(2012) 233 KLR 408

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933 

WPC.No. 18036 of 2011 (D) 

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PETITIONER(S): 

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JEEMON.V.R, SAI BHAVAN, CHELLAMANGALAM, SREEKARYAM P.O. THIRUVANANTHAPURAM. 

BY ADVS.SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN 

RESPONDENT(S): 

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT LABOUR AND REHABILITATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 

2. THE KERALA BUILDING AND OTHER CONSTRUCTION WORKERS' WELFARE BOARD, NIRMAN BHAVAN THYCAUD P.O., THIRUVANANTHAPURAM-14, REPRESENTED BY ITS SECRETARY. 

3. THE SECRETARY, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS' WELFARE BOARD, NIRMAN BHAVAN, THYCAUD P.O. THIRUVANANTHAPURAM-14. 

R2 & R3 BY SRI.ASHIK K.MOHAMED ALI,SC,KB & OCWWB R1 BY GOVERNMENT PLEADER SRI.C.S.MANILAL 

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2011, ALONG WITH WPC. 22810/2011 AND OTHER CASES, THE COURT ON 11.01.2012 DELIVERED THE FOLLOWING: MG WPC.No. 18036 of 2011 (D) 

APPENDIX PETITIONER'S EXHIBITS:- 

EXT.P1:- TRUE COPY OF THE COMMUNICATION DATED 21.02.2011 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. 

EXT.P2:- TRUE COPY OF THE ORDER, G.O.DATED 01.03.2011 ISSUED BY THE IST RESPONDENT. 

RESPONDENT'S EXHIBITS:- 

NIL 

//TRUE COPY// PA TO JUDGE MG "C.R" 

C.T. RAVIKUMAR, J. 

= = = = = = = = = = = = = = 

WP(C).Nos.18036, 20687, 22014 & 22810 of 2011. 

= = = = = = = = = = = = = = 

Dated this the 11th January, 2012

Head Note:-

Temporary Appointment - Daily Wages - Though regular appointment as per constitutional scheme for public employment must be the rule, there is nothing in the constitutional scheme which prohibits the Union or the State Government or their instrumentalities from engaging persons temporarily or on daily wage basis, in spite of the constitutional scheme for governmental or public employment without following the required procedures, solely to meet the needs of the situation. 

J U D G M E N T 

The fate of these writ petitions depends upon the impact of the decision of the Hon'ble Apex Court in Secretary, State of Karnataka & others v. Umadevi (3) & others reported in [(2006) 4 SCC 1], commonly referred to as Umadevi (3) case, on their factual matrices and contextual situations. Depending upon its answer, the question whether the orders cancelling regularisation of the petitioners in service call for interference in the light of Umadevi (3) case, on account of violation of the principles of natural justice also crops up for consideration in W.P.(C) Nos.20687 and 22014 of 2011. In WP(C). Nos.18036 and 22810 of 2011 the question whether the petitioners are legally entitled to claim for re- engagement and regularisation in service in the light of Umadevi (3) decision also would arise. Narration of facts, shorn of details, is required for deciding the aforesaid questions. WP(C).No.20687/2011. 

2. The Institute of Parliamentary Affairs (for short 'Institute') was established by the Government as per GO(Ms.)No.3/203 dated 29.8.2003. In fact, it was registered as a Society under the Travancore- Cochin Literary Scientific and Charitable Societies Registration Act, 1955 and its entire affairs are controlled by the Department of Parliamentary Affairs of the Government of Kerala. The administrative head of the Institute is its Director General. The first petitioner was appointed as Security Guard in the Institute on contract basis on 25.8.2008 as per Ext.R2 (a) and the second petitioner was appointed as Part- time Sweeper based on Ext.R2(c) request made by her on a white paper. She was appointed on contract basis as Part-time Sweeper as per Ext.R2(e). Pursuant to their appointments they executed agreements with the Institute, viz., Exts.R2(b) and R2 (d), respectively. Ext.R2(e) was produced by the respondents to refute the contention of the second petitioner, raised in the writ petition, that she was appointed through Employment Exchange. Subsequently, a reply-affidavit was filed stating that such a statement regarding appointment through Employment Exchange happened to be made due to oversight and inadvertence and an unconditional apology was also made for having made such a statement. I do not propose to go into that issue any further for any other purpose in the said circumstances. The period of their appointments were extended from time to time with the same conditions as originally fixed. While so, Ext.P1 bearing No.GO(Ms)No.09/2010/PAD dated  03.08.2010 was issued creating the posts of DTP Operator/Typist, Security Guard and Part-time Sweeper in the Institute and prescribing the method of appointment to the said posts as hereunder:-

