MAHADEO BHAU KHILARE (MANE) AND ORS. versus STATE OF MAHARASHTRA AND ORS.

Citation: [2007] 6 S.C.R. 244 · Decided: 09-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
MAHADEO BHAU KHILARE (MANE) AND ORS. 
v. 
ST A TE OF MAHARASHTRA AND ORS. 
MAY 9, 2007 
B 
(S.B. SINHA AND C.K. THAKKER, JJ.] 
Service Law: 
Absorption-Unpaid assistants enagaged by Talathi in State of 
C Maharashtra-Claim for absorption on regular posts-Held: the candidates 
were enagagaed by employees themselves to help them and not by any 
authority having reuquisite jurisdiction therefor-Since they were not in 
service of State, their regularization would be wholly impermissible-Any 
action on the part of a servant of State on his own, having no authority in 
D that behalf, would be wholly illegal and without jurisdiction-Any scheme 
by way of any executive instruction in terms of Article 162 of the Constitution, 
if violative of statutory rules would not be legally sustainable----Constitution 
of India, 1950-Article 162. 
Appellant nos. 1 and 2 were enagaged by the Talhati in his office as 
E Assistant and unpaid candidate. The Revenue officials were directed by the 
State to stop such engagement. In the year 1995 some of the unpaid candidates 
approached the Maharashtra Administrative Tribunal and, ultimately, the State 
Government framed a scheme whereunder unpaid copiers who had completed 
more than 10 years as such on 30.11.1995 were proposed to be absorbed on 
F various posts according to their qualificatio11 and fulfilling other conditions. 
Since the appellants were not appointed under the said scheme, they 
approached the Tribunal, which ultimately declined to give any relief boding 
that work from them was taken by the Tehsildars on their own without having 
any authority in that behalf. Writ petitions of the said unpaid candidates 
having been dismissed by the High Court, they filed the present appeals. 
G 
Dismissing the appeals, the Court 
HELD: 1.1. Appellants were appointed by Talathis as their assistants. 
They only used to assist the Talathis in their day to day work. They were 
never appointed as assistants to Talathis. No such post of Assistant to Talathis 
H 
244 
MAHADEO BHAU KHILARE(MANE)v. STA TEOFMAHARASITTRA 
245 
had been cr~ated and/or sanctioned by any competent authority. No A 
recruitment rules therefor were framed. Therefore, their appointments were 
illegal The State had also imposed a ban on appointment of such persons. In 
any event, they were appointed by the employees themselves to help them and 
not by any authority having the requisite jurisdiction therefor. Appointments 
made without following the statutory rules by the State and that too without B 
any remuneration whatsoever was itself unconstitutional. 
(Para 10 and l 1 J (248-F, G] 
1.2. Furthermore, before a person can claim regularization, he must be 
in the service of the State. If the appellants were not in the service of the 
State, question of their being reularized would be wholly impermissible. C 
Appellants might have worked for a long time but the same by itself is not 
decisive inasmuch as they had not been occupying any post having not been 
appointed by the State. Any action on the part of a servant of a State on his 
own, having no authority in that behalf, would be wholly illegal and without 
jurisdiction. (Para 121 (249-A, BJ 
Secretary, State of Karnatako & Ors. v. V. Umadevi, 3 Ors., (2006) SCR 
953, (2006] 4 sec 1, followed. 
D 
Punjab Water Supply and Sewarage Board v. Ranjodh Singh & Ors., 
(2006) 13 SCALE 426 and Punjab State Warehousing Corporation 
Chandigarh v. Manmohan Singh & Anr., (2007) 3 SCALE 401 and A Umarani E 
v. Registrar, Cooperative Societies and Ors., (2007) 7 SCC 112, referred to. 
1.3. Indisputably, the State of Maharashtra has framed recruitment 
rules. Any scheme by way ofan executive instruction in terms ofarticle 162 
of the Constitution of India. if violative of such statutory rules would not be 
legally sustainable. (Para 7) (248-A, BJ 
F 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 191 of2007. 
From the Final Judgment and Order dated 16.02.2005 of the High Court 
of Judicature at Bombay in Writ Petition No. 3735 of 2001. 
R.S. Hedge, Chandra Prakash, Rahul Tyagi and P.P. Singh for the 
Appellant. 
Aparjita Singh, S.S. Shinde and V.N. Raghupathy for the Respondents. 
The Judgment of the Court was delivered by 
G 
H 
246 
SUPREME COURT REPORTS 
[2007) 6 S.C.R. 
A 
S.B. SINHA, J. I. Appellant No. 2 was initially appointed as a serving 
unpaid candidate in the Office of 'Talathi'. Such an appointment was made 
purported to be under the Orders of Talathi permitting him to 

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