Madras High Court

Raja vs The State Of Tamil Nadu on 17 June, 2019

Equivalent citations: AIRONLINE 2019 MAD 2044

Author:
S.M.Subramaniam

Bench:
S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 17.06.2019

CORAM:

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.(MD)Nos.9701 to 9703 of 2014
Raja ... Petitioner in W.P.(MD)No.9701 of 2014
Pravendran ... Petitioner in W.P.(MD)No.9702 of 2014
S.Jeyaraman ... Petitioner in W.P.(MD)No.9703 of 2014
-Vs-
1.The State of Tamil Nadu,
Represented by its Secretary to Government,
Public Works Department,
Fort St. George, Chennai-9.

2.The Engineer-in Chief,
WRO & Chief Engineer (General),
Public Works Department,
Chepauk, Chennai-600 005.

3.The Chief Engineer (WRO),
Public Works Department,
Madurai Region, Madurai-625 002.

4.The Superintending Engineer (WRO),
Public Works Department,
Periyar Vaigai Basin Division,
Madurai.

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5.The Superintending Engineer,
(Water Resource Organisation),
Lower Vaigai Basin Circle,
Lower Vaigai Basin Division,
Sivagangai. ...Respondents
in all Writ Petitions

Common Prayer: Writ Petitions are filed under
Article 226
of the
Constitution of India, praying for the issuance of a Writ of
Certiorarified Mandamus, calling for the records pertaining to the
impugned order of the second respondent herein made in Letter
No.S4(1)/64631/2012, dated 22.01.2014 and quash the same and
direct the respondents herein to regularise the services of the
petitioners with effect from 01.07.2012 and 01.07.2011
respectively within the time frame fixed by this Court.

For Petitioner : Mr.R.Vijayakumar
(in all Writ Petitions)
For Respondents : Mr.D.Muruganantham,
Additional Government Pleader.
(in all Writ Petitions)
COMMON ORDER

The relief sought for in the present Writ Petitions, is to

quash the impugned order dated 22.01.2014, rejecting the claim of

the writ petitioners for regularization of their services from the

date of appointment.

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2.The learned counsel appearing for the writ petitioners

states that the writ petitioners were appointed as Mazdoor on daily

wage basis and serving for a considerable length of time. The

Government issued various orders, granting benefit of

regularization to these Mazdoors and daily wage employees. The

person, who has completed 10 years of service as daily wage, shall

be granted with a benefit of regularization. The learned counsel

appearing for the writ petitioners states that other similarly placed

persons were already provided with the benefit of regularization

and permanent absorption and therefore, these petitioners are also

entitled for the same benefit.

3.The learned counsel appearing for the writ petitioners

states that the Government issued orders periodically on various

circumstances, granting benefit of regularization to these daily

wage employees. Many number of employees on daily wages were

brought under the regular time scale of pay. The case of the writ

petitioners alone was left during the relevant point of time and

therefore, the writ petitioners were not regularised on par with

their colleagues. Thus, the petitioners are constrained to move the

present Writ Petitions.

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4.The Government issued G.O.Ms.No.202, Public Works

(C2) Department, dated 01.08.2012 to regularise the service of

daily wage employees on completion of 10 years of service. The

said Government Order was withdrawn and subsequently, revised

order in G.O.Ms.No.74, dated 27.06.2013 was issued. The

Government issued certain conditions in the said Government

Order for grant of regularization.

5.The learned counsel appearing for the writ petitioners

relied upon the judgments, which all are passed based on

G.O.Ms.No.74, dated 27.06.2013 as well as on the basis of

G.O.Ms.No.202, dated 01.08.2012 and other connected orders

passed in respect of the individual cases. At the outset, the learned

counsel for the writ petitioners states that the benefit of

G.O.Ms.No.202 and G.O.Ms.No.74, as discussed by this Court in

various judgments is to be extended to the writ petitioners for the

purpose of grant of regularization and permanent absorption.

6.As far as the daily wage employees working in the

Public Works Department are concerned, undoubtedly, practice of

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grant of regularization was prevailing. However, after the

judgment of the Constitutional Bench of the Hon'ble Supreme Court

of India, the State is also bound to follow the legal principles

settled by the Constitutional Bench under
Article 141
of the

Constitution of India.

7.This Court has elaborately considered all the issues with

reference to the judgments of the Hon'ble Supreme Court of India

as well as the subsequent judgments of two Judge Bench of the

Hon'ble Supreme Court of India in W.P.Nos.28633 to 28646 of

2014, dated 12.12.2017. The above case is also in respect of the

daily wage employees working in the Public Works Department.

