Supreme Court of India
RAGHAVENDRA RAO ETC.versusSTATE OF KARNATAKA & ORS.
- Citation
- 2009 INSC 162
- Decided
- 12 February 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The claim for regularisation is barred by res judicata, the appointments by the Tehsildar are nullities, hereditary claims are unconstitutional, and continuance of service does not confer a right to regularisation.
Summary
The appellants, appointed as Patwaris/Nillage Accountants by a Tehsildar/Assistant Commissioner, sought regularisation of their services under the Karnataka Civil Services (Special Recruitment of Local Candidates) Rules, 1986. The State contended that the 1986 Rules were inapplicable because the appointing authority under those Rules is the Deputy Commissioner, not the Tehsildar, and that the appellants' claim was based on a hereditary right. The Supreme Court held that the earlier Tribunal and High Court decisions barred the present claim under the doctrine of res judicata, that appointments made by a Tehsildar without jurisdiction were nullities, and that hereditary claims to public service are unconstitutional. It further ruled that mere continuance of employment under a court order does not confer a right to absorption or permanent regularisation. Consequently, the appeals were dismissed.
Issues considered
- The applicability of the doctrine of res judicata to the appellants' fresh claim for regularisation.
- Whether a claim to public service on the basis of hereditary right is constitutionally valid.
- Whether the Tehsildar/Assistant Commissioner had jurisdiction to appoint under the 1986 Rules.
- Whether employees who continued in service under a court order are entitled to absorption or regularisation.
- Whether the Karnataka Civil Services (Special Recruitment of Local Candidates) Rules, 1986 apply to the appellants.
Legislation cited
- Constitution of Indias. Article 14, s. Article 16
Subjects
regularisationres judicatahereditary rightappointment jurisdictionKarnataka Civil Services Rulespublic service lawconstitutional lawArticle 14Article 16temporary appointment
Judgment
[2009] 2 S.C.R. 223
RAGHAVENDRA RAO ETC. A
; V.
STATE OF KARNATAKA & ORS.
Civil Appeal Nos. 907-936 Of 2009
FEBRUARY 12, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ]
Kamataka Civil Services (Special Recruitment of Local
Candidates) Rules, 1986: Regularization - Claim for, under
~ I'
1986 Rules - By employees appointed by Tehsildar - Held:
Tehsildar has no jurisdiction to appoint in terms of Rules - c
Offers of appointment made in favour of employee having been
appointed by a person who had no authority, must be held to
be nullity - Service Law.
Service law : Appointment -Public appointment - Claim
D
in public service based on hereditary right - Held: Is uncon-
-+ stitutional.
-~
Absorption - Right to - Held: Merely because an em-
ployee continued in service under the cover of an order of the
Court would not entitle him to right to be absorbed or made E
permanent in service.
Res judicata - Principle of - Held: Applicable to writ pro-
ceedings also.
-_,
Appellants were appointed as PatwarisNillage Ac- F
countants by the Tehsildarl Assistant Commissioner.
They prayed for regularisation of their services in terms
of provisions of Karnataka State Civil Services (Direct
Recruitmentto Class-Ill Posts) (Special) Rules, 1973. Their
prayer was dismissed by the Tribunal. SLPs filed there
G
against were also dismissed. Relying on the observations
made in some other SLPs that it would be open for em-
ployees to represent before the State of Karnataka for
regularisation in terms of Karnataka Civil Services (Spe-
223 H
224 SUPREME COURT REPORTS [2009] 2 S.C.R.
A cial Recruitment of Local Candidates) Rules, 1986, which
came into force w.e.f. 4.7.1986, appellant requested the
State to regularize their services under 1986 Rules. The
State rejected their prayer stating that the 1986 Rules were
not applicable to their cases as they were appointed by
B the Tehsildar/Assistant Commissioner whereas in terms
· of the 1986 Rules, the appointing authority was the Deputy
Commissioner.
