Madras High Court

M.Balaiya vs The Commissioner on 5 March, 2018

Author:
S.M.Subramaniam

Bench:
S.M.Subramaniam

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.03.2018
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD) No.16398 of 2012

M.Balaiya ... Petitioner

Vs.

1.The Commissioner
Municipal Administration,
Ezhilagam, Chepauk,
Chennai- 5.

2.The Commissioner,
Kambam Municipality,
Kambam, Theni District. ... Respondents

PRAYER: Writ Petition filed under
Article 226
of the Constitution of India
for issuance of Writ of Mandamus directing the respondents to regularise the
petitioner's service from the year 1999 and consequently give time scale of
pay from the year 2002 and to confer all the salary and pensionary benefits
by considering the petitioner's representation dated 31.10.2012 within the
period to be stipulated by this Court.

!For Petitioner : Mr.A.Haja Mohideen
^For R1 : Mr.M.Muthu
Additional Government Pleader

For R2 : Mr.M.Alagathevan

:ORDER

The relief sought for in this writ petition is for a direction to
direct the respondents to regularize the service of the writ petitioner from
the year 1999 and consequently grant time scale of pay with effect from 2002
onwards.

2. The learned counsel appearing on behalf of the writ petitioner
states that the writ petitioner was initially appointed as Sweeper in the
second respondent municipality on daily wage basis. The petitioner is
allowed to continue in service for a considerable length of time and
therefore the service of the petitioner ought to have been regularized by the
respondent on completion of 10 years of service.

3. At the out set, the learned counsel is of an opinion that the
Government issued various orders granting the benefit of regularization to
the similarly placed persons on completion of 10 years of service and
therefore the same benefit has to be extended to the petitioner also. This
apart, the petitioner states that large number of similarly placed last grade
servants, who served on daily wage basis for years together were already
regularized and on this ground, the writ petitioner alone cannot be
discriminated and the same benefit has to be granted to the petitioner also.
However, the learned counsel for the writ petitioner is unable to
substantiate that the initial appointment of the writ petitioner was in
accordance with the regular recruitment rules in force.

4. The learned Additional Government Pleader appearing on behalf of the
respondents states that the initial appointment of the writ petitioner was
irregular and not in accordance with the recruitment rules in force. The
writ petitioner was appointed on daily wage basis and therefore, the writ
petitioner cannot claim any of the benefit of regularization or permanent
absorption merely on the ground of length of service rendered. The daily
wage employees are liable to be terminated at any point of time without any
notice. Thus, the permanent absorption earlier granted, cannot be granted by
the Government in view of the subsequent development and the subsequent
judgment of the Hon'ble Supreme Court of India in this regard.

5. This Court is of an opinion that all appointments to the public post
are to be done only through open competitive process and by adhering to the
recruitment rules in force. Equal opportunity for public employment is a
Constitutional mandate. The equality clause enshrined in the Constitution
cannot be violated by the competent authorities while undertaking the process
of selection. It is not as if engaging a person on daily wage basis and
holding such a person in continuous service for a considerable time and
therefore grant regularization or permanent absorption. Such a practice was
absolutely condemned by the Hon'ble Apex Court of India. Such a practice will
lead to deprivation of the meritorious candidates to secure public employment
through open competitive process. Such appointments made in violation of
Rules are to be treated as back door entries into the public service. The
persons who had entered into Government service through back door should go
out through the door by which he/she got into such service. There cannot be
any leniency or misplaced sympathy by the Constitutional Courts, which shows
that the Courts are bound to consider that such misplaced sympathy will
result in violation of the constitutional rights of the teeming millions of
people, who are waiting for public employment through open competitive
process.

6. After all, millions of youth of this great nation are burning their
midnight lamp and working hard to secure public employment. The plight of
such young minds will be in trouble and thus young people will get
frustration from and out of the system of back door entries. Thus the Courts
can never encourage such entries into public service. The back door entries
would cause serious social implication in respect of providing equal
opportunity to all the citizens. First of all, the Rule of reservation is
violated. The public administration will lose the meritorious candidates for
the purpose of serving the public efficiently.

7. These adverse consequences of granting regularization or permanent
absorption in respect of the employees, who are not appointed under the
recruitment Rules in force is certainly a drastic step and therefore this
Court has to come to the conclusion that such appointments made by the
competent authorities are fraud and the constitutional Courts can never
encourage such practices.

8. This Court also had elaborately discussed the matter, considering
all the legal principles settled by the Constitutional Bench of the Hon'ble
Supreme Court of India in the case of
The Secretary, State of Karnataka and
others .vs. Umadevi
(3) and others reported in (2006) 4 Supreme Court Cases 1,
in W.P.No.28633 to 28646 of 2014 on 12.12.2017 and those discussions are
extracted hereunder for better appreciation of the present writ petition
also:

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 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 absorption. Thus, the persons who
are eligible to be regularized under G.O.Ms.No.22, are prevented from getting
the benefit from and out of the said Government order and G.O.Ms.No.74,
imposes certain restrictions.

