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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 U D G M E N T

With

CIVIL APPEAL NOs. 3774, 3775, 3776, 4446,

6415, 6416, 7282, 9854, 9933, 10244-10245 of

2003, C.A. No.4495 of 2004

(@ S.L.P.(C) No. 1096 of 2004),

Civil Appeal No. 447 of 2004

S.B. SINHA, J:

Leave granted in S.L.P. (C) No. 1096 of 2004.

These appeals are directed against a judgment and order dated

24.10.2002 passed by a Division Bench of the High Court of the Judicature

at Madras whereby and whereunder several writ appeals filed by the

Appellants herein and writ petitions filed by the Private Respondents were

disposed of.

The basic fact of the matter is not in dispute.

Cooperative Societies and Land Development Banks constituted and

registered in the State of Tamil Nadu used to be governed under Tamil Nadu

Cooperative Societies Act, 1961 (for short "the 1961 Act") and the Tamil

Nadu Land Development Banks Act, 1934. The State framed rules under

the 1961 Act known as Madras Cooperative Societies Rules, 1963.

The 1961 Act and 1934 Act were repealed and replaced by Tamil

Nadu Cooperative Societies Act, 1983 (for short "the 1983 Act"). Pursuant

to or in furtherance of the powers conferred thereunder, the State framed

rules known as the Tamil Nadu Cooperative Societies Rules, 1988 (for short

"the 1988 Rules"). The 1983 Act and the 1988 Rules came into force with

effect from 13.4.1988.

It is not in dispute that a large number of employees, i.e., about 39%

of the total strength of the employees of the cooperative societies in the State

of Tamil Nadu, were appointed without notifying the vacancies to the

Employment Exchanges and without following the other mandatory

provisions of the Act and the Rules framed thereunder relating to

recruitment.

It is not in dispute that a large number of appointees furthermore did

not have the requisite educational qualification or other qualification like

cooperative training etc. The reservation policy of the State was also not

followed by the cooperative societies. The Recruitments were made beyond

the permissible cadre strength.

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With a view to condone the serious lapses on the part of the

Cooperative Societies in making such appointments in illegal and arbitrary

manner, the Government of the State of Tamil Nadu issued various orders

from time to time in terms whereof such appointments were sought to be

regularised fixing a cut off date therefor. Firstly, G.O.Ms No. 790 dated

5.7.1971 was issued ratifying the irregular appointments made otherwise

than through employment exchange upto 5.7.1971. Further, by G.O.Ms No.

1352 dated 7.11.1978, the cut off date was extended upto 31.12.1977. Yet

again, by G.O.Ms. No. 605 dated 3.6.1980, the cut off date was extended

upto 31.12.1979. By G.O.Ms. No. 312 dated 30.11.1987 the cut off date

was furthermore extended upto 8.7.1980. Ultimately, by G.O.Ms. No. 86

dated 12.3.2001 the cut off date was extended upto 11.3.2001 and thereby

the Government of Tamil Nadu sought to regularise appointments made

after 8.7.1980 in the Cooperative Societies without notifying the

Employment Exchange in respect of those employees who had completed

480 days of service in two years purported to be in terms of Tamil Nadu

Industrial Establishments (Conferment of Permanent Status to Workmen)

Act, 1981 (for short 'the 1981 Act').

Relying on or on the basis of the said G.O.Ms No. 86 dated 12.3.2001,

several writ petitions were filed in the High Court of Judicature at Madras

praying for issuance of appropriate directions regularising the services of the

employees working in the Cooperative Societies of the State of Tamil Nadu.

Some writ petitions were dismissed whereagainst writ appeals were filed. A

large number of writ petitions were also placed before the Division Bench

for hearing.

The legality and/ or validity of the aforementioned GOMs No. 86

dated 12.3.2001 fell for consideration before the Division Bench in the said

writ appeals and writ petitions.

Having regard to rival contentions the Division Bench of the High

Court framed the following issues for its consideration:

"(i) whether the writ petitions are maintainable?

(ii) whether the cooperative societies are covered

by the provisions of Tamil Nadu Industrial

Establishment (Conferment of Permanent Status to

Workmen) Act, 1981 as also the Industrial

Disputes Act, 1947?

