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The issue of regularization

K.S.Srinivas ,
  13 September 2011       Share Bookmark

Court :
Supreme Court of India
Brief :
Supreme Court has now firmly laid down that regularization cannot be mode of appointment-Illegal appointments cannot be regularized and neither temporary nor permanent status be conferred by regularization – An attempt to induct an employee without following the procedure would be back-door appointment- Such back door appointments have been deprecated by Supreme Court. times without number- Mere description of illegal appointments as “irregular” does not mean they are not illegal. When a post is not sanctioned, normally, directions for reinstatement should not be issued. Availability of funds and/ or vacancies is not and cannot be a valid ground to make appointments without proper sanction and creation of posts and cannot be taken as an excuse to perpetrate illegalities. Held, if illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate – Art. 14 has positive concept- No equality can be claimed in illegality. Entitlement to – Past illegal regularization/appointment, held, does not create entitlement to further regularization/appointment- Appointment-Labour Law.
Citation :
Secretary, State of Karnatka & others Vs. Umadevi & others AIR 2006 SC1806,

CASE NO.:

Appeal (civil)  3595-3612 of 1999

 

PETITIONER:

Secretary, State of Karnataka and others

 

RESPONDENT:

Umadevi and others

 

DATE OF JUDGMENT: 10/04/2006

 

BENCH:

Y.K. SABHARWAL ARUN KUMAR G.P. MATHUR, C.K. THAKKER & P.K. BALASUBRAMANYAN

 

JUDGMENT:

J U D G M E N T

 

WITH

CIVIL APPEAL NO.1861-2063/2001, 3849/2001, 

3520-3524/2002 and CIVIL APPEAL NO. 1968 of 2006

arising out of SLP(C)9103-9105 OF 2001

 

P.K. BALASUBRAMANYAN, J.

 

 

                        Leave granted in SLP(C) Nos.9103-9105 of 2001

 

 

1.                     Public employment in a sovereign socialist secular democratic

republic, has to be as set down by the Constitution and the laws made

thereunder.  Our constitutional scheme envisages employment by the

Government and its instrumentalities on the basis of a procedure established

in that behalf.  Equality of opportunity is the hallmark, and the Constitution

has provided also for affirmative action to ensure that unequals are not

treated equals.   Thus, any public employment has to be in terms of the

constitutional scheme.

 

2.                     A sovereign government, considering the economic situation in

the country and the work to be got done, is not precluded from making

temporary appointments or engaging workers on daily wages.  Going by a

law newly enacted, The National Rural Employment Guarantee Act, 2005,

the object is to give employment to at least one member of a family for

hundred days in an year, on paying wages as fixed under that Act.   But, a

regular process of recruitment or appointment has to be resorted to, when

regular vacancies in posts, at a particular point of time, are to be filled up

and the filling up of those vacancies cannot be done in a haphazard manner

or based on patronage or other considerations.  Regular appointment must be

the rule. 

 

 

3.                     But, sometimes this process is not adhered to and the

Constitutional scheme of public employment is by-passed.   The Union, the

States, their departments and instrumentalities have resorted to irregular

appointments, especially in the lower rungs of the service, without reference

to the duty to ensure a proper appointment procedure through the Public

Service Commission or otherwise as per the rules adopted and to permit

these irregular appointees or those appointed on contract or on daily wages,

to continue year after year,   thus, keeping out those who are qualified to

apply for the post concerned and depriving them of an opportunity to

compete for the post.   It has also led to persons who get employed, without

the following of a regular procedure or even through the backdoor or on

daily wages, approaching Courts, seeking directions to make them

permanent in their posts and to prevent regular recruitment to the concerned

posts.   Courts have not always kept the legal aspects in mind and have

occasionally even stayed the regular process of employment being set in

motion and in some cases, even directed that these illegal, irregular or

improper entrants be absorbed into service.   A class of employment which

can only be called 'litigious employment', has risen like a phoenix seriously

impairing the constitutional scheme.   Such orders are passed apparently in

exercise of the wide powers under Article 226 of the Constitution of India.  

Whether the wide powers under Article 226 of the Constitution is intended

to be used for a purpose certain to defeat the concept of social justice and

equal opportunity for all, subject to affirmative action in the matter of public

employment as recognized by our Constitution, has to be seriously pondered

over.    It is time, that Courts desist from issuing orders preventing regular

selection or recruitment at the instance of such persons and from issuing

directions for continuance of those who have not secured regular

appointments as per procedure established.   The passing of orders for

continuance, tends to defeat the very Constitutional scheme of public

employment.   It has to be emphasized that this is not the role envisaged for

High Courts in the scheme of things and their wide powers under Article 226

of the Constitution of India are not intended to be used for the purpose of

perpetuating illegalities, irregularities or improprieties or for scuttling the

whole scheme of public employment.  Its role as the sentinel and as the

guardian of equal rights protection should not be forgotten.

 

4.                     This Court has also on occasions issued directions which could

not be said to be consistent with the Constitutional scheme of public

employment.   Such directions are issued presumably on the basis of

equitable considerations or individualization of justice.   The question arises,

equity to whom?  Equity for the handful of people who have approached the

Court with a claim, or equity for the teeming millions of this country seeking

employment and seeking a fair opportunity for competing for employment?  

When one side of the coin is considered, the other side of the coin, has also

to be considered and the way open to any court of law or justice, is to adhere

to the law as laid down by the Constitution and not to make directions,

which at times, even if do not run counter to the Constitutional scheme,

certainly tend to water down the Constitutional requirements.   It is this

conflict that is reflected in these cases referred to the Constitution Bench.

 

5.                     The power of a State as an employer is more limited than that

of a private employer inasmuch as it is subjected to constitutional limitations 

and cannot be exercised arbitrarily (See Basu's Shorter Constitution of

India).   Article 309 of the Constitution gives the Government the power to

frame rules for the purpose of laying down the conditions of service and

recruitment of persons to be appointed to public services and posts in

connection with the affairs of the Union or any of the States.   That Article

contemplates the drawing up of a procedure and rules to regulate the

recruitment and regulate the service conditions of appointees appointed to

public posts.   It is well acknowledged that because of this, the entire process

of recruitment for services is controlled by detailed procedure which specify

the necessary qualifications, the mode of appointment etc.    If rules have

been made under Article 309 of the Constitution, then the Government can

make appointments only in accordance with the rules.    The State is meant

to be a model employer.   The Employment Exchanges (Compulsory

Notification of Vacancies) Act, 1959 was enacted to ensure equal

opportunity for employment seekers.  Though this Act may not oblige an

employer to employ only those persons who have been sponsored by

employment exchanges, it places an obligation on the employer to notify the

vacancies that may arise in the various departments and for filling up of

those vacancies, based on a procedure.  Normally, statutory rules are framed

under the authority of law governing employment.  It is recognized that no

government order, notification or circular can be substituted for the statutory

rules framed under the authority of law.   This is because, following any

other course could be disastrous inasmuch as it will deprive the security of

tenure and the right of equality conferred on civil servants under the

Constitutional scheme.   It may even amount to negating the accepted

service jurisprudence.   Therefore, when statutory rules are framed under

Article 309 of the Constitution which are exhaustive, the only fair means to

adopt is to make appointments based on the rules so framed.

 

 

 

 

6.                     These two sets of appeals reflect the cleavage of opinion in the

High Court of Karnataka based on the difference in approach in two sets of

decisions of this Court leading to a reference of these appeals to the

Constitution Bench for decision.   The conflict relates to the right, if any, of

employees appointed by the State or by its instrumentalities on a temporary

basis or on daily wages or casually, to approach the High Court for the issue

of a writ of mandamus directing that they be made permanent in appropriate

posts, the work of which they were otherwise doing.   The claim is

essentially based on the fact that they having continued in employment or

engaged in the work for a significant length of time, they are entitled to be

absorbed in the posts in which they had worked in the department concerned

or the authority concerned.   There are also more ambitious claims that even

if they were not working against a sanctioned post, even if they do not

possess the requisite qualification, even if they were not appointed in terms

of the procedure prescribed for appointment, and had only recently been

engaged, they are entitled to continue and should be directed to be absorbed.

