Madras High Court

K.Murugesan vs The Government Of Taminadu on 4 November, 2020

Equivalent citations: AIRONLINE 2020 MAD 2426

Author:
S.M.Subramaniam

Bench:
S.M.Subramaniam

W.P.(MD)No.10066 of 2014

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04.11.2020
CORAM:

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.(MD)No.10066 of 2014
W.P.(MD)No.14276 of 2017
and
W.P.(MD)No.14503 of 2017
and
M.P(MD)Nos.1 to 3 of 2014

1.K.Murugesan ... Petitioner in W.P.1066/2014
2.J.Gnana Arokiarajan ... Petitioner in W.P.14276/2017
3.N.Parthasarathy
S.Sangaranarayanan ... Petitioners in W.P.14503/2017

Vs.

1.The Government of Taminadu,
Represented by Secretary to Government, PWD,
Fort St.George, Chennai 600 009.

2.The Engineer in Chief (WRO),
Public Works Department,
Cheppakkam,
Chennai – 600 005.

3.The Chief Engineer (WRO),
PWD Madurai Region,
Tallakulam, Madurai.

4.Superintending Engineer (WRO),
Thamaraiparani Irrigation Circle, (Regular)
Palayamkottai,
Tirunelveli District. ... Respondents in W.P.1066/2014
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W.P.(MD)No.10066 of 2014

1.The State of Taminadu,
Rep. by the Secretary
Public Works Department,
Fort St.George,
Chennai 600 009.

2.Engineer-in Chief cum Chief Engineer (General) PWD
Chepauk, Chennai – 600 005.

3.The Chief Engineer
PWD – (WRO),
Thallakulam,
Madurai.

4.Superintending Engineer,
WRO - PWD Project Circle,
Tirunelveli – 2 ... Respondents in W.P.14276/2017 &
W.P.14503/2017

PRAYER in W.P.1066/2014: Writ Petition under
Article 226
of the
Constitution of India, to issue a Writ of Certiorarified Mandamus, to
call for the records of the impugned order No.446/C2/2013 – 3
dated 17.01.2014, issued by the 1st respondent and quash the same
and direct the respondents to regularize the service of the
petitioner.

COMMON PRAYER in W.P.14276 & 14503/2017: Writ Petitions
under
Article 226
of the Constitution of India, to issue a Writ of
Certiorarified Mandamus, to call for the records pertaining to the
2nd respondent in letter No.S.4(1)/27238/2017, dated 30.05.2017
and quash the same and further direct the respondents to
regularize the Service of the petitioners within a time frame fixed
by this Court.
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W.P.(MD)No.10066 of 2014

For Petitioners : Mr.T.S.R.Venkatramana

For Respondents : Mr.C.M.Mari Chelliah Prabhu
Addl.Govt.Pleader

COMMON ORDER

The order of rejection, rejecting the claim of the writ

petitioners to grant the benefit of regularization of services with

effect from their date of appointment is under challenge in the

present writ petition.

2. The writ petitioners state that they are working as

Muzdoor Grade-I in Public Works Department and had completed

more than 28 years of service. The Government issued various

Government Orders granting the benefit of regularization to the

daily rated employees and temporary employees working in the

Public Works Department. However, the benefit of the said

Government Order is not extended to the writ petitioners and still

they are continuing as Mazdoors, on daily wages basis. Recently,

the Government passed an order enhancing the salary of of the

Mazdoors, equivalent to the scale of pay fixed for the post of

Sweepers in the Government Departments along with Dearness
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W.P.(MD)No.10066 of 2014

Allowance in G.O.(Ms).No.233, Public Works (C2) Department,

dated 06.12.2019.

3. The learned counsel for the petitioners articulated the case

of the writ petitioners by stating that engagement of daily wage

employees and allowing them to continue on temporary basis for

long years is an exploitation. Thus, the grievances of the

petitioners are to be redressed by regularizing their services in the

sanctioned post, in the regular time scale of pay. The petitioners

are in verge of retirement. Therefore, only by granting the benefit

of regularization, they will be in a position to receive the pension

and pensionary benefits. Many changes occurred regarding the

engagement of daily rated employees / NMRs in Public Works

Department. Many such temporary employees were regularized in

the sanctioned post and working as regular employees. However,

another set of people are denied the benefit of regularization,

without any valid reason.

4. The learned counsel for the writ petitioners solicited the

attention of this Court with reference to the Judgments wherein

such engagements are considered as exploitation and the relief was

also granted. However, some of the Judgments in relation to the
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W.P.(MD)No.10066 of 2014

orders of the Inspector of Labour or under the
Tamil Nadu

Industrial Establishments (Conferment of Permanent Status to

Workmen) Act
, this Court is of the considered opinion that those

Labour Law may not have direct application with reference to the

appointments made in public services in Government Departments.

The Service Rules in Government Departments are independent

and the Industrial or Labour Laws are not applicable to the

appointments made in Government services. When the posts are

governed under the Special Rules, the said Rules alone will prevail

over the General Law. In other words, the Special Rules for a

particular post or the Recruitment Rules for a particular post in a

Government alone will prevail over in General Laws, including the

Labour Law or Industrial Law.

5. This being the principles, the application of the
Tamil Nadu

Industrial Establishments (Conferment of Permanent Status to

Workmen) Act
, cannot be applied in the present case, as the

petitioners are engaged in the Department of Public Works to

perform the Government work. The Government undoubtedly

passed several orders periodically granting the benefit of

regularization and permanent absorption. Certain conditions were

imposed for grant of regularization and permanent absorption.
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W.P.(MD)No.10066 of 2014

Initially, the Government issued G.O.Ms.No.22, Personnel and

Administrative Reforms (F) Department, dated 28.02.2006 and the

said Government Order was withdrawn and a revised order was

passed in G.O.(Ms).No.74, Personnel and Administrative Reforms

(F) Department, dated 27.06.2013. As per the said G.O.Ms.No.74,

certain conditions were stipulated for grant of benefit of

regularization.

6. Beyond all these Government Orders, the Constitutional

Bench of the Hon'ble Supreme Court of India, settled the legal

principles in the matter of grant of regularization and permanent

absorption.
In the case of
Umadevi Vs. State of Karnataka

reported in (2006) 4 SCC (1), the Constitution Bench in

unequivocable terms held that regularization or permanent

absorption cannot be granted in violation of Service Rules in force.

The very practice of engaging the temporary employees and

considering their length of services granting regularization or

permanent absorption is opposed to Constitutional Principles.

Thus, the Constitution Bench in
Umadevi
case settled the legal

principles in the matter of regularization and permanent absorption

and in para 54 of the Judgment, more specifically, held that all

other judgments, including the Judgments of Supreme Court
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W.P.(MD)No.10066 of 2014

rendered earlier in the matter of regularization and permanent

absorption denuded to loose its status as precedent.

Thus, the

Constitution Bench Judgment in
Umadevi
case is the guiding

principles to be followed by all the Courts and Government across

the Country for grant of regularization and permanent absorption,

with reference to the temporary appointments made.