(iii) Whether G.O.Ms. No. 86, dated 12.3.2001

aims at regularizing all the staff appointed to

cooperative societies regardless of any defect or

any violation of the Rule 149 of the Tamil Nadu

Cooperative Societies Rules, 1988, as amended in

1995?

(iv) in the alternative, are the illegal appointees

entitled for statutory protection of regularization

and permanent status by virtue of Section 3 of the

Permanency Act subject to their completion of 480

man days in a continuous period of 2 years? And

(v) whether personnel not covered by clause (iv)

are entitled for protection under the Industrial

Disputes Act, 1947?"

As regard Issue No. 1, it was held that the writ petitions are

maintainable. Issue No. 2 was also decided in favour of the writ petitioners

holding that the 1981 Act is applicable to the employees of the Cooperative

Societies.

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Issues No. 3, 4 and 5 were taken up for consideration together.

The Division Bench by reason of the impugned judgment opined that

the provisions of the 1981 Act would not be applicable as regard

appointments made in violation of the statute or statutory rules. It was

further held that in any event in terms of the 1981 Act and the G.O.Ms. No.

86 dated 12.3.2001 what had been exempted by the Government was the

condition relating to the statutory obligation on the part of the Cooperative

Societies to notify the Employment Exchange as regard the existing

vacancies and not other statutory conditions. The Division Bench held:

"(i) that GOMs No. 86, Cooperation, Food and

Consumer Protection Department, dated

12.3.2001, has got the effect of only authorizing

the regularization of the employees recruited by

the cooperative societies for the period from

9.7.1980 to 11.3.2001 exempting the intervention

of employment exchange;

(ii) that GOMs No. 86, Cooperation, Food and

Consumer Protection Department, dated

12.3.2001, shall not operate for regularization of

any employee recruited by the cooperative

societies in violation of Sub-Rule (1) of Rule 149

of the Tamil Nadu Cooperative Societies Rules, as

amended by GOMs No. 212, Cooperation, Food

and Consumer Protection Department, dated

4.7.1995;

(iii) in societies, where the cadre strength has not

been fixed, direct them to adopt the special bye-

law in conformity with sub-Rule (1) of Rule 149 of

the Tamil Nadu Cooperative Societies Rules, as

amended by GOMs No. 212, Cooperation, Food

and Consumer Protection Department, dated

4.7.1995;

(iv) direct the Registrar of Cooperative Societies

to issue a circular within a week from today calling

upon all the cooperative societies in the State of

Tamil Nadu to comply with the direction in clause

(iii) supra;

(v) direct that within two months of the

approval of the special bye laws under sub-rule (1)

of the Rule 149 of the Rules, the respective Deputy

Registrars of Cooperative Societies having

jurisdiction over the cooperative societies in their

Divisions, shall enquire by issuing notice to the

entire staff recruited from 9.7.1980 to 11.3.2001,

and decide as to whether the said recruitment is in

conformity with the special bye laws approved by

the Registrar of Cooperative Societies and

terminate the services of such staff members,

whose appointments are in contravention of the

special bye laws so approved by the Registrar of

Cooperative Societies;

It is made clear that while considering the

validity or otherwise of the appointment of the

staff cooperative societies, the requirement of

notifying the vacancies to employment exchange

shall not be taken cognizance of.

(vi) that no cooperative staff member appointed

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subsequent to G.O.Ms. No. 86, Cooperation, Food

and Consumer Protection Department, dated

12.3.2001 otherwise than through employment

exchange shall be continued in service and their

services shall be terminated forthwith.

(vii) that either the provisions of Tamil Nadu

Industrial Establishments (Conferment of

Permanent Status to Workmen) Act, 1981 or the

Industrial Disputes Act, 1947, or the settlements

entered under Sections 12 or 18 thereof, shall have

no application to the staff of the cooperative

societies appointed without adequate qualifications

or beyond the cadre strength for the period from

9.7.1980 to 11.3.2001. This is equally applicable

to the staff appointed to the cooperative societies,

otherwise than through employment exchange, for

the period from 12.3.2001 onwards."

