JUDGMENT Markandeya Katju, C.J.
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1. This writ appeal has been filed against the judgment and order of the Learned Single Judge dated 07.08.2002 by which he has dismissed the writ petition.
2. We have heard learned counsel for the parties and perused the record.
3. The appellant is a Hospital under the control of the Govt. of NCT of Delhi. It is alleged in para 2 of the petition that all appointments of Ministerial staff and Contingency staff are required to be made in the hospital in accordance with the Recruitment Rules. For all regular appointments the names are called from the employment exchange and all those who fulfilll the requisite qualification are considered by the duly constituted Departmental Selection Committee and on selection individuals are appointed. There are a number of regular sanctioned posts of Safai Karamchari in the hospital which are required to be filled up in accordance with the Recruitment Rules, copy of which is Annexure-A.
4. Since the hospital is required to maintain proper cleanliness in the hospital regularly, if any regular Safai Karamchari is absent or goes on leave, daily wage workers are engaged in the exigencies of service.
5. For recruitment a request is made to the employment exchange to send the names of Muster Roll labour. The Muster Roll Labour Office employment exchange then sends the names of the individuals who are readily available and they are engaged as per the immediate need. For such appointment, no selection is made, nor the appointment done in accordance with the Recruitment Rules. No verification of character and antecedents is made, and even overage individuals are engaged.
6. On 21.12.1987, due to an emergent need of the hospital the respondent No. 1 was appointed as Safai Karamchari on daily wages against a leave vacancy due to the exigencies. Thereafter, since regularly selected Safai Karamcharies were made available, the respondent No. 1s service was discontinued. However, the respondent No. 1 challenged the termination order before the Labour Court and the Labour Court vide its Award dated 21.07.1994 held the termination illegal and, therefore, directed reinstatement in service with full back wages and continuity in service with payment of regular pay scale with D.A. and additional D.A.
7. The said impugned Award was challenged in CWP.3297/94 before this Court which was partly allowed. So far as the Award with respect to reinstatement was concerned, the same was upheld. However, the direction of the Labour Court to pay regular pay scale along with D.A. and additional D.A. to the respondent No. 1 was set aside vide judgment dated 01.08.1995. The question whether the workman is entitled to regular pay scale or not was left open.
8. Thereafter, the respondent/workman was reinstated in service. She raised the claim of full pay and allowances and regularization in service from the date of her appointment as Safai Karamchari on daily wages. Thereafter, the Govt. of NCT of Delhi referred the dispute to the Industrial Tribunal, under Section 10(1) of the Industrial Disputes Act.
9. The appellant filed a written statement alleging that the respondent No. 1 was appointed on daily wage basis against leave vacancy. It was pointed out that regular appointments to the post of Safai Karamchari are made after calling names from the employment exchange. The selection is made in accordance with the Recruitment Rules. Respondent No. 1 was appointed only on daily wages dehors the Rules. Respondents name was never recommended by the employment exchange. Hence, there was no question of regularizing her. Her name was sent by the employment exchange only from the Muster Roll list for daily wage appointment. She was even over-age at the time of her initial appointment.
10. However, the Industrial Tribunal vide award dated 01.12.2001 directed regularization of respondent No. 1 w.e.f. 28.12.1995.
11. Aggrieved, the appellant filed a Writ Petition in this Court which was dismissed by the Learned Single Judge vide order dated 07.08.2002.
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12. The Learned Single Judge has observed that the Tribunal has recorded a finding of fact that the work done by the workman was similar to the nature of work and duties performed by the employees who were appointed on a regular vacancy. The Tribunal also found that persons junior to the workman were appointed against regular vacancies. Hence, he dismissed the writ petition.
13. In our opinion, this appeal deserves to be allowed. As noted above, all appointments of Ministerial staff and Contingency staff are required to be made in the hospital in accordance with the Recruitment Rules. For all regular appointments, the names are called from the employment exchange and only those who fulfilll the requisite qualifications are considered by the duly constituted Departmental Selection Committee and on selection individuals are appointed.
There are a number of regular sanctioned posts of Safai Karamchari in the hospital which are required to be filled up in accordance with the Recruitment Rules. Since the respondent No. 1 was never selected by the Departmental Selection Committee, we fail to see how she can be regularized. She was even over-age at the time of her initial appointment. She was only appointed on leave vacancy as a daily wager. In our opinion she cannot be regularized, otherwise there will be violation of the Rules. The respondent No. 1 was appointed dehors the Rules, whereas those regularly appointed after her appointment were appointed in accordance with the rules.
14. It is well settled that regularization cannot be a mode of appointment vide Manager, RBI Bangalore v. S. Mani and Ors. .
15. In the aforesaid decision the Supreme Court referred to its own earlier decision in A. Umarani v. Registrar, Cooperative Societies and Ors., AIR 2004 SC 4504 wherein it was observed:
Regularization, in our considered opinion, is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed there under. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization, (See State of H.P. v. Suresh Kumar Verma and Anr. (1966) 7 SCC 562.
The Supreme Court in R.N. Nanjundappa T. Thimmiah, held:
If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution the illegality cannot be regularized. Page 0073Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non- compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a anew head of appointment in defiance of the rules or it may have the effect of setting at naught the rules.
16. The decision in the case of R.N. Nanjundappa (supra) has been followed by the Supreme Court in several decisions viz. Ramendra Singh v. Jagdish Prasad, 1984 Supp SCC 142; K. Narayanan v. State of Karnataka, , and V. Sreenivasa Reddy v. Government of A.P. 1995 Supp (1) SCC 572. These decisions have also been noticed by the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, and A. Umarani v. Registrar, Co-operative Societies and Ors., .
17. In view of above, this Writ Appeal is allowed and the Award of the Tribunal dated 01.12.2001 is hereby quashed.