JAGIR SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Challenge in this petition is to the order dated 14.10.2004 (P-8) claiming that the petitioner is entitled to be regularised in service with effect from 1.11.1986/30.9.1988 whereas the petitioner has been given regularisation with effect from 1.10.2003 on the post of Helper Motor Mechanic. It is admitted position that the petitioner was appointed as Helper Motor Mechanic on daily wages by the General Manager, Haryana Roadways, Rohtak respondent No. 3. From daily wager the petitioner became ad hoc with effect from 15.3.1984 and he worked as such up to 31.10.1985. His services were terminated on 31.10.1985, which resulted into seeking a reference under the Industrial Disputes Act, 1947.

(2.) Accordingly, the Labour Court had given an award dated 3.12.1986 in favour of the petitioner with continuity of service and full back wages (P-1). The petitioner was allowed to join with continuity of service and with full back wages. He is continuing to discharge his duty on the post of Helper Motor Mechanic. He filed C.W.P. No. 13701 of 2000 seeking regularisation of his services, which was dismissed as withdrawn on 7.9.2002 for challenging the inaction of the State Government in not issuing any instructions for regularisation of the ad hoc Class IV employees. On 8.7.2004, C.W.P. No. 9778 of 2004 for issuance of a direction to the respondents to frame a policy for regularisation of the services of the petitioner was disposed of with direction to the respondents to consider his claim for regularisation. On 14.10.2004 (P-8), the services of the petitioner has been regularised with effect from 1/10/2003 (P-9) on the post of Helper-cum-Mechanic, which is made subject matter of challenge.

(3.) After hearing learned counsel for the parties and in view judgment of a Constitution Bench of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & others v. Umadevi & others, (2006) 4 SCC 1, wherein it has been laid down that procedure for making appointment to a public office has to be followed, which is considered to be basic structure of the Constitution, the writ petition deserves to be dismissed. In other words, 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. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409, 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 noncompliance 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 also made a reference to another judgment of the Supreme Court in B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507.