R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... R.S.A. No.3127 of 2003 (O&M) Date of Decision: August 02, 2011 National Fertilizers Limited and others ... Appellants VERSUS Balwinder Singh ... Respondent R.S.A. No.872 of 2004 National Fertilizer Limited and others ... Appellants VERSUS Charanjeet Singh ... Respondent R.S.A. No.5646 of 2003 National Fertilizers Limited and others ... Appellants VERSUS Ram Swaroop ... Respondent R.S.A. No.5214 of 2003 Ram Swaroop ... Appellant VERSUS M/s National Fertilizers Limited and others ... Respondents R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 2 R.S.A. No.482 of 2004 Charanjit Singh ... Appellant VERSUS M/s National Fertilizers Limited and others ... Respondents 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? CORAM: HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.A.P.S.Sandhu, Advocate for Mr.Ashok Aggarwal, Senior Advocate for the appellants-National Fertilizers Limited. Mr.R.K.Malik, Senior Advocate with Mr.Vishal Malik, Advocate for the appellants in RSA Nos.5214 of 2003 and 482 of 2004 and for the respondents in RSA Nos.5646 of 2003 and 872 of 2004. Mr.G.S.Bal, Advocate for the respondents. .-. MOHINDER PAL, J. This judgment will dispose of the aforestated appeals as the questions involved therein are same. The National Fertilizers Limited (Government of India undertaking) is a public sector concern. On 19.04.1989, the appellants took a policy decision not to make further recruitment in the marketing division and, accordingly, a circular was issued to R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 3 all the concerned divisions falling under it. The relevant extract of the circular is reproduced as under, which is Ex.D-4 with the Lower Court file: “It has been decided that with immediate effect the strength of the Marketing Division be pagged to the number of individuals in position in the Marketing Division as on 31.03.1989. It has also been decided that no further recruitment be made in the Marketing Division in any category of post. However, as and when, if any post is required to be filled up in any category due to exigencies of work, the approval of D(F)/MD be obtained and the paper routed through the Corporate Office-Personnel Department This may please be noted and receipt of this communication acknowledged.” The respondents herein had been appointed despite the above mentioned circular and ban of recruitment. Apart from this circular, Ex.D3 is the Personnel Manual of National Fertilizers Limited. It contains the Rules regarding recruitment and promotion of its employees. Rule No.1.5 lays down the sources of recruitment and Rule No.1.6 lays down method and procedure of recruitment. Similarly, Rule No.1.7 lays down the reservation of posts and preference in appointments. However, before the above mentioned appointments, the employment exchange was not intimated about the vacancy in terms of the provisions of the employment exchange (Compulsory Notification of Vacancies) Act, 1959. It is also not disputed that no advertisement was issued. Thus, the appointment of the respondents in all these appeals were against the Rules and in a way a back-door entry. Otherwise also, it has been admitted by the respondents that they moved an R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 4 application for their recruitment without any vacancy having been notified. They were said to have been interviewed and, accordingly, appointment letters have been issued at the instance of few officials of the department. It is case of the appellants that after the retirement of the officers, who recruited the respondents certain writ petitions have been filed in various High Courts including this Court. In some of these cases, the appellants preferred to approach the Court of Civil Judge (Jr.Divn.), Sirsa and after decision, they preferred appeals before the Appellate Court and ultimately in the High Court, which is pending for disposal. Mr.A.P.S.Sandhu, Advocate for Mr.Ashok Aggarwal, Senior Advocate has submitted that the matter regarding regularization of the services is not a dispute in this case in view of the decision in Secretary, State of Karnataka and others Vs. Umadevi and others JT 2006(4) SC 420. It has been submitted that these appointments were a back-door entry as no such advertisement as required under the Rules has been issued before inviting applications. The candidates from the employment exchange were not called nor reservation policy maintained by the Government has been followed and, as such, these appointments were in violation of Rules 1.5, 1.6 and 1.7 and other relevant Rules applicable to the facts of the case. On the other hand, Mr.G.S.Bal, learned counsel appearing on behalf of the respondents has controverted these arguments and submitted that the appointment of the respondents were valid and legal in view of the fact that they have applied for the post, thereafter, they have been interviewed and only then, the appointment letters were issued. It is further submitted that R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 5 these appointments have been made in the year 1991 and since then, the respondents have been continuing on this service for good number of years and now at the fag end of their career they cannot be thrown out of service on the ground that the initial appointment is not as per the recruitment Rules. It is also argued that similarly situated employee, namely, Kulbhushan Singh, Junior Field Assistant has also filed a similar suit, which was decreed. Regular Second Appeal, which was filed by the same appellant, namely, National Fertilizers Limited was dismissed by this Court vide Annexure R-1 and order dated 07.11.2000 passed in R.S.A.No.4072 of 2000. Even S.L.P. filed by the National Fertilizers Limited against the said judgment has since been dismissed vide Annexure R2 vide order dated 19.02.2001 passed by the Hon'ble Supreme Court. It is further submitted that an identical controversy has also been decided by the Madhya Pradesh High Court and even the directions have been given to grant the scale as per