1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-02-2019 CORAM THE HON'BLE MR.JUSTICE [ENTITY] W.P.No.29529 of 2018 And W.M.P.Nos.34497 and 34498 of 2018 [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] http: www.judis.nic.in 2 [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] http: www.judis.nic.in 3 [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] Petitioners - Vs. - [ENTITY], Represented by its Chairman, Central Office, Jeevan Bheema Marg, Yogakshema, Nariman Point, Mumbai-400 0[SECTION]. 2.The [ENTITY]. 3.The [ENTITY]. Respondents http: www.judis.nic.in 4 Prayer: Writ Petition filed under [SECTION] of the [ACT] of India praying to issue a Writ of Mandamus, directing the respondents to regularise the services of the petitioners herein as employees of the respondent-Corporation being Life Insurance Corporation of India or through a Scheme as similar to the one formed during 2011 by the respondent-Corporation, directing the respondent-Corporation to consider formulation of a Scheme as per what was envisaged in paragraph 53 of the judgment of the Hon'ble Supreme Court of India in [PRECEDENT] and directing the respondent-Corporation not to engage any temporary ewmployees or Badli/Daily wagers in future and make provisions for regular recruitment of Class III and IV staff. For Petitioners : Dr.[ENTITY] For Respondents : Mr.[ENTITY], Senior Counsel for Mr.[ENTITY]. ORDER
The relief sought for in this writ petition is for a direction to direct the respondents to regularise the services of the writ petitioners as employees of the respondent-Corporation being Life Insurance Corporation of India or through a Scheme as similar to the one formed during 2011 by the respondent-Corporation and to consider formulation of a Scheme as per what was envisaged in paragraph 53 of the judgment of the Hon'ble Supreme Court of India in [PRECEDENT] and to http: www.judis.nic.in direct the respondent-Corporation not to engage any temporary employees or Badli/Daily wagers in future and make provisions for regular recruitment of Class III and IV staff.
2. The learned Senior Counsel, appearing on behalf of the writ petitioners, states that the writ petitioners were engaged in various Branch Offices of the respondent-Corporation in the cadre of Sub-Staff for long duration varying from 7 to 10 years. The writ petitioners had been continuously engaged in the cadre of Sub Staff without any break-in-service. The writ petitioners were doing the work of Sub-Staff in the Class IV cadre with the respondent-Corporation.
3. The service conditions and recruitment of employees in the respondent-Corporation is governed by [ACT], [ACT] and [ACT]. As per Statutes, the respondent-
Corporation can engage only two category of employees i.e., Permanent Employee and Temporary Employee. The recruitment procedures and the conditions of recruitment are clearly mentioned in the governing rules. The respondent-Corporation has been following http: www.judis.nic.in the practice of engaging temporary/Badli and Daily wage workers eversince 1987 to till date. Thus, the illegal and arbitrary action of engagement of workers by the respondent-Corporation against the rules are agitated before the Court of Law.
4. The learned Senior Counsel for the writ petitioners states that all along the writ petitioners are allowed to work in the respondent-Corporation without any break in service and therefore, their services are to be regularised in a regular sanctioned post in the time scale of pay. The learned Senior Counsel for the writ petitioners is of an opinion that long period of service of the writ petitioners should be considered for grant of regularisation of their services.
5. This Court is of an opinion that regularisation or permanent absorption cannot be granted contrary to the Recruitment Rules in force. Equal opportunity in public employment is the [ACT]al mandate. All appointments to the public posts are to be done only under the [ACT]al Schemes and by following the procedures contemplated under the Rules. The Authorities Competent, while undertaking the process of selection, are bound to follow the Rules in force.
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6. It is not as if the Competent Authorities can engage persons as part time employees or temporary employees and allow them to work for long years and grant regularisation or permanent absorption. Such procedures will infringe the constitutional rights of all other eligible persons, who all are aspiring to secure public employments by participating in the Open Competitive Process. Large number of youths in this Great Nation are burning their midnight lamps for the purpose of securing public employments through Open Competitive Process. By appointing persons through back door entries, the constitutional rights of all those eligible and meritorious candidates are deprived. Thus, this Court cannot grant regularisation or permanent absorption in violation of the Recruitment Rules in force.
