STATE OF JAMMU AND KASHMIR & ORS versus DISTRICT BAR ASSOCIATION, BANDIPORA
[2016] 12 S.C.R. 106, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Facts
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[2016) 12 S.C.R. 106 
STATE OF JAMMU AND KASHMIR & ORS 
v. 
DISTRICT BAR ASSOCIATION, BANDIPORA 
(Civil Appeal No. 11941 of2016) 
DECEMBER 08, 2016 
[T. S. THAKUR, CJI, DR. D. Y. CHANDRACHUD AND 
L. NAGESWARA RAO, JJ.] 
Service Law: 
Regularization - PIL seeking construction of District court 
complex - High Court proceeded to issue directions for en masse 
regularization of services of daily rated workers engaged in High 
Court - Held: High Court proceeded without considering relevant· 
constitutional and legal principles enunciated in the judgments of 
D Supreme Court regarding regularization of employees - On facts, 
the directions issued were totally unconnected to the reliefs sought 
in the PIL - The State Government had constituted an empowered 
Committee to inquire into the issue of creating posts for 
regularization of daily rated and casual workers -
High Court, 
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however, pre-empted consideration by issuing direction for 
regularization - Further, lack of clarity in actual nu111ber of daily 
rated workers in the High Court and district judiciary and who 
among them eligible to be considered for regularization, yet to be 
determined - High Court erred in holding that daily rated workers 
in High Court would not be governed by SRO 64 of 1994 - Impugned 
order of the High Court directing regularization of e111ployees set 
aside - Public Interest Litigation . 
. While hearing a PIL instituted by the District Bar Association for 
construction of a District
Court Complex, the High Court took note of an 
application filed by the daily rated workers engaged in the High Court 
and passed an interim order observing that the State is duty bound to 
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consider claim of the daily rated workers and as a "one time exception" 
regularize their services. SLP filed by the State government against the 
interim order was dismissed. Subsequently, the High Court issued a 
further direction in which notice was taken of the fact that the State 
government had, over a considerable.period of time, failed to create the 
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STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
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ASSOCIATION, BANDIPORA 
required number of posts for the State judiciary. The High Court took 
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the view that following the dismissal of the said SLP, the State was duty 
· bound to create posts for the absorption of daily rated workers. 
Disposing of the appeal, the Court 
HELD: 1. Regularisation is not a source of recruitment nor 
is it intended to confer permanency upon appointments which 
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have been made without following the due process envisaged by 
Articles 14 and 16 of the Constitution. Essentially a scheme for 
regularisation, in order to be held to be legally valid, must be 
one which is aimed at validating certain irregular appointments 
which may have come to be made in genuine and legitimate c 
administrative exigencies. In all such cases it may be left open to 
Courts to iift the veil to enquire whether the scheme is aimed at 
achieving the above objective and is a genuine attempt at 
validating irregular appointments. The State and its 
instrumentalities cannot be permitted to use this window to 
validate illegal appointments. The second rider which must D 
necessarily be placed is that the principle as formulated above is 
not meant to create or invest in a temporary or ad hoc employee 
the right to seek a writ commanding the State to frame a scheme 
for regularisation. Otherwise, this would simply reinvigorate a 
class of claims which has been shut out permanently in Uma Devi 
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case. Ultimately, it would
have to be left to the State and its 
instrumentalities to consider whether the circumstances warrant 
such a scheme being formulated. The formulation of such a 
scheme cannot be accord~d the status of an enforceable right. It 
would be prudent to leave it to a claimant to establish whether he 
or she falls within the exceptions carved out in paragraph 53 of F 
Uma Devi case and falls within the ambit of a scheme that may be 
formulated by the State. Subject to the riders referred to above, 
a scheme of regularisation could fall within the permissible limits 
of Uma Devi and be upheld. [Para 19) (127-C-G] 
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2. The High Court proceeded to issue directions for 
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regularization without considering either the legal position · 
enunciated in the judgments of Supreme Court and without 
considering the prevailing rules and regulations on the subject. 
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While some of the daily rated workers have been engaged over 
long periods of time, others have been engaged as recently as in 
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[2016] 12 S.C.R. 
A 2015. 
The issue of whether such appointments were irregular 
or wlrcther they were illegal should have been determined but 
has not been considered. Since the issue of regularization is a 
matter with which the State government is seized, as stated in 
the proceedings, therefore, at this stage it would be appropriate 
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and proper to set aside the impugned order of the High Court 
which directs the regularization en masse of two hundred nine 
daily rated workers. While doing so, the proceedings are restored 
back to the High Court for reconsideration. [Paras 22, 23] [129-
B-C; F-H] 
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Renu v. District & Sessions Judge, Tis Hazari Courts, 
Delhi (2014) 14 SCC 50 : 2014 (2) SCR 537; Secretary, 
State of Karnataka v. Umadevi (2006) 4 SCC"l : 2006 
(3) SCR 953; Amarendra Kumar Mahapatra v. State 
of Orissa (2014) 4 SCC 583 : 2014 (2) SCR 1031 -
relied on. 
Maharashtra SRTC v. Casteribe Rajya Parivahan 
Karmchari Sanghatana (2009) 8 SCC 556; Surendra 
Kumar v. Greater_ Naida Industrial Development . 
Authority (2015) 14 SCC 382; State of Karnataka v. 
G. V. Chandrashekar (2009) 4 SCC 342 : 2009 (3) 
SCR 624; In Employees' Union v. Mineral Exploration 
Corpn. Ltd. (2006) 6 SCC 310 : 2006 (4) Suppl. 
SCR 87; National Fertilizers Ltd. v. Somvir Singh (2006) 
5 SCC 493 : 2006 (2) Suppl. SCR 397; State of MP. 
v. Lalit Kumar Verma (2007) 1 SCC 575: 2006 (9) Suppl. 
