Madras High Court

P.Vasanthi vs Principal Secretary To Government on 25 March, 2019

Author:
S.M.Subramaniam

Bench:
S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :25.03.2019

CORAM

THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.No.15556, 15557,16334,16344,16345,16346,16386,16428 to
16431 to 16435,18156 to 18161,29438,29457,29463 of 2018
and
W.M.P.No.18456,18457,18458,18459,19482,19483,19501 to
19506,19542,19583 to 19598,21448 to
21459,34408,34424,34429,34405,34428,34423 of 2018

P.Vasanthi ..Petitioner
vs

1. Principal Secretary to Government
Health and Family Welfare Department,
Secretariat, Chennai-600 009.

2. Mission Director,
State Health Society,
Chennai-600 006.

3.Project Director,
Tamil Nadu State Blindness Control Society,
Egmore, Chennai-600 008.

4. The Director,
O/O of Medical and Rural Health Services,
D.M.S.Complex Chennai-6.

5. The Director,
O/O Public Health and Preventive Medicine,
Chennai-6.

6. Corporation Commissioner/Chairman

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District Blindness Control Society,
Chennai ..Respondents

Common Prayer: Writ Petition filed under
Article 226
of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus
to call for the records in letter No.2156/SHS/Pq/2018 dated
27.04.2018 on the file of the 2nd respondent enclosing the previous
letters dated 11.09.2017 and 15.04.2016 on the same file and quash
the same.
(ii) To direct the 1st respondent to regularize the service of the
petitioner from the date of 1st appointment and allot them as data
entry operators or in any equivalent designation in the departments of
4th and 5th respondent or any other departments under the control of
the 1st respondent wherever the vacancy of Data Entry Operator within
a time frame fixed by this Court.
For Petitioner : Mr.N.S.Nandakumar

For Respondents : Mr.A.N.Thambidurai
Special Government Pleader
for RR 1,4 &5
Mrs.A.Srijayanthi
Special Government Pleader
and Mr.R.S.Selvam
for RR2,3 and 6.

ORDER

The circulars issued by the Mission Director, State Health

Society, Tamil Nadu in proceedings dated 15.04.2016, 11.09.2017 and

letter dated 27.04.2018 are under challenge in the present batch of

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these writ petitions.

2. Further direction is sought for to direct the 1st respondent

namely, The Principal Secretary to Government Welfare Department,

to regularize the service of the writ petitioners from the date of initial

appointment and allot them as Data Entry Operators or in equal

designation as that of the 4th and 5th respondents or the vacancy of

Data Entry Operator, within the time frame fixed by this Court.

3. The learned counsel appearing on behalf of the writ

petitioners contended that all the writ petitioners were admittedly

engaged as daily wage employees. However, they are already in

service for a considerable length of time as the nature of job is

perennial. The writ petitioners are fully qualified for regular

appointment to the post of Data Entry Operators and they possess all

the requisite qualifications for permanent absorption. It is further

contended that such adhoc appointments made during the year 2001

cannot be continued for an unspecified period and in the event of

allowing the respondents to engage employees on daily wages for an

indefinite period, the same would be in violation of the basic principles

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of law. The very fact that the writ petitioners are allowed to continue

as daily wage employees for many number of years is also evident

from the nature of job, which is continuous. Thus, the case of the writ

petitioners ought to have been considered by the respondents for the

purpose of grant of regularization and permanent absorption in

sanctioned posts in the regular time scale of pay. After the merger

District Blindness Control Society with the 2nd respondent, the

designation of the writ petitioner became District Co-ordinator. The

writ petitioners are continuously discharging their duties and

responsibilities in the collectorate and they are fully eligible and

qualified for permanent appointment. The learned counsel for the writ

petitioner states that though the writ petitioners are engaged as daily

wage employees under the Government of India Scheme, the post is

permanent in nature and the Tamil Nadu State Blindness Control

Society was initially constituted for a definite purpose and the mission

continues till today and under these circumstances, the service of the

writ petitioner is to be regularised.

4. It is further contended that the cases of the similarly placed

persons were already considered and the order of request has already

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been issued by the competent authority. The benefit of permanent

absorption extended to the other similarly placed persons must be

extended to the writ petitioners also. The writ petitioners cannot be

treated differently in the matter of grant of regularization and

permanent absorption.

5. Relying on the Government orders, the learned counsel for

the writ petitioner states that the case of the writ petitioner cannot be

discriminated on the ground that they are continuing as daily wage

employees and thereafter as consolidated employees. The respondents

are now compelling the writ petitioners to sign the contract agreement

for employment to the tenure of 11 months. The mere fact that the

other employees had signed the agreement cannot be a ground for the

writ petitioners also to sign such contract agreements, which all are

contrary to the initial appointment of the writ petitioners.

6. The learned special Government Pleader appearing on behalf

of the respondents opposed the contentions of the writ petitioners by

stating that the writ petitioners were initially appointed as a District

Co-ordinator on daily wage basis and were posted in the District

Blindness Control Society and subsequently, consolidated payment was

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made on contract basis with effect from the year 2011 onwards. The

post of Co-ordinator was re-designated as Data Entry Operators .

However, the post of Data Entry Operators are not sanctioned as a

permanent post and based on the representation submitted by the

daily wage Data Entry Operators, the respondents had taken a decision

to grant consolidated pay. However, there is no change in the

Conditions of Service and they are being paid the monthly consolidated

pay. They are engaged as contract employees under the scheme.

Therefore, the writ petitioners have no right to claim regularization or

permanent absorption at no point of time. The Government has taken

a decision to regularize their services in a sanctioned posts.

7. The learned counsel for the respondent urged this Court by

stating that the grant of regularization or permanent absorption cannot

be made, as if the petitioners were appointed in a sanctioned posts

and possessing the requisite qualifications, when the post of the writ

petitioners are not sanctioned one and they were appointed in a daily

wage basis and thereafter, on consolidated pay, they have no right to

claim regularization or permanent absorption. Thus, all these writ

petitions liable to be dismissed.

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8. Undoubtedly, the District Health Society and the National

Programme for control of Blindness are the schemes implemented by

the Government of India in the National Programme for control of

Blindness welfare, Government of India. The Society was registered

and the District Collector is the administrator of the Society. The

scheme is being implemented for the welfare of the people and the

same is continued only by the Government of India and therefore,

question of granting regularization would not arise at all.

9. The Guidelines for Voluntary and Government Organizations

as per the 12th Five Year Plan July, 2014 issued by the National

Programme For Control of Blindness Directorate General of Health

Services states that “Recurring assistance as per details below will be

provided towards salaries of the following Ophthalmic Manpower on

contractual basis only for the duration of the 12th Plan”.

10. Accordingly, the monthly consolidated pay has been fixed as

per the guidelines for Data Entry Operator with knowledge of accounts

at District Level. The number of persons to be engaged on contractual

basis is fixed at 500 and salary per month is fixed as Rs.8,000/- per

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month.

11. Under these circumstances, this Court is of the considered

opinion that the writ petitioners were engaged on daily wage basis by

the National Programme for Control of Blindness (NPCB) and they are

governed by the service conditions of the state. The order of

appointment issued to the writ petitioner during the year 2011 is also

enclosed by the writ petitioners. The model order of appointment is

extracted here under:

NOTE FOR THE CITY HEALTH OFFICER

Sub: District Blindness Control Society-filling up of the post
of Co- ordinator and Driver on the daily wages requested-reg.

A Co-ordinator and Driver post in Chennai District Blindness Control
Society is Vacant. For smooth functioning of the programme the posts has to
be filled up.

The duties and responsibilities of the Co-ordinator are mentioned
below:-

1.Maintenance of Accounts

2.Store management

3.All correspondence

4.Arrangement of Basic Camps for Cataract

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5.Verification of the Cataract cases who are operated by NGO's
A Candidate has applied for the post of Co-ordinator Mrs.p.Vasanthi
who has completed B.A., Typewriting in lower grade (English & Tamil) and
computer (MS Office & Tally) and driver name Mr.M.Karnalakannan.

Daily wages of Rs.230/- per day for Co-ordinator and Rs.205/per day
for driver. Hence the order of the City Health Officer are requested.

1.To appoint Mrs.P.Vasanthi for the post of Co-ordinator and driver
M.Kamalakannan in Chennai District Blindness Control Society on daily wages.

2.To Meet the expenditure from the DBCS fund.

District Programme Manager City Health Officer.

12. Subsequently, the respondents have taken a decision to pay

the consolidated pay and accordingly, the writ petitioners are receiving

the monthly consolidated pay. On account of the fact that it is a

scheme implemented by the Government of India and the writ

petitioners are engaged as contract employees on consolidated pay,

the impugned circulars are issued for the purpose of re-engaging these

writ petitioners through out-sourcing on contract basis on certain

terms and conditions. As per the impugned circular, the conditions are

stipulated to the contractual/out-sourcing services appointed under

NHM are as follows:

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Support Recurring Grant-in-aid to meet salaries of Ophthalmic
towards Manpower to States
salaries of Recurring assistance as per details below will be
Ophthalmi provided towards salaries of the following Ophthalmic
c Manpower on Contractual Basis only for the duration of
Manpower the 12th Plan:

to States

*A provision of 5% annual increase of remuneration may be
considered subject to performance appraisal by a committee
for contractual staff and consultants.

13. The Mission Director/State Health Secretary Tamil Nadu in

his letter dated 27.04.2018 has stated that the terms and conditions

issued in circular dated 15.04.2016 and 11.09.2017 are to be followed

scrupulously for the Data Entry Operators working in the District

Blindness Control Society. The circulars are challenged on the ground

that the writ petitioners in the absence of executing an agreement are

likely to be terminated from service and therefore, the writ petitioners

are constrained to move the present writ petition.

14. The learned Additional Government Pleader appearing on

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behalf of the respondents states that few contractual employees have

signed the agreement and the writ petitioners are refusing to sign the

contractual agreement as per the circular issued by the Mission

Director, State Health Society. It is further contended that all along the

writ petitioners are serving only as a Daily Wages Employees in

accepting the terms and conditions of their services and therefore, now

they cannot seek any permanent employment and there is no

sanctioned post under the scheme for the purpose of grant of

permanent absorptions.

15. Considering the facts and circumstances, this Court is of the

opinion that undoubtedly, the writ petitioners are working for more

than 15 years as Data Entry Operators on daily wages basis and

thereafter, the monthly consolidated pay is being paid. However, the

writ petitioners were not appointed by following the recruitment rules

as applicable for appointment to the post of Data Entry Operators in

the Government Services. In the initial order of appointment itself, it is

stated that they are appointed in the category of skilled labourers in

the District Blindness Control Society. Further, it is clarified that the

post of skilled labourer is purely temporary basis and the order of

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appointment will be cancelled without any notification. The said

appointment order was issued by the president/District Blindness

Control Society/District Collector. The president of the District

Blindness Control Society has issued the order of appointment. On a

perusal of the preamble of the national programme for control of

blindness, it is unambiguous that the respective District

Collector/District Mission Officer is the Chairman of the society Chief

Medical/ District Health Officer is the Vice Chairman and the other

persons are holding the post of Member Secretary Technical officers

and members. The functions of the society are narrated as under

functions:-

Functions:

The primary purpose of the District Health Society is to
planm implement and monitor blindness control activities in the
district as per pattern of assistance approved for the National
Programme for Control of Blindness. On the basis of scheme
approved for the 11th plan, important functions of the District
Health Society are:-

1.To assess the magnitude and spread of blindness in the
district by means of active case finding village wise to be recorded
and maintained in Blind Registers (Format I);

2.To organize screening camps for identifying those
requiring cataract surgery and other blinding disorders, organize

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transportation and conduct of free medical or surgical services
including cataract surgery for the poor in Government facilities or
NGOs supporting the programme,

3.To plan and organize training of community level workers,
teachers and ophthalmic assistants/nurses involved in eye care
services.