3. Subsequently, as per Ext.P2 Government Order viz., GO(Ms.)No.1/11/PAD dated 9.5.2011 the services of the petitioners were regularised respectively as Security Guards and Part-Time Sweeper in the Institute. Soon thereafter, as per Ext.P3 viz., GO(Ms)No.5/11/PAD dated 23.7.2011, Ext.P2 Order of regularization was cancelled pursuant to a decision of the Government to review the appointments and controversial decisions made by the Government after 1.1.2011. Based on Ext.P3, the second respondent issued Ext.P4 order dated 26.7.2011 cancelling the appointment of the petitioners. It is challenging Exts.P3 and P4 and also seeking for a declaration that they are entitled to continue in service under the Institute that this writ petition has been filed. 

4. Considering the contention that Exts.P3 and P4 cancelling their regularization effected as per Ext.P2 without putting them on notice and without affording an opportunity of being heard, this Court passed an interim order on 28.7.2011 requiring the respondents to permit the petitioners to continue in their respective posts. The said order was extended from time to time and on the strength of the said order they are still continuing in service. Relying on the decision of the Hon'ble Apex Court reported in State of Hariyana v. State of Punjab & another [2002(2) SCC 507] that a decision taken by one Government cannot be nullified by the successor Government unless it involves any political philosophy it is contended that the proposal to cancel Ext.P2 order is illegal, discriminatory and violative of Articles 14 and 21 of the Constitution of India. Further, it is contended that Exts.P3 and P4 orders were issued violating the principles of natural justice and therefore, they are void and non-est in the eye of law. 

WP(C).No.22014/2011. 

5. The petitioner was appointed as DTP Operator on contract basis under the Information and Public Relation Department for a period of one year with effect from 14.6.2007 as per order No.21050/A1/06/I&PR dated 31.7.2007 of the Director, Information and Public Relation Department, the second respondent. Prior to expiry of the period of appointment she requested for renewing the contract appointment and accordingly it was renewed for a further period from 29.7.2008 as per order dated 13.8.2008 of the second respondent. The period was again extended on her application for a period of one year from 14.10.2009 as per Ext.P1 order dated 6.11.2009. While continuing on contract basis the petitioner submitted Ext.P2 application dated 7.7.2010 before the Chief Minister requesting to regularize her service as DTP Operator. After considering Ext.P2, Government issued Ext.P3 Order dated 12.11.2010 regularising the service of the petitioner as DTP Operator in the scale of pay of Rs.5250-8390 against the vacant post of DTP Operator treating it as a special case, considering her continuous service of about four years as DTP Operator and that she was over aged. Based on Ext.P3 order she joined duty on 12.11.2010. While continuing as such, in service Ext.P4 order dated 10.8.2011 cancelling her very appointment was issued. It would further reveal that the said order was passed based on a complaint submitted by the third respondent. The contention of the petitioner is that on the complaint filed by the third respondent no enquiry was conducted and no notice was issued to her before terminating her services as per Ext.P4. In short, according to the petitioner, it was issued in flagrant violation of the principles of natural justice and based on extraneous and irrelevant considerations. It was further contended by the petitioner that she was arbitrarily picked and chosen for termination and, at the same time, three other similarly placed persons whose services were regularized as per Exts.P5 and P6 are still continuing in service. In the said circumstances, this writ petition has been filed challenging Ext.P4 and seeking for issuance of a writ of mandamus commanding respondents 1 and 2 to permit the petitioner to continue in service as if Ext.P4 were never issued. 

