1997 JTR(SC) 280
1997 2 AllCJ 919 ; 1997 3 AWC 1656 ; 1997 1 CLR 656 ; 1997 76 FLR 85 ; 1997 3 JT 219 ; 1997 1 LLJ 1204 ; 1998 1 LLN 320 ; 1997 2 RSJ 602 ; 1997 2 Scale 340 ; 1997 3 Scale 219 ; 1997 4 SCC 88 ; 1997 SCC(L&S) 902 ; 1997 2 SCR 102 ; 1997 2 SCT 598 ; 1997 2 SLR 234 ; 1997 KHC 3590 ; 1997 2 Supreme 756
1997(2) Supreme 756
SUPREME COURT OF INDIA
K. Ramaswamy and G.T. Nanavati, JJ.
State of U.P. & Ors. -Appellants
versus
Ajay Kumar -Respondent
Civil Appeal No. 1568 of 1997
(Arising out of SLP (C) No. 10229 of 1996)
Decided on 17-2-1997
Counsel for the Parties :
For the Appellants : Arvind Kr. Shukla and M.C. Dhingra, Advocates.
For the Respondent : Ms. N. Annapoorani, Advocate.
IMPORTANT POINT
There should exist a post and either administrative instructions or statutory rules in operation to appoint a person to the post.
Act
Referred
:ANDHRA PRADESH SERVICE CONDUCT RULES : R.12, R.11, R.10
ANDHRA PRADESH SERVICE DISCIPLINARY PROCEEDINGS TRIBUNAL RULES : R.4
HYDERABAD CIVIL SERVICES RULES : .
SERVICE LAW : .
(A) The appointment of the respondent as a Class IV Nursing Orderly on daily wage basis was scrutinized under the Andhra Pradesh Service Conduct RulesR.12, R.11, R.10, the Hyderabad Civil Services Rules, and the Service Law, which collectively mandate that any appointment must be underpinned by a corresponding post and governed by established statutory rules or administrative instructions. The Act referred to, namely the Andhra Pradesh Service Disciplinary Proceedings Tribunal RulesR.4, further frames the procedural compliance expected in service matters. The Division Benchs direction for regularisation without a valid post and in violation of prescribed recruitment norms is therefore inconsistent with these statutory requirements.
(B) Key legal principles include that daily wage appointments are permissible only for contingent establishments where no continuing post exists, and that regularisation cannot be ordered in the absence of a statutory rule or administrative instruction authorising the appointment. The method of recruitment must be proper, including calling for applications, and any appointment found to be without a sanctioned post is unsustainable.
Facts of the case:
The respondent joined as a daily wage Class IV Nursing Orderly on 14 February 1985. When a writ petition was filed for regularisation, the single Judge noted the absence of a statutory rule supporting such regularisation and observed that the recruitment method was improper as applications were not called. The Division Bench reversed this order and directed regularisation, a decision contested on appeal.
Findings of Court:
The Division Bench erred in directing regularisation to a post when no statutory rule or administrative instruction existed, and its order was illegal in light of the settled position that appointments must be based on a post and governed by existing rules.
Issues:
Whether the respondent was entitled to regularisation in the absence of a statutory rule and a valid post, and whether the method of recruitment adopted was legally sound.
Ratio Decidendi:
Appointments without a corresponding post and without the backing of statutory rules or administrative instructions are invalid, and appellate authority cannot regularise such appointments merely on the basis of service rendered.
Result:
The appeal is allowed, the single Judges order is upheld, and the Division Benchs direction is set aside with no costs awarded.
(A) The appointment of the respondent as a Class IV Nursing Orderly on daily wage basis was scrutinized under the Andhra Pradesh Service Conduct RulesR.12, R.11, R.10, the Hyderabad Civil Services Rules, and the Service Law, which collectively mandate that any appointment must be underpinned by a corresponding post and governed by established statutory rules or administrative instructions. The Act referred to, namely the Andhra Pradesh Service Disciplinary Proceedings Tribunal RulesR.4, further frames the procedural compliance expected in service matters. The Division Benchs direction for regularisation without a valid post and in violation of prescribed recruitment norms is therefore inconsistent with these statutory requirements.
(B) Key legal principles include that daily wage appointments are permissible only for contingent establishments where no continuing post exists, and that regularisation cannot be ordered in the absence of a statutory rule or administrative instruction authorising the appointment. The method of recruitment must be proper, including calling for applications, and any appointment found to be without a sanctioned post is unsustainable.
Facts of the case:
The respondent joined as a daily wage Class IV Nursing Orderly on 14 February 1985. When a writ petition was filed for regularisation, the single Judge noted the absence of a statutory rule supporting such regularisation and observed that the recruitment method was improper as applications were not called. The Division Bench reversed this order and directed regularisation, a decision contested on appeal.
Findings of Court:
The Division Bench erred in directing regularisation to a post when no statutory rule or administrative instruction existed, and its order was illegal in light of the settled position that appointments must be based on a post and governed by existing rules.
Issues:
Whether the respondent was entitled to regularisation in the absence of a statutory rule and a valid post, and whether the method of recruitment adopted was legally sound.
Ratio Decidendi:
Appointments without a corresponding post and without the backing of statutory rules or administrative instructions are invalid, and appellate authority cannot regularise such appointments merely on the basis of service rendered.
Result:
The appeal is allowed, the single Judges order is upheld, and the Division Benchs direction is set aside with no costs awarded.
ORDER
Leave granted. We have heard learned counsel on both sides.
2. This appeal by special leave arises from the Division Bench judgment of the Allahabad High Court, made on November 9, 1995 in Special Appeal No. 302/95.
3. The admitted position is that the respondent came to be appointed on daily wage basis on February 14, 1985 as Class IV employee, Nursing Orderly, in the Medical College by the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned single Judge pointed out that the respondent has not brought to the notice of the Court, any statutory rule under which the respondent could be regularised, on the basis of the service rendered by him as a daily wage earner. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as he did not call applications. The Division Bench reversed the decision of the learned single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post that it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal.
4. The appeal is accordingly allowed. The order of the learned single Judge stands upheld and that of the Division Bench stands set aside. No costs.
Appeal allowed.
*******