Madras High Court

S.Marimuthu vs The State Of Tamil Nadu on 14 March, 2019

Author:
S.M.Subramaniam

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

DATED :14.03.2019

CORAM

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

W.P.No.18499 of 2018

1.S.Marimuthu
2.N.Kanniappan
3.K.Govindaraj
4.R.Karunakaran
5.G.Palani
6.M.Banumathy
7.D.A.Williams
8.V.R.Dhamodharan
9.R.Santhi
10.R.John
11.P.Alamelu
12.R.Prem Kumar
13.S.Velmurugan
14.P.Velu
15.G.Mohan ..Petitioners
vs

1.The State of Tamil Nadu
Rep.by the Secretary,
Higher Education Department
Fort St.George, Chennai – 9.

2.The Director of Technical Education,
Guindy, Chennai – 25

3.The Chief Engineer
Technical Education Department
Guindy, Chennai – 25.

4.The Executive Engineer, P.W.D
Technical Education Division,
Chennai -25. .. Respondents

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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 on the files of
the 1st respondent pertaining to its order in Letter No.6207/B1/2017-5 dated
12.04.2018 and to quash the same and consequently direct the 1st respondent
to regularize the service of the petitioner on completion of 10 years of service
and to extend all service and monetary benefits.

For Petitioners : M/s.S.Esairani Narasimman
For Respondents : Mr.V.Kathirvelu
Special Government Pleader

ORDER

The relief sought for in the present writ petition is to quash the order of

rejection dated 12.04.2018 and consequently, to direct the 1st respondent to

regularize the service of the petitioner on completion of 10 years of service and

to extend all service and monetary benefits.

2.The 1st respondent rejected the claim of the writ petitioners for grant of

regularization and permanent absorption on the ground that even as per the

special scheme to grant regularization on completion of 10 years of service, the

writ petitioners were found not eligible as they had not completed 240 days of

working. Thus, the case of the writ petitioners were rejected. Challenging the

said order, the present writ petition is filed.

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3.The learned counsel for the writ petitioners states that all the writ

petitioners were engaged as daily rated / casual employees and serving in the

Department for the past of many years. In view of the fact that they are serving

continuously, they are entitled to be regularized in the sanctioned post. The

Government issued various schemes to regularize the service of these daily

rated/casual employees on completion of 10 years of service. However, the case

of the writ petitioners were not considered.

4.This apart, the similar cases were already considered and some

employees from the same Department had been extended with the benefit of

regularization. Such being the factum, the case of the writ petitioners are also to

be considered on par with the other categories, whose services were already

regularized.

5.The grant of regularization and permanent absorption with reference to

the judgment of the Constitution Bench of the Hon’ble Supreme Court has been

already considered by this Court in W.P.Nos.28633 to 28646 of 2014 dated

12.12.2017 and the relevant paragraphs are extracted hereunder:-

“8. The learned counsel for the writ petitioners made a
submission that it is the duty mandatory on the part of the
respondents to consider the case of the writ petitioners for
regularisation in the existing vacancies since the writ petitioners have

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put in more than 10 years of their services as daily wage employees
and their names are registered under the Nominal Muster Roll
maintained by the respondents. It is not the case of appointment of
the writ petitioners but the case of their regularisation is the
contention of the writ petitioners. When the employees have
completed 10 years of their services, without the intervention of any
Court order then their services to be regularised as per paragraph 53
of the Constitution Bench judgment of the Honourable Supreme
Court of India, in the case of
State of Karnataka v. Umadevi

[(2006) 4 SCC 1], laid down the legal principles in the matter of
regularisation, permanent absorption. The relevant Paragraph 53 of
the judgment, cited supra, 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

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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.”

9. The writ petitioners, though admit the fact that their
appointment was irregular, contended that their appointments are
not illegal and therefore their services ought to have been regularised
in view of the judgment of the Hon'ble Supreme Court of India.

