M.M. Kumar, J.
1. On account of common questions of facts and law and the view taken by the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. : (2006)IILLJ722SC , we propose to decide these bunch of petitions, namely. C.W.P. Nos. 7563 of 2005, 7334 of 2005, 7569 of 2005, 728 of 2006, 1210 of 2006, 5651 of 2006, 5771 of 2006 and 5772 of 2006, by a common order. However, the facts arc mentioned mainly from two petitions i.e. C.W.P. Nos. 7563 of 2005 and 5771 of 2006. In C.W.P. No. 7563 of 2005, the petitioner has made prayer for quashing order dated 3.12.2004 (P-6) rejecting his demand justice notice on the ground that he was not in service prior to 31.1.1996 and he joined service as Tractor Driver on 1.5.1996.
2. Brief facts of the case are that the petitioner was appointed as a Tractor Driver on daily wage basis on 1.5.1996. His services were terminated on 30.11.1997. He approached the Labour Court and vide award dated 18.5.2001 (P-I), the Labour Court set aside his termination. He was granted continuity of service with full back wages. Thereafter, the respondents filed C.W.P. No. 9713 of 2002 against the aforementioned award, which has been admitted on 7.3.2002 without any interim directions. Accordingly, the respondents have paid the petitioner his back wages. On a reference received by the respondents, the case of the petitioner for. regularization of his services was considered by keeping in view the policy of the State Government, dated 1.10.2003 (P-4). Accordingly, it has been found that he did not fulfill the requirement of the policy as he was not appointed prior to 31.1.1996. It is appropriate to mention that the petitioner has placed reliance on policy instructions dated 7.3.1996, 18.3.1996 and 1.10.2003 (P-2, P-3 & P-4 respectively) beside challenging the constitutional validity of the policy instructions dated 10.2.2004 (P-5), which in fact is an amendment in the policy instructions dated 1.10.2003 (P-4). According to the amendment made on 10.2.2004 (P-5) in the policy instructions dated 1.10.2003 (P-4) only those daily wage employees who had completed three years of service on 30.9.2003 were to be regularised, subject to the condition that they were in service prior to 30.1.1996. The principal challenge is that once a period of three years for regularization of service of a daily wager has been laid down then fixing a date of coming in employment of preceding 7 years is unfair and violative of Articles 14 and 16 of the Constitution.
3. In C.W.P. No. 5771 of 2006, the petitioner, who was a Matriculate, has joined as a Water Pump Operator, Grade-II on 1.7.1992 in the Public Health Division, Kaithal. He worked as such up to 31.3.1994. Thereafter with effect from 1.4.1994 he was shifted as Mali-cum-Chowkidar. The prayer made in the aforementioned petition is for regularization of services of the petitioner by placing reliance on policy instructions dated 7.3.1996 (P-1) stating that those who have completed five years of service as on 31.1.1996 and were in. 'service on that date were entitled to be regularised on Class-Ill posts provided that they fulfill the requisite qualification. If a post in Class-Ill was not available then they were to be considered for regularization on a Class-IV post. On 18.3.1996 (P-2) another set of instructions were issued reducing the period of five years to three years of service by maintaining all other conditions. The services of the petitioner has been regularised on the post of Mali-cum-Chowkidar and his claim for regularization on the post of Water Pump Operator, Grade-II appears to have been rejected on 24.10.2005 (P-4). He filed C.W.P. No. 13394 of 2005, which was disposed of with a direction to the respondents to take a decision on the representation made by him and to pass a reasoned order. The representation has been considered by concluding that the petitioner had joined Public Health Department on 1.1.1991 as Water Pump Operator as a daily wager and continued as such up to 31.7.1991. He was again engaged on daily wage basis on 1.8.1991 and continued in service as such. His services were regularised with effect from 1.2.1996 as he was found working as Mali-cum-Chowkidar. The petitioner is only matriculate and do not satisfy the qualification required for the post of Water Pump Operator. Therefore, his claim for regularization on the post of Water Pump Operator was rejected. The other petitions are similar in facts, contents and the policies.