 

 

7.                     In Civil Appeal Nos.3595-3612 of 1999 the respondents therein

who were temporarily engaged on daily wages in the Commercial Taxes

Department in some of the districts of the State of Karnataka claim that they

worked in the department based on such engagement for more than 10 years

and hence they are entitled to be made permanent employees of the

department, entitled to all the benefits of regular employees.  They were

engaged for the first time in the years 1985-86 and in the teeth of orders not

to make such appointments issued on 3.7.1984. Though the Director of

Commercial Taxes recommended that they be absorbed, the Government did

not accede to that recommendation.  These respondents thereupon

approached the Administrative Tribunal in the year 1997 with their claim.  

The Administrative Tribunal rejected their claim finding that they have not

made out a right either to get wages equal to that of others regularly

employed or for regularization.   Thus, the applications filed were dismissed.  

The respondents approached the High Court of Karnataka challenging the

decision of the Administrative Tribunal.   It is seen that the High Court

without really coming to grips with the question falling for decision in the

light of the findings of the Administrative Tribunal and the decisions of this

Court, proceeded to order that they are entitled to wages equal to the salary

and allowances that are being paid to the regular employees of their cadre in

government service with effect from the dates from which they were

respectively appointed.  It may be noted that this gave retrospective effect to

the judgment of the High Court by more than 12 years.   The High Court

also issued a command to the State to consider their cases for regularization

within a period of four months from the date of receipt of that order.  The

High Court seems to have proceeded on the basis that, whether they were

appointed before 01.07.1984, a situation covered by the decision of this

Court in Dharwad District Public Works Department vs. State of

Karnataka (1990  (1) SCR 544)  and the scheme framed pursuant to the

direction thereunder,  or subsequently, since they have worked for a period

of 10 years, they were entitled to equal pay for equal work from the very

inception of their engagement on daily wages and were also entitled to be

considered for regularization in their posts.

 

8.                     Civil Appeal Nos.1861-2063 of 2001 reflects the other side of

the coin.   The appellant association with indefinite number of members

approached the High Court with a writ petition under Article 226 of the

Constitution of India challenging the order of the government directing

cancellation of appointments of all casual workers/daily rated workers made

after 01.07.1984 and further seeking a direction for the regularization of all

the daily wagers engaged by the government of Karnataka and its local

bodies.   A learned Single Judge of the High Court disposed of  the writ

petition by granting permission to the petitioners before him, to approach 

their employers for absorption and regularization of their services and also

for payment of their salaries on par with the regular workers, by making

appropriate representations within the time fixed therein and directing the

employers to consider the cases of the claimants for absorption and

regularization in accordance with the observations made by the Supreme

Court in similar cases.   The State of Karnataka  filed appeals against the

decision of the learned Single Judge.   A Division Bench of the High Court

allowed the appeals.   It held that the daily wage employees, employed or

engaged either in government departments or other statutory bodies after

01.07.1984, were not entitled to the benefit of the scheme framed by this

Court in Dharwad District Public Works Department case, referred to

earlier.   The High Court considered various orders and directions issued by

the government interdicting such engagements or employment and the

manner of entry of the various employees.   Feeling aggrieved by the

dismissal of their claim, the members of the associations have filed these

appeals.

 

9.                     When these matters came up before a Bench of two Judges, the

learned Judges referred the cases to a Bench of three Judges.  The order of

reference is reported in 2003 (9) SCALE 187.   This Court noticed that in the

matter of regularization of ad hoc employees, there were conflicting

decisions by three Judge Benches of this Court and by two Judge Benches

and hence the question required to be considered by a larger Bench.   When

the matters came up before a three Judge Bench, the Bench in turn felt that

the matter required consideration by a Constitution Bench in view of the

conflict and in the light of the arguments raised by the Additional Solicitor

General.  The order of reference is reported in 2003 (10) SCALE 388.    It

appears to be proper to quote that order of reference at this stage.  It reads:

 

1.         "Apart from the conflicting opinions

between the three Judges' Bench decisions

in Ashwani Kumar and Ors. Vs. State of

Bihar and Ors., reported in 1997 (2) SCC

1, State of Haryana and Ors vs., Piara

Singh and Ors. Reported in 1992 (4) SCC

118 and Dharwad Distt. P.W.D. Literate

Daily Wage Employees Association and

Ors. Vs. State of Karnataka and Ors.

Reported in 1990 (2) SCC 396, on the one

hand and State of Himachal Pradesh vs.

Suresh Kumar Verma and Anr., reported

in AIR 1996 SC 1565, State of  Punjab vs.

Surinder Kumar and Ors. Reported in

AIR 1992 SC 1593, and  B.N. Nagarajan

and Ors. Vs. State of Karnataka and Ors.,

reported in 1979 (4) SCC 507 on the other,

which has been brought out in one of the

judgments under appeal of Karnataka High

Court in State of Karnataka vs. H. Ganesh

Rao, decided on 1.6.2000, reported in 2001

(4) Karnataka Law Journal 466, learned

Additional Solicitor General urged that the

scheme for regularization is repugnant to

Articles 16(4), 309, 320 and 335 of the

Constitution of India and, therefore, these

cases are required to be heard by a Bench of

Five learned Judges (Constitution Bench).

 

2.         On the other hand, Mr. M.C. Bhandare,

learned senior counsel, appearing for the

employees urged that such a scheme for

regularization is consistent with the

provision of Articles 14 and 21 of the

Constitution.

 

3.         Mr. V. Lakshmi Narayan, learned counsel,

appearing in CC Nos.109-498 of 2003, has

filed the G.O. dated 19.7.2002 and

submitted that orders have already been

implemented.

 

4.         After having found that there is conflict of

opinion between three Judges Bench

decisions of this Court, we are of the view

that these cases are required to be heard by a 

Bench of five learned Judges.

 

5.         Let these matters be placed before Hon'ble

the Chief Justice for appropriate orders."

 

 

                        We are, therefore, called upon to resolve this issue here.   We

have to lay down the law. We have to approach the question as a

constitutional court should.

 

10.                   In addition to the equality clause represented by Article 14 of

the Constitution, Article 16 has specifically provided for equality of

opportunity in matters of public employment.  Buttressing these fundamental

rights, Article 309 provides that subject to the provisions of the Constitution,

Acts of the legislature may regulate the recruitment and conditions of service

of persons appointed to public services and posts in connection with the

affairs of the Union or of a State.  In view of the interpretation placed on

Article 12 of the Constitution by this Court, obviously, these principles also

govern the instrumentalities that come within the purview of Article 12 of

the Constitution.  With a view to make the procedure for selection fair, the

Constitution by Article 315 has also created a Public Service Commission

for the Union and Public Service Commissions for the States.  Article 320

deals with the functions of Public Service Commissions and mandates

consultation with the Commission on all matters relating to methods of

recruitment to civil services and for civil posts and other related matters.  As

a part of the affirmative action recognized by Article 16 of the Constitution,

Article 335 provides for special consideration in the matter of claims of the

members of the scheduled castes and scheduled tribes for employment.  The

States have made Acts, Rules or Regulations for implementing the above

constitutional guarantees and any recruitment to the service in the State or in

the Union is governed by such Acts, Rules and Regulations.  The

Constitution does not envisage any employment outside this constitutional

scheme and without following the requirements set down therein. 

 

 

11.                   In spite of this scheme, there may be occasions when the

sovereign State or its instrumentalities will have to employ persons, in posts

which are temporary, on daily wages, as additional hands or taking them in

without following the required procedure, to discharge the duties in respect

of the posts that are sanctioned and that are required to be filled in terms of

the relevant procedure established by the Constitution or for work in

temporary posts or projects that are not needed permanently.  This right of

the Union or of the State Government cannot but be recognized and there is

nothing in the Constitution which prohibits such engaging of persons

temporarily or on daily wages, to meet the needs of the situation.  But the

fact that such engagements are resorted to, cannot be used to defeat the very

scheme of public employment.  Nor can a court say that the Union or the

State Governments do not have the right to engage persons in various

capacities for a duration or until the work in a particular project is

completed.  Once this right of the Government is recognized and the

mandate of the constitutional requirement for public employment is

respected, there cannot be much difficulty in coming to the conclusion that it

is ordinarily not proper for courts whether acting under Article 226 of the

Constitution or under Article 32 of the Constitution, to direct absorption in

permanent employment of those who have been engaged without following

a due process of selection as envisaged by the constitutional scheme.