The relevant paragraphs of the said order are extracted

hereunder:-

“5. The third respondent has admitted the
fact that the 16 daily wage employees in the Irrigation
Division at Gobi, are working as daily wage employees.
Under these circumstances, the Government issued
G.O.Ms.No.74, Personnel and Administrative Reforms
(F) Department, dated 27.6.2013, imposing certain
conditions for granting regularisation of
temporary/daily rated employees.

6. In this pretext, the writ petitioners have
submitted their representation on 9.4.2014, seeking

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regularisation. The fourth respondent sent a reply to
the writ petitioners on 11.6.2014, by stating that writ
petitioners have been paid daily wages only through
the Contractors and therefore, their case cannot be
considered in accordance with G.O.Ms.No.74 dated
27.6.2013. The writ petitioners have further submitted
their representation on 15.9.2014. Under these
circumstances, the fourth respondent issued impugned
order in proceedings dated 17.9.2014, rejecting the
claim of the writ petitioners for regularisation on the
ground that they were appointed on daily wage basis
through the Contractors and therefore, their claim
cannot be entertained.

7. The learned counsel for the writ petitioners
states that in the present writ petitions, an interim
order of status quo was granted and that has not been
complied with and the contempt petitions were also
filed. This Court, directing the Registry to list the
contempt petitions also along with these writ petitions,
for final disposal.

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 put in more than 10
years of their services as daily wage employees and

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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

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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.”

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

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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 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.

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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 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

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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.

15. Thus, the above two categories only form

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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

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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 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

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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.

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.

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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 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

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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
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

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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

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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.”
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

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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 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

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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) 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

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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,
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

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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

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judgment rendered in “Umadevi Case”, the State
Government 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

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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, 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

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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 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

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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 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):

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

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

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

“10. … an earlier decision may seem to be
incorrect to a Bench of a coordinate jurisdiction
considering the question later, on the ground that a
possible aspect of the matter was not considered or not

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raised before the court or more aspects should have
been gone into by the court deciding the matter earlier
but it would not be a reason to say that the decision
was rendered per incuriam and liable to be ignored.
The earlier judgment may seem to be not correct yet it
will have the binding effect on the later Bench of
coordinate jurisdiction. …”

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

18.
In
G.L. Batra v. State of Haryana and
others
(2014) 13 SCC 759), the Court has accepted
the said principle on the basis of judgments of this
Court rendered in
Union of India v. Godfrey Philips
India Ltd.
(
1985) 4 SCC 369), Sundarjas Kanyalal
Bhatija v. Collector, Thane, Maharashtra
(
1989) 3
SCC 396)and Tribhovandas Purshottamdas
Thakkar v. Ratilal Motilal Patel
(AIR 1968 SC 372).

It may be noted here that the Constitution Bench in

Madras Bar Association v. Union of India and
another
[JT 2015(5)SC 33]has clearly stated that the
prior Constitution Bench judgment in
Union of India
v. Madras Bar Association [JT
2010 (5) SC 553]is a

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binding precedent. Be it clarified, the issues that were
put to rest in the earlier Constitution Bench judgment
were treated as precedents by latter Constitution
Bench.

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

83):-

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

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“The court is not bound to follow a decision of
its own if given per incuriam. A decision is given per
incuriam when the court has acted in ignorance of a
previous decision of its own or of a Court of a co-
ordinate jurisdiction which covered the case before it,
or when it has acted in ignorance of a decision of the
House of Lords. In the former case it must decide
which decision to follow, and in the latter it is bound by
the decision of the House of Lords.”In Virayya v.
Venkata Subbayya it has been held by the Andhra
High Court that under the circumstances aforesaid the
Bench is free to adopt that view which is in accordance
with justice and legal principles after taking into
consideration the views expressed in the two
conflicting Benches, vide also the decision of the
Nagpur High Court in Bilimoria v. Central Bank of
India. The better course would be for the Bench
hearing the case to refer the matter to a Full Bench in
view of the conflicting authorities without taking upon
itself to decide whether it should follow the one Bench
decision or the other. We have no doubt that when such
situations arise, the Bench hearing cases would refer
the matter for the decision of a Full Court.”

20. Though the aforesaid was articulated in
the context of the High Court, yet this Court has been
following the same as is revealed from the aforestated
pronouncements including that of the Constitution
Bench and, therefore, we entirely agree with the said

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view because it is the precise warrant of respecting a
precedent which is the fundamental norm of judicial
discipline.

