed in terms of the relevant rules or in adherence
of Articles 14 and 16 of the Constitution."
G
The respondents did not have legal right to be absorbed in 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 H
448 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A bound one. It was not meant for generating employment. It was meant for
providing technical education to the agriculturalists. In 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.

Jn Umadevi (supra), it was stated :
B
"There have been decisions which have taken the cue from the
Dharwad case and given directions for regularization, absorption or
making pennanent, employees engaged or appointed without following
the due process or the rules for appointment. The philosophy behind
this approach is seen set out in the recent decision in The Workmen
c v. Bhurkunda Colliery of Central Coalfields ltd., though the legality
or validity of such an approach has not been independently examined.
But on a survey of authorities, the predominant view is seen to be
that such appointments did not confer any right on the appointees
and that the Court cannot direct their absorption or regularization or
D re-engagement or making them pennanent"

See also State of U.P. v. Neeraj Awasthi and Ors., [2006] I SCC 667.

Yet again in National Fertilizers ltd. & Ors. v. Somvir Singh. (2006) 6
SCALE I0 I, it was held :
E "Regularization, furthennore, is not a mode of appointment. If
appointment is made without following the Rules, the same being a
nullity the question of confinnation of an employee upon the expiry
of the purported period of probation would not arise"

It was further opined :
F
"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. Furthennore,
G only because the Respondents have worked for some time, the same
by itself would not be a ground for directing regularization of their
services in view of the decision of this Court in Uma Devi (supra)."

For the reasons aforementioned, the impugned judgments cannot be
sustained. In view of the fact that limited notice was issued in Civil Appeal
H Nos. 7051 and 7052 of2002 arising out of S.L.P. (Civil) Nos.11597 and 22493
PRINCIPAL, MEHAR CHAND POL YTECHNJC v. ANU LUMBA [SINHA, J.] 449

of2001, we set aside only that part of the judgment whereby and whereunder A
the Appellants had been directed to create posts and regularize the services
of the Respondents therein. The impugned judgments of the High Court to·
the aforementioned extent are set aside.

In view of our findings aforementioned, the transfer cases are also
disposed on the same terms. The appeals are, thus, allowed, to the extent B
mentioned hereinabove. The parties shall, however, pay and bear their own
costs.

vs. Appeals partly allowed.