 

 

12.                   What is sought to be pitted against this approach, is the so

called equity arising out of giving of temporary employment or engagement

on daily wages and the continuance of such persons in the engaged work for

a certain length of time.   Such considerations can have only a limited role to

play, when every qualified citizen has a right to apply for appointment, the

adoption of the concept of rule of law and the scheme of the Constitution for

appointment to posts.   It cannot also be forgotten that it is not the role of

courts to ignore, encourage or approve appointments made or engagements

given outside the constitutional scheme.   In effect, orders based on such

sentiments or approach would result in perpetuating illegalities and in the

jettisoning of the scheme of public employment adopted by us while

adopting the Constitution.   The approving of such acts also results in

depriving many of their opportunity to compete for public employment.  We

have, therefore, to consider the question objectively and based on the

constitutional and statutory provisions.  In this context, we have also to bear

in mind the exposition of law by a Constitution Bench in State of Punjab

Vs. Jagdip Singh & Ors. (1964 (4) SCR 964).  It was held therein, "In our

opinion, where a Government servant has no right to a post or to a particular

status, though an authority under the Government acting beyond its

competence had purported to give that person a status which it was not

entitled to give, he will not in law be deemed to have been validly appointed

to the post or given the particular status."

 

13.                   During the course of the arguments, various orders of courts

either interim or final were brought to our notice.  The purport of those

orders more or less was the issue of directions for continuation or absorption

without referring to the legal position obtaining.  Learned counsel for the

State of Karnataka submitted that chaos has been created by such orders

without reference to legal principles and it is time that this Court settled the

law once for all so that in case the court finds that such orders should not be

made, the courts, especially, the High Courts would be precluded from

issuing such directions or passing such orders.  The submission of learned

counsel for the respondents based on the various orders passed by the High

Court or by the Government pursuant to the directions of Court also

highlights the need for settling the law by this Court.  The bypassing of the

constitutional scheme cannot be perpetuated by the passing of orders without

dealing with and deciding the validity of such orders on the touchstone of

constitutionality.  While approaching the questions falling for our decision,

it is necessary to bear this in mind and to bring about certainty in the matter

of public employment.   The argument on behalf of some of the respondents

is that this Court having once directed regularization in the Dharwad case

(supra), all those appointed temporarily at any point of time would be

entitled to be regularized since otherwise it would be discrimination between

those similarly situated and in that view, all appointments made on daily

wages, temporarily or contractually, must be directed to be regularized.

Acceptance of this argument would mean that appointments made otherwise

than by a regular process of selection would become the order of the day

completely jettisoning the constitutional scheme of appointment.  This

argument also highlights the need for this Court to formally lay down the

law on the question and ensure certainty in dealings relating to public

employment.  The very divergence in approach in this Court, the so-called

equitable approach made in some, as against those decisions which have

insisted on the rules being followed, also justifies a firm decision by this

Court one way or the other.  It is necessary to put an end to uncertainty and

clarify the legal position emerging from the constitutional scheme, leaving

the High Courts to follow necessarily, the law thus laid down.

 

14.                   Even at the threshold, it is necessary to keep in mind the

distinction between regularization and conferment of permanence in service

jurisprudence.   In STATE OF MYSORE Vs. S.V. NARAYANAPPA

[1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to

consider that regularization meant permanence.  In R.N. NANJUNDAPPA

Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an

argument that regularization would mean conferring the quality of

permanence on the appointment.  This Court stated:-

"Counsel on behalf of the respondent contended

that regularization would mean conferring the quality of

permanence on the appointment, whereas counsel on

behalf of the State contended that regularization did not

mean permanence but that it was a case of regularization

of the rules under Article 309.  Both the contentions are

fallacious.  If the appointment itself is in infraction of the

rules or if it is in violation of the provisions of the

Constitution, illegality cannot be regularized.  

Ratification or regularization 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 new head of appointment in defiance of rules

or it may have the effect of setting at naught the rules."

 

In  B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR

937], this court clearly held that the words "regular" or "regularization" do

not connote permanence and cannot be construed so as to convey an idea of

the nature of tenure of appointments.  They are terms calculated to condone

any procedural irregularities and are meant to cure only such defects as are

attributable to methodology followed in making the appointments.  This

court emphasized that when rules framed under Article 309 of the

Constitution of India are in force, no regularization is permissible in exercise

of the executive powers of the Government under Article 162 of the

Constitution in contravention of the rules.  These decisions and the

principles recognized therein have not been dissented to by this Court and on

principle, we see no reason not to accept the proposition as enunciated in the

above decisions.  We have, therefore, to keep this distinction in mind and

proceed on the basis that only 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 process, can be regularized and that it alone can be

regularized and granting permanence of employment is a totally different

concept and cannot be equated with regularization.

 

15.                   We have already indicated the constitutional scheme of public

employment in this country, and the executive, or for that matter the Court,

in appropriate cases, would have only the right to regularize an appointment

made after following the due procedure, even though a non-fundamental

element of that process or procedure has not been followed.  This right of the

executive and that of the court, would not extend to the executive or the

court being in a position to direct that an appointment made in clear

violation of the constitutional scheme, and the statutory rules made in that

behalf, can be treated as permanent or can be directed to be treated as

permanent.

 

 

16.                   Without keeping the above distinction in mind and without

discussion of the law on the question or the effect of the directions on the

constitutional scheme of appointment, this Court in Daily Rated Casual

Labour Vs. Union of India & Ors. (1988 (1) SCR 598) directed the

Government to frame a scheme for absorption of daily rated casual labourers

continuously working in the Posts and Telegraphs Department for more than

one year.  This Court seems to have been swayed by the idea that India is a

socialist republic and that implied the existence of certain important

obligations which the State had to discharge.  While it might be one thing to

say that the daily rated workers, doing the identical work, had to be paid the

wages that were being paid to those who are regularly appointed and are

doing the same work, it would be quite a different thing to say that a

socialist republic and its Executive, is bound to give permanence to all those

who are employed as casual labourers or temporary hands and that too

without a process of selection or without following the mandate of the

Constitution and the laws made thereunder concerning public employment. 

The same approach was made in Bhagwati Prasad Vs. Delhi State Mineral

Development Corporation (1989 Suppl. (2) SCR 513) where this Court

directed regularization of daily rated workers in phases and in accordance

with seniority. 

 

17.                   One aspect arises.  Obviously, the State is also controlled by

economic considerations and financial implications of any public

employment.  The viability of the department or the instrumentality or of the

project is also of equal concern for the State.  The State works out the

scheme taking into consideration the financial implications and the

economic aspects.  Can the court impose on the State a financial burden of

this nature by insisting on regularization or permanence in employment,

when those employed temporarily are not needed permanently or regularly? 

As an example, we can envisage a direction to give permanent employment

to all those who are being temporarily or casually employed in a public

sector undertaking.  The burden may become so heavy by such a direction

that the undertaking itself may collapse under its own weight.  It is not as if

this had not happened.  So, the court ought not to impose a financial burden

on the State by such directions, as such directions may turn counter-

productive. 

 

 

18.                   The Decision in Dharwad Distt. P.W.D. Literate Daily Wage

Employees Association & ors. Vs. State of Karnataka & Ors. (1990 (1)

SCR 544) dealt with a scheme framed by the State of Karnataka, though at

the instance of the court.  The scheme was essentially relating to the

application of the concept of equal pay for equal work but it also provided

for making permanent, or what it called regularization, without keeping the

distinction in mind, of employees who had been appointed ad hoc, casually,

temporarily or on daily wage basis.  In other words, employees who had

been appointed without following the procedure established by law for such

appointments.  This Court, at the threshold, stated that it should

individualize justice to suit a given situation.  With respect, it is not possible

to accept the statement, unqualified as it appears to be.  This Court is not

only the constitutional court, it is also the highest court in the country, the

final court of appeal.  By virtue of Article 141 of the Constitution of India,

what this Court lays down is the law of the land.  Its decisions are binding on

all the courts.  Its main role is to interpret the constitutional and other

statutory provisions bearing in mind the fundamental philosophy of the

Constitution.   We have given unto ourselves a system of governance by rule

of law.  The role of the Supreme Court is to render justice according to law. 

As one jurist put it, the Supreme Court is expected to decide questions of

law for the country and not to decide individual cases without reference to

such principles of law.  Consistency is a virtue.  Passing orders not

consistent with its own decisions on law, is bound to send out confusing

signals and usher in judicial chaos.   Its role, therefore, is really to interpret

the law and decide cases coming before it, according to law.  Orders which

are inconsistent with the legal conclusions arrived at by the court in the self

same judgment not only create confusion but also tend to usher in

arbitrariness highlighting the statement, that equity tends to vary with the

Chancellor's foot.