SCR 591; Post Master General v. Tutu Das (Dutta)
(2007) 5 sec 317 : 2001 (5) SCR 1117; Official 
Liquidator v. Dayanand (2008) 10 SCC 1 : 2008 (15) 
SCR 331 - referred to. 
Case Law Reference 
2014 (2) SCR537 
relied on 
Paras 
2006 (3) SCR 953 
relied on 
Para9 
(2009) s sec 556 
referred to 
Para 11 
2014 (2) SCR 1031 
-relied on 
Para 12 
(2015) 14 sec 382 
referred to 
Para 15
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
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ASSOCIATION, BANDIPORA 
2009 (3) SCR624 
referred to 
Para 16 
2006 (4) Suppl. SCR 87 
referred to 
Para 17 
2006 (2) Suppl. SCR397 
referred to 
Para 17 
2006 (9) Suppl. SCR591 
referred to 
Para 17 
2007 (5) SCR 1117 
referred to 
Para 17 
2008 (15) SCR 331 
referred to 
Para 18 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11941 
of2016. 
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From the Judgment and Order dated 01.12.2015 and 10.08.2016 
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of the High Court of Jammu and Kashmir at Srinagar in OWP No. 260 
Of2014. 
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Dr. Rajeev Dhawan, Sr. Adv., Sunil Fernandes, Ms. Astha Sharma, 
Puneeth K. G., N ikesh Tyagi, Ad vs. for the Appellants. 
The Judgment of the Court was ~elivered by 
DR. D. Y. CHANDRACHUD;·J. I. Delay condoned. Leave 
granted. 
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2. The State of Jammu and Kashmir seeks to challenge the orders 
dated 1 December 2015 and I 0 August 2016 of a Division Bench of the 
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High Court in a Public Interest Litigation instituted by the District Bar 
Association, Bandipora. The grievance of the Bar Association was that 
since the creation of the district ofBandipora in 2007, the Sessions Court 
has been housed in a building which used to be a part of the Munsif's 
Court Complex. The Principal District and Sessions Judge, Chief Judicial 
Magistrate and Munsif discharge their judicial functions in a building 
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which lacks basic amenities. On 30 November 2013 during the course 
of a mega Lok Adalat, the Administrative Judge expressed the view that 
a
suitable plot of land is urgently required for the District Court. This 
was communicated by the Additional Deputy Commissioner to the 
Tehsildar on 30 November 2013. A direction was sought for the transfer 
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of certain land which is stated to have been earmarked for the 
construction of the District CoUI1 Complex or, in the alternative, for the 
provision of a suitable site. Provision of proper amenities was sought. 
3. During the course of the hearing of the Public Interest Litigation. 
the Division Bench noted in an order dated 7 October 2015 that an 
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f2016l 12 S.C.R. 
application had been filed by the daily rated workers engaged in the 
High Court at Srinagar (MPI/2015). The Advocate General informed 
the Division Bench that a direction had been issued by a co-ordinate 
Bench in a writ petition filed by the daily rated workers requiring the 
State to file its response. 
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4. By its interim-direction dated. 7 October 2015, the Division Bench 
ordered thus : 
"Respondent- State is duty bound to consider claim of the 
daily rated workers and as a "one time exception" regulaiize 
their services. Commissioner Secretary to Government, 
Department of Law, Justice and Parliamentary Affairs, to 
file Status Report about this aspect of the matter as well 
before next date of hearing." 
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A Special Leave Petition filed by the state ggyernment against 
'the interim order of the High Court was dismissed by this Court on 16 
December 2015. 
5. On 1 December 2015, the Division Bench issued a further 
direction in which notice was taken of the fact that the state government 
had, over a considerable period of time, failed to create the required 
number of posts for the state judiciary. As a result, and in order to 
ensure that the work of the courts was not hampered, arrangements 
were made to engage persons on a daily wage basis. The High Court 
observed that the state government is duty bound to create an equal 
number of posts for the absorption of daily rated employees at the
earliest. 
The observations of the High Court are extracted below: 
"It is submitted that considerable period of time, the 
Government has not created required number of posts for· 
the State Judiciary. It is also submitted that because of dearth 
pf staff, the work in the courts was hampered. It is also 
submitted that in order to ensure that the work of the courts 
do not suffer and until such time posts are created by the 
Government, which is tlw Constitutional responsibility of 
the State, it was deemed necessary to make engagements_ 
on daily wage basis. It is submitted that this step was taken 
to ensure that the judicial work does not suffer: This class 
of employees in essence are the substitute for regular 
employees posts which the Government was duty bound to.
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
create. These Daily Rated Workers would not be regulated 
by the rules governed by SRO 64of1994. The information 
has been already provided to the Government about these 
persons who have been engaged in Daily wage Basis and 
the Government shall have to create equal number of posts 
in the State Judiciary for their absorption which action is to 
be taken independent of the Rules notified vide SRO 64 of 
1994. The information has been already provided to the 
Government about these persons who have been engaged 
on Daily Wage Basis and the Government shall have to 
create equal number of posts in the State Judiciary for their 
absorption which action is to be taken independent of the 
Rules notified vide SRO 64 of 1994. The daily wagers 
constitute a class in themselves. 
The stand taken by the respondents in the aforesaid 
additional information would not thus affect the rights of 
the persons who have been engaged on Daily Wages Basis 
in the State Judiciary. The State is duty bound to create 
equal number of posts for their absorption, inasmuch as no 
guarantee of status as Government employee. The State 
Government besides being duty bound to provide complete 
infrastructure and paraphernalia area which include creation 
of posts are duty bound to create posts are those persons 
engaged on Daily rated Basis at the earliest". 