7. In this context, it is relevant to look in to the subsequent

Judgments of the Supreme Court and in the subsequent Judgments,

where the relief of regularization is granted must be only based on

some facts and circumstances and such Judgments of the Two

Judges Bench of the Hon'ble Supreme Court cannot be considered

as precedent so as to dilute the legal principles settled by the

Constitution Bench of the Supreme Court of India in the case of

Umadevi. When the cases fall under the principles settled by the

Constitution Bench, then, the decision is to be rendered based on

the Constitution Bench Judgment and no other Judgment can be

considered as the binding precedents.

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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W.P.(MD)No.10066 of 2014

regularisation in the existing vacancies since the writ petitioners

have put in more than 28 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
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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

constitutional requirement and regularising
or making permanent, those not duly
appointed as per the constitutional scheme.”

9. The writ petitioners, though admit the fact that their

appointment was irregular, contended that their appointments are

not illegal and therefore their services ought to have been

regularised in view of the judgment of the Hon'ble Supreme Court

of India.

10. Further, it is contended that the right to life is a

Fundamental Right enshrined in
Article 21
of the Constitution of

India. The Hon'ble Supreme Court of India, time and again,

reiterated and emphasised that the right to life cannot be

interpreted as a mere animal life and it is a decent life, which is to

be ensured. The writ petitioners are deprived of their livelihood in

view of the denial of regularisation which amounts to deprivation of

their life. At the outset, it is stated that the writ petitioners have

worked for 10 years or more and without the intervention of

orders of the courts or of tribunals. In other words, the State

Governments and their instrumentalities should take steps to

regularise as a one-time measure, the services of such irregularly
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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

view of the judgment of the Hon'ble Supreme Court of India, cited

supra.

12. The learned Additional Government Pleader, appearing

on behalf of the respondents, submit that the writ petitioners were

engaged as casual labourers for certain specific works under the

provisions of paragraph 290 of T.N.PWA Code which is in

connection with the execution of work. The writ petitioners have

not been accommodated in any sanctioned posts. The writ

petitioners were not engaged in connection with any affairs of the

State Government. The Hon'ble High Court of Madras had already

held that PWD is not an industry to involve the Industrial

Establishment Rules. Further, it is submitted that the writ

petitioners have not been appointed in sanctioned posts. The writ

petitioners were engaged only to execute certain special and

specified works on 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
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W.P.(MD)No.10066 of 2014

are defined by statutory rules such as Tamil Nadu State and

Subordinate Service Rules and no deviation is permitted from the

method of recruitment, howsoever, save the previous approval of

the Government.

14. Paragraph 290 of Tamil Nadu Public Works Account Code

specifies that with the following exceptions, all persons engaged

departmentally for the execution of works are considered as day

labourers and their wages should be drawn on Muster Rolls, Form

21 (C.Form Nos.474 and 475) and charged to the estimates of the

works on which they are employed:-

(i) Permanent and temporary employees of the division whose

pay is charged to the head 'Establishment';

(ii) Members of the works charged establishment as defined

in paragraphs 58 to 62 of Tamil Nadu Public Works Department

Code.

15. Thus, the above two categories only form part of the

establishment concerning with the PWD Office in the State and the
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W.P.(MD)No.10066 of 2014

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

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

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

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

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
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W.P.(MD)No.10066 of 2014

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 held by this Court, they
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W.P.(MD)No.10066 of 2014

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
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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 cannot be grounds for passing
any order of regularisation in the absence
of a legal right.
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(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
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W.P.(MD)No.10066 of 2014

salary against the State must arise under a
contract or under a statute.”

Based on the judgment of the Hon'ble Supreme Court, cited supra,

Codal Rules and Government orders, the claim of the writ

petitioners cannot be considered.

23. The learned Additional Government Pleader further

submitted that paragraph 290 of TNPWD Code states that “for

work done by daily labour the subordinate incharge of the work will

prepare a Muster or Casual Labour Roll recording there on when

practicable the work done and the amount payable”. The writ

petitioners were engaged as casual labour for a specified work and

that necessity for engagement of such casual labour virtually

stopped as and when the work is completed. The writ petitioners

have not been accommodated in any sanctioned posts. The writ

petitioners cannot claim any right for this casual labour work.

24. The learned Additional Government Pleader further

submitted that as per Code Rules, G.O.Ms.No.12, Public Works (C2)

Department dated 20.1.2009, G.O.Ms.No.338, Finance (Pay Cell)

Department, dated 26.8.2010, G.O.Ms.No.74, Personnel and
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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

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;
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W.P.(MD)No.10066 of 2014

(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 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;
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W.P.(MD)No.10066 of 2014

(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.
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W.P.(MD)No.10066 of 2014

27. Considering the arguments advanced both by the learned

counsel for the petitioners as well as the learned counsel for the

respondents, this Court has to first consider the factual matrix

involved in these writ petitions on hand. The writ petitioners,

undoubtedly, were appointed as daily wage employees in the year

2003 and they are continued in service for more than ten years, is

the claim set out in these writ petitions. However, pursuant to the

Judgment of the Constitution Bench of the Hon'ble Supreme Court

of India in the case of
The State of Karnataka Vs. Umadevi
,

reported in (2006) 4 SCC 1 [herein after referred to as

“Umadevi Case”], one time benefit was granted by the 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
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W.P.(MD)No.10066 of 2014

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

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
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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.
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32. Thus, this Court has to consider the issues independently

and based on the judgments of the Apex Court of India in the

matter of regularization and permanent absorption. However, the

learned Additional Government Pleader brought to the notice of

this Court that the Hon'ble Division Bench of this Court passed an

order in the batch of Writ Appeals in W.A.No.2911 of 2012 and etc.,

batch on 10.07.2014, wherein the Hon'ble Division Bench has

considered the terms and conditions imposed in G.O.Ms.No.74 and

passed an order stating that the services shall not be disturbed in

the light of the Government Order passed in G.O.Ms.No.74,

Personnel and Administrative Reforms Department dated

27.06.2013 as well as the order passed by the Hon'ble Supreme

Court of India in Civil Appeal Nos.2726-2729 of 2014 with Nos.

2730-31 of 2014.

33. The Additional Government Pleader is of the opinion that

the terms and conditions imposed in G.O.Ms.No.74 had already

been taken note of by the Hon'ble Division Bench and the entire

Government Order was upheld and the direction was issued to pass

orders in the light of the G.O.Ms.No.74 and therefore, the judgment

delivered by the learned Single Judge, need not be relied upon and
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W.P.(MD)No.10066 of 2014

more so, the State also preferred writ appeals against the said

orders.

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

issues independently based on the judgments of the Apex Court of

India.

35. The authoritative judgment in the subject of

regularization and permanent absorption is the judgment of the

Constitution Bench of the Hon'ble Supreme Court of India in

“Umadevi Case”. All other subsequent judgments cited by the

respective counsels are by the Hon'ble Two Judges Bench of the

Supreme Court of India. Thus, the binding nature of the judgments

rendered in respect of other cases has to be cogently read and

harmoniously interpreted based on the legal principles settled by

the Constitution Bench of the Hon'ble Supreme Court of India.

36. Before considering the subject of regularization and

permanent absorption, this Court has to consider the 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
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W.P.(MD)No.10066 of 2014

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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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. …”

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
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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

Prakash and others v. State of U.P. and another
, reported in
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[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
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judicial utterances are made in the setting of the facts
of a particular case, said Lord Morris in Herrington v.
British Railways Board [(1972) 2 WLR 537 : 1972 AC
877 (HL) [Sub nom British Railways Board v.

Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial
flexibility, one additional or different fact may make a
world of difference between conclusions in two cases.”

40. In view of the legal principle settled in the matter of

“binding precedent”, now, this Court is bound by the legal

principles settled by the Constitution Bench of the Hon'ble

Supreme Court of India in the “Umadevi Case”. Admittedly, there

is no other subsequent Constitution Bench judgment in respect of

the subject of regularization and permanent absorption. The last

judgment rendered by the 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
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W.P.(MD)No.10066 of 2014

facts and circumstances prevailing in that particular case and

therefore, this Court cannot consider those judgments delivered on

a particular facts in relation to that particular case. However, the

legal principles are to be considered in relation to the facts and

circumstances of the present case on hand.

41. Let us look into the basic principles enunciated by the

Constitution Bench in the matter of regularization and permanent

absorption. Paragraph (5) of the “Umadevi Case” is extracted

hereunder:

“5. This Court has also on occasions issued directions
which could not be said to be consistent with the
constitutional scheme of public employment. Such
directions are issued presumably on the basis of
equitable considerations or individualisation of justice.
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,
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W.P.(MD)No.10066 of 2014

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,

certainly tend to water down the constitutional requirements. It is

this Conflict that reflected in these cases referred to the

Constitution Bench.
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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
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regularisation of ad hoc employees, there were
conflicting decisions by three-Judge Benches of this
Court and by two-Judge Benches and hence the
question required to be considered by a larger Bench.
When the matters came up before a three-Judge Bench,
the Bench in turn felt that the matter required
consideration by a Constitution Bench in view of the
conflict and in the light of the arguments raised by the
Additional Solicitor General.

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

“1.

Apart from the conflicting opinions between the
three-Judge Bench decisions in
Ashwani Kumar v. State
of Bihar
[(1997) 2 SCC 1 : 1997 SCC (L&S) 465 : 1996
Supp (10) SCR 120] , State of Haryana v. Piara Singh
[(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21
ATC 403 : (1992) 3 SCR 826] and Dharwad Distt.

PWD
Literate Daily Wage Employees Assn. v. State of
Karnataka
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :

(1990) 12 ATC 902 : (1990) 1 SCR 544] on the one hand
and State of H.P. v. Suresh Kumar Verma [(1996) 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 :
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W.P.(MD)No.10066 of 2014

(1979) 3 SCR 937] on the other, which have been
brought out in one of the judgments under appeal of the
Karnataka High Court in
State of Karnataka v. H.
Ganesh Rao
[(2001) 4 Kant LJ 466 (DB)] , decided on
1-6-2001 the learned Additional Solicitor General urged
that the scheme for regularisation is repugnant to

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

2. On the other hand, Mr M.C. Bhandare, learned
Senior Counsel, appearing for the employees urged that
such a scheme for regularisation is consistent with the
provisions of
Articles 14
and
of the Constitution.

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

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

5. Let these matters be placed before the Hon'ble the
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.”
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45. The above said Paragraph (10), stipulates that there were

conflicting decisions by three-Judge Benches of this Court and by

two-Judge Benches of the Hon'ble Supreme Court of India and

therefore, the Hon'ble Supreme Court of India has considered that

the question required to be considered by a larger Bench. It is

further observed that when the matters came up before a three-

Judge Bench, the Bench in turn felt that the matter required

consideration by a Constitution Bench in view of the conflict and in

the light of the arguments raised by the Additional Solicitor

General. In the reference made by the Hon'ble three-Judge Bench

itself decided that the scheme for regularisation is repugnant to

Articles 16(4)
, 309
, 320
and
of the Constitution and, therefore,

these cases are required to be heard by a Bench of five learned

Judges(Constitution Bench).

46. In paragraph (11) of the “Umadevi Case”, it is stated

that in addition to the equality clause represented by
Article 14
of

the Constitution,
Article 16
has specifically provided for equality of

opportunity in matters of public employment. Buttressing these

fundamental rights,
Article 309
provides that subject to the

provisions of the Constitution, Acts of the legislature may regulate
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W.P.(MD)No.10066 of 2014

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:
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“12. In spite of this scheme, there may be
occasions when the sovereign State or its
instrumentalities will have to employ persons, in
posts which are temporary, on daily wages, as
additional hands or taking them in without
following the required procedure, to discharge
the duties in respect of the posts that are
sanctioned and that are required to be filled in
terms of the relevant procedure established by
the Constitution or for work in temporary posts
or projects that are not needed permanently.
This right of the Union or of the State
Government cannot but be recognised and there
is nothing in the Constitution which prohibits
such engaging of persons temporarily or on
daily wages, to meet the needs of the situation.
But the fact that such engagements are resorted
to, cannot be used to defeat the very scheme of
public employment. Nor can a court say that the
Union or the State Governments do not have the
right to engage persons in various capacities for
a duration or until the work in a particular
project is completed. Once this right of the
Government is recognised and the mandate of
the constitutional requirement for public
employment is respected, there cannot be much
difficulty in coming to the conclusion that it is
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ordinarily not proper for the Courts whether
acting under
Article 226
of the Constitution or
under
Article 32
of the Constitution, to direct
absorption in permanent employment of those
who have been engaged without following a due
process of selection as envisaged by the
constitutional scheme.”

49. The spirit of Paragraph (12) of the “Umadevi Case”

judgment is that the temporary engagements like daily wage

appointments, consolidated pay appointments and temporary

appointments and engagements are resorted to, cannot be used to

defeat the very scheme of public employment. Nor can a Court say

that the Union or the State Governments do not have the right to

engage persons in various capacities for a duration or until the

work in a particular project is completed. Once this right of the

Government is recognised and the mandate of the constitutional

requirement for public employment is respected, there cannot be

much difficulty in coming to the conclusion that it is ordinarily not

proper for the Courts, whether acting under
Article 226
of the

Constitution or under
Article 32
of the Constitution, to direct

absorption in permanent employment of those who have been

engaged without following a due process of selection as envisaged
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W.P.(MD)No.10066 of 2014

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 the engaged work for a certain
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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
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W.P.(MD)No.10066 of 2014

particular status, though an authority
under the Government acting beyond its
competence had purported to give that
person a status which it was not entitled
to give he will not in law be deemed to
have been validly appointed to the post
or given the particular status.”

51. This Court cannot omit the powerful statement made by

the Constitution Bench in respect of providing equal opportunity

and in respect of implementing the equality clause enshrined under

Article 14

& 16
of the Constitution. In the above said paragraph

(13), the Hon'ble Supreme Court of India has emphasized that it

cannot also be forgotten that it is not the role of the Courts to

ignore, encourage or approve appointments made or engagements

given outside the constitutional scheme. In effect, orders based on

such sentiments or approach would result in perpetuating

illegalities and in the jettisoning of the scheme of public

employment adopted by us, while adopting the Constitution. We,

the people of India, while adopting the Constitution.