 

19.                   In Dharwad case, this Court was actually dealing with the

question of 'equal pay for equal work' and had directed the State of

Karnataka to frame a scheme in that behalf.   In paragraph 17 of the

judgment, this Court stated that the precedents obliged the State of

Karnataka to regularize the services of the casual or daily/monthly rated

employees and to make them the same payment as regular employees were

getting.  Actually, this Court took note of the argument of counsel for the

State that in reality and as a matter of statecraft, implementation of such a

direction was an economic impossibility and at best only a scheme could be

framed.  Thus a scheme for absorption of casual/daily rated employees

appointed on or before 1.7.1984 was framed and accepted.  The economic

consequences of its direction were taken note of by this Court in the

following words. 

"We are alive to the position that the scheme which we

have finalized is not the ideal one but as we have already

stated, it is the obligation of the court to individualize

justice to suit a given situation in a set of facts that are

placed before it.  Under the scheme of the Constitution,

the purse remains in the hands of the executive.  The

legislature of the State controls the Consolidated Fund

out of which the expenditure to be incurred, in giving

effect to the scheme, will have to be met.  The flow into

the Consolidated Fund depends upon the policy of

taxation depending perhaps on the capacity of the payer. 

Therefore, unduly burdening the State for implementing

the constitutional obligation forthwith would create

problems which the State may not be able to stand.  We

have, therefore, made our directions with judicious

restraint with the hope and trust that both parties would

appreciate and understand the situation.  The

instrumentality of the State must realize that it is charged

with a big trust.  The money that flows into the

Consolidated Fund and constitutes the resources of the

State comes from the people and the welfare expenditure

that is meted out goes from the same Fund back to the

people.  May be that in every situation the same tax payer

is not the beneficiary.  That is an incident of taxation and

a necessary concomitant of living within a welfare

society."

 

With respect, it appears to us that the question whether the jettisoning of the

constitutional scheme of appointment can be approved, was not considered

or decided.  The distinction emphasized in R.N. NANJUNDAPPA Vs T.

THIMMIAH & ANR. (supra), was also not kept in mind.  The Court

appears to have been dealing with a scheme for 'equal pay for equal work'

and in the process, without an actual discussion of the question, had

approved a scheme put forward by the State, prepared obviously at the

direction of the Court, to order permanent absorption of such daily rated

workers.  With respect to the learned judges, the decision cannot be said to

lay down  any law, that all those engaged on daily wages, casually,

temporarily, or when no sanctioned post or vacancy existed and without

following the rules of selection, should be absorbed or made permanent

though not at a stretch, but gradually.  If that were the ratio, with respect, we

have to disagree with it.

 

20.                   We may now consider, State of Haryana Vs. Piara Singh and

Others [1992) 3 SCR 826].  There, the court was considering the

sustainability of certain directions issued by the High Court in the light of

various orders passed by the State for the absorption of its ad hoc or

temporary employees and daily wagers or casual labour.  This Court started

by saying:

"Ordinarily speaking, the creation and abolition of a post

is the prerogative of the Executive.  It is the Executive

again that lays down the conditions of service subject, of

course, to a law made by the appropriate legislature. 

This power to prescribe the conditions of service can be

exercised either by making rules under the proviso to

Article 309 of the Constitution or (in the absence of such

rules) by issued rules/instructions in exercise of its

executive power.  The court comes into the picture only

to ensure observance of fundamental rights, statutory

provisions, rules and other instructions, if any governing

the conditions of service"

 

This Court then referred to some of the earlier decisions of this Court while

stating:

"The main concern of the court in such matters is to

ensure the rule of law and to see that the Executive acts

fairly and gives a fair deal to its employees consistent

with the requirements of Articles 14 and 16.  It also

means that the State should not exploit its employees nor

should it seek to take advantage of the helplessness and

misery of either the unemployed persons or the

employees, as the case may be.  As is often said, the State

must be a model employer.  It is for this reason, it is held

that equal pay must be given for equal work, which is

indeed one of the directive principles of the Constitution. 

it is for this very reason it is held that a person should not

be kept in a temporary or ad hoc status for long.  Where a

temporary or ad hoc appointment is continued for long

the court presumes that there is need and warrant for a

regular post and accordingly directs regularization. 

While all the situations in which the court may act to

ensure fairness cannot be detailed here, it is sufficient to

indicate that the guiding principles are the ones stated

above."

 

This Court then concluded in paragraphs 45 to 50:

"The normal rule, of course, is regular recruitment

through the prescribed agency but exigencies of

administration may sometimes call for an ad hoc or

temporary appointment to be made.  In such a situation,

effort should always be to replace such an ad

hoc/temporary employee by a regularly selected

employee as early as possible.  Such a temporary

employee may also compete along with others for such

regular selection/appointment.  If he gets selected, well

and good, but if he does not, he must give way to the

regularly selected candidate.  The appointment of the

regularly selected candidate cannot be withheld or kept in

abeyance for the sake of such an ad hoc/temporary

employee.

 

Secondly, an ad hoc or temporary employee should

not be replaced by another ad hoc or temporary

employee; he must be replaced only by a regularly

selected employee.  This is necessary to avoid arbitrary

action on the part of the appointing authority.

 

Thirdly, even where an ad hoc or temporary

employment is necessitated on account of the exigencies

of administration, he should ordinarily be drawn from the

employment exchange unless it cannot brook delay in

which case the pressing cause must be stated on the file. 

If no candidate is available or is not sponsored by the

employment exchange, some appropriate method

consistent with the requirements of Article 16 should be

followed.  In other words, there must be a notice

published in the appropriate manner calling for

applications and all those who apply in response thereto

should be considered fairly.

 

An unqualified person ought to be appointed only

when qualified persons are not available through the

above processes.

 

If for any reason, an ad hoc or temporary employee

is continued for a fairly long spell, the authorities must

consider his case for regularization provided he is

eligible and qualified according to the rules and his

service record is satisfactory and his appointment does

not run counter to the reservation policy of the State "

 

 

With respect, why should the State be allowed to depart from the normal

rule and indulge in temporary employment in permanent posts?  This Court,

in our view, is bound to insist on the State making regular and proper

recruitments and is bound not to encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment.  The direction to make

permanent -- the distinction between regularization and making permanent,

was not emphasized here  -- can only encourage the State, the model

employer, to flout its own rules and would confer undue benefits on a few at

the cost of many waiting to compete.  With respect, the direction made in

paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the

conclusion in paragraph 45 therein.   With great respect, it appears to us that

the last of the directions clearly runs counter to the constitutional scheme of

employment recognized in the earlier part of the decision.  Really, it cannot

be said that this decision has laid down the law that all ad hoc, temporary or

casual employees engaged without following the regular recruitment

procedure should be made permanent.

 

21.                   We shall now refer to the other decisions.  In State of Punjab

and others Vs. Surinder Kumar and others (1991 Suppl. (3) SCR 553),  a

three judge bench of this Court held that High Courts had no power, like the

power available to the Supreme Court under Article 142 of the Constitution

of India, and merely because the Supreme Court granted certain reliefs in

exercise of its power under Article 142 of the Constitution of India, similar

orders could not be issued by the High Courts.  The bench pointed out that a

decision is available as a precedent only if it decides a question of law. The

temporary employees would not be entitled to rely in a Writ Petition they

filed before the High Court upon an order of the Supreme Court which

directs a temporary employee to be regularized in his service without

assigning reasons and ask the High Court to pass an order of a similar

nature.  This Court noticed that the jurisdiction of the High Court while

dealing with a Writ Petition was circumscribed by  the   limitations

discussed and declared by judicial decisions and the High Court cannot  

transgress the limits on the basis of the whims or subjective sense of justice

varying from judge to judge.  Though the High Court is entitled to exercise

its judicial discretion in deciding Writ Petitions or Civil Revision

Applications coming before it, the discretion had to be confined in declining

to entertain petitions and refusing to grant reliefs asked for by the petitioners

on adequate considerations and it did not permit the High Court to grant

relief on such a consideration alone.   This Court set aside the directions

given by the High Court for regularization of persons appointed temporarily

to the post of lecturers.  The Court also emphasized that specific terms on

which appointments were made should be normally enforced.  Of course,

this decision is more on the absence of power in the High Court to pass

orders against the constitutional scheme of appointment. 

