STATE OF U.P. AND ORS. versus DESH RAJ

Citation: [2006] SUPP. 9 S.C.R. 352 · Decided: 23-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

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Judgment (excerpt)

A 
STATE OF U.P. AND ORS. 
v. 
DESHRAJ 
NOVEMBER 23, 2006 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.) 
Labour Laws: 
Appointment of workman on daily wages for specific work-Filing of 
C writ petition for direction to employer for regularization-Single Judge of 
High Court directing employer to create supernumerary post to consider his 
claim, till such creation the incumbent shall be paid wages equivalent to 
minimum of pay scale-Appeal was rejected by Division Bench of High Court 
as barred by limitation-On appeal, Held: Appointment made in violation of 
D constitutional scheme of equality would be rendered illegal and thus void 
ab initio-No regularization rules could be framed by State in derogation to 
the statut01y or constitutional scheme-And it must be made in terms of 
Proviso to Article 309 of the Constitution of India-Regularisation of the 
employee in terms of any policy decision by the State is impermissible in 
law-Order of the High Court suffer from legal error, hence, set aside-A sum 
E of Rs. 10,0001- shall be paid to the incumbent as compensation amount-
Constitution of India, 1950-Articles 14, 16 and 309-Right to equality. 
Words and Phrases: 
'Irregularity' and 'illegality'-Distinction between in the context of 
F appointment, Service Law. 
Respondent was appointed on daily wages for specific work on Muster 
Roll of the Public Works Department. A writ petition was filed by the 
respondent praying for his regularization. A Single Judge of the High Court 
directed the opposite parties to examine the petitioner's claim for 
G regularization, till a decision is taken he shall be paid wages equivalent to 
the minimum pay scale admissible to a Male workman working in the 
department with effect from 1st January, 2004. A special appeal filed 
thereagainst was dismissed by the Division Bench of the High Court. Hence 
the present appeal. 
H 
352 
STATEOFU.P. v. DESHRAJ 
353 
Allowing the appeal, the Court 
HELD:l.l. Single Judge of the High Court for all intent and purport 
had allowed the writ petition on the very first day which was not justified. It is 
now well-settled that a relief which can be granted only at the final hearing of 
A 
the matter, should not ordinarily be granted by way of an interim order. It is 
also doubtful as to whether the impugned directions could have been issued B 
even at the final hearing of the matter which would amount to creation of 
supernumerary post in purported compliance of the regularization rules. 
1355-C-D) 
1.2. It is now well-settled that the &;Jpointments, if made in violation of 
the constitutional scheme of equality as enshrined under Article 14 and 16 C 
of the Constitution of India, would be rendered illegal and, thus void ab initio. 
Furthermore, the State must have made rules in terms of the proviso appended 
to Article 309 of the Constitution of India, providing for the mode and manner 
in which recruitments are to be made. Such rules have statutory force. 
1355-E-F) D 
Secretary State of Karnataka & Ors. v. Umadevi & Ors., 120061 4 SCC 
I followed. 
2.1. An appointment which was made throwing all constitutional 
obligations and statutory rules to winds would render the same illegal whereas 
irregularity pre supposes substantial compliance of the rules. [356-F-G) . 
E 
State of Mysore v. S. V. Narayanappa, 11967] 1 SCR 128; R.N. 
Nanjundappa v. T. Thimmiah, [1972) 4 SCC 507 and National Fertilizers Ltd. 
& Ors. v. Somvir Singh, [2006) 5 SCC 493, referred to. 
2.2. It is not the case of the respondents that they were recruited in p 
terms of the provisions of the recruitment rules framed under the proviso 
appended to Article 309 of the Constitution oflndia. In that view of the matter, 
exfacie their appointments were illegal. [357-F-G] 
National Fertilizers Ltd. & Ors. v. Somvir Singh, 12006) 5 SCC 493, 
relied on. 
G 
2.3. In any event, the question of regularization of the employees by 
reason of any policy decision adopted by the State is impermissible in law. 
The judgment of the High Court suffer from a legal error. It is set aside 
accordingly. However, the respondents should be compensated, as the appeal 
preferred by the State was barred by limitation. The amount of compensation H 
354 
SUPREME COURT REPORTS [2006} SUPP. 9 S.C.R. 
A is quantified at Rs.10,000/-. It would be open to the State to recover the amount 
from the officers who may be found responsible for causing the delay in 
preferring the appeal. (358-A-B) 
CIVIL APPELLATE JURISDICTION:

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