Mr. S. Balakrishanan, learned senior counsel appearing on behalf of

the appellant relying on or on the basis of the decision of this Court in Jacob

M. Puthuparambil and Others Vs. Kerala Water Authority and Others

[(1991) 1 SCC 28] would submit that having regard to the fact that the

appellants had been working in the cooperative societies for a long time, the

High Court committed a serious error in not holding that they had acquired a

right for regularization.

In any event, Mr. Balakrishnan would contend that each employee

was individually entitled to be given an opportunity of being heard so as to

enable the competent authority to come to the conclusion as to whether they

had fulfilled the requirements contained in the aforementioned GOMs No.

86 dated 12.3.2001 or not. Reliance in this behalf has been placed on Olga

Tellis and Others Vs. Bombay Municipal Corporation and Others [(1985) 3

SCC 545].

The learned counsel appearing on behalf of the respondents, on the

other hand, supported the judgment of the High Court.

The primal question which arises for consideration in these appeals is

as to whether the State had the requisite authority to direct regularisation of

services of the employees of the cooperative societies by reason of the

impugned GOMs No. 86 dated 12.3.2001.

The 1983 Act was enacted inter alia to make better provision for, the

organization, management and supervision of cooperative societies in the

State of Tamil Nadu as also for providing for an orderly development of the

cooperative movement in accordance with cooperative principles.

Indisputably, in terms of the provisions of the 1983 Act, the cooperative

societies are required to be registered thereunder and are also liable to

comply with the provisions thereof as also the rules framed thereunder.

Before the High Court source of the power of the State to issue the said

G.O.Ms. No. 86 dated 12.3.2001 was traced to Sections 182 and 170 of the

1983 Act as also Article 162 of the Constitution of India.

Section 170 of the Act provides for power of the Government to

exempt registered societies from any of the provisions of the Act other than

clause (b) of sub-section (1) of section 88 and sub-section (1) of section 89

of this Act, or of the rules, subject to such conditions as may be specified

and direct that such provisions of the rules shall apply to such society with

such modifications as may be specified in the order. It is not the case of any

of the parties that any such order of exemption had been passed in favour of

any of the cooperative societies. Section 170 of the 1983 Act, therefore,

does not confer any power upon the State to issue the impugned order.

In any view of the matter such an order could not have been passed

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with retrospective effect condoning the actions on the part of the cooperative

societies which were in flagrant violations of the provisions of the Act and

the Rules made thereunder.

Section 182 of the 1983 Act reads as under:

"182. Power of Government to give directions.-(1)

The Government may, in the public interest, by

order, direct the Registrar to make an inquiry or to

take appropriate proceedings under this Act, in any

case specified in the order, and the Registrar shall

report to the Government the result of the inquiry

made or the proceedings taken by him within a

period of six months from the date of such order or

such further period as the Government may permit.

(2) In any case, in which a direction has been

given under sub-section (1), the Government may,

notwithstanding anything contained in this Act,

call for and examine the record of the proceedings

of the Registrar and pass such orders in the case as

they may think fit:

Provided that before passing any order under this

sub-section the person likely to be affected by such

order shall be given an opportunity of making his

representation."

A bare perusal of the aforementioned provision would clearly go to

show that the impugned Government Order could not have been issued by

the State in terms thereof as the same can be taken recourse to only for the

purposes mentioned therein and not for any other. It is not a case where the

Government directed the Registrar to make an enquiry against a person in

the public interest. Article 162 of the Constitution of India provides for

extension of executive power to the matters with respect of which the

Legislature of the State has power to make laws. Article 162 of the

Constitution by no stretch of imagination is attracted as the source of the

power of the State to pass an appropriate order must be traced to the

provisions of the Act itself. If the State had no power to issue the said

GOMs No. 86 dated 12.3.2001 the same must be held to be a nullity.

Let us now consider the extent to which the provisions of the 1981

Act would apply to the fact of the present case.

The 1981 Act applies only to industrial establishments. Industrial

Establishment has inter alia been defined to mean "an establishment as

defined in clause (6) of Section 2 of the Tamil Nadu Shops and

Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947)".

