Holding

A contractual appointment not made in compliance with Articles 14, 16 and 309 of the Constitution cannot be regularised, and continuation under an interim court order does not confer any right to permanent service.

Summary

Surendra Prasad Tiwari was engaged by the Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad on a series of short‑term contractual appointments between 1989 and 1991, each with an automatic termination clause. After the last contract expired, his services were continued for about 14 years under an interim stay order of the Allahabad High Court. He filed a writ petition seeking regularisation of his service, alleging unfair labour practice and that the contractual arrangement was illegal. The High Court dismissed the petition and the appellant appealed to the Supreme Court. The Supreme Court held that a contractual appointment that is not made in accordance with the constitutional procedure prescribed under Articles 14, 16 and 309 cannot be regularised, and continuation under a court‑ordered interim stay does not create a right to permanent employment. Consequently, the appeal was dismissed and each party was ordered to bear its own costs.

Issues considered

Whether an employee appointed on a contractual basis for short periods, whose services were continued for many years under an interim court order, is entitled to regularisation in public service.
Whether such contractual appointments violate Articles 14, 16 and 309 of the Constitution of India.
Whether the High Court erred in dismissing the writ petition and in allowing the continuation of the appellant’s services without regularisation.
Whether an oral termination without hearing is valid in the context of a contractual appointment.

Legislation cited

Constitution of Indias. 12, s. 14, s. 16, s. 309, s. 315, s. 320, s. 335
Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959

Subjects

contractual appointmentregularisationpublic employmentArticles 14, 16, 309unfair labour practicetemporary employeeinterim court orderequality of opportunity

Judgment

Q
A SURENDRA PRASAD TIWARI
v.
UTTAR PRADESH RAJYA KRISHI UTPADAN MANDI PARISHAD
AND ORS.

SEPTEMBER 8, 2006
B
[G.P. MATHUR AND DAL VEER BHANDARI, JJ.]
'
Constitution of India-Articles 14, 16 and 309-Person employed on
contractual basis for a short period from time to time-Writ Petition by the
c person on termination of his services-Services of the person were continued
under an interim order of the High Court-Writ Petition finally dismissed by
the High Court-Plea of the person for regularisation of his services on
ground of his working for a long period during the period of operation of
the interim order-Validity of-Held, the services of a person cannot be
D directed to be regularised as he was not appointed following the procedure
laid down under Articles 14, 16 and 309 of the Constitlllion-Person does
not have a right to be absorbed merely because his services were continued
under an interim order of a Court.

Appellant was employed on contractual basis for a short period from
E time to time as per the needs and exigencies of different projects undertaken
by respondents. On termination of the services by the respondents, the
appellant filed a Writ Petition before High Court. The High Court passed an
interim order of stay in the Writ Petition. The High Court finally dismissed
the Writ Petition.
F In appeal to this Court, the appellant contended that the respondents
are guilty of unfair labour practice by engaging him on contract basis without
any security of tenure and continuing him for years on meagre wages for the
works of perennial nature; and that he was working for· the respondents
continuously for 14 years and hence he is entitled for regularisation in
G services.
The respondents contended that they continued with the services of the
appellant for a long period only due to the interim order of the High Court;
that the appellant was merely a temporary employee who was given employment

H 828 .... ,,
SURENORA PRASADTIWARI 1« UTT AR PRADESH RAJ\'A KRISHI UTPADAN MANOI PARISHAO 829

as per the needs and exigencies of different projects undertaken by them; A
that the appointment of the appellant was not against any substantive post;
and that the appellant was given fixed term appointments on contractual basis
and his services were automatically terminated after expiry of the contract
period.

Dismissing the appeal, the Court B
HELD: 1.1. On careful analysis of the appointment orders giving
contractual appointments to the appellant, it is revealed that the appellant's
contractual appointment was for a fixed term for carrying out the work of a
specified project. The appellant was engaged from time to time to work on
different projects and thereafter the appellant was not appointed. The C
appointment of the appellant was not made following; the procedure as laid
down under Articles 14 and 16 of the Constitution oflndia. Adherence to
Articles 14 and 16 of the Constitution is a must in the process of public
employment. Admittedly the appellant has not been appointed in terms of the
·relevant rules or in adherence to Articles 14 and 16 of the Constitution.
[837-B-C; 841-F; 843-GJ D

