VANDANA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE short issue raised in the instant petition filed under Article 226 of the Constitution is whether the services of the petitioners, who were appointed as Stenographer (OG) on temporary basis initially for 89 days, between June 1993 to October 1995, could be regularised and a direction could be issued to the respondents to frame a Scheme for regularization. The applicant -petitioners have challenged order dated 2.9.2005 (P -1) rendered by the Chandigarh Bench of the Central Administrative Tribunal (for brevity,' the Tribunal'). The Tribunal has rejected the prayer of the applicant -petitioners for regularising of their services on the ground that they were never recruited in accordance with the rules through the process of the Staff Selection Commission (SSC), which is now recognised to be a mode of recruitment. However, at the same time, the Tribunal has disposed of the original application by observing in para 7 as under:

(2.) IT is pertinent to mention that at one stage the instant petition was dismissed by the Division Bench in light of the law laid down by the Constitution Bench of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka and other Secretary, others versus Uma Devi and others (1), vide order dated 18.5.2006. There after, the applicant -petitioners filed Review Application No. 207 of 2006 contending that they have come through employment exchange and have been working for the period often years. The Division Bench recalled order dated 18.5.2006 keeping in view of the observations made by their Lordships' of Hon'ble the Supreme Court in para 53 of the judgment in the case of Uma Devi (supra).

(3.) 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. Nanjundappa versus T. Thimmiah (2), 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 regularisation 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 regularisation 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 rendered in the case of B.N. Nagarajan versus State of Karnataka (3). 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: -