terms and conditions of the appointment letter leaving aside the continuity in service. In view of the aforementioned developments, it was argued that once the matter has been set to rest by the Hon'ble Supreme Court of India, the appeals filed by the appellants deserve to be dismissed. Admittedly, the respondents have been appointed on the basis of applications made by them. It is also not disputed that no advertisement was issued in the newspaper nor any notification has been sent to the employment exchange or that the vacancy reserved for SC and ST has been taken into consideration. The appellant-National Fertilizers Limited is a State R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 6 within the meaning of Article 12 of the Constitution and was bound to comply with the requirements as laid down under Articles 14 and 16 of the Constitution of India. Further, once the recruitment Rules have been made, these were required to be followed and it is well settled that no recruitment can be permitted through a back-door. The Constitution Bench in Uma Devi's case (supra) made a detailed survey of the case laws in this regard and the Constitution Bench opined that any appointment made in violation of the Recruitment Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. The contention raised on behalf of the employees that those temporary or adhoc employees, who had continued for a fairly long spell, the authorities must consider their cases for regularization was answered thus: “26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent-the distinction between regularization and making permanent, was not emphasised here-can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 7 great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or causal employees engaged without following the regular recruitment procedure should be made permanent.” It will be further relevant to mention that in one of the matters pertaining to the same very appointments, which are matter of controversy in this case titled as National Fertilizers Limited and others Vs. Somvir Singh (2006) 5 SCC 493. The case for regularization of the appellants has been answered in negative. The relevant part of the judgment is reproduced as under: “It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court In Umadevi. In view of the authoritative pronouncement of the Constitution Bench, in our opinion, the impugned judgments cannot be sustained. They are set aside accordingly. S/Shri Somvir Singh, Hansraj Benewal Malkiat Singh and Ranjit Singh are said to be working. They may be relieved of their posts. We may, however, observe that their cases may be R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 8 considered for future appointment and age bar, if any, in view of the policy decision of the appellant itself may be relaxed to the extent they had worked. The salary or any remuneration paid to them, however, may not be recovered. This order, however, is being passed in exercise of our jurisdiction under Article 142 of the Constitution of India keeping in view the principles embodied in Section 70 of the Contract Act. The appeals are allowed. No costs.” After going through the various judgments passed by the Hon'ble Supreme Court on this point, the pre-dominant view is seen to be that the appointment made without following the due process or the Rules for appointment did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. The appellant is a Government concern. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The appellants works out the schemes taking into consideration the financial implications and the economic aspects. The Court cannot impose on the appellants financial burden of this nature by insisting on regularization or absorption of the respondents whose initial entry into service is through back-door. The direction to give permanent employment to all such respondents may cause the financial burden on the appellants and their liability can become so heavy as this institution may collapse under its own weight. Learned counsel representing the respondents-workmen has also referred to the case of Kulbhushan Singh, Junior Field Assistant in which Special Leave R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 9 Petition filed by the National Fertilizers Limited has been dismissed and judgment Annexure R-2 passed by the Hon'ble Supreme Court has been annexed. It will be pertinent to mention here that this case has not been decided on merits rather the same has been decided in limine. On the other hand, Somvir Singh's case (supra) has been decided on merits and the controversy has been set to rest in this case. For the aforementioned reasons and in view of the law laid down by the Apex Court, the above mentioned appeals i.e. RSA Nos.3127, 5646 of 2003 and 872 of 2004 are hereby allowed. In the second set of appeals, the appellants-employees have claimed for confirmation, release of full salary and other allowances/benefits i.e. increments, bonus, DA, House Rent, Medical etc. from the date of appointment and joining the duty. Mr.R.K.Malik, Senior Advocate has mainly prayed for release of arrears as per terms of the appointment letter issued by the National Fertilizers Limited itself. Since the initial appointment is void ab-initio and against the law as discussed earlier, no such order can be passed for grant of arrears or pay scales as prayed by the appellants. Otherwise also, while disposing of the appeals in Somvir Singh's case (supra), it has been held that these employees be relieved of their posts. However, an option has been given to the employer i.e. National Fertilizers Limited that the cases of the employees may be considered for future appointment and age bar, if any, in view of the policy decision of the appellant itself may be relaxed to the extent they R.S.A.Nos.3127, 5646 and 5214 of 2003 and R.S.A.Nos.872 and 482 of 2004 10 had worked. With these observations, no order in favour of these appellants can be passed, Accordingly, their appeals i.e. R.S.A.Nos.5214 of 2003 and 482 of 2004 are dismissed. August 02, 2011 ( MOHINDER PAL ) jt JUDGE