 

22.                   In  Director, Institute of Management Development, U.P.

Vs. Pushpa Srivastava (Smt.) (1992 (3) SCR 712), this Court held that

since the appointment was on purely contractual and ad hoc basis on

consolidated pay for a fixed period and terminable without notice, when the

appointment came to an end by efflux of time, the appointee had no right to

continue in the post and to claim regularization in service in the absence of

any rule providing for regularization after the period of service.  A limited

relief of directing that the appointee be permitted on sympathetic

consideration to be continued in service till the end of the concerned

calendar year was issued.  This Court noticed that when the appointment was

purely on ad hoc and contractual basis for a limited period, on the expiry of

the period, the right to remain in the post came to an end.   This Court stated

that the view they were taking was the only view possible and set aside the

judgment of the High Court which had given relief to the appointee. 

 

23.                   In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar

Mishra and Others [AIR 1994 SC 1638], a three judge bench of this Court

held that ad hoc appointees/temporary employees engaged on ad hoc basis

and paid on piece-rate basis for certain clerical work and discontinued on

completion of their task, were not entitled to reinstatement or regularization

of their services even if their working period ranged from one to two years. 

This decision indicates that if the engagement was made in a particular work

or in connection with particular project, on completion of that work or of

that project, those who were temporarily engaged or employed in that work

or project could not claim any right to continue in service and the High

Court cannot direct that they be continued or absorbed elsewhere.

 

24.                   In State of Himachal Pradesh Vs. Suresh Kumar Verma 

(1996 (1) SCR 972), a three Judge Bench of this Court held that a person

appointed on daily wage basis was not an appointee to a post according to

Rules.  On his termination, on the project employing him coming to an end,

the Court could not issue a direction to re-engage him in any other work or

appoint him against existing vacancies.  This Court said:

"It is settled law that having made rules of recruitment to

various services under the State or to a class of posts

under the State, the State is bound to follow the same and

to have the selection of the candidates made as per

recruitment rules and appointments shall be made

accordingly.  From the date of discharging the duties

attached to the post the incumbent becomes a member of

the services.  Appointment on daily wage basis is not an

appointment to a post according to the Rules." 

 

Their Lordships cautioned that if directions are given to re-engage such

persons in any other work or appoint them against existing vacancies, "the

judicial process would become another mode of recruitment dehors the

rules."

25.                   In Ashwani Kumar and others Vs.  State of Bihar and

others (1996 Supp. (10) SCR 120), this Court was considering the validity

of confirmation of the irregularly employed.  It was stated:

"So far as the question of confirmation of these

employees whose entry was illegal and void, is

concerned, it is to be noted that question of confirmation

or regularization of an irregularly appointed candidate

would arise if the candidate concerned is appointed in an

irregular manner or on ad hoc basis against an available

vacancy which is already sanctioned.  But if the initial

entry itself is unauthorized and is not against any

sanctioned vacancy, question of regularizing the

incumbent on such a non-existing vacancy would never

survive for consideration and even if such purported

regularization or confirmation is given it would be an

exercise in futility."

 

This Court further stated :

"In this connection it is pertinent to note that

question of regularization in any service including any

government service may arise in two contingencies. 

Firstly, if on any available clear vacancies which are of a

long duration appointments are made on ad hoc basis or

daily-wage basis by a competent authority and are

continued from time to time and if it is found that the

incumbents concerned have continued to be employed for

a long period of time with or without any artificial

breaks, and their services are otherwise required by the

institution which employs them, a time may come in the

service career of such employees who are continued on

ad hoc basis for a given substantial length of time to

regularize them so that the employees concerned can give

their best by being assured security of tenure.  But this

would require one precondition that the initial entry of

such an employee must be made against an available

sanctioned vacancy by following the rules and

regulations governing such entry.  The second type of

situation in which the question of regularization may

arise would be when the initial entry of the employee

against an available vacancy is found to have suffered

from some flaw in the procedural exercise though the

person appointing is competent to effect such initial

recruitment and has otherwise followed due procedure

for such recruitment.  A need may then arise in the light

of the exigency of administrative requirement for

waiving such irregularity in the initial appointment by a

competent authority and the irregular initial appointment

may be regularized and security of tenure may be made

available to the incumbent concerned. But even in such a

case the initial entry must not be found to be totally

illegal or in blatant disregard of all the established rules

and regulations governing such recruitment."

 

The Court noticed that in that case all constitutional requirements were

thrown to the wind while making the appointments.  It was stated,

"On the contrary all efforts were made to bypass the

recruitment procedure known to law which resulted in

clear violation of Articles 14 and 16(1) of the 

Constitution of India, both at the initial stage as well as at

the stage of confirmation of these illegal entrants.  The so

called regularizations and confirmations could not be

relied on as shields to cover up initial illegal and void

actions or to perpetuate the corrupt methods by which

these 6000 initial entrants were drafted in the scheme."

 

26.                   It is not necessary to notice all the decisions of this Court on

this aspect.  By and large what emerges is that regular recruitment should be

insisted upon, only in a contingency an ad hoc appointment can be made in a

permanent vacancy, but the same should soon be followed by a regular

recruitment and that appointments to non-available posts should not be taken

note of for regularization.   The cases directing regularization have mainly

proceeded on the basis that having permitted the employee to work for some

period, he should be absorbed, without really laying down any law to that

effect, after discussing the constitutional scheme for public employment.

 

27.                   In A. Umarani Vs. Registrar, Cooperative Societies and

Others (2004 (7) SCC 112), a three judge bench made a survey of the

authorities and held that when appointments were made in contravention of

mandatory provisions of the Act and statutory rules framed thereunder and

by ignoring essential qualifications, the appointments would be illegal and

cannot be regularized by the State.  The State could not invoke its power

under Article 162 of the Constitution to regularize such appointments. This

Court also held that regularization 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 thereunder.  Regularization furthermore cannot give

permanence to an employee whose services are ad hoc in nature.  It was also

held that the fact that some persons had been working for a long time would

not mean that they had acquired a right for regularization.

 

28.                   Incidentally, the Bench also referred to the nature of the orders

to be passed in exercise of this Court's jurisdiction under Article 142 of the

Constitution.  This Court stated that jurisdiction under Article 142 of the

Constitution could not be exercised on misplaced sympathy.  This Court

quoted with approval the observations of Farewell, L.J. in Latham vs.

Richard Johnson & Nephew Ltd. (1913 (1) KB 398)"

"We must be very careful not to allow our

sympathy with the infant plaintiff to affect our judgment. 

Sentiment is a dangerous will o' the wisp to take as a

guide in the search for legal principles."

 

This Court also quoted with approval the observations of this Court in Teri

Oat Estates (P) Ltd. Vs. U.T., Chandigarh (2004 (2) SCC 130) to the

effect:

"We have no doubt in our mind that sympathy or

sentiment by itself cannot be a ground for passing an

order in relation whereto the appellants miserably fail to

establish a legal right.  It is further trite that despite an

extraordinary constitutional jurisdiction contained in

Article 142 of the Constitution of India, this Court

ordinarily would not pass an order which would be in

contravention of a statutory provision."

 

 

This decision kept in mind the distinction between 'regularization' and

'permanency' and laid down that regularization is not and cannot be the

mode of recruitment by any State.  It also held that regularization cannot

give permanence to an employee whose services are ad hoc in nature. 

 

29.                   It is not necessary to multiply authorities on this aspect.  It is

only necessary to refer to one or two of the recent decisions in this context.  

In State of U.P. vs. Niraj Awasthi and others  (2006 (1) SCC  667) this

Court after referring to a number of prior decisions held that there was no

power in the State under Art. 162 of the Constitution of India to make

appointments and even if there was any such power, no appointment could

be made in contravention of statutory rules.   This Court also held that past

alleged regularisation or appointment does not connote entitlement to further

regularization or appointment.   It was further held that the High Court has

no jurisdiction to frame a scheme by itself or direct the framing of a scheme

for regularization.   This view was reiterated in State of Karnataka vs.

KGSD Canteen Employees Welfare Association (JT 2006 (1) SC 84).