Establishment has been defined in Section 2(6) of the Tamil Nadu

Shops and Establishments Act, 1947 as under:

"'Establishment' means a shop, commercial

establishment, restaurant, eating house, residential

hotel, theater or any place of public amusement or

entertainment and includes such establishment as

the State Government may by notification declare

to be an establishment for the purpose of this Act."

Mr. Balakrishnan urged that the cooperative societies are Commercial

Establishments.

Whether a Cooperative Society would be a commercial establishment

or not would essentially be a question of fact. It cannot be said keeping in

view the legislative intent that all cooperative societies would be

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'commercial establishments' within the meaning of the Tamil Nadu Shops

and Establishments Act, 1947. It, therefore, appears that the impugned

Government Order has been issued by the State without proper application

of mind. It has furthermore not been stated in the impugned Government

Order that all the cooperative societies are commercial establishments within

the meaning of Section 2(6) of the Tamil Nadu Shops and Establishments

Act, 1947.

The Cooperative Societies and the Land Development Banks are

governed by the statutes under which they have been created as also the

Rules and bye laws framed thereunder. The cooperative societies are

obligated to follow the cooperative principles as laid down in the Act and the

Rules framed thereunder.

The State had framed rules in exercise of its power conferred upon it

under Section 180 of the 1983 Act in the year 1988. Rule 149 of the 1988

Rules provides for a complete code as regard the mode and manner in which

appointments were required to be made and the process of appointments is

required to be carried out. In terms of the said Rule, requirements to possess

educational qualification and other qualifications had been laid down. One

of the essential qualifications laid down for holding certain posts is

'undergoing cooperative training and previous experience'.

At this juncture, we may notice some of the provisions contained in

Rule 149 of the 1988 Rules.

Sub-rule (3) of Rule 149 read as under:

"(a) No appointment by direct recruitment to any

post shall be made except by calling for from the

societies applications from their employees who

possess the qualifications for the post and unless

the Government have accorded special sanction for

recruitment by advertisement in dailies, by also

calling for a list of eligible candidates from the

Employment Exchange.

(b) Where the Employment Exchange issues a

non-availability certificate or the Government have

accorded special sanction for recruitment by

advertisement in dailies, the society shall invite

applications from candidates including those

working in other societies by advertisements in

one English daily and two Tamil dailies having

circulation within the area of operations of the

society approved by the Government for the

purposes of issue of Government advertisements.

(c) Every appointment by direct recruitment shall

be made by holding written examination and

interview or by holding only interview as decided

by the board and on the basis of the rank given

with reference to the marks obtained in the written

examination, if any, and the marks awarded in the

interview:

Provided that nothing contained in this sub-rule

shall apply to any of the posts for the recruitment

of which a Recruitment Bureau has been

constituted under section 74 or in respect of which

common cadre of service has been constituted

under section 75;

Provided further that nothing contained in this sub-

rule shall apply to appointments of dependents of

the employees of any society who died or

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medically invalidated while in service."

Sub-rule (4) of Rule 149 mandates that no person shall be appointed

to the service of a society if he has on the date on which he joins the post,

attained the age of thirty years and in the case of persons belonging to

Scheduled Castes and Scheduled Tribes thirty-five years.

Sub-rule (25) of Rule 149 provides that the principle of reservation of

appointment for Scheduled Castes/ Scheduled Tribes and Backward Classes

followed by the Government of Tamil Nadu for recruitment to the State shall

apply.

No appointment, therefore, can be made in deviation of or departure

from the procedures laid down in the said statutory rules.

The terms and conditions of services are also laid down in the said

rules.

The 1983 Act was furthermore amended in the year 1995 providing

for cadre strength which is directly relatable to the income of the cooperative

societies.

Provisions of the Act and the Rules framed thereunder reflect the

legislative recruitment policy. The said provisions are, thus, mandatory in

nature.