1.2. 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 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 E
philosophy to implement the principle of equality in the true sense in the
matter of public employment. (846-B-C)

1.3. In view of the clear and unambiguous constitutional scheme, the
courts cannot countenance appointments to public office which have been made F
against the constitutional scheme. In the backdrop of constitutional philosophy,
it would be improper for the courts to give directions for regularization of
services of the person who is working either as daily wager, ad hoc employee,
probationer, temporary or contractual employee, not appointed following the
procedure laid down under Article 14, 16 and 309 of the Constitution. In our
constitutional scheme, there is no room for back door entry in the matter of G
public employment. [846-D-El

Secretary, State of Karnataka and Ors. v. Umadevi, (3) and Ors., (20061
4 SCC 1 CB; Indira Sawhney and Ors. v. Union of India and Ors., (1992)
Supp. 3 SCC 217 CB; Banarasi Das and Ors. v. State of U.P. and Ors., AIR
(1956) SC 520; General Manager, Southern Railway and Anr. v. Rangachari, H
830 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A AIR (1962) SC 36 CB; Delhi Development Horticulture Employees' Union v.
Delhi Administrative, Delhi and Ors., [1992) 4 SCC 99; State of Himachal
Pradesh, through the Secretary, Agriculture to the Govt. of Himachal Pradesh
''· Nodha Ram and Ors., )1998) SCC L & S 478; AIR (1997) SC 1445;
Karnataka State Private College Lecturers Association etc. v. State of
Karnataka and Ors., [1992) 2 SCC 29; Haryana State Agricultural Marketing
B Board v. Subhash Chand and Anr., [2006) 2 SCC 794; National Fertilizers
Ltd and Ors. v. Somvir Singh, [2006) 5 SCC 493 and Union Public Service
Commission v. Girish Jayanti Lal Vaghela and Ors., [2006) 2 SCC 482, relied
on.

C CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3981 of2006.

From the Judgment and Order dated 21.10.2003 of the High Court of
Judicautre at Allahabad, Lucknow Bench in Writ Petition No. 6475(S/B) of
1992.

D Shashindra Tripathi and M.P. Shorawala for the Appellant.

M.L. Verma, Aarohi Bhalla, V.C. Mehrotra and Sujata Kurdukar for the
Respondents.

The Judgment of the Court was delivered by
E DALVEER BHANDARI, J. Leave granted.

Regularization in public employment is the main issue which falls for·
adjudication in this appeal.

This appeal is directed against the judgment dated 21. I0.2003 passed in
F Civil Writ Petition No. 64 75 of 1992 by the High Court of Judicature at
Allahabad, Lucknow Bench, Lucknow, UP.

Brief facts which are necessary to dispose of the appeal are recapitulated
as under:
G The appellant was appointed by Rajya Krishi Utpadan Mandi Parishad,
U.P., vide order dated 17.7.1989, for a period of three months on contractual
basis on a remuneration of Rs.1,500/- for conducting a survey in the deficiency
of procurement of the agricultural produce ofMeerut Division, namely, Potato
etc. Since the nature of employment has been disputed by the appellant,
H therefore, we deem it appropriate to set out the relevant portion of the order
SURENDRA PRASAD Tl\VARI r. UTT AR PRADESH RAJYA KRISHI UTPADAN MANDI PARISHAD !BHANDARI. J.t
,:p 831
dated 17.7.1989 as under: A
"Shri Surinder Prasad Tiwari, 17, Rana Partap Marg, Lucknow, is
hereby appointed for a period of three months only, on contractual
basis on a remuneration of Rs.1,500/- (Rupees one thousand five
hundred only) per month for conducting a survey in the deficiency
of procurement of the agricultural produce of Meerut Division, namely B
J Potato etc.

The services of Shri Tiwari shall stand terminated automatically
after the expiry of the above period of three months and his services
can also be terminated earlier also without assigning any reason, if
there is no need or under special circumstances. However, no c
compensation will be given to Shri Tiwari in this regard.

