- (1.) The prayer made in the instant petition, filed under Article 226 of the Constitution is that a direction be issued to the respondents to regularise the services of the petitioner to the post of Assistant Pump Operator/Water Pump Operator-II (a Group 'C' post) on which he claims to be working with effect from 1.12.1991. The respondent department has regularised the services of the petitioner to the post of Pump Attendant in the pay scale of Rs. 750-940, which is a Group 'D' post.
(2.) After hearing the learned counsel for the petitioner 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 petition is liable 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 paras 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. 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 been considered to be irregular. It is in these circumstances their Lordships' of the Supreme Court in Umadevi's case has observed in para 53 as under :- "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employeeshave continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
(3.) When the facts of the present case are viewed in the light of the judgment of the Constitution Bench in Umadevi's case it becomes evident that the initial appointment of the petitioner on the post of Water Pump Operator, a Group-C post was not in accordance with the procedure envisaged by the Rules. The minimum requirement of advertising the post in the Press, consideration of competing claims in accordance with a lawful criteria and then selection made on that basis have been completely given a go-by. Such an entry into service has been held to be against the basic structure of the Constitution as envisaged by Articles 14 and 16(1) of the Constitution. Therefore, it has to be viewed as an illegality which cannot be cured by the magic band of regularization. Therefore, we do not find any ground to issue a writ in the nature of mandamus directing the respondents to regularise the services of the petitioner on the post of Water Pump Operator. However, at the same time, we wish to clarify that we are not re-opening the issue of regularization of the services of the petitioner on a Group-D post of Pump Attendant because in Umadevi's case it has been laid down that the orders of regularization, if any, already made but not sub judice, is not required to be re-opened on the basis of the judgment in Umadevi's case . The aforementioned position is evident from para 53, which has been extracted above. In view of the above, the writ petition fails and the same is dismissed. Petition dismissed.;