10. Further, it is contended that the right to life is a
Fundamental Right enshrined in
Article 21
of the Constitution of
India. The Hon'ble Supreme Court of India, time and again, reiterated
and emphasised that the right to life cannot be interpreted as a mere
animal life and it is a decent life, which is to be ensured. The writ
petitioners are deprived of their livelihood in view of the denial of
regularisation which amounts to deprivation of their life. At the
outset, it is stated that the writ petitioners have worked for 10 years
or more and without the intervention of orders of the courts or of
tribunals. In other words, the State Governments and their
instrumentalities should take steps to regularise as a one-time
measure, the services of such irregularly appointed, who have

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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
appointments of such employee should not be illegal. Even if
irregular, where the appointments are not made against the
sanctioned posts. Where a person employed under the open
competitive process of prescribed qualifications and was working
against the sanctioned posts, he had been selected without
undergoing the open competitive process, such appointments are
considered to be irregular.

11. Mooting out the above two principles, the learned counsel
for the writ petitioners urged this Court by stating that in respect of
the irregular appointments, there is no bar for granting regularisation.

But the learned counsel is of the opinion that the illegal appointments
alone, cannot be regularised. As far as the irregular appointments are
concerned, the length of service is to be taken into account for the
purpose of granting regularisation. Accordingly, the writ petitioners
are entitled for regularisation in view of the judgment of the Hon'ble
Supreme Court of India, cited supra.

12. The learned Additional Government Pleader, appearing on
behalf of the respondents, submit that the writ petitioners were
engaged as casual labourers for certain specific works under the
provisions of paragraph 290 of T.N.PWA Code which is in connection
with the execution of work. The writ petitioners have not been

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accommodated in any sanctioned posts. The writ petitioners were not
engaged in connection with any affairs of the State Government. The
Hon'ble High Court of Madras had already held that PWD is not an
industry to involve the Industrial Establishment Rules. Further, it is
submitted that the writ petitioners have not been appointed in
sanctioned posts. The writ petitioners were engaged only to execute
certain special and specified works on daily wage basis and therefore,
the benefit of regularisation, cannot be granted.

13. Further, it is submitted that in Government Offices, there
are specified sanction as to the category of post, number of such
posts, scale of pay etc., and the method of recruitment to the posts
are defined by statutory rules such as Tamil Nadu State and
Subordinate Service Rules and no deviation is permitted from the
method of recruitment, howsoever, save the previous approval of the
Government.

14. Paragraph 290 of Tamil Nadu Public Works Account Code
specifies that with the following exceptions, all persons engaged
departmentally for the execution of works are considered as day
labourers and their wages should be drawn on Muster Rolls, Form 21
(C.Form Nos.474 and 475) and charged to the estimates of the works
on which they are employed:-

(i) Permanent and temporary employees of the division whose
pay is charged to the head 'Establishment';

(ii) Members of the works charged establishment as defined in
paragraphs 58 to 62 of Tamil Nadu Public Works Department Code.

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15. Thus, the above two categories only form part of the
establishment concerning with the PWD Office in the State and the
recruitment to the posts are made in accordance with the rules of the
different services codified in Tamil Nadu Service Manual Volume I to
III and therefore, the writ petitioners were engaged as casual
labourers for the purpose of specified nature of work to which an
estimate is got sanctioned as per Tamil Nadu Public Works
Department Code, to the extent necessary.

16. Paragraph 290 of the TNPWD Code states that for the
work done by daily labour, the subordinate incharge of the work will
prepare a Muster or Casual Labour Roll recording there on when
practicable the work done and the amount payable.

17. As the writ petitioners were engaged as casual labourers
for a specified work and that necessity for engagement of such
casual labour virtually stopped as and when the work is completed.
The engagement was not made on daily wage basis or not made on
any Service Rules. Thus, the question of regularisation of petitioners'
NMR services do not arise.

