The Hindu : National : ‘Regularisation can’t be a mode of employment’

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Wednesday, Sep 26, 2007
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‘Regularisation can’t be a mode of employment’

Legal Correspondent

NEW DELHI: The Supreme Court on Tuesday held that public appointments made without following the procedure and without inviting applications would amount to a breach of Articles 14 (equality before law) and 16 (equality of opportunity in public employment) of the Constitution.

Laying down broad guidelines to be followed in public appointments, a Bench consisting of Justices Tarun Chatterjee and P. Sathasivam said “regularisation cannot be a mode of employment.”

The Bench said: “An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.”

Writing the judgment, Mr. Justice Sathasivam said, “Those who come by the back door should go through that door. No regularisation is permissible in exercise of the statutory power conferred under Article 162 [executive power of the state] if the appointments have been made in contravention of the statutory rules.”

The court should not exercise its jurisdiction on misplaced sympathy. “If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have unlawfully benefited or have been wrongfully deprived of their selection, it will be neither possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection.”

The Bench said, “When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.”

Cooperative bank case

It was dealing with the issue whether the appointment of 58 clerk-cum-typists made by the Madhya Pradesh State Cooperative Bank in 1994 on an ad hoc basis was in accordance with the service rules. Though their services were regularised in October 1997, the bank terminated their services.

The Madhya Pradesh High Court, while confirming the termination, remanded the matter to the cooperative tribunal.

Unjustified termination

Disposing of the appeals, questioning the High Court directions, filed by both the bank and the employees, the Bench said the procedure had been complied with before making the selections to the vacant posts.

The candidates were initially appointed for six months on ad hoc basis and thereafter selected through a written examination and an interview. After they completed one year on probation, they were posted in the regular cadre.

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