- (1.) SUDHIR Agarwal, J. Heard Sri R. S. Misra, learned counsel for the petitioners and Sri Sanjay Kumar Upadhyay, holding brief on behalf of Sri B. D. Pandey, learned counsel for the respondents.
(2.) PLACING reliance on para 53 of the Apex Court's decision in Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCC 1 and Government Orders dated 26. 5. 2006,17/19. 8. 2006 and 29. 2. 2008 learned counsel for the petitioners contended that the petitioners are entitled to be considered for regularisation and it is not open to the respondents either to dispense with the services of the petitioners and/or not to consider the petitioners for regularisation and/or filling the vacancies by fresh appointment. However, in my view, none of the above submissions have any force. Regularization has never been held to be a valid mode of recruitment ordi narily. In the past, sometimes on account of large scale engagements continuing for long period, it has been taken a relevant consideration by the authorities for enacting statutory provisions for regularization of the persons engaged without following statutory procedure for recruitment. Besides, sometimes the Courts have also issued directions to the authorities to regularize such appointees de pending upon the facts and circumstances of the individual cases. However, time and again on judicial review, the Courts have largely deprecated practice of en gagement of some persons without following the recruitment procedure and, there after, continue them for considerable length of time and then confer permanence upon them by way of regularization since it has generated a different kind of litigation and a regular channel of such appointees. Fortunately, the diversion expressed in various judicial pronouncements drew attention of the Apex Court and the issue came to be considered before a Constitution Bench in Uma Devi (supra ). The Court reviewed the entire law on this aspect and after discussing the issue at great length, overruling all the earlier judgments taking a different view, has held that a sovereign government or its instrumentality, considering eco nomic situation in the Country and the work got to be done is not precluded from making temporary appointments or engaging workers on daily wages, but when ever a regular vacancy occur, it has to be filled in as per Constitutional scheme by giving equal opportunity of employment to all concerned persons. The Court has rejected the approach of taking a lenient view and termed it as a misplaced equity against teeming millions of the country seeking employment and a fair opportu nity for competing for employment. The Court categorically held that adherence to Articles 14 and 16 of the Constitution is a must in the process of public em ployment and also stressed that adherence to the rule of equality in public em ployment is a basic feature of our Constitution. It held : "43. Thus it is clear that adherence to the rule of equality in public em ployment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. . . . . . . . . . . . " It further held that the High Courts, acting under Article 226 of the Consti tution should not ordinarily issue directions for absorption/regularization or per manence unless the recruitment itself was made in a regular manner consistent with Jie Constitutional scheme. The Apex Court in Uma Devi (supra) very cat egorically held: "the High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent con tinuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme. "
(3.) THE Apex Court also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves an instrument to facilitate the bypassing of the constitutional and statutory mandates. Following Uma Dew (supra), in Surinder Prasad Tiwari v. U. P. Rajya Krishi Utpadan Mandi Parishad and others, 2006 (7) SCC 684, in paragraphs 35,37 and 38, it was held : "35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment. 37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and con stitutional philosophy to implement the principle of equality in the true sense in the matter of public employment. 38. In view of the clear and unambiguous constitutional scheme, the Courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy. It would be improper for the courts to give directions for regular ization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14,16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment. ";