Madras High Court

R.Ayyapillai vs The State Of Tamil Nadu on 11 July, 2019

Equivalent citations: AIRONLINE 2019 MAD 353

Author:
S.M.Subramaniam

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

DATED: 11.07.2019

CORAM:

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.(MD) No.21195 of 2014

R.Ayyapillai ... Petitioner
vs.

1.The State of Tamil Nadu
rep.by its Secretary
Public Works Department
Fort St.George, Chennai-9

2.The Chief Engineer
Water Resource Organization
Chepauk, Chennai-5

3.The Chief Engineer
Water Resource Organization
Madurai Division, Madurai

4.The Superintending Engineer
Water Resource Organization
Tamirabarani Basin Circle
Palayamkottai, Tirunelveli-2

5.The Executive Engineer
P.W.D.Water Resources Organization
Kothaiyar Basin Division, Nagercoil ... Respondents

PRAYER: Writ Petition filed under
Article 226
of the Constitution of India for

issuance of writ of mandamus directing the 1st respondent to regularize the

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service of the petitioner who is working as Gardener from 1994(NMR) with all

service benefit and grant all monetary benefits within a time stipulated by this

Court.

For Petitioner : Ms.J.Anandhavalli
For Respondents : Mr.D.Muruganandham
Additional Government Pleader

ORDER

The relief sought for in the present writ petition is for a direction to

the first respondent to regularize the services of the writ petitioner, who is

working as Gardener from 1994 (N.M.R.) with all service benefits and grant

monetary benefits.

2. The learned counsel for the writ petitioner made a submission

that the writ petitioner was initially engaged in Nominal Muster Roll (N.M.R.)

in the office of the fourth respondent from 01.05.1994. The writ petitioner was

engaged as Gardener (N.M.R.) in the respondent / Department and has

completed more than 20 years of service without any complaint. The writ

petitioner filed O.A.No.5031 of 1998, before the Tamil Nadu Administrative

Tribunal, which was subsequently transferred to the High Court and

renumbered as W.P.No.43245 of 2006 and in the meanwhile, the Government

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also issued G.O.Ms.No.22, Personnel and Administrative Reforms (F)

Department, dated 28.02.2006 and G.O.Ms.No.334, Public Works

Department, dated 19.10.2007. Pursuant to these Government Orders, the

daily wage employees, who have rendered ten years of service as on

01.01.2006 were brought under the regular establishment. Relying on the

said Government Orders, the learned counsel for the writ petitioner states that

the case of the writ petitioner was also recommended by the competent

authorities. However, no final decision has been taken and the repeated

proposals sent by the authorities competent were not even considered by the

Government for granting the benefit of regularization to the writ petitioner.

For several years, the writ petitioner is waiting for the benefit of regularization

and the said benefit has not been extended sofar. Thus, the writ petitioner is

constrained to file the present writ petition.

3. This apart, this Court also passed an order in W.P.No.43241 of

2006, on 26.03.2009, directing the writ petitioner to submit a fresh

representation to the respondents and the respondents were directed to

consider the same based on the proposals submitted for grant of

regularization. In spite of the earlier orders of this Court, no final orders have

been passed by the Government with reference to the proposals submitted by

the authority concerned for grant of regularization.

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4. The learned Additional Government Pleader appearing for the

respondents, with reference to the counter affidavit filed by the fifth

respondent, states that the writ petitioner was appointed as a daily wage

employee and he was a casual labourer for specific work and whenever the

service of the writ petitioner was necessary, then only he was engaged. The

writ petitioner was not appointed through Employment Exchange. Thus, the

engagement of the writ petitioner as daily wage employee, was in violation of

the recruitment rules in force. The writ petitioner is not eligible for

regularization in view of the fact that he was not a regular daily wage employee

appointed in the sanctioned post. This apart, G.O.Ms.No.22, Personnel and

Administrative Reforms (F) Department, dated 28.02.2006, had already been

withdrawn. Subsequently, the Government issued another G.O.Ms.No.74,

Personnel and Administrative Reforms (F) Department, dated 27.06.2013,

imposing certain conditions and as per the said conditions also, the writ

petitioner is not entitled for the benefits of regularization and permanent

absorption.

5. The fact remains that the writ petitioner was engaged as a daily

wage employee. In the earlier writ petition filed by the writ petitioner, this

Court passed an order directing the respondents to consider the writ

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petitioner's representation. However, no order has been passed by the

respondent and the writ petitioner had also not pursued his remedy

thereafter. However, the learned counsel for the writ petitioner states that

several proposals were submitted by the competent authority for considering

the case of the writ petitioner for grant of regularization.

6. Regularization or permanent absorption cannot be granted in

violation of the recruitment rules in force. The persons, who were appointed

by not following the recruitment rules and served as daily wage employees,

cannot seek the benefit of regularization. The daily wage employees are

accepting the offer of appointment on certain terms and conditions. Once they

agreed the terms and conditions imposed for the daily wage engagement, then

they cannot turn around and claim the benefit of regularization in violation of

the recruitment rules in force.

7. With reference to the Water Resources Organization / Public

Works Department, this Court considered the grant of regularization and

permanent absorption in detail with reference to the Judgment of the

Constitution Bench of the Honourable Supreme Court, in W.P.Nos.28633 to

28646 of 2014, dated 12.12.2017. The relevant paragraphs are extracted

hereunder:

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"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 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

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regularisation in the existing vacancies since the writ petitioners
have put in more than 10 years of their services as daily wage
employees and their names are registered under the Nominal
Muster Roll maintained by the respondents. It is not the case of
appointment of the writ petitioners but the case of their
regularisation is the contention of the writ petitioners. When the
employees have completed 10 years of their services, without the
intervention of any Court order then their services to be regularised
as per paragraph 53 of the Constitution Bench judgment of the
Honourable Supreme Court of India, in the case of
State of
Karnataka v. Umadevi
[(2006) 4 SCC 1], laid down the legal
principles in the matter of regularisation, permanent absorption.

The relevant Paragraph 53 of the judgment, cited supra, is
extracted hereunder:-

“53.One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799]
and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979)
3 SCR 937] and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more
but without the intervention of orders of the courts or of tribunals.