WP(C)Nos.18036 & 22810/2011. 

6. In WP(C)No.18036/2011 the petitioner was working as Lower Division Clerk on daily wage basis under the Kerala Building and Other Construction Workers Welfare Board (for short 'the Board') from 21.2.2007. The petitioners in WP(C)No.22810/2011 were working on daily wage basis under the Board in different capacities such as Lower Division Clerks, Peon, Data Entry Operator and Driver. There is absolute absence of details regarding the dates and modes of their initial engagements in the said writ petition. True that it is vaguely stated that they had been in service for the past more than three years. Admittedly, all of them were put into sack and in their place a fresh set of temporary employees have been inducted. The contention of the petitioners is that while they were in service the Board took a decision to regularize the services of daily waged employees like them and that decision of the Board was communicated to the Government with a request to issue appropriate orders for regularizing their services. It is further contended that subsequent to the said request the Government have issued Ext.P2 Government Order dated 1.3.2011. In fact, in the case of the petitioner in WP(C).No.18036/2011 he along with certain others had earlier approached this Court by filing WP(C).No.14076/2011 contending that they were entitled to get regularised in service based on Ext.P2 dated 1.3.2011 and challenging the proposal to terminate the service. The said writ petition was subsequently withdrawn. It was while awaiting regularisation based on Ext.P2 that they were disengaged from the services of the Board and a fresh set of temporary hands were inducted. The further contention of the petitioner is that for engaging fresh set of temporary employees by disengaging the petitioner and the others similarly situated no known method of appointment was resorted to. In the aforesaid circumstances the petitioner in WP(C).No.18036/2011 seeks to terminate the services of such temporary hand who displaced him and to re-induct and regularize him in service. In WP(C).No.22810/2011 the petitioners contend that they are aggrieved by the illegal denial of employment/termination of employment. They pray for issuance of a writ, order or direction in the nature of mandamus commanding the respondents to implement GO(Ms).No.47/2011 and the Board's decision dated 16.3.2011 at its 132nd meeting to regularise their services and that of others similarly situated. More or less similar contentions were taken by the petitioners in these writ petitions to assail their disengagement besides claiming for regularisation in service based on Ext.P2 and the Board's decision. 

7. A scanning of the contentions in these four writ petitions would reveal that virtually, the petitioners in WP(C).No.20687/2011 and 22014/2011 assail cancellation of their regularisation in service and the consequential termination and the petitioners in the other two writ petitions who are virtually disengaged from service while working on daily wage basis seek for implementation of Ext.P2 viz., GO(Ms) No.47/2011 dated 1.3.2011 and consequential regularisation in the service of the Board. In other words they seek for re-engagement and regularisation. 

8. In these writ petitions counter-affidavits were filed by the Board. In WP(C).No.18036/2011 a counter-affidavit has also been filed on behalf of the first respondent-State. A perusal of the above counter-affidavits in these writ petitions would reveal that the contentions of the petitioners and their consequential prayer for re-inducting and regularizing their services are resisted by the respondents relying on the decision of the Hon'ble Apex Court in State of Karnataka v. Umadevi reported in 2006(4) SCC 1. 