52. The approving of such acts also results in depriving many

of their opportunity to compete for public employment. The
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Constitution Bench of “Umadevi Case”, considered the proposition

of law
laid down by
the previous Constitution Bench in the case of

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

521].

The earlier Constitution Bench in the case of
State of

Punjab Vs. Jagdip Singh
, held that where a Government Servant

has no right to a post or to a particular status, though an authority

under the Government acting beyond its competence had purported

to give that person a status which it was not entitled to give he will

not in law be deemed to have been validly appointed to the post or

given the particular status.

53. In paragraph (14) of the “Umadevi Case” judgment, the

Hon'ble Supreme Court of India has elaborately discussed about

various orders of the Courts either interim orders or final orders

which were brought to the notice of the Constitution Bench. The

Hon'ble Supreme Court of India came to the conclusion that those

orders more or less was the issue of directions for continuation or

absorption without referring to the legal position obtaining. It was

brought to the notice of this Court that chaos has been created by

such orders without reference to the legal principles and it is time

that this Court settled the law once and for all so that in case the

Court finds that such orders should not be made, the Courts,
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W.P.(MD)No.10066 of 2014

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:
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“20. The decision in Dharwad Distt.
PWD Literate
Daily Wage Employees Assn. v. State of Karnataka

[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12
ATC 902 : (1990) 1 SCR 544] dealt with a scheme
framed by the State of Karnataka, though at the
instance of the Court. The scheme was essentially
relating to the application of the concept of equal pay
for equal work but it also provided for making
permanent, or what it called regularisation, without
keeping the distinction in mind, of employees who had
been appointed ad hoc, casually, temporarily or on
daily-wage basis. In other words, employees who had
been appointed without following the procedure
established by law for such appointments. This Court,
at the threshold, stated that it should individualise
justice to suit a given situation. With respect, it is not
possible to accept the statement, unqualified as it
appears to be. This Court is not only the constitutional
court, it is also the highest court in the country, the
final court of appeal. By virtue of
Article 141
of the
Constitution, what this Court lays down is the law of the
land. Its decisions are binding on all the courts. Its main
role is to interpret the constitutional and other
statutory provisions bearing in mind the fundamental
philosophy of the Constitution. We have given unto
ourselves a system of governance by rule of law. The
role of the Supreme Court is to render justice according
to law. As one jurist put it, the Supreme Court is
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W.P.(MD)No.10066 of 2014

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.”

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.
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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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W.P.(MD)No.10066 of 2014

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:
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W.P.(MD)No.10066 of 2014

“43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from
passing an order upholding a violation of
Article 14
or
in ordering the overlooking of the need to comply with
the requirements of
Article 14
read with
Article 16
of
the Constitution. Therefore, consistent with the scheme
for public employment, this Court while laying down
the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a
proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a
contractual appointment, the appointment comes to an
end at the end of the contract, if it were an engagement
or appointment on daily wages or casual basis, the
same would come to an end when it is discontinued.
Similarly, a temporary employee could not claim to be
made permanent on the expiry of his term of
appointment. It has also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the
strength of such continuance, if the original
appointment was not made by following a due process
of selection as envisaged by the relevant rules. It is not
open to the court to prevent regular recruitment at the
instance of temporary employees whose period of
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W.P.(MD)No.10066 of 2014

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
of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme.

Merely because an employee had continued under
cover of an order of the court, which we have described
as “litigious employment” in the earlier part of the
judgment, he would not be entitled to any right to be
absorbed or made permanent in the service. In fact, in
such cases, the High Court may not be justified in
issuing interim directions, since, after all, if ultimately
the employee approaching it is found entitled to relief,
it may be possible for it to mould the relief in such a
manner that ultimately no prejudice will be caused to
him, whereas an interim direction to continue his
employment would hold up the regular procedure for
selection or impose on the State the burden of paying
an employee who is really not required. The courts
must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs by
the State or its instrumentalities or lend themselves the
instruments to facilitate the bypassing of the
constitutional and statutory mandates.

44. The concept of “equal pay for equal work” is
different from the concept of conferring permanency on
those who have been appointed on ad hoc basis,
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W.P.(MD)No.10066 of 2014

temporary basis, or based on no process of selection as
envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal
work and has laid down the parameters for the
application of that principle. The decisions are rested
on the concept of equality enshrined in our Constitution
in the light of the directive principles in that behalf. But
the acceptance of that principle cannot lead to a
position where the court could direct that appointments
made without following the due procedure established
by law, be deemed permanent or issue directions to
treat them as permanent. Doing so, would be negation
of the principle of equality of opportunity. The power to
make an order as is necessary for doing complete
justice in any cause or matter pending before this
Court, would not normally be used for giving the go-by
to the procedure established by law in the matter of
public employment. Take the situation arising in the
cases before us from the State of Karnataka. Therein,
after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC
(L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] the
Government had issued repeated directions and
mandatory orders that no temporary or ad hoc
employment or engagement be given. 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
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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
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
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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

procedure established by law for public employment
and would have to fail when tested on the touchstone of
constitutionality and equality of opportunity enshrined
in
Article 14
of the Constitution.

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

(1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 :

1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (
1992) 3
SCR 826] , Jacob [Jacob M. Puthuparambil v. Kerala
Water Authority
, (1991) 1 SCC 28 : 1991 SCC (L&S)
25 : (
1991) 15 ATC 697] and Gujarat Agricultural
University [Gujarat Agricultural University v. Rathod
Labhu Bechar
, (2001) 3 SCC 574 : 2001 SCC (L&S)
613] and the like, have given rise to an expectation in
them that their services would also be regularised. The
doctrine can be invoked if the decisions of the
administrative authority affect the person by depriving
him of some benefit or advantage which either (i) he
had in the past been permitted by the decision-maker to
enjoy and which he can legitimately expect to be
permitted to continue to do until there have 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
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W.P.(MD)No.10066 of 2014

withdrawn without giving him first an opportunity of
advancing reasons for contending that they should not
be withdrawn.

[See Lord Diplock in Council for Civil
Services Union v. Minister of Civil Service [1985 AC
374 : (1984) 3 All ER 935 : (
1984) 3 WLR 1174 (HL)] ,
National Buildings Construction Corpn. v. S.
Raghunathan
[(1998) 7 SCC 66 : 1998 SCC (L&S)
1770] and Chanchal Goyal (Dr.) v. State of Rajasthan
[(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .] There is no
case that any assurance was given by the Government
or the department concerned while making the
appointment on daily wages that the status conferred
on him will not be withdrawn until some rational reason
comes into existence for withdrawing it. The very
engagement was against the constitutional scheme.

Though, the Commissioner of the Commercial Taxes
Department sought to get the appointments made
permanent, there is no case that at the time of
appointment any promise was held out. No such
promise could also have been held out in view of the
circulars and directives issued by the Government after
Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S)
274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though,
there is a case that the State had made regularisations
in the past of similarly situated employees, the fact
remains that such regularisations were done only
pursuant to judicial directions, either of the
Administrative Tribunal or of the High Court and in
some cases by this Court. Moreover, the invocation of
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W.P.(MD)No.10066 of 2014

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.

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
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W.P.(MD)No.10066 of 2014

obvious that the theory cannot be invoked to seek a
positive relief of being made permanent in the post.