4. Notice of motion of these petitions have been issued and according to the learned State counsel no written statement would be necessary in view of the judgment of the Hon'ble Supreme Court in. the case of Umadevi (supra). With the consent of the parties, the matters were heard after admitting the same to the Division Bench.
5. Learned Counsel for the petitioners in all the cases have made similar submissions and have argued that once the State of Haryana has framed a policy in pursuance to the directions issued by this Court as well as the Hon'ble Supreme Court it must be held bound by the same. As a consequence the services of all employees working on daily wage basis, ad hoc basis or part time basis must be regularised following the policy instructions issued by the Chief Secretary or the Rules framed under Article 309 of the Constitution. Learned Counsel have jointly placed reliance on the policy instructions dated 7.3.1996 and 1.10.2003 (P-2 & P-4 respectively in C.W.P. No. 7563 of 2005). They also relied upon the rules framed under proviso to Article 309 of the Constitution by incorporating a proviso to Rule 6 of the Haryana Government General Administration Department (General Services) Rules. Therefore, it is sought to be argued that the effect of refusing to follow these instructions or rules would be that on one hand there would be a number of persons whose services have been regularised and on the other hand the cases of the petitioners have been rejected arbitrarily which would result into grave injustice to the petitioners. It has been submitted that in some cases they are senior having been employed earlier in the job to those who have been regularised. Our attention has been drawn by Mr. I.D. Singla to the order dated 29.7.2003 (P-3 in C.W.P. No. 5771 of 2006) wherein the services of Kali Ram, Krishan Chand, Prit Pal and Sumer Chand have been regularised. Learned Counsel have then argued that once the petitioners have fulfilled the condition of satisfying the number of years of service and they have been allowed to continue for such a long time then the respondents cannot be permitted to look at the source of their recruitment. In other words, the argument is that irrespective of the mode of entry into service they are entitled to be treated at par with those who have been appointed to the service in accordance with the Rules and Regulations. It was also urged that in some cases the petitioners have been inducted into service through the Employment Exchange, which must be accepted as a valid mode of recruitment and still their claims have been rejected.
6. Mr. Harish Rathee, learned State counsel has submitted that despite the policy framed by the State or the Rules notified by it under proviso to Article 309 of the Constitution, the services of the petitioners cannot now be regularised as a Constitution Bench of the Hon'ble Supreme Court in Umadevi's case (supra) has laid down that it is only an irregularity if committed during the selection process, which could be regularised but no illegality is permitted to be regularised. According to the learned Counsel, the policy instructions issued under Article 162 or the Rules framed under proviso to Article 309 of the Constitution would not deemed to have conferred any right on the petitioners in the wake of the Constitution Bench judgment of the Hon'ble Supreme Court in Umadevi's case (supra). Learned Counsel has emphasized that the Hon'ble Supreme Court has prohibited from making regularization as a mode of recruitment because it would violate the mandate of the rules and requirement of Articles 14 and 16(1) of the Constitution.
7. We have thoughtfully considered the submission made by the learned Counsel for the parties and are of the view that these petitions are liable to be dismissed. The Constitution Bench in Umadevi's case (supra) has referred to a plethora of authorities for and against framing of scheme for regularization. The fundamental distinction between illegality and irregularity has been made and it has been concluded in para 43 that the rule of equality in public is a basic feature of our Constitution. The aforementioned view is extracted below for facility of reference:
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 an order upholding a violation of Article 14 or 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 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 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 rules. It is not open to the court to prevent regular recruitment at the instance 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 directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
8. Before concluding in the aforementioned manner, their Lordships' have also referred to the judgment of the Supreme Court in the case of State of Haryana v. Piara Singh : (1993)IILLJ937SC . It is, thus, evident that no mandamus can be issued to legalise which was initially not permissible by the Constitution or the Rules of Service regulating the recruitment. In other words, the employees who have entered in service on ad hoc basis for a period of 89 days, as a daily wager or on contract basis or by any other mode not supported by the basic feature of the Constitution as enshrined under Article 14 and 16(1) of the Constitution, would not be entitled to seek the equitable relief of regularisation because it would amount to condoning the violation of the basic feature of the Constitution.