9. A counter-affidavit has been filed by the second respondent in WP(C).No.20687/2011. The contention of the petitioners regarding the nature of their initial appointments was specifically refuted by the second respondent in the counter-affidavit and to show the real nature of their appointments viz., that the petitioners were actually appointed only on contract basis Exts.R2(a), R2(c), R2(e) were produced. Exts.R2(b) and R2(d) are the agreements executed by the petitioners therein with the Institute pursuant to such appointments. It is submitted that the Government have issued Exts.P1 and P2 orders. Ext.P1 order dated 3.8.2011 has been produced by the second respondent as Ext.R2(f). It is contended that the mode of appointment specifically mentioned in Ext.R2(f) did not permit appointment on permanent basis to the said posts which are covered by Ext.R2 (f), either by direct recruitment or by way of regularization. After admitting the fact that the service of the petitioners were regularized with the approval of the Government it is contended that Exts.P3 and P4 orders cancelling the appointments of the petitioners are valid and proper as it is perfectly in tune with the decision of the Hon'ble Apex Court in Umadevi (3) case. Taking into account the contention that the Government decided to review appointments and controversial decisions, as referred in Ext.P3, based on the decision of the Hon'ble Apex Court in Umadevi (3) case, this Court passed an interim order dated 22.8.2011 requiring the Secretary to Government, Parliamentary Affairs Department to file an affidavit as to how and under what circumstances, after relying on the decision of the Hon'ble Apex Court in Umadevi (3) case, a cut off date was prescribed, as is evident from Ext.P3, for the purpose of cancelling regularization of such appointments when all such appointments were originally made after Umadevi (3) case. WP(C).No.22014/2011 was also taken up along with WP(C).No.20687/2011. The learned Government Pleader submitted that the cancellation of the regularization of the service of the petitioners in WP(C).No.22014/2011 was also effected pursuant to the decision referred to in Ext.P3 in WP (C).No.20687/2011. In response to the same, the counsel for the petitioners submitted that if the order of regularization of the petitioners was cancelled solely based on the said decision of the Government referred to in Ext.P3 in WP(C).No.20687/2011, then the cancellation is liable to be interfered with for the simple reason that the decision was obviously only to review the appointments made by the Government after 1.1.2011 and that the provisional service of the petitioner was regularized as per Ext.P3 on 12.11.2010. 

10. Pursuant to the aforementioned direction, an additional affidavit was filed on behalf of the first respondent. It is stated therein that the decision referred to in Ext.P3 regarding review of appointments with a cut off date of 1.1.2011 was issued by the Government based on the policy decision of the Council of Ministers. Later, it was found that the decision of the Council of Ministers fixing cut off date would militate against the decision of the Hon'ble Apex Court. Accordingly, in the Cabinet meeting held on 24.8.2011 it was decided to review all illegal, irregular appointments effected in violation of the constitutional scheme and the judgments of the Hon'ble Apex Court. Consequently, the cut off date fixed earlier was deleted. In fact, the stand taken by the Government pursuant to the order issued subsequent to the interim order of this Court dated 22.8.2011 was that review of appointments would be confined only in respect of regularization of appointments against which complaints are received. Along with the verified petition dated 27.8.2011, GO (Ms)No.6/11/PAD dated 25.8.2011 was produced as Ext.R2(g). In Ext.R2(g) it is stated thus: 

"Now Government order that the cut off date of 1.1.11 is not to be reckoned and that the appointments and controversial decisions made prior to 1.1.11 will also be reviewed, if complaints are received in such cases complying with the Hon'ble Supreme Court's directions in Umadevi Vs. State of Karnataka case." 

When this Court on perusing Ext.R2(g) poignantly pointed out the irrationality of such a decision in view of the decision in Umadevi (3) case viz., putting a condition that review would be confined only in respect of cases where complaints are received, further time was sought to file a better affidavit explaining the position in the light of the judgment in Umadevi (3) case. Thereupon, an affidavit dated 31.8.2011 was filed in WP(C).No.20687/2011. In the said affidavit the position has been clarified. It is stated therein as hereunder:- 

"It is submitted that as of now there is no cut off date with respect to the appointments and controversial decisions in violation of the direction issued by this Hon'ble Court in State of Karnataka Vs.Umadevi reported in 2006(4) SCC Page 1. It may be noted that as far as the question relating to the review of appointment and controversial decisions are concerned it is submitted that the same may be done irrespective of whether complaints are received or not in so long as such appointments are illegal by virtue of the Supreme Court judgment which is having binding effect as the law declared by the Supreme Court is the law of the land in view of Article 142 of the Constitution of India. Therefore, the Government is bound to review all illegal appointments and controversial decisions regardless of any complaint in so far as it is the constitutional duty to comply with the orders issued by this Hon'ble Apex Court." 

