2008 JTR(SC) 53
2008 65 AIC 218 ; 2008 AIR(SC) 1089 ; 2008 AIR(SCW) 704 ; 2008 2 ALD(SC) 102 ; 2008 2 ApexCJ(SC) 126 ; 2008 2 BBCJ(SC) 120 ; 2008 116 FLR 548 ; 2008 1 JCR(SC) 182 ; 2008 1 JT 457 ; 2008 Supp4 KLT 53 ; 2008 LIC 789 ; 2008 2 MLJ 688 ; 2008 2 RSJ 72 ; 2008 1 Scale 352 ; 2008 2 SCC 758 ; 2008 1 SCC(L&S) 554 ; 2008 1 SCR 629 ; 2008 1 SCT 621 ; 2008 2 SLR 59 ; 2008 2 WLN 19 ; 2008 KHC 4063 ; 2008 1 Supreme 361
2008(1) Supreme 361
Supreme Court of india
(From Andhra Pradesh High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
Commissioner, Municipal Corporation Hyderabad and others — Petitioners
versus
P. Mary Manoranjani and another — Respondents
Appeal (civil) 341 of 2008
(Arising out of SLP (C) No. 5885 of 2005)
Decided on : 11-01-2008
important point
Neither the State nor its instrumentality could grant any exemption in regard to compliance of the statutory requirements.
Act
Referred
:CONSTITUTION OF INDIA : Art.12, Art.14, Art.16
SERVICE LAW : .
(A) The State, within the meaning of Article 12 of the Constitution of India, is obligated to ensure public employment appointments conform to the constitutional scheme enshrined in Articles 14 and 16, which guarantee equality before law and equal opportunity in public service. These provisions, read with service law principles, prohibit the State from exempting its statutory obligation to conduct a fair selection process, and any relaxation such as that in G.O. Ms. No.27 M.A. (Q) dated 16th January, 1991, is confined strictly to waiving the requirement of sponsorship by an Employment Exchange and does not absolve the State from compliance with substantive constitutional requirements of merit and procedure. The interplay of these constitutional safeguards is decisive when a candidate seeks to regularize service after long-term absence without fulfilling core selection criteria.
(B) Core legal principles include: (i) Public appointments must adhere to the constitutional mandates of Articles 14 and 16; (ii) The State cannot contract out of or waive essential selection procedures; (iii) A government order providing relaxation from employment exchange rules is not a blanket appointment order and does not override statutory/constitutional compliance; (iv) Absence without leave and failure to appear for essential tests can justify termination; (v) Post-facto requests for regularization when a candidate has not fulfilled prerequisites are unsustainable.
Facts of the case:
The respondent joined as a Balwadi Teacher on honorarium, later sought regularization for a regular post. A Government order exempted her from Employment Exchange sponsorship but not from selection tests. She never appeared for the written test or typewriting exam, remained on unauthorized long absence, and provided questionable medical certificates only when facing termination. The High Court, without examining merit, directed her case be reconsidered under the G.O.
Findings of Court:
The High Court erred in directing mere consideration of the case under the G.O., as the order had no application to facts where the respondent failed selection procedures and was absent without leave. The underlying appointment was illegal for not complying with constitutional selection requirements.
Issues:
Whether a Government order relaxing Employment Exchange requirements can justify non-compliance with Articles 14 and 16 selection mandates; whether a candidate who skips written tests and remains absent without leave can seek reinstatement through post-hoc requests; whether the High Court was correct to overlook procedural defaults.
Ratio Decidendi:
An appointment by a State must fully comply with Articles 14 and 16, and G.O. waivers of sponsorship do not override mandatory selection tests and lawful service tenure. Non-appearance for essential tests and prolonged unauthorized absence render any appointment or reconsideration order unsustainable.
Result:
Appeal allowed; impugned judgment set aside; no costs ordered.
(A) The State, within the meaning of Article 12 of the Constitution of India, is obligated to ensure public employment appointments conform to the constitutional scheme enshrined in Articles 14 and 16, which guarantee equality before law and equal opportunity in public service. These provisions, read with service law principles, prohibit the State from exempting its statutory obligation to conduct a fair selection process, and any relaxation such as that in G.O. Ms. No.27 M.A. (Q) dated 16th January, 1991, is confined strictly to waiving the requirement of sponsorship by an Employment Exchange and does not absolve the State from compliance with substantive constitutional requirements of merit and procedure. The interplay of these constitutional safeguards is decisive when a candidate seeks to regularize service after long-term absence without fulfilling core selection criteria.