48. It was then contended that the rights of the
employees thus appointed, under
Articles 14
and
of
the Constitution, are violated. It is stated that the State
has treated the employees unfairly by employing them
on less than minimum wages and extracting work from
them for a pretty long period in comparison with those
directly recruited who are getting more wages or
salaries for doing similar work. The employees before
us were engaged on daily wages in the department
concerned on a wage that was made known to them.
There is no case that the wage agreed upon was not
being paid. Those who are working on daily wages
formed a class by themselves, they cannot claim that
they are discriminated as against those who have been
regularly recruited on the basis of the relevant rules.
No right can be founded on an employment on daily
wages to claim that such employee should be treated on
a par with a regularly recruited candidate, and made
permanent in employment, even assuming that the
principle could be invoked for claiming equal wages for
equal work. There is no fundamental right in those who
have been employed on daily wages or 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
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W.P.(MD)No.10066 of 2014

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

49. It is contended that the State action in not
regularising the employees was not fair within the
framework of the rule of law. The rule of law compels
the State to make appointments as envisaged by the
Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the employees
had worked for some length of time but this has also
been brought about by the pendency of proceedings in
tribunals and courts initiated at the instance of the
employees. Moreover, accepting an argument of this
nature would mean that the State would be permitted
to perpetuate an illegality in the matter of public
employment and that would be a negation of the
constitutional scheme adopted by us, the people of
India. It is therefore not possible to accept the
argument that there must be a direction to make
permanent all the persons employed on daily wages.
When the court is approached for relief by way of a
writ, the court has necessarily to ask itself whether the
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W.P.(MD)No.10066 of 2014

person before it had any legal right to be enforced.
Considered in the light of the very clear constitutional
scheme, it cannot be said that the employees have been
able to establish a legal right to be made permanent
even though they have never been appointed in terms
of the relevant rules or in adherence of
Articles 14
and
of the Constitution.

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

Articles 14
, 16
and
so as to ensure that public
employment is given only in a fair and equitable
manner by giving all those who are qualified, an
opportunity to seek employment. In the guise of
upholding rights under
Article 21
of the Constitution, a
set of persons cannot be preferred over a vast majority
of people waiting for an opportunity to compete for
State employment. The acceptance of the argument on
behalf of the respondents would really negate the rights
of the others conferred by
Article 21
of the
Constitution, assuming that we are in a position to hold
that the right to employment is also a right coming
within the purview of
Article 21
of the Constitution. The
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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

same would come to an end when it is discontinued. Similarly

temporary employee could not claim to be made permanent on the

expiry of his term of appointment. It has also to be clarified that

merely because a temporary employee or a casual wage worker is

continued for a time beyond the term of his appointment, he would

not be entitled to be absorbed in regular service or made

appointment, merely on the strength of such continuance, if the

original appointment was not made by following a due process of

selection as envisaged by the relevant rules.

63. It is not open to the court to prevent regular recruitment

at the instance of temporary employees whose period of

employment has come to an end or of ad hoc employees who by the

very nature of their appointment do not acquire any right. The

High Courts acting under
Article 226
of the Constitution, should

not ordinarily issue directions for absorption, regularization, or

permanent continuance unless the recruitment itself was made

regularly and in terms of constitutional scheme.

64. The spirit of Paragraph (43) is applicable to the facts and

circumstances of the present writ petition on hand. In the present

writ petition, the writ petitioners were appointed on daily wage
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W.P.(MD)No.10066 of 2014

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. 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.
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W.P.(MD)No.10066 of 2014

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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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

made use of, to found a claim based on legitimate expectation. The

argument if accepted would also run counter to the constitutional

mandate. The argument in that behalf has therefore to be rejected.

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

enumerates that when a person enters a temporary employment or

gets engagement as a contractual or casual worker and the

engagement is not based on a proper selection as recognised by the

relevant rules or procedure, he is aware of the consequences of the

appointment being temporary, casual or contractual in nature.

Such a person cannot invoke the theory of legitimate expectation

for being confirmed in the post when an appointment to the post

could be made only by following a proper procedure for selection

and in cases concerned, in consultation with the Public Service

Commission. Therefore, the theory of legitimate expectation

cannot be successfully advanced by temporary, contractual or

casual employees.

70. In paragraph (48) of the “Umadevi Case” Judgment, the

Constitution Bench considered the right of the employees thus

appointed, under
Articles 14
and
of the Constitution, are

violated. Even in “Umadevi Case”, those employees before the
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W.P.(MD)No.10066 of 2014

Supreme Court of India were engaged on daily wages in the

department concerned on a daily wage that was made known to

them. There is no case that the wage agreed upon was not being

paid. Those who are working on daily wages formed a class by

themselves, they cannot claim that they are discriminated as

against those who have been regularly recruited on the basis of the

relevant rules. No right can be founded on an employment on daily

wages to claim that such employee should be treated on par with a

regularly recruited candidate, and made permanent in employment,

even assuming that the principle could be invoked for claiming

equal wages for equal work. There is no fundamental right for

those who have been employed on daily wages or temporarily or on

contractual basis, to claim that they have a right to be absorbed in

service. As has been held by this Court, they cannot be said to be

holders of a post, since, a regular appointment could be made only

by making appointments consistent with the requirements of

Articles 14
and
of the Constitution.

71. In paragraph (49), it is ruled that the rule of law 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
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W.P.(MD)No.10066 of 2014

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”.
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Paragraph (53) of the Judgment is extracted hereunder:

“53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
[(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799]
and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC
(L&S) 4 : (1979) 3 SCR 937] and referred to in para 15
above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees
have continued to work for ten years or more but
without the intervention of orders of the courts or of
tribunals. The question of regularisation of the services
of such employees may have to be considered on merits
in the light of the principles settled by this Court in the
cases abovereferred to and in the light of this
judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take
steps to regularise as a one-time measure, the services
of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are
undertaken to fill those 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
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from this date. We also clarify that regularisation, if any
already made, but not sub judice, need not be reopened
based on this judgment, but there should be no further
bypassing of the constitutional requirement and
regularising or making permanent, those not duly
appointed as per the constitutional scheme.”

73. The above said paragraph (53) of the “Umadevi Case”

is a one time relief, of Course, granted by the Hon'ble Supreme

Court of India to mitigate the hardship, if any, caused to the

temporary employees. Now, the question arises how long the

benefit granted under paragraph (53) can be extended to the

employees and what is the interpretation of the subsequent

judgment by the Hon'ble Supreme Court of India in respect of

paragraph (53) of the judgment of the Constitution Bench.

74. No doubt, the Constitution Bench of the Hon'ble Supreme

Court of India, while stopping the entire irregular appointments

and back door appointments had taken note of the fact that certain

reliefs are required in respect of the employees who are already

regularized or in respect of those persons, a proposal is already

kept pending. Certainly, the Hon'ble Supreme Court of India have

never intended to grant the relief of regularization or permanent
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absorption in public employment contrary to the legal principles

settled in earlier paragraphs. Thus, paragraph (53) of the

judgment has to be understood harmoniously and together with the

legal principles settled by the Constitution Bench in earlier

paragraphs.