7. Though the writ petitioners were appointed as Sub Staff, the writ petitioners are unable to produce their appointment orders issued by the respondent-Corporation to that effect. Thus, it is to be construed that the writ petitioners were engaged as Sub Staff employee and were allowed to continue in the service by the authorities concerned.
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8. Mere continuance of service as a part time employee will not confer any rights on the writ petitioners to claim regularisation or permanent absorption. A larger interest of the people at large is to be considered with reference to the [ACT]al mandates and perspectives. If such back door employments are encouraged by the Courts and the Authorities, then the rights of all other eligible and meritorious persons are infringed. Equal opportunity is to be maintained in its real spirit and the Authorities Competent should be restrained from engaging such part time and temporary employees without any valid reasons and in violation of the Rules in force.
9. Temporary engagements can be done with reference to the projects, which are to be completed within a specified period. The employees appointed on temporary basis and on contract basis, accept the terms and conditions and served in the Department. Once they accepted the terms and conditions of the service, either as contractual or as temporary, they are bound to accept the order of ousting issued to them. Contrarily, mere continuance at the instance of the Authorities, will not confer any legal right on such employees to claim regularisation or permanent absorption, which is otherwise in violation of the Recruitment Rules in force.
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10. The [ACT] Bench of the Honourable Supreme Court of India, in the case of [PRECEDENT], laid down the legal principles in the matter of regularisation, permanent absorption and the relevant paragraphs are as under:-
"5. 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 individualisation 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 [ACT] 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 [ACT] http: www.judis.nic.in Bench.
10. 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 [ENTITY]., State of Karnataka v. Umadevi (1) [(2004) 7 SCC 1[SECTION] : 2004 SCC (L&S) 935 : (2003) 9 Scale 187] . This Court noticed that in the matter of regularisation 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 [ACT] 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 [ENTITY]., [PRECEDENT] . It appears to be proper to quote that order of reference at this stage. It reads: (SCC p. 45, paras 1-5) 1. Apart from the conflicting opinions between the three-Judge Bench decisions in Ashwani Kumar v. State of Bihar [(1997) 2 SCC 1 : 1997 SCC (L&S) 465 : 1996 Supp http: www.judis.nic.in (10) SCR 120] , State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) [SECTION] ATC 403 : (1992) 3 SCR 826] and Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :
(1990) 12 ATC 902 : (1990) 1 SCR 544] on the one hand and [PRECEDENT] , State of Punjab v.
Surinder Kumar [(1992) 1 SCC 489 : 1992 SCC (L&S) 345 : (1992) 19 ATC 500 : AIR 1992 SC 1593 : 1991 Supp (3) SCR 553] and [PRECEDENT] on the other, which have been brought out in one of the judgments under appeal of the Karnataka High Court in [PRECEDENT]] , decided on 1-6-2001 the learned Additional Solicitor General urged that the scheme for regularisation is repugnant to [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] and, therefore, these cases are required to be heard by a Bench of five learned Judges ([ACT] Bench).
2. On the other hand, Mr [ENTITY], http: www.judis.nic.in learned Senior Counsel, appearing for the employees urged that such a scheme for regularisation is consistent with the provisions of [SECTION] and [SECTION] of the [ACT].
3. Mr [ENTITY], learned counsel appearing in [CASE NUMBER], has filed the GO dated 19-7-2002 and submitted that the orders have already been implemented.
4. After having found that there is conflict of opinion between the three-Judge 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 the 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.
12. 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 http: www.judis.nic.in sanctioned and that are required to be filled in terms of the relevant procedure established by the [ACT] 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 recognised and there is nothing in the [ACT] 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 recognised 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 the Courts whether acting under [SECTION] of the [ACT] or under [SECTION] of the [ACT], 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.
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13. 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 [ACT] for appointment to posts. It cannot also be forgotten that it is not the role of the 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 [ACT]. 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 [ACT] Bench in State of Punjab v. Jagdip Singh [(1964) 4 SCR 964 : AIR 1964 SC 5[SECTION]] http: www.judis.nic.in . It was held therein: ([CASE NUMBER]) 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.