(B) Core legal principles include: (i) Public appointments must adhere to the constitutional mandates of Articles 14 and 16; (ii) The State cannot contract out of or waive essential selection procedures; (iii) A government order providing relaxation from employment exchange rules is not a blanket appointment order and does not override statutory/constitutional compliance; (iv) Absence without leave and failure to appear for essential tests can justify termination; (v) Post-facto requests for regularization when a candidate has not fulfilled prerequisites are unsustainable.
Facts of the case:
The respondent joined as a Balwadi Teacher on honorarium, later sought regularization for a regular post. A Government order exempted her from Employment Exchange sponsorship but not from selection tests. She never appeared for the written test or typewriting exam, remained on unauthorized long absence, and provided questionable medical certificates only when facing termination. The High Court, without examining merit, directed her case be reconsidered under the G.O.
Findings of Court:
The High Court erred in directing mere consideration of the case under the G.O., as the order had no application to facts where the respondent failed selection procedures and was absent without leave. The underlying appointment was illegal for not complying with constitutional selection requirements.
Issues:
Whether a Government order relaxing Employment Exchange requirements can justify non-compliance with Articles 14 and 16 selection mandates; whether a candidate who skips written tests and remains absent without leave can seek reinstatement through post-hoc requests; whether the High Court was correct to overlook procedural defaults.
Ratio Decidendi:
An appointment by a State must fully comply with Articles 14 and 16, and G.O. waivers of sponsorship do not override mandatory selection tests and lawful service tenure. Non-appearance for essential tests and prolonged unauthorized absence render any appointment or reconsideration order unsustainable.
Result:
Appeal allowed; impugned judgment set aside; no costs ordered.
Appointment - Relied upon for the proposition that any appointment made in violation of statute or constitutional provisions is illegal.
judgment
S.B. Sinha, J. —
1.Leave granted.
2.Respondent No.1 joined the services of Appellant-Corporation as Balwadi Teacher on an honorarium of Rs.100/- per month.
3.The Corporation requested the State of Andhra Pradesh to grant exemption in regard to requirements of sponsorship of the candidates by the Employment Exchange for appointment in the regular posts, pursuant whereto G.O. Ms. No.27 M.A. (Q) dated 16th January, 1991 was issued, stating :-
“The Commissioner, Municipal Corporation of Hyderabad in his letter 2nd read above has stated that the Municipal Corporation of Hyderabad has been implementing the Urban Community Development Programme since 1967 that under this programme a number of Balwadi and Sewing Centres were opened in the slum areas for the benefit of the slum Woman and Children and a grant of Rs.250/- p.m. was paid by the Municipal Corporation of Hyderabad to the Balwadi Teachers and that there is a long standing demand from these persons for absorption into posts with a regular scale of pay as most of them are working as Teachers from 10 to 15 years. Therefore, the Commissioner, Municipal Corporation of Hyderabad has requested the Government to exempt the voluntary workers from the Employment Exchange Procedure so that they may be considered for appointment in the existing and future vacancies of Municipal Corporation of Hyderabad as Lower Division Clerks, Lower Division Typists, Bill Collectors, Record Assistants or any other posts for which they are eligible.
2.The Government having carefully examined the proposal of the Commissioner, Municipal Corporation of Hyderabad hereby accord exempting 214 voluntary workers listed in the annexure to this order from Employment Exchange procedure so that they may be considered for appointment as LDCs, L.D. Typists, Bill Collectors, Record Assistants or any other posts for which they are eligible in the existing and future vacancies.
3.The Commissioner, Municipal Corporation of Hyderabad is requested to take necessary action accordingly.”
4.The said order clearly postulates that what was exempted was requirement of sponsorship of the candidates by the Employment Exchange and not the selection process itself.
5.Appellant is a State within the meaning of Article 12 of the Constitution of India. It was, therefore, obligated to undertake the selection process in terms of the constitutional scheme envisaged under Articles 14 and 16 of the Constitution of India.
6.Respondent, for the purpose of her selection in a regular post created by the appellant-Corporation, was thus, required to appear for a vive voce before a Selection Committee as also a written test. She appeared in the interview on 24th December, 1991. She, however, did not appear in the written test. From April, 1989 she absented herself from her duties. As she had unauthorisedly remained absent continuously for long time, a letter dated 2nd June, 1992 was received by the Corporation from Jai Prakash Nagar Welfare Association requesting the Corporation to terminate her services.
7.Having come to learn thereabout the respondent made a request before the appellant on 12th February, 1993 that she be provided with a job of typist stating:-
“I am to state here that I passed Higher Typewriting in English and S.S.C. passed I have attend the interview on 26.12.91, by (but) could not attend written test and Typewriting exam as I am late and there was a communication gap.
I request you sir kindly to appoint me a typist as I am fully qualified to hold the post. My colleagues have already been appointed. If I am provided with the job, I shall ever remain grateful.”