9. The Constitution Bench has also exhorted the Courts to refrain from issuing directions in favour of a 'litigious employee' by issuing interim directions or otherwise because it would hold up regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts are not to 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.
10. Explaining that an employee who has been engaged either on temporaiy basis or casual basis or on contract basis, is fully aware what he has accepted and, therefore, he has no legitimate expectation to continue in service the way a regularly recruited employee would expect. The Constitution Bench has also refused to Impose a permanent ban on the State to employ daily wager, temporary and contractual employees and has held that such an employee should not be considered as a substitute for the regular recruitment. The aforementioned view has been expressed in para 45, which is extracted below for facility of reference:
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's 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 continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually would not be getting even that employment when securing of such employment brings at least some succour to them....
11. The Constitution Bench has also explained the legal connotation of expression 'illegality' and 'irregularity'. It has been laid down that it is mandatory that the posts are advertised by the competent authority/the State or authorized selection body. After considering all the competing claims in accordance with the criteria which answers the requirement of Articles 14 and 16(1) of the Constitution, the candidates are required to be selected and then appointed to the post. Any entry into service by a method contrary to the provisions of Articles 14 and 16(1) of the Constitution have been considered to be illegal as is evident from the perusal of para 15 and 53 of the judgment. The Constitution Bench has made distinction between 'illegality' and 'irregularity'. In order to cull out the aforementioned distinction, their Lordships' made a reference to the arguments raised in the case of R.N. Naniundappa v. T. Thimmiah : (1972)ILLJ565SC , wherein it was observed that if the appointment made itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, such an illegality cannot be regularised. It has been further observed that ratification and regularization is possible of an act which could be within the power and province of the authority but there has been some non-compliance of the procedure or manner which did not go to the root of the appointment and that regularization cannot be a mode of recruitment If such a proposition was to be accepted then a new head of appointment would be introduced in defiance of rules, which would have the effect of setting at naught the rules. The Constitution Bench has also made a reference to another judgment of the Supreme Court in B.N. Nagarajan v. State of Karnataka : (1979)IILLJ209SC . Therefore, a clear distinction between those who have entered into service in violation of the rules and basic structure of the Constitution as envisaged by Articles 14 and 16(1) of the Constitution are class apart from those whose appointments have come to be irregular. It is in these circumstances that their Lordships' of the Supreme Court in Umadevi's case (supra) has observed in para 53 as under: -
53. (sic) aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.Y. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily, wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
12. When the facts of C.W.P. No. 577l of 2006 are viewed in the light of the judgment of the Constitution Bench in Umadevi's cave.(supra) it becomes evident that the initial appointment of the petitioner on the post of Water Pump Operator Grade-II, a Group-C post, was not in accordance with the procedure envisaged by the Rules. The minimum requirement of advertising the post in the Press, consideration of competing claims in accordance with a lawful criteria and then selection made on that basis have been completely given a go-by. Such an entry into service has been held to be against the basic structure of the Constitution as envisaged by Article 14 and 16(1) of the Constitution. Therefore, it has to be viewed as an illegality which cannot be cured by the magic band of regularization. Therefore, we do not find any ground to issue a writ in the nature of mandamus directing the respondents to regularise the services of the petitioners. However, at the same time, we wish to clarify that we are not re-opening the issue of regularization of the services of those petitioner(s) whose services have already been regularised on any post because in Umadevi's case (supra) it has been laid down that the orders of regularization, if any, already made but not sub judice, is not required to be re-opened on the basis of the judgment in Umadevi's case (supra). The aforementioned position is evident from para 53, which has been extracted above.
13. By referring to the judgment of the Supreme Court in the case of Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College 1962 Supp.(2) S.C.R. 144. their Lordships' have observed that in the absence of any legal or constitutional right, a right of mandamus cannot be issued because where there is no right there cannot be any legal obligation. A mandamus could only be issued if a legal right exist in order to compel the respondent to fulfill his legal obligation. The aforementioned position is evident from the perusal of para 52 of the judgment.