75. Thus, this Court is of an undoubted opinion that

paragraph (53) of the “Umadevi Case” judgment cannot be

treated as an isolation and it should be considered along with the

other legal principles settled by the Constitution Bench. Keeping in

mind, the legal principles settled by the Hon'ble Supreme Court of

India in earlier paragraphs, this Court is of the opinion that one

time relief granted by the Hon'ble Supreme Court of India has to be

extended in its real sense and the High Courts cannot travel

beyond the scope of the intention expressed by the Constitution

Bench in paragraph (53) of the Judgment.

76. The learned counsel for the petitioner cited the judgment

of the Hon'ble Supreme Court of India in the case of
U.P.State

Electricity Board Vs. Pooran Chandra Pandey and Others
,

reported in (2007) 11 SCC 92, and the paragraph (11) of the

judgment is relevant and is extracted hereunder:
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“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.
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78. “Umadevi Case” being a “binding precedent” and when

the case was distinguished from “Umadevi Case” on factual

circumstances, the same cannot be applied in the present case

before this Court.

79. The judgment in the case of State of Uttaranchal and

another Vs. Prantiya Sinchai Avam Bandh Yogana Shramik

Mahaparishad, reported in (2007) 12 SCC 483 and the

relevant paragraph (5) is cited by the learned counsel for the

petitioner which is extracted hereunder:

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

80. On a perusal of the above said judgment, this Court is of

the opinion that the case relates to an award passed by the Labour

Court and an Award passed by the Labour Court under the
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provisions of the
Industrial Disputes Act
, cannot have any relevance

in respect of the Government employments made by virtue of the

rules framed by the State in this regard. However, the Hon'ble

Supreme Court of India in that case, remanded the matter back for

reconsideration by the High Court in the light of the legal

principles settled in the “Umadevi Case”. Thus, in all respects,

the case cannot have any application in respect of the facts and

circumstances of the present writ petition.

81. It has further cited the case of
State of Karnataka and

Others Vs. M.L.Kesari and Others
, reported in (2010) 9 SCC

247 and the relevant paragraph (7) is extracted hereunder:

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

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

attention of this Court relying the case decided by the Hon'ble Two

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

Nihal Singh and Others Vs. State of Punjab and Others
,

reported in (2013) 14 SCC 65 and the paragraph (31) and (33)

of the judgments are extracted hereunder:

“31. Therefore, we are of the opinion that the
process of selection adopted in identifying the
appellants herein cannot be said 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.”
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85. On a plain reading of the judgment, this Court is of an

undoubted opinion that there is a slight deviation in respect of the

legal principles carved out by the Hon'ble Constitution Bench in

“Umadevi Case”. This Court wishes to remind the language used

by the Constitution Bench in paragraph (5) of “Umadevi Case”.

To reiterate the language used by the Hon'ble Supreme Court of

India emphatically in paragraph (5) that this Court has also

occasions to issue directions which could not be said to be

consisted by the public employment. Such directions are issued

presumably on the basis of equitable consideration or

individualization of justice. The question arises, equity to whom?

Equity for the handful of people who have approached the Court

with a claim, or equity for the teeming millions of this Country

seeking employment and seeking a fair opportunity for competing

for employment?

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.”
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87. This Court has no hesitation in holding that the judgment

cited by the learned counsel for the petitioner in the case of
Nihal

Singh and Others Vs. State of Punjab and Others
, reported in

(2013) 14 SCC 65, is to be considered as denuded of their status

as precedents. Thus, this Court is not inclined to consider and

follow the same.

88.
In the case of
Amarendra Kumar Mohapatra and

others Vs. State of Orissa and others
, reported in (2014) 4

SCC 583, the Hon'ble Two Judges Bench of the Supreme Court of

India held that and the paragraphs (42) & (43) of the above said

judgment is extracted hereunder:

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

Question, however, is whether the appointments in the
instant case could be described as illegal and if they
were not, whether the State could be directed to
regularise the services of the degree-holder Junior
Engineers who have worked as ad hoc Assistant
Engineers for such a long period, not only on the
analogy of the legislative enactment for regularisation
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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
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(L&S) 753] , if the following conditions are fulfilled:

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

(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or
where the persons appointed do not possess the
prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person
employed possessed the prescribed qualifications and
was working against sanctioned posts, but had been
selected without undergoing the process of open
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:
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“8.this Court in
State of Rajasthan & Ors. v. Daya Lal &
Ors.
, AIR 2011 SC 1193, has considered the scope of
regularisation of irregular or part-time appointments in
all possible eventualities and laid down well-settled
principles relating to regularisation and parity in pay
relevant in the context of the issues involved therein.
The same are as under:

“(i) The High Courts, in exercising power under

Article 226
of the Constitution will not issue
directions for regularisation, absorption or
permanent continuance, unless the employees
claiming regularisation had been appointed in
pursuance of a regular recruitment in
accordance with relevant rules in an open
competitive process, against sanctioned vacant
posts. The equality clause contained in
Articles
and
should be scrupulously followed and
Courts should not issue a direction for
regularisation of services of an employee which
would be violative of the constitutional scheme.

While something that is irregular for want of
compliance with one of the elements in the
process of selection which does not go to the
root of the process, can be regularised, back
door entries, appointments contrary to the
constitutional scheme and/or appointment of
ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary
or ad hoc or daily-wage employee, under 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
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W.P.(MD)No.10066 of 2014

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

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

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

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
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claiming regularization had been appointed in pursuance of a

regular recruitment in accordance with relevant rules in an open

competitive process against sanctioned vacant posts, the equality

clause contained in
Articles 14
and
should be scrupulously

followed and Courts should not issue a direction for regularization

of services of an employee which would be violative of the

Constitutional scheme.

91.
In the case of
Nand Kumar Vs. State of Bihar and

Others
, reported in (2014) 5 SCC 300, paragraph (25) & (26)

are extracted hereunder:

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

Umadevi (3) [State of Karnataka v. Umadevi

(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has also
been applied in relation to the persons who were
working on daily wages. According to us, the daily
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
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the context of appointment arose by reason of the
concept of regularisation as a source of appointment.

After Umadevi (3) [State of Karnataka v. Umadevi
(3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , their position
continued to be that of daily wagers. Appointment on
daily-wage basis is not an appointment to a post
according to the rules. Usually, the projects in which
the daily wagers were engaged, having come to an end,
their appointment is necessarily terminated for want of
work. Therefore, the status and rights of daily wagers
of a government concern are not equivalent to that of a
government servant and his claim to permanency has to
be adjudged differently.

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

92. Once again, this Court is of the opinion that the above

two paragraphs are running contrary to the legal principles settled

by the 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.
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93.
In the case of
Malathi Das and Others, Vs. Suresh

and Others
, reported in (2014) 13 SCC 249 and the relevant

paragraph (13) is extracted hereunder:

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

Similarly placed employees having been regularised by
the State and in case of some of them such
regularisation being after the decision in
Umadevi (3)
[State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 :

2006 SCC (L&S) 753] we are of the view that the stand
taken by the appellants in refusing regularisation to the
respondents cannot be countenanced. However, as the
said stand of the appellants stems from their perception
and understanding of the decision in
Umadevi (3) [State
of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] we do not hold them liable for
contempt but make it clear that the appellants and all
the other competent authorities of the State will now be
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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
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W.P.(MD)No.10066 of 2014

SCC 1 : 2006 SCC (L&S) 753] , if the following
conditions are fulfilled:

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

(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or
where the persons appointed do not possess the
prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person
employed possessed the prescribed qualifications and
was working against sanctioned posts, but had been
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)."
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W.P.(MD)No.10066 of 2014

96. In paragraph (14) of the above cited judgment, the

Hon'ble Supreme Court of India held that the appellant has served

in the University for more than 29 years in the post of night guard

and that he has served the College on daily wages, in the interest of

justice, the authorities are directed to regularise the services of the

appellant retrospectively w.e.f. 3-1-2002.