Sd/- Vijendra Pal

Director, Mandi."
D
The appellant, on 6.12.1989, was again appointed for a period of three
months on contractual basis on a remuneration of Rs.1500/- for surveying the
land of the village community and to determine whether Gramin Bazar/Haat
is held on the lands of Gram Samaj or Zila Parishad and how many wholesalers/
commission agents were working. The relevant part of order dated 6.12.1989
reads as under: E

"In continuation of the efforts of the Mandi Parishad for terminating/
abolishing prevalent system ofTehbazari in the Faizabad and Gorakhpur
Divisions, Shri Surinder Prasad Tiwari through Shri V.P. Mishra, 17,
Rana Partap Marg, Lucknow, is hereby appointed for a period of three
months only, on contractual basis on a remuneration of Rs.1,500/- F
(Rupees one thousand five hundred only) per month for conducting
a survey of the following works-
(I) Details of the land of the village community;

.. (2) Whether Gramin Bazar/Haat is held on the lands of Gram G
Samaj or Zila Parishad;
(3) How many wholesalers/commission agents are working.
The services of Shri Tiwari shall stand terminated automatically after
. ~·~
the expiry of the above period and his services can be terminated
H
832 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A earlier also without assigning any reason, if there is no need or under
special circumstances. However, no compensation will be given to
Shri Tiwari in this regard.

Sd/- Arvind Mohan

B Director, Mandi"

On 23.3.1990, the appellant was again appointed on contractual basis
for a period of five months. The relevant part of the order dated 23.3.1990
reads as follows:

c "In continuation of the efforts of the Mandi Parishad terminating/
abolishing prevalent system ofTehbazari in the Fai:zabad and Gorakhpur
Divisions, Shri Surinder Prasad Tiwari, 17, Rana Partap Marg, Lucknow,
is hereby appointed for a period of five months, on contractual basis,
on a remuneration of Rs.1,500/- (Rupees one thousand five hundred
only) per month for conducting a survey of the following works-
D
(!) Details of the land of the village community;
(2) Whether Gram in Bazar/Haat is held on the lands of Gram Samaj
or Zila Parishad;
(3) How many wholesalers/commission agents are working.
E
The services of Shri Tiwari shall stand terminated automatically after
the expiry of the above period and his services can be terminated
earlier also without assigning any reason, if there is no need or under
special circumstances and no compensation will be given to Shri
Tiwari in this regard.
F
Sd/- Arvind Mohan

Director, Mandi"

The appellant, on 23.8.1990, was again appointed for a period of four
G months on contractual basis. The relevant part of the order dated 23.8.1990
reads as under: r

"Shri Surinder Prasad Tiwari is hereby appointed for a period of four
months only, on contractual basis on a remuneration of Rs.1,800/-
(Rupees one thousand eight hundred only) per month for executing
H
SURENDRA PRASAD TIWARI r. UTIAR PRADESH RAJYA KRISHI UTPAOAN MANOI PARISHADIBHANDARI. J.I 833

the development works of Kanpur Area viz., Wood Mandi and Leather A
Mandi and for development of Vegetable Mandi and for survey and
other works, from the date of his joining the Mandi Samiti, Kanpur.
All the terms and conditions of the contract shall remain as before.
Shri Tiwari will work under the control of Secretary, Mandi Samiti,
Kanpur and payments also will be made to him by the Mandi Samiti,
Kanpur. B
)

Sd/- Arvind Mohan

'· Director, Mandi"

The appellant was again appointed for a period of four months by an c
order dated 14.2.1991. Relevant part of the said order reads as under:

"Shri Surinder Prasad Tiwari through Shri V.P. Mishra, 17, Rana Pratap
Marg, Lucknow is hereby appointed for a period of four months only
on a monthly remuneration of Rs.1,800/- (Rupees one thousand eight
hundred only) for conducting survey of the construction/development D
works of the New Mandis of Wood and Leather in Kanpur. He is being
appointed in the Mandi Samiti, Kanpur as per the terms and conditions
of the contract. Thereafter, this contract work shall automatically stand
tenninated.

Payments of the aforesaid remuneration will be made to Shri Surinder E
Tiwari by the Mandi Samiti, Kanpur.

Sd/- Arvind Mohan

Director, Mandi"
F
On 1.7.1991 the appellant was again appointed for a period of four
months on contractual basis. The relevant part of the order dated I. 7.1991
reads as under:

"By Board's Order No.A-K/91-328 dated 14.2.1991, Shri Surinder Prasad
., Tiwari was appointed in the Mandi Samiti, Kanpur, for a period of four G
months only, on contractual basis on a remuneration of Rs. l ,800/-
(Rupees one thousand eight hundred only) per month as per the terms
and conditions of the Contract. Now, after completion of the period
.. ~·
of the contract, the services of Shri Tiwari .are hereby extended for a
further period of three months from the date of issuance of this order,
H
in the interests of general public. The contractual period shall stand
834 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A terminated automatically after expiry of three months. However, his
services can also be terminated any time before contractual period of
three months, in case he is not required, or under any special
circumstances, and for which Shri Tiwari will not be entitled to any
compensation. The remuneration of Shri Tiwari will be paid by the
Mandi Samiti, Kanpur, as per the terms and conditions of earlier
B contract.