6. On I 0 August 2016 when the petition was taken up
by the High 
Court, the Additional Advocate General submitted that the Registrar 
General had addressed a communication on 23 April 2014 for the 
regularization of 188 daily rated workers engaged from time to time in 
the High Court and subordinate courts. However, the annexure enclosed 
to the communication contained a list of 228 workers. Hence, on 27 
July 2016 a clarification was sought in regard this discrepancy in numbers. 
On 29 July 2016 the-Registrar General clarified that the actual strength 
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of daily rated workers in the High Court was 98 (and not 58 as incorrectly 
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stated earlier) and that the correct number of workers engaged in the 
High Court and district courts together was 228. The current strength 
of daily rated workers was stated to be 209. The High Court took the 
view that following the dismissal of the Special Leave Petition by this 
Court against its interim order'1he state was duty bound to create 209 
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[2016] 12 S.C.R. 
posts for the absorption of the daily rated workers. The statement of 
theAAG was recorded on instructions that 209 Class IV posts would be 
created within three weeks. However, the High Court proceeded to 
issue a notice to show cause to Mr. Mohammad Ashraf Mir, the then 
Commissioner/Secretary to the State Government in the Department of 
Law, Justice and Parliamentary Affairs, for having made an incorrect 
statement on 15 July 2016 that the State Government had already taken 
steps for implementing the order of the High Court to create additional 
posts. The State Government is in appeal. 
7. By an order dated 5 September 2016, the Secretary to the 
Department of Law in the State Government _was directed to secure 
relevant information about the date of joining of all the daily wage 
employees working in the High Court of Jammu and Kashmir and to file 
it on affidavit before this Court. Pursuant thereto, an affidavit has been 
filed stating that the information received from the Registrar General of 
the High Court indicates that two hundred and nine daily wage employees 
are working in the High Court and the district judiciary in the State. The 
information which has been placed on the record indicates that: 
(i) Fifty d~ily wage employees are engaged in the Jammu wing of 
the High Court whose dates of engagement fall between August 2001 
and March 2015; 
(ii) Eleven sewaks are employed in the Jammu wing
with dates of 
engagement falling between February 2011 and February 2016; 
(iii) Forty five daily wagers are engaged in the Srinagar wing of 
the High Court with dates of engagement between May 1998 and January 
2015; 
(iv) Two daily wagers an: posted in the main wing, being recruited 
in 2008 and 2013; 
(v) Thirty seven daily wagers are engaged in ten districts of the 
Jammu region and sixty four are engaged in twelve districts in Kashmir. 
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While one of them in District Kulgam was engaged as tdr back as in 
1984, the most recent of those engaged (District Badgam) is in March 
2014; and 
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(vi) Of the two hundred and nine daily wage employees, one 
hundred and one are engaged in the district courts while one hundred 
and eight are engaged in the High· Court, both at Jammu and Srinagar.
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
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ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
8. The first submission that has been urged is that the direction 
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· issued by the High Court is contrary to the law laid down by this Court in 
Renu v. District & Sessions ~udge, Tis Hazari Courts, Delhi1• 
9. The issue which arises must be viewed bearing in mind the 
essence of the judgment of the Constitution Bench in Secretary, State 
ofKarnataka v. Umadevi2 and subsequent judgments which followed 
it. In the judgment of the Constitution Bench, the following two issues 
primarily fell for consideration : 
(i) The right of employees seekiµg regularization on the strength 
of long and coi1tinuous work; and 
(ii) The correctness of directions issued by courts.tor 
regularisation of employees under Article 226 of the Constitution. 
The decision in Umadevi dealt firstly with the right claimed by 
temporary employees to be regularised in service on the basis of long 
continuance, legitimate expectations, employment under the State and 
the Directive Principles. The second salient qu~stion which the 
Constitution Bench was called upon to answer was whether courts 
would be justified in issuing directions for regularisation based on such 
features such as equality and long spells of service. On both counts 
the Constitution Bench held against the temporary employees. 
However Umadevi is not an authority for the proposition that 
the executive or the legislature cannot frame a
scheme for regularisation. 
Uma Devi does not denude the State or its instrumentalities from 
framing a scheme for regularisation. In paragraph 53 of the decision, 
this Court held as follows : 
"53. One aspect needs to be clarified. There may be cases 
where irregular appointments (not illegal appofotments) as · 
explained in State of Mysore v. S.V. Narayanappa, R.N. 
Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State. 
of K!trnataka and referred to in para 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 the courts or of tribunals. The question of 
regularisation of the services of such employees may ha~e 
1 (2014) 14 sec so 
2 (2006) 4 sec 1 
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[2016] 12 S.C.R. 
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 regularise 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 the comis 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 regularisation, if any already made, but not sub judice, 
need not be reopened based on this judgment, but there 
should be no further bypassing of the constitutional 
requirement and regularising or making permanent, those 
not duly appointed as per the constitutional scheme." 
10. The third aspect of Umadevi which bears notice is the 
distinction between an "irregular" and "illegal" appointment. While 
answering the question of whether an appointment is irregularor illegal, 
the Court would have to enquire as to whether the appointment process 
adopted was tainted by the vice of non-adherence to an essential 
prerequisite or is liable to be faulted on
account of the lack of a fair 
process ofrecruitment. There may be varied circumstances in which an 
ad hoc or temporary appointment may be made. The power of the 
employer to make a temporary appointment, if the exigencies of the 
situation so demand, cannot be disputed. The exercise of power however 
stands vitiated if it is found that the exercise undertaken (a) was not in. 
the exigencies of administration; or (b) where the procedure adopted 
was violative of Articles I 4 and 16 of the Constitution; and/or ( c) where · 
the recruitment process was overridden by the vice of nepotism, bias or 
ma/a fides. If the appointment process is not vitiated by any of the 
above faults, can it be said that appointments made as an 'outcome of 
such an exercise cannot be regularised under a scheme framed.in that 
regard by the employer? This is particularly when the employer himself 
proceeds to frame a scheme to bring these employees within the 
protective umbrella of regular service without the intervention or
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
command of a court direction. This is the issue to which we turn. We 
propose to analyse the precedents before formulating the principles. 