21.
In the context, we may fruitfully note
what has been stated in
Pradip Chandra Parija and
others v. Pramod Chandra Patnaik and others
[JT
(2002) 5 SCC 23]. In the said case, the Constitution
Bench was dealing with a situation where the two-
Judge Bench disagreeing with the three-Judge Bench
decision directed the matter to be placed before a
larger Bench of five Judges of this Court. In that
scenario, the Constitution Bench stated:-“6. … In our
view, judicial discipline and propriety demands that a
Bench of two learned Judges should follow a decision
of a Bench of three learned Judges. But if a Bench of
two learned Judges concludes that an earlier judgment
of three learned Judges is so very incorrect that in no
circumstances can it be followed, the proper course for
it to adopt is to refer the matter before it to a Bench of
three learned Judges setting out, as has been done
here, the reasons why it could not agree with the
earlier judgment. …

22. In Chandra Prakash and others v.

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

“22. … The doctrine of binding precedent is of

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utmost importance in the administration of our judicial
system. It promotes certainty and consistency in
judicial decisions. Judicial consistency promotes
confidence in the system, therefore, there is this need
for consistency in the enunciation of legal principles in
the decisions of this Court. It is in the above context,
this Court in the case of Raghubir Singh (1989) 2 SCC

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

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

24. In Sandhya Educational Society and
another v. Union of India and others (2014) 7 SCC

701), it has been observed that judicial decorum and
discipline is paramount and, therefore, a coordinate
Bench has to respect the judgments and orders passed
by another coordinate Bench.
In
Rattiram and others
v. State of Madhya Pradesh
(2012) 4 SCC 516), the
Court dwelt upon the issue what would be the
consequent effect of the latter decision which had been
rendered without noticing the earlier decisions.

The
Court noted the observations in Raghubir Singh
(supra) and reproduced a passage from
Indian Oil
Corporation Ltd. v. Municipal Corporation
(1995)
4 SCC 96)which is to the following effect:-“8.

… The

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

25. It also stated what has been expressed in
Raghubir Singh (supra) by R.S. Pathak, C.J. It is as
follows:-“28. We are of opinion that a pronouncement
of law by a Division Bench of this Court is binding on a
Division Bench of the same or a smaller number of
Judges, and in order that such decision be binding, it is
not necessary that it should be a decision rendered by
the Full Court or a Constitution Bench of the Court. …”

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

“8. Since, the Court in Santosh Devi case
actually intended to follow the principle in the case of
salaried persons as laid down in Sarla Verma case and
to make it applicable also to the self-employed and

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persons on fixed wages, it is clarified that the increase
in the case of those groups is not 30% always; it will
also have a reference to the age. In other words, in the
case of self-employed or persons with fixed wages, in
case, the deceased victim was below 40 years, there
must be an addition of 50% to the actual income of the
deceased while computing future prospects. Needless
to say that the actual income should be income after
paying the tax, if any. Addition should be 30% in case
the deceased was in the age group of 40 to 50 years.9.
In Sarla Verma case, it has been stated that in the
case of those above 50 years, there shall be no
addition. Having regard to the fact that in the case of
those self-employed or on fixed wages, where there is
normally no age of superannuation, we are of the view
that it will only be just and equitable to provide an
addition of 15% in the case where the victim is
between the age group of 50 to 60 years so as to make
the compensation just, equitable, fair and reasonable.
There shall normally be no addition thereafter.”

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

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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
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

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“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.”

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

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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 employment. Such
directions are issued presumably on the basis of
equitable considerations or individualisation of justice.

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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

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

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

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

“10. When these matters came up before a

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Bench of two Judges, the learned Judges referred the
cases to a Bench of three Judges. The order of
reference is reported in
Secy., State of Karnataka v.
Umadevi
(1) [(2004) 7 SCC 132 : 2004 SCC (L&S)
935 : (2003) 9 Scale 187] . This Court noticed that in
the matter of regularisation of ad hoc employees, there
were conflicting decisions by three-Judge Benches of
this Court and by two-Judge Benches and hence the
question required to be considered by a larger Bench.

When the matters came up before a three-Judge
Bench, the Bench in turn felt that the matter required
consideration by a Constitution Bench in view of the
conflict and in the light of the arguments raised by the
Additional Solicitor General. The order of reference is
reported in
Secy., State of Karnataka v. Umadevi
(2)
[(2006) 4 SCC 44 : (2003) 10 Scale 388] . It appears to
be proper to quote that order of reference at this
stage. It reads: (SCC p. 45, paras 1-5)
“1.