He should join only after agreeing to the terms and conditions of the
previous contract.

Sd/- Arvind Mohan
c
Director, Mandi"

Lastly, on 14.10.1991, the appellant was again appointed for a period of
six months on contractual basis. The relevant part of the order dated 14.10.1991
reads as under:
D
"Shri Surinder Prasad Tiwari through Shri V.P. Mishra, 17, Rana Pratap
Marg, Lucknow is hereby appointed for a period of six months only,
on contractual basis, on a monthly remuneration ofRs.1,800/- (Rupees
one thousand eight hundred only) per month for executing the election/
re-organization works of Mandi Samitis, under the terms and conditions
E of the contract. He is being kept on contract with effect from the date
of his joining and he will remain under the control of the Deputy
Director (Marketing) Mandi Parishad, H.O.

Sd/- Arvind Mohan

F Director, Mandi"

The case of the appellant is that his services were orally terminated on
1.9.1992, whereas, according to the respondents, the appellant's appointment
was on contractual basis and his services came to an end after the period of
the contract was completed. The appellant aggrieved by the oral termination
G and/or non-continuation in service preferred a writ petition before the Allahabad r

High Court at Lucknow Bench, Lucknow.

The Division Bench of the High Court after hearing the parties observed
that, in law, there are only two kinds of appointments. The first is the
H permanent appointment and the second is the temporary appointment.
SURENDRA PR.o!,SAD TIWARI r. UTT AR PRADESH RAJYA KRISHI UTPADAN MANDI PARISHAD [BHANDARI. ll 83 5

According to the Division Bench, temporary appointments have further various A
sub-categories, such as casual appointee, daily wager, ad-hoc appointee,
contractual appointee, probationer etc. The Cou.rt observed that a temporary
appointee has no right to the post. Only a permanent appointee has such a
right to the post. The Court observed that the appointments to the permanent
posts are made after following the procedure under Article 16 of the
Constitution. The Court observed that the appellant was never appointed by B
following the said procedure and he was never confirmed and, consequently,
he has no right to the post as well. The Court further observed that merely
because the appellant had succeeded in getting an interim order of this Court,
it does not entitle him to have any right and the writ petition filed by the
appellant was dismissed by the High Court on 21.10.2003. C
The appellant, aggrieved by the said order of the High Court, preferred
this appeal before this Court. The appellant has raised a number of questions
of law in this appeal. The same are reproduced as under:

a. Whether engaging the employees on contract basis without any
D
security of their tenure and continuing them for years on meager
wages for the works of perennial nature, is not illegal, arbitrary,
unconstitutional and within the ambit of Unfair Labour Practice?
b. Whether an employee continuing on post from last more than
14 years is not entitled to the regularization of his services?
E
c. Whether the appointment of the petitioner can be termed as
irregular and illegal when the Mandi Regulations 1984 itself
provide the provisions of a contract appointment?
d. Whether it is permissible under law to terminate the services of

, the petitioner while the hundreds of juniors appointed in the
same manner are still retained in the service?
F

e. Whether the High Court has not committed the error of law in
dismissing the writ petition of the petitioner when approximately
110 civil appeals of the employees appointed in the same manner
are still .pending before the Hon'ble Supreme Court? G
( Whether the High Court has not erred in dismissing the writ
petition of the petitioner ignoring the fact that the matter of
regularization of the petitioner is still under consideration before
....... the authorities?
H
836 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A g. Whether the oral order terminating the service of the petitioner
can be justified when the same was passed without assigning
any reason and without giving opportunity of hearing?
h. Whether the High Court was justified in dismissing the petition
filed by the petitioner?
B I. Whether in any event the judgment and order passed by the
High Court is liable to be set aside?