4.To procure drugs and consumables including micro-

surgical instruments required in the Government facilities.

5.To receive and monitor use of funds, equipments and
materials from the government and other agencies/donors

6.To involve voluntary and private hospitals providing
free/subsidized eye care services in the District and identify NGO
facilities that can be considered for non-recurring grants under the
programme

7.To organize screening of school children for detection of
refractive errors and other eye problems and provide free glasses
to poor children.

8.To promote eye donation through various media and
monitor collection and utilization of eyes collected by eye donation
centres and eye banks.

9. The PMOAs (Paramedical Ophthalimic Assistance) shall be
doing the regular screening for and other diseases in the out reach
camps. They shall be under the direct control of the District
Ophthalmic Surgeon / DPM. The TA/DA of the PMOA is for the out
reach camps conducted shall be paid by District Health Society.”

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16. The Grant in aid funds will be released by the Government of

India to State Health Society [or State Health & FW Society] based on

Annual Action Plan submitted to Government of India. For release of

funds by Government of India, it needs to submit certain documents.

Government of India will release funds in two equal installments in a

financial year. The District Health Society is expected to send

information related to performance and expenditure incurred in the

prescribed formats to the State society, who would forward complete

information to the Central Programme Division in DGHS, Ministry of

Health and Family Welfare, Government of India. The entire details

governing the scheme is narrated in the guidelines for State Health

Society and District Health Society. This being the nature of the

scheme, under which the writ petitioners are working, this Court is of

the considered opinion that the grant of regularization or permanent

absorption in the sanctioned posts in any one of the department in the

Government of Tamil Nadu is certainly impermissible.

17. The learned counsel for the writ petitioners urged this Court

by stating that the writ petitioners are entitled to avail the benefit of

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paragraph No.53 of the judgment of “Umadevi Case”, wherein the

one time benefit of regularization has been granted.

18. This Court is of the opinion that the initial appointment of the

writ petitioners was made by the District Blindness Control Society and

they were initially appointed on daily wage basis and based on their

representation, the respondents have paid monthly consolidated pay.

This being the factum, now the circulars are issued for appointment of

staff on contract basis through out-sourcing based on certain terms

and conditions. If at all, the writ petitioners are interested in

continuing as a staff in the scheme related works, they are at liberty to

sign the agreement and continue their employment. Contrarily, they

cannot claim regularization or permanent absorption based on the

initial appointment as a daily wage basis. Subsequently, as a

consolidated pay, wherein no fresh service conditions are imposed.

The writ petitioners were engaged on contract basis and the scheme is

continuing. The mere continuation of the scheme would not confer any

right on the writ petitioners to claim regularization or permanent

absorption, in respect of one time benefit of regularization in Uma Devi

Case.

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19. This Court is of the opinion that the writ petitioners are not

entitled to get any such benefit as they were not appointed by the

Competent Authority of the Government of Tamil Nadu and their initial

appointment was by the President of the District Level Society under

the scheme and this apart, the legal principles regarding the

regularization and permanent absorptions are now settled by the Apex

Court and this Court also considered all those judgments in

W.P.No.28633 to 28646 of 2014 dated 12.12.2017 and the relevant

paragraphs are extracted here under:

27. Considering the arguments advanced both by the
learned counsel for the petitioners as well as the learned
counsel for the respondents, this Court has to first consider
the factual matrix involved in these writ petitions on hand.

The writ petitioners, undoubtedly, were appointed as daily
wage employees in the year 2003 and they are continued in
service for more than ten years, is the claim set out in these
writ petitions. However, pursuant to the Judgment of the
Constitution Bench of the Hon'ble Supreme Court of India in
the case of
The State of Karnataka Vs. Umadevi
,
reported in (2006) 4 SCC 1 [herein after referred to as
“Umadevi Case”], one time benefit was granted by the

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Hon'ble Supreme Court of India in Paragraph (53) of the
Judgment.

28. Even before
the said judgment
, the State of Tamil
Nadu issued G.O.Ms.No.22, Personnel and Administrative
Reforms (F) Department, dated 28.02.2006. As per the said
Government Order, the temporary employees who have
completed ten years of service as on the date of the
Government Order can be regularised. Even prior to the
judgment of the Hon'ble Supreme Court of India, the
Government issued G.O.Ms.No.22, Personnel and
Administrative Reforms (F) Department, dated 28.02.2006,
granting the benefit of one time regularization in respect of
the temporary employees who have completed ten years of
service as on 28.02.2006. Thus, the State was extending
the benefit of regularization or permanent absorption to the
temporary/daily rated employees who have completed ten
years of service as on 28.02.2006.

29. Pursuant to the said Government order, large
number of temporary employees were conferred with the
benefit of regularization and based on that, the writ
petitioner also raised his claim for regularization. However,
after the Constitution Bench judgment rendered in
“Umadevi Case”, the State Government issued
G.O.Ms.No.74, Personnel and Administrative Department,

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dated 27.06.2013. In the above said G.O.Ms.No.74, the
Government have imposed certain conditions and those
conditions are akin to that of the recruitment rules in force.
The very idea of issuing G.O.Ms.No.74, is to provide certain
restricted concession to the temporary employees who were
otherwise appointed by following the recruitment rules in
force. Therefore, the prospectus of the large number of
employees who have served on daily wage basis are
prevented from getting their regularization. In other words,
the said G.O.Ms.No.74 prescribes certain conditions and
restrictions for regularization and for granting permanent
absorption. Thus, the persons who are eligible to be
regularized under G.O.Ms.No.22, are prevented from getting
the benefit from and out of the said Government order and
G.O.Ms.No.74, imposes certain restrictions.

30. Thus, the learned counsel brought to the notice of
this Court that in the similar circumstances, the learned
Single Judge of this Court dealt with the issues in
W.P.No.29346 of 2014 & etc.,batch and delivered a
judgment on 22.09.2017, setting aside the said
G.O.Ms.No.74, in respect of extending the same with
retrospective effect. In other words, the implementation of
the Government orders was restricted only prospectively and
accordingly, the relief of regularization was granted to those
writ petitioners.

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31. The learned Additional Government Pleader
brought to the notice of this Court that the State preferred
Writ Appeals in W.A.Sr.No.89134/17 in W.P.29346/14,
W.A.Sr.No.89136/17 in W.P.No. 7594/14, W.A.Sr.
No.89142/17 in W.P.No.15668/14, W.A.Sr.No.89143/17 in
W.P. No.13545/14,W.A.Sr.No. 89138/17 in
W.P.No.29212/14 on 13.11.2017, against
the said judgment

and the same is pending.

32. Thus, this Court has to consider the issues
independently and based on the judgments of the Apex
Court of India in the matter of regularization and permanent
absorption. However, the learned Additional Government
Pleader brought to the notice of this Court that the Hon'ble
Division Bench of this Court passed an order in the batch of
Writ Appeals in W.A.No.2911 of 2012 and etc., batch on
10.07.2014, wherein the Hon'ble Division Bench has
considered the terms and conditions imposed in
G.O.Ms.No.74 and passed an order stating that the services
shall not be disturbed in the light of the Government Order
passed in G.O.Ms.No.74, Personnel and Administrative
Reforms Department dated 27.06.2013 as well as the order
passed by the Hon'ble Supreme Court of India in Civil Appeal
Nos.2726-2729 of 2014 with Nos.2730-31 of 2014.

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33. The Additional Government Pleader is of the
opinion that the terms and conditions imposed in
G.O.Ms.No.74 had already been taken note of by the Hon'ble
Division Bench and the entire Government Order was upheld
and the direction was issued to pass orders in the light of the
G.O.Ms.No.74 and therefore, the judgment delivered by the
learned Single Judge, need not be relied upon and more so,
the State also preferred writ appeals against the said orders.

34. Under these circumstances, this Court has to
consider the issues independently based on the judgments of
the Apex Court of India.

35. The authoritative judgment in the subject of
regularization and permanent absorption is the judgment of
the Constitution Bench of the Hon'ble Supreme Court of India
in “Umadevi Case”. All other subsequent judgments cited
by the respective counsels are by the Hon'ble Two Judges
Bench of the Supreme Court of India. Thus, the binding
nature of the judgments rendered in respect of other cases
has to be cogently read and harmoniously interpreted based
on the legal principles settled by the Constitution Bench of
the Hon'ble Supreme Court of India.

36. Before considering the subject of regularization
and permanent absorption, this Court has to consider the

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interpretation of the judgments on “binding nature” or
“binding precedent” . In view of the fact that the learned
counsel for the petitioner has cited number of judgments,
which were passed subsequent to the Constitution Bench
judgment, stating that Paragraph (53) of the “Umadevi
Case” has been interpreted in different ways and under
different circumstances and the present case is also to be
considered and a direction to be issued for regularization. In
view of the fact that large number of judgments are cited
before this Court in the matter of regularization and
permanent absorption, now, this Court has to first decide
what all are the judgments which all are having a “binding
precedent” and on this reason, this Court has to consider
very interpretation of the concept regarding “binding
precedent”. In respect of judgments in relation to the
interpretation of “binding precedent”, this Court is inclined to
consider the very recent judgment of the Hon'ble Supreme
Court of India in the case of National Insurance Co. Ltd vs
Pranay Sethi and Others, reported in JT 2017 (10) SC

450. It is pertinent to note that it is a judgment by the
Constitution Bench of the Hon'ble Supreme Court of India
headed by His Lordship, Hon'ble Chief Justice of India, Dipak
Misra.CJI,. The Hon'ble Chief Justice of India delivered this
judgment and it is relevant to quote paragraphs (15 to 26):

“15. The aforesaid analysis in Santosh Devi (supra) may

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prima facie show that the two-Judge Bench has
distinguished the observation made in Sarla Verma’s case
but on a studied scrutiny, it becomes clear that it has really
expressed a different view than what has been laid down in
Sarla Verma (supra). If we permit ourselves to say so, the
different view has been expressed in a distinctive tone, for
the two-Judge Bench had stated that it was extremely
difficult to fathom any rationale for the observations made
in para 24 of the judgment in Sarla Verma’s case in respect
of self-employed or a person on fixed salary without
provision for annual increment, etc. This is a clear
disagreement with the earlier view, and we have no
hesitation in saying that it is absolutely impermissible
keeping in view the concept of binding precedents.

16. Presently, we may refer to certain decisions which deal
with the concept of binding precedent.

17.
In
State of Bihar v. Kalika Kuer
alias Kalika Singh
and others [JT (2003) (4) SC 489], it has been held:-

“10. … an earlier decision may seem to be incorrect to a
Bench of a coordinate jurisdiction considering the question
later, on the ground that a possible aspect of the matter
was not considered or not raised before the court or more
aspects should have been gone into by the court deciding
the matter earlier but it would not be a reason to say that
the decision was rendered per incuriam and liable to be

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ignored. The earlier judgment may seem to be not correct
yet it will have the binding effect on the later Bench of
coordinate jurisdiction. …”

17.1.The Court has further ruled:-

“10. … Easy course of saying that earlier decision was
rendered per incuriam is not permissible and the matter will
have to be resolved only in two ways — either to follow the
earlier decision or refer the matter to a larger Bench to
examine the issue, in case it is felt that earlier decision is
not correct on merits.”