18. The learned Additional Government Pleader for the
respondents, further stated that paragraphs 6(i), (ii), (vi), (vii), (ix) of
Government Order No.74, Personnel and Administrative Reforms (F)
Department, dated 27.6.2013, the Government have ordered that
“6(i) This order shall be deemed to have been come into force
with retrospective effect from 1.1.2006;

6(ii) The services of the full time daily wage employees, who

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were initially appointed on full time basis in consultation with the
Employment Exchange, to discharge the function of the post in the
Tamil Nadu Basic Service and completed 10 (ten) years of service as
on 1.1.2006 shall be regularised against regular vacancies in the
sanctioned cadre strength; Further, in paragraph 6(ii), it is stated
that the service of the full time daily wage employees who were
initially appointed on full time basis in consultation with the
Employment Exchange to discharge the function of the post in the
Tamil Nadu Basic Service and completed ten years of service as on
1.1.2006 shall be regularised against regular vacancies in the
sanctioned cadre strength;

6(vi) The part-time and casual employees are not entitled to
the concession referred to at paragraph (ii) above;

6(vii) The services of the full time daily wage employees, who
have completed 10 years of service, after 1.1.2006, shall not be
regularised;

6(ix) Stipulates that all the proposals for regularisation of the
services of full time daily wages employees should be sent to the
Government even in case where relaxation of rules are not involved”.

19. Whereas the writ petitioners in these writ petitions have
not completed 10 years of service as on 1.1.2006 by daily wage
basis. But, the writ petitioners were not appointed in consultation
with the Employment Exchange as daily wagers. The Government
Orders issued with regard to the regularisation of Contingent Staff to
regular servants are only on completion of 10 years of continuous
service as contingent servants. Thus, the question of regularisation of
service of the writ petitioners do not arise.

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20. In this regard, this Court delivered a judgment in WP
No.41594 of 2006 dated 3.1.2011 regarding NMR case as follows:-

“The petitioner produced a Certificate issued by one Assistant
Engineer WRO/Public Works Department, Irrigation Section,
Vadakkankulam to the effect that has been working as NMR from
1.6.1992. It is also not stated whether pursuant to any order, the
petitioner has been working on the contrary, the petitioner's claim
was that they should be absorbed by reglarising her service. It is also
admitted that she was not routed through Employment Exchange and
the G.O.Ms.No.177, dated 4.6.1998, does not ensure to the benefit.

The Supreme Court in
Secretary, State of Karnataka vs.
Umadevi
, reported in (2006) 4 SCC 1, has held that regularisation
cannot be a method of recruitment unless the petitioner has the case
for absorption. As per the orders of the Government in the Original
Application (later converted into the writ petition) the relief claimed
by the petitioner, cannot be countenanced by this Court. Hence, the
writ petition stands dismissed.”

21. It is further submitted by the learned Additional
Government Pleader for the respondents that the related issue was
dealt with by the Hon'ble Supreme Court of India in Civil Appeal
Nos.2726-2729 of 2014 and referred the case between State of
Karnataka and others vs. Uma Devi and others in AIR 2006
SC 1806, held as under:-

“There is no fundamental right in those who have been
employed on daily wages or temporarily or on contractual basis, to
claim that they have a right to be absorbed in service. As has been

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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.”

22. The learned Additional Government Pleader also referred
to the judgment of the Hon'ble Supreme Court case in
State of
Rajasthan and others vs. V.Dayal Lal and Others
[AIR 2011
SC 1193] held 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.

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(ii) Mere continuation of service by a temporary or ad hoc or
daily-wage employee, under cover of some interim orders of the
Court, would not confer upon him any right to be absorbed into
service, as such service would be “litigious employment”. Even
temporary, ad hoc or daily-wage service for a long number of years,
let alone service for one or two years, will not entitle such employee
to claim regularisation, if he is not working against a sanctioned post.

Sympathy and sentiment 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.”

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Based on the judgment of the Hon'ble Supreme Court, cited supra,
Codal Rules and Government orders, the claim of the writ petitioners
cannot be considered.

23. The learned Additional Government Pleader further
submitted that paragraph 290 of TNPWD Code states that “for work
done by daily labour the subordinate incharge of the work will
prepare a Muster or Casual Labour Roll recording there on when
practicable the work done and the amount payable”. The writ
petitioners were engaged as casual labour for a specified work and
that necessity for engagement of such casual labour virtually stopped
as and when the work is completed. The writ petitioners have not
been accommodated in any sanctioned posts. The writ petitioners
cannot claim any right for this casual labour work.