The appellant submitted that the impugned judgment is manifestly illegal,
incorrect and against the record of the case. The appellant also submitted that
the respondents are guilty of unfair labour practice by engaging the employees
C on contract basis without any security of their tenure and continuing them
for years on meager wages for the works of perennial nature. It was further
submitted that the appellant has been working continuously for 14 years and
was entitled to be regularized in service. The appellant also submitted that
number of persons similarly placed are still continuing in their services,
D whereas the services of the appellant have been dispensed with.
This Court issued a show-cause notice and, in pursuance to the said
show-cause notice, a comprehensive counter affidavit was filed by Lokesh
Kumar, Deputy Director (Administration), Head Quarters, Mandi Parishad,
Lucknow on behalf of the respondents. At the outset, it was incorporated in
E the counter affidavit that the appellant had suppressed the material facts from
this Court. The appellant had not disclosed to the Court that his tenure of
14 years was due to the interim order dated 15. 9.1992 granted in favour of the
appellant by the High Court and it was because of the interim order that the
respondents had to continue the appellant in the department. It was further
F stated in the counter affidavit that the appellant was merely a temporary
employee who was given employment as per the needs and exigencies of
different projects undertaken by the Mandi Parishad. It was further stated that
the appointment of the :ippellant was not against any substantive post, as
'
alleged by the appellant in the writ petition. It was also incorporated in the
counter affidavit that the appellant was given fixed term appointments on
G contractual basis and his services were automatically terminated after the
expiry of the contract period. The copies of the orders giving contractual
appointments to the appellant have been produced along with the counter
affidavit, which have already been reproduced in the preceding paragraphs
of this judgment. According to the respondents, the appellant's case for
H regularization has no merit and the High Court was correct and justified in .......
,, SURENDRA PRASAD Tl\VARI 1·. UITAR PRADESH RAJ)"A KRISHI UTPADAN MANDI PARISH AD fBHANDARl. J.J
837
dismissing the writ petition filed by the appellant. A
In the rejoinder_ affidavit, the appellant has reiterated the averments
incorporated in the petition.

On careful analysis of the appointment orders, it is revealed that the
appellant's contractual appointment was for a fixed term for carrying out the B
work of a specified project. The appellant was engaged from time to time to
work on different projects and the last contract was dated 14.10.1991 and
thereafter, the appellant was not appointed. The appellant's appointment was
purely a fixed term appointment. By no stretch of imagination it could be said.
that the appointment of the appellant was made while following the procedure
as laid down under Articles 14 and 16 of the Constitution. A three-Judge c
Bench of this Court in Delhi Development Horticulture Employees' Union v.
Delhi Administration, Delhi & Ors., reported in (1992] 4 SCC 99, 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
D
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 E
under the scheme, therefore, could not ask for more than what the
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
regularization, 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 F
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 G
whom the schemes are meant. That would also force the State to wind
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
H
838 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A between those who live below and above the -poverty line, those in
need of partial and those in need of full employment, the educated and
uneducated, the rural and urban unemployed etc."

In State of Himacha/ Pradesh, through the Secreta1J1, Agriculture to
the Govt. of Himachal Pradesh v. Nodha Ram & Ors., reported in [1998] SCC
B (L&S) 478 : AIR 1997 SC 1445, in regard to the status of the temporary project
employees employed in the Government project, the Court held as under:

"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 regularize them
c or to continue them in other places. No vested right is created in
temporary employment. Directions cannot be given to regularize their
services in the absence of any existing vacancies nor .can directions
be given to the State to create posts in a non-existent establishment.
The Court would adopt pragmatic approach In giving directions. The
D 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."

E The ratio of this case squarely applies to the facts of this appeal.
In Karnataka State Private College Stop-Gap Lecturers Association
etc. v. State of Karnataka & Ors., reported in (1992] 2 SCC 29, the Court held
as under:

p ".. A temporary or ad hoc employee may not have a claim to become
pem1anent without facing selection or being absorbed in accordance
with rules but no discrimination can be made for same job on basis
of method of recruitment. Such injustice is abhorrent to the
constitutional scheme."

G The controversy involved in this case is no longer res integra.