97. Again, in this case also, the Hon'ble Supreme Court of

India has deviated the principles
laid down in
“Umadevi Case”.

Thus, this Court has to derive an opinion that the decision would be

denuded of its status as precedents. For all these reasons, this

Court has to independently apply the legal principles settled by the

Constitution Bench in the “Umadevi Case”.

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
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W.P.(MD)No.10066 of 2014

Hon'ble Two Judges Bench of the Hon'ble Supreme Court of India.

Thus, this Court is not inclined to follow the judgment for the

purpose of deciding the case on hand.

99.
In the case of
Surendra Kumar and Others Vs.

Greater Noida Industrial Development Authority and Others
,

reported in (2015) 14 SCC 382, while, the Supreme Court of

India in paragraph (13) held as follows:

“13.Considering the facts of the present case on
the touchstone
laid down in
Umadevi (3) case [
State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , it will be seen that the Division Bench was
not right in setting aside the appointment of the
appellants. More so, it was nobody's case challenging
the appointment of the appellants. Admittedly, the
appellants were engaged as contractual employees
from 1994 and have completed more than ten years of
continuous service with Respondent 1. They continued
in service not by the orders of the Court/Tribunal, but
by the decision of the respondents. The 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
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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.
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W.P.(MD)No.10066 of 2014

101. In all the cases cited supra, this Court is able to find out

that those cases by the Hon'ble Two Judges of the Hon'ble Supreme

Court of India were decided based on certain facts and

circumstances of the case. However, all those circumstances and

the legal principles were well settled by the Constitution Bench in

“Umadevi Case”. Various paragraphs of the Constitution Bench

judgment as discussed above made it very clear that all the

circumstances arisen out of the temporary/casual/daily wages

employees were dealt with elaborately and a findings are provided.

This being the factum of the case, this Court is not inclined to

follow the above judgment of the Hon'ble Two Judges Bench of the

Hon'ble Supreme Court of India as a “binding precedent” and this

Court is bound by the legal principles settled by the Constitution

Bench in “Umadevi Case” which remains as the law of the land

under
Article 141
of the Constitution of India.

102. This Court is willing to cite another judgment of the

Hon'ble Two Judges Bench of the Hon'ble Supreme Court of India

in the case of
Punjab Water Supply & Sewerage Board Vs.

Ranjodh Singh and Others
, reported in (2007) 2 SCC Page

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

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

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

2006 SCC (L&S) 1152] in the following terms: (SCC pp.
500-01, paras 23-25)
“23. The contention of the learned counsel appearing on
behalf of the respondents that the appointments were
irregular and not illegal, cannot be accepted for more
than one reason. They were appointed only on the basis
of their applications. The Recruitment Rules were not
followed. Even the Selection Committee had not been
properly constituted. In view of the ban on employment,
no recruitment was permissible in law. The reservation
policy adopted by the appellant had not been
maintained. Even cases of minorities had not been given
due consideration.

24. The Constitution Bench thought of directing
regularisation of the services only of those employees
whose appointments were irregular as explained in
State of Mysore v. S.V. Narayanappa [AIR 1967 SC
1071 : (1967) 1 SCR 128] , R.N. Nanjundappa v. T.
Thimmiah [(1972) 1 SCC 409] and B.N. Nagarajan v.

State of Karnataka [(1979) 4 SCC 507 : 1980 SCC (L&S)
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W.P.(MD)No.10066 of 2014

4] wherein this Court observed: [Umadevi (3) case
[(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , SCC p. 24,
para 16]

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

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

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

(See also
State of M.P. v. Yogesh Chandra Dubey
[(2006)
8 SCC 67 : 2006
SCC (L&S) 1797] and State of M.P. v.
Lalit Kumar Verma
[(2007) 1 SCC 575 : (2006) 12 Scale
642] .)”

103. The Hon'ble Two Judges Bench of the Hon'ble Supreme

Court of India has dealt with the interpretation of paragraphs 16,

17, 19 and 22 of “Umadevi Case” and the paragraphs (16), (17),

(19) and (22) are extracted hereunder:
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W.P.(MD)No.10066 of 2014

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

17. We have already indicated the constitutional
scheme of public employment in this country, and the
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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

directions, as such directions may turn
counterproductive.

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

104.
In the case of
Post Master General, Kolkata and

Others Vs. Tutu Das(Dutta
), reported in (2007) 5 SCC 317,

paragraphs (5) & (18) are relevant and the same are extracted

hereunder:
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W.P.(MD)No.10066 of 2014

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

18.There are two distinctive features in the
present case, 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
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W.P.(MD)No.10066 of 2014

of paragraph 153 of “Umadevi Case” and the paragraphs (17) &

(18) of
the said judgment
and the same is extracted hereunder:

“17. Dr. Pillay, however, strongly relied upon the
observations made in Para 53 in Umadevi [(2006) 4 SCC
1 : 2006 SCC (L&S) 753] which reads as under: (SCC p.

42, para 53)
“53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in
State of Mysore v. S.V.
Narayanappa
[AIR 1967 SC 1071 : (
1967) 1 SCR 128] ,
R.N. Nanjundappa v. T. Thimmiah
[(
1972) 1 SCC 409]
and B.N. Nagarajan v. State of Karnataka
[(1979) 4 SCC
507 : 1980 SCC (L&S) 4] and referred to in para 15
above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees
have continued to work for ten years or more but
without the intervention of orders of the courts or of
tribunals. The question of regularisation of the services
of such employees may have to be considered on merits
in the light of the principles settled by this Court in the
cases abovereferred to and in the light of this judgment.
In that context, the Union of India, the State
Governments and their instrumentalities should take
steps to regularise as a 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
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W.P.(MD)No.10066 of 2014

to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily
wagers are being now employed. The process must be
set in motion within six months from this date. We also
clarify that regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of
the constitutional requirement and regularising or
making permanent, those not duly appointed as per the
constitutional scheme.”(emphasis in original)

A case of regularisation which thus attained finality and
was not sub judice would not come within the purview
of exception to the rule contained in Para 53 of
the said
judgment
. The appellants' case, thus, does not come
within the purview thereof. Only those cases where
regularisations had already been made were not to be
reopened. It is not in dispute that services of the
appellants were terminated as far back as in 1987 and
they did not question the legality or validity of the said
order.

It is only after the decision of this Court in
Jacob

case [(1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15
ATC 697] that representations were filed. Such
representations were rejected both by the Kerala Water
Authority as also the State of Kerala.