The question of regularisation of the services of such employees
may have to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in the light
of this judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to

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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 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-

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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.

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

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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
daily wage basis and therefore, the benefit of regularisation, cannot
be granted.

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

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

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

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

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

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

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

18. The learned Additional Government Pleader for the
respondents, further stated that paragraphs 6(i), (ii), (vi), (vii), (ix) of
Government Order No.74, Personnel and Administrative Reforms (F)
Department, dated 27.6.2013, the Government have ordered that

“6(i) This order shall be deemed to have been come into force
with retrospective effect from 1.1.2006;

6(ii) The services of the full time daily wage employees, who
were initially appointed on full time basis in consultation with the
Employment Exchange, to discharge the function of the post in the

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

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

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

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

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

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

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

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

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

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

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

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

“(i) The High Courts, in exercising power under
Article 226
of
the Constitution will not issue directions for regularisation,
absorption or permanent continuance, unless the employees
claiming regularisation had been appointed in pursuance of a
regular recruitment in accordance with relevant rules in an open
competitive process, against sanctioned vacant posts. The equality
clause contained in
Articles 14
and
should be scrupulously
followed and Courts should not issue a direction for regularisation
of services of an employee which would be violative of the
constitutional scheme. While something that is irregular for want of
compliance with one of the elements in the process of selection
which does not go to the root of the process, can be regularised,
back door entries, appointments contrary to the constitutional
scheme and/or appointment of ineligible candidates cannot be
regularised.

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

(iii) Even where a scheme is formulated for regularisation
with a cut-off date (that is a scheme providing that persons who
had put in a specified number of years of service and continuing in
employment as on the cut-off date), it is not possible to others who
were appointed subsequent to the cut-off date, to claim or contend
that the scheme should be applied to them by extending the cut-off
date or seek a direction for framing of fresh schemes providing for
successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation
as they are not working against any sanctioned posts. There cannot
be a direction for absorption, regularisation or permanent
continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run
institutions cannot claim parity in salary with regular employees of
the Government on the principle of equal pay for equal work. Nor
can employees in private employment, even if serving full time, seek
parity in salary with government employees. The right to claim a
particular salary against the State must arise under a contract or
under a statute.”

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

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

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

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

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estopped from invoking the lofty jurisdiction of this Apex Forum
outside the ambit of the constitutional provisions.

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

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

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

(iii) The writ petitioners were not employed in connection with
the affairs of the State as defined in
Article 323-A
of the
Constitution of India and the writ petitioners were only casual
labourers co-terminus with the purposeful completion of the works
concerned as per the Acts and the Rules in which such provisions
for the deployment of casual labour is made;

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

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

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Supreme Court of India, New Delhi in Civil Appeal No.2726-2729 of
2014 dated 21.2.2014, judgment cited supra, the claim of the writ
petitioners cannot be considered;

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

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

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

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

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Judgment of the Constitution Bench of the Hon'ble Supreme Court
of India in the case of
The State of Karnataka Vs. Umadevi
,
reported in (2006) 4 SCC 1 [herein after referred to as
“Umadevi Case”], one time benefit was granted by the Hon'ble
Supreme Court of India in Paragraph (53) of the Judgment.

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

29. Pursuant to the said Government order, large number of
temporary employees were conferred with the benefit of
regularization and based on that, the writ petitioner also raised his
claim for regularization. However, after the Constitution Bench
judgment rendered in “Umadevi Case”, the State Government
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

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

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

31. The learned Additional Government Pleader brought to
the notice of this Court that the State preferred Writ Appeals in
W.A.Sr.No.89134/17 in W.P.29346/14, W.A.Sr.No.89136/17 in
W.P.No. 7594/14, W.A.Sr. No.89142/17 in W.P.No.15668/14,
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

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

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

34. Under these circumstances, this Court has to consider the
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.

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Thus, the binding nature of the judgments rendered in respect of
other cases has to be cogently read and harmoniously interpreted
based on the legal principles settled by the Constitution Bench of
the Hon'ble Supreme Court of India.

36. Before considering the subject of regularization and
permanent absorption, this Court has to consider the interpretation
of the judgments on “binding nature” or “binding precedent” . In
view of the fact that the learned counsel for the petitioner has cited
number of judgments, which were passed subsequent to the
Constitution Bench judgment, stating that Paragraph (53) of the
“Umadevi Case” has been interpreted in different ways and under
different circumstances and the present case is also to be
considered and a direction to be issued for regularization. In view
of the fact that large number of judgments are cited before this
Court in the matter of regularization and permanent absorption,
now, this Court has to first decide what all are the judgments which
all are having a “binding precedent” and on this reason, this Court
has to consider very interpretation of the concept regarding
“binding precedent”.
In respect of judgments in relation to the
interpretation of “binding 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 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. …”

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

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

396)and Tribhovandas Purshottamdas Thakkar v. Ratilal
Motilal Patel
(AIR 1968 SC 372).

It may be noted here that the
Constitution Bench in
Madras Bar Association v. Union of India
and another
[JT 2015(5)SC 33]has clearly stated that the prior
Constitution Bench judgment in
Union of India v. Madras Bar
Association [JT
2010 (5) SC 553]is a binding precedent. Be it
clarified, the issues that were put to rest in the earlier Constitution
Bench judgment were treated as precedents by latter Constitution
Bench.

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

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that an earlier decision given by a Bench is not brought to the notice
of a Bench hearing the same question, and a contrary decision is
given without reference to the earlier decision. The question has
also been discussed as to the correct procedure to be followed
when two such conflicting decisions are placed before a later
Bench. The practice in the Patna High Court appears to be that in
those cases, the earlier decision is followed and not the later. In
England the practice is, as noticed in the judgment in Seshamma v.
Venkata Narasimharao that the decision of a court of appeal is
considered as a general rule to be binding on it. There are
exceptions to it, and one of them is thus stated in Halsbury’s Laws
of England, 3rd Edn., Vol. 22, para 1687, pp. 799-800:

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

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We have no doubt that when such situations arise, the Bench
hearing cases would refer the matter for the decision of a Full
Court.”

