NARENDRA KUMAR TIWARI & ORS. ETC. versus THE STATE OF JHARKHAND & ORS. ETC.
[2018] 9 S.C.R. 412, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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SUPREME COURT REPORTS
[2018] 9 S.C.R.
NARENDRA KUMAR TIWARI & ORS. ETC.
      v.
THE STATE OF JHARKHAND & ORS. ETC.
(Civil Appeal Nos. 7423-7429 of 2018)
AUGUST 01, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Service Law – Regularisation of daily wage or contract
workers – Appellants were irregularly appointed by the State of
Jharkhand – Plea of Appellants that they had put in more than 10
years of service and therefore were entitled to be regularised – Plea
rejected by the High Court – Further, High Court took the view that
the decision of the Supreme Court in Umadevi (3) case did not
permit regularisation of appellants since they had not worked for
10 years on the cut-off date of  10.04.2006 when the Constitution
Bench rendered its decision – Held: High Court erred in taking an
impractical view of the directions in case of Umadevi (3) – The
purpose and intent of the decision in Umadevi(3) was to prevent
irregular or illegal appointments in the future and further to confer
a benefit on those who had been irregularly appointed in the past –
A strict and literal interpretation of Umadevi(3), without
considering the spirit of the decision would make regularisation of
the irregular employees very difficult since the State of Jharkhand
came into existence only on 15.11.2000 and cut-off date was fixed
as 10.04.2006 – Thus, the Regularisation Rules must be given a
pragmatic interpretation and appellants, if they had completed 10
years of service on the date of
promulgation of the Regularisation
Rules, ought to be given the benefit of the service rendered by them
– Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam
Karyat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015.
Disposing of the appeals, the Court
HELD: 1. The decision in Secretary, State of Karnataka and
Ors. v. Umadevi (3) and Ors. was intended to put a full stop to the
somewhat pernicious practice of irregularly or illegally appointing
daily wage workers and continuing with them indefinitely. The
purpose and intent of the decision in Umadevi(3) was therefore
two-fold, namely, to prevent irregular or illegal appointments in
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the future and secondly, to confer a benefit on those who had
been irregularly appointed in the past. The fact that the State of
Jharkhand continued with the irregular appointments for almost
a decade after the decision in Umadevi(3) is a clear indication
that it believes that it was all right to continue with irregular
appointments, and whenever required, terminate the services of
the irregularly appointed employees on the ground that they were
irregularly appointed. This is nothing but a form of exploitation
of the employees by not giving them the benefits of regularisation
and by placing the sword of Damocles over their head. This is
precisely what Umadevi (3) and Kesari sought to avoid.
[Paras 6, 8] [415-D; 417-B-D]
2.  If a strict and literal interpretation, forgetting the spirit
of the decision of the Constitution Bench in Umadevi (3), is to be
taken into consideration then no irregularly appointed employee
of the State of Jharkhand could ever be regularised since that
State came into existence only on 15th November, 2000 and the
cut-off date was fixed as 10th April, 2006. In other words, in this
manner the pernicious practice of indefinitely continuing
irregularly appointed employees would be perpetuated contrary
to the intent of the Constitution Bench. [Para 9] [417-E-F]
3.  Under the circumstances, the Jharkhand Regularisation
Rules of 2015 must be given a pragmatic interpretation and the
appellants, if they have completed 10 years of service on
the
date of promulgation of the Regularisation Rules, ought to be
given the benefit of the service rendered by them. If they have
completed 10 years of service they should be regularised unless
there is some valid objection to their regularisation like
misconduct etc. [Para 11] [417-G-H; 418-A-B]
Secretary, State of Karnataka and Ors. v. Umadevi(3)
and Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 ;
Umadevi(3) in State of Karnataka and Ors. v. M.L.
Kesari and Ors. (2010) 9 SCC 247 : [2010] 9 SCR
543 – referred to.
Case Law Reference
[2006] 3 SCR 953
   referred to
Para 3
[2010] 9 SCR 543
   referred to
Para 5
NARENDRA KUMAR TIWARI & ORS. v.  STATE OF
JHARKHAND & ORS.
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SUPREME COURT REPORTS
[2018] 9 S.C.R.
CIVIL APPELLATE JURISDICTION :  Civil Appeal
Nos. 7423-7429 of 2018.