11. Dealing with the issue of whether Labour Courts are denuded 
of authority to direct regularization pursuant to labour enactments, this 
Court in Maharashtra SRTC v. Casteribe Rajya Parivahan 
Karmchari Sanghatana3, held thus : 
"34. It is true that Dharwad Distt. PWD Literate Daily 
Wages Employees' Assn. arising out of industrial 
adjudication has been co11sidered in Umadevi (3) and that 
decision has been held to be not laying down the co~rect 
law but a careful and complete reading of the decision in 
Umadevi (3) leaves no manner of doubt that what this 
Court was concerned in Umadevi (3) was the exercise of 
power by the High Courts under A1ticle 226 and this Comt 
under Article 32 of the Constitution oflndia in the matters 
of public employment where the employees have been 
engaged as contractual, temporary or casual workers not 
based on proper selection as recognised by the rules or 
procedure and yet orders of their regularisation and 
conferring them status of permanency have been passed. 
35. Umadevi (3) is an authoritative pronouncement for the 
proposition that the Supreme Court (Article 32) and the 
High Courts (Artkle 226) should not issue directions of 
absorption, regularisation or permanent continuance of 
temporary,
contractual, casual, daily wage or ad hoc 
employees unless the recruitment itself was made regularly 
in terms of the constitutional scheme. 
36. Umadevi (3) does notdenude the Industrial and Labour 
Courts of their statutory power under Section 30 read with 
Section 32 of the MRTU and PULP Act to order 
permanency of the workers who have been victims of 
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unfair labour practice on the part .of the employer under 
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Item 6 of Schedule IV where the posts on which they have 
been working exist. Umadevi (3) cannot be held to have 
overridden the powers of the Industrial and Labour Courts 
·in passing appropriate order under Section 30 of the 
' (2009) s sec 556 
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[2016] 12 S.C.R. 
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MRTU and PULP Act, once unfair labour practice on the 
part of the employer under Item 6 of Schedule IV is 
established." 
The labour legislation \n that case was the Maharashtra 
Recognition ofTrade Unions and Prevention of Unfair Labour Practices 
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Act, 1971. 
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12. The decision in Renu v. District and Sessions Judge, Tis 
Hazari Courts, Delhi' dealt with appointments which were shown to 
be illegal and the outcome of arbitrariness. It was in that backdrop that 
the following observations came to be made : 
"f This Court had appointed Shri P.S. Narasimha, learned 
Senior Counsel as amicus curiae to assist the Court. The 
matter was heard on 28-1-2014 and deliberations took 
place at length wherein all the learned counsel appearing 
for the States as well as for the High Courts suggested 
that the matter should be dealt with in a larger perspective 
i.e. also for appointments ofemployees in the High Court 
and courts subordiirnte 'to the High Court which must 
include Class IV posts also. A large number of instances 
have been pointed out on the basis of the information 
received under the Right to Information Act,. 2005 of cases 
not only of irregularity but of favouritism also in making 
such appointments. It has been suggested by the learned 
counsel appearing in the matter that this Court has a duty 
not only to check illegality, irregularity, corruption, nepotism 
and favouritism in judicial
institutions, but also to provide 
guidelines to prevent the menace of back-door entries of 
employees who subsequently are ordered to be regularised. 
27. To say that the Chief Justice can appoint a person 
without following the procedure provided under Articles 14 
and 16 would lead to an indefinite conclusion that the Chief 
Justice can dismiss him also without holding any inquiry 
or following the principles of natural justke/Rules, etc. for 
as per Section 16 of the General Clauses Act, I 897, power 
to appoint includes power to remove/suspend/dismiss. 
(Vide Pradyat Kumar Bose v. High Court of Calcutta [AIR 
'(2014) 14 sec so
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
1956 SC 285) and Chief Justice of A.P. v. L.V.A. Dixitulu 
[(1979) 2 sec 34 : 1979 sec (L&S) 99) .) But as no 
employee can be removed without following the procedure 
prescribed by law or in violation of the terms of his 
appointment, such a course would not be available to the 
Chief Justice. Therefore, the natural corollary of this is that 
the Chief Justice cannot make any appointment in 
contravention of the statutory rules, which have to be in 
consonance with the scheme of our Constitution." 
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This Court considered the modalities adopted by the High Courts 
across the country in making recruitments and issued directions to ensure 
that appointments made by judicial institutions are in accordance the 
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principle ofequality ofopportunity enshrined in Articles 14 and 16 of the 
Constitution. Emphasizing the principle of°transparency in public 
appointment, this Court observed that : 
"Another important requirement of public appointment is 
that of transparency. Therefore, the advertisement must 
specify the number of posts available for selection and 
recruitment. The qualifications and other eligibility criteria 
for such posts should be explicitly provided and the schedule 
ofrecruitment process should be published with certainty 
and clarity. The advertisement should also specify the rules 
under which the selection is to be made and in absence of 
the rules, the
procedure under which the selection is likely 
to be undertaken. This is necessary to prevent arbitrariness 
and to avoi~ change ofcriteria of selection after the selection 
process is commenced, thereby unjustly benefiting someone 
at the cost of others. 
Thus, the aforesaid decisions are an authority on prescribing 
the limitations while making appointment against public ~sts 
in terms of Articles 14 and 16 of the Constitution. What 
has been deprecated by this Court time and again is "back-
door appointments or appointments dehors the rules"." 