11. The reference to Article 142 of the Constitution of India in the above extracted portion can only be a misquoting of the Article and certainly it can only be Article141 of the Constitution of India. Suffice it to say that the affidavit dated 31.8.2011 reflects the final decision of the Government in the matter and indubitably, it is a decision taken after imbibing the spirit of the decision of the Hon'ble Court in Umadevi(3) case. Obviously, the decision now prevailing in the matter is to apply the decision of the Hon'ble Apex Court in Umadevi(3) case in all cases of illegal appointments and controversial decisions made after the said decision regardless of receipt of complaints. 

12. It is common case between the parties that the petitioners in W.P.(C) No.20687 and 22014 of 2011 were appointed on contract basis and it was while continuing as such that they were regularised in service of the Institute/department with the approval of the Government, admittedly, after the decision of the Hon'ble Apex Court in Umadevi (3) case. In W.P(C) Nos.20687 of 2011 Ext.P2 order regularising the services of the petitioners in the institute was cancelled as per Exts. P3 and P4 orders and in W.P.(C) No.22014/2011, the order regularizing the service of the petitioner viz., Ext.P3 order dated 12.11.2010 was cancelled as per Ext.P4 order dated 2.8.2011. Admittedly, the orders of regularisation in the case of the petitioners in W.P.(C) Nos.20687 and 22014 of 2011 were cancelled without putting them on notice and without affording them an opportunity of being heard. According to the petitioners, in view of their regularisation in service and continuation in service based on such regularisation, the order cancelling their regularisation, with the impact of termination from service, should not have been issued without complying with the principles of natural justice. According to them, it violates Articles 14, 16 and 21 of the Constitution of India. Per contra, it is contended on behalf of the respondents that the very action in regularizing the services of the petitioners was illegal in view of the decision of the Hon'ble Apex Court in Umadevi (3) case. Therefore, no fruitful purpose could have been achieved by issuing a notice or affording an opportunity to the petitioners prior to the cancellation of the said orders of regularisation with the effect of sacking them from service. In short, according to them, in view of the attending and admitted circumstances affording such opportunities would have been nothing but a futile exercise. It is further contended that interference with the orders cancelling the regularisation of service of the petitioners based on the decision of the Hon'ble Apex Court in Umadevi (3) case, in the circumstances obtained in these cases, would result in restoration of illegal orders viz., orders of regularisation of services of the petitioners contrary to the decision of the Hon'ble Apex Court in Umadevi (3) case. 

13. In this convoluted circumstances, I think it only appropriate to consider the question regarding the impact of decision of the Hon'ble Apex Court in Umadevi (3) before dealing with the aforesaid rival contentions. When regular vacancies in the posts in governmental departments or public sector undertakings are to be filled up, a regular process of recruitment or appointment has to be resorted to in terms of the constitutional scheme and that cannot be done in a haphazard manner based on patronage and other considerations, so held by the Hon'ble Apex Court in many a cases. It was held in Umadevi (3) case by the Hon'ble Apex Court that persons appointed on contractual basis without following procedures for regular recruitment cannot be regularised into regular service. Though regular appointment as per constitutional scheme for public employment must be the rule, there is nothing in the constitutional scheme which prohibits the Union or the State Government or their instrumentalities from engaging persons temporarily or on daily wage basis, in spite of the constitutional scheme for governmental or public employment without following the required procedures, solely to meet the needs of the situation. The Hon'ble Apex Court further held that consistent with the scheme for public employment unless the appointment is made in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confirm or confer any right on the appointees. Therefore, any contractual appointment would come to an end at the end of the contract period in terms of the same and in the case of appointment on daily wage basis or casual basis, it would come to an end when it is discontinued. A temporary appointment would come to an end on the expiry of its term, and, no appointees, appointed in such capacities, are legally entitled to claim for permanency or regularisation based on such appointments. The admitted facts in these cases would undoubtedly show that the petitioners in W.P. (C).Nos.20687 and 22014 of 2011 were appointees on contract basis and had completed less than 4 years service by the time when their services were regularised. There is no case for the petitioners that they were appointed, initially, after following the prescribed procedures of regular recruitment. At any rate, no materials have been produced to show that prescribed procedures for regular appointment have been followed at the time of their initial appointment. The petitioners in the said writ petitions did not have a case that they were not appointees on contract basis. Evidently, the question of their entitlement for regularisation in service in the light of Umadevi (3) case and subsequent decisions of the Hon'ble Apex Court restating the position of law settled in Umadevi (3) case was not considered by the Government at the time of their regularisation. None of the petitioners contended that they were legally entitled to get regularisation dehoring the decision of the Hon'ble Apex Court in Umadevi (3) case. The admitted position is that by virtue of Umadevi (3) case and by virtue of the fact that they were appointees on contract basis, their services could not have been regularised. In (2010) 9 SCC 247 (State of Karnataka v. M.L.Kesari), it was held by the Hon'ble Apex Court that exception to the general principles of regularisation enunciated in Umadevi (3) is subject to the satisfaction of the conditions therein. In paragraphs 8 and 9 of the said decision, it has been held thus:- 