Apart from the conflicting opinions between the
three-Judge Bench decisions in
Ashwani Kumar v. State
of Bihar
[(1997) 2 SCC 1 : 1997 SCC (L&S) 465 : 1996
Supp (10) SCR 120] , State of Haryana 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)

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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, 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

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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 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

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

Article 335
provides for special consideration in the
matter of claims of the members of the Scheduled
Castes and Scheduled Tribes for employment.

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

“12. In spite of this scheme, there may be occasions
when the sovereign State or its instrumentalities will
have to employ persons, in posts which are temporary,
on daily wages, as additional hands or taking them in

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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 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.”

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

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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
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

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the concept accepted by the Hon'ble Supreme Court of
India, no doubt, a mere appointment on
temporary/daily wage basis cannot constitute a right
for the employees to claim regularization or permanent
absorption.

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

“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

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

Article 14

& 16
of the Constitution. In the above said
paragraph (13), the Hon'ble Supreme Court of India
has emphasized that it cannot also be forgotten that it
is not the role of the Courts to ignore, encourage or
approve appointments made or engagements given
outside the constitutional scheme. In effect, orders
based on such sentiments or approach would result in
perpetuating illegalities and in the jettisoning of the
scheme of public employment adopted by us, while
adopting the Constitution. We, the people of India,
while adopting the Constitution.

52. The approving of such acts also results in
depriving many of their opportunity to compete for

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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 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

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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.

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

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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

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decisions on law, is bound to send out confusing signals
and usher in judicial chaos. Its role, therefore, is really
to interpret the law and decide cases coming before it,
according to law. Orders which are inconsistent with
the legal conclusions arrived at by the court in the
selfsame judgment not only create confusion but also
tend to usher in arbitrariness highlighting the
statement, that equity tends to vary with the
Chancellor's foot.”

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

57. As one Jurist put it, the Hon'ble Supreme
Court of India has accepted the decision, the question
of law for the country and not to decide individual
cases without reference to such principles of law.
Consistency is a virtue. Passing orders not consistent
with its own decisions on law, is bound to send out
confusing signals and result in judicial chaos. The
observation made in this regard are certainly to be

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followed by all the Courts across the Country.

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

& 16
which
was described as a facet of
Article 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
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

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should be within the constitutional limitations and if
any practice is adopted by the executive which is in
flagrant and systematic violation of its constitutional
limitations, Petitioner 1 as a member of the public
would have sufficient interest to challenge such
practice by filing a writ petition and it would be the
constitutional duty of this Court to entertain the writ
petition and adjudicate upon the validity of such
practice”

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

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

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to an end at the end of the contract, if it were an
engagement or appointment on daily wages or casual
basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could
not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that
merely because a temporary employee or a casual
wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a due
process of selection as envisaged by the relevant rules.

It is not open to the court to prevent regular
recruitment at the instance of temporary employees
whose period of employment has come to an end or of
ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High
Courts acting under
Article 226
of the Constitution,
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,

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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 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

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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

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perpetuating an illegality.

45. While directing that appointments,
temporary or casual, be regularised or made
permanent, the courts are swayed by the fact that the
person concerned has worked for some time and in
some cases for a considerable length of time. It is not
as if the person who accepts an engagement either
temporary or casual in nature, is not aware of the
nature of his employment. He accepts the employment
with open eyes. It may be true that he is not in a
position to bargain—not at arm's length—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,

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would not be getting even that employment when
securing of such employment brings at least some
succour to them. After all, innumerable citizens of our
vast country are in search of employment and one is
not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person concerned
knows the nature of his employment. It is not an
appointment to a post in the real sense of the term.
The claim acquired by him in the post in which he is
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

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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 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

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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

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

47. When a person enters a temporary
employment or gets engagement as a contractual or
casual worker and the engagement is not based on a
proper selection as recognised by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post
when an appointment to the post could be made only
by following a proper procedure for selection and in
cases concerned, in consultation with the Public
Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully advanced
by temporary, contractual or casual employees. It
cannot also be held that the State has held out any
promise while engaging these persons either to
continue them where they are or to make them
permanent. The State cannot constitutionally make
such a promise. It is also obvious that the theory
cannot be invoked to seek a positive relief of being

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made permanent in the post.