The power that is vested in the Chief Justice of the High Court 
under Article 229( 1) is, the Court held, subject to Article 16 : 
"the law can be summarised to the effect that the powers 
under Article 229(2) of the Constitution cannot be exercised 
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f2016112 S.C.R. 
by the Chief Justice in an unfettered and arbitrary manner. 
Appointments should be made giving adherence to the 
provisions of Articles 14and16 of the Constitution and/or 
such rules as made by the legislature". 
13. Four fundamental principles emerge from the decision of this 
Court in Renu. The first principle is that Article 235 enables the High 
Court to exercise complete administrative control over the district judiciary 
which extends to all functionaries attached to those courts, including 
ministerial staff and employees on the establishment. The purpose of 
superintendence would be frustrated ifthe administrative control of the 
High Court is not to be exercised over the administrative and ministerial 
staff. However, the Chief Justice of the High Court as a constitutional 
functionary is subject to the mandate of Articles 14 and 16. No 
appointment can be made in contravention of statutory rules. Moreover, 
the rules themselves must be consistent with constitutional principles. 
The second principle is that employment in the High Courts or in 
the courts subordinate to them constitutes public employment. All 
recruitment in matters of public employment must be made in accordance 
with prevailing rules and orders: 
"30. In today's system, daily labourers and casual labourers 
have been conveniently introduced which are followed by 
attempts to regularise them at a subsequent stage. 
Therefore,
most of the times the issue raised is about the 
procedure adopted for making appointments indicating an 
improper exercise of discretion even when the rules specify 
a particular mode to be adopted. There can be no doubt 
that the employment whether of Class IV, Class Ill, Class 
II or any other class in the High Court or courts subordinate 
to it falls within the definition of"public employment". Such 
an employment, therefore, has to be made under rules and 
under orders of the competent authority." 
Thirdly, the date on which the vacancies are likely to occur are 
foreseeable with a reasonable amount of clarity and precision. An 
exercise to fill up vacancies must be undertaken in advance so as to 
ensure that there is no occasion to appoint persons on an ad hoc basis : 
"31. In a democratic set-up like ours, which is governed by 
rule of Jaw, the supremacy of law is to be acknowledged
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
and absence of arbitrariness has been consistently described 
as essence of rule of law. Thus, the powers have to be 
canalised and not unbridled so as to breach the basic 
structure of the Constitution. Equality of opportunity in · 
matters of employment being the constitutional mandate has 
always been observed. The unquestionable authority is 
always subject to the authority of the Constitution. The 
higher the dignitary, the more objectivity is expected to be 
observed. We do not say that powers should be curtailed. 
What we want to say is that the power can be exercised 
only to the width of the constitutional and legal limits. The 
date of retirement of every employee is well known in 
advance and therefore, the number of vacancies likely to 
occur in near future in a particular cadre is always known 
to the employer. Therefore, the exercise to fill up the 
vacancies at'the earliest must start in advance to ensure 
that the selected person may join immediately after 
availability of the post, and hence, there may be no occasion 
to appoint any person on ad hoc basis for the reason that 
the problem of inducting the daily labourers who are ensured 
·of a regular appointment subsequently has to be avoided 
and a fair procedure must be adopted giving equal opportunity 
to everyone." 
The information before the Supreme Court indicated that several 
High Courts have adopted a
pattern of centralized recruitment so as to 
ensure transparency and objectivity in the appointment of ministerial 
staff both on the establishment of the High Court and in the district 
courts. 
Fourthly, while the High Court is an autonomous constitutional 
authority whose status cannot be undermined, it is equally necessary for 
it to strictly comply with the rules framed in making recruitments : 
"We would like to make it clear that the High Court is a 
constitutional and an autonomous authority subordinate to 
none. Therefore, nobody can undermine the constitutional 
authority of the High Comt, and therefore the purpose to 
hear this case is only to advise the High Court that if its 
rules are not in consonance with the philosophy of our 
Constitution then the same_may be modified and no 
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appointment in contravention thereof should be made. It is 
necessary that there is strict compliance with appropriate 
rules and the employer is bound to adhere to the norms of 
Articles 14 and 16 of the Constitution before making any 
recruitment." 
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The following directions have been issued in Renu for observance 
by all the High Courts: 
"35.1. (i) All the High Courts are requested to re-examine 
the statutory rules dealing with the appointmertftlf staff in 
the High Court as well as in the subordinate courts and in 
case any of the rules is not in conformity and consonance 
with the provisions of Articles 14 and 16 of the Constitution, 
the same may be modified. ' 
35.2. (ii) To fill up any vacancy for any post either in the 
High Court or in courts subordinate to the High Court, in 
strictcompliance with the statutory rules so made. In case 
any appointment is made in contravention of the statutory 
rules, the appointment would be void ab initio irrespective 
of any class of the post or the person occupying it. 
35.3. (iii) The post shall be filled up by issuing the 
advertisement in at least two newspapers and one of which 
must be in vernacular language having wide circulation in 
the respective State. In addition thereto, the names may be 
requisitioned from the local employment exchange and the 
vacancies may be advertised by other modes also e.g. 
Employment News, etc. Any vacancy filled up without
advertising as prescribed hereinabove, shall be void ab initio 
and would remain unenforceable and unexecutable except 
such appointments which are permissible to be filled up 
without advertisement e.g. appointment on compassionate 
grounds as per the rules applicable. Before any appointment 
is made, the eligibility as well as suitability of all the 
candidates should be screened/tested while adhering to the 
reservation policy adopted by the State, etc. if any. 
35.4. (iv) Each High Court may examine and decide within 
six months from today as to whether it is desirable to have 
centralised selection of candidates forthe courts subordinate 
I
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
121 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
to the respective High Court and if it finds it desirable, may 
A 
formulate the rules to carry out that purpose either for the 
State or on zonal or divisional basis. 