"8.Umadevi (3) casts a duty upon the government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or Tribunals, as a one-time measure. Umadevi (3) directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). 

9.The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services." 

14. The very object behind the directions in paragraph 53 of the Umadevi (3) has been dealt with in paragraph 11 of the said decision. The object is two-fold viz., firstly, to ensure that those who have put in more than 10 years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service and secondly, to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/ad hoc/ casual basis for long periods and then periodically regularise them on the ground that they have served for more than 10 years thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. In the decision in State of Rajasthan v. Daya Lal (2011) 2 SCC 429), the Hon'ble Apex Court referred to the well settled principles relating to regularisation which are relevant in the context of the appeals dealt with by the Hon'ble Apex Court in the said decision. The principles rendered in paragraph 12 thereunder which are relevant for the purpose of these writ petitions are as follows:- 

"(i)The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the elements in the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. 

(ii)Mere continuation of service by a temporary or ad hoc or daily- wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order or regularisation in the absence of a legal right. 

(iv)Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees." 

15. In the context of the contentions raised in these writ petitions, it is also relevant to refer to the decision of the Hon'ble Apex Court reported in Pinaki Chatterjee v. Union of India ((2009) 5 SCC 193). It was held thereunder that departmental instructions issued prior to and contrary to the law laid down in Umadevi (3) cannot be the foundation for claiming regularisation based on instructions thereunder. In other words, it was held that such circulars could not be given effect to. 

16. In the decision in State of Bihar v. Upendra Narayan Singh & others [(2009)1 SCC (L&S) 1019, the Hon'ble Apex Court now dealing with the case of cancellation of adhoc appointments for filling up the consequential vacancies in accordance with the rules. The concerned parties therein were said to have been regularised in services. Upon finding that their initial appointments were illegal per se directions given by the High Court for their reinstatement with consequential benefits taking into account their regularisation in service, was interfered with. It was held that none of the documents which would give semblance of legitimacy to their appointments was produced before the High Court and none has been produced before the Hon'ble Apex Court, as well. It was also held that the guarantee of equality before law enshrined in Article 14 is a positive concept and it could not be enforced by a citizen or court in a negative manner. If an illegality or irregularity had been committed in favour of any individual or a group of individuals or a wrong order had been passed by a judicial forum, others could not invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. In paragraph 8 of the said decision Chandigarh Admn. v. Jagjit Singh [(1995)1 SCC 745] has been quoted. It, in so far as relevant for the purpose of this case, reads thus: 

"8......Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest". 

(emphasis supplied). 

