1997 JTR(SC) 66
1997 AIR(SC) 975 ; 1997 AIR(SCW) 919 ; 1997 75 FLR 723 ; 1997 2 JT 97 ; 1997 LIC 921 ; 1997 2 LLJ 78 ; 1998 1 LLN 560 ; 1997 2 PLJR(SC) 9 ; 1997 2 RSJ 109 ; 1997 1 Scale 528 ; 1997 2 SCC 713 ; 1997 SCC(L&S) 751 ; 1997 1 SCR 371 ; 1997 1 SCT 832 ; 1997 1 SLR 773 ; 1997 KHC 742 ; 1997 2 Supreme 10
1997(2) Supreme 10
SUPREME COURT OF INDIA
K. Ramaswamy & S. Saghir Ahmad, JJ.
Santosh Kumar Verma & Ors. -Appellants
versus
State of Bihar through Secretary, Department of Urban, Development, Govt. of Bihar, New Secretariat, Patna & Ors. -Respondents
Civil Appeal No. 445 of 1997
(Arising out of S.L.P. (C) No. 23616 of 1996)
Decided on 17-1-1997
Counsel for the Parties :
For the Appellants : Gopal Subramaniam, Sr. Advocate, Santosh Kumar and R.N. Keshwani, Advocates.
IMPORTANT POINT
When a post falls within the purview of Public Service Commissioner, any regularisation in violation of recruitment to be made by Public Service Commission would be in contravention of law.
Act
Referred
:BIHAR REGIONAL DEVELOPMENT AUTHORITY ACT : S.6(3)
CONSTITUTION OF INDIA : Art.226
SERVICE LAW : .
(A) Section 6(3) of the Bihar Regional Development Authority Act, 1981, read with the principles of Article 226 of the Constitution of India, governs the appointment and regularisation of officers and employees within the developmental authority framework. Section 6(3) confers power upon the Authority to appoint the Secretary and other officers and employees, and the proviso allows for temporary appointments for a period not exceeding six months to ensure continuity of work, subject to subsequent approval by the State Government and conformity with recruitment rules prescribed by or under the Act. In this case, the appointments made on daily wages and subsequently placed in a pay scale were scrutinised for adherence to the provisions of the Act and the overarching legal framework governing public service recruitment. The High Court, applying these statutory provisions alongside the role of the Public Service Commission under service law, determined that the appointments were inherently temporary and that any attempt at regularisation would be in violation of the law mandating recruitment through the Public Service Commission. Thus, the impugned order refusing mandamus was a lawful exercise of judicial authority under Article 226.
(B) The key legal principles include: (i) statutory bodies are bound by the procedure prescribed for recruitment and regularisation; (ii) temporary appointments under proviso cannot be used as a tool for permanentisation without following the due process of law; (iii) the Public Service Commission has exclusive jurisdiction over matters of recruitment and regularisation; and (iv) mandamus will not lie to compel an authority to act in contravention of law.
Facts of the case:
The appellants were appointed as Assistant Engineers on daily wages, later placed on a pay scale of Rs. 880-1510/- per month. They sought regularisation of their services, which was initiated by the 2nd respondent Authority and approved by the Government, but the Public Service Commission declined to concur. Consequently, a writ petition was filed in the High Court seeking mandamus for regularisation, which was denied.
Findings of Court:
The Court found that the appointments were temporary and that regularisation would violate the rules mandating recruitment through the Public Service Commission. The High Court rightly refused to issue a mandamus directing regularisation in defiance of the law.
Issues:
Whether the appellants were entitled to regularisation under Section 6(3) of the Bihar Regional Development Authority Act, 1981, despite the provisions of service law and the role of the Public Service Commission.
Ratio Decidendi:
The appointments were temporary in nature, and any attempt at regularisation without adhering to the mandatory recruitment procedure prescribed for the Public Service Commission is illegal; hence, no mandamus can be issued.
Result:
The appeal is dismissed with no costs awarded.
(A) Section 6(3) of the Bihar Regional Development Authority Act, 1981, read with the principles of Article 226 of the Constitution of India, governs the appointment and regularisation of officers and employees within the developmental authority framework. Section 6(3) confers power upon the Authority to appoint the Secretary and other officers and employees, and the proviso allows for temporary appointments for a period not exceeding six months to ensure continuity of work, subject to subsequent approval by the State Government and conformity with recruitment rules prescribed by or under the Act. In this case, the appointments made on daily wages and subsequently placed in a pay scale were scrutinised for adherence to the provisions of the Act and the overarching legal framework governing public service recruitment. The High Court, applying these statutory provisions alongside the role of the Public Service Commission under service law, determined that the appointments were inherently temporary and that any attempt at regularisation would be in violation of the law mandating recruitment through the Public Service Commission. Thus, the impugned order refusing mandamus was a lawful exercise of judicial authority under Article 226.