Regularisation, in our considered opinion, is not and cannot be the

mode of recruitment by any "State" within the meaning of Article 12 of the

Constitution of India or any body or authority governed by a Statutory Act

or the Rules framed thereunder. It is also now well-settled that an

appointment made in violation of the mandatory provisions of the Statute

and in particular ignoring the minimum educational qualification and other

essential qualification would be wholly illegal. Such illegality cannot be

cured by taking recourse to regularisation. (See State of H.P. Vs. Suresh

Kumar Verma and Another, (1996) 7 SCC 562).

It is equally well-settled that those who come by backdoor should go

through that door. (See State of U.P. and Others Vs. U.P. State Law

Officers Association & Others, (1994) 2 SCC 204)

Regularisation furthermore cannot give permanence to an employee

whose services are ad-hoc in nature.

The question came up for consideration before this Court as far back

in 1967 in State of Mysore & Anr. Vs. S.V. Narayanappa [(1967) 1 SCR

128] wherein this Court observed

"Before we proceed to consider the construction

placed by the High Court on the provisions of the

said order we may mention that in the High Court

both the parties appear to have proceeded on an

assumption that regularisation meant permanence.

Consequently it was never contended before the

High Court that the effect of the application of the

said order would mean only regularising the

appointment and no more and that regularisation

would not mean that the appointment would have

to be considered to be permanent as an

appointment to be permanent would still require

confirmation. It seems that on account of this

assumption on the part of both the parties the High

Court equated regularisation with permanence."

This Court yet again in R.N. Nanjundappa Vs. T. Thimmaiah & Anr.

[(1972) 2 SCR 799], it was held:

"\005If the appointment itself is in infraction of the

rules or if it is in violation of the provisions of the

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Constitution illegality cannot be regularised.

Ratification or regularisation is possible of an act

which is within the power and province of the

authority but there has been some non-compliance

with procedure or manner which does not go to the

root of the appointment. Regularisation cannot be

said to be a mode of recruitment. To accede to

such a proposition would be to introduce a new

head of appointment in defiance of rules or it may

have the effect of setting at naught the rules."

The said decisions of this Court have received approval of a 3-Judge

Bench of this Court in B.N. Nagarajan and Others Vs. State of Karnataka

and Others [(1979) 4 SCC 507] it was held that the procedures for

appointment as contained in the Rules framed under Article 309 of the

Constitution of India must be complied with.

No regularisation is, thus, permissible in exercise of the statutory

power conferred under Article 162 of the Constitution if the appointments

have been made in contravention of the statutory Rules.

R.N. Nanjundappa (supra) has also been followed by this Court in

several decisions in Ramendra Singh and Others, etc. Vs. Jagdish Prasad and

Others [AIR 1984 SC 885], K. Narayanan and others Vs. State of Karnataka

and others [AIR 1994 SC 55] and V. Sreenivasa Reddy and others Vs. Govt.

of Andhra Pradesh and others [AIR 1995 SC 586].

The said decisions have been recently noticed by a Division Bench of

this Court in Sultan Sadik Vs. Sanjay Raj Subba and Others [(2004) 2 SCC

377].

In State of M.P. and Another Vs. Dharam Bir [(1998) 6 SCC 165], it

was observed that the government services are essentially a matter of status

rather a contract and in that context it was observed:

"26. Whether a person holds a particular post in a

substantive capacity or is only temporary or ad hoc

is a question which directly relates to his status. It

all depends upon the terms of appointment. It is

not open to any government employee to claim

automatic alteration of status unless that result is

specifically envisaged by some provision in the

statutory rules. Unless, therefore, there is a

provision in the statutory rules for alteration of

status in a particular situation, it is not open to any

government employee to claim a status different

than that which was conferred upon him at the

initial or any subsequent stage of service.