14. We have carefully taken into consideration the rights accrued to the daily wagers/temporary/ad hoc employees and pursuant to the policy of regularisation issued by the State of Haryana vide Notification No. GSR-24/Const./Article 309/3003, dated 1.10.2003, under proviso to Article 309 of the Constitution of India read with proviso to Clause 6 of the Haryana Government General Administration Department (Genera! Services) notification dated 28.1.2000 by the Governor of Haryana. It has been claimed that a statutory right accrues to ad hoc employees/contract wage employees and daily wage employees (Group C&D;) for regularisation pursuant to the completion of three years service on specified date i.e. 30.9.2003, with notional permissible breaks mentioned in the notification (copy Annexure P-4 in Rajinder Math's case). It has been argued that when a right has been bestowed by the Government by forming a legal policy of regularisation, the beneficiaries cannot be deprived of the fruits of the same.
15. The argument at first blush appear to be impressive but on close scrutiny in context to the spirit of the command and directive of the Constitutional Bench rendered under Article 141 and 142 of the Constitution in Umadevi's case the argument has lost the strength and shine. The ratio of the Constitutional Bench clearly intended to overrule all past precedents which run counter to the principle of law. The Hon'ble Supreme Court being aware of the various schemes of regularisation which are repugnant to the Articles 16(4), 309, 320, 335 has made endeavour in Umadevi's case to put an end to uncertainty and clarify the legal position emerging from the Constitutional scheme, leaving the High Courts to follow necessarily the law thus laid down. The reference order which lead to the formation of Constitutional Bench and quoted in judgment needs to be reproduced here, which reads as follows:
1. Apart from the conflicting opinions between the three-Judge Bench decisions in Ashwani Kumar v. State of Bihar, State of Haryana v. Piara Singh and Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka on the one hand and State of H.P. v. Suresh Kumar Verma, State of Punjab v. Surinder Kumar and B.N. Nagarajan v. State of Karnataka on the other, which have been brought out in one of the judgments under appeal of the Karnataka High Court in State of Karnataka v. H Ganesh Rao, decided on 1-6-2001 the learned Additional Solicitor General Urged that the scheme for regularisation is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution and, therefore these cases are required to be heard by a Bench of five learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare, Learned Senior Counsel, appearing for the employees urged that such a scheme for regularisation is consistent with the provisions of Article 14 and 21 of the Constitution.
3. Mr. V. Lakshmi Naryan, learned Counsel appearing in C.Cs. Nos. 109-498 of 2003, has filed the GO dated 19.7.2002 and submitted that the orders have already been implemented.
4. After having found that there is conflict of opinion between the three-Judge Bench decisions of this Court, 'we are of the view that these cases are required to be heard by a Bench of five learned Judges.
5. Let these matters be placed before the Hon'ble Chief Justice for appropriate orders.
16. The judgment of Umadevi's has been delivered keeping in view the schemes of regularisation, which were sought to be consistent with the provisions of Article 14 and 21 of the Constitution of India. Umadevi's case (supra) is intended to lay down a uniform law holding that 'in the name of individualising justice, it is also not possible for the Supreme Court to shut its eyes to the Constitutional scheme and the rights of the numerous as against the few who are before the Court'.
17. In view of the above, we have no hesitation to observe that the policy of regularisation issued under Article 309 of the Constitution dated 1.10.2003 or any other such policy would not confer an enforceable right on the employees for the purpose of regularisation. The benefits already acquired pursuant to the said policies and schemes would remain un-effected.