35 .5. ( v) The High Co wt concerned or the subordinate court 
as the case may be, shall undertake the exercise of 
recruitment on a regular basis at least once a year for existing 
B 
vacancies or vacancies that are likely to occur within the 
said period, so that the vacancies are filled up timely, and 
thereby avoiding any inconvenience or shortage of staff as 
it will also control the menace of ad hocism." 
·14. The judgment in Renu underlines the importance of the High c 
Court complying with statutory rules in matters of recruitment. The 
judgment also emphasises the need to abide by the.principles of equality 
and equal opportunity in A1ticles 14 and I 6. 
15. The judgment in Renu does not preclude, as a principle of 
law, the framing of an appropriate scheme of regularization in appropriate 
D 
situations meeting the norms spelt out in Umadevi and the decisions 
which have followed. Dealing with a scheme framed for regularisation, 
this Court in Amarendra Kumar Mohapatra v. State of Orissa5 held 
as follows: 
"38. Equally important is the fact that even after declaring 
E 
the true legal position on the subject .and even after 
deprecating the practice of appointing people by means 
other than
legitimate, this Court felt that those who had 
served for ten years or so may be put to extreme hardship 
if they were to be discharged from service and, therefore, 
directed the formulation of a scheme for their 
F 
regularisation. This was no doubt a one-time measure, but 
so long as the appointment sought to be regularised was 
not illegal, the scheme envisaged by para 53 of the decision 
(supra) extracted above permitted the State to regularise 
such employees. Dr Dhavan argued that the appellant 
G 
Stipendiary Engineers had, by the time the decision in 
Umadevi (3) case was pronounced, qualified for the 
benefit of a scheme cf regularisation having put in ten 
years as ad hoc Assistant Engineers and fifteen years if 
' (ZOI4J 4 sec ssJ 
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their tenure was to be counted from the date of their 
employment as Stipendiary Engineers. He contended that 
even in the absence of.a Validation Act, Stipendiary 
Engineers appointed on ad hoc basis as Ass·istant 
Engineers, who had worked for nearly ten years to the full 
satisfaction of the State Government would have been 
entitled to regularisation of their services in terms of any 
such scheme. 
43. As to what would con~titute an irregular appointment 
is no longer res integra. The decision of this Court in State 
ofKarnataka v. M.L. Kesari, has examined that question 
and explained the principle regarding regularisation as 
enunciated in Umadevi (3) case. The decision in that case 
summed up the following three essentials for regularisation: 
(1) the employees have worked for ten years or more, (2) 
that they have so.worked in a duly sanctioned post without 
the benefit or protection of the interim order of any coo-rt 
or tribunal, and (3) they should have possessed the 
minimum qualification stipulated for the appointment. 
Subject to these three requirements being satisfied, even 
ifthe appointment process did not involve open competitive 
selection, the appointment would be treated irregular and 
not illegal and thereby qualify for regularisation. Para 7 in 
this regard is apposite and may be extracted at this stage 
"7. It is evident from the above that there is an exception 
to the general
principles against 'regularisation' enunciated 
in Umadevi (3) [State ofKarnataka v. Umadevi (3), (2006) 
4 SCC I : 2006 SCC (L&S) 753) , if the following 
conditions are fulfilled: 
(i) The employee concerned should have worked for I 0 
years or more in a duly sanctioned post without the benefit 
or protection of the interim order of any court or tribunal. 
In other words, the State Government or its instrumentality 
should have employed the employee and continued him in 
service voluntarily and continuously for more than ten 
years.
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
(ii) The appointment of such employee should not be illegal, 
even if irregular. Where the appointments are not made 
or continued against sanctioned posts ot where the persons 
·appointed do not possess the prescribed minimum 
qualifications, the appointments will be considered to be 
illegal. But where the person employed possessed the 
prescribed qualifications and was working against 
sanctioned posts, but had been selected without undergoing 
the process of open competitive selection, such 
appointments are considered to be irregular." 
45. The upshot of the above discussion is that not only 
because in Umadevi (3) case t~is Court did not disturb the 
appointments already made or regularisation granted, but 
also because the decision itself permitted regularisation in, 
case of irregular appointments, the legislative enactm~ 
granting such regularisation does not call for interference 
at this late stage when those appointed or regularised have 
already started retiring having served their respective 
departments, in some cases for as long as 22 years." . 
16. This would be_ again evident from the following observations 
made by the Court in Surendra Kumar v. Greater Noida Industrial 
Development Authority6, wherein it was held : . 
· 
"In the impugned judgment [Greater Noida Industrial 
Development Authority v. Surendra Kumar, 2013 SCC 
OnLine All 9827: (2014) 102 ALR 418],
the Division 
Bench proceeded on the premise as if Umadevi (3) case 
held that the State Government, in no circumstance, can 
regularise the services of contractual employees. In para 
53 of Umadevi (3) case, the Constitution Bench carved 
out an exception by observing that the Union oflndia/State 
Governments/their instrumentalities should take steps to 
regularise the services of such irregular employees who 
have worked for more than ten years and para 53 reads 
as under: (SGC p. 42) 
· 
13. Considering the facts of the present case on _the 
touchstone laid down in Umadevi (3) case, it will be seen 
• (2015) 14 sec 382 
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that the Division Bench was not right in setting aside the 
appointment of the appellants. More so, it was nobody's 
case challenging the appointment of the appellants. 
Admittedly, the appellants· were engaged as contractual 
employees from 1994 and have completed more than ten 
years of continuous service with Respondent 1 . They 
continued in service not by the orders of the Court/Tribunal, 
but by the decision of the respondents~ The appellants were 
regulai:ised as per the policy decision dated 16-4-2003 taken 
by Respondent 1 and approved by the State Government 
vide Letter dated 5-3-2008. Since the appointment of the 
appellants were made pursuant to the policy of 
regularisation, the High Court was not right in quashing the 
appointment of the appellants as the same were never in 
question before the High Court. The plea that was raised 
by the appellants was only to seek regularisation with 
retrospective effect from 20-l l-2002oand the consequential 
seniority." 