48. It was then contended that the rights of
the employees thus appointed, under
Articles 14
and
of the Constitution, are violated. It is stated that the
State has treated the employees unfairly by employing
them on less than minimum wages and extracting work
from them for a pretty long period in comparison with
those directly recruited who are getting more wages or
salaries for doing similar work. The employees before
us were engaged on daily wages in the department
concerned on a wage that was made known to them.
There is no case that the wage agreed upon was not
being paid. Those who are working on daily wages
formed a class by themselves, they cannot claim that
they are discriminated as against those who have been
regularly recruited on the basis of the relevant rules.
No right can be founded on an employment on daily
wages to claim that such employee should be treated
on a par with a regularly recruited candidate, and
made permanent in employment, even assuming that
the principle could be invoked for claiming equal
wages for equal work. There is no fundamental right in
those who have been employed on daily wages or
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

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requirements of
Articles 14
and
of the Constitution.
The right to be treated equally with the other
employees employed on daily wages, cannot be
extended to a claim for equal treatment with those who
were regularly employed. That would be treating
unequals as equals. It cannot also be relied on to claim
a right to be absorbed in service even though they
have never been selected in terms of the relevant
recruitment rules. The arguments based on
Articles 14

and
of the Constitution are therefore overruled.

49. It is contended that the State action in
not regularising the employees was not fair within the
framework of the rule of law. The rule of law compels
the State to make appointments as envisaged by the
Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the employees
had worked for some length of time but this has also
been brought about by the pendency of proceedings in
tribunals and courts initiated at the instance of the
employees. Moreover, accepting an 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

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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 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

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that the right to employment is also a right coming
within the purview of
Article 21
of the Constitution.
The argument that
Article 23
of the Constitution is
breached because the employment on daily wages
amounts to forced labour, cannot be accepted. After
all, the employees accepted the employment at their
own volition and with eyes open as to the nature of
their employment. The Governments also revised the
minimum wages payable from time to time in the light
of all relevant circumstances. It also appears to us that
importing of these theories to defeat the basic
requirement of public employment would defeat the
constitutional scheme and the constitutional goal of
equality.”

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

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basis, the same would come to an end when it is
discontinued. Similarly temporary employee could not
claim to be made permanent on the expiry of his term
of appointment. It has also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed
in regular service or made appointment, merely on the
strength of such continuance, if the original
appointment was not made by following a due process
of selection as envisaged by the relevant rules.

63. It is not open to the court to prevent
regular recruitment at the instance of temporary
employees whose period of employment has come to
an end or of ad hoc 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

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regularization. Thus, the very legal principles settled
by the Constitution Bench has to be fit in with the facts
and circumstances of the present writ petition.
Further, the Hon'ble Supreme Court of India deals with
the “litigious employment”. Of course, the situation
does not arise in the present case. The interim order
of Status Quo granted by this Court has not been
properly implemented by reinstating the petitioners in
service and the Contempt petition filed by the writ
petitioners were also posted along with the writ
petition for final disposal. Thus, the concept of
“litigious employment” would not arise in respect of
the present writ petition. Therefore, the petitioners
have not continued in service by virtue of the interim
order of Status Quo granted 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

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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. 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

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nature of it and the consequences flowing from it. In
other words, even while accepting the employment, the
person concerned knows the nature of his employment.
It is not an appointment to a post in the real sense of
the term. The claim acquired by him in the post in
which he is temporarily employed or the interest in
that post cannot be considered to be of such a
magnitude, 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. 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

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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 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

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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

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Articles 14,16 and 309 so as to ensure that public
employment is given only in a fair and equitable
manner by giving all those who are qualified, an
opportunity to seek employment. In the guise of
upholding rights under
Article 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

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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.”

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

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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
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.

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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 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

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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 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

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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 sanctioned posts or
where the persons appointed do not possess the

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prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person
employed possessed the prescribed qualifications and
was working against sanctioned posts, but had been
selected without undergoing the process of open
competitive selection, such appointments are
considered to be irregular.”

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

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

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

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

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presumably on the basis of equitable consideration or
individualization of justice. The question arises, equity
to whom? Equity for the handful of people who have
approached the Court with a claim, or equity for the
teeming millions of this Country seeking employment
and seeking a fair opportunity for competing for
employment?

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

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

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of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] , as noticed earlier, permitted
regularisation of regular appointments and not illegal
appointments.

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

43.As to what would constitute an irregular
appointment is no longer res integra. The decision of
this Court in
State of Karnataka v. M.L. Kesari
[(2010)
9 SCC 247 : (2010) 2 SCC (L&S) 826] , has 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

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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 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

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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
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

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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 they are not working against any

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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.