14. During the course of the arguments, various orders of the 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 the legal principles and it is time that this Court settled the law once and 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 the http: www.judis.nic.in 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 regularisation in [PRECEDENT] all those appointed temporarily at any point of time would be entitled to be regularised 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 regularised. 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 http: www.judis.nic.in 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.
20. The decision in [PRECEDENT] 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 regularisation, 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 http: www.judis.nic.in individualise 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 [SECTION] of the [ACT], 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 [ACT]. 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 selfsame judgment not only create confusion but also tend to usher in http: www.judis.nic.in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor's foot.
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our [ACT] and since the rule of law is the core of our [ACT], a court would certainly be disabled from passing an order upholding a violation of [SECTION] or in ordering the overlooking of the need to comply with the requirements of [SECTION] read with [SECTION] of the [ACT]. 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 http: www.judis.nic.in 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. The High Courts acting under [SECTION] of the [ACT], should not ordinarily issue directions for absorption, regularisation, 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 the 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 http: www.judis.nic.in 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.
44. 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 [ACT] 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 http: www.judis.nic.in 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 [PRECEDENT] 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 [SECTION] or [SECTION] of the [ACT] or in exercise of power under [SECTION] of the [ACT] permitting http: www.judis.nic.in 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.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 open eyes. It may be true that he is not in a position to bargainnot at arm's lengthsince 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 http: www.judis.nic.in 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 succour 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 http: www.judis.nic.in 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 [SECTION] of the [ACT].
46. 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 regularised since the decisions in Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :
(1990) 12 ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) [SECTION] ATC 403 : (1992) 3 SCR 826] , Jacob [Jacob M. Puthuparambil v.
Kerala Water Authority, (1991) 1 SCC 28 :
http: www.judis.nic.in 1991 SCC (L&S) 25 : (1991) 15 ATC 697] and [PRECEDENT] and the like, have given rise to an expectation in them that their services would also be regularised. 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 [ENTITY] in [PRECEDENT]] , National Buildings Construction Corpn.
v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] and [PRECEDENT] http: www.judis.nic.in SCC (L&S) [SECTION]2] .] There is no case that any assurance was given by the Government or the department concerned 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 [PRECEDENT]. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases 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 regularised in the service though http: www.judis.nic.in they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation 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.
47. 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 recognised 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 cases concerned, 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 http: www.judis.nic.in 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.
48. It was then contended that the rights of the employees thus appointed, under [SECTION] and [SECTION] of the [ACT], 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 department concerned 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 http: www.judis.nic.in 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 [SECTION] and [SECTION] of the [ACT]. 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 [SECTION] and [SECTION] of the [ACT] are therefore overruled.
49. It is contended that the State action in not regularising 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 [ACT] and in the manner we have indicated earlier.
http: www.judis.nic.in 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 [SECTION] and [SECTION] of the [ACT].
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of http: www.judis.nic.in bargaining power, the action of the State in not making the employees permanent, would be violative of [SECTION] of the [ACT]. 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 [ACT] as one of its basic features, has included [SECTION], [SECTION] and [SECTION] 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 [SECTION] of the [ACT], 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 [SECTION] of the [ACT], assuming that we are in a position to hold that the right to employment is also a right coming within the purview of [SECTION] of the [ACT].
The argument that [SECTION] of the [ACT] is breached because the
employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their http: www.judis.nic.in 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."
11. Subsequently, the Hon'ble Supreme Court of India reiterated the legal principles settled by the [ACT] Bench in the case of [PRECEDENT].[ [PRECEDENT]]. In paragraph No.8, the Hon'ble Supreme Court has observed as follows:
8.this Court in [PRECEDENT], has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
(i) The High Courts, in exercising power under [SECTION] of the [ACT] will not issue directions for regularisation, absorption or permanent continuance, http: www.judis.nic.in unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in [SECTION] and [SECTION] should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-
wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment 5 Page 6 cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number http: www.judis.nic.in of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. (Emphasis added)
12. Even, the Hon'ble Supreme Court of India, in a recent case of State of Tamil Nadu through [PRECEDENT] and the relevant paragraphs [SECTION], 17, 18, 19 and 20 are extracted hereunder:-
http: www.judis.nic.in [SECTION]. In [PRECEDENT] , this Court has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and this Court clearly laid down that part-
time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part-time employees in government-run institutions can in no case claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Relevant excerpt from the said judgment is as under: (SCC pp. 435- 36, para 12) 12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under [SECTION] of the [ACT] will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in http: www.judis.nic.in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in [SECTION] and [SECTION] should be scrupulously followed and courts should not issue a direction for regularisation of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and http: www.judis.nic.in sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts.