17. The difterence between irregular and illegal appointments as 
also the scope of paragraph 53 ofUma Devi has fallen for consideration. 
in various subsequent judgments of this Court . These decisions have 
been adverted to in State of Karnataka v. G.V. Chandrashekar7• In 
Employees' Union v. Mineral Exploration Corpn. Ltd8• this Court 
· observed as follows : 
"39. We, therefore, direct the Tribunal to decide the claim 
of the
workmen of the Union strictly in accordance with 
and in compliance with all the directions given in the 
judgment by the Constitution Bench in State ofKarnataka 
v. Umadevi (3) and in pa1ticular, paras 53 and 12 relied 
on by the learned Senior Counsel appearing for the Union. 
The Tribunal is directed to dispose of the matter afresh 
within 9 months from the date of receipt of this judgment 
without being influenced by any of the observations made 
by us in this judgment. Both the parties are at liberty to 
submit and furnish the details in regard to the names of 
the workmen, nature of the work, pay scales and the 
1 (2009) 4 sec 342 
• (2006) 6 sec 310
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
wages drawn by them from time to time and the transfers 
of the workmen made from time to time, from place to 
place and other necessary and requisite details. The above 
details shall be submitted within two months from the date 
of the receipt of this judgment before the Tribunal." 
In National Fertilizers Ltd. v. Somvir Singh9 this Court held 
thus: 
"23. The contention of the learned counsel appearing on 
behalf of the respondents that the appointments were 
irregular and not illegal, cannot be accepted for more than 
one reason. They were appointed only on the basis of their 
applications. The Recruitment Rules were not followed. 
Even. the Selection .Committee had not been properly 
constituted. In view of the ban on employment, no 
recruitment was pennissible in law. The reservation policy 
adopted by the appellant had not been maintained. Even 
cases of minorities had not been given due consideration. 
*** 
25. Judged by the standards laid down by this Court in the 
aforementioned decisions, the appointments of the 
respondents are illegal. They do not, thus, have any legal 
right to continue in service. 
26. It is true that the respondents had been working for a 
long time. It may also be true that they had not been paid 
wages on a regular scale of pay. But, they did not hold 
any post. They were, therefore, not entitled to be paid 
salary on a regular scale of pay.
Furthermore, only because 
the respondents have worked for some time, the same by 
.itself would not be a ground for directing regularisation of 
their services in view of the decision of this Court in 
Umadevi (3) [(2~96) 4 sec L: 2006 sec (L&S) 753] ." 
In State ofM.P. v. Lalit KumarVerma' 0: this Court held that: 
"2 l. The legal position somehow was uncertain before the 
decision rendered by the Constitution Bench of this Court 
• (2006) 5 sec 493 
'" (2007) 1 sec 575 
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in Umadevi (3) [(2006) 4 sec 1 : 2006 sec (L&S) 753]. 
It has categorically been stated before us that there was 
no vacant post in the Department in which the respondent 
could be reinstated. The State had also adopted a policy 
decision regarding regularisation. The said policy decision 
also has no application in the case of the responclent. Even 
otherwise, it would be unconstitutional being hit by Article 
16 of the Constitution oflndia." 
In Post Master General v. Tutu Das (Dutta) 11 this Court held 
as under: 
"20. The staterpent of law contained in para 53 ofUmadevi 
(3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] cannot also 
be invoked in this case. The question has been considered 
by this Court in a large number of decisions. We would, 
however, refer to only a few of them .... 
21. In Punjab Water Supply & Sewerage Board v. Ranjodh 
Singh ((2007) 2 sec 491 : (2007) 1 sec (L&S) 713] 
referring to paras 15, 16 and 53 ofUmadevi (3) [(2006) 4 
SCC I : 2006 SCC (L&S) 753] this Court observed: 
(Ranjodh Singh case [(2007) 2 SCC 491 : (2007) I SCC 
(L&S) 713], sec p. 500 paras 17-18) 
'17. A combined reading of the aforementioned paragraphs 
would clearly indicate that what the Constitution Bench 
had in mind in directing regularisation was in relation to 
such appointments, which were irregular in nature and not 
illegal ones." 
18. A three-Judge Bench of this Court in Official Liquidator v. 
Dayanand 12,
held thus: 
"75. By virtue of Article 141 of the Constitution, the 
judgment of the Constitution Bench in State ofKarnataka 
v. Umadevi (3) [(2006) 4 sec 1 : 2006 sec (L&S) 753] 
is binding on all the courts including this Court till the same 
is overruled by a larger:·ffench. The ratio of the 
Constitution Bench judgment has been followed by 
different two-Judge Benches for declining to entertain the 
11 (2007) s sec 317 
12 c2oos) 1 o sec 1
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
claim of regularisation of service made by ad hoc/ 
temporary/daily wage/casual employees or for reversing 
the orders of the High Court granting relief to such 
employees -
Indian Drugs and Pharmaceuticals Ltd. v. 
Workmen [(2007) I SCC 408 : (2007) 1 SCC (L&S) 270] 
, Gangadhar Pillai v. Siemens Ltd. [(2007) 1 SCC 533 : 
(2007) 1 SCC (L&S) 346] , Kendriya Vidyalaya Sangathan 
v. L.V. Subramanyeswara [(2007) 5 SCC 326 : (2007) 2 
SCC (L&S) 143] and Hindustan Aeronautics Ltd. v. Dan 
Bahadur Singh [(2007) 6 SCC 207 : (2007) 2 SCC (L&S) 
441]." 