18.
In
G.L. Batra v. State of Haryana and others
(2014)
13 SCC 759), the Court has accepted the said principle on
the basis of judgments of this Court rendered in
Union of
India v. Godfrey Philips India Ltd.
(
1985) 4 SCC 369),
Sundarjas Kanyalal Bhatija v. Collector, Thane,
Maharashtra
(
1989) 3 SCC 396)and Tribhovandas
Purshottamdas Thakkar v. Ratilal Motilal Patel
(AIR
1968 SC 372).
It may be noted here that the Constitution
Bench in Madras Bar Association v. Union of India and
another [JT 2015(5)SC 33]has clearly stated that the
prior Constitution Bench judgment in Union of India v.

Madras Bar Association [JT 2010 (5) SC 553]is a
binding precedent. Be it clarified, the issues that were put to
rest in the earlier Constitution Bench judgment were treated
as precedents by latter Constitution Bench.

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19.
In this regard, we may refer to a passage from
Jaisri
Sahu v. Rajdewan Dubey
(AIR 1962 SC 83):-

“11. Law will be bereft of all its utility if it should be thrown
into a state of uncertainty by reason of conflicting decisions,
and it is therefore desirable that in case of difference of
opinion, the question should be authoritatively settled. It
sometimes happens that an earlier decision given by a
Bench is not brought to the notice of a Bench hearing the
same question, and a contrary decision is given without
reference to the earlier decision. The question has also been
discussed as to the correct procedure to be followed when
two such conflicting decisions are placed before a later
Bench. The practice in the Patna High Court appears to be
that in those cases, the earlier decision is followed and not
the later. In England the practice is, as noticed in the
judgment in Seshamma v. Venkata Narasimharao that the
decision of a court of appeal is considered as a general rule
to be binding on it. There are exceptions to it, and one of
them is thus stated in Halsbury’s Laws of England, 3rd Edn.,
Vol. 22, para 1687, pp. 799-800:

“The court is not bound to follow a decision of its own if
given per incuriam. A decision is given per incuriam when
the court has acted in ignorance of a previous decision of its
own or of a Court of a co-ordinate jurisdiction which covered
the case before it, or when it has acted in ignorance of a

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decision of the House of Lords.
In the former case it must
decide which decision to follow, and in the latter it is bound
by the decision of the House of Lords.”

In
Virayya v. Venkata Subbayya
it has been held by the
Andhra High Court that under the circumstances aforesaid
the Bench is free to adopt that view which is in accordance
with justice and legal principles after taking into
consideration the views expressed in the two conflicting
Benches, vide also the decision of the Nagpur High Court in
Bilimoria v. Central Bank of India. The better course would
be for the Bench hearing the case to refer the matter to a
Full Bench in view of the conflicting authorities without
taking upon itself to decide whether it should follow the one
Bench decision or the other. We have no doubt that when
such situations arise, the Bench hearing cases would refer
the matter for the decision of a Full Court.”

20. Though the aforesaid was articulated in the context of
the High Court, yet this Court has been following the same
as is revealed from the aforestated pronouncements
including that of the Constitution Bench and, therefore, we
entirely agree with the said view because it is the precise
warrant of respecting a precedent which is the fundamental
norm of judicial discipline.

21.
In the context, we may fruitfully note what has been
stated in
Pradip Chandra Parija and others v. Pramod

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Chandra Patnaik and others [JT (2002) 5 SCC 23]. In
the said case, the Constitution Bench was dealing with a
situation where the two-Judge Bench disagreeing with the
three-Judge Bench decision directed the matter to be placed
before a larger Bench of five Judges of this Court. In that
scenario, the Constitution Bench stated:-

“6. … In our view, judicial discipline and propriety demands
that a Bench of two learned Judges should follow a decision
of a Bench of three learned Judges. But if a Bench of two
learned Judges concludes that an earlier judgment of three
learned Judges is so very incorrect that in no circumstances
can it be followed, the proper course for it to adopt is to
refer the matter before it to a Bench of three learned Judges
setting out, as has been done here, the reasons why it could
not agree with the earlier judgment. …

22.
In
Chandra Prakash and others v. State of U.P. and
another
[JT (2002) (3) SC 493], another Constitution
Bench dealing with the concept of precedents stated thus:-

“22. … The doctrine of binding precedent is of utmost
importance in the administration of our judicial system. It
promotes certainty and consistency in judicial decisions.
Judicial consistency promotes confidence in the system,
therefore, there is this need for consistency in the
enunciation of legal principles in the decisions of this Court.
It is in the above context, this Court in the case of Raghubir

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Singh (1989) 2 SCC 754)held that a pronouncement of law
by a Division Bench of this Court is binding on a Division
Bench of the same or smaller number of Judges. …

23. Be it noted, Chandra Prakash concurred with the view
expressed in Raghubir Singh and Pradip Chandra Parija.

24.
In
Sandhya Educational Society and another v.
Union of India and others
(2014) 7 SCC 701), it has been
observed that judicial decorum and discipline is paramount
and, therefore, a coordinate Bench has to respect the
judgments and orders passed by another coordinate Bench.

In
Rattiram and others v. State of Madhya Pradesh

(2012) 4 SCC 516), the Court dwelt upon the issue what
would be the consequent effect of the latter decision which
had been rendered without noticing the earlier decisions.

The Court noted the observations in Raghubir Singh
(supra) and reproduced a passage from Indian Oil
Corporation Ltd. v. Municipal Corporation (1995) 4 SCC

96)which is to the following effect:-

“8. … The Division Bench of the High Court in Municipal
Corpn., Indore v. Ratnaprabha Dhanda was clearly in error
in taking the view that the decision of this Court in
Ratnaprabha was not binding on it. In doing so, the Division
Bench of the High Court did something which even a later
coequal Bench of this Court did not and could not do. …

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25. It also stated what has been expressed in Raghubir
Singh (supra) by R.S. Pathak, C.J. It is as follows:-

“28. We are of opinion that a pronouncement of law by a
Division Bench of this Court is binding on a Division Bench of
the same or a smaller number of Judges, and in order that
such decision be binding, it is not necessary that it should
be a decision rendered by the Full Court or a Constitution
Bench of the Court. …”

26. In Rajesh (supra) the three-Judge Bench had delivered
the judgment on 12.04.2013. The purpose of stating the
date is that it has been delivered after the pronouncement
made in Reshma Kumari’s case. On a perusal of the decision
in Rajesh (supra), we find that an attempt has been made
to explain what the two- Judge Bench had stated in
Santosh Devi (supra). The relevant passages read as
follows:-

“8. Since, the Court in Santosh Devi case actually intended
to follow the principle in the case of salaried persons as laid
down in Sarla Verma case and to make it applicable also to
the self-employed and persons on fixed wages, it is clarified
that the increase in the case of those groups is not 30%
always; it will also have a reference to the age. In other
words, in the case of self-employed or persons with fixed
wages, in case, the deceased victim was below 40 years,
there must be an addition of 50% to the actual income of

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the deceased while computing future prospects. Needless to
say that the actual income should be income after paying
the tax, if any. Addition should be 30% in case the deceased
was in the age group of 40 to 50 years.

9. In Sarla Verma case, it has been stated that in the case
of those above 50 years, there shall be no addition. Having
regard to the fact that in the case of those self-employed or
on fixed wages, where there is normally no age of
superannuation, we are of the view that it will only be just
and equitable to provide an addition of 15% in the case
where the victim is between the age group of 50 to 60 years
so as to make the compensation just, equitable, fair and
reasonable. There shall normally be no addition thereafter.”

37. The Constitution Bench of the Hon'ble Supreme
Court of India, while dealing with the cases of accident
claims, has elaborately discussed about the “binding
precedent”. The case in relation to the Motor Accident
Claims, the case of “Sarla Verma” was being followed by all
the Courts across the Country for the purpose of awarding
compensation. When the question arosed that the “binding
nature” of the said case of “Sarla Verma” delivered by the
Hon'ble Supreme Court of India, the Constitution Bench
headed by the Hon'ble Chief Justice of India held that the
principles laid down in the case of
“Virayya v. Venkata

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Subbayya” , it has been held by the Andhra Pradesh High
Court that under the circumstances aforesaid the Bench is
free to adopt that view which is in accordance with justice
and legal principles after taking into consideration the views
expressed in the two conflicting Benches, it is further held
that in the case of
State of Bihar v. Kalika Kuer
alias
Kalika Singh and others, reported in [JT (2003) 4 SC
489], held that the earlier judgment may seem to be not
correct yet it will have the binding effect on the later Bench
of coordinate jurisdiction.

Their Lordships rendered the case
of
Chandra Prakash and others v. State of U.P. and
another
, reported in [JT 2002 (3) SC 493], held that
the doctrine of binding precedent is of utmost importance in
the administration of our judicial system. It promotes
certainty and consistency in judicial decisions. Judicial
consistency promotes confidence in the system, therefore,
there is this need for consistency in the enunciation of legal
principles in the decisions of this Court.

38. By enumerating the legal principle in this regard,
the Apex Court of India held that the judgment by the Larger
Bench of the Courts are to be treated as “binding precedent”,
while deciding the legal principles involved in the particular
case.

39. Another Constitution Bench of the Hon'ble

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Supreme Court of India in the case of Padma Sundara Rao
and Others Vs. State of Tamil Nadu and others,
reported in (2002) 3 SCC 533, and the relevant paragraph
(9) of the Judgment is extracted hereunder:

“9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits
in with the fact situation of the decision on which
reliance is placed. There is always peril in treating
the words of a speech or judgment as though they
are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the
setting of the facts of a particular case, said Lord
Morris in Herrington v. British Railways Board
[(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom
British Railways Board v. Herrington, (1972) 1 All ER
749 (HL)]] . Circumstantial flexibility, one additional
or different fact may make a world of difference
between conclusions in two cases.”

40. In view of the legal principle settled in the matter
of “binding precedent”, now, this Court is bound by the legal
principles settled by the Constitution Bench of the Hon'ble
Supreme Court of India in the “Umadevi Case”.

Admittedly, there is no other subsequent Constitution Bench
judgment in respect of the subject of regularization and
permanent absorption. The last judgment rendered by the

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Constitution Bench in the subject matter is “Umadevi
Case”. Thus, the legal principles settled by the Constitution
Bench in “Umadevi Case” are of “binding precedent” or to
be followed as “binding precedent”. Thus, the facts and
circumstances of the present writ petition has to be
considered only in the light of the principles laid down by the
Constitution Bench. All other judgments subsequently
passed by the Hon'ble Supreme Court of India may have
certain distinctions far and against. However, these
judgments are to be interpreted only based on the facts and
circumstances prevailing in that particular case and
therefore, this Court cannot consider those judgments
delivered on a particular facts in relation to that particular
case. However, the legal principles are to be considered in
relation to the facts and circumstances of the present case
on hand.

41. Let us look into the basic principles enunciated by
the Constitution Bench in the matter of regularization and
permanent absorption. Paragraph (5) of the “Umadevi
Case” is extracted hereunder:

“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

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justice. The question arises, equity to whom? Equity
for the handful of people who have approached the
court with a claim, or equity for the teeming millions
of this country seeking employment and seeking a
fair opportunity for competing for employment?
When one side of the coin is considered, the other
side of the coin has also to be considered and the
way open to any court of law or justice, is to adhere
to the law as laid down by the Constitution and not to
make directions, which at times, even if do not run
counter to the constitutional scheme, certainly tend
to water down the constitutional requirements. It is
this conflict that is reflected in these cases referred
to the Constitution Bench”

42. This Court wants to look into the very findings
made by the Hon'ble Supreme Court of India in the above
said paragraph (5), the Apex Court has conceded that the
Hon'ble Supreme Court of India had also on occasions,
issued directions, which could not be said to be consistent
with the Constitutional schemes of public employment. Such
directions are issued presumably on the basis of equitable
considerations or individualisation of justice. The Hon'ble
Supreme Court of India raised a question that equity to
whom? Equity for the handful of people who have
approached the Court with the claim, or equity for the

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teeming millions of this Country seeking employment and
seeking a fair opportunity for competing for employment?
When one side of the coin is considered, the other side of the
coin has also to be considered and the way open to any
Court of law or justice, is to adhere to the law as laid down
by the Constitution and not to make directions, which at
times, even if do not run counter to the constitutional
scheme, certainly tend to water down the constitutional
requirements. It is this Conflict that reflected in these cases
referred to the Constitution Bench.