An observation was made by Tribunal in another case -.ii 1 t
that Patwaris come within the definition of local candidates
c and are entitled to be considered for regularization in ~
terms of 1986 rules. Relying on that, appellants again filed
application for regularization under 1986 Rules. Tribunal
allowed the applications. Writ petition thereagainst was
allowed by High Court. Review petitions were also dis-
D
missed. Hence these appeals.
~-
Dismissing the appeals, the Court
HELD: 1. In SLPs relating to another case, leave was
E
granted by this Court to avail any other remedy available .
..
only to those petitioners who were not paid their salary
for the period during which they worked as Accountants.
The claim of the appellants is, thus, barred under the prin-
ciples of res judicata/constructive res judicata, the earlier
judgment having attained finality. It is now a well settled
F
principle of law that the principle of res judicata applies
also to the writ proceedings. [Paras 12, 13] [ 229-C; 230-D]
Secretary, State of Kamataka & Ors. vs. Umadevi & Ors.
(2006) 4 sec 1 - referred to
G
· 2. Any claim in a public service on the basis of a he-
reditary claim is unconstitutional. The appellants claimed \
their right to be appointed and/or consequential regular-
ization in the services on the basis of the hereditary right.
They rightly were held to be not entitled thereto. An en-
H
RAGHAVENDRA RAO ETC. V 225
STATE OF KARNATAKA & ORS.
deavour had been made to show that appellants were A
appointed by Tahsildar. It has, however, not been denied
that the Tahsildar had no jurisdiction to appoint in terms
of the Civil Services Rules. They, thus, having been ap-
pointed by a person who had no authority, the offers of
appointment made in their favour must be held to be nul- B
lities. Such illegal appointments cannot be brought within
the purview of Rule 3(2) of the 1986 Rules. In terms thereof
only appointment not made in accordance with the Rules
would attract Rule 3(2). The same would not mean that
any appointment made by any other authority. would also C
come within the purview thereof. [Paras 13, 15] [ 230-A:
231-A, 8]
State of Karnataka & Ors. vs. PM. Bhaskara Gowda &
Ors. (2004) 1SCC106; Gazula Dasaratha Rama Rao vs. State
of A.PAIR 1961 SC 564 - relied on. D
3. It is now a well-settled principle of law that merely
because an employee had continued under cover of an
order of Court, he would not be entitled to any right to be
absorbed or made permanent in the service. [Para 16]
[231-D] E
Official Liquidator vs. Dayanand & Ors. (2008) 10 SCC
1 - relied on.
Case Law Reference
F
(2006) 4 sec 1 referred to Para 10
(2004) 1 sec 106 relied on Para 13
AIR 1961 SC 564 relied on Para 13
(2008) 1o sec 1 relied on Para 15 G
I CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
907-936 of 2009
S.B. Sanyal, Rajesh Maha le for the Appellant.
H
226 SUPREME COURT REPORTS [2009] 2 S.C.R.
A Sanjay R. Hegde, Amit Chawla, for the Respondents.
The Judgement of the Court was delivered by
5.8. SINHA, J.
1. Leave granted.
B
2. Appellants are before us aggrieved by and dissatisfied
with a judgment and order dated 04.09.2002 passed by a Divi-
sion Bench of the High Court of Karnataka at Bangalore in WP
Nos. 38797-38800/1998, 38803/1998, 38808/1998, . 38810/
c 1998, 38812-38816/1998, 38828-38830/1998 & 38832/1998
and judgment and order dated 11.10.2002 passed by the said
Court in RP Nos. 769-775/2002 and 776-782/2002 respectively
whereby and whereunder the writ petitions filed by the respon-
dents herein for quashing the order dated 26.03.1998 passed
D by the Karnataka Administrative Tribunal were allowed and re-
view petitions filed by the appellants herein for review of the
order dated 4.9.2002 passed by the said Court were rejected.