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position set out in the above judgments. Regularisation is not a source of 
recruitment nor is it intended to confer permanency upon appointments 
which have been made without following the due process envisaged by 
Articles 14 and 16 of the Constitution. Essentially a scheme for 
regularisation, in order to be held to be legally valid, must be one which 
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is aimed at validating certain irregular appointments which may have 
come to be made in genuine and legitimate administrative exigencies. In 
all such cases it may be left open to Courts to lift the veil to enquire 
whether the scheme is aimed at achieving the above objective and is a 
genuine attempt at validating irregular appointments. The State and its 
instrumentalities cannot be permitted to use this
window to validate illegal 
appointments. The second rider which must necessarily be placed is 
that the principle as formulated above is not meant to cr_eate or invest in 
a temporary or ad hoc employee the right to seek a writ commanding 
the State to frame a scheme for regularisation. Otherwise, this would 
simply reinvigorate a class of claims which has been shut out pennanently 
by Uma Devi. Ultimately, it would have to be left to the State and its 
instrumentalities to consider whether the circumstances warrant cSuch a 
scheme being formulated. The fo~mulation of such a scheme cannot be 
accorded the status of an enforceable right. It would perhaps be prudent 
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to leave it to a claimant to establish whether he or she falls within the 
exceptions carved out in paragraph 53 and falls within the ambit of a 
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scheme that may be formulated by the State. Subject to the riders· referred 
to above, a scheme of regularisation could fall withi.n the permissible 
limits ofUma Devi and be upheld. 
20. The judgment in Renu was delivered on 12 February 2014. 
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Neither of the orders of the High Court in the present case would indicate 
that the principles which have been enunciated by this Court have been 
considered. 
21. The grievances which have been set out on behaif of the state 
government in the Special Leave Petition, and during the course of the 
hearing, include the following: 
(i) In a Public Interest Litigation seeking the construction of a 
district court complex in Bandipora District the High Court proceeded to 
issue directions for the regularization of services of daily rated workers. 
These directions were totally unconnected to the reliefs which were 
sought in the PIL; 
(ii) By an order of the High Court dated 7 October2015, the state 
government was directed to consider the claim for regularization of the 
daily rated workers as a one-time exception which required the state 
government necessarily to decide on the issue of regularization. The 
state government has constituted an empowered committee on 19 August 
2015 to inquire into the issue of creating posts for the regularization of 
nearly sixty one thousand daily rated and casual workers working in 
various departments of the state government. These include workers on 
the establishment of the High Court and the district courts; The High 
Court has pre-empted consideration by issuing a direction for 
regularisation; 
(iii) There is a lack of clarity in the actual number of daily rated
workers engaged in the High Court and the district judiciary, as well as 
in the nature of work performed. The list furnished by the Registrar 
General contains the names of several .Sewaks whose services are 
governed under a GO dated 28 July 2016. All the two hundred nine 
workers do not perform the same job and who among them is eligible to 
be considered for regularization has yet to be determined; 
(iv) The High Court has proceeded on the erroneous basis that 
the issue of regularization has attained finality. The dismissal of the 
Special Leave Petition by this Court on 16 December 2015 against an 
interim order dated 7 October 2015 does not conclude the issue. There 
is no vested right to seek regularization; and 
(v) The High Court has erred, in its order dated 1 December 
2015, in holding that daily rated workers on the establishment of the
STATE OF JAMMU AND KASHMIR v. DISTRICT BAR 
I29 
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.] 
High Court would not be regulated by the rules governed by SRO 64 of A 
1994. If the Daily Rated Workers are to be regularized, the state 
government should be required to create a sufficient number of posts 
for Jhe _purpose. 
22. We have adverted to the above grievances in order to 
emphasise that there is substantial merit in the submission that the High 
Court proceeded to issue directions for regularization without considering 
eitherthe legal position enunciated in the judgments of this Court referred 
to above and without considering the prevailing rules and regulations on 
the subject. The High Court has observed in its order dated 1 December 
2015 that over a considerable period of time the state government has 
not created the required number of posts for the state judiciary as a 
result of which work has been hampered. According to the High Court, 
appointment of daily rated workers was necessitated to ensure that judicial 
work does not suffer. The High Court opined that these workers have 
been rendering work which should have been assigned to persons 
appointed on a regular basis against sanctioned posts. It is unfortunate, 
in our view, that the state government has allowed the requirements of 
the state judiciary to be neglected over such a long period of time. The 
need to facilitate the proper functioning of the High Court and the district 
judiciary is a
constitutional necessity which imposes a non-negotiable 
obligation on the state government to create an adequate number of 
posts and to provide sufficient infrastructure. The state government is to 
blame for the unfortunate situation which has resulted ina large number 
of persons being recruited on a daily wage basis. 
23. We have already indicated above our conclusion that the 
direction for regularization was issued by the High Court without 
considering the relevant constitutional and legal principles. While some 
of the daily rated workers have been engaged over long periods of time, 
others have been engaged as recently as in 2015. The issue of whether 
such appointments were irregular or whether they were illegal should 
have been determined but has not been considered. Since the issue of 
regularization is a matter with which the state government is seized, as 
stated in the proceedings before this Court, we are of the view that at 
this stage it would be appropriate and proper to set aside the impugned 
order of the High Court which directs the regularization en masse of 
two hundred nine daily rated workers. While doing so, we restore the 
proceedings back to the file of the High Court for reconsideration. We 
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A order accordingly, leave it open to the High Court to reconsider the entire 
matter afresh having due regard to the constitutional and legal principles 
enunciated and having regard to all relevant factual aspects. 
B 
24. The Civil Appeal shall accordingly stand disposed of. There 
shall be no orders as to costs. 
Ankit Gyan 
Appeal disposed of.