18. In view of the principles laid in the aforementioned judgments, we are unable to condone the violation of basic features of the Constitution because various policies and the rules framed by the State permit regularisation as a mode of recruitment at the cost of those who are fully qualified and unable to exert any influence to gain back door entry into service. It is not possible to accept the argument that the mode of recruitment while entry into service cannot be taken into consideration at the time of regularisation as ample time has passed, mainly because it would be unjust and unfair. For satisfying the basic features of the Constitution as envisaged under Articles 14 and 16(1) this would be a small price to be paid and the people of the country who are fully entitled to be considered for regular recruitment should not be deprived of their right of consideration by competing with those who have grabbed the Government employment through back door entries. Their fundamental rights to be considered for, public employment, which has been held to be basic structure of the Constitution, must be upheld. On the altar of the policy of regularisation issued either under Article 162 or any rule framed under proviso to Article 309 such type of back door entrant cannot seek regularisation of his service from the Courts. Therefore, on the basis of such policies or rules no writ of mandamus could be issued because, at the first place no right would accrue in favour of the petitioners, which could be enforced by the issuance of a writ in the nature of mandamus.
19. The only argument which survives for adjudication is that in cases where employees have been appointed by requisitioning the names from the Employment Exchange, should their services be regularised. We are afraid that this argument can also not be accepted because when the requisition is sent to the Employment Exchange it clearly specify nature of employment. In these type of cases the requisition is for employment on 89 days basis or by issuing advertisement in Press for employment on contractual basis. Such, like requisitions or inviting applications for appointment on contractual basis or for a limited period would also not be entitled to equation with those who have been selected and appointed in accordance with the selection process as provided by the rules consistent with Articles 14 and 16(1) of the Constitution. It is appropriate to mention that in the case of Excise Superintendent Malkapatnam v. K.B.N. Visweshwara Rai : (1997)ILLJ56SC , even for restricting the selection to the candidates sponsored by Employment Exchange has been held to be impermissible. It has impliedly overruled the principle laid down at one stage in 1987 in the case of Union of India v. N. Hargopal : (1987)ILLJ545SC , wherein it was held that requisition can be sent to employment exchanges for regular recruitment and the same use to be held to be a valid source of recruitment. However, the Supreme Court in K.B.N. Visweshwara Rao's case (supra) has now laid down that in addition to requisition from the employment exchange, the applications should also be called for through public publication in Newspapers having wide circulation and display on office notice boards or announcement on radio, television and employment news bulletins because such a procedure would sub serve fair play. Therefore, we have no hesitation in rejecting the submissions made by the learned Counsel for the petitioners as nothing has been pointed out that even through employment exchanges recruitment was sought to be made on regular basis.
20. We would be failing in our constitutional obligations in case we do not reiterate the directions of the Hon'ble Supreme Court in Umadevi's case. Giving a respite to the irregular appointments (no illegal appointments) of duly qualified persons in duly sanctioned vacant posts which might have already been made and the employees having continued to work for 10 years or more with the intervention of the orders of the Court or Tribunals. The question of regular appointment of such employees may have to be considered on merits in the light of the principles settled by the Hon'ble Supreme Court in Umadevi's case (supra). The directions issued in para 53 of the judgment are that the State Government and their instrumentalities may take steps to regularise the services of such irregularly appointed persons who have worked for 10 years or more in duly sanctioned posts. It has further been directed by the Supreme Court that the process of regular recruitment be undertaken to fill up those sanctioned posts where temporary or daily wagers are being now employed. The process must be set in motion within six months from the date of judgment, which is 10.4.2006, in Umadevi's case (supra). Accordingly, we direct the respondent - State of Haryana to ensure that process of regular recruitments are undertaken to fill up those vacant sanctioned posts where temporary employees or daily wagers are being now employed. It is further directed that the State of Haryana and its instrumentalities shall take steps to regularise as one time measure the services of such employees who have been appointed regularly in accordance with the mandate of the Supreme Court in para 53 read with para 15 of the judgment. The respondent State is further directed to grant exemption to the employees who are working on ad hoc basis in relaxation of the rules when recruitment on permanent posts is to be made.
21. For the reasons mentioned above, we dismiss these petitions. However, we once again made it clear that the orders of regularisation which have already been issued before the judgment of the Hon'ble Supreme Court in Umadevi's case (supra) would remain intact and cannot be reopened, as has been laid down in para 53 of the judgment of the Constitution Bench, which has been extracted above.