43. This Court is able to vitualize the strong concern
recorded by the Hon'ble Supreme Court of India. The
concern raised by the Constitution Bench is that by granting
relief to a handful of people, the large sector of meritorious
youth of this great nation cannot be deprived of their
constitutional rights. Under this pretext, the Constitution
Bench commenced its consideration in “Umadevi Case”.
Thus, the very enumeration in the above paragraph is crystal
clear that the Constitution Bench has laid down the principle
in the matter of regularization and permanent absorption and
the idea of the Hon'ble Supreme Court of India has to stop
the practice of appointing employees, through back door on
extraneous consideration by showing favoritism and
nepotism.

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44.Further, Paragraph (10) of the “Umadevi Case” is
extracted hereunder:

“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
Secy., State of Karnataka v. Umadevi
(1)
[(2004) 7 SCC 132 : 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 Constitution Bench in
view of the conflict and in the light of the arguments
raised by the Additional Solicitor General. The order
of reference is reported in
Secy., State of Karnataka
v. Umadevi
(2) [(2006) 4 SCC 44 : (2003) 10 Scale
388] . 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 (10) SCR 120] , State of Haryana

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v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S)
825 : (1992) 21 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 State of H.P. v.

Suresh Kumar Verma [(1996) 7 SCC 562 : 1996
SCC (L&S) 645 : (1996) 33 ATC 336 : AIR 1996 SC
1565 : (1996) 1 SCR 972] , 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 B.N. Nagarajan v.
State of Karnataka [(1979) 4 SCC 507 : 1980 SCC
(L&S) 4 : (1979) 3 SCR 937] on the other, which
have been brought out in one of the judgments
under appeal of the Karnataka High Court in
State of
Karnataka v. H. Ganesh Rao
[(2001) 4 Kant LJ 466
(DB)] , decided on 1-6-2001 the learned Additional
Solicitor General urged that the scheme for
regularisation is repugnant to
Articles 16(4)
, 309
,
and
of the Constitution and, therefore,
these cases are required to be heard by a Bench of
five learned Judges (Constitution Bench).

2. On the other hand, Mr M.C. Bhandare, learned
Senior Counsel, appearing for the employees urged
that such a scheme for regularisation is consistent

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with the provisions of
Articles 14
and
of the
Constitution.

3. Mr V. Lakshmi Narayan, learned counsel
appearing in CCs Nos. 109-498 of 2003, 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.”

45. The above said Paragraph (10), stipulates that
there were conflicting decisions by three-Judge Benches of
this Court and by two-Judge Benches of the Hon'ble Supreme
Court of India and therefore, the Hon'ble Supreme Court of
India has considered that the question required to be
considered by a larger Bench. It is further observed that
when the matters came up before a three-Judge Bench, the
Bench in turn felt that the matter required consideration by a

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Constitution Bench in view of the conflict and in the light of
the arguments raised by the Additional Solicitor General. In
the reference made by the Hon'ble three-Judge Bench itself
decided that the scheme for regularisation is repugnant to

Articles 16(4)
, 309
, 320
and
of the Constitution and,
therefore, these cases are required to be heard by a Bench
of five learned Judges(Constitution Bench).

46. In paragraph (11) of the “Umadevi Case”, it is
stated that in addition to the equality clause represented by

Article 14
of the Constitution,
Article 16
has specifically
provided for equality of opportunity in matters of public
employment. Buttressing these fundamental rights,
Article
provides that subject to the provisions of the
Constitution, Acts of the legislature may regulate the
recruitment and conditions of service of persons appointed to
public services and posts in connection with the affairs of the
Union or of a State.

47. In view of the interpretation placed on
Article 12
of
the Constitution by this Court, obviously, these principles
also govern the instrumentalities that come within the
purview of
Article 12
of the Constitution. With a view to
make the procedure for selection fair, the Constitution by

Article 315
has also created a Public Service Commission for
the Union and the Public Service Commissions for the States.

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Article 320
deals with the functions of the Public Service
Commissions and mandates consultation with the
Commission on all matters relating to methods of
recruitment to civil services and for civil posts and other
related matters. As a part of the affirmative action
recognised by
Article 16
of the Constitution,
Article 335

provides for special consideration in the matter of claims of
the members of the Scheduled Castes and Scheduled Tribes
for employment.

48.Further, Paragraph (12) of the“Umadevi Case”
reads as follows:

“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 sanctioned and that are required to be
filled in terms of the relevant procedure established by
the Constitution or for work in temporary posts or
projects that are not needed permanently. This right of
the Union or of the State Government cannot but be
recognised and there is nothing in the Constitution
which prohibits such engaging of persons temporarily
or on daily wages, to meet the needs of the situation.

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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
Article 226
of the Constitution or under
Article
of the Constitution, to direct absorption in
permanent employment of those who have been
engaged without following a due process of selection
as envisaged by the constitutional scheme.”

49. The spirit of Paragraph (12) of the “Umadevi
Case” judgment is that the temporary engagements like
daily wage appointments, consolidated pay appointments
and temporary appointments and 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

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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
Article 226
of the Constitution or under

Article 32
of the Constitution, to direct absorption in
permanent employment of those who have been engaged
without following a due process of selection as envisaged by
the constitutional scheme. Thus, it is made clear by the
Constitutional Bench that regular recruitment rules in force,
followed scrupulously by the competent authorities and
engagements on temporary basis cannot be resorted or the
same cannot lead to permanent absorption or regularization.
Further, it is stated that the Government is entitled to
appoint the persons on daily wages/consolidated
pay/temporary basis, if a Government is of the opinion that a
project has to be implemented or a special works to be
carried out, then they are at liberty to do so, by engaging
the temporary employees. Such being the concept accepted
by the Hon'ble Supreme Court of India, no doubt, a mere
appointment on temporary/daily wage basis cannot
constitute a right for the employees to claim regularization or
permanent absorption.

50. Further, Paragraph (13) of the “Umadevi Case”
judgment is extracted hereunder:

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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 Constitution 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 Constitution. The approving of such acts
also results in depriving many of their opportunity to
compete for public employment. We have, therefore,
to consider the question objectively and based on the
constitutional and statutory provisions.
In this
context, we have also to bear in mind the exposition
of law by a Constitution Bench in
State of Punjab v.
Jagdip Singh
[(1964) 4 SCR 964 : AIR 1964 SC 521] .
It was held therein: (SCR pp. 971-72)
“In our opinion where a government servant has no

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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.”

51. This Court cannot omit the powerful statement
made by the Constitution Bench in respect of providing equal
opportunity and in respect of implementing the equality
clause enshrined under
Article 14

& 16
of the Constitution.
In the above said paragraph (13), the Hon'ble Supreme
Court of India has emphasized that 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
Constitution. We, the people of India, while adopting the
Constitution.

52. The approving of such acts also results in depriving
many of their opportunity to compete for public employment.
The Constitution Bench of “Umadevi Case”, considered the
proposition of law
laid down by
the previous Constitution

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Bench in the case of
State of Punjab Vs. Jagdip Singh
,
reported in [AIR (1964) SC 521].

The earlier
Constitution Bench in the case of
State of Punjab Vs.
Jagdip Singh
, held that 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.

53. In paragraph (14) of the “Umadevi Case”
judgment, the Hon'ble Supreme Court of India has
elaborately discussed about various orders of the Courts
either interim orders or final orders which were brought to
the notice of the Constitution Bench. The Hon'ble Supreme
Court of India came to the conclusion that those orders more
or less was the issue of directions for continuation or
absorption without referring to the legal position obtaining.
It was brought to the notice of this Court 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.

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54. The very arguments advanced by the learned
counsel for the State of Karnataka is that a chaos was
created on account of various contradicting orders passed by
the High Courts in the matter of regularization or permanent
absorption in order to settle the legal principles. The learned
counsel urged the Hon'ble Supreme Court of India to take
note of the fact that there is a chaos prevailing in respect of
the regularization and permanent absorption of the
temporary/daily wages employees and brought to the notice
of the Hon'ble Supreme Court of India that the High Courts
would be precluded from issuing any such directions or
passing such orders in contrary to the legal principles in the
matters of regularization or permanent absorption or
appointment. The observation made in this regard is that
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.

55. Let us come to paragraph (20) of the “Umadevi
Case” judgment which is extracted hereunder:

“20. The decision in 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] dealt with a scheme framed by the State of

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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 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
Article 141
of
the Constitution, what this Court lays down is the law of the
land. Its decisions are binding on all the courts. Its main role
is to interpret the constitutional and other statutory
provisions bearing in mind the fundamental philosophy of the
Constitution. We have given unto ourselves a system of
governance by rule of law. The role of the Supreme Court is
to render justice according to law. As one jurist put it, the
Supreme Court is expected to decide questions of law for the
country and not to decide individual cases without reference
to such principles of law. Consistency is a virtue. Passing
orders not consistent with its own decisions on law, is bound
to send out confusing signals and usher in judicial chaos. Its

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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 arbitrariness highlighting the statement, that
equity tends to vary with the Chancellor's foot.”

56. The decision in the case of Dharwad Distt.
PWD
Literate Daily Wage Employees Assn. Vs. State of
Karnataka
, reported in (1990) 2 SCC 396, was
considered in the above paragraph. It is observed that the
role of the Court to interpret the law and decide cases
coming before it, according to law. Orders which are
inconsistent with the legal conclusions arrived at by the
Court in the self same judgment not only create confusion
but also tend to usher in arbitrariness highlighting the
statement, that equity tends to vary with the Chancellor's
foot.

57. As one Jurist put it, the Hon'ble Supreme Court of
India has accepted the decision, the question 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 result in judicial chaos.
The observation made in this regard are certainly to be

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followed by all the Courts across the Country.

58.
In paragraph (40) of the Judgment, the Apex
Court referred the spirit of
Kesavananda Bharati Vs. State
of Kerala
, reported in (1973) 4 SCC 225, the Court held
that
Article 14

& 16
which was described as a facet of
Article
is part of the basic structure of the Constitution.

In the
case of
Indra Sawhney Vs. Union of India
, reported in
(2000) 1 SCC 168
,
the said decision
was reiterated how
neither the Parliament nor the legislature could transgress
the basic feature of the Constitution, namely, the principle of
equality enshrined in
Article 14
of which
Article 16(1)
is a
facet.

59.
In paragraph (41), the earlier decision in the
above said case of
Indra Sawhney Vs. Union of India
,
reported in (2000) 1 SCC 168, it is held that equality and
equal opportunity is a basis feature of our Constitution, has
explained the exultant position of
Articles 14
and
of the
Constitution in the scheme of things.