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

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

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“22. … The doctrine of binding precedent is of utmost
importance in the administration of our judicial system. It promotes
certainty and consistency in judicial decisions. Judicial consistency
promotes confidence in the system, therefore, there is this need for
consistency in the enunciation of legal principles in the decisions of
this Court. It is in the above context, this Court in the case of
Raghubir Singh (1989) 2 SCC 754)held that a pronouncement of
law by a Division Bench of this Court is binding on a Division Bench
of the same or smaller number of Judges. …

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

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

In
Rattiram and
others v. State of Madhya Pradesh
(2012) 4 SCC 516), the
Court dwelt upon the issue what would be the consequent effect of
the latter decision which had been rendered without noticing the
earlier decisions.
The Court noted the observations in Raghubir
Singh (supra) and reproduced a passage from Indian Oil
Corporation Ltd. v. Municipal Corporation (1995) 4 SCC

96)which is to the following effect:-“8. … The Division Bench of the
High Court in
Municipal Corpn., Indore v. Ratnaprabha Dhanda

was clearly in error in taking the view that the decision of this Court
in Ratnaprabha was not binding on it. In doing so, the Division
Bench of the High Court did something which even a later coequal

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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 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

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group of 40 to 50 years.9. In Sarla Verma case, it has been stated
that in the case of those above 50 years, there shall be no addition.
Having regard to the fact that in the case of those self-employed or
on fixed wages, where there is normally no age of superannuation,
we are of the view that it will only be just and equitable to provide
an addition of 15% in the case where the victim is between the age
group of 50 to 60 years so as to make the compensation just,
equitable, fair and reasonable. There shall normally be no addition
thereafter.”

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

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Prakash and others v. State of U.P. and another
, reported in
[JT 2002 (3) SC 493], held that the doctrine of binding precedent
is of utmost importance in the administration of our judicial system.

It promotes certainty and consistency in judicial decisions. Judicial
consistency promotes confidence in the system, therefore, there is
this need for consistency in the enunciation of legal principles in the
decisions of this Court.

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

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

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

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40. In view of the legal principle settled in the matter of
“binding precedent”, now, this Court is bound by the legal
principles settled by the Constitution Bench of the Hon'ble Supreme
Court of India in the “Umadevi Case”. Admittedly, there is no
other subsequent Constitution Bench judgment in respect of the
subject of regularization and permanent absorption. The last
judgment rendered by the Constitution Bench in the subject matter
is “Umadevi Case”. Thus, the legal principles settled by the
Constitution Bench in “Umadevi Case” are of “binding precedent”
or to be followed as “binding precedent”. Thus, the facts and
circumstances of the present writ petition has to be considered only
in the light of the principles laid down by the Constitution Bench.
All other judgments subsequently passed by the Hon'ble Supreme
Court of India may have certain distinctions far and against.
However, these judgments are to be interpreted only based on the
facts and circumstances prevailing in that particular case and
therefore, this Court cannot consider those judgments delivered on
a particular facts in relation to that particular case. However, the
legal principles are to be considered in relation to the facts and
circumstances of the present case on hand.

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

“5. This Court has also on occasions issued directions which could
not be said to be consistent with the constitutional scheme of public
employment. Such directions are issued presumably on the basis of

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

42. This Court wants to look into the very findings made by
the Hon'ble Supreme Court of India in the above said paragraph (5),
the Apex Court has conceded that the Hon'ble Supreme Court of
India had also on occasions, issued directions, which could not be
said to be consistent with the Constitutional schemes of public
employment. Such directions are issued presumably on the basis
of equitable considerations or individualisation of justice. The
Hon'ble Supreme Court of India raised a question that equity to
whom? Equity for the handful of people who have approached the
Court with the claim, or equity for the teeming millions of this
Country seeking employment and seeking a fair opportunity for
competing for employment? When one side of the coin is
considered, the other side of the coin has also to be considered and
the way open to any Court of law or justice, is to adhere to the law
as laid down by the Constitution and not to make directions, which
at times, even if do not run counter to the constitutional scheme,

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certainly tend to water down the constitutional requirements. It is
this Conflict that reflected in these cases referred to the Constitution
Bench.

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

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

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

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arguments raised by the Additional Solicitor General.

The order of
reference is reported in
Secy., State of Karnataka v. Umadevi
(2)
[(2006) 4 SCC 44 : (2003) 10 Scale 388] . It appears to be proper to
quote that order of reference at this stage. It reads: (SCC p. 45,
paras 1-5)

“1.

Apart from the conflicting opinions between the three-Judge
Bench decisions in
Ashwani Kumar v. State of Bihar
[(1997) 2 SCC
1 : 1997 SCC (L&S) 465 : 1996 Supp (10) SCR 120] , State of
Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 :

(1992) 21 ATC 403 : (1992) 3 SCR 826] and Dharwad Distt. PWD
Literate Daily Wage Employees Assn. v. State of Karnataka [(1990)
2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1
SCR 544] on the one hand and State of H.P. v. Suresh Kumar
Verma [(1996) 7 SCC 562 : 1996 SCC (L&S) 645 : (1996) 33 ATC
336 : AIR 1996 SC 1565 : (1996) 1 SCR 972] , State of Punjab v.

Surinder Kumar [(1992) 1 SCC 489 : 1992 SCC (L&S) 345 : (1992)
19 ATC 500 : AIR 1992 SC 1593 : 1991 Supp (3) SCR 553] and
B.N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937] on the other, which have been
brought out in one of the judgments under appeal of the Karnataka
High Court in
State of Karnataka v. H. Ganesh Rao
[(2001) 4 Kant
LJ 466 (DB)] , decided on 1-6-2001 the learned Additional Solicitor
General urged that the scheme for regularisation is repugnant to

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

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

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regularisation is consistent with the provisions of
Articles 14
and
of the Constitution.

3. Mr V. Lakshmi Narayan, learned counsel appearing in CCs Nos.
109-498 of 2003, has filed the GO dated 19-7-2002 and submitted
that the orders have already been implemented.

4. After having found that there is conflict of opinion between the
three-Judge Bench decisions of this Court, we are of the view that
these cases are required to be heard by a Bench of five learned
Judges.