3. Appellants were appointed as PatwarisNillageAccoun-
tants. They allegedly had been working for a long time in the
E Revenue Department. Concededly, they were appointed by the
Tahsildar/Assistant Commissioner. They prayed for regulariza-
tion of their services. As the said prayer was not acceeded to,
they filed Writ Applications before the High Court being W.P.
Nos. 25695-696 of 1981 and other connected matters seeking
F for direction upon the State of Karnataka to regularize them in
services in terms of the provisions of the Karnataka State Civil
Services (Direct Recruitment to Class-Ill Posts) (Special) Rules,
1973 (for short, "the 1973 Rules").
4. Indisputably, on constitution of the Karnataka Adminis-
G trative Tribunal, those writ petitions were transferred to the Tri-
bunal and renumbered as Application Nos. 2318-19/1986 and
connected cases. On or about 20.02.1987, the said applica-
tions were dismissed by the Tribunal. Special Leave Petitions
filed thereagainst in this Court were also dismissed.
H
RAGHAVENDRA RAO ETC. V 227
STATE OF KARNATAKA & ORS. [S.B. SINHA, J.]
~ 5. Relying on or on the basis of the observations made by A
this Court in SLP (C) Nos. 226-29of1988 and 5932-41 of 1987
that it would be open for the appellants to represent before State
of Karnataka or to avail any other remedy available to them un-
der law, inter alia, contending that their services should be regu-
larized in terms of the provisions of the Karnataka Civil Ser- B
vices (Special Recruitment of Local Candidates) Rules, 1986
(for short, "the 1986 Rules"), which had come into force with
;. . ;- effect from 4.7.1986, the appellants requested the State to regu-
larize their services under the 1986 Rules. The State rejected
their prayer stating that the 1986 Rules were not applicable to c
their cases as they had been appointed by the Tahsildar/Assis-
tant Commissioners whereas in terms of the 1986 Rules, the
appointing authority was the Deputy Commissioner.
6. Indisputably, relying on or on the basis of the observa-
-t
- tions made by the Karnataka Administrative Tribunal in Appli-
cation No. 5377 of 1986 that Patwaris do come Within the pur-
view of the definition of 'local candidates' and therefore were
D
entitled to be considered for regularization in terms of the 1986
rules, appellants again approached the Tribunal by filing Appli-
cation No. 287 of 1997 and connected cases praying for regu- E
larization under the 1986 Rules. The Tribunal by its order dated
26.3.1998 allowed the said applications, directing:
"(ii) Authorities are directed to regularize the services of
the applicants who have passed the SSLC
F
Examinations before 5th July, 1983, under the
Karnataka State Civil Services (Special Recruitment
of Local Candidates) Rules, 1986 which came into
force on 4. 7 .1986 (wherein sub-rule 2 of rule 3
envisages the definition of Local Candidate) within
G
six months from the date of receipt of the copy of this
order; and it is also made clear that the services of
the applicants who are in service not to be disturbed
till the date of their regularization;
(iii) Benefit of this order is not applicable to those who H
228 SUPREME COURT REPORTS (2009] 2 S.C.R.
A have passed the prescribed SSLC examination on
or after 5th July, 1983, since they do not fulfill the
eligibility criteria under the Rules in question, for
purpose of appointment as Village Accountant since
acquisition of qualification subsequently does not
8 render them eligible."
7. Writ Petitions preferred against the said order by the
respondents have been allowed by the High Court by reason of
the impugned judgment. Review petitions preferred by the ap- ,'.\(_ A
pellants have been rejected by the High Court.
c
8. Appellants are, thus, before us.
9. Mr. S.B. Sanyal, learned Senior Counsel appearing on
behalf of the appellants would contend:-
D i. Appellants having been appointed as local
candidates within the meaning of 1986 Rules, the
earlier decision of this Court would not operate as
res judicata.
ii. This Court in the earlier round of litigation having
E proceeded on the basis that they were appointed as
hereditary candidate and not as directly appointed
candidate, the impugned fudgment is not sustainable.
iii. Rights having been conferred upon the appellants in
F terms of the 1986 Rules, the High Court Committed
a serious error in passing the impugned judgment.