27. Applying these principles to the instant case,

since the respondent, admittedly, was appointed in

an ad hoc capacity, he would continue to hold the

post in question in that capacity\005"

It is trite that appointments cannot be made on political considerations

and in violation of the government directions for reduction of establishment

expenditure or a prohibition on the filling up of vacant posts or creating new

posts including regularization of daily-waged employees. (See Municipal

Corporation, Bilaspur and Another Vs. Veer Singh Rajput and Others

[(1998) 9 SCC 258])

Yet again, in Nazira Begum Lashkar and Others Vs. State of Assam

and Others [(2001) 1 SCC 143], it was noticed:

"14\005The decisions cited by Mr. Parikh, in support

of his contention, not only do not support his

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contention but on the other hand, appears to us to

be against his contention. In Ashwani Kumar case

((1997) 2 SCC 1 : 1997 SCC (L&S) 267) this

Court in no uncertain terms held that as the

appointments had been made illegally and contrary

to all recognised recruitment procedures and were

highly arbitrary, the same were not binding on the

State of Bihar. This Court further went on to hold

in the aforesaid case that the initial appointments

having been made contrary to the statutory rules,

the continuance of such appointees must be held to

be totally unauthorised and no right would accrue

to the incumbent on that score. The Court had also

held that it cannot be said that the principles of

natural justice were violated or full opportunity

was not given to the employees concerned to have

their say in the matter before their appointments

were recalled and terminated\005"

This Court has considered this aspect of the matter in various other

decisions, viz., Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P.

Vs. Bal Kishan Soni and Others [(1997) 5 SCC 86], Ashwani Kumar and

Others Vs. State of Bihar and Others [(1997) 2 SCC 1], Dr. Arundhati Ajit

Pargaonkar Vs. State of Maharashtra and Others [(1994) Suppl. 3 SCC 380],

J&K Public Service Commission and Others Vs. Dr. Narinder Mohan and

Others [(1994) 2 SCC 630], and Dr. Surinder Singh Jamwal and Another Vs.

State of J & K and Others [(1996) 9 SCC 619].

Even recently in Suraj Prakash Gupta and others Vs. State of J & K

and others [(2000) 7 SCC 371], this Court opined:

"28.The decisions of this Court have

recently been requiring strict conformity

with the Recruitment Rules for both direct

recruits and promotees. The view is that

there can be no relaxation of the basic or

fundamental rules of recruitment."

It was further observed:

"29. Similarly, in State of Orissa v. Sukanti

Mohapatra ((1993) 2 SCC 486 : 1993 SCC (L&S)

607 : (1993) 24 ATC 259) it was held that though

the power of relaxation stated in the rule was in

regard to "any of the provisions of the rules", this

did not permit relaxation of the rule of direct

recruitment without consulting the Commission

and the entire ad hoc service of a direct recruit

could not be treated as regular service. Similarly,

in M. A. Haque (Dr.) v. Union of India ((1993) 2

SCC 213 : 1993 SCC (L&S) 412 : (1993) 24 ATC

117) it was held that for direct recruitment, the

rules relating to recruitment through the Public

Service Commission could not be relaxed. In J&K

Public Service Commission v. Dr. Narinder Mohan

((1994) 2 SCC 630 : 1994 SCC (L&S) 723 :

(1994) 27 ATC 56) it was held that the provisions

of the J&K Medical Recruitment Rules could not

be relaxed for direct recruitment. The backdoor

direct recruitments, could not be permitted. (See

also Arundhati Ajit Pargaonkar (Dr.) v. State of

Maharashtra (1994 Supp (3) SCC 380 : 1995 SCC

(L&S) 31 : (1994) 28 ATC 415).) In Surinder

Singh Jamwal (Dr.) v. State of J&K ((1996) 9 SCC

619 : 1996 SCC (L&S) 1296) this Court directed

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the direct recruits to go before the Public Service

Commission."

In Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan [(2003) 3 SCC

485] this Court categorically held that there was no scope of regularization

unless the appointment was made on a regular basis.

In Delhi Development Horticulture Employees' Union Vs. Delhi

Administration, Delhi and others [(1992) 4 SCC 99] the Court emphasized

how judicial sympathy to the workmen could boomerang upon the purpose

wherefor Schemes like Jawahar Rozgar Yojna have been framed, and

thereby in the larger context, deny the limited benefit extended by the State

to the unemployed which would not be available but for such schemes. (See

also Executive Engineer (State of Karnataka) Vs. K. Somasetty and Others,

(1997) 5 SCC 434)

In M.D., U.P. Land Development Corporation and Another Vs. Amar

Singh and Others [(2003) 5 SCC 388], this Court noticed a large number of

earlier decisions of this Court wherein it had been held that once employees

are appointed for the purpose of Scheme, they do not acquire any vested

right to continue after the project is over.