17. A scanning of the admitted and indisputable factual position emerging in these Writ Petitions, in the light of Umadevi's (3) case, M.L.Kesari's case (Supra), Daya Lal's case (Supra), Pinaki Chatterjee's case(Supra) and Upendra Narayan Singh's case (supra) would undoubtedly reveal that the orders of the regularisation of the petitioners were issued in total disregard to the law laid down by the Hon'ble Apex Court in Umadevi (3) case. In the light of the aforesaid decisions also would go to show that the doctrine of legitimate expectation and contentions based on Articles 14, 16 and 21 of the Constitution cannot have an application in respect of such appointments/cancellation of such appointments are concerned. There can be no doubt with respect to the decision that the law laid down by the Apex Court in Umadevi (3) case is binding on all consent by virtue of Article 141 of the Constitution of India. In the decision of the Hon'ble Apex Court in Suga Ram v. State of Rajasthan [(2006)8 SCC 641] it was held that judicial discipline to abide by declaration of law by the Supreme Court cannot be forsaken under any pretext by any authority or court, not even by the High Court. The petitioners did not have a case that the judgment in Umadevi (3) would not disentitle them to raise the right or claim for regularisation. In that view of the matter, there cannot be any doubt with respect to the position that the regularisation of the petitioners who were working on contract basis under the department/institution disregarding the law settled by the Hon'ble Apex Court in Umadevi (3) was illegal. The petitioners did not have a case that their case falls under the exception contained in paragraph 53 of Umadevi (3) or that despite the declaration of law in Umadevi (3) case they got a right to have regularisation or permanence. No such case was advanced before me by the petitioners in any of these Writ Petitions. 

18. The question now, to be considered is, even in such cases, whether the mere failure to comply with the principles of natural justice can be a reason for interference with the orders cancelling the orders of regularisation passed in total disregard to the law settled in Umadevi (3) case. The learned counsel for the petitioners submitted that since the orders of regularisation were passed by the previous Government, such orders carrying such decisions should not have been reopened and reconsidered by the subsequent Government. To buttress the said contention, the learned counsel for the respondents rely on the decision of the Hon'ble Apex Court reported in State of Hariyana v. State of Punjab & another [2002(2) SCC 507]. Emphasis was given particularly to the following:- 

"...What really bothers us most is the functioning of the political parties, who assume power to do whatever that suits them and whatever would catch the vote bank. They forget for a moment that the Constitution conceives of a Government to be manned by the representatives of the people, who get themselves elected in an election. The decisions taken at the governmental level should not be so easily nullified by a change of Government and by some other political party assuming power, particularly when such a decision affects some other State and the interest of the nation as a whole. It cannot be disputed that so far as the policy is concerned, a political party assuming power is entitled to engraft the political philosophy behind the party, since that must be held to be the will of the people. But in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same." 

I am of the view that the case on hand cannot be viewed and considered in that angle for various reasons. Firstly, the question to be decided is whether after the declaration of law by the Hon'ble Apex Court in Umadevi (3) case, regarding the right of the appointees on contract basis, on daily wage basis or on temporary basis for regularisation in service, the services of the petitioners could have been regularised or not. When that be the question the issue involved in these Writ Petitions arising out of the decision of the Government in cancelling the orders of regularisation would not get any colour of a policy decision. The question is one touching the tenability of the decision cancelling the orders of regularisation issued ignoring the decision in Umadevi (3) case which is admittedly binding on all concerned. As already noticed hereinbefore, the petitioners did not have a case that their claim would come within the purview of the exception contained in Umadevi (3) case. They do not have a case that their claim for regularisation stood on a different or firmer footing. 