10. Mr. Sanjay R. Hedge, learned counsel appearing on
behalf of the respondents, on the other hand, would urge:
G i. Appellants' case does not come within the purview
of the 1986 Rules.
ii. They having claimed themselves to be entitled to
hold the post of PatwarisNillage Accountant on
hereditary basis are now estopped and precluded
H
RAGHAVENDRA RAO ETC. V 229
STATE OF KARNATAKA & ORS. [S.B. SINHA, J.]
from contending that they were 'local candidates' A
within the meaning of the provisions of 1986 Rules
as the Deputy Commissioner and not the Tahsildar
was the Appointing Authority, thus, even the 1986
Rules were not applicable.
iii. In view of the decision of this Court in Secretarv. 8
State of Karnataka & ors. vs. Umadevi (3) & ors.
[(2006) 4 sec 1], regularization of the employees is
~ _/- impermissible in law.
11. Indisputably, the post of PatwariNillage Accountant c
could be filled up on hereditary basis. Appellants indisputably
claimed their right to be appointed on those pots on that basis.
This Court in its judgment and order dated 24.2.1994 rejected
the said contention of the appellants, stating:
"Sri Sridharan maintained that even before the later Rules D
came into force the right under proviso to rule-10 of the
earlier rules had accrued to the appellants - petitioners
and that therefore the coming into force of the later Rules·
did not take away such right. Assuming for the sake of
arguments that the above contention of Sri Sridharan is E
well-founded, the appellants - petitioners did not approach
this Court within a reasonable time after their claim under
the proviso to rule-10 had not been conceded. On account
of such delay, the right of party respondents who have
been appointed to the posts of Village Accountants, have F
intervened. Hence, we do not see any ground to dissent
from the decision of the learned Single Judge. In the result,
we dismiss these appeals without admitting it."
12. The purported leave to avail any other remedy was G
granted only to the petitioners in SLP (C) Nos. 226-29 of 1988
and 5932-41 of1987, which is in the following terms:
"S.L.P. (C) Nos. 226-29/1988 and 5932-41/1987
Mr. Ranjit Kumar, learned counsel for the petitioners states H
230 SUPREME COURT REPORTS [2009] 2 S.C.R.
A that his clients have not been paid the salary for the period
for which they actually worked as Accountants. It will be
open to the petitioners to represent before State of
Karnataka to avail any other remedy available to them
under law. Special Leave Petitions are dismissed."
B It is, therefore, not correct to contend that in terms of the
leave granted by this Court appellants were entitled to
institute a separate application relying on or on the basis
of the provisions contained in the 1986 Rules or otherwise.
As noticed hereinbefore, leave had been granted to avail
c any other remedy available only to those petitioners who
had not been paid their salary for the period during which
they worked as Accountants.
13. The claim of the appellants is, thus, barred under the
D principles of res judicata/constructive res judicata, the earlier
judgment having attained finality. It is now a well settled prin- ,.._
ciple of law that the principle of res judicata applies also to the
writ proceedings.
This Court in State of Karnataka & ors. vs. P.M. Bhaskara
E Gowda & ors. [(2004) 1sec106] relying on Gazula Dasaratha
Rama Rao vs. State of A.P.[AIR 1961 SC 564] held that any
claim in a public service on the basis of a hereditary claim is
unconstitutional.
F 14. Rule 2(b) of the 1986 Rules reads as under:
"2(b) "Local Candidate" means a local candidate as
defined in clause (27-A) of Rule 8 of the Karnataka Civil
Services Rules;
G Rule 8(27A) of the Karnataka Civil Services Rules referred
to therein reads as under:
"8 (27-A) Local Candidate.-A "Local Candidate" in service
means a temporary Government servant not appointed
regularly as per rules of recruitment to that service."