In State of Haryana and Another Vs. Tilak Raj and Others [(2003) 6

SCC 123] a Division Bench of this Court held that a person appointed as

daily wager holds no post and thus, not entitled to claim the benefit of equal

pay for equal work. (See also Orissa University of Agriculture and

Technology and Another Vs. Manoj K. Mohanty, (2003) 5 SCC 188).

In State of Himachal Pradesh through the Secretary, Agriculture to the

Govt. of Himachal Pradesh Vs. Nodha Ram and Others [AIR 1997 SC

1445], this Court stated the law in the following terms:

"4. It is seen that when the project is completed

and closed due to non-availability of funds, the

employees have to go along with its closure. The

High Court was not right in giving the direction to

regularise them or to continue them in other

places. No vested right is created in temporary

employment. Directions cannot be given to

regularise their services in the absence of any

existing vacancies nor can directions be given to

the State to create posts in a non-existent

establishment. The Court would adopt pragmatic

approach in giving directions. The directions

would amount to creating of posts and continuing

them despite non availability of the work. We are

of the considered view that the directions issued by

the High Court are absolutely illegal warranting

our interference. The order of the High Court is

therefore, set side."

A Division Bench of this Court in Surendra Kumar Sharma Vs. Vikas

Adhikari and Another [(2003) 5 SCC 12] upon noticing the decision of this

Court in Delhi Development Horticulture Employees' Union (supra)

observed:

"\005A good deal of illegal employment market has

developed, resulting in a new source of corruption

and frustration of those who are waiting at the

Employment Exchanges for years. Not all those

who gain such back-door entry in the employment

are in need of the particular jobs. Though already

employed elsewhere, they join the jobs for better

and secured prospects. That is why most of the

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cases which come to the courts are of employment

in government departments, public undertakings or

agencies. Ultimately it is the people who bear the

heavy burden of the surplus labour. The other

equally injurious effect of indiscriminate

regularization has been that many of the agencies

have stopped undertaking casual or temporary

works though they are urgent and essential for fear

that if those who are employed on such works are

required to be continued for 240 or more days have

to be absorbed as regular employees although the

works are time-bound and there is no need of the

workmen beyond the completion of the works

undertaken. The public interests are thus

jeopardized on both counts."

Yet again in Haryana Tourism Corporation Ltd. Vs. Fakir Chand and

Others [(2003) 8 SCC 248], noticing that the respondents were not recruited

through the employment exchange or through any other accepted mode of

selection and further noticing that it was also not known whether there was

any advertisement calling for applications for these appointments, the prayer

for reinstatement of service was rejected.

Although we do not intend to express any opinion as to whether the

cooperative society is a "State" within the meaning of Article 12 of the

Constitution of India but it is beyond any cavil of doubt that the writ petition

will be maintainable when the action of the cooperative society is violative

of mandatory statutory provisions. In this case except the Nodal Centre

functions and supervision of the cooperative society, the State has no

administrative control over its day to day affairs. The State has not created

any post nor they could do so on their own. The State has not borne any part

of the financial burden. It was, therefore, impermissible for the State to

direct regularization of the services of the employees of the cooperative

societies. Such an order cannot be upheld also on the ground that the

employees allegedly served the cooperative societies for a long time.

In Jawaharlal Nehru Technological University Vs. T. Sumalatha

(Smt.) and Others [(2003) 10 SCC 405], a Division Bench of this Court

rejected a similar contention stating:

"8\005 The learned counsel therefore contends that

there is every justification for absorbing the

respondents concerned on regular basis in

recognition of their long satisfactory service. The

learned counsel further contends that the ad hoc

arrangement to employ them on consolidated pay

should not go on forever. The contention of the

learned counsel cannot be sustained for more than

one reason and we find no valid grounds to grant

the relief of regularization. There is nothing on

record to show that the employees concerned were

appointed after following due procedure for

selection. Apparently, they were picked and

chosen by the university authorities to cater to the

exigencies of work in the Nodal Centre."