60. The judgment of the another Constitution Bench in
the case of
D.C.Wadhwa(Dr.) Vs. State of Bihar
,
reported in (1987) 1 SCC 378 and the relevant paragraph
(3) is extracted hereunder:

“3.The rule of law constitutes the core of our

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Constitution and it is the essence of the rule of law
that the exercise of the power by the State whether it
be the legislature or the executive or any other
authority should be within the constitutional
limitations and if any practice is adopted by the
executive which is in flagrant and systematic violation
of its constitutional limitations, Petitioner 1 as a
member of the public would have sufficient interest to
challenge such practice by filing a writ petition and it
would be the constitutional duty of this Court to
entertain the writ petition and adjudicate upon the
validity of such practice”

61. Let us now look into the way in which the
Constitution Bench has arrived the conclusion in the matter
of regularization and permanent absorption in “Umadevi
Case” and the relevant paragraphs (43) to (50), which all
are extracted hereunder:

“43. Thus, it is clear that adherence to the rule
of equality in public employment is a basic feature of
our Constitution and since the rule of law is the core
of our Constitution, a court would certainly be
disabled from passing an order upholding a violation
of
Article 14
or in ordering the overlooking of the
need to comply with the requirements of
Article 14

read with
Article 16
of the Constitution. Therefore,

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consistent with the scheme for public employment,
this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among
qualified persons, the same would not confer any
right on the appointee. If it is a contractual
appointment, the appointment comes to an end at
the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the
same would come to an end when it is discontinued.
Similarly, a temporary employee could not claim to
be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed
in regular service or made permanent, merely on the
strength of such continuance, if the original
appointment was not made by following a due
process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees
whose period of employment has come to an end or
of ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High
Courts acting under
Article 226
of the Constitution,

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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 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

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permanency on those who have been appointed on
ad hoc basis, temporary basis, or based on no
process of selection as envisaged by the rules. This
Court has in various decisions applied the principle of
equal pay for equal work and has laid down the
parameters for the application of that principle. The
decisions are rested on the concept of equality
enshrined in our Constitution in the light of the
directive principles in that behalf. But the acceptance
of that principle cannot lead to a position where the
court could direct that appointments made without
following the due procedure established by law, be
deemed permanent or issue directions to treat them
as permanent. Doing so, would be negation of the
principle of equality of opportunity. The power to
make an order as is necessary for doing complete
justice in any cause or matter pending before this
Court, would not normally be used for giving the go-

by to the procedure established by law in the matter
of public employment. Take the situation arising in
the cases before us from the State of Karnataka.
Therein, after Dharwad decision [(1990) 2 SCC 396 :

1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1
SCR 544] the Government had issued repeated
directions and mandatory orders that no temporary
or ad hoc employment or engagement be given.

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Some of the authorities and departments had ignored
those directions or defied those directions and had
continued to give employment, specifically interdicted
by the orders issued by the executive. Some of the
appointing officers have even been punished for their
defiance. It would not be just or proper to pass an
order in exercise of jurisdiction under
Article 226
or
32 of the Constitution or in exercise of power under

Article 142
of the Constitution permitting those
persons engaged, to be absorbed or to be made
permanent, based on their appointments or
engagements. Complete justice would be justice
according to law and though it would be open to this
Court to mould the relief, this Court would not grant
a relief which would amount to perpetuating an
illegality.

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 bargain—not at arm's length—

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since he might have been searching for some
employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground alone,
it would not be appropriate to jettison the
constitutional scheme of appointment and to take the
view that a person who has temporarily or casually
got employed should be directed to be continued
permanently. By doing so, it will be creating another
mode of public appointment which is not permissible.

If the court were to void a contractual employment of
this nature on the ground that the parties were not
having equal bargaining power, that too would not
enable the court to grant any relief to that employee.
A total embargo on such casual or temporary
employment is not possible, given the exigencies of
administration and if imposed, would only mean that
some people who at least get employment
temporarily, contractually or casually, would not be
getting even that employment when securing of such
employment brings at least some 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

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nature of it and the consequences flowing from it. In
other words, even while accepting the employment,
the person concerned knows the nature of his
employment. It is not an appointment to a post in
the real sense of the term. The claim acquired by him
in the post in which he is temporarily employed or
the interest in that post cannot be considered to be
of such a magnitude as to enable the giving up of the
procedure established, for making regular
appointments to available posts in the services of the
State. The argument that since one has been working
for some time in the post, it will not be just to
discontinue him, even though he was aware of the
nature of the employment when he first took it up, is
not one that would enable the jettisoning of the
procedure established by law for public employment
and would have to fail when tested on the touchstone
of constitutionality and equality of opportunity
enshrined in
Article 14
of the Constitution.

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

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Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 :

(1992) 21 ATC 403 : (
1992) 3 SCR 826] , Jacob
[Jacob M. Puthuparambil v. Kerala Water Authority
,
(1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (
1991) 15
ATC 697] and Gujarat Agricultural University [Gujarat
Agricultural University v. Rathod Labhu Bechar
,
(2001) 3 SCC 574 : 2001 SCC (L&S) 613] 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 Diplock in Council for
Civil Services Union v. Minister of Civil Service [1985
AC 374 : (1984) 3 All ER 935 : (
1984) 3 WLR 1174
(HL)] , National Buildings Construction Corpn. v. S.
Raghunathan
[(1998) 7 SCC 66 : 1998 SCC (L&S)

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1770] and
Chanchal Goyal (Dr.) v. State of Rajasthan

[(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .] 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 Dharwad decision [(1990) 2 SCC
396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :

(1990) 1 SCR 544] . 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

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though 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 to continue them where they are or to make
them permanent. The State cannot constitutionally

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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
Articles 14
and
of the Constitution, are violated. It is stated that
the State has treated the employees unfairly by
employing them on less than minimum wages and
extracting work from them for a pretty long period in
comparison with those directly recruited who are
getting more wages or salaries for doing similar
work. The employees before us were engaged on
daily wages in the 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 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

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temporarily or on contractual basis, to claim that
they have a right to be absorbed in service. As has
been held by this Court, they cannot be said to be
holders of a post, since, a regular appointment could
be made only by making appointments consistent
with the requirements of
Articles 14
and
of the
Constitution. The right to be treated equally with the
other employees employed on daily wages, cannot be
extended to a claim for equal treatment with those
who were regularly employed. That would be treating
unequals as equals. It cannot also be relied on to
claim a right to be absorbed in service even though
they have never been selected in terms of the
relevant recruitment rules. The arguments based on

Articles 14
and
of the Constitution 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
Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the
employees had worked for some length of time but
this has also been brought about by the pendency of
proceedings in tribunals and courts initiated at the
instance of the employees. Moreover, accepting an

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argument of this nature would mean that the State
would be permitted to perpetuate an illegality in the
matter of public employment and that would be a
negation of the constitutional scheme adopted by us,
the people of India. It is therefore not possible to
accept the argument that there must be a direction
to make permanent all the persons employed on
daily wages. When the court is approached for relief
by way of a writ, the court has necessarily to ask
itself whether the person before it had any legal right
to be enforced. Considered in the light of the very
clear constitutional scheme, it cannot be said that the
employees have been able to establish a legal right
to be made permanent even though they have never
been appointed in terms of the relevant rules or in
adherence of
Articles 14
and
of the Constitution.

50. It is argued that in a country like India
where there is so much poverty and unemployment
and there is no equality of bargaining power, the
action of the State in not making the employees
permanent, would be violative of
Article 21
of the
Constitution. But the very argument indicates that
there are so many waiting for employment and an
equal opportunity for competing for employment and
it is in that context that the Constitution as one of its
basic features, has included
Articles 14
, 16
and
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so as to ensure that public employment is given only
in a fair and equitable manner by giving all those who
are qualified, an opportunity to seek employment. In
the guise of upholding rights under
Article 21
of the
Constitution, a set of persons cannot be preferred
over a vast majority of people waiting for an
opportunity to compete for State employment. The
acceptance of the argument on behalf of the
respondents would really negate the rights of the
others conferred by
Article 21
of the Constitution,
assuming that we are in a position to hold that the
right to employment is also a right coming within the
purview of
Article 21
of the Constitution. The
argument that
Article 23
of the Constitution is
breached because the employment on daily wages
amounts to forced labour, cannot be accepted. After
all, the employees accepted the employment at their
own volition and with eyes open as to the nature of
their employment. The Governments also revised the
minimum wages payable from time to time in the
light of all relevant circumstances. It also appears to
us that importing of these theories to defeat the
basic requirement of public employment would defeat
the constitutional scheme and the constitutional goal
of equality.”

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62. In paragraph (43), it is clear that adherence to
the rule of equality in public employment is a basic feature
of our Constitution when it is clarified that adherence to the
rule of equality in public employment is a basic feature of the
Constitution, certainly, no person can deviate the principles
in this regard and therefore, appointment in accordance with
the recruitment rules in force by the competent authorities is
the constitutional mandate and any deviation to be construed
as violation of the constitutional principles. It is observed
that 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 temporary employee could not claim to be made
permanent on the expiry of his term of appointment. It has
also to be clarified that merely because a temporary
employee or a casual wage worker is continued for a time
beyond the term of his appointment, he would not be
entitled to be absorbed in regular service or made
appointment, 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.

63. 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

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employees who by the very nature of their appointment do
not acquire any right. The High Courts acting under
Article
of the Constitution, should not ordinarily issue directions
for absorption, regularization, or permanent continuance
unless the recruitment itself was made regularly and in
terms of constitutional scheme.

64. The spirit of Paragraph (43) is applicable to the
facts and circumstances of the present writ petition on hand.
In the present writ petition, the writ petitioners were
appointed on daily wage basis as Nominal Muster Rolls
employees. The mere continuance or the length of service
rendered alone cannot be a ground for granting the relief of
regularization. Thus, the very legal principles settled by the
Constitution Bench has to be fit in with the facts and
circumstances of the present writ petition. Further, the
Hon'ble Supreme Court of India deals with the “litigious
employment”. Of course, the situation does not arise in the
present case. The interim order of Status Quo granted by
this Court has not been properly implemented by reinstating
the petitioners in service and the Contempt petition filed by
the writ petitioners were also posted along with the writ
petition for final disposal. Thus, the concept of “litigious
employment” would not arise in respect of the present writ
petition. Therefore, the petitioners have not continued in
service by virtue of the interim order of Status Quo granted

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by this Court. However, their services were ousted, after
filing of the writ petition.

65. Paragraph (44) of the “Umadevi Case” judgment
deals with the concept of “equal pay for equal work”. Thus,
it may not be required to elaborate the paragraph as far as
the present case on hand is concerned.

66. Paragraph (45) of the above said judgment states
that the Apex Court of India held that, while directing that
appointments, temporary or casual, be regularized 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 bargain- not at
arm's length – Since he might have been searching for some
employment so as to eke out his livelihood and accepts
whatever he gets. But on that ground alone, it would not be
appropriate to jettison the constitutional scheme of
appointment and to take the view that a person who has
temporarily or casually got employed should be directed to
be continued permanently. By doing so, it will be creating
another mode of public appointment which is not

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permissible. A total embargo of 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.

67. 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 this
context that one has to proceed on the basis that the
employment was accepted fully knowing the nature of it and
the consequences flowing from it. In other words, even
while accepting the employment, the person concerned
knows the nature of his employment. It is not an
appointment to a post in the real sense of the term. The
claim acquired by him in the post in which he is temporarily
employed or the interest in that post cannot be considered to
be of such a magnitude, so as to enable the giving up of the
procedure established, for making regular appointments to
available posts in the services of the State.

68. In Paragraph (46) of the “Umadevi Case”
judgment, their Lordships held that the invocation of the

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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 they had not
been selected in terms of the rules for appointment. The
fact that in certain cases the court had directed
regularization of the employees involved in those cases
cannot be made use of, to found a claim based on legitimate
expectation. The argument if accepted would also run
counter to the constitutional mandate. The argument in that
behalf has therefore to be rejected.