 

30.                   In Union Public Service Commission Vs. Girish Jayanti Lal

Vaghela & Others [2006 (2) SCALE 115], this Court answered the

question, who was a Government servant and stated:-

 

"Article 16 which finds place in Part III of the

Constitution relating to fundamental rights provides that

there shall be equality of opportunity for all citizens in

matters relating to employment or appointment to any

office under the State.  The main object of Article 16 is to

create a constitutional right to equality of opportunity and

employment in public offices.  The words "employment"

or "appointment" cover not merely the initial

appointment but also other attributes of service like

promotion and age of superannuation etc.  The

appointment to any post under the State can only be

made after a proper advertisement has been made

inviting applications from eligible candidates and holding

of selection by a body of experts or a specially

constituted committee whose members are fair and

impartial through a written examination or interview or

some other rational criteria for judging the inter se merit

of candidates who have applied in response to the

advertisement made.  A regular appointment to a post

under the State or Union cannot be made without issuing

advertisement in the prescribed manner which may in

some cases include inviting applications from the

employment exchange where eligible candidates get their

names registered.  Any regular appointment made on a

post under the State or Union without issuing

advertisement inviting applications from eligible

candidates and without holding a proper selection where

all eligible candidates get a fair chance to compete would

violate the guarantee enshrined under Article 16 of the

Constitution (See B.S. Minhas Vs. Indian Statistical

Institute and others AIR 1984 SC 363)."

 

31.                   There have been decisions which have taken the cue from the

Dharwad (supra) case and given directions for regularization, absorption or

making permanent, employees engaged or appointed without following the

due process or the rules for appointment.   The philosophy behind this

approach is seen set out in the recent decision in The Workmen of

Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The

Management of  Bhurkunda  Colliery  of M/s Central Coalfields Ltd.

(JT 2006 (2) SC 1), though the legality or validity of such an approach has

not been independently examined.  But on a survey of authorities, the

predominant view is seen to be that such appointments did not confer any

right on the appointees and that the Court cannot direct their absorption or

regularization or re-engagement or making them permanent.

 

32.                   At this stage, it is relevant to notice two aspects.  In

Kesavananda Bharati Vs. State of Kerala (1973 Supp. S.C.R. 1), this

Court held that Article 14, and Article 16, which was described as a facet of

Article 14, is part of the basic structure of the Constitution of India.  The

position emerging from Kesavananada Bharati (supra) was summed up by

Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney

Vs. Union of India (1999 Suppl. (5) S.C.R. 229).  That decision also

reiterated how neither the Parliament nor the Legislature could transgress the

basic feature of the Constitution, namely, the principle of equality enshrined

in Article 14 of which Article 16 (1) is a facet.  This Court stated, "

The preamble to the Constitution of India

emphasises the principle of equality as basic to our

constitution. In Keshavananda Bharati v. State of Kerala,

it was ruled that even constitutional amendments which

offended the basic structure of the Constitution would be

ultra vires the basic structure. Sikri, CJ. laid stress on the

basic features enumerated in the preamble to the

Constitution and said that there were other basic features

too which could be gathered from the Constitutional

scheme (para 506 A of SCC). Equality was one of the

basic features referred to in the Preamble to our

Constitution. Shelat and Grover, JJ. also referred to the

basic rights referred to in the Preamble. They specifically

referred to equality (paras 520 and 535A of SCC). Hegde

& Shelat, JJ. also referred to the Preamble (paras 648,

652). Ray, J. (as he then was) also did so (para 886).

Jaganmohan Reddy, J. too referred to the Preamble and

the equality doctrine (para 1159). Khanna, J. accepted

this position (para 1471). Mathew, J. referred to equality

as a basic feature(para 1621). Dwivedi, J. (paras 1882,

1883) and Chandrachud, J.(as he then was) (see para

2086) accepted this position.

What we mean to say is that Parliament and the

legislatures in this Country cannot transgress the basic

feature of the Constitution, namely, the principle of

equality enshrined in Article 14 of which Article 16(1) is

a facet."

 

33.                   In the earlier decision in Indra Sawhney Vs. Union of India

[1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the

majority, while acknowledging that equality and equal opportunity is a basic

feature of our Constitution, has explained the exultant  position of Articles

14 and 16 of the Constitution of India in the scheme of things.  His Lordship

stated:-

 

"6. The significance attached by the founding fathers to

the right to equality is evident not only from the fact that

they employed both the expressions 'equality before the

law' and 'equal protection of the laws' in Article 14 but

proceeded further to state the same rule in positive and

affirmative terms in Articles 15 to 18

 

 

7. Inasmuch as public employment always gave a certain

status and power --- it has always been the repository of

State power ---besides the means of livelihood, special

care was taken to declare equality of opportunity in the

matter of public employment by Article 16. Clause (1),

expressly declares that in the matter of public

employment or appointment to any office under the state,

citizens of this country shall have equal opportunity

while clause (2) declares that no citizen shall be

discriminated in the said matter on the grounds only of

religion, race, caste, sex, descent, place of birth,

residence or any of them. At the same time, care was

taken to, declare in clause (4) that nothing in the said

Article shall prevent the state from making any provision

for reservation of appointments or posts in favour of any

backward class of citizen which in the opinion of the

state, is not adequately represented in the services under

the state.."

(See paragraphs 6 and 7 at pages 544 and 545)

 

These binding decisions are clear imperatives that adherence to

Articles 14 and 16 of the Constitution is a must in the process of

public employment.

34.                   While answering an objection to the locus standi of the

Writ Petitioners in challenging the repeated issue of an ordinance by

the Governor of Bihar, the exalted position of rule of law in the

scheme of things was emphasized, Chief Justice Bhagwati, speaking

on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs.

State of Bihar & Ors. (1987 (1) S.C.R. 798) stated:

"The rule of law constitutes the core of our Constitution

of India and it is the essence of the rule of law that the

exercise of the power by the State whether it be the

Legislature or the Executive or any other authority

should be within the constitutional limitations and if any

practice is adopted by the Executive which is in flagrant

and systematic violation of its constitutional limitations,

petitioner No. 1 as a member of the public would have

sufficient interest to challenge such practice by filing a

writ petition and it would be the constitutional duty of

this Court to entertain the writ petition and adjudicate

upon the validity of such practice."

 

Thus, it is clear that adherence to the rule of equality in public employment

is a basic feature of our Constitution and since the rule of law is the core of

our Constitution, a Court would certainly be disabled from passing an order

upholding a violation of Article 14 or in ordering the overlooking of the

need to comply with the requirements of Article 14 read with Article 16 of

the Constitution.  Therefore, consistent with the scheme for public

employment, this Court while laying down the law, has necessarily to hold

that unless the appointment is in terms of the relevant rules and after a

proper competition among qualified persons, the same would not confer any

right on the appointee.  If it is a contractual appointment, the appointment

comes to an end at the end of the contract, if it were an engagement or

appointment on daily wages or casual basis, the same would come to an end

when it is discontinued.  Similarly, a temporary employee could not claim to

be made permanent on the expiry of his term of appointment.  It has also to

be clarified that merely because a temporary employee or a casual wage

worker is continued for a time beyond the term of his appointment, he would

not be entitled to be absorbed in regular service or made permanent, merely

on the strength of such continuance, if the original appointment was not

made by following a due process of selection as envisaged by the relevant

rules.  It is not open to the court to prevent regular recruitment at the

instance of temporary employees whose period of employment has come to

an end or of ad hoc employees who by the very nature of their appointment,

do not acquire any right.  High Courts acting under Article 226 of the

Constitution of India, should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the recruitment itself was

made regularly and in terms of the constitutional scheme.  Merely because,

an employee had continued under cover of an order of Court, which we have

described as 'litigious employment' in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or made permanent in the

service.  In fact, in such cases, the High Court may not be justified in issuing

interim directions, since, after all, if ultimately the employee approaching it

is found entitled to relief, it may be possible for it to mould the relief in such

a manner that ultimately no prejudice will be caused to him, whereas an

interim direction to continue his employment would hold up the regular

procedure for selection or impose on the State the burden of paying an

employee who is really not required.  The courts must be careful in ensuring

that they do not interfere unduly with the economic arrangement of its

affairs by the State or its instrumentalities or lend themselves the instruments

to facilitate the bypassing of the constitutional and statutory mandates.