H
RAGHAVENDRA RAO ETC. V. 231
STATE OF KARNATAKA & ORS. [S.B. SINHA, J.]
15. As indicated hereinbefore, appellants claimed their A
right to be appointed and/or consequential regularization in the
services on the basis of the hereditary right. They had rightly
been held to be not entitled thereto. Before us, an endeavour
had been made to show that appellants were appointed by
Tahsildar. It has, however, not been denied or disputed that the B
Tahsildar had no jurisdiction to appoint in terms of the Civil Ser-
vices Rules. They, thus, having been appointed by a person who
had no authority, the offers of appointment made in their favour
~ t-
must be held to be nullities. Such illegal appointments cannot
be brought within the purview of Rule 3(2) of the 1986 Rules. In c
terms thereof only appointment not made in accordance with
the Rules would attract Rule 3(2). The same would not mean
that any appointment made by any other authority would also
come within the purview thereof.
16. t is now a well-settled principle of law that merely be- D
--'
cause an employee had continued under cover of an order of
Court, he would not be entitled to any right to be absorbed or
made permanent in the service. This Court in Uma Devi (3) (su-
pra), held as under:
E
"Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a
•t Court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements F
of Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms
of the relevant rules and after a proper competition among G
../ qualified persons, the same would not confer any right on
the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract,
if it were an engagement or appointment on daily wages
H
232 SUPREME COURT REPORTS [2009] 2 S.C.R.
A or casual basis, the same would come to an end when it
is discontinued. Similarly, a temporary employee could
not claim to be made permanent on the expiry of his term
of appointment. It has also to be clarified that merely
because a temporary employee or a casual wage worker
B is continued for a time beyond the term of his appointment,
he would not be entitled to be absorbed in regular service
or made permanent, merely on the strength of such
continuance, if the original appointment was not made by -\ ...
following a due process of selection as envisaged by the
relevant rules. It is not open to the court to prevent regular
c recruitment at the instance of temporary employees whose
period of employment has come to an end or of ad hoc
employees who by the very nature of their appointment,
do not acquire any right. High Courts acting under Article
226 of the Constitution of India, should not ordinarily issue
D directions for absorption, regularization, or permanent ~
continuance unless the recruitment itself was made ·-
regularly and in terms of the constitutional scheme. Merely
because, an employee had continued under cover of an
order of Court, which we have described as 'litigious
E employment' in the earlier part of the judgment, he would
not be entitled to any right to be absorbed or made
permanent in the service. In fact, in such cases, the High
Court may not be justified in issuing interim directions, l·
since, after all, if ultimately the employee approaching it is
F found entitled to relief, it may be possible for it to mould
the relief in such a manner that ultimately no prejudice will
be caused to him, whereas an interim direction to continue
his employmenf would hold up the regular procedure for
selection or impose on the State the burden of paying an
G employee who is really not required. The courts must be
c~reful in ensuring that they do not interfere unduly with the ·r-
economic arrangement of its affairs by the State or its
Instrumentalities or lend themselves the instruments to
f«:leilitate the bypassing of the constitutional and statutory
H mandates."
RAGHAVENDRA RAO ETC. V. 233
STATE OF KARNATAKA & ORS. [S.B. SINHA, J.]
Recently in Official Liguidator vs. Dayanand & ors. ((2008) A
1O sec 1], this Court has reiterated the same view.
17. For the reasons aforementioned, there is no merit in
the appeals. They are dismissed accordingly. We have been
informed at the Bar that the appellants pursuant to or in further-
ance of interim orders passed by the courts continued In ser- B
vice; and, thus, if any amount has been paid to them, the same
may not be recovered. No costs.
D.G. Appeal dismissed,
-1
•1
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