There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full-
http: www.judis.nic.in time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.[See State of Karnataka v. Uma Devi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] , M. Raja v. CEERI Educational Society[M.
Raja v. CEERI Educational Society, (2006) 12 SCC 636 : (2007) 2 SCC (L&S) 334] , [PRECEDENT] , [PRECEDENT] and Official Liquidator v. Dayanand [Official Liquidator v. Dayanand, (2008) 10 SCC 1 :
(2009) 1 SCC (L&S) 943] .] (emphasis supplied)
17. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said GOMs No. 22 dated 28-2-2006 and directed the appellants to grant regularisation of respondent's service from http: www.judis.nic.in the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per GOMs No. 22 dated 28-2-2006, the services of employees working in various government departments on full-
time daily-wage basis, who have completed more than ten years of continuous service as on 1-1-2006 will be regularised and not part-time masalchis like the respondent herein. In GOMs No. 84 dated 18-6-2012, the Government made it clear that GOMs No. 22 dated 28-2-2006 is applicable only to full-time daily wagers and not to part-time daily wagers. The respondent was temporarily appointed part-time worker as per [ACT] and his appointment was completely temporary. The respondent being appointed as part-time masalchi, cannot compare himself to full-time daily dated 28-2-2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under GOMs No. 22 dated 28-2-2006.
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18. The learned Single Judge erred in extending the benefit of GOMs No. 22 dated 28-2-2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 1-4-1989 and completed ten years of service on 31-3- 1999. As rightly contended by the learned Senior Counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is, from 1-4-1999 till the date of his regularisation, that is, 18-6-2012, the financial commitment to the State would be around Rs 10,85,113 (approximately) towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned Senior Counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularised under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularisation of the http: www.judis.nic.in respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.
19. It is pertinent to note that even the regularisation of services of part-time employees vide G.O. (Rt.) No. 505 Finance (AA-2) Department dated 14-10-2009 and G.O. (2D) No. [SECTION] Finance (T.A. 2) Department dated 26-3-2010 was effected by extending the benefit of G.O. dated 28- 2-2006 only from the date of government orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that GOMs No. 22 P & AR Dept. dated 28-2-2006 is applicable only to full-time daily-wage employees and who had completed ten years of continuous service as on 1-1-2006 and not to part-time employees. As per G.O. (Rt.) No. 84 dated 18-6-2012, the respondent is entitled to the monetary benefits only from the date of issuance of government order regularising his service, that is, 18-6-2012. The impugned order [[PRECEDENT], Writ Appeal http: www.judis.nic.in No. 1209 of 2012, decided on 4-7-2012 (Mad)] of the Division Bench affirming the order [[PRECEDENT], order dated 26-11-2010 (Mad)] of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside.
20. In the result, the impugned order is set aside and this appeal is allowed. No costs.
13. The Apex Court in unequivocal terms held that the High Courts, in exercising power under [SECTION] of the [ACT] will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in [SECTION] and [SECTION] should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the [ACT]al Schemes.
http: www.judis.nic.in
14. Now the law is settled in respect of grant of regularization or permanent absorption. It is not as if the Authorities Competent can engage persons as Part Time employees and on temporary basis and allow them to work for long years and thereafter submit proposals for regularization and permanent absorption contrary to the Service Rules in force. Such a practice is to be deprecated. The State must initiate actions against all such officials, who all are involving in such irregularities and illegalities in public employments.
15. With the above observations, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
28-02-2019 Index:Yes.
Internet: Yes.
Speaking Order Svn http: www.judis.nic.in To
1.The Chairman, Life Insurance Corporation of India, Central Office, Jeevan Bheema Marg, Yogakshema, Nariman Point, Mumbai-400 0[SECTION].
2.The [ENTITY].
3.The [ENTITY].
http: www.judis.nic.in [ENTITY], J.
Svn [CASE NUMBER] 28-02-2019 http: www.judis.nic.in