5. Let these matters be placed before the Hon'ble the Chief Justice
for appropriate orders.”

We are, therefore, called upon to resolve this issue here. We have to
lay down the law. We have to approach the question as a
constitutional court should.”

45. The above said Paragraph (10), stipulates that there were
conflicting decisions by three-Judge Benches of this Court and by
two-Judge Benches of the Hon'ble Supreme Court of India and
therefore, the Hon'ble Supreme Court of India has considered that
the question required to be considered by a larger Bench. It is
further observed that when the matters came up before a three-
Judge Bench, the Bench in turn felt that the matter required
consideration by a Constitution Bench in view of the conflict and in
the light of the arguments raised by the Additional Solicitor General.
In the reference made by the Hon'ble three-Judge Bench itself
decided that the scheme for regularisation is repugnant to
Articles
16(4)
, 309
, 320
and
of the Constitution and, therefore, these
cases are required to be heard by a Bench of five learned

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Judges(Constitution Bench).

46. In paragraph (11) of the “Umadevi Case”, it is stated
that in addition to the equality clause represented by
Article 14
of
the Constitution,
Article 16
has specifically provided for equality of
opportunity in matters of public employment. Buttressing these
fundamental rights,
Article 309
provides that subject to the
provisions of the Constitution, Acts of the legislature may regulate
the recruitment and conditions of service of persons appointed to
public services and posts in connection with the affairs of the Union
or of a State.

47. In view of the interpretation placed on
Article 12
of the
Constitution by this Court, obviously, these principles also govern
the instrumentalities that come within the purview of
Article 12
of
the Constitution. With a view to make the procedure for selection
fair, the Constitution by
Article 315
has also created a Public
Service Commission for the Union and the Public Service
Commissions for the States.
Article 320
deals with the functions of
the Public Service Commissions and mandates consultation with the
Commission on all matters relating to methods of recruitment to civil
services and for civil posts and other related matters. As a part of
the affirmative action recognised by
Article 16
of the Constitution,

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

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,

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in posts which are temporary, on daily wages, as additional hands
or taking them in without following the required procedure, to
discharge the duties in respect of the posts that are sanctioned and
that are required to be filled in terms of the relevant procedure
established by the Constitution or for work in temporary posts or
projects that are not needed permanently. This right of the Union or
of the State Government cannot but be recognised and there is
nothing in the Constitution which prohibits such engaging of
persons temporarily or on daily wages, to meet the needs of the
situation. But the fact that such engagements are resorted to,
cannot be used to defeat the very scheme of public employment.
Nor can a court say that the Union or the State Governments do not
have the right to engage persons in various capacities for a duration
or until the work in a particular project is completed. Once this right
of the Government is recognised and the mandate of the
constitutional requirement for public employment is respected, there
cannot be much difficulty in coming to the conclusion that it is
ordinarily not proper for the Courts whether acting under
Article
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, 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

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engage persons in various capacities for a duration or until the
work in a particular project is completed. Once this right of the
Government is recognised and the mandate of the constitutional
requirement for public employment is respected, there cannot be
much difficulty in coming to the conclusion that it is ordinarily not
proper for the Courts, whether acting under
Article 226
of the
Constitution or under
Article 32
of the Constitution, to direct
absorption in permanent employment of those who have been
engaged without following a due process of selection as envisaged
by the constitutional scheme. Thus, it is made clear by the
Constitutional Bench that regular recruitment rules in force,
followed scrupulously by the competent authorities and
engagements on temporary basis cannot be resorted or the same
cannot lead to permanent absorption or regularization. Further, it is
stated that the Government is entitled to appoint the persons on
daily wages/consolidated pay/temporary basis, if a Government is
of the opinion that a project has to be implemented or a special
works to be carried out, then they are at liberty to do so, by
engaging the temporary employees. Such being the concept
accepted by the Hon'ble Supreme Court of India, no doubt, a mere
appointment on temporary/daily wage basis cannot constitute a
right for the employees to claim regularization or permanent
absorption.

50. Further, Paragraph (13) of the “Umadevi Case”
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

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the engaged work for a certain length of time. Such considerations
can have only a limited role to play, when every qualified citizen
has a right to apply for appointment, the adoption of the concept of
rule of law and the scheme of the Constitution for appointment to
posts. It cannot also be forgotten that it is not the role of the courts
to ignore, encourage or approve appointments made or
engagements given outside the constitutional scheme. In effect,
orders based on such sentiments or approach would result in
perpetuating illegalities and in the jettisoning of the scheme of
public employment adopted by us while adopting the Constitution.
The approving of such acts also results in depriving many of their
opportunity to compete for public employment. We have, therefore,
to consider the question objectively and based on the constitutional
and statutory provisions.
In this context, we have also to bear in
mind the exposition of law by a Constitution Bench in
State of
Punjab v. Jagdip Singh
[(1964) 4 SCR 964 : AIR 1964 SC 521] . It
was held therein: (SCR pp. 971-72)
“In our opinion where a government servant has no right to a post
or to a particular status, though an authority under the Government
acting beyond its competence had purported to give that person a
status which it was not entitled to give he will not in law be deemed
to have been validly appointed to the post or given the particular
status.”

51. This Court cannot omit the powerful statement made by
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

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cannot also be forgotten that it is not the role of the Courts to ignore,
encourage or approve appointments made or engagements given
outside the constitutional scheme. In effect, orders based on such
sentiments or approach would result in perpetuating illegalities and
in the jettisoning of the scheme of public employment adopted by
us, while adopting the Constitution. We, the people of India, while
adopting the Constitution.

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

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

The earlier Constitution Bench in the case of
State of
Punjab Vs. Jagdip Singh
, held that where a Government Servant
has no right to a post or to a particular status, though an authority
under the Government acting beyond its competence had purported
to give that person a status which it was not entitled to give he will
not in law be deemed to have been validly appointed to the post or
given the particular status.

53. In paragraph (14) of the “Umadevi Case” judgment, the
Hon'ble Supreme Court of India has elaborately discussed about
various orders of the Courts either interim orders or final orders
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

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that this Court settled the law once and for all so that in case the
Court finds that such orders should not be made, the Courts,
especially, the High Courts would be precluded from issuing such
directions or passing such orders.