A Constitution Bench of this Court in the case of Secretary, State of
Karnataka & Ors. v. Umadevi (3) & Ors., reported in [2006] 4 SCC I has
comprehensively dealt with the issues involved in this case. The Constitution
Bench has observed as follows: ...., ....
H
SURENDRA PRASAD TIWARl r. UTT ..o\R PRADESH RAJYA KRISHI UTPADAN MANDI PARISHAD IBH ..o\NDARI. J.I 839

"2. Public employment in a sovereign socialist secular democratic A
republic, has to be as set down by the Constitution and the laws made
thereunder. Our constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a procedure
established in that behalf. Equality of opportunity is the hallmark, and
the Constitution has provided also for affirmative action to ensure
that unequals are not treated as equals. Thus, any public employment B
has to be in terms of the constitutional scheme.

4. But, sometimes this process is not adhered to and the Constitutional
scheme of public employment is bypassed. The Union, the States,
their departments and instrumentalities have resorted to irregular C
appointments, especially in the lower rungs of the service, without
reference to the duty to ensure a proper appointment procedure through
the Public Service Commissions or otherwise as per the rules adopted
and to permit these irregular appointees or those appointed on contract
or on daily wages, to continue year after year, thus, keeping out those
who are qualified to apply for the post concerned and depriving them D
of an opportunity to compete for the post. It has also led to persons
who get employed, without the following of a regular procedure or
even through the backdoor or on daily wages, approaching the courts,
seeking directions to make them permanent in their posts and to
prevent regular recruitment to the posts concerned.
E
6. The power of a State as an employer is more limited than that of
a private employer inasmuch as it is subjected to constitutional
limitations and cannot be exercised arbitrarily (See: Basu 's Shorter
Constitution of India). Article 309 of the Constitution gives the
Government the power to frame rules for the purpose of laying down
the conditions of service and recruitment of persons to be appointed F
to public services and posts in connection with the affairs of the
Union or any of the States. That article contemplates the drawing up
of a procedure and rules to regulate the recruitment and regulate the
service conditions of appointees appointed to public posts. It is well
acknowledged that because of this, the entire process of recruitment G
for services is controlled by detailed procedures which specify the
necessary qualifications, the mode of appointment, etc. If rules have
been made under Article 309 of the Constitution, then the Government

,... can make appointments only in accordance with the rules. The State
is meant to be a model employer. The Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959 was enacted to H
840 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A ensure equal opportunity for employment seekers. Though this Act
may not oblige an employer to employ only those persons who have
been sponsored by employment exchanges, it places an obligation on
the employer to notify the vacancies that may arise in. the various
departments and for filling up of those vacancies, based on a procedure.
Normally, statutory rules are framed under the authority of law
B governing employment. It is recognized that no government order,
notification or circular can be substituted for the statutory rules framed
under the authority of law. This is because, following any other
course could be disastrous inasmuch as it will deprive the security of
tenure and the right of equality conferred on civil servants under the
c constitutional scheme. It may even amount to negating the accepted
service jurisprudence. Therefore, when statutory rules are framed under
Article 309 of the Constitution which are exhaustive, the only fair
means to adopt is to make appointments based on the rules so
framed."

D In the above case, this Court, in para 11, further observed as under:

"11. In addition to the equality clause represented by Article 14 of the
Constitution, Article I6 has specifically provided for equality of
opportunity in matters of public employment. Buttressing these
fundamental rights, Article 309 provides that subject to the provisions
E of the Constitution, Acts of the legislature may regulate the recruitment
and conditions of service of persons appointed to public services and
posts in connection with the affairs of the Union or of a State. In view
of the interpretation placed on Article 12 of the Constitution by this
Court, obviously, these principles also govern the instrumentalities
that come within the purview of Article 12 of the Constitution. With
F a view to make the procedure for selection fair, the Constitution by
Article 315 has also created a Public Service Commission for the
Union and Public Service Commissions for the States. Article 320
deals with the functions of the Public Service Commissions and
mandates consultation with the Commission on all matters relating to
G methods of recruitment to civil services and for civil posts and other
related matters. As a part of the affirmative action recognized by
Article 16 of the Constitution, Article 335 provides for special
consideration in the matter of claims of the members of the Scheduled
Castes and Scheduled Tribes for employment. The States have made
Acts, Rules or Regulations for implementing the above constitutional
H
SURENORA PRASAD TIWARI 1·. UTT AR PRADESH RAJYA KRISHI UTPADAN MANDI PARISHAD !BHANDARI. J.] 841

guarantees and any r_ecruitment to the service in the State or in the A
Union is governed by such Acts, rules and regulations. The
Constitution does not envisage any employment outside this
constitutional scheme and without following the requirements set
down therein."

This Court, in the aforesaid case, also discussed the case of Indra B
Sawhney & Ors. v. Union of India & Ors., reported in [ 1992] Supp 3 SCC 217.
It is observed in this case as under:

"644. The significance attached by the Founding Fathers to the right
to equality is evident not only from the fact that they employed both
the expressions 'equality before the law' and 'equal protection of the C
laws' in Article 14 but proceeded further to state the same rule in
positive and affirmative terms in Articles 15 to 18.

645. Inasmuch as public employment always gave a certain status and
power-it has always been the repository of State power-besides the
means of livelihood, special care was taken to declare equality of D
opportunity in the matter of public employment by Article 16. Clause
(1 ), expressly declares that in the matter of public employment or
appointment to any office under the State, citizens of this country
shall have equal opportunity while clause (2) declares that no citizen
shall be discriminated in the said matter on the grounds only of E
religion, race, caste, sex, descent, place of birth, residence or any of
them. At the same time, care was taken to declare in clause (4) that
nothing in the said Article shall prevent the State from making any
provision for reservation of appointments or posts in favour of any
backward class of citizens which in the opinion of the State, is not
adequately represented in the services under the State." F
These binding decisions are clear imperatives that adherence to Articles
14 and 16 of the Constitution is a must in the process of public employment.

The Constitution Bench in Umadevi 's case (supra) has observed that
adherence to the rule of equality in public employment is a basic feature of G
our Constitution. It was observed as under:

"43. 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 court would certainly be
disabled from passing an order upholding a violation of Article 14 or H
842 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A· in ordering the overlooking of the need to comply with the requirements
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 qualified persons, the same would not confer any
B 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 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
c term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker 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
D rules. It is not open to the court to prevent regular 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. The High Courts acting
under Article 226 of the Constitution, should not ordinarily issue
E 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 the court, which we have described as
"litigious employment" in the earlier part of the judgment, he would
not be entitled° to any right to be absorbed or made permanent in the
F service. In fact, in such cases, the High Court may not be justified in
issuing interim directions, since, after all, if ultimately the employee
approaching it is 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 employment
would hold up the regular procedure for selection or impose on the
G
State the burden of paying an employee who is really not required.
The courts must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs by the State or
its instrumentalities or lend themselves the instruments to facilitate
the bypassing of the constitutional and statutory mandates."
H
SURENDRA PRASAD TIWARI 1·. UTT AR PRADESH RAJYA KRISHI UTPADAN MANDI PARlS!lAD !BHANDARI. J.I 843

In the instant case, the appellant has continued in service for 14 years A
because of the interim order granted by the High Court on 15.9.1992. In the
aforesaid case, the Constitution Bench has observed that merely because an
employee had continued under cover of an order of the court, which the court
described as "litigious employment", he would not be entitled to any right to
be absorbed or made permanent in the service.
B
In the instant case, the appellant submitted that he has been continued
in service for 14 years and is entitled for regularization. This aspect of the
matter has also been specifically dealt with by the said Constitution Bench
in para 45 .of the judgment and it was observed as under:

"45. While directing that appointments, temporary or casual, be C
regularized 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
an engagement either temporary or casual in nature, is not aware of
the nature of his employment. He accepts the employment with open D
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 constitutional
scheme of appointment and to take the view that a person who has
temporarily or casually got employed should be directed to be E
continued permanently. By doing so, it will be creating another mode
of public appointment which is not permissible ... "

An argument was made before the Constitution Bench that the State
action in not regularizing the employees was not fair within the framework of
the rule of law. The Court observed that if the appointments, which have not F
been made according to the constitutional scheme, are regularized, that would
amount to perpetuate an illegality in the matter of public employment and that
would be a negation of the constitutional scheme adopted by the people of
this country.
G
Admittedly, the appellant has not been appointed in terms of the relevant
rules or in adherence to Articles 14 and 16 of the Constitution.

In Umadevi 's case (supra), this Court has also dealt with another aspect
of the matter and observed as under:
H
844 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A "47. When a person enters a temporary employment or gets engagement
as a contractual or casual worker and the engagement is not based
on a proper selection as recognized by the relevant rules or procedure,
he is aware of the consequences of the appointment being temporary,
casual or contractual in nature. Such a person cannot invoke_ the
theory of legitimate expectation for being confirmed in the post when
B an appointment to the post could be made only by following a proper
procedure for selection and in cases concerned, in consultation with
the Public Service Commission ......"

The ratio of the aforementioned judgment is that the courts cannot
C encourage appointments which are made outside the constitutional scheme
and it is improper for the courts to give any direction for regularization of the
person who has not been appointed by following the procedure laid down
under Articles 14, 16 and 309 of the Constitution.

Recently, this Court again reiterated the same principle in the case of
D Haryana State Agricultural Marketing Board v. Subhash Chand & Anr.,
reported in (2006] 2 SCC 794. In this case also, the employees were appointed
on contract basis. The Court held as under:

"It is the contention of the appellant that the respondent was appointed
during the 'wheat season' or 'paddy season'. It is also not in dispute
E that the appellant is a statutory body constituted under the Punjab
and Haryana Agriculture Produce Marketing Board Act. In terms of
the provisions of the said Act, indisputably, regulations are framed by
the Board laying down the terms and conditions of services of the
employees working in the Market Committees. A bare perusal of the
offer of appointment clearly goes to show that the appointments were
F made on contract basis. It was not a case where a workman was
continuously appointed with artificial gap of I day only. Indisputably, ..
the respondent had been re-employed after termination of his services
on contract basis after a considerable period(s)."

G In a recent judgment in National Fertilizers ltd. & Ors. v. Somvir
Singh, reported in (2006] 5 SCC 493, this Court had an occasion to examine
the matter after pronouncement of the aforementioned judgment by the
Constitution Bench. The Court in this case has laid down that it is now trite
law that "State" within the meaning of Article 12 of the Constitution is bound
to comply with the constitutional requirements as adumbrated in Articles 14
H
SURENDRA PRASADTIWARI v. UTIAR PRADESH RAJYA KRISHI UTPADAN MANDI PARISHAD !BHANDARI. J.I 845
}

and 16 thereof. When the Recruitment Rules are made, the employer would A
be bound to comply with the same. Any appointment in violation of such
Rules would render them as nullities. It is also well settled that no recruitment
should be permitted to be made through back door.

In National Fertilizers Ltd. (supra), this Court referred to the decision
in Union Public Service Commission v. Girish Jayanti Lal Vaghela & Ors., B
reported in [2006] 2 SCC 482, wherein the Court had observed as under:

"The appointment to any post under the State can only be made after
a proper advertisement has been made inviting applications from
eligible candidates and holding of selection by a body of experts or
a specially constituted committee whose members are fair and impartial C
through a written examination or interview or some other rational
criteria for judging the inter se merit of candidates who have applied
in response to the advertisement made. A regular appointment to a
post under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in some cases D
include inviting applications from the employment exchange where
eligible candidates get their names registered. Any regular appointment
made on a post under the State or Union without issuing advertisement
inviting applications from eligible candidates and without holding a
proper selection where all eligible candidates get a fair chance to E
compete would violate the guarantee enshrined under Article I 6 of the
Constitution."

In Banarsidas & Ors. v. State of U.P. & Ors., AIR (1956) SC 520, a
Constitution Bench of this Court had an occasion to deal with the scope of .
Article 16 of the Constitution. The Court laid down that Article 16 of the p
Constitution is an instance of the application of the general rule of equality
laid down in Article 14 with special reference to the opportunity for
appointment and employment under the Government.

We are able to discern the same ratio from the judgment of another
Constitution Bench of this Court in General Manager, Southern Railway & G
Anr. v. Rangachari, AIR (1962) SC 36.

Equal opportunity is the basic feature of our Constitution. Public
employment is repository of the State power. Certain status and powers

H
846 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.
(
A emanate from public employment.
H. M. Seervai, in his celebrated book "Constitutional Law of India" has
mentioned that in fact the principle of recruitment by open competition was
first applied in India and then applied in England.

B 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 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
C constitutional philosophy to implement the principle of equality in the true
sense in the matter of public employment.

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,
D it would be improper for the courts to give directions for regularization of
services of the person who is working either as daily-wager, ad hoc employee,
probationer, temporary or 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.
E
In view of clear enunciation of law laid down in the recent judgment of
the Constitution Bench and other judgments, we do not find any infirmity in
the impugned judgment of the High Court. The appeal being devoid of any
merit is accordingly dis.missed. However, in the facts and circumstances of the
p case, we direct the parties to bear their own costs.

B.S. Appeal dismissed.