 

35.                   The concept of 'equal pay for equal work' is different from the

concept of conferring permanency on those who have been appointed on ad

hoc basis, temporary basis, or based on no process of selection as envisaged

by the Rules.  This Court has in various decisions applied the principle of

equal pay for equal work and has laid down the parameters for the

application of that principle.  The decisions are rested on the concept of

equality enshrined in our Constitution in the light of the directive principles

in that behalf.  But the acceptance of that principle cannot lead to a position

where the court could direct that appointments made without following the

due procedure established by law, be deemed permanent or issue directions

to treat them as permanent.    Doing so, would be negation of the principle of

equality of opportunity.  The power to make an order as is necessary for

doing complete justice in any cause or matter pending before this Court,

would not normally be used for giving the go-by to the procedure

established by law in the matter of public employment.  Take the situation

arising in the cases before us from the State of Karnataka.  Therein, after the

Dharwad decision, the Government had issued repeated directions and

mandatory orders that no temporary or ad hoc employment or engagement

be given.  Some of the authorities and departments had ignored those

directions or defied those directions and had continued to give employment,

specifically interdicted by the orders issued by the executive.  Some of the

appointing officers have even been punished for their defiance.  It would not

be just or proper to pass an order in exercise of jurisdiction under Article

226 or 32 of the Constitution or in exercise of power under Article 142 of

the Constitution of India permitting those persons engaged, to be absorbed

or to be made permanent, based on their appointments or engagements. 

Complete justice would be justice according to law and though it would be

open to this Court to mould the relief, this Court would not grant a relief

which would amount to perpetuating an illegality.

 

36.                   While directing that appointments, temporary or casual, be

regularized or made permanent, courts are swayed by the fact that the

concerned person has worked for some time and in some cases for a

considerable length of time.  It is not as if the person who accepts an

engagement either temporary or casual in nature, is not aware of the nature

of his employment.  He accepts the employment with eyes open.  It may be

true that he is not in a position to bargain -- not at arms length -- since he

might have been searching for some employment so as to eke out his

livelihood and accepts whatever he gets.  But on that ground alone, it would

not be appropriate to jettison the constitutional scheme of appointment and

to take the view that a person who has temporarily or casually got employed

should be directed to be continued permanently.  By doing so, it will be

creating another mode of public appointment which is not permissible.  If

the court were to void a contractual employment of this nature on the ground

that the parties were not having equal bargaining power, that too would not

enable the court to grant any relief to that employee. A total embargo on

such casual or temporary employment is not possible, given the exigencies

of administration and if imposed, would only mean that some people who at

least get employment temporarily, contractually or casually, would not be

getting even that employment when securing of such employment brings at

least some succor to them.  After all, innumerable citizens of our vast

country are in search of employment and one is not compelled to accept a

casual or temporary employment if one is not inclined to go in for such an

employment.  It is in that context that one has to proceed on the basis that

the employment was accepted fully knowing the nature of it and the

consequences flowing from it.  In other words, even while accepting the

employment, the person concerned knows the nature of his employment.  It

is not an appointment to a post in the real sense of the term.  The claim

acquired by him in the post in which he is temporarily employed or the

interest in that post cannot be considered to be of such a magnitude as to

enable the giving up of the procedure established, for making regular

appointments to available posts in the services of the State.  The argument

that since one has been working for some time in the post, it will not be just

to discontinue him, even though he was aware of the nature of the

employment when he first took it up, is not one that would enable the

jettisoning of the procedure established by law for public employment and

would have to fail when tested on the touchstone of constitutionality and

equality of opportunity enshrined in Article 14 of the Constitution of India. 

 

 

37.                   Learned Senior Counsel for some of the respondents argued

that on the basis of the doctrine of legitimate expectation, the employees,

especially of the Commercial Taxes Department, should be directed to be

regularized since the decisions in Dharwad (supra), Piara Singh (supra),

Jacob, and Gujarat Agricultural University and the like, have given rise

to an expectation in them that their services would also be regularized.   The

doctrine can be invoked if the decisions of the Administrative Authority

affect the person by depriving him of some benefit or advantage which

either (i) he had in the past been permitted by the decision-maker to enjoy

and which he can legitimately expect to be permitted to continue to do until

there have been communicated to him some rational grounds for

withdrawing it on which he has been given an opportunity to comment; or

(ii) he has received assurance from the decision-maker that they will not be

withdrawn without giving him first an opportunity of advancing reasons for

contending that they should not be withdrawn {See Lord Diplock in

Council of Civil Service Unions V. Minister for the Civil Service (1985

Appeal Cases 374), National Buildings Construction Corpn. Vs. S.

Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of

Rajasthan (2003 (3) SCC 485).  There is no case that any assurance was

given by the Government or the concerned department while making the

appointment on daily wages that the status conferred on him will not be

withdrawn until some rational reason comes into existence for withdrawing

it. The very engagement was against the constitutional scheme.  Though, the

Commissioner of the Commercial Taxes Department sought to get the

appointments made permanent, there is no case that at the time of

appointment any promise was held out.  No such promise could also have

been held out in view of the circulars and directives issued by the

Government after the Dharwad decision.  Though, there is a case that the

State had made regularizations in the past of similarly situated employees,

the fact remains that such regularizations were done only pursuant to judicial

directions, either of the Administrative Tribunal or of the High Court and in

some case by this Court.  Moreover, the invocation of the doctrine of

legitimate expectation cannot enable the employees to claim that they must

be made permanent or they must be regularized in the service though they

had not been selected in terms of the rules for appointment.  The fact that in

certain cases the court had directed regularization of the employees involved

in those cases cannot be made use of to found a claim based on legitimate

expectation.  The argument if accepted would also run counter to the

constitutional mandate. The argument in that behalf has therefore to be

rejected.

 

38.                   When a person enters a temporary employment or gets

engagement as a contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant rules or procedure,

he is aware of the consequences of the appointment being temporary, casual

or contractual in nature.  Such a person cannot invoke the theory of

legitimate expectation for being confirmed in the post when an appointment

to the post could be made only by following a proper procedure for selection

and in concerned cases, in consultation with the Public Service Commission. 

Therefore, the theory of legitimate expectation cannot be successfully

advanced by temporary, contractual or casual employees.  It cannot also be

held that the State has held out any promise while engaging these persons

either to continue them where they are or to make them permanent.   The

State cannot constitutionally make such a promise.  It is also obvious that the

theory cannot be invoked to seek a positive relief of being made permanent

in the post.

 

39.                   It was then contended that the rights of the employees thus

appointed, under Articles 14 and 16 of the Constitution, are violated.  It is

stated that the State has treated the employees unfairly by employing them

on less than minimum wages and extracting work from them for a pretty

long period in comparison with those directly recruited who are getting more

wages or salaries for doing similar work.  The employees before us were

engaged on daily wages in the concerned department on a wage that was

made known to them.  There is no case that the wage agreed upon was not

being paid.  Those who are working on daily wages formed a class by

themselves, they cannot claim that they are discriminated as against those

who have been regularly recruited on the basis of the relevant rules.  No

right can be founded on an employment on daily wages to claim that such

employee should be treated on a par with a regularly recruited candidate, and

made permanent in employment, even assuming that the principle could be

invoked for claiming equal wages for equal work.  There is no fundamental

right in those who have been employed on daily wages or temporarily or on

contractual basis, to claim that they have a right to be absorbed in service. 

As has been held by this Court, they cannot be said to be holders of a post,

since, a regular appointment could be made only by making appointments

consistent with the requirements of Articles 14 and 16 of the Constitution. 

The right to be treated equally with the other employees employed on daily

wages, cannot be extended to a claim for equal treatment with those who

were regularly employed.  That would be treating unequals as equals.   It

cannot also be relied on to claim a right to be absorbed in service even

though they have never been selected in terms of the relevant recruitment

rules.  The arguments based on Articles 14 and 16 of the Constitution are

therefore overruled.

 

 

40.                   It is contended that the State action in not regularizing the

employees was not fair within the framework of the rule of law.  The rule of

law compels the State to make appointments as envisaged by the

Constitution and in the manner we have indicated earlier.  In most of these

cases, no doubt, the employees had worked for some length of time but this

has also been brought about by the pendency of proceedings in Tribunals

and courts initiated at the instance of the employees.  Moreover, accepting

an argument of this nature would mean that the State would be permitted to

perpetuate an illegality in the matter of public employment and that would

be a negation of the constitutional scheme adopted by us, the people of

India.  It is therefore not possible to accept the argument that there must be a

direction to make permanent all the persons employed on daily wages. 