69. Paragraph (47) of the “Umadevi Case” judgment
enumerates that 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.

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70. In paragraph (48) of the “Umadevi Case”
Judgment, the Constitution Bench considered the right of the
employees thus appointed, under
Articles 14
and
of the
Constitution, are violated. Even in “Umadevi Case”, those
employees before the Supreme Court of India were engaged
on daily wages in the department concerned on a daily 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 par with a regularly recruited candidate, and
made permanent in employment, even assuming that the
principle could be invoked for claiming equal wages for equal
work. There is no fundamental right for those who have
been employed on daily wages or temporarily or on
contractual basis, to claim that they have a right to be
absorbed in service. As has been held by this Court, they
cannot be said to be holders of a post, since, a regular
appointment could be made only by making appointments
consistent with the requirements of
Articles 14
and
of the
Constitution.

71. In paragraph (49), it is ruled that the rule of law

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compels the State to make appointments as envisaged by
the Constitution and in the manner we have indicated by the
Hon'ble Supreme Court of India in the judgment of
“Umadevi Case”. When the Court is approached by way of
a writ, the Court has necessarily to ask itself whether the
person before it had any legal right to be enforced. Even,
the Constitution Bench dealt with the
Article 21
of the
Constitution of India, in a Country like India, where there is
so much poverty and unemployment and there is no equality
of bargaining power, the action of the State in not making
the employees permanent, would be violative of
Article 21
of
the Constitution. But the very argument indicates that there
are so many waiting for employment and an equal
opportunity for competing for employment and it is in that
context, the Constitution as one of its basic features, has
included Articles 14,16 and 309 so as to ensure that public
employment is given only in a fair and equitable manner by
giving all those who are qualified, an opportunity to seek
employment. In the guise of upholding rights under
Article
of the Constitution, a set of persons cannot be preferred
over a vast majority of people waiting for an opportunity to
compete for State employment.

72. Now, let us look into the important paragraph
urged by the learned counsel for the petitioner, i.e.,
paragraph (53) of the Judgment of “Umadevi Case”.

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Paragraph (53) of the Judgment is extracted
hereunder:

“53. One aspect needs to be clarified. There
may be cases where irregular appointments (not
illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :

(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4
SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
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 have to be considered on merits in
the light of the principles settled by this Court in the
cases abovereferred 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 courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those

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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.”

73. The above said paragraph (53) of the “Umadevi
Case” is a one time relief, of Course, granted by the
Hon'ble Supreme Court of India to mitigate the hardship, if
any, caused to the temporary employees. Now, the question
arises how long the benefit granted under paragraph (53)
can be extended to the employees and what is the
interpretation of the subsequent judgment by the Hon'ble
Supreme Court of India in respect of paragraph (53) of the
judgment of the Constitution Bench.

74. No doubt, the Constitution Bench of the Hon'ble
Supreme Court of India, while stopping the entire irregular
appointments and back door appointments had taken note of
the fact that certain reliefs are required in respect of the
employees who are already regularized or in respect of those

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persons, a proposal is already kept pending. Certainly, the
Hon'ble Supreme Court of India have never intended to grant
the relief of regularization or permanent absorption in public
employment contrary to the legal principles settled in earlier
paragraphs. Thus, paragraph (53) of the judgment has to be
understood harmoniously and together with the legal
principles settled by the Constitution Bench in earlier
paragraphs.

75. Thus, this Court is of an undoubted opinion that
paragraph (53) of the “Umadevi Case” judgment cannot be
treated as an isolation and it should be considered along with
the other legal principles settled by the Constitution Bench.
Keeping in mind, the legal principles settled by the Hon'ble
Supreme Court of India in earlier paragraphs, this Court is of
the opinion that one time relief granted by the Hon'ble
Supreme Court of India has to be extended in its real sense
and the High Courts cannot travel beyond the scope of the
intention expressed by the Constitution Bench in paragraph
(53) of the Judgment.

76. The learned counsel for the petitioner cited the
judgment of the Hon'ble Supreme Court of India in the case
of
U.P.State Electricity Board Vs. Pooran Chandra
Pandey and Others
, reported in (2007) 11 SCC 92, and
the paragraph (11) of the judgment is relevant and is

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extracted hereunder:

“11. Learned counsel for the appellant has relied
upon the decision of this Court in
Secy., State of
Karnataka v. Umadevi
(3) [(2006) 4 SCC 1 : 2006
SCC (L&S) 753] and has urged that no direction for
regularisation can be given by the Court. In our
opinion, the decision in Umadevi (3) case [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] is clearly
distinguishable. The said decision cannot be applied
to a case where regularisation has been sought for in
pursuance of
Article 14
of the Constitution.”

77. In the above said case, the Hon'ble Two Judges
Bench distinguished that case with the “Umadevi Case”.
The very language used in Paragraph (11) states that “in our
opinion, the decision in “Umadevi Case” is clearly
distinguishable. The said decision cannot be applied to a
case where regularization has been sought for in pursuance
of
Article 14
of the Constitution. However, this Court is of
the opinion that their Lordships have distinguished the
“Umadevi Case” in respect of the facts and circumstances
that the case. When their Lordships have distinguished that
case, this Court is of the opinion that the legal principles
settled in “Umadevi Case” has not been deviated by the
Hon'ble Two Judges Bench of the Hon'ble Supreme Court of
India, as it is a “binding precedent” as stated by this Court

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in earlier paragraphs.

78. “Umadevi Case” being a “binding precedent” and
when the case was distinguished from “Umadevi Case” on
factual circumstances, the same cannot be applied in the
present case before this Court.

79. The judgment in the case of State of Uttaranchal
and another Vs. Prantiya Sinchai Avam Bandh Yogana
Shramik Mahaparishad, reported in (2007) 12 SCC 483
and the relevant paragraph (5) is cited by the learned
counsel for the petitioner which is extracted hereunder:

“5. A writ petition was filed before the
Uttaranchal High Court which was dismissed by the
impugned order. The High Court was of the view that
all the 14 workmen, in question, were working on
daily wages for more than six years and had
completed 240 days in each calendar year and they
ought to be regularised. Accordingly, the writ petition
was dismissed.”

80. On a perusal of the above said judgment, this
Court is of the opinion that the case relates to an award
passed by the Labour Court and an Award passed by the
Labour Court under the provisions of the
Industrial Disputes
Act
, cannot have any relevance in respect of the Government

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employments made by virtue of the rules framed by the
State in this regard. However, the Hon'ble Supreme Court of
India in that case, remanded the matter back for
reconsideration by the High Court in the light of the legal
principles settled in the “Umadevi Case”. Thus, in all
respects, the case cannot have any application in respect of
the facts and circumstances of the present writ petition.

81. It has further cited the case of
State of
Karnataka and Others Vs. M.L.Kesari and Others
,
reported in (2010) 9 SCC 247 and the relevant paragraph
(7) is extracted hereunder:

“7. It is evident from the above that there is an
exception to the general principles against
“regularisation” enunciated in Umadevi (3) [(2006) 4
SCC 1] , if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10
years or more in 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.

(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or

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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.”

82.
In
the above case
, an exception has been carved
out in relation to the one time relief granted in paragraph
(15) of the “Umadevi Case”.

83. In the case of State of Rajastan and Others Vs.
Daya Lal and Others, reported in (2011) 2 SCC 429 and
the relevant paragraph (12), enumerates the settled
principles in respect of regularization and parity in pay,
relevant in the context of the case and those principles
carved out in paragraph (12) of the above judgment are akin
to that of the legal principles settled by the Constitution
Bench in “Umadevi Case”.

84. The learned counsel for the petitioner solicited the
attention of this Court relying the case decided by the
Hon'ble Two Judges Bench of the Hon'ble Supreme Court of
India in the case of
Nihal Singh and Others Vs. State
of

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Punjab and Others, reported in (2013) 14 SCC 65 and
the paragraph (31) and (33) of the judgments are extracted
hereunder:

“31. Therefore, we are of the opinion that the
process of selection adopted in identifying the
appellants herein cannot be said to be unreasonable
or arbitrary in the sense that it was devised to
eliminate other eligible candidates. It may be
worthwhile to note that in Umadevi (3) case [
State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] , this Court was dealing with
appointments made without following any rational
procedure in the lower rungs of various services of
the Union and the States.

33. It is no doubt that the assessment of the
need to employ a certain number of people for
discharging a particular responsibility of the State
under the Constitution is always with the executive
government of the day subject to the overall control
of the legislature. That does not mean that an
examination by a constitutional court regarding the
accuracy of the assessment of the need is barred.”

85. On a plain reading of the judgment, this Court is of
an undoubted opinion that there is a slight deviation in
respect of the legal principles carved out by the Hon'ble

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Constitution Bench in “Umadevi Case”. This Court wishes
to remind the language used by the Constitution Bench in
paragraph (5) of “Umadevi Case”. To reiterate the
language used by the Hon'ble Supreme Court of India
emphatically in paragraph (5) that this Court has also
occasions to issue directions which could not be said to be
consisted by the public employment. Such directions are
issued presumably on the basis of equitable consideration or
individualization of justice. The question arises, equity to
whom? Equity for the handful of people who have
approached the Court with a claim, or equity for the teeming
millions of this Country seeking employment and seeking a
fair opportunity for competing for employment?

86. In paragraph (54) of the said “Umadevi Case”
judgment, again the Constitution Bench reiterated that “It is
also clarified that those decisions which run counter to the
principle settled in this decision, or in which directions
running counter to what we have held herein, will stand
denuded of their status as precedents.”

87. This Court has no hesitation in holding that the
judgment cited by the learned counsel for the petitioner in
the case of
Nihal Singh and Others Vs. State of Punjab
and Others
, reported in (2013) 14 SCC 65, is to be
considered as denuded of their status as precedents. Thus,

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this Court is not inclined to consider and follow the same.

88.
In the case of
Amarendra Kumar Mohapatra
and others Vs. State of Orissa and others
, reported in
(2014) 4 SCC 583, the Hon'ble Two Judges Bench of the
Supreme Court of India held that and the paragraphs (42) &
(43) of the above said judgment is extracted hereunder:

“42.The decision in Umadevi (3) case [
State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] , as noticed earlier, permitted
regularisation of regular appointments and not illegal
appointments.

Question, however, is whether the
appointments in the instant case could be described
as illegal and if they were not, whether the State
could be directed to regularise the services of the
degree-holder Junior Engineers who have worked as
ad hoc Assistant Engineers for such a long period,
not only on the analogy of the legislative enactment
for regularisation but also on the principle underlying
para 53 of the decision in Umadevi (3) case [
State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] .

43.As to what would constitute an irregular
appointment is no longer res integra. The decision of
this Court in
State of Karnataka v. M.L. Kesari

[(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , has

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examined that question and explained the principle
regarding regularisation as enunciated in Umadevi
(3) case [
State of Karnataka v. Umadevi
(3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] . 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 court or
tribunal, and (3) they should have possessed the
minimum qualification stipulated for the
appointment. Subject to these three requirements
being satisfied, even if the 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: (
M.L. Kesari
case [(2010) 9 SCC 247 :

(2010) 2 SCC (L&S) 826] , SCC p. 250)
“7. It is evident from the above that there is an
exception to the general principles against
‘regularisation’ enunciated in
Umadevi (3) [State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] , if the following conditions are
fulfilled:

(i) The employee concerned should have worked for

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10 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.

(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or
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.”