From the Judgment and Order dated 08.11.2016 of the High Court
of Jharkhand at Ranchi in W.P. (S) No. 4019/2015, 4021/2015,
4126/2015, 4127/2015, 1512/2016, 1530/2016 and 1932/2016.
Rana Mukherjee, Sr. Adv., Kumar Anurag Singh, Kumar Shivam,
Ms. Stuti Vatsa, Ms. Tulika Mukherjee, Gopal Prasad, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. Leave granted.
2. These appeals arise out of the common judgment and order
dated 17th November, 2016 passed by a Division Bench of the High
Court of Jharkhand in a batch of writ petitions relating to the regularisation
of daily wage or contract workers on different posts.  The writ petitioners
(now appellants) were denied the benefit of regularisation in view of the
provisions of the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt
Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015
(hereinafter referred to as the Regularisation Rules).
3. The admitted position is that the appellants are irregularly
appointed employees of the State Government.  They sought
regularisation of their status on the ground that they had put in more than
10 years of service and were therefore entitled to be regularised. The
High Court took the view that the decision of the Constitution Bench of
this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3)
and Ors.1 did
not permit their regularisation since they had not worked
for 10 years on the cut-off date of 10th April, 2006 when the Constitution
Bench rendered its decision. According to the High Court, the
Regularisation Rules provided a one-time measure of regularisation of
the services of irregularly appointed employees based on the cut-off
date of 10th April, 2006 in terms of the judgment of the Constitution
Bench.  Therefore, since the appellants had not put in 10 years of service
they could not be regularised.
4. The appellants had contended before the High Court that the
State of Jharkhand was created only on 15th November, 2000 and
therefore no one could have completed 10 years of service with the
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State of Jharkhand on the cut-off date of 10th April, 2006.  Therefore, no
one could get the benefit of the Regularisation Rules which made the
entire legislative exercise totally meaningless.   The appellants had pointed
out in the High Court that the State had issued Resolutions on 18th July,
2009 and 19th July, 2009 permitting the regularisation of some employees
of the State, who had obviously not put in 10 years of service with the
State. Consequently, it was submitted that the appellants were
discriminated against for no fault of theirs and in an irrational manner.
5. Having heard learned counsel for the parties and having
considered the decision of the Constitution Bench in Umadevi (3) as
well as the subsequent decision of this Court explaining Umadevi(3) in
State of Karnataka and Ors. v.  M.L. Kesari and Ors.2, we are of the
view that the High Court has erred in taking an impractical view of the
directions in Umadevi (3) as well as its consideration in Kesari.
6. The decision in Umadevi(3) was intended to put a full stop to
the somewhat pernicious practice of irregularly or illegally appointing
daily wage workers and continuing with them indefinitely.  In fact, in
paragraph 49 of the Report, it was pointed out that the rule of law requires
appointments to be made in a constitutional manner and the State cannot
be permitted to perpetuate an irregularity in the matter of public
employment which would adversely affect those who could be employed
in
terms of the constitutional scheme.  It is for this reason that the concept
of a one-time measure and a cut-off date was introduced in the hope
and expectation that the State would cease and desist from making
irregular or illegal appointments and instead make appointments on a
regular basis.
7. The concept of a one-time measure was further explained in
Kesari in paragraphs 9, 10 and 11 of the Report which read as follows:
“9. The term “one-time measure” has to be understood in its proper
perspective. This would normally mean that after the decision in
Umadevi (3), each department or each instrumentality should
undertake a one-time exercise and prepare a list of all casual,
daily-wage or ad hoc employees who have been working for more
than ten years without the intervention of courts and tribunals and
subject them to a process verification as to whether they are
working against vacant posts and possess the requisite qualification
for the post and if so, regularise their services.
2(2010) 9 SCC 247
NARENDRA KUMAR TIWARI & ORS. v.  STATE OF
JHARKHAND & ORS. [MADAN B. LOKUR, J.]