54. The very arguments advanced by the learned counsel for
the State of Karnataka is that a chaos was created on account of
various contradicting orders passed by the High Courts in the
matter of regularization or permanent absorption in order to settle
the legal principles. The learned counsel urged the Hon'ble
Supreme Court of India to take note of the fact that there is a chaos
prevailing in respect of the regularization and permanent absorption
of the temporary/daily wages employees and brought to the notice
of the Hon'ble Supreme Court of India that the High Courts would
be precluded from issuing any such directions or passing such
orders in contrary to the legal principles in the matters of
regularization or permanent absorption or appointment. The
observation made in this regard is that bypassing of the
Constitutional scheme cannot be perpetuated by the passing of
orders without dealing with and deciding the validity of such orders
on the touchstone of Constitutionality.

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

“20. The decision in Dharwad Distt.
PWD Literate Daily Wage
Employees Assn. v. State of Karnataka
[(1990) 2 SCC 396 : 1990
SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] dealt with
a scheme framed by the State of Karnataka, though at the instance
of the Court. The scheme was essentially relating to the application
of the concept of equal pay for equal work but it also provided for

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making permanent, or what it called regularisation, without keeping
the distinction in mind, of employees who had been appointed ad
hoc, casually, temporarily or on daily-wage basis. In other words,
employees who had been appointed without following the
procedure established by law for such appointments. This Court, at
the threshold, stated that it should individualise justice to suit a
given situation. With respect, it is not possible to accept the
statement, unqualified as it appears to be. This Court is not only the
constitutional court, it is also the highest court in the country, the
final court of appeal. By virtue of
Article 141
of the Constitution,
what this Court lays down is the law of the land. Its decisions are
binding on all the courts. Its main role is to interpret the
constitutional and other statutory provisions bearing in mind the
fundamental philosophy of the Constitution. We have given unto
ourselves a system of governance by rule of law. The role of the
Supreme Court is to render justice according to law. As one jurist
put it, the Supreme Court is expected to decide questions of law for
the country and not to decide individual cases without reference to
such principles of law. Consistency is a virtue. Passing orders not
consistent with its own decisions on law, is bound to send out
confusing signals and usher in judicial chaos. Its 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.”

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

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

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

&
which was described as a facet of
Article 14
is part of the basic
structure of the Constitution.

In the case of
Indra Sawhney Vs.
Union of India
, reported in (2000) 1 SCC 168
,
the said decision

was reiterated how neither the Parliament nor the legislature could
transgress the basic feature of the Constitution, namely, the
principle of equality enshrined in
Article 14
of which
Article 16(1)
is
a facet.

59.
In paragraph (41), the earlier decision in the above said
case of
Indra Sawhney Vs. Union of India
, reported in (2000)

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1 SCC 168, it is held that equality and equal opportunity is a basis
feature of our Constitution, has explained the exultant position of

Articles 14
and
of the Constitution in the scheme of things.

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

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

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

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

Article 14
or in ordering the overlooking of the need to comply with
the requirements of
Article 14
read with
Article 16
of the
Constitution. Therefore, consistent with the scheme for public

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employment, this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the relevant rules
and after a proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the
contract, if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not claim to be
made permanent on the expiry of his term of appointment. It has
also to be clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by following
a due process of selection as envisaged by the relevant rules. It is
not open to the court to prevent regular recruitment at the instance
of temporary employees whose period of employment has come to
an end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High Courts acting
under
Article 226
of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent continuance
unless the recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because an employee had continued
under cover of an order of the court, which we have described as
“litigious employment” in the earlier part of the judgment, he would
not be entitled to any right to be absorbed or made permanent in
the service. In fact, in such cases, the High Court may not be
justified in issuing interim directions, since, after all, if ultimately

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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 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,

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after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :

(1990) 12 ATC 902 : (1990) 1 SCR 544] the Government had issued
repeated directions and mandatory orders that no temporary or ad
hoc employment or engagement be given. Some of the authorities
and departments had ignored those directions or defied those
directions and had continued to give employment, specifically
interdicted by the orders issued by the executive. Some of the
appointing officers have even been punished for their defiance. It
would not be just or proper to pass an order in exercise of
jurisdiction under
Article 226
or 32 of the Constitution or in exercise
of power under
Article 142
of the Constitution permitting those
persons engaged, to be absorbed or to be made permanent, based
on their appointments or engagements. Complete justice would be
justice according to law and though it would be open to this Court to
mould the relief, this Court would not grant a relief which would
amount to perpetuating an illegality.

45. While directing that appointments, temporary or casual,
be regularised or made permanent, the courts are swayed by the
fact that the person concerned has worked for some time and in
some 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

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

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employment and would have to fail when tested on the touchstone
of constitutionality and equality of opportunity enshrined in
Article
of the Constitution.

46. Learned Senior Counsel for some of the respondents
argued that on the basis of the doctrine of legitimate expectation,
the employees, especially of the Commercial Taxes Department,
should be directed to be regularised since the decisions in Dharwad
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :

(1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403 : (
1992) 3 SCR 826] , Jacob [Jacob
M. Puthuparambil v. Kerala Water Authority
, (1991) 1 SCC 28 :

1991 SCC (L&S) 25 : (
1991) 15 ATC 697] and Gujarat Agricultural
University [Gujarat Agricultural University v. Rathod Labhu Bechar
,
(2001) 3 SCC 574 : 2001 SCC (L&S) 613] and the like, have given
rise to an expectation in them that their services would also be
regularised. The doctrine can be invoked if the decisions of the
administrative authority affect the person by depriving him of some
benefit or advantage which either (i) he had in the past been
permitted by the decision-maker to enjoy and which he can
legitimately expect to be permitted to continue to do until there have
been communicated to him some rational grounds for withdrawing it
on which he has been given an opportunity to comment; or (ii) he
has received assurance from the decision-maker that they will not
be withdrawn without giving him first an opportunity of advancing
reasons for contending that they should not be withdrawn.

