SUPREME COURT OF INDIA
Secretary, State of Karnataka and Others
Vs
Umadevi and Others
Writ Petition (Civil) 3595-3612 of 1999; Civil Appeal No.1861-2063/2001, 3849/2001, 3520-3524/2002; Civil Appeal No. 1968 of 2006 Arising Out of Slp(C)9103-9105 of 2001
(Y. K. Sabharwal, Arun Kumar,, JJ)
10.04.2006
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 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
, State of Haryana and Ors vs., Piara Singh and Ors. Reported in
and Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors.
Vs. State of Karnataka and Ors. Reported in , on the one hand and State
of Himachal Pradesh vs. Suresh Kumar Verma and Anr., reported in 3, State of Punjab vs. Surinder Kumar and Ors. Reported
in , and B.N. Nagarajan and Ors. Vs. State of Karnataka and Ors.,
reported in 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. . 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 this Court stated that it was a
mis-conception to consider that regularization meant permanence. In R.N.
NANJUNDAPPA Vs T. THIMMIAH & ANR. , 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. , 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. 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 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. 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 .
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 , 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 2, 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 2006 (1) JT 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 "
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.
2006 (2) JT 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 , 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 (S5) SCR 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 (S2)
SCR 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) SCR 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 1984 Indlaw HL 42, National
Buildings Construction Corpn. Vs. S. Raghunathan, 8
and Dr. Chanchal Goyal Vs. State of Rajasthan . 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 . 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.