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10. At the end of six months from the date of decision in Umadevi
(3), cases of several daily-wage/ad hoc/casual employees were
still pending before courts. Consequently, several departments and
instrumentalities did not commence the one-time regularisation
process. On the other hand, some government departments or
instrumentalities undertook the one-time exercise excluding several
employees from consideration either on the ground that their cases
were pending in courts or due to sheer oversight. In such
circumstances, the employees who were entitled to be considered
in terms of para 53 of the decision in Umadevi (3), will not lose
their right to be considered for regularisation, merely because the
one-time exercise was completed without considering their cases,
or because the six-month period mentioned in para 53 of Umadevi
(3) has expired. The one-time exercise should consider all daily-
wage/ad hoc/casual employees who had put in 10 years of
continuous service as on 10-4-2006 without availing the protection
of any interim orders of courts or tribunals. If any employer had
held the one-time exercise in terms of para 53 of Umadevi (3),
but did not consider the cases of some employees who were entitled
to the benefit of para 53 of Umadevi (3), the employer concerned
should consider their cases also, as a continuation of the one-time
exercise. The one-time exercise will be concluded only when all
the employees who are
entitled to be considered in terms of para
53 of Umadevi (3), are so considered.
11. The object behind the said direction in para 53 of Umadevi (3)
is twofold. First is to ensure that those who have put in more than
ten years of continuous service without the protection of any interim
orders of courts or tribunals, before the date of decision in Umadevi
(3) was rendered, are considered for regularisation in view of
their long service. Second is to ensure that the departments/
instrumentalities do not perpetuate the practice of employing
persons on daily-wage/ad hoc/casual basis for long periods and
then periodically regularise them on the ground that they have
served for more than ten years, thereby defeating the constitutional
or statutory provisions relating to recruitment and appointment.
The true effect of the direction is that all persons who have worked
for more than ten years as on 10-4-2006 [the date of decision in
Umadevi (3)] without the protection of any interim order of any
court or tribunal, in vacant posts, possessing the requisite
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qualification, are entitled to be considered for regularisation. The
fact that the employer has not undertaken such exercise of
regularisation within six months of the decision in Umadevi (3) or
that such exercise was undertaken only in regard to a limited few,
will not disentitle such employees, the right to be considered for
regularisation in terms of the above directions in Umadevi (3) as
a one-time measure.”
8. The purpose and intent of the decision in Umadevi(3) was
therefore two-fold, namely, to prevent irregular or illegal appointments
in the future and secondly, to confer a benefit on those who had been
irregularly appointed in the past. The fact that the State of Jharkhand
continued with the irregular appointments for almost a decade after the
decision in Umadevi(3) is a clear indication that it believes that it was
all right to continue with irregular appointments, and whenever required,
terminate the services of the irregularly appointed employees on the
ground that they were irregularly appointed. This is nothing but a form
of exploitation of the employees by not giving them the benefits of
regularisation and by placing the sword of Damocles over their head.
This is precisely what Umadevi (3) and Kesari sought to avoid.
9. If a strict and literal interpretation, forgetting the spirit of the
decision of the Constitution Bench in Umadevi (3), is to be taken into
consideration then no irregularly appointed employee of the State of
Jharkhand could
ever be regularised since that State came into existence
only on 15th November, 2000 and the cut-off date was fixed as 10th
April, 2006. In other words, in this manner the pernicious practice of
indefinitely continuing irregularly appointed employees would be
perpetuated contrary to the intent of the Constitution Bench.
10. The High Court as well as the State of Jharkhand ought to
have considered the entire issue in a contextual perspective and not only
from the point of view of the interest of the State, financial or otherwise
– the interest of the employees is also required to be kept in mind. What
has eventually been achieved by the State of Jharkhand is to short circuit
the process of regular appointments and instead make appointments on
an irregular basis. This is hardly good governance.
11. Under the circumstances, we are of the view that the
Regularisation Rules must be given a pragmatic interpretation and the
appellants, if they have completed 10 years of service on the date of
NARENDRA KUMAR TIWARI & ORS. v.  STATE OF
JHARKHAND & ORS. [MADAN B. LOKUR, J.]
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promulgation of the Regularisation Rules, ought to be given the benefit
of the service rendered by them. If they have completed 10 years of
service they should be regularised unless there is some valid objection to
their regularisation like misconduct etc.
12. The impugned judgment and order passed by the High Court
is set aside in view of our conclusions. The State should take a decision
within four months from today on regularisation of the status of the
appellants.
13. The appeals are accordingly disposed of.
14. We may add that that it would be worthwhile for the State of
Jharkhand to henceforth consider making regular appointments only and
dropping the idea of making irregular appointments so as to short circuit
the process of regular appointments.
Ankit Gyan
            Appeals disposed of.