(B) The key legal principles include: (i) statutory bodies are bound by the procedure prescribed for recruitment and regularisation; (ii) temporary appointments under proviso cannot be used as a tool for permanentisation without following the due process of law; (iii) the Public Service Commission has exclusive jurisdiction over matters of recruitment and regularisation; and (iv) mandamus will not lie to compel an authority to act in contravention of law.
Facts of the case:
The appellants were appointed as Assistant Engineers on daily wages, later placed on a pay scale of Rs. 880-1510/- per month. They sought regularisation of their services, which was initiated by the 2nd respondent Authority and approved by the Government, but the Public Service Commission declined to concur. Consequently, a writ petition was filed in the High Court seeking mandamus for regularisation, which was denied.
Findings of Court:
The Court found that the appointments were temporary and that regularisation would violate the rules mandating recruitment through the Public Service Commission. The High Court rightly refused to issue a mandamus directing regularisation in defiance of the law.
Issues:
Whether the appellants were entitled to regularisation under Section 6(3) of the Bihar Regional Development Authority Act, 1981, despite the provisions of service law and the role of the Public Service Commission.
Ratio Decidendi:
The appointments were temporary in nature, and any attempt at regularisation without adhering to the mandatory recruitment procedure prescribed for the Public Service Commission is illegal; hence, no mandamus can be issued.
Result:
The appeal is dismissed with no costs awarded.
ORDER
Leave granted.
2. This appeal by special leave arises from the order of the Division Bench of the Patna High Court, made on 11.9.1996 in LPA No. 788/95.
3. The admitted position is that the appellants came to be appointed as Assistant Engineers on daily wages @ Rs.40/- per day on November 16, 1987. Subsequently, they were placed in the pay scale of Rs. 880-1510/- per month. They came to be selected by conducting examinations and the appointments, accordingly, came to be made. An attempt was made by 2nd respondent, Regional Development Authority to regularise the services and the proposal was sent to the Government for acceptance. The Government accepting the proposal had referred the matter to the Public Service Commission. Since the Public Service Commission did not agree to the regularisation of their services, the appellants filed writ petition in the High Court for a mandamus directing the authority to regularise their services. The High Court in the impugned order refused to give directions. Thus, this appeal by special leave.
4. Mr. Gopal Subramaniam, learned senior counsel appearing for the appellants, contends that Section 6(3) of the Bihar Regional Development Authority Act, 1981 (for short, the Act ) gives power to the Authority to appoint the Secretary and other officers and employees of the Authority. Under proviso thereto, the appointing Authority has the power to appoint any person for a period not exceeding six months on any post carrying the minimum salary of Rs. 500/- and above after approval of the State Government and the appointment though for six months will be on regular basis. The authority has not made any statutory rules for the mode of recruitment. The advertisement did not indicate that these were temporary appointments. Therefore, the appellants are entitled to be regularised in the service. We find no force in the contention.
5. Section 6(3) of the Act only empowers the Authority to appoint the Secretary, and other officers and employees of the Authority. The power under the proviso is only a breathing elbow power given to the Authority to make temporary appointments so that work of the Development Authority goes on pending recruitment. Therefore, when the advertisement was made for the recruitment, it was obviously in furtherance of the power flown under the proviso for a limited period. Thereby, the appointments obviously are only temporary appointments. The appellants realising the limited temporary tenure of the appointments had sought assistance of the Government for regularisation which was negatived by the Public Service Commission. It is seen that these posts are within the purview of the Public Service Commission. Therefore, the Government sought the concurrence of the Public Service Commission and the Public Service Commission had not concurred and, in our view, correctly with the request made by the Government. Therefore, any regularisation in violation of the recruitment to be made by the Public Service Commission is in contravention of the law. The High Court, therefore, rightly did not issue any mandamus for regularisation of the services made in contravention of the Rules to violate and no mandamus or direction would be issued to violate law.
6. The appeal is accordingly dismissed. No costs.
Appeal dismissed.
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