[See
Lord Diplock in Council for Civil Services Union v. Minister of Civil
Service [1985 AC 374 : (1984) 3 All ER 935 : (
1984) 3 WLR 1174
(HL)] , National Buildings Construction Corpn. v. S. Raghunathan

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[(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] and Chanchal Goyal (Dr.)
v. State of Rajasthan [(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .]

There is no case that any assurance was given by the Government
or the department concerned while making the appointment on
daily wages that the status conferred on him will not be withdrawn
until some rational reason comes into existence for withdrawing it.

The very engagement was against the constitutional scheme.
Though, the Commissioner of the Commercial Taxes Department
sought to get the appointments made permanent, there is no case
that at the time of appointment any promise was held out. No such
promise could also have been held out in view of the circulars and
directives issued by the Government after Dharwad decision
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :

(1990) 1 SCR 544] . Though, there is a case that the State had
made regularisations in the past of similarly situated employees,
the fact remains that such regularisations were done only pursuant
to judicial directions, either of the Administrative Tribunal or of the
High Court and in some cases by this Court. Moreover, the
invocation of the doctrine of legitimate expectation cannot enable
the employees to claim that they must be made permanent or they
must be regularised in the service though 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.

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

48. It was then contended that the rights of the employees
thus appointed, under
Articles 14
and
of the Constitution, are
violated. It is stated that the State has treated the employees
unfairly by employing them on less than minimum wages and
extracting work from them for a pretty long period in comparison
with those directly 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

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as against those who have been regularly recruited on the basis of
the relevant rules. No right can be founded on an employment on
daily wages to claim that such employee should be treated on a par
with a regularly recruited candidate, and made permanent in
employment, even assuming that the principle could be invoked for
claiming equal wages for equal work. There is no fundamental right
in those who have been employed on daily wages or temporarily or
on contractual basis, to claim that they have a right to be absorbed
in service. As has been held by this Court, they cannot be said to
be holders of a post, since, a regular appointment could be made
only by making appointments consistent with the requirements of

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

49. It is contended that the State action in not regularising
the employees was not fair within the framework of the rule of law.
The rule of law compels the State to make appointments as
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

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

50. It is argued that in a country like India where there is so
much poverty and unemployment and there is no equality of
bargaining power, the action of the State in not making the
employees permanent, would be violative of
Article 21
of the
Constitution. But the very argument indicates that there are so
many waiting for employment and an equal opportunity for
competing for employment and it is in that context that the
Constitution as one of its basic features, has included
Articles 14
,
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

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

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

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appointment, merely on the strength of such continuance, if the
original appointment was not made by following a due process of
selection as envisaged by the relevant rules.

63. It is not open to the court to prevent regular recruitment at
the instance of temporary employees whose period of employment
has come to an end or of ad hoc employees who by the very nature
of their appointment do not acquire any right. The High Courts
acting under
Article 226
of the Constitution, should not ordinarily
issue directions for absorption, regularization, or permanent
continuance unless the recruitment itself was made regularly and in
terms of constitutional scheme.

64. The spirit of Paragraph (43) is applicable to the facts and
circumstances of the present writ petition on hand. In the present
writ petition, the writ petitioners were appointed on daily wage
basis as Nominal Muster Rolls employees. The mere continuance or
the length of service rendered alone cannot be a ground for
granting the relief of regularization. Thus, the very legal principles
settled by the Constitution Bench has to be fit in with the facts and
circumstances of the present writ petition. Further, the Hon'ble
Supreme Court of India deals with the “litigious employment”. Of
course, the situation 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.

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

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

66. Paragraph (45) of the above said judgment states that the
Apex Court of India held that, while directing that appointments,
temporary or casual, be regularized or made permanent, the Courts
are swayed by the fact that the person concerned has worked for
some time and in some cases for a considerable length of time. It is
not as if the person who accepts an engagement either temporary or
casual in nature, is not aware of the nature of his employment. He
accepts the employment with open eyes. It may be true that he is
not in a position to bargain- not at arm's length – Since he might
have been searching for some employment so as to eke out his
livelihood and accepts whatever he gets. But on that ground alone,
it would not be appropriate to jettison the constitutional scheme of
appointment and to take the view that a person who has
temporarily or casually got employed should be directed to be
continued permanently. By doing so, it will be creating another
mode of public appointment which is not 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.

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

68. In Paragraph (46) of the “Umadevi Case” judgment,
their Lordships held that the invocation of the doctrine of legitimate
expectation cannot enable the employees to claim that they must be
made permanent or they must be regularised in the service though
they had not been selected in terms of the rules for appointment.
The fact that in certain cases the court had directed regularization
of the employees involved in those cases cannot be made use of, to
found a claim based on legitimate expectation. The argument if
accepted would also run counter to the constitutional mandate. The
argument in that behalf has therefore to be rejected.

69. Paragraph (47) of the “Umadevi Case” judgment
enumerates that when a person enters a temporary employment or
gets engagement as a contractual or casual worker and the
engagement is not based on a proper selection as recognised by the

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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 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

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by making appointments consistent with the requirements of

Articles 14
and
of the Constitution.

71. In paragraph (49), it is ruled that the rule of law compels
the State to make appointments as envisaged by the Constitution
and in the manner we have indicated by the Hon'ble Supreme Court
of India in the judgment of “Umadevi Case”. When the Court is
approached by way of a writ, the Court has necessarily to ask
itself whether the person before it had any legal right to be
enforced. Even, the Constitution Bench dealt with the
Article 21
of
the Constitution of India, in a Country like India, where there is so
much poverty and unemployment and there is no equality of
bargaining power, the action of the State in not making the
employees permanent, would be violative of
Article 21
of the
Constitution. But the very argument indicates that there are so
many waiting for employment and an equal opportunity for
competing for employment and it is in that context, the Constitution
as one of its basic features, has included Articles 14,16 and 309 so
as to ensure that public 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

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where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799]
and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979)
3 SCR 937] and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more
but without the intervention of orders of the courts or of tribunals.

The question of regularisation of the services of such employees
may have to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in the light
of this judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to
regularise as a one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of the courts or of
tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant 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

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temporary employees. Now, the question arises how long the
benefit granted under paragraph (53) can be extended to the
employees and what is the interpretation of the subsequent
judgment by the Hon'ble Supreme Court of India in respect of
paragraph (53) of the judgment of the Constitution Bench.