8.It, therefore, stands admitted that she had not appeared at the written test as also typewriting examination. She also having realized that she had been absenting from her duties continuously, purported to file some medical certificates for treating her to be on leave from 1st May, 1989 to 19th February, 1993. Appellant by its letter dated 10th March, 1993 asked her to produce copies of the representations made by her during the period of her absence as also the acknowledgement receipts thereto to examine her case. The period of absence having not satisfactorily been explained by the respondent, her services were terminated by an order dated 24th July, 1998 stating :-
“13.The request of Smt. Mary Manoranjani has been examined with reference to the records available and it is clearly established that she had absented from duty w.e.f. April, 1989 onwards for reasons best known to her. There is nothing on record to show that she has either submitted any leave application or any medical certificate during the period of her absence, until she again submitted application on 20.02.1993 requesting for permission to join today. The Balwadi/Sewing teachers have been appointed by the respective welfare associations located in slums and they were not appointed by MCH. Smt. Mary Manoranjani has already been communicated that her request for rejoining into duty is rejected vide this office letter 7th cited. Smt. Mary Manoranjani has not put forth any new grounds to reconsider her case.”
9.Aggrieved thereby she filed a writ petition before the High Court of Judicature at Andhra Pradesh in August, 1998. By a judgment and order dated 9th March, 2004 a learned Single Judge of the High Court, without entering into the merit of the matter, allowed the said petition stating :-
“Admittedly, the Government has issued G.O.Ms. No.27 on 16.1.1991 and as per the contents of the said G.O. voluntarily workers working in the Municipal Corporation of Hyderabad should be absorbed in regular vacancies by relaxing the rules relating to employment exchange etc., and from the papers produced by the learned counsel for the petitioner, it is clear that a list of casual workers was prepared and the petitioner is placed at serial No.100. When once the petitioner is in the list of candidates and the purpose of G.O.Ms. No.27 is to give relaxation of the existing rules and for absorption of those who are working as casual workers as on the date of the G.O., it cannot be said that the petitioners case cannot be considered simply on the ground that as on the date of interview she was not in actual service. Hence, I deem fit to direct the respondents to consider the case of the petitioner for appointment as Lower Division Typist or in any other equivalent post in terms of G.O.Ms. No.27 dated 16.1.1991.”
10.An intra court appeal preferred by the appellant thereagainst has been dismissed by a Division Bench of the said High Court by reason of the impugned judgment.
11.Mr. L.N. Rao, learned senior counsel appearing on behalf of the appellants, submitted that the impugned orders of the High Court are ex facie illegal as in a case of this nature the aforesaid G.O.Ms. cannot be said to have any application whatsoever.
12.Mr. Anil Kumar Tandale, learned counsel appearing on behalf of the respondent, on the other hand, submitted that keeping in view the tenor of the order passed by the learned Single Judge which has been affirmed by the Division Bench, as a mere direction for consideration of the case of the respondent in terms of the said G.O.M. has been made, no interference therewith by this Court is warranted.
13.Constitutional scheme in regard to public employment as enumerated in Articles 14 and 16 of the Constitution of India is explicit. Any appointment made by a State within the meaning of Article 12 of the Constitution of India must be subject to the constitutional scheme. In making appointments the State is obligated to comply with the same as also statutory requirements, if any. Neither the appellant nor the State could grant any exemption in regard to compliance of the statutory requirements.
14.The G.O.M. granted only exemption from sponsorship of the names by the Employment Exchange. Appellant did not and in fact could not ask for grant of any exemption from its obligation to comply with the requirements of Articles 14 and 16 of the Constitution of India or other Statutory Rules operating in the field in this behalf. It is now a well settled principle of law that any appointment made in violation of the statute or the constitutional provision would be illegal. (See Secretary State of Karnataka and others vs. Uma Devi (3) and others,1 (2006) 4 SCC 1.
15.G.O. Ms. No. 27 M.A. (Q) dated 16th January, 1991, therefore, is not at all applicable in a case of this nature, where a candidate not only did not appear at the written test for the purpose of recruitment to the regular post but also failed to attend to her duties for a number of years. Respondent was engaged for a particular purpose, namely to impart education to the poor children. She failed to carry out her contractual obligations.
16.Only when she came to learn of the fact that a complaint had been made against her, she requested either for her recruitment as a typist or grant her leave on medical ground, which ex-facie appears to be mala fide.
17.We, therefore, are of the opinion that she did not have any legal right to continue in the said post. The direction of the High Court to consider her case in the light of G.O.Ms. No. 27 M.A. (Q) dated 16th Januay, 1991 is eminently unsustainable as the said government order would have no application to the facts and circumstances of the case.
18.For the reasons abovementioned the impugned judgment cannot be sustained and is set aside accordingly. The appeal is allowed. However, there shall be no order as to costs.
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