89. It is important to cite the case of
SECRETARY TO
GOVERNMENT, SCHOOL EDUCATION
DEPARTMENT,CHENNAI v. R.GOVINDASWAMY AND
ORS.
[ (2014) 4 SCC 769]. In paragraph No.(8), the
Hon'ble Supreme Court has observed as follows:

“8.this Court in
State of Rajasthan & Ors. v. Daya Lal & Ors.
,
AIR 2011 SC 1193, has considered the scope of

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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
Article 226
of
the Constitution 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
Articles 14
and
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

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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 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) “

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90. Reiterating the principles
laid down in
the
Case of
Secretary to Government, School Education
Department, Chennai Vs. R.Govindaswamy and others
,
reported in (2014) 4 SCC 769, the Hon'ble Supreme Court
of India emphatically ruled that the High Courts, in exercising
power under
Article 226
of the Constitution of India will not
issue directions for regularization, absorption or permanent
continuance. Unless the employees claiming regularization
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
Articles 14
and
should be scrupulously
followed and Courts should not issue a direction for
regularization of services of an employee which would be
violative of the Constitutional scheme.

91.
In the case of
Nand Kumar Vs. State of Bihar
and Others
, reported in (2014) 5 SCC 300, paragraph
(25) & (26) are extracted hereunder:

“25.We have consciously noted the aforesaid
decisions of this Court. The principle as has been
laid
down in

Umadevi (3) [State of Karnataka v. Umadevi

(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has also
been applied in relation to the persons who were
working on daily wages. According to us, the daily

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wagers are not appointees in the strict sense of the
term “appointment”. They do not hold a post. The
scheme of alternative appointment framed for
regular employees of abolished organisation cannot,
therefore, confer a similar entitlement on the daily
wagers of abolished organisation to such alternative
employment.

(See
Avas Vikas Sansthan v. Engineers
Assn.
[(2006) 4 SCC 132 : 2006 SCC (L&S) 613] )
Their relevance in the context of appointment arose
by reason of the concept of regularisation as a
source of appointment.

After Umadevi (3) [State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] , their position continued to be that
of daily wagers. Appointment on daily-wage basis is
not an appointment to a post according to the rules.

Usually, the projects in which the daily wagers were
engaged, having come to an end, their appointment
is necessarily terminated for want of work.
Therefore, the status and rights of daily wagers of a
government concern are not equivalent to that of a
government servant and his claim to permanency
has to be adjudged differently.

26.In these circumstances, in our considered
opinion, the regularisation/absorption is not a matter
of course. It would depend upon the facts of the case
following the rules and regulations and cannot be

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dehors the rules for such regularisation/absorption.”

92. Once again, this Court is of the opinion that the
above two paragraphs are running contrary to the legal
principles settled by the Constitution Bench of the Hon'ble
Supreme Court of India. Thus, the rules
laid down in

paragraph (54) of the Constitution Bench to be applied in
respect of
the above case
cited.

93.
In the case of
Malathi Das and Others, Vs.
Suresh and Others
, reported in (2014) 13 SCC 249 and
the relevant paragraph (13) is extracted hereunder:

“13.In the aforesaid undisputed facts it is
wholly unnecessary for us to consider as to whether
the cases of persons who were awaiting regularisation
on the date of the decision in
Umadevi (3) [State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] is required to be dealt with in
accordance with the conditions stipulated in para 53 of

Umadevi (3) [State of Karnataka v. Umadevi
(3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] inasmuch as
the claims of the respondent employees can well be
decided on principles of parity. Similarly placed
employees having been regularised by the State and
in case of some of them such regularisation being
after the decision in Umadevi (3) [State of Karnataka

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v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)
753] we are of the view that the stand taken by the
appellants in refusing regularisation to the
respondents cannot be countenanced.

However, as
the said stand of the appellants stems from their
perception and understanding of the decision in

Umadevi (3) [State of Karnataka v. Umadevi
(3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] we do not
hold them liable for contempt but make it clear that
the appellants and all the other competent authorities
of the State will now be obliged and duty-bound to
regularise the services of the respondents (74 in
number) which will now be done forthwith and in any
case within a period of two months from the date of
receipt of this order.”

94. The Hon'ble Supreme Court of India once again
taken a deviation in respect of the legal principles settled by
the Constitution Bench of the Hon'ble Supreme Court of
India. Therefore, such deviation to be held as denuded of
their status as precedent, as
laid down in
paragraph (54) of
the Constitution Bench.

95.
In the case of
Amarkant Rai Vs. State of Bihar
and Others
, reported in (2015) 8 SCC 265, the Hon'ble
Supreme Court of India in paragraph (11) and (14) are held

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as follows:

“11.Elaborating upon the principles
laid down
in
Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC
(L&S) 753] and explaining the difference between
irregular and illegal appointments in
State of
Karnataka v. M.L. Kesari
[(2010) 9 SCC 247 :

(2010) 2 SCC (L&S) 826] , this Court held as under:

(
M.L. Kesari
case [(2010) 9 SCC 247 : (2010) 2 SCC
(L&S) 826] , SCC p. 250, para 7)
“7. It is evident from the above that there is an
exception to the general principles against
‘regularisation’ enunciated in Umadevi (3) [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] , if the following
conditions are fulfilled:

(i) The employee concerned should have worked for
10 years or more in 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.

(ii) The appointment of such employee should not
be illegal, even if irregular. Where the appointments
are not made or continued against sanctioned posts
or where the persons appointed do not possess the

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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.”

14.Considering the facts and circumstances of
the case that the appellant has served the
University for more than 29 years on the post of
night guard and that he has served the College on
daily wages, in the interest of justice, the authorities
are directed to regularise the services of the
appellant retrospectively w.e.f. 3-1-2002 (the date
on which he rejoined the post as per the direction of
the Registrar)."

96. In paragraph (14) of the above cited judgment,
the Hon'ble Supreme Court of India held that the appellant
has served in the University for more than 29 years in the
post of night guard and that he has served the College on
daily wages, in the interest of justice, the authorities are
directed to regularise the services of the appellant
retrospectively w.e.f. 3-1-2002.

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97. Again, in this case also, the Hon'ble Supreme
Court of India has deviated the principles
laid down in

“Umadevi Case”. Thus, this Court has to derive an opinion
that the decision would be denuded of its status as
precedents. For all these reasons, this Court has to
independently apply the legal principles settled by the
Constitution Bench in the “Umadevi Case”.

98.
In the case of
Prem Ram Vs. Managing
Director, Uttarakhand Pey Jal & Nirman Nigam,
Dehradun and Others
, reported in (2015) 11 SCC 255,
undoubtedly, the Hon'ble Supreme Court of India has
decided the case based on the facts and circumstances of the
case. However, on a plain reading of the judgment, this
Court is of the opinion that the legal principles settled by the
Constitution Bench has not been considered by the Hon'ble
Two Judges Bench of the Hon'ble Supreme Court of India.
Thus, this Court is not inclined to follow the judgment for the
purpose of deciding the case on hand.

99.
In the case of
Surendra Kumar and Others Vs.
Greater Noida Industrial Development Authority and
Others
, reported in (2015) 14 SCC 382, while, the
Supreme Court of India in paragraph (13) held as follows:

“13.Considering the facts of the present case on

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the touchstone
laid down in
Umadevi (3) case [
State
of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] , it will be seen 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 regularised 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-
11-2002 and the consequential seniority.”

100. In this case also, the Hon'ble Two Judges Bench
of the Hon'ble Supreme Court of India has taken note of the
one time benefit granted by the Constitution Bench in

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paragraph (53) of the Judgment in “Umadevi Case”.
However, the legal principles settled in paragraphs
5,10,12,14,20 and 43 to 50 and 54 of the judgment has not
been considered by their Lordships. Since the legal
principles enunciated in the above paragraphs of the
Constitution Bench has not been considered and the case
was decided based on the particular facts and circumstances
of the case, this Court is not bound to consider it as a
“binding precedent” as enumerated in the first portion of this
Judgment. This Court has earlier considered the nature of
the “binding precedents” and the interpretation of binding
precedents as enumerated by the Constitution Bench of the
Hon'ble Supreme Court of India in the recent case of

National Insurance Co. Ltd vs Pranay Sethi and Others
,
reported in [JT 2017 10 SC 450] cited supra.

101. In all the cases cited supra, this Court is able to
find out that those cases by the Hon'ble Two Judges of the
Hon'ble Supreme Court of India were decided based on
certain facts and circumstances of the case. However, all
those circumstances and the legal principles were well
settled by the Constitution Bench in “Umadevi Case”.
Various paragraphs of the Constitution Bench judgment as
discussed above made it very clear that all the circumstances
arisen out of the temporary/casual/daily wages employees
were dealt with elaborately and a findings are provided. This

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being the factum of the case, this Court is not inclined to
follow the above judgment of the Hon'ble Two Judges Bench
of the Hon'ble Supreme Court of India as a “binding
precedent” and this Court is bound by the legal principles
settled by the Constitution Bench in “Umadevi Case” which
remains as the law of the land under
Article 141
of the
Constitution of India.

102. This Court is willing to cite another judgment of
the Hon'ble Two Judges Bench of the Hon'ble Supreme Court
of India in the case of
Punjab Water Supply & Sewerage
Board Vs. Ranjodh Singh and Others
, reported in
(2007) 2 SCC Page 491. In the above judgment
paragraph (17) & (18) are extracted hereunder:

“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.Distinction between irregularity and illegality is
explicit. It has been so pointed out in
National
Fertilizers Ltd. v. Somvir Singh
[(2006) 5 SCC 493 :

2006 SCC (L&S) 1152] in the following terms: (SCC
pp. 500-01, paras 23-25)
“23. The contention of the learned counsel appearing
on behalf of the respondents that the appointments

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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 permissible in law.
The reservation policy adopted by the appellant had
not been maintained. Even cases of minorities had
not been given due consideration.

24. The Constitution Bench thought of directing
regularisation of the services only of those
employees whose appointments were irregular as
explained in
State of Mysore v. S.V. Narayanappa

[AIR 1967 SC 1071 : (
1967) 1 SCR 128] , R.N.
Nanjundappa v. T. Thimmiah
[(
1972) 1 SCC 409]
and B.N. Nagarajan v. State of Karnataka
[(1979) 4
SCC 507 : 1980 SCC (L&S) 4] wherein this Court
observed: [Umadevi (3) case [(2006) 4 SCC 1 :

2006 SCC (L&S) 753] , SCC p. 24, para 16]
‘16.
In
B.N. Nagarajan v. State of Karnataka
[(1979)
4 SCC 507 : 1980 SCC (L&S) 4] this Court clearly
held that the words “regular” or “regularisation” do
not connote permanence and cannot be construed so
as to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone
any procedural irregularities and are meant to cure

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only such defects as are attributable to methodology
followed in making the appointments.’

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.”
(See also
State of M.P. v. Yogesh Chandra Dubey

[(2006) 8 SCC 67 : 2006
SCC (L&S) 1797] and State
of M.P. v. Lalit Kumar Verma
[(2007) 1 SCC 575 :

(2006) 12 Scale 642] .)”

103. The Hon'ble Two Judges Bench of the Hon'ble
Supreme Court of India has dealt with the interpretation of
paragraphs 16, 17, 19 and 22 of “Umadevi Case” and the
paragraphs (16), (17), (19) and (22) are extracted
hereunder:

“16.
In
B.N. Nagarajan v. State of Karnataka

[(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3
SCR 937] this Court clearly held that the words
“regular” or “regularisation” do not connote
permanence and cannot be construed so as to
convey an idea of the nature of tenure of
appointments. They are terms calculated to condone
any procedural irregularities and are meant to cure
only such defects as are attributable to methodology
followed in making the appointments. This Court

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emphasised that when rules framed under
Article
of the Constitution are in force, no regularisation
is permissible in exercise of the executive powers of
the Government under
Article 162
of the Constitution
in contravention of the rules. These decisions and the
principles recognised therein have not been
dissented to by this Court and on principle, we see
no reason not to accept the proposition as
enunciated in the above decisions. We have,
therefore, to keep this distinction in mind and
proceed on the basis that only something that is
irregular for want of compliance with one of the
elements in the process of selection which does not
go to the root of the process, can be regularised and
that it alone can be regularised and granting
permanence of employment is a totally different
concept and cannot be equated with regularisation.