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

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

Umadevi (3) [State of Karnataka v. Umadevi

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

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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 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

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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 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:

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“11.Elaborating upon the principles
laid
down in
Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC
(L&S) 753] and explaining the difference between
irregular and illegal appointments in
State of
Karnataka v. M.L. Kesari
[(2010) 9 SCC 247 : (2010) 2
SCC (L&S) 826] , this Court held as under: (
M.L.
Kesari
case [(2010) 9 SCC 247 : (2010) 2 SCC (L&S)
826] , SCC p. 250, para 7)
“7. It is evident from the above that there is an
exception to the general principles against
‘regularisation’ enunciated in Umadevi (3) [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] , if the following
conditions are fulfilled:

(i) The employee concerned should have worked for 10
years or more in duly sanctioned post without the
benefit or protection of the interim order of any court
or tribunal. In other words, the State Government or
its instrumentality should have employed the employee
and continued him in service voluntarily and
continuously for more than ten years.

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

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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 Constitution Bench in the “Umadevi
Case”.

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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

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orders of the Court/Tribunal, but by the decision of the
respondents. The appellants were regularised as per
the policy decision dated 16-4-2003 taken by
Respondent 1 and approved by the State Government
vide Letter dated 5-3-2008. Since the appointment of
the appellants were made pursuant to the policy of
regularisation, the High Court was not right in
quashing the appointment of the appellants as the
same were never in question before the High Court.
The plea that was raised by the appellants was only to
seek regularisation with retrospective effect from
20-11-2002 and the consequential seniority.”

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

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the Constitution Bench of the Hon'ble Supreme Court
of India in the recent case of
National Insurance Co.
Ltd vs Pranay Sethi and Others
, reported in [JT
2017 10 SC 450] cited supra.

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

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491. In the above judgment paragraph (17) & (18) are
extracted hereunder:

“17.A combined reading of the aforementioned
paragraphs would clearly indicate that what the
Constitution Bench had in mind in directing
regularisation was in relation to such appointments,
which were irregular in nature and not illegal ones.

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

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

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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 : 2006
SCC (L&S) 1797] and State of
M.P. v. Lalit Kumar Verma
[(2007) 1 SCC 575 : (2006)
12 Scale 642] .)”

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

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

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[(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
of the Constitution in contravention of the rules.

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

17. We have already indicated the constitutional
scheme of public employment in this country, and the
executive, or for that matter the court, in appropriate

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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

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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 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

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

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

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

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

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

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

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the observations made in Para 53 in Umadevi [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] which reads as under:

(SCC p. 42, para 53)
“53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in
State of Mysore v. S.V.
Narayanappa
[AIR 1967 SC 1071 : (
1967) 1 SCR 128] ,
R.N. Nanjundappa v. T. Thimmiah
[(
1972) 1 SCC 409]
and B.N. Nagarajan v. State of Karnataka
[(1979) 4
SCC 507 : 1980 SCC (L&S) 4] and referred to in para
15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees
have continued to work for ten years or more but
without the intervention of orders of the courts or of
tribunals. The question of regularisation of the services
of such employees may have to be considered on
merits in the light of the principles settled by this
Court in the cases abovereferred to and in the light of
this judgment. In that context, the Union of India, the
State Governments and their instrumentalities should
take steps to regularise as a 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

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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 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

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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

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ultimately the legal principle settled in by the
Constitution Bench in the “Umadevi Case” is binding
over the subject and the same is to be followed
scrupulously by all the Courts across the country and
the same becomes the law of the land in the matter of
regularization, permanent absorption and
appointment.

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

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through back doors.

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

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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.”

8.In view of the above, these Writ Petitions stand

dismissed. No costs.

17.06.2019
Index : Yes/No
Internet : Yes/No

Myr

To

1.The Secretary to Government,
State of Tamil Nadu,
Public Works Department,
Fort St. George, Chennai-9.

2.The Engineer-in Chief,
WRO & Chief Engineer (General),
Public Works Department,
Chepauk, Chennai-600 005.

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S.M.SUBRAMANIAM,J.

Myr

3.The Chief Engineer (WRO),
Public Works Department,
Madurai Region, Madurai-625 002.

4.The Superintending Engineer (WRO),
Public Works Department,
Periyar Vaigai Basin Division,
Madurai.

5.The Superintending Engineer,
(Water Resource Organisation),
Lower Vaigai Basin Circle,
Lower Vaigai Basin Division,
Sivagangai.

W.P.(MD)Nos.9701 to 9703 of 2014

17.06.2019

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