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

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

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

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

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

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

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

In respect of judgments in relation to the
interpretation of ?binding precedent?, this Court is inclined to consider the
very recent judgment of the Hon'ble Supreme Court of India in the case of

National Insurance Co. Ltd vs Pranay Sethi and Others
, reported in JT 2017
(10) SC 450. It is pertinent to note that it is a judgment by the
Constitution Bench of the Hon'ble Supreme Court of India headed by His
Lordship, Hon'ble Chief Justice of India, Dipak Misra.CJI,. The Hon'ble
Chief Justice of India delivered this judgment and it is relevant to quote
paragraphs (15 to 26):

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

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

17.
In
State of Bihar v. Kalika Kuer
alias Kalika Singh and others [JT (2003)
(4) SC 489], it has been held:-?10. ? an earlier decision may seem to be
incorrect to a Bench of a coordinate jurisdiction considering the question
later, on the ground that a possible aspect of the matter was not considered
or not raised before the court or more aspects should have been gone into by
the court deciding the matter earlier but it would not be a reason to say
that the decision was rendered per incuriam and liable to be ignored. The
earlier judgment may seem to be not correct yet it will have the binding
effect on the later Bench of coordinate jurisdiction. ??

17.1.The Court has further ruled:-

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

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

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

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

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

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

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

20. Though the aforesaid was articulated in the context of the High Court,
yet this Court has been following the same as is revealed from the
aforestated pronouncements including that of the Constitution Bench and,
therefore, we entirely agree with the said view because it is the precise
warrant of respecting a precedent which is the fundamental norm of judicial
discipline. 21.
In the context, we may fruitfully note what has been stated
in
Pradip Chandra Parija and others v. Pramod Chandra Patnaik and others
[JT
(2002) 5 SCC 23]. In the said case, the Constitution Bench was dealing with a
situation where the two-Judge Bench disagreeing with the three-Judge Bench
decision directed the matter to be placed before a larger Bench of five
Judges of this Court. In that scenario, the Constitution Bench stated:-

?6. ? In our view, judicial discipline and propriety demands that a Bench of
two learned Judges should follow a decision of a Bench of three learned
Judges. But if a Bench of two learned Judges concludes that an earlier
judgment of three learned Judges is so very incorrect that in no
circumstances can it be followed, the proper course for it to adopt is to
refer the matter before it to a Bench of three learned Judges setting out, as
has been done here, the reasons why it could not agree with the earlier
judgment. ?22.
In
Chandra Prakash and others v. State of U.P. and another
[JT
(2002) (3) SC 493], another Constitution Bench dealing with the concept of
precedents stated thus:-

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

23. Be it noted, Chandra Prakash concurred with the view expressed in
Raghubir Singh and Pradip Chandra Parija.24.
In
Sandhya Educational Society
and another v. Union of India and others
(2014) 7 SCC 701), it has been
observed that judicial decorum and discipline is paramount and, therefore, a
coordinate Bench has to respect the judgments and orders passed by another
coordinate Bench.

In
Rattiram and others v. State of Madhya Pradesh
(2012) 4
SCC 516), the Court dwelt upon the issue what would be the consequent effect
of the latter decision which had been rendered without noticing the earlier
decisions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case?. Admittedly, there is no other subsequent Constitution Bench judgment
in respect of the subject of regularization and permanent absorption.

The
last judgment rendered by the Constitution Bench in the subject matter is
?
Umadevi
Case?.

Thus, the legal principles settled by the Constitution Bench
in ?
Umadevi
Case? are of ?binding precedent? or to be followed as ?binding
precedent?. Thus, the facts and circumstances of the present writ petition
has to be considered only in the light of the principles
laid down by
the
Constitution Bench. All other judgments subsequently passed by the Hon'ble
Supreme Court of India may have certain distinctions far and against.

However, these judgments are to be interpreted only based on the facts and
circumstances prevailing in that particular case and therefore, this Court
cannot consider those judgments delivered on a particular facts in relation
to that particular case. However, the legal principles are to be considered
in relation to the facts and circumstances of the present case on hand.

41. Let us look into the basic principles enunciated by the
Constitution Bench in the matter of regularization and permanent absorption.

Paragraph (5) of the ?Umadevi
Case? is extracted hereunder:

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

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

laid down by
the Constitution and not to make directions, which at times,
even if do not run counter to the constitutional scheme, certainly tend to
water down the constitutional requirements. It is this Conflