{"id":10902,"date":"2004-07-28T00:00:00","date_gmt":"2004-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-umarani-vs-registrar-cooperative-on-28-july-2004"},"modified":"2015-06-04T11:59:38","modified_gmt":"2015-06-04T06:29:38","slug":"a-umarani-vs-registrar-cooperative-on-28-july-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-umarani-vs-registrar-cooperative-on-28-july-2004","title":{"rendered":"A. Umarani vs Registrar, Cooperative … on 28 July, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A. Umarani vs Registrar, Cooperative … on 28 July, 2004<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: N. Santosh Hegde, S.B. Sinha, A.K. Mathur.<\/div>\n
           CASE NO.:\nAppeal (civil)  1413 of 2003\n\nPETITIONER:\nA. Umarani\n\nRESPONDENT:\nRegistrar, Cooperative Societies and Ors.\n\nDATE OF JUDGMENT: 28\/07\/2004\n\nBENCH:\nN. Santosh Hegde,S.B. Sinha & A.K. Mathur.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
With
\nCIVIL APPEAL NOs. 3774, 3775, 3776, 4446,
\n6415, 6416, 7282, 9854, 9933, 10244-10245 of
\n2003, C.A. No.4495 of 2004
\n(@ S.L.P.(C) No. 1096 of 2004),
\nCivil Appeal No. 447 of 2004   <\/p>\n
S.B. SINHA, J:\n<\/p>\n
 \tLeave granted in S.L.P. (C) No. 1096 of 2004.\n<\/p>\n
 \tThese appeals are directed against a judgment and order dated
\n24.10.2002 passed by a Division Bench of the High Court of the Judicature
\nat Madras whereby and whereunder several writ appeals filed by the
\nAppellants herein and writ petitions filed by the Private Respondents were
\ndisposed of.\n<\/p>\n
 \tThe basic fact of the matter is not in dispute.\n<\/p>\n
 \tCooperative Societies and Land Development Banks constituted and
\nregistered in the State of Tamil Nadu used to be governed under Tamil Nadu
\nCooperative Societies Act, 1961 (for short “the 1961 Act”) and the Tamil
\nNadu Land Development Banks Act, 1934.  The State framed rules under
\nthe 1961 Act known as Madras Cooperative Societies Rules, 1963.\n<\/p>\n
 \tThe 1961 Act and 1934 Act were repealed and replaced by Tamil
\nNadu Cooperative Societies Act, 1983 (for short “the 1983 Act”).  Pursuant
\nto or in furtherance of the powers conferred thereunder, the State framed
\nrules known as the Tamil Nadu Cooperative Societies Rules, 1988 (for short
\n“the 1988 Rules”).  The 1983 Act and the 1988 Rules came into force with
\neffect from 13.4.1988.\n<\/p>\n
 \tIt is not in dispute that a large number of employees, i.e., about 39%
\nof the total strength of the employees of the cooperative societies in the State
\nof Tamil Nadu, were appointed without notifying the vacancies to the
\nEmployment Exchanges and without following the other mandatory
\nprovisions of the Act and the Rules framed thereunder relating to
\nrecruitment.\n<\/p>\n
 \tIt is not in dispute that a large number of appointees furthermore did
\nnot have the requisite educational qualification or other qualification like
\ncooperative training etc.  The reservation policy of the State was also not
\nfollowed by the cooperative societies.  The Recruitments were made beyond
\nthe permissible cadre strength.\n<\/p>\n
 \tWith a view to condone the serious lapses on the part of the
\nCooperative Societies in making such appointments in illegal and arbitrary
\nmanner, the Government of the State of Tamil Nadu issued various orders
\nfrom time to time in terms whereof such appointments were sought to be
\nregularised fixing a cut off date therefor.  Firstly, G.O.Ms No. 790 dated
\n5.7.1971 was issued ratifying the irregular appointments made otherwise
\nthan through employment exchange upto 5.7.1971.  Further, by G.O.Ms No.
\n1352 dated 7.11.1978, the cut off date was extended upto 31.12.1977.  Yet
\nagain, by G.O.Ms. No. 605 dated 3.6.1980, the cut off date was extended
\nupto 31.12.1979.  By G.O.Ms. No. 312 dated 30.11.1987 the cut off date
\nwas furthermore extended upto 8.7.1980.  Ultimately, by G.O.Ms. No. 86
\ndated 12.3.2001 the cut off date was extended upto 11.3.2001 and thereby
\nthe Government of Tamil Nadu sought to regularise appointments made
\nafter 8.7.1980 in the Cooperative Societies without notifying the
\nEmployment Exchange in respect of those employees who had completed
\n480 days of service in two years purported to be in terms of Tamil Nadu
\nIndustrial Establishments (Conferment of Permanent Status to Workmen)
\nAct, 1981 (for short ‘the 1981 Act’).\n<\/p>\n
 \tRelying on or on the basis of the said G.O.Ms No. 86 dated 12.3.2001,
\nseveral writ petitions were filed in the High Court of Judicature at Madras
\npraying for issuance of appropriate directions regularising the services of the
\nemployees working in the Cooperative Societies of the State of Tamil Nadu.
\nSome writ petitions were dismissed whereagainst writ appeals were filed.  A
\nlarge number of writ petitions were also placed before the Division Bench
\nfor hearing.\n<\/p>\n
 \tThe legality and\/ or validity of the aforementioned GOMs No. 86
\ndated 12.3.2001 fell for consideration before the Division Bench in the said
\nwrit appeals and writ petitions.\n<\/p>\n
 \tHaving regard to rival contentions the Division Bench of the High
\nCourt framed the following issues for its consideration:\n<\/p>\n
“(i) whether the writ petitions are maintainable?\n<\/p>\n
(ii) whether the cooperative societies are covered
\nby the provisions of Tamil Nadu Industrial
\nEstablishment (Conferment of Permanent Status to
\nWorkmen) Act, 1981 as also the Industrial
\nDisputes Act, 1947?\n<\/p>\n
(iii) Whether G.O.Ms. No. 86, dated 12.3.2001
\naims at regularizing all the staff appointed to
\ncooperative societies regardless of any defect or
\nany violation of the Rule 149 of the Tamil Nadu
\nCooperative Societies Rules, 1988, as amended in
\n1995?\n<\/p>\n
(iv) in the alternative, are the illegal appointees
\nentitled for statutory protection of regularization
\nand permanent status by virtue of Section 3 of the
\nPermanency Act subject to their completion of 480
\nman days in a continuous period of 2 years? And<\/p>\n
(v) whether personnel not covered by clause (iv)
\nare entitled for protection under the Industrial
\nDisputes Act, 1947?”\n<\/p>\n
 \tAs regard Issue No. 1, it was held that the writ petitions are
\nmaintainable.  Issue No. 2 was also decided in favour of the writ petitioners
\nholding that the 1981 Act is applicable to the employees of the Cooperative
\nSocieties.\n<\/p>\n
 \tIssues No. 3, 4 and 5 were taken up for consideration together.\n<\/p>\n
 \tThe Division Bench by reason of the impugned judgment opined that
\nthe provisions of the 1981 Act would not be applicable as regard
\nappointments made in violation of the statute or statutory rules.  It was
\nfurther held that in any event in terms of the 1981 Act and the G.O.Ms. No.
\n86 dated 12.3.2001 what had been exempted by the Government was the
\ncondition relating to the statutory obligation on the part of the Cooperative
\nSocieties to notify the Employment Exchange as regard the existing
\nvacancies and not other statutory conditions.  The Division Bench held:\n<\/p>\n
“(i)\tthat GOMs No. 86, Cooperation, Food and
\nConsumer Protection Department, dated
\n12.3.2001, has got the effect of only authorizing
\nthe regularization of the employees recruited by
\nthe cooperative societies for the period from
\n9.7.1980 to 11.3.2001 exempting the intervention
\nof employment exchange;\n<\/p>\n
(ii)\tthat GOMs No. 86, Cooperation, Food and
\nConsumer Protection Department, dated
\n12.3.2001, shall not operate for regularization of
\nany employee recruited by the cooperative
\nsocieties in violation of Sub-Rule (1) of Rule 149
\nof the Tamil Nadu Cooperative Societies Rules, as
\namended by GOMs No. 212, Cooperation, Food
\nand Consumer Protection Department, dated
\n4.7.1995;\n<\/p>\n
(iii)\tin societies, where the cadre strength has not
\nbeen fixed, direct them to adopt the special bye-
\nlaw in conformity with sub-Rule (1) of Rule 149 of
\nthe Tamil Nadu Cooperative Societies Rules, as
\namended by GOMs No. 212, Cooperation, Food
\nand Consumer Protection Department, dated
\n4.7.1995;\n<\/p>\n
(iv)\tdirect the Registrar of Cooperative Societies
\nto issue a circular within a week from today calling
\nupon all the cooperative societies in the State of
\nTamil Nadu to comply with the direction in clause\n<\/p>\n
(iii) supra;\n<\/p>\n
(v)\tdirect that within two months of the
\napproval of the special bye laws under sub-rule (1)
\nof the Rule 149 of the Rules, the respective Deputy
\nRegistrars of Cooperative Societies having
\njurisdiction over the cooperative societies in their
\nDivisions, shall enquire by issuing notice to the
\nentire staff recruited from 9.7.1980 to 11.3.2001,
\nand decide as to whether the said recruitment is in
\nconformity with the special bye laws approved by
\nthe Registrar of Cooperative Societies and
\nterminate the services of such staff members,
\nwhose appointments are in contravention of the
\nspecial bye laws so approved by the Registrar of
\nCooperative Societies;\n<\/p>\n
 \tIt is made clear that while considering the
\nvalidity or otherwise of the appointment of the
\nstaff cooperative societies, the requirement of
\nnotifying the vacancies to employment exchange
\nshall not be taken cognizance of.\n<\/p>\n
(vi)\tthat no cooperative staff member appointed
\nsubsequent to G.O.Ms. No. 86, Cooperation, Food
\nand Consumer Protection Department, dated
\n12.3.2001 otherwise than through employment
\nexchange shall be continued in service and their
\nservices shall be terminated forthwith.\n<\/p>\n
(vii)\tthat either the provisions of Tamil Nadu
\nIndustrial Establishments (Conferment of
\nPermanent Status to Workmen) Act, 1981 or the
\nIndustrial Disputes Act, 1947, or the settlements
\nentered under Sections 12 or 18 thereof, shall have
\nno application to the staff of the cooperative
\nsocieties appointed without adequate qualifications
\nor beyond the cadre strength for the period from
\n9.7.1980 to 11.3.2001.  This is equally applicable
\nto the staff appointed to the cooperative societies,
\notherwise than through employment exchange, for
\nthe period from 12.3.2001 onwards.”\n<\/p>\n
 \tMr. S. Balakrishanan, learned senior counsel appearing on behalf of
\nthe appellant relying on or on the basis of the decision of this Court in Jacob
\nM. Puthuparambil and Others Vs. Kerala Water Authority and Others
\n[(1991) 1 SCC 28] would submit that having regard to the fact that the
\nappellants had been working in the cooperative societies for a long time, the
\nHigh Court committed a serious error in not holding that they had acquired a
\nright for regularization.\n<\/p>\n
\tIn any event, Mr. Balakrishnan would contend that each employee
\nwas individually entitled to be given an opportunity of being heard so as to
\nenable the competent authority to come to the conclusion as to whether they
\nhad fulfilled the requirements contained in the aforementioned GOMs No.
\n86 dated 12.3.2001 or not.  Reliance in this behalf has been placed on Olga
\nTellis and Others Vs. Bombay Municipal Corporation and Others [(1985) 3
\nSCC 545].\n<\/p>\n
 \tThe learned counsel appearing on behalf of the respondents, on the
\nother hand, supported the judgment of the High Court.\n<\/p>\n
 \tThe primal question which arises for consideration in these appeals is
\nas to whether the State had the requisite authority to direct regularisation of
\nservices of the employees of the cooperative societies by reason of the
\nimpugned GOMs No. 86 dated 12.3.2001.\n<\/p>\n
 \tThe 1983 Act was enacted inter alia to make better provision for, the
\norganization, management and supervision of cooperative societies in the
\nState of Tamil Nadu as also for providing for an orderly development of the
\ncooperative movement in accordance with  cooperative principles.
\nIndisputably, in terms of the provisions of the 1983 Act, the cooperative
\nsocieties are required to be registered thereunder and are also liable to
\ncomply with the provisions thereof as also the rules framed thereunder.
\nBefore the High Court source of the power of the State to issue the said
\nG.O.Ms. No. 86 dated 12.3.2001 was traced to Sections 182 and 170 of the
\n1983 Act as also Article 162 of the Constitution of India.\n<\/p>\n
 \tSection 170 of the Act provides for power of the Government to
\nexempt registered societies from any of the provisions of the Act other than
\nclause (b) of sub-section (1) of section 88 and sub-section (1) of section 89
\nof this Act, or of the rules, subject to such conditions as may be specified
\nand direct that such provisions of the rules shall apply to such society with
\nsuch modifications as may be specified in the order.  It is not the case of any
\nof the parties that any such order of exemption had been passed in favour of
\nany of the cooperative societies.  Section 170 of the 1983 Act, therefore,
\ndoes not confer any power upon the State to issue the impugned order.\n<\/p>\n
 \tIn any view of the matter such an order could not have been passed
\nwith retrospective effect condoning the actions on the part of the cooperative
\nsocieties which were in flagrant violations of the provisions of the Act and
\nthe Rules made thereunder.\n<\/p>\n
 \tSection 182 of the 1983 Act reads as under:\n<\/p>\n
“182. Power of Government to give directions.-(1)
\nThe Government may, in the public interest, by
\norder, direct the Registrar to make an inquiry or to
\ntake appropriate proceedings under this Act, in any
\ncase specified in the order, and the Registrar shall
\nreport to the Government the result of the inquiry
\nmade or the proceedings taken by him within a
\nperiod of six months from the date of such order or
\nsuch further period as the Government may permit.\n<\/p>\n
(2) In any case, in which a direction has been
\ngiven under sub-section (1), the Government may,
\nnotwithstanding anything contained in this Act,
\ncall for and examine the record of the proceedings
\nof the Registrar and pass such orders in the case as
\nthey may think fit:\n<\/p>\n
Provided that before passing any order under this
\nsub-section the person likely to be affected by such
\norder shall be given an opportunity of making his
\nrepresentation.”\n<\/p>\n
 \tA bare perusal of the aforementioned provision would clearly go to
\nshow that the impugned Government Order could not have been issued by
\nthe State in terms thereof as the same can be taken recourse to only for the
\npurposes mentioned therein and not for any other.  It is not a case where the
\nGovernment directed the Registrar to make an enquiry against a person in
\nthe public interest.  Article 162 of the Constitution of India provides for
\nextension of executive power to the matters with respect of which the
\nLegislature of the State has power to make laws.  Article 162 of the
\nConstitution by no stretch of imagination is attracted as the source of the
\npower of the State to pass an appropriate order must be traced to the
\nprovisions of the Act itself.  If the State had no power to issue the said
\nGOMs No. 86 dated 12.3.2001 the same must be held to be a nullity.\n<\/p>\n
 \tLet us now consider the extent to which the provisions of the 1981
\nAct would apply to the fact of the present case.\n<\/p>\n
 \tThe 1981 Act applies only to industrial establishments.  Industrial
\nEstablishment has inter alia been defined to mean “an establishment as
\ndefined in clause (6) of Section 2 of the Tamil Nadu Shops and
\nEstablishments Act, 1947 (Tamil Nadu Act XXXVI of 1947)”.\n<\/p>\n
 \tEstablishment has been defined in Section 2(6) of the Tamil Nadu
\nShops and Establishments Act, 1947 as under:\n<\/p>\n
“‘Establishment’ means a shop, commercial
\nestablishment, restaurant, eating house, residential
\nhotel, theater or any place of public amusement or
\nentertainment and includes such establishment as
\nthe State Government may by notification declare
\nto be an establishment for the purpose of this Act.”\n<\/p>\n
 \tMr. Balakrishnan urged that the cooperative societies are Commercial
\nEstablishments.\n<\/p>\n
 \tWhether a Cooperative Society would be a commercial establishment
\nor not would essentially be a question of fact.  It cannot be said keeping in
\nview the legislative intent that all cooperative societies would be
\n‘commercial establishments’ within the meaning of the Tamil Nadu Shops
\nand Establishments Act, 1947.  It, therefore, appears that the impugned
\nGovernment Order has been issued by the State without proper application
\nof mind.  It has furthermore not been stated in the impugned Government
\nOrder that all the cooperative societies are commercial establishments within
\nthe meaning of Section 2(6) of the Tamil Nadu Shops and Establishments
\nAct, 1947.\n<\/p>\n
 \tThe Cooperative Societies and the Land Development Banks are
\ngoverned by the statutes under which they have been created as also the
\nRules and bye laws framed thereunder.  The cooperative societies are
\nobligated to follow the cooperative principles as laid down in the Act and the
\nRules framed thereunder.\n<\/p>\n
 \tThe State had framed rules in exercise of its power conferred upon it
\nunder Section 180 of the 1983 Act in the year 1988.  Rule 149 of the 1988
\nRules provides for a complete code as regard the mode and manner in which
\nappointments were required to be made and the process of appointments is
\nrequired to be carried out.  In terms of the said Rule, requirements to possess
\neducational qualification and other qualifications had been laid down.  One
\nof the essential qualifications laid down for holding certain posts is
\n‘undergoing cooperative training and previous experience’.\n<\/p>\n
 \tAt this juncture, we may notice some of the provisions contained in
\nRule 149 of the 1988 Rules.\n<\/p>\n
 \tSub-rule (3) of Rule 149 read as under:\n<\/p>\n
“(a) No appointment by direct recruitment to any
\npost shall be made except by calling for from the
\nsocieties applications from their employees who
\npossess the qualifications for the post and unless
\nthe Government have accorded special sanction for
\nrecruitment by advertisement in dailies, by also
\ncalling for a list of eligible candidates from the
\nEmployment Exchange.\n<\/p>\n
(b) Where the Employment Exchange issues a
\nnon-availability certificate or the Government have
\naccorded special sanction for recruitment by
\nadvertisement in dailies, the society shall invite
\napplications from candidates including those
\nworking in other societies by advertisements in
\none English daily and two Tamil dailies having
\ncirculation within the area of operations of the
\nsociety approved by the Government for the
\npurposes of issue of Government advertisements.\n<\/p>\n
(c) Every appointment by direct recruitment shall
\nbe made by holding written examination and
\ninterview or by holding only interview as decided
\nby the board and on the basis of the rank given
\nwith reference to the marks obtained in the written
\nexamination, if any, and the marks awarded in the
\ninterview:\n<\/p>\n
Provided that nothing contained in this sub-rule
\nshall apply to any of the posts for the recruitment
\nof which a Recruitment Bureau has been
\nconstituted under section 74 or in respect of which
\ncommon cadre of service has been constituted
\nunder section 75;\n<\/p>\n
Provided further that nothing contained in this sub-
\nrule shall apply to appointments of dependents of
\nthe employees of any society who died or
\nmedically invalidated while in service.”\n<\/p>\n
 \tSub-rule (4) of Rule 149 mandates that no person shall be appointed
\nto the service of a society if he has on the date on which he joins the post,
\nattained the age of thirty years and in the case of persons belonging to
\nScheduled Castes and Scheduled Tribes thirty-five years.\n<\/p>\n
 \tSub-rule (25) of Rule 149 provides that the principle of reservation of
\nappointment for Scheduled Castes\/ Scheduled Tribes and Backward Classes
\nfollowed by the Government of Tamil Nadu for recruitment to the State shall
\napply.\n<\/p>\n
 \tNo appointment, therefore, can be made in deviation of or departure
\nfrom the procedures laid down in the said statutory rules.\n<\/p>\n
 \tThe terms and conditions of services are also laid down in the said
\nrules.\n<\/p>\n
 \tThe 1983 Act was furthermore amended in the year 1995 providing
\nfor cadre strength which is directly relatable to the income of the cooperative
\nsocieties.\n<\/p>\n
 \tProvisions of the Act and the Rules framed thereunder reflect the
\nlegislative recruitment policy.  The said provisions are, thus, mandatory in
\nnature.\n<\/p>\n
 \tRegularisation, in our considered opinion, is not and cannot be the
\nmode of recruitment by any “State” within the meaning of Article 12 of the
\nConstitution of India or any body or authority governed by a Statutory Act
\nor the Rules framed thereunder.  It is also now well-settled that an
\nappointment made in violation of the mandatory provisions of the Statute
\nand in particular ignoring the minimum educational qualification and other
\nessential qualification would be wholly illegal.  Such illegality cannot be
\ncured by taking recourse to regularisation.  (See State of H.P. Vs. Suresh
\nKumar Verma and Another, (1996) 7 SCC 562).\n<\/p>\n
 \tIt is equally well-settled that those who come by backdoor should go
\nthrough that door.  (See State of U.P. and Others Vs. U.P. State Law
\nOfficers Association & Others, (1994) 2 SCC 204)<\/p>\n
 \tRegularisation furthermore cannot give permanence to an employee
\nwhose services are ad-hoc in nature.\n<\/p>\n
 \tThe question came up for consideration before this Court as far back
\nin 1967 in State of Mysore & Anr. Vs. S.V. Narayanappa [(1967) 1 SCR
\n128] wherein this Court observed
\n“Before we proceed to consider the construction
\nplaced by the High Court on the provisions of the
\nsaid order we may mention that in the High Court
\nboth the parties appear to have proceeded on an
\nassumption that regularisation meant permanence.
\nConsequently it was never contended before the
\nHigh Court that the effect of the application of the
\nsaid order would mean only regularising the
\nappointment and no more and that regularisation
\nwould not mean that the appointment would have
\nto be considered to be permanent as an
\nappointment to be permanent would still require
\nconfirmation. It seems that on account of this
\nassumption on the part of both the parties the High
\nCourt equated regularisation with permanence.”\n<\/p>\n
 \tThis Court yet again in R.N. Nanjundappa Vs. T. Thimmaiah & Anr.
\n[(1972) 2 SCR 799], it was held:\n<\/p>\n
“If the appointment itself is in infraction of the
\nrules or if it is in violation of the provisions of the
\nConstitution illegality cannot be regularised.
\nRatification or regularisation is possible of an act
\nwhich is within the power and province of the
\nauthority but there has been some non-compliance
\nwith procedure or manner which does not go to the
\nroot of the appointment. Regularisation cannot be
\nsaid to be a mode of recruitment. To accede to
\nsuch a proposition would be to introduce a new
\nhead of appointment in defiance of rules or it may
\nhave the effect of setting at naught the rules.”\n<\/p>\n
 \tThe said decisions of this Court have received approval of a 3-Judge
\nBench of this Court in B.N. Nagarajan and Others Vs. State of Karnataka
\nand Others [(1979) 4 SCC 507] it was held that the procedures for
\nappointment as contained in the Rules framed under Article 309 of the
\nConstitution of India must be complied with.
\n \tNo regularisation is, thus, permissible in exercise of the statutory
\npower conferred under Article 162 of the Constitution if the appointments
\nhave been made in contravention of the statutory Rules.\n<\/p>\n
 \tR.N. Nanjundappa (supra) has also been followed by this Court in
\nseveral decisions in Ramendra Singh and Others, etc. Vs. Jagdish Prasad and
\nOthers [AIR 1984 SC 885], K. Narayanan and others Vs. State of Karnataka
\nand others [AIR 1994 SC 55] and V. Sreenivasa Reddy and others Vs. Govt.
\nof Andhra Pradesh and others [AIR 1995 SC 586].\n<\/p>\n
 \tThe said decisions have been recently noticed by a Division Bench of
\nthis Court in Sultan Sadik Vs. Sanjay Raj Subba and Others [(2004) 2 SCC
\n377].\n<\/p>\n
 \tIn State of M.P. and Another Vs. Dharam Bir [(1998) 6 SCC 165], it
\nwas observed that the government services are essentially a matter of status
\nrather a contract and in that context it was observed:\n<\/p>\n
“26. Whether a person holds a particular post in a
\nsubstantive capacity or is only temporary or ad hoc
\nis a question which directly relates to his status.  It
\nall depends upon the terms of appointment.  It is
\nnot open to any government employee to claim
\nautomatic alteration of status unless that result is
\nspecifically envisaged by some provision in the
\nstatutory rules.  Unless, therefore, there is a
\nprovision in the statutory rules for alteration of
\nstatus in a particular situation, it is not open to any
\ngovernment employee to claim a status different
\nthan that which was conferred upon him at the
\ninitial or any subsequent stage of service.\n<\/p>\n
27.\tApplying these principles to the instant case,
\nsince the respondent, admittedly, was appointed in
\nan ad hoc capacity, he would continue to hold the
\npost in question in that capacity”\n<\/p>\n
 \tIt is trite that appointments cannot be made on political considerations
\nand in violation of the government directions for reduction of establishment
\nexpenditure or a prohibition on the filling up of vacant posts or creating new
\nposts including regularization of daily-waged employees. (See Municipal
\nCorporation, Bilaspur and Another Vs. Veer Singh Rajput and Others
\n[(1998) 9 SCC 258])<\/p>\n
 \tYet again, in Nazira Begum Lashkar and Others Vs. State of Assam
\nand Others [(2001) 1 SCC 143], it was noticed:\n<\/p>\n
“14The decisions cited by Mr. Parikh, in support
\nof his contention, not only do not support his
\ncontention but on the other hand, appears to us to
\nbe against his contention. In Ashwani Kumar case
\n((1997) 2 SCC 1 : 1997 SCC (L&S) 267) this
\nCourt in no uncertain terms held that as the
\nappointments had been made illegally and contrary
\nto all recognised recruitment procedures and were
\nhighly arbitrary, the same were not binding on the
\nState of Bihar. This Court further went on to hold
\nin the aforesaid case that the initial appointments
\nhaving been made contrary to the statutory rules,
\nthe continuance of such appointees must be held to
\nbe totally unauthorised and no right would accrue
\nto the incumbent on that score. The Court had also
\nheld that it cannot be said that the principles of
\nnatural justice were violated or full opportunity
\nwas not given to the employees concerned to have
\ntheir say in the matter before their appointments
\nwere recalled and terminated”\n<\/p>\n
 \tThis Court has considered this aspect of the matter in various other
\ndecisions, viz., Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P.
\nVs. Bal Kishan Soni and Others [(1997) 5 SCC 86], Ashwani Kumar and
\nOthers Vs. State of Bihar and Others [(1997) 2 SCC 1], Dr. Arundhati Ajit
\nPargaonkar Vs. State of Maharashtra and Others [(1994) Suppl. 3 SCC 380],
\nJ&K Public Service Commission and Others Vs. Dr. Narinder Mohan and
\nOthers [(1994) 2 SCC 630], and Dr. Surinder Singh Jamwal and Another Vs.
\nState of J & K and Others [(1996) 9 SCC 619].\n<\/p>\n
 \tEven recently in Suraj Prakash Gupta and others Vs. State of J & K
\nand others [(2000) 7 SCC 371], this Court opined:\n<\/p>\n
“28.The decisions of this Court have
\nrecently been requiring strict conformity
\nwith the Recruitment Rules for both direct
\nrecruits and promotees. The view is that
\nthere can be no relaxation of the basic or
\nfundamental rules of recruitment.”\n<\/p>\n
 \tIt was further observed:\n<\/p>\n
“29. Similarly, in State of Orissa v. Sukanti
\nMohapatra<\/a> ((1993) 2 SCC 486 : 1993 SCC (L&S)
\n607 : (1993) 24 ATC 259) it was held that though
\nthe power of relaxation stated in the rule was in
\nregard to “any of the provisions of the rules”, this
\ndid not permit relaxation of the rule of direct
\nrecruitment without consulting the Commission
\nand the entire ad hoc service of a direct recruit
\ncould not be treated as regular service. Similarly,
\nin M. A. Haque (Dr.) v. Union of India<\/a> ((1993) 2
\nSCC 213 : 1993 SCC (L&S) 412 : (1993) 24 ATC\n<\/p>\n
117) it was held that for direct recruitment, the
\nrules relating to recruitment through the Public
\nService Commission could not be relaxed. In J&K
\nPublic Service Commission v. Dr. Narinder Mohan<\/a>
\n((1994) 2 SCC 630 : 1994 SCC (L&S) 723 :\n<\/p>\n
(1994) 27 ATC 56) it was held that the provisions
\nof the J&K Medical Recruitment Rules could not
\nbe relaxed for direct recruitment. The backdoor
\ndirect recruitments, could not be permitted. (See
\nalso Arundhati Ajit Pargaonkar (Dr.) v. State of
\nMaharashtra<\/a> (1994 Supp (3) SCC 380 : 1995 SCC
\n(L&S) 31 : (1994) 28 ATC 415).) In Surinder
\nSingh Jamwal (Dr.) v. State of J&K ((1996) 9 SCC
\n619 : 1996 SCC (L&S) 1296) this Court directed
\nthe direct recruits to go before the Public Service
\nCommission.”\n<\/p>\n
 \tIn Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan [(2003) 3 SCC
\n485] this Court categorically held that there was no scope of regularization
\nunless the appointment was made on a regular basis.\n<\/p>\n
 \tIn Delhi Development Horticulture Employees’ Union Vs. Delhi
\nAdministration, Delhi and others [(1992) 4 SCC 99] the Court emphasized
\nhow judicial sympathy to the workmen could boomerang upon the purpose
\nwherefor Schemes like Jawahar Rozgar Yojna have been framed, and
\nthereby in the larger context, deny the limited benefit extended by the State
\nto the unemployed which would not be available but for such schemes. (See
\nalso Executive Engineer (State of Karnataka) Vs. K. Somasetty and Others,
\n(1997) 5 SCC 434)<\/p>\n
 \tIn M.D., U.P. Land Development Corporation and Another Vs. Amar
\nSingh and Others [(2003) 5 SCC 388], this Court noticed a large number of
\nearlier decisions of this Court wherein it had been held that once employees
\nare appointed for the purpose of Scheme, they do not acquire any vested
\nright to continue after the project is over.\n<\/p>\n
 \tIn State of Haryana and Another Vs. Tilak Raj and Others [(2003) 6
\nSCC 123] a Division Bench of this Court held that a person appointed as
\ndaily wager holds no post and thus, not entitled to claim the benefit of equal
\npay for equal work. (See also Orissa University of Agriculture and
\nTechnology and Another Vs. Manoj K. Mohanty, (2003) 5 SCC 188).\n<\/p>\n
 \tIn State of Himachal Pradesh through the Secretary, Agriculture to the
\nGovt. of Himachal Pradesh Vs. Nodha Ram and Others [AIR 1997 SC
\n1445], this Court stated the law in the following terms:\n<\/p>\n
“4. It is seen that when the project is completed
\nand closed due to non-availability of funds, the
\nemployees have to go along with its closure. The
\nHigh Court was not right in giving the direction to
\nregularise them or to continue them in other
\nplaces. No vested right is created in temporary
\nemployment. Directions cannot be given to
\nregularise their services in the absence of any
\nexisting vacancies nor can directions be given to
\nthe State to create posts in a non-existent
\nestablishment. The Court would adopt pragmatic
\napproach in giving directions. The directions
\nwould amount to creating of posts and continuing
\nthem despite non availability of the work. We are
\nof the considered view that the directions issued by
\nthe High Court are absolutely illegal warranting
\nour interference. The order of the High Court is
\ntherefore, set side.”\n<\/p>\n
 \tA Division Bench of this Court in Surendra Kumar Sharma Vs. Vikas
\nAdhikari and Another [(2003) 5 SCC 12] upon noticing the decision of this
\nCourt in Delhi Development Horticulture Employees’ Union (supra)
\nobserved:\n<\/p>\n
“A good deal of illegal employment market has
\ndeveloped, resulting in a new source of corruption
\nand frustration of those who are waiting at the
\nEmployment Exchanges for years. Not all those
\nwho gain such back-door entry in the employment
\nare in need of the particular jobs. Though already
\nemployed elsewhere, they join the jobs for better
\nand secured prospects. That is why most of the
\ncases which come to the courts are of employment
\nin government departments, public undertakings or
\nagencies. Ultimately it is the people who bear the
\nheavy burden of the surplus labour. The other
\nequally injurious effect of indiscriminate
\nregularization has been that many of the agencies
\nhave stopped undertaking casual or temporary
\nworks though they are urgent and essential for fear
\nthat if those who are employed on such works are
\nrequired to be continued for 240 or more days have
\nto be absorbed as regular employees although the
\nworks are time-bound and there is no need of the
\nworkmen beyond the completion of the works
\nundertaken. The public interests are thus
\njeopardized on both counts.”\n<\/p>\n
 \tYet again in Haryana Tourism Corporation Ltd. Vs. Fakir Chand and
\nOthers [(2003) 8 SCC 248], noticing that the respondents were not recruited
\nthrough the employment exchange or through any other accepted mode of
\nselection and further noticing that it was also not known whether there was
\nany advertisement calling for applications for these appointments, the prayer
\nfor reinstatement of service was rejected.\n<\/p>\n
 \tAlthough we do not intend to express any opinion as to whether the
\ncooperative society is a “State” within the meaning of Article 12 of the
\nConstitution of India but it is beyond any cavil of doubt that the writ petition
\nwill be maintainable when the action of the cooperative society is violative
\nof mandatory statutory provisions.  In this case except the Nodal Centre
\nfunctions and supervision of the cooperative society, the State has no
\nadministrative control over its day to day affairs.  The State has not created
\nany post nor they could do so on their own.  The State has not borne any part
\nof the financial burden.  It was, therefore, impermissible for the State to
\ndirect regularization of the services of the employees of the cooperative
\nsocieties.  Such an order cannot be upheld also on the ground that the
\nemployees allegedly served the cooperative societies for a long time.\n<\/p>\n
 \tIn Jawaharlal Nehru Technological University Vs. T. Sumalatha
\n(Smt.) and Others [(2003) 10 SCC 405], a Division Bench of this Court
\nrejected a similar contention stating:\n<\/p>\n
“8 The learned counsel therefore contends that
\nthere is every justification for absorbing the
\nrespondents concerned on regular basis in
\nrecognition of their long satisfactory service. The
\nlearned counsel further contends that the ad hoc
\narrangement to employ them on consolidated pay
\nshould not go on forever. The contention of the
\nlearned counsel cannot be sustained for more than
\none reason and we find no valid grounds to grant
\nthe relief of regularization. There is nothing on
\nrecord to show that the employees concerned were
\nappointed after following due procedure for
\nselection. Apparently, they were picked and
\nchosen by the university authorities to cater to the
\nexigencies of work in the Nodal Centre.”\n<\/p>\n
 \tIn Jacob M. Puthuparambil (supra) whereupon Mr. Balakrishnan
\nplaced strong reliance, a 3-Judge Bench of this Court noticed that by reason
\nof the statutory rules, regularization was sought to be made of such
\nemployees who were appointed under posts required to be filled if (i) it is
\nnecessary in public interest and (ii) where an emergency has arisen to fill
\nany particular post which has fallen vacant, immediately.  Therein it was
\nfurther noticed that Clause (e) of Rule 9 provided for regularization of
\nservice of any person appointed under clause (i) of sub-rule (a) if he had
\ncompleted continuous service of two years on December 22, 1973,
\nnotwithstanding anything contained in the rules.\n<\/p>\n
 \t Jacob M. Puthuparambil (supra) has been distinguished by this Court
\nin several decisions including 3-Judge Bench of this Court in Director,
\nInstitute of Management Development, U.P. Vs. Pushpa Srivastava (Smt.)
\n[(1992) 4 SCC 33] and Ashwani Kumar (supra).\n<\/p>\n
 \tWe do not intend to say any more on the subject as even
\nconstitutionality of such a provision is pending for consideration before the
\nConstitution Bench of this Court.  (See Secretary, State of Karnataka & Ors.
\nVs. Umadevi and Ors. 2003 (10) SCALE 388).\n<\/p>\n
 \tWe are also of the opinion that in a case of this nature, where the
\nvalidity or otherwise of a government order is in question, the principles of
\nnatural justice will have no role to play and in any event recourse thereto
\nwould result in futility.\n<\/p>\n
 \tIn Civil Appeal No. 1413 of 2003 an additional ground has been
\nraised to the effect that as the appellant was appointed on a compassionate
\nground, this Court on sympathetic consideration should issue appropriate
\ndirections directing the respondents to regularize her services. It appears that
\nthe appellant was appointed as supervisor in 3rd respondent Bank by the
\nPresident of the Bank on a consolidated pay of Rs. 2500\/- by an order dated
\n5.03.2001.  Her appointment is said to have been made on compassionate
\nground on the plea that her husband had deserted her.  It has not been shown
\nbefore us that there exists a scheme in terms whereof deserted woman can be
\nappointed on compassionate grounds.  Even such appointment, in our
\nopinion, would be illegal.\n<\/p>\n
 \tIn State of Manipur Vs. Md. Rajaodin [(2003) 7 SCC 511], this Court
\nobserved that the purpose of providing appointment on compassionate
\nground is to mitigate the hardship due to death of the breadwinner in the
\nfamily.\n<\/p>\n
 \tIn a case of this nature this court should not even exercise its
\njurisdiction under Article 142 of the Constitution of India on misplaced
\nsympathy.\n<\/p>\n
In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others [(2004)
\n2 SCC 130], it is stated:\n<\/p>\n
“We have no doubt in our mind that sympathy or
\nsentiment by itself cannot be a ground for passing
\nan order in relation whereto the appellants
\nmiserably fail to establish a legal right.  It is
\nfurther trite that despite an extra-ordinary
\nconstitutional jurisdiction contained in Article 142
\nof the Constitution of India, this Court ordinarily
\nwould not pass an order, which would be in
\ncontravention of a statutory provision.\n<\/p>\n
As early as in 1911, Farewell L.J. in Latham
\nvs. Richard Johnson & Nephew Ltd. [1911-13
\nAER reprint p.117] observed :\n<\/p>\n
“We must be careful not to allow our
\nsympathy with the infant plaintiff to affect
\nour judgment. Sentiment is a dangerous Will
\nO’ the Wisp to take as a guide in the search
\nfor legal principles.”\n<\/p>\n
\tYet again recently in Ramakrishna Kamat & Ors. Vs. State of
\nKarnataka & Ors. [JT 2003 (2) SC 88], this Court  rejected a similar plea for
\nregularization of services stating :\n<\/p>\n
“We repeatedly asked the learned counsel for
\nthe appellants on what basis or foundation in law
\nthe appellants made their claim for regularization
\nand under what rules their recruitment was made
\nso as to govern their service conditions.  They
\nwere not in a position to answer except saying that
\nthe appellants have been working for quite some
\ntime in various schools started pursuant to
\nresolutions passed by zilla parishads in view of the
\ngovernment orders and that their cases need to be
\nconsidered sympathetically.  It is clear from the
\norder of the learned single judge and looking to the
\nvery directions given a very sympathetic view was
\ntaken.  We do not find it either just or proper to
\nshow any further sympathy in the given facts and
\ncircumstances of the case.  While being
\nsympathetic to the persons who come before the
\ncourt the courts cannot at the same time be
\nunsympathetic to the large number of eligible
\npersons waiting for a long time in a long queue
\nseeking employment.”\n<\/p>\n
 \tFor the reasons aforementioned, we do not find any merit in these
\nappeals which are dismissed accordingly.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A. Umarani vs Registrar, Cooperative … on 28 July, 2004 Author: S.B. Sinha Bench: N. Santosh Hegde, S.B. Sinha, A.K. Mathur. CASE NO.: Appeal (civil) 1413 of 2003 PETITIONER: A. Umarani RESPONDENT: Registrar, Cooperative Societies and Ors. DATE OF JUDGMENT: 28\/07\/2004 BENCH: N. Santosh Hegde,S.B. Sinha & A.K. Mathur. JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-10902","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA. 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