19. In the light of Umadevi (3) and Pinaki Chatterjee's case (supra), none can claim for regularisation based on any instruction or order issued contrary to the law laid down in Umadevi (3) in the matter of regularisation as the very issuance of such instructions is illegal and liable to be interfered with by virtue of being contrary to the law laid down in Umadevi (3). As already noticed hereinbefore, the core contention of the petitioners is that the failure to comply with the principles of natural justice while cancelling the orders of regularisation itself is sufficient to invite interference by this Court. This aspect has to be considered at various angles. True that normally this court would interfere with any order passed in blatant violation of the principles of natural justice if prejudice is caused to the concerned party. In this case, the contention of the respondents is that in the light of the declaration of law by the Hon'ble Apex Court in Umadevi (3) and the subsequent decision referred above, the Government or any authorities could not have entered into any finding, in the matter of claim for regularisation of the petitioners or the correctness of the orders of regularisation, without referring to and adhereing to the law laid down by the Hon'ble Apex Court in Umadevi (3) case. The respondents relied on various decisions of the Hon'ble Apex Court to justify the decision in cancelling the orders of regularisation as also the non-grant of opportunity while cancelling the orders of regularisation. I have already found the irresistible impact of Umadevi (3) decision in the matter of regularisation. The petitioner in all these Writ Petitions, rightly did not take up any contention that an appointee on contractual basis or on daily basis can claim for regularisation or dehoring the decision in Umadevi(3) case. The fact that in the light of Umadevi (3) case they could stake no legal claim for regularisation is also not disputed. Indisputably, services of the petitioners in WP(C) Nos.26087 and 22014 of 2011 were regularised after the decision in Umadevi(3) case. In the said circumstances, in view of my findings above the respondents are justified in their attempt to sustain the decision in cancelling the orders of regularisation. Whether violation of principles of natural justice alone would render such decisions invalid or liable for interference? In the decision in M.C.Mehta v. Union of India & others (JT 1999 (5) SC 114), the Hon'ble Apex Court held that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ, merely because there is violation of principles of natural justice. Where the facts are not at all admitted for beyond dispute, there is considerable unanimity that the courts can, in exercise of their "discretion", refuse, certiorari, prohibition, mandamus or injunction even though natural justice is not followed. It has also been held therein that it is not always necessary for the court to strike down an order merely because it has been passed against the concerned petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party in violation of principles of natural justice or is otherwise not in accordance with law. The respondents relied on the decisions of the Hon'ble Apex Court in Aligarh Muslim University & others v. Mansoor Ali Khan [(2000)7 SCC 529] and Ashok Kumar Sonkar v. Union of India & others [(2007)4 SCC 54] to buttress the contention that application of the principles of natural justice is not necessary where it would be a futile exercise. No doubt, in the light of Umadevi (3) case no other finding would have been possible in the matter of their right for regularisation. According to the petitioners, there is violation of Article 14 of the Constitution of India. In this context, it is to be noted that Article 14 is a positive concept and therefore, merely because another person was wrongly conferred with a benefit or a person wrongly conferred with a benefit is continuing to enjoy that benefit cannot be a reason for this Court to interfere with an order otherwise sustainable in law, merely on the ground of violation of principles of natural justice. When persons who entered into service through back door, are shown the same door for their exit, on realisation of the illegality committed in their induction in service, as in the case on hand, such action called for no interference. Interfering with such orders, would definitely resurrect an illegality. At any rate whatever be the circumstances in the light of the decisions of the Hon'ble Apex Court in Umadevi (3) case and in the light of the decisions of the Hon'ble Apex Court in M.C.Mehta v. Union of India & others (JT 1999(5) SC 114), and taking into account the factual position obtained in these Writ Petitions, this court cannot interfere with cancelling the orders of the regularisation of the petitioners in WP(C) Nos.20687 & 22014 of 2011. This Court will issue a writ of mandamus to an authority if only it is shown that the said authority has failed to exercise duty and the same creates a corresponding right on the applicant to seek performance of that duty. The conclusions and findings in WP(C) 20687 and 22014 of 2011 in the light of Umadevi (3) case, would apply in the case of the petitioners in WP(C) 18036 and 22810 of 2011. In view of the decisions referred hereinbefore including Umadevi (3) case the petitioners in the said Writ Petition cannot seek re-induction and consequential regularisation in service. Like the petitioners in the other Writ Petitions the petitioners in these Writ Petitions also do not have a case that they fell under the exceptions crowed out in Umadevi (3) case so as to claim regularisation. In the context of the contentions in all these Writ Petitions it is apposite to refer to the decision of the Hon'ble Apex Court in State of Bihar v. Upendra Narayan Singh & others [(2009)1 SCC (L&S) 1019. It, in so far as relevant reads thus:- 

"Merely because the respondent authority has passed an illegal/unwarranted orders, it does not entitle the High Court to compel the authority to repeat the illegality over again. The illegal/unwarranted action must be corrected if it can be done according to law and indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition". 

The upshot of the above discussion, and findings is that the petitioners in all these Writ Petitions are not entitled to any of the reliefs sought by them. For the foregoing reasons these Writ Petitions are liable to fail and accordingly, they are dismissed. 

C.T. RAVIKUMAR, JUDGE cms