18. The appellants, in our opinion, thus, neither in
law nor in 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
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W.P.(MD)No.10066 of 2014

are bound by the
ratio
laid down in
Umadevi [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] . So far as Para 53 of the
judgment of the Constitution Bench in the said case is
concerned, the same has been considered by this Court
in a large number of decisions.

In
Punjab Water Supply
& Sewerage Board v. Ranjodh Singh
[(2007) 2 SCC
491 : (2007) 1 SCC (L&S) 713] it was held: (SCC p. 498,
para 15)

“15.

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

It was opined that by doing so it
would be creating another mode of public employment
which is not permissible.”

[See
Employees' Union v. Mineral Exploration Corpn.
Ltd.
[(2006) 6 SCC 310 : 2006
SCC (L&S) 1318] , State
of M.P. v. Lalit Kumar Verma
[(2007) 1 SCC 575 : (
2007)
1 SCC (L&S) 405] and Post Master General v. Tutu Das
(Dutta
) [(2007) 5 SCC 317 : (2007) 2 SCC (L&S) 179] .]”

106. When the scope of the paragraph (53) of the judgment,

is well enumerated by the Hon'ble Two Judges Bench of the Hon'ble

Supreme Court of India as cited above, this Court is not inclined to

consider the other judgments referred by the learned counsel for
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W.P.(MD)No.10066 of 2014

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
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W.P.(MD)No.10066 of 2014

to be precluded as well as its authority are to be regularized in

respect of appointing employees in contravention with the

recruitment rules in force and effecting appointments through back

doors.

108. This Court has to place on record that the State is

bound to over see the appointments made in this regard illegally or

irregularly by the competent authorities and the same is to be

construed as the fraud on the Constitution and such authorities are

liable for prosecution under the Discipline and Appeal Rules and

other relevant rules. The State shall be vigilant in this regard and

the authorities indulging in such activities of exercising powers by

issuing illegal or irregular appointments are to be booked under

the Discipline and Appeal Rules. No leniency can be shown by the

State in this regard, since these all are the Constitutional principles

required for the State to be followed and the State 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
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W.P.(MD)No.10066 of 2014

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. The very concept of public employment are elaborately

adjudicated and the principles are
laid down in

Umadevi
case.

This Court is of the considered opinion that all appointments are to

be made strictly in accordance with the Service Rules in force.

Equal opportunity in public employment is the constitutional

mandate. All eligible persons, who are all aspiring to secure public

employment, must be provided with an opportunity to participate in

the open competitive process under the Constitutional scheme and

any violation would result in denial of equal opportunity enunciated

under the Constitution of India. Thus, equality clause being the

Fundamental Right. Public employment cannot be denied to the

meritorious candidates, who are all longing to secure public
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W.P.(MD)No.10066 of 2014

employment, by participating in the process of selection more so,

by availing the Rules of Reservation. The practice of engaging

temporary employees, allowing them to continue in an irregular

manner and thereafter, granting the benefit of regularization and

permanent absorption is not only in violation of the Constitutional

Principles, but depriving the Fundamental Rights of the citizen of

this great Nation, who are all otherwise meritorious and waiting to

participate in the process of selection.

111. In the event of large scale back door appointments

undoubtedly, the efficiency level in the public administration would

be diluted. One can easily visualize that in the absence of any

merit selection, the efficiency level cannot be ensured or

maintained. Beyond the deprival of opportunity of public

employment to the meritorious candidates, the efficiency in the

public administration is also contemplated under the Constitutional

Principles. Efficient public administration is mandate. In order to

maintain the efficient Public Administration, the appointments are

to be made by selecting meritorious candidates for public services.

Dilution on the Constitutional Principles would result in disaster

consequences. In the event of lack of efficiency in public
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W.P.(MD)No.10066 of 2014

administration, the public at large would suffer in respect of

availing the benefits and services of Government schemes and

policies. Once there is a dilution of efficiency level in public

administration, then the Constitutional Principles are thrown on

the wind. Thus, the Courts cannot show any leniency or misplaced

sympathy in the matter of upholding the constitutional mandates,

Philosophy and Ethos. In the event of dilution of these

Constitutional Principles, the efficiency level in public

administration will get affected and consequently, the

administration and implementation of Government schemes will get

affected.

112. All these aspects are to be borne in mind. It is not as if

Courts can decide certain issues on sympathy or by taking a lenient

view. Such misplaced sympathy or lenient view may result in

denial of social justice to all the citizen of this great Nation. If the

implication of such misplaced sympathy would result in adverse

consequences, then Courts should not prefer to grant relief in such

cases merely based on the length of services or the manner in

which the irregular or illegal appointments are made.

................. (W.P.No.28633 of 2014...............
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W.P.(MD)No.10066 of 2014

113. In the present case, the order impugned states that the

writ petitioners are not satisfying the conditions stipulated in

G.O.Ms.No.74, Personal Administrative Reforms Department, dated

27.06.2013. Therefore, their claim for regularization is not

feasible.

114. Even in case they are not satisfying the conditions, this

Court is of the opinion that such Government Orders, which are all

passed and running counter to the principles settled by the

Constitutional Bench cannot be considered as valid Government

Orders. Any Government Orders running counter to the principles

laid down by
the Constitutional Bench are unconstitutional.

Therefore, the Government is also restrained from granting the

benefit of regularization or permanent absorption through back

door method. It is not as if the Government can take a decision,

which is otherwise not inconsonance with the Constitutional

Principles. Periodically granting regularization in violation of Rules

is impermissible both under the Constitution of India as well as

based on the principles
laid down by
the Constitution Bench.

Therefore, relying on a Government Order Court cannot decide the

matter contrary to the principles
laid down by
the Supreme Court
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W.P.(MD)No.10066 of 2014

of India, more specifically, by the Constitution Bench. Thus, such

Government Orders, which are all running counter to the

principles, cannot be approved by this Court. However, if the

Government Orders are running in consonance with the legal

principles, the said Government Order can be approved for the

purpose of grant of the benefit of regularization or permanent

absorption.

115. In view of the discussions made above, this Court is of

the opinion that the writ petitioners are not entitled for the relief

of regularization or permanent absorption as such sought for in

these writ petitions.

116. Accordingly, all the writ petitions stand dismissed.

However, there shall be no order as to costs. Consequently,

connected miscellaneous petitions also stand dismissed.

04.11.2020
Index :Yes / No
Internet :Yes / No

MPK
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W.P.(MD)No.10066 of 2014

To

1.The Secretary to Government,
Public Works Department,
The Government of Taminadu,
Fort St.George,
Chennai 600 009.

2.The Engineer in Chief (WRO),
Public Works Department,
Cheppakkam,
Chennai – 600 005.

3.The Chief Engineer (WRO),
PWD Madurai Region,
Tallakulam, Madurai.

4.Superintending Engineer (WRO),

Thamaraiparani Irrigation Circle, (Regular)
Palayamkottai,
Tirunelveli District.

5.Superintending Engineer,
WRO - PWD Project Circle,
Tirunelveli – 2
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W.P.(MD)No.10066 of 2014

S.M.SUBRAMANIAM, J.

MPK

W.P.(MD)No.10066 of 2014

W.P.(MD)No.14276 of 2017

and

W.P.(MD)No.14503 of 2017

04.11.2020
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