When the court is approached for relief by way of a writ, the court has

necessarily to ask itself whether the person before it had any legal right to be

enforced.  Considered in the light of the very clear constitutional scheme, it

cannot be said that the employees have been able to establish a legal right to

be made permanent even though they have never been appointed in terms of

the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 

 

41.                   It is argued that in a country like India where there is so much

poverty and unemployment and there is no equality of bargaining power, the

action of the State in not making the employees permanent, would be

violative of Article 21 of the Constitution.  But the very argument indicates

that there are so many waiting for employment and an equal opportunity for

competing for employment and it is in that context that the Constitution as

one of its basic features, has included Articles 14, 16 and 309 so as to ensure

that public employment is given only in a fair and equitable manner by

giving all those who are qualified, an opportunity to seek employment.  In

the guise of upholding rights under Article 21 of the Constitution of India,  

a set of persons cannot be preferred over a vast majority of people waiting

for an opportunity to compete for State employment. The acceptance of the

argument on behalf of the respondents would really negate the rights of the

others conferred by Article 21 of the Constitution, assuming that we are in a

position to hold that the right to employment is also a right coming within

the purview of Article 21 of the Constitution.  The argument that Article 23

of the Constitution is breached because the employment on daily wages

amounts to forced labour, cannot be accepted.  After all, the employees

accepted the employment at their own volition and with eyes open as to the

nature of their employment.  The Governments also revised the minimum

wages payable from time to time in the light of all relevant circumstances.  It

also appears to us that importing of these theories to defeat the basic

requirement of public employment would defeat the constitutional scheme

and the constitutional goal of equality.

 

42.                   The argument that the right to life protected by Article 21 of the

Constitution of India would include the right to employment cannot also be

accepted at this juncture.  The law is dynamic and our Constitution is a

living document.  May be at some future point of time, the right to

employment can also be brought in under the concept of right to life or even

included as a fundamental right.  The new statute is perhaps a beginning.  As

things now stand, the acceptance of such a plea at the instance of the

employees before us would lead to the consequence of depriving a large

number of other aspirants of an opportunity to compete for the post or

employment.  Their right to employment, if it is a part of right to life, would

stand denuded by the preferring of those who have got in casually or those

who have come through the back door.  The obligation cast on the State

under Article 39(a) of the Constitution of India is to ensure that all citizens

equally have the right to adequate means of livelihood.  It will be more

consistent with that policy if the courts recognize that an appointment to a

post in government service or in the service of its instrumentalities, can only

be by way of a proper selection in the manner recognized by the relevant

legislation in the context of the relevant provisions of the Constitution.  In

the name of individualizing justice, it is also not possible to shut our eyes to

the constitutional scheme and the right of the numerous as against the few

who are before the court.  The Directive Principles of State Policy have also

to be reconciled with the rights available to the citizen under Part III of the

Constitution and the obligation of the State to one and all and not to a

particular group of citizens.  We, therefore, overrule the argument based on

Article 21 of the Constitution.

 

43.                   Normally, what is sought for by such temporary employees

when they approach the court, is the issue of a writ of mandamus directing

the employer, the State or its instrumentalities, to absorb them in permanent

service or to allow them to continue.  In this context, the question arises

whether a mandamus could be issued in favour of such persons.  At this

juncture, it will be proper to refer to the decision of the Constitution Bench

of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of

the Nalanda College [(1962) Supp. 2 SCR 144].  That case arose out of a

refusal to promote the writ petitioner therein as the Principal of a college. 

This Court held that in order that a mandamus may issue to compel the

authorities to do something, it must be shown that the statute imposes a legal

duty on the authority and the aggrieved party had a legal right under the

statute or rule to enforce it.  This classical position continues and a

mandamus could not be issued in favour of the employees directing the

government to make them permanent since the employees cannot show that

they have an enforceable legal right to be permanently absorbed or that the

State has a legal duty to make them permanent.

 

44.                   One aspect needs to be clarified.  There may be cases where

irregular appointments (not illegal appointments) as explained in S.V.

NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N.

NAGARAJAN (supra), and referred to in paragraph 15 above, of duly

qualified persons in duly sanctioned vacant posts might have been made and

the employees have continued to work for ten years or more but without the

intervention of orders of courts or of tribunals.  The question of

regularization of the services of such employees may have to be considered

on merits in the light of the principles settled by this Court in the cases

above referred to and in the light of this judgment.  In that context, the

Union of India, the State Governments and their instrumentalities should

take steps to regularize as a one time measure, the services of such

irregularly appointed, who have worked for ten years or more in duly

sanctioned posts but not under cover of orders of courts or of tribunals and

should further ensure that regular recruitments are undertaken to fill those

vacant sanctioned posts that require to be filled up, in cases where temporary

employees or daily wagers are being now employed.  The process must be

set in motion within six months from this date.  We also clarify that

regularization, if any already made, but not subjudice, need not be reopened

based on this judgment, but there should be no further by-passing of the

constitutional requirement and regularizing or making permanent, those not

duly appointed as per the constitutional scheme.  

 

45.                   It is also clarified that those decisions which run counter to the

principle settled in this decision, or in which directions running counter to

what we have held herein, will stand denuded of their status as precedents. 

 

46.                   In cases relating to service in the commercial taxes department,

the High Court has directed that those engaged on daily wages, be paid

wages equal to the salary and allowances that are being paid to the regular

employees of their cadre in government service, with effect from the dates

from which they were respectively appointed.  The objection taken was to

the direction for payment from the dates of engagement.  We find that the

High Court had clearly gone wrong in directing that these employees be paid

salary equal to the salary and allowances that are being paid to the regular

employees of their cadre in government service, with effect from the dates

from which they were respectively engaged or appointed.  It was not open to

the High Court to impose such an obligation on the State when the very

question before the High Court in the case was whether these employees

were entitled to have equal pay for equal work so called and were entitled to

any other benefit.  They had also been engaged in the teeth of directions not

to do so.  We are, therefore, of the view that, at best, the Division Bench of

the High Court should have directed that wages equal to the salary that are

being paid to regular employees be paid to these daily wage employees with

effect from the date of its judgment.  Hence, that part of the direction of the

Division Bench is modified and it is directed that these daily wage earners

be paid wages equal to the salary at the lowest grade of employees of their

cadre in the Commercial Taxes Department in government service, from the

date of the judgment of the Division Bench of the High Court.  Since, they

are only daily wage earners, there would be no question of other allowances

being paid to them.  In view of our conclusion, that Courts are not expected

to issue directions for making such persons permanent in service, we set

aside that part of the direction of the High Court directing the Government to

consider their cases for regularization.  We also notice that the High Court

has not adverted to the aspect as to whether it was regularization or it was

giving permanency that was being directed by the High Court.  In such a

situation, the direction in that regard will stand deleted and the appeals filed

by the State would stand allowed to that extent. If sanctioned posts are

vacant (they are said to be vacant) the State will take immediate steps for

filling those posts by a regular process of selection.   But when regular

recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those

in the Commercial Taxes Department similarly situated, will be allowed to

compete, waiving the age restriction imposed for the recruitment and giving

some weightage for their having been engaged for work in the Department

for a significant period of time.  That would be the extent of the exercise of

power by this Court under Article 142 of the Constitution to do justice to

them.

 

47.                   Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of

our conclusion on the questions referred to, no relief can be granted, that too

to an indeterminate number of members of the association.  These

appointments or engagements were also made in the teeth of directions of

the Government not to make such appointments and it is impermissible to

recognize such appointments made in the teeth of directions issued by the

Government in that regard.  We have also held that they are not legally

entitled to any such relief.  Granting of the relief claimed would mean

paying a premium for defiance and insubordination by those concerned who

engaged these persons against the interdict in that behalf.   Thus, on the

whole, the appellants in these appeals are found to be not entitled to any

relief.  These appeals have, therefore, to be dismissed.

 

48.                   C.A. Nos. 3520-24 of 2002 have also to be allowed since the

decision of the Zilla Parishads to make permanent the employees cannot be

accepted as legal.  Nor can the employees be directed to be treated as

employees of the Government, in the circumstances.  The direction of the

High Court is found unsustainable. 

 

49.                   In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil

Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil

appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001

are allowed subject to the direction issued under Article 142 of the

Constitution in paragraph 46 and the general directions contained in

paragraph 44 of the judgment and Civil Appeal Nos. 1861-2063 of 2001 are

dismissed.  There will be no order as to costs. 

 
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