74. No doubt, the Constitution Bench of the Hon'ble Supreme
Court of India, while stopping the entire irregular appointments and
back door appointments had taken note of the fact that certain
reliefs are required in respect of the employees who are already
regularized or in respect of those persons, a proposal is already
kept pending. Certainly, the Hon'ble Supreme Court of India have
never intended to grant the relief of regularization or permanent
absorption in public employment contrary to the legal principles
settled in earlier paragraphs. Thus, paragraph (53) of the judgment
has to be understood harmoniously and together with the legal
principles settled by the Constitution Bench in earlier paragraphs.

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

76. The learned counsel for the petitioner cited the judgment
of the Hon'ble Supreme Court of India in the case of U.P.State

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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 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.

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

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

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

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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 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

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Judges Bench of the Hon'ble Supreme Court of India in the case of

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

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

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

85. On a plain reading of the judgment, this Court is of an
undoubted opinion that there is a slight deviation in respect of the
legal principles carved out by the Hon'ble Constitution Bench in
“Umadevi Case”. This Court wishes to remind the language used
by the Constitution Bench in paragraph (5) of “Umadevi Case”. To
reiterate the language used by the Hon'ble Supreme Court of India
emphatically in paragraph (5) that this Court has also occasions to
issue directions which could not be said to be consisted by the
public employment. Such directions are issued presumably on the

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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 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

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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
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:

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(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 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:

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“(i) The High Courts, in exercising power under
Article 226
of the
Constitution will not issue directions for regularisation, absorption
or permanent continuance, unless the employees claiming
regularisation had been appointed in pursuance of a regular
recruitment in accordance with relevant rules in an open competitive
process, against sanctioned vacant posts. The equality clause
contained in
Articles 14
and
should be scrupulously followed
and Courts should not issue a direction for regularisation of
services of an employee which would be violative of the
constitutional scheme. While something that is irregular for want of
compliance with one of the elements in the process of selection
which does not go to the root of the process, can be regularised,
back door entries, appointments contrary to the constitutional
scheme and/or appointment of ineligible candidates cannot be
regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-

wage employee, under cover of some interim orders of the court,
would not confer upon him any right to be absorbed into service, as
such service would be “litigious employment”. Even temporary, ad
hoc or daily-wage service for a long number of years, let alone
service for one or two 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

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employment as on the cut-off date), it is not possible to others who
were appointed subsequent to the cut-off date, to claim or contend
that the scheme should be applied to them by extending the cut-off
date or seek a direction for framing of fresh schemes providing for
successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as
they are not working against any sanctioned posts. There cannot be
a direction for absorption, regularisation or permanent continuance
of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions
cannot claim parity in salary with regular employees of the
Government on the principle of equal pay for equal work. Nor can
employees in private employment, even if serving full time, seek
parity in salary with government employees. The right to claim a
particular salary against the State must arise under a contract or
under a statute.” (Emphasis added) “

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

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of services of an employee which would be violative of the
Constitutional scheme.

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

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

Umadevi (3)
[State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] has also been applied in relation to the persons who
were working on daily wages. According to us, the daily wagers are
not appointees in the strict sense of the term “appointment”. They
do not hold a post. The scheme of alternative appointment framed
for regular employees of abolished organisation cannot, therefore,
confer a similar entitlement on the daily wagers of abolished
organisation to such alternative employment.

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

After
Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 :

2006 SCC (L&S) 753] , their position continued to be that of daily
wagers. Appointment on daily-wage basis is not an appointment to
a post according to the rules. Usually, the projects in which the
daily wagers were engaged, having come to an end, their
appointment is necessarily terminated for want of work. Therefore,
the status and rights of daily wagers of a government concern are
not equivalent to that of a government servant and his claim to
permanency has to be adjudged differently.

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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
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

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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:

“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

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interim order of any court or tribunal. In other words, the State
Government or its instrumentality should have employed the
employee and continued him in service voluntarily and continuously
for more than ten years.

(ii) The appointment of such employee should not be illegal, even if
irregular. Where the appointments are not made or continued
against sanctioned posts or where the persons appointed do not
possess the prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person employed
possessed the prescribed qualifications and was working against
sanctioned posts, but had been selected without undergoing the
process of open competitive selection, such appointments are
considered to be irregular.”

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”.

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

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

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

“13.Considering the facts of the present case on the
touchstone
laid down in
Umadevi (3) case [
State of Karnataka v.
Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , it will be seen
that the Division Bench was not right in setting aside the
appointment of the appellants. More so, it was nobody's case
challenging the appointment of the appellants. Admittedly, the
appellants were engaged as contractual employees from 1994 and
have completed more than ten years of continuous service with
Respondent 1. They continued in service not by the orders of the

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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 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

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Court of India were decided based on certain facts and
circumstances of the case. However, all those circumstances and
the legal principles were well settled by the Constitution Bench in
“Umadevi Case”. Various paragraphs of the Constitution Bench
judgment as discussed above made it very clear that all the
circumstances arisen out of the temporary/casual/daily wages
employees were dealt with elaborately and a findings are provided.
This being the factum of the case, this Court is not inclined to follow
the above judgment of the Hon'ble Two Judges Bench of the
Hon'ble Supreme Court of India as a “binding precedent” and this
Court is bound by the legal principles settled by the Constitution
Bench in “Umadevi Case” which remains as the law of the land
under
Article 141
of the Constitution of India.

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

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

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

18.Distinction between irregularity and illegality is explicit. It has
been so pointed out in
National Fertilizers Ltd. v. Somvir Singh

[(2006) 5 SCC 493 : 2006 SCC (L&S) 1152] in the following terms:

(SCC pp. 500-01, paras 23-25)
“23. The contention of the learned counsel appearing on behalf of

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the respondents that the appointments were irregular and not
illegal, cannot be accepted for more than one reason. They were
appointed only on the basis of their applications. The Recruitment
Rules were not followed. Even the Selection Committee had not
been properly constituted. In view of the ban on employment, no
recruitment was permissible in law. The reservation policy adopted
by the appellant had not been maintained. Even cases of minorities
had not been given due consideration.