24. The learned Additional Government Pleader further
submitted that as per Code Rules, G.O.Ms.No.12, Public Works (C2)
Department dated 20.1.2009, G.O.Ms.No.338, Finance (Pay Cell)
Department, dated 26.8.2010, G.O.Ms.No.74, Personnel and
Administrative Reforms (F) Department, dated 27.6.2013, Hon'ble
High Court in W.P.No.41594 of 2006 dated 3.1.2011 judgment and
the Hon'ble Supreme Court of India, New Delhi in Civil Appeal
No.2726-2729 of 2014, dated 21.2.2014 judgment, cited supra, the
claim of the writ petitioners cannot be considered.

25. The writ petitioners were not employed in connection with
the affairs of the State as defined in
Article 323-A
of the Constitution
of India and they were only casual labourers co-terminus with the

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purposeful completion of the work concerned as per the Acts and the
Rules, in which such provision for the deployment of casual labour is
made. Thus, the writ petitioners are estopped from invoking the lofty
jurisdiction of this Apex Forum outside the ambit of the constitutional
provisions.

26. At the outset, the grounds relied on by the learned
Additional Government Pleader, appearing on behalf of the
respondents, are enumerated as under:-

(i) The engagement of casual labour and payment made by
way of wages from part and parcel of the work accounts vide Chapter
X-B and in the manner prescribed in paragraphs 290 and 291 of
TNPWA Code, exclusively for the execution of works;

(ii) The casual labourers thus engaged for a particular work
cannot be regularised how so ever in any manner, without sanction
of the post, scale of pay etc., by the Government;

(iii) The writ petitioners were not employed in connection with
the affairs of the State as defined in Article 323-A of the Constitution
of India and the writ petitioners were only casual labourers co-

terminus with the purposeful completion of the works concerned as
per the Acts and the Rules in which such provisions for the
deployment of casual labour is made;

(iv) The engagement of casual labourers and payment made
by way of wages from part and parcel of the work accounts vide
Chamber X-B and in the manner prescribed in paragraphs 290 and
291 of TNPWA Code, exclusively for the execution of works;

(v) As per Code Rules, G.O.Ms.No.12, Public Works (C2)
Department, dated 20.1.2009, G.O.Ms.No.338, Finance (Pay Cell)

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Department, dated 26.8.2010, G.O.Ms.No.74, Personnel and
Administrative Reforms (F) Department, dated 27.6.2013, this Court
in W.P.No.41594 of 2006 dated 3.1.2011 judgment and the Hon'ble
Supreme Court of India, New Delhi in Civil Appeal No.2726-2729 of
2014 dated 21.2.2014, judgment cited supra, the claim of the writ
petitioners cannot be considered;

(vi) The Government have issued orders in G.O.Ms.No.680,
Public Works (C2) Department, dated 16.8.1995 for complete ban on
appointing new Nominal Muster Rolls, which is already in force. In
this regard, D.O.Letter No.26860/C2/2009-2 dated 15.10.2009
received from the Principal Secretary to Government, PWD, Chennai,
is submitted for perusal. Thus, the Article quoted in the application,
cannot be correlated with the affairs of the State;

(vii) The writ petitioners were not borne on any cadre strength
of the erstwhile work charged establishment (now amended in Tamil
Nadu Engineering Subordinate Service) and the service and the writ
petitioners were not connected with the affairs of the State
Government;

(viii) The writ petitioners were engaged as casual labourers for
a specified work and that necessity for engagement of such casual
labourers virtually stopped as and when the work was completed. In
view of the above, the claim of the writ petitioners cannot be
considered.

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,

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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 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

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issued G.O.Ms.No.74, Personnel and Administrative Department,
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.

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,

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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.

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

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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 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

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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):

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 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

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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 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.”

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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 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

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employment. Such directions are issued presumably on the basis of
equitable considerations or individualisation of justice. The question
arises, equity to whom? Equity for the handful of people who have
approached the court with a claim, or equity for the teeming millions
of this country seeking employment and seeking a fair opportunity
for competing for employment? When one side of the coin is
considered, the other side of the coin has also to be considered and
the way open to any court of law or justice, is to adhere to the law as
laid down by the 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 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

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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.

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

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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 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
, 320

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,

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appearing for the employees urged that such a scheme for
regularisation is consistent 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 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

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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 309
provides that subject to the provisions
of the Constitution, Acts of the legislature may regulate the
recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or of a
State.