In Jacob M. Puthuparambil (supra) whereupon Mr. Balakrishnan

placed strong reliance, a 3-Judge Bench of this Court noticed that by reason

of the statutory rules, regularization was sought to be made of such

employees who were appointed under posts required to be filled if (i) it is

necessary in public interest and (ii) where an emergency has arisen to fill

any particular post which has fallen vacant, immediately. Therein it was

further noticed that Clause (e) of Rule 9 provided for regularization of

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service of any person appointed under clause (i) of sub-rule (a) if he had

completed continuous service of two years on December 22, 1973,

notwithstanding anything contained in the rules.

Jacob M. Puthuparambil (supra) has been distinguished by this Court

in several decisions including 3-Judge Bench of this Court in Director,

Institute of Management Development, U.P. Vs. Pushpa Srivastava (Smt.)

[(1992) 4 SCC 33] and Ashwani Kumar (supra).

We do not intend to say any more on the subject as even

constitutionality of such a provision is pending for consideration before the

Constitution Bench of this Court. (See Secretary, State of Karnataka & Ors.

Vs. Umadevi and Ors. 2003 (10) SCALE 388).

We are also of the opinion that in a case of this nature, where the

validity or otherwise of a government order is in question, the principles of

natural justice will have no role to play and in any event recourse thereto

would result in futility.

In Civil Appeal No. 1413 of 2003 an additional ground has been

raised to the effect that as the appellant was appointed on a compassionate

ground, this Court on sympathetic consideration should issue appropriate

directions directing the respondents to regularize her services. It appears that

the appellant was appointed as supervisor in 3rd respondent Bank by the

President of the Bank on a consolidated pay of Rs. 2500/- by an order dated

5.03.2001. Her appointment is said to have been made on compassionate

ground on the plea that her husband had deserted her. It has not been shown

before us that there exists a scheme in terms whereof deserted woman can be

appointed on compassionate grounds. Even such appointment, in our

opinion, would be illegal.

In State of Manipur Vs. Md. Rajaodin [(2003) 7 SCC 511], this Court

observed that the purpose of providing appointment on compassionate

ground is to mitigate the hardship due to death of the breadwinner in the

family.

In a case of this nature this court should not even exercise its

jurisdiction under Article 142 of the Constitution of India on misplaced

sympathy.

In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others [(2004)

2 SCC 130], it is stated:

"We have no doubt in our mind that sympathy or

sentiment by itself cannot be a ground for passing

an order in relation whereto the appellants

miserably fail to establish a legal right. It is

further trite that despite an extra-ordinary

constitutional jurisdiction contained in Article 142

of the Constitution of India, this Court ordinarily

would not pass an order, which would be in

contravention of a statutory provision.

As early as in 1911, Farewell L.J. in Latham

vs. Richard Johnson & Nephew Ltd. [1911-13

AER reprint p.117] observed :

"We must be careful not to allow our

sympathy with the infant plaintiff to affect

our judgment. Sentiment is a dangerous Will

O' the Wisp to take as a guide in the search

for legal principles."

Yet again recently in Ramakrishna Kamat & Ors. Vs. State of

Karnataka & Ors. [JT 2003 (2) SC 88], this Court rejected a similar plea for

regularization of services stating :

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"\005We repeatedly asked the learned counsel for

the appellants on what basis or foundation in law

the appellants made their claim for regularization

and under what rules their recruitment was made

so as to govern their service conditions. They

were not in a position to answer except saying that

the appellants have been working for quite some

time in various schools started pursuant to

resolutions passed by zilla parishads in view of the

government orders and that their cases need to be

considered sympathetically. It is clear from the

order of the learned single judge and looking to the

very directions given a very sympathetic view was

taken. We do not find it either just or proper to

show any further sympathy in the given facts and

circumstances of the case. While being

sympathetic to the persons who come before the

court the courts cannot at the same time be

unsympathetic to the large number of eligible

persons waiting for a long time in a long queue

seeking employment\005."

For the reasons aforementioned, we do not find any merit in these

appeals which are dismissed accordingly. No costs.