24. The Constitution Bench thought of directing regularisation of the
services only of those employees whose appointments were
irregular as explained in
State of Mysore v. S.V. Narayanappa
[AIR
1967 SC 1071 : (
1967) 1 SCR 128] , R.N. Nanjundappa v. T.
Thimmiah
[(
1972) 1 SCC 409] and B.N. Nagarajan v. State of
Karnataka
[(1979) 4 SCC 507 : 1980 SCC (L&S) 4] wherein this
Court observed: [Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , SCC p. 24, para 16]

‘16.

In
B.N. Nagarajan v. State of Karnataka
[(1979) 4 SCC 507 :

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

25. Judged by the standards
laid down by
this Court in the
aforementioned decisions, the appointments of the respondents are
illegal.

They do not, thus, have any legal right to continue in
service.”

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(See also
State of M.P. v. Yogesh Chandra Dubey
[(2006) 8 SCC
67 : 2006
SCC (L&S) 1797] and State of M.P. v. Lalit Kumar Verma

[(2007) 1 SCC 575 : (2006) 12 Scale 642] .)”

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

“16.
In
B.N. Nagarajan v. State of Karnataka
[(1979) 4 SCC
507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] this Court clearly held
that the words “regular” or “regularisation” do not connote
permanence and cannot be construed so as to convey an idea of
the nature of tenure of appointments. They are terms calculated to
condone any procedural irregularities and are meant to cure only
such defects as are attributable to methodology followed in making
the appointments. This Court emphasised that when rules framed
under
Article 309
of the Constitution are in force, no regularisation
is permissible in exercise of the executive powers of the Government
under
Article 162
of the Constitution in contravention of the rules.

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

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17. We have already indicated the constitutional scheme of public
employment in this country, and the executive, or for that matter the
court, in appropriate cases, would have only the right to regularise
an appointment made after following the due procedure, even
though a non-fundamental element of that process or procedure
has not been followed. This right of the executive and that of the
court would not extend to the executive or the court being in a
position to direct that an appointment made in clear violation of the
constitutional scheme, and the statutory rules made in that behalf,
can be treated as permanent or can be directed to be treated as
permanent.

19. One aspect arises. Obviously, the State is also controlled by
economic considerations and financial implications of any public
employment. The viability of the department or the instrumentality
of the project is also of equal concern for the State. The State works
out the scheme taking into consideration the financial implications
and the economic aspects. Can the court impose on the State a
financial burden of this nature by insisting on regularisation or
permanence in employment, when those employed temporarily are
not needed permanently or regularly? As an example, we can
envisage a direction to give permanent employment to all those who
are being temporarily or casually employed in a public sector
undertaking. The burden may become so heavy by such a direction
that the undertaking itself may collapse under its own weight. It is
not as if this had not happened. So, the court ought not to impose a
financial burden on the State by such directions, as such directions
may turn counterproductive.

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22. With respect, it appears to us that the question whether the
jettisoning of the constitutional scheme of appointment can be
approved, was not considered or decided. The distinction
emphasised in
R.N. Nanjundappa v. T. Thimmiah
[(1972) 1 SCC
409 : (1972) 2 SCR 799] was also not kept in mind. The Court
appears to have been dealing with a scheme for “equal pay for
equal work” and in the process, without an actual discussion of the
question, had approved a scheme put forward by the State,
prepared obviously at the direction of the Court, to order permanent
absorption of such daily-rated workers. With respect to the learned
judges, the decision cannot be said to lay down any law, that all
those engaged on daily wages, casually, temporarily, or when no
sanctioned post or vacancy existed and without following the rules
of selection, should be absorbed or made permanent though not at
a stretch, but gradually. If that were the ratio, with respect, we have
to disagree with it.”

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

“5.Whereas pursuant to the said direction, although the case
of Niva Ghosh was allegedly considered, her case was not,
whereupon a contempt petition was filed. In the said contempt
proceedings, a stand was taken by the appellant that she had not
completed a period of 240 days in a year before the said cut-off
date. The said contempt petition was dismissed with liberty to the

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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 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

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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 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

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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
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] .
]”

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

107. Now, considering the facts and circumstances of the
case on hand, it remains that the writ petitioners were appointed as
daily rated employees for a particular period and, this Court has to
draw an inference that all the Government orders passed
subsequent to the Constitution Bench Judgment, if runs contrary to
the legal principles settled by the Constitution Bench, would become
invalid and the same cannot be implemented or followed. In other
words, it is to be noted that the Government has no authority to
issue any orders granting regularization, permanent absorption or
appointment in violation of the Constitutional schemes and in
violation of the recruitment rules in force. The power of the
Government in this regard is certainly abrogated by the principles
settled by the Constitution Bench in the “Umadevi Case”. Such
being the factum of the case, the State Government is to be
precluded as well as its authority are to be regularized in respect of
appointing employees in contravention with the recruitment rules in
force and effecting appointments through back doors.

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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 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.”

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8. The above cited case is strictly connected with the engagement of

daily wage employees in Water Resources Organization / Public Works

Department.

9. In view of the above, the writ petitioner is not entitled for the

benefits of regularization and permanent absorption. Further, the writ

petitioner even at the time of filing the present writ petition was aged about 58

years and now he would have aged about 63 years. Thus, the grant of

regularization and permanent absorption does not arise at all.

10. Accordingly, the writ petition stands dismissed. No costs.

11.07.2019
Index : Yes / No
Internet : Yes / No

krk

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To:

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

2.The Chief Engineer,
Water Resource Organization,
Chepauk, Chennai-5.

3.The Chief Engineer,
Water Resource Organization,
Madurai Division, Madurai.

4.The Superintending Engineer,
Water Resource Organization,
Tamirabarani Basin Circle,
Palayamkottai, Tirunelveli-2.

5.The Executive Engineer,
P.W.D.Water Resources Organization,
Kothaiyar Basin Division, Nagercoil.

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S.M.SUBRAMANIAM,J.

krk

W.P.(MD) No.21195 of 2014

11.07.2019

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