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.
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.

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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. 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

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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
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”

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judgment is extracted hereunder:

“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 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

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the Constitution Bench in respect of providing equal opportunity and
in respect of implementing the equality clause enshrined under
Article
& 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 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

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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.

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.

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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 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

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judicial chaos. Its role, therefore, is really to interpret the law and
decide cases coming before it, according to law. Orders which are
inconsistent with the legal conclusions arrived at by the court in the
selfsame judgment not only create confusion but also tend to usher
in 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 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
&

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16 which was described as a facet of
Article 14
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 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”

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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, 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

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who by the very nature of their appointment, do not acquire any
right. The High Courts acting under
Article 226
of the Constitution,
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 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

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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. 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

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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
permissible. If the court were to void a contractual employment of
this nature on the ground that the parties were not having equal
bargaining power, that too would not enable the court to grant any
relief to that employee. A total embargo on such casual or temporary
employment is not possible, given the exigencies of administration
and if imposed, would only mean that some people who at least get
employment temporarily, contractually or casually, would not be
getting even that employment when securing of such employment
brings at least some succour to them. After all, innumerable citizens
of our vast country are in search of employment and one is not
compelled to accept a casual or temporary employment if one is not
inclined to go in for such an employment. It is in that context that
one has to proceed on the basis that the employment was accepted
fully knowing the nature of it and the consequences flowing from it.
In other words, even while accepting the employment, the person
concerned knows the nature of his employment. It is not an
appointment to a post in the real sense of the term. The claim

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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 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

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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) 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 though

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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 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

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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 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

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envisaged by the Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the employees had worked
for some length of time but this has also been brought about by the
pendency of proceedings in tribunals and courts initiated at the
instance of the employees. Moreover, accepting an argument of this
nature would mean that the State would be permitted to perpetuate
an illegality in the matter of public employment and that would be a
negation of the constitutional scheme adopted by us, the people of
India. It is therefore not possible to accept the argument that there
must be a direction to make permanent all the persons employed on
daily wages. When the court is approached for relief by way of a writ,
the court has necessarily to ask itself whether the person before it
had any legal right to be enforced. Considered in the light of the very
clear constitutional scheme, it cannot be said that the employees
have been able to establish a legal right to be made permanent even
though they have never been appointed in terms of the relevant
rules or in adherence of
Articles 14
and
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
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

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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
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.”

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

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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 employees who by the very nature
of their appointment do not acquire any right. The High Courts
acting under
Article 226
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

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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 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

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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. 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 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.

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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.

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

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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 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

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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.

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”.

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 vacant

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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 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

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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 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

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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 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

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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 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

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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.”

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 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

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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 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?

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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, 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

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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
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 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

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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 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

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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 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

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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) “

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:

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“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 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 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

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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 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

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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 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

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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.”

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.

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

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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 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

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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 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

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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 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)

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“23. The contention of the learned counsel appearing on behalf of
the respondents that the appointments were irregular and not illegal,
cannot be accepted for more than one reason. They were appointed
only on the basis of their applications. The Recruitment Rules were
not followed. Even the Selection Committee had not been properly
constituted. In view of the ban on employment, no recruitment was
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 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 :

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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 emphasised that when rules framed
under
Article 309
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

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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 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.

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

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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, 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,

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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 (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

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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 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 : 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

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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. 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

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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 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

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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 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.”

6.In view of the legal principles discussed in the aforesaid paragraphs and

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judgments, this Court has no hesitation in coming to the conclusion that the

order impugned is passed in consonance with the legal principles and there is no

infirmity as such.

7.Accordingly, the writ petition is devoid of merits and stands dismissed.

However, there shall be no order as to costs.

14.03.2019

kak

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

To

1.The Secretary,
Higher Education Department
Fort St.George, Chennai – 9.

2.The Director of Technical Education,
Guindy, Chennai – 25

3.The Chief Engineer
Technical Education Department
Guindy, Chennai – 25.

4.The Executive Engineer, P.W.D
Technical Education Division,
Chennai -25.

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S.M.SUBRAMANIAM, J.

kak

http://www.judis.nic.in
W.P.No.18499 of 2018

14.03.2019

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