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Making any temporary employee permanent unconstitutional

The judgment of the Constitutional Bench of the Supreme Court (SC) in The Secretary, State of Karnataka v Umadevi  in the year 2006 categorically declared that making temporary employees permanent in government on whatever grounds or reasons is a backdoor appointment and hence an unconstitutional act impermissible in the eye of law.

But the governments in the country at the centre and the states are flouting the judgment over the years based on grounds of compassion. The judgment declares that compassion is an unsustainable ground for doing so under rule of law.

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Making long serving employee permanent unlawful

Even in cases, where the employees had worked for a long time and they are made permanent, it would be a perpetuation of an illegality in public employment. It amounts to a negation of the constitutional scheme.  So the court has no authority to issue any direction to make the persons employed on daily wages permanent.

When the court is approached for relief by a writ, the court must see whether the person before it had any legal right to be enforced. Under the constitution, the temporary employees who have never been appointed in terms of the relevant rules or under Articles 14 and 16 of the Constitution cannot establish a legal right to be made permanent.

Casually got in employees have no statutory right

The temporary employees who have got in casually or those who have come through the back door have no right to permanent employment.

All citizens under the Constitution of India have equal right to an appointment to a post in the government or of its instrumentalities. That can only be done by a proper selection as provided in the laws and the Constitution.

The Articles 14, 16 and 309 of the Constitution ensure that public employment is given only in a fair and equitable manner by giving all qualified persons an opportunity. Therefore a set of persons temporarily employed cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment.

That would negate the rights of the others under the Constitution. The rule of law compels the State to make appointments as envisaged by the Constitution alone.

Temporary employees have no claim to be absorbed

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.

They who have never been selected under the relevant recruitment rules have no right to be absorbed in service.

Doctrine of legitimate expectation cannot be applied

When a person enters a temporary service or gets engagement as a contractual or casual worker without a proper selection under the recruitment rules or procedure, he is quite aware of the consequences of the appointment that it is temporary, casual or contractual in nature.

Such a person cannot invoke the theory of legitimate expectation to get confirmation in the post where an appointment could be made only by following a proper procedure.

Therefore, the theory of legitimate expectation cannot be advanced by temporary, contractual or casual employees.

State provides no promise when appoints temporarily

While engaging a person in temporary employment the State does not give any promise to make them permanent. The State cannot constitutionally make such a promise. The theory of such a promise cannot be invoked to seek a relief of being made permanent in the post.

That in certain cases the court had directed regularization of the employees involved in some cases in the past cannot be made use of to establish a claim based on legitimate expectation. That practice would run counter to the constitutional mandate.

Court cannot make temporary employees permanent

Over the years some of our higher courts have been issuing orders to make temporarily appointed employees permanent when they serve the institution for long.

But the Constitution Bench of the Supreme Court (SC) in Dr. Rai Shivendra Bahadur v The Governing Body of the Nalanda College (1962 AIR 1210) held that the court can issue a writ directing the government to make the temporary employees permanent only when the statute must impose a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it.

This verdict was reaffirmed by the Constitutional Bench of the SC in The Secretary, State of Karnataka v Umadevi.

Courts regularize temporary employees under wrong notion

When the courts direct that the casual or temporary appointments be regularized or made permanent, courts are swayed by the fact that the person has worked for a long time. In fact the person, who accepts an engagement either temporary or casual in nature, is aware of the nature of his employment. He accepts the employment with eyes open.

It would be inappropriate to jettison the constitutional scheme of appointment on that ground alone, and to direct that person who has temporarily or casually got employed should be continued permanently. By doing so, it will be creating an impermissible mode of public appointment.

Temporary appointment is essential

A total embargo on casual or temporary employment is not possible, when considering the exigencies of administration.

If such an embargo is imposed, it would deny some people get employment temporarily, contractually or casually.

Temporary job accepted knowing its consequences

When many citizens are in search of employment anyone who is unwilling to go in for temporary employment is not compelled to accept such an employment. Therefore the employment was accepted fully knowing the nature of it and its consequences. That means, while accepting the employment, the person concerned knows the nature of his employment.

The magnitude of the claim acquired by a person in a temporary post cannot enable the appointing authority in giving up the procedure for making regular appointments.

No injustice in discontinuing a temporary employee

The argument that since one has been working for long in the post, it will be unjust to discontinue him would fail when tested on the touchstone of constitutionality and equality of opportunity under Article 14 of the Constitution.

Equality in public employment a constitutional feature

Adherence to the rule of equality in public employment is a basic feature of our Constitution.

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 Article 14 read with Article 16 of the Constitution.

Therefore, the SC holds that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, it would not confer any right on the appointee.

Contractual employment should come to an end

If it is a contractual appointment, the appointment should come to an end at the end of the contract by efflux of time.  An engagement or appointment on daily wages or casual basis would naturally 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 merely because a temporary employee or a casual wage worker is continued for long. 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.

The court cannot prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who do not acquire any right.

High Court cannot make employees permanent

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.

Regularisation differs from permanent appointment 

The concepts of regularisation and permanent appointment are quite different.

Something that is irregular for want of compliance with one of the elements in the process of selection can be regularized. But a grant of permanence in employment is a totally different and that cannot be equated with regularisation.

Appointment made in violation of rule cannot be regularised

In A. Umarani v Registrar, Cooperative Societies and Others (2004 (7) SCC 112), a three judge bench 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. The SC also holds that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or the laws or rules framed thereunder.

Regularization furthermore cannot give permanence to an employee whose services are adhoc in nature. That some persons had been working for a long time would not mean that they had acquired a right for regularization.

Prior regularization need not be reopened

The court held that the regularisation, if any already made need not be reopened based on the 2006 judgment.

However there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed under the constitutional scheme.

No regularization of employees permissible post 2006

There may be cases where irregular appointments (not illegal appointments) 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 regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by the SC in the light of the above mentioned judgments. 

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 tribunal.

It should also be ensured that regular recruitments are undertaken to fill those vacant sanctioned posts that require being filled up, in cases where temporary employees or daily wagers are being now employed.

The process must have been set in motion within six months from the date of the judgment, the 10th of April 2006 and anytime later it should be done. 

If any government or state agencies make any temporary employees permanent subsequently in violation of this 2006 judgment in Umadevi case it would be an unconstitutional act.

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Category Constitutional Law, Other Articles by - K Rajasekharan