17. We have already indicated the constitutional
scheme of public employment in this country, and
the executive, or for that matter the court, in
appropriate cases, would have only the right to
regularise an appointment made after following the
due procedure, even though a non-fundamental
element of that process or procedure has not been
followed. This right of the executive and that of the
court would not extend to the executive or the court

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being in a position to direct that an appointment
made in clear violation of the constitutional scheme,
and the statutory rules made in that behalf, can be
treated as permanent or can be directed to be
treated as permanent.

19. One aspect arises. Obviously, the State is also
controlled by economic considerations and financial
implications of any public employment. The viability
of the department or the instrumentality of the
project is also of equal concern for the State. The
State works out the scheme taking into consideration
the financial implications and the economic aspects.

Can the court impose on the State a financial burden
of this nature by insisting on regularisation or
permanence in employment, when those employed
temporarily are not needed permanently or
regularly? As an example, we can envisage a
direction to give permanent employment to all those
who are being temporarily or casually employed in a
public sector undertaking. The burden may become
so heavy by such a direction that the undertaking
itself may collapse under its own weight. It is not as
if this had not happened. So, the court ought not to
impose a financial burden on the State by such
directions, as such directions may turn
counterproductive.

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22. With respect, it appears to us that the question
whether the jettisoning of the constitutional scheme
of appointment can be approved, was not considered
or decided. The distinction emphasised in
R.N.
Nanjundappa v. T. Thimmiah
[(1972) 1 SCC 409 :

(1972) 2 SCR 799] was also not kept in mind. The
Court appears to have been dealing with a scheme
for “equal pay for equal work” and in the process,
without an actual discussion of the question, had
approved a scheme put forward by the State,
prepared obviously at the direction of the Court, to
order permanent absorption of such daily-rated
workers. With respect to the learned judges, the
decision cannot be said to lay down any law, that all
those engaged on daily wages, casually, temporarily,
or when no sanctioned post or vacancy existed and
without following the rules of selection, should be
absorbed or made permanent though not at a
stretch, but gradually. If that were the ratio, with
respect, we have to disagree with it.”

104.
In the case of
Post Master General, Kolkata
and Others Vs. Tutu Das(Dutta
), reported in (2007) 5
SCC 317, paragraphs (5) & (18) are relevant and the same
are extracted hereunder:

“5.Whereas pursuant to the said direction,

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although the case of Niva Ghosh was allegedly
considered, her case was not, whereupon a
contempt petition was filed. In the said contempt
proceedings, a stand was taken by the appellant
that she had not completed a period of 240 days in
a year before the said cut-off date. The said
contempt petition was dismissed with liberty to the
respondent to file a fresh original application.
Pursuant to the said observations, the respondent
filed an application before the Central Administrative
Tribunal, Calcutta Bench, Calcutta which was
marked as OA No. 484 of 2002.

18.There are two distinctive features in the
present case, which are:

(i) Equality is a positive concept. Therefore, it
cannot be invoked where any illegality has been
committed or where no legal right is established.

(ii) According to the appellant the respondent having
completed 240 days, does not fulfil the requisite
criteria. A disputed question of fact has been raised.

The High Court did not come to a positive finding
that she had worked for more than 240 days in a
year.”

105.
In the case of
C.Balachandran and Others Vs.
State of Kerala and Others
, reported in (2009) 1 SCC

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(L& S) 610, wherein the Hon'ble Supreme Court of India
interpreted the scope of paragraph 153 of “Umadevi Case”
and the paragraphs (17) & (18) of
the said judgment
and the
same is extracted hereunder:

“17. Dr. Pillay, however, strongly relied upon
the observations made in Para 53 in Umadevi [(2006)
4 SCC 1 : 2006 SCC (L&S) 753] which reads as
under: (SCC p. 42, para 53)
“53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in
State of Mysore v. S.V.
Narayanappa
[AIR 1967 SC 1071 : (
1967) 1 SCR
128] , R.N. Nanjundappa v. T. Thimmiah
[(
1972) 1
SCC 409] and B.N. Nagarajan v. State of Karnataka

[(1979) 4 SCC 507 : 1980 SCC (L&S) 4] 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 have to be
considered on merits in the light of the principles
settled by this Court in the cases abovereferred 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

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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 courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers
are being now employed. The process must be set in
motion within six months from this date. We also
clarify that 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.”(emphasis in original)
A case of regularisation which thus attained finality
and was not sub judice would not come within the
purview of exception to the rule contained in Para 53
of
the said judgment
. The appellants' case, thus,
does not come within the purview thereof. Only those
cases where regularisations had already been made
were not to be reopened. It is not in dispute that
services of the appellants were terminated as far
back as in 1987 and they did not question the legality
or validity of the said order.

It is only after the
decision of this Court in
Jacob
case [(1991) 1 SCC 28

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: 1991 SCC (L&S) 25 : (1991) 15 ATC 697] that
representations were filed. Such representations
were rejected both by the Kerala Water Authority as
also the State of Kerala.

18. The appellants, in our opinion, thus, neither
in law nor in equity were entitled to be reinstated in
service. The decision of this Court in
Jacob
case
[(1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15
ATC 697] being not applicable to the case of the
appellants, we are bound by the
ratio
laid down in

Umadevi [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] .

So far as Para 53 of the judgment of the Constitution
Bench in the said case is concerned, the same has
been considered by this Court in a large number of
decisions.
In
Punjab Water Supply & Sewerage Board
v. Ranjodh Singh
[(2007) 2 SCC 491 : (2007) 1 SCC
(L&S) 713] it was held: (SCC p. 498, para 15)
“15.

The question came up for consideration before a
Constitution Bench of this Court in
State of Karnataka
v. Umadevi
(3) [(2006) 4 SCC 1 : 2006 SCC (L&S)
753] wherein it was held that no person who was
temporarily or casually been employed could be
directed to be continued permanently.

It was opined
that by doing so it would be creating another mode of
public employment which is not permissible.”
[See
Employees' Union v. Mineral Exploration Corpn
.

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Ltd. [(2006) 6 SCC 310 : 2006
SCC (L&S) 1318] ,
State of M.P. v. Lalit Kumar Verma
[(2007) 1 SCC
575 : (
2007) 1 SCC (L&S) 405] and Post Master
General v. Tutu Das (Dutta
) [(2007) 5 SCC 317 :

(2007) 2 SCC (L&S) 179] .]”

106. When the scope of the paragraph (53) of the
judgment, is well enumerated by the Hon'ble Two Judges
Bench of the Hon'ble Supreme Court of India as cited above,
this Court is not inclined to consider the other judgments
referred by the learned counsel for the petitioner. However,
on a perusal of all these judgments cited supra, this Court is
of the opinion that ultimately the legal principle settled in by
the Constitution Bench in the “Umadevi Case” is binding
over the subject and the same is to be followed scrupulously
by all the Courts across the country and the same becomes
the law of the land in the matter of regularization,
permanent absorption and appointment.

107. Now, considering the facts and circumstances of
the case on hand, it remains that the writ petitioners were
appointed as daily rated employees for a particular period
and, this Court has to draw an inference that all the
Government orders passed subsequent to the Constitution
Bench Judgment, if runs contrary to the legal principles
settled by the Constitution Bench, would become invalid and

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the same cannot be implemented or followed. In other
words, it is to be noted that the Government has no
authority to issue any orders granting regularization,
permanent absorption or appointment in violation of the
Constitutional schemes and in violation of the recruitment
rules in force. The power of the Government in this regard is
certainly abrogated by the principles settled by the
Constitution Bench in the “Umadevi Case”. Such being the
factum of the case, the State Government is to be precluded
as well as its authority are to be regularized in respect of
appointing employees in contravention with the recruitment
rules in force and effecting appointments through back
doors.

108. This Court has to place on record that the State
is bound to over see the appointments made in this regard
illegally or irregularly by the competent authorities and the
same is to be construed as the fraud on the Constitution and
such authorities are liable for prosecution under the
Discipline and Appeal Rules and other relevant rules. The
State shall be vigilant in this regard and the authorities
indulging in such activities of exercising powers by issuing
illegal or irregular appointments are to be booked under the
Discipline and Appeal Rules. No leniency can be shown by
the State in this regard, since these all are the Constitutional
principles required for the State to be followed and the State

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being a modal employer, has to implement the Constitutional
perspectives and the principles scrupulously and without any
deviation.

109. The learned counsel for the petitioner contended
that in paragraph (15) of the judgment in “Umadevi
Case”, the Constitution Bench of the Hon'ble Supreme Court
of India held that a distinction between regularisation and
conferment of permanent status in service jurisprudence has
to be drawn. This Court is of the opinion that the conferment
of permanent status Act, is a general law applicable to the
employees, in the absence of any special law governing the
particular subject. However, if any such law prevails and
covering the field of appointment of regularisation and
permanent absorption, then the general law would not apply.

In nutshell, the special law and rules will prevail over the
general law and the special rules in force are to be applied in
the relevant case.

110. In view of the discussions made above, this Court
is of the opinion that the writ petitioners are not entitled for
any relief of permanent absorption as such sought for in this
writ petition.

20. In view of the legal principles settled by the Apex Court of

India and considering the fact that the writ petitioners were initially

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engaged as a Daily wage employees in a scheme by the District Level

Blindness Control Society and based on their representation, the

petitioners were being paid the monthly consolidated pay, this Court is

of the opinion that they cannot seek regularization or permanent

absorption and appointments are to be made only by following the

recruitment rules in force.

21. All appointments are to be made only under the

constitutional schemes and by following the recruitment rules in force.

Equal opportunity in public employment is the constitutional mandate

and the authorities competent are bound by the service rules in force

and in the event of backdoor entry, the employees who were so

appointed without following the rules are liable to be terminated from

service. It is pertinent to note that in the event of grant of

regularization or permanent absorption in respect of daily

waged/casual employees the right of the eligible citizens are denied

and the same would cause infringement of their right to participate in

the open competitive process for the purpose of securing public

employment. When lakhs and lakhs of youth of this great nation are

burning their midnight lamps by way of hardwork for the purpose of

securing public employment, the benefit of regularization and

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permanent absorption cannot be granted contrary to the rules in force

which would infringe the constitutional rights of all other eligible

citizens who are all aspiring to secure public employment.

22. This being the legal principles to be followed, the writ

petitioners have not established any case for the purpose of grant of

regularization or permanent absorption and accordingly, these writ

petitions stand dismissed. No costs. Consequently, connected

miscellaneous petitions are closed.

25.03.2019

ssb

Internet:Yes/No
Index:Yes/No
Speaking / Non-Speaking order

To

1. Principal Secretary to Government
Health and Family Welfare Department,
Secretariat, Chennai-600 009.

2. Mission Director,
State Health Society,
Chennai-600 006.

3.Project Director,
Tamil Nadu State Blindness Control Society,
Egmore, Chennai-600 008.

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4. The Director,
O/O of Medical and Rural Health Services,
D.M.S.Complex Chennai-6.

5. The Director,
O/O Public Health and Preventive Medicine,
Chennai-6.

6. Corporation Commissioner/Chairman
District Blindness Control Society,
Chennai.

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S.M.SUBRAMANIAM, J.

ssb

W.P.No.15556, 15557,16334,16344,16345,16346,16386,16428 to
16431 to 16435,18156 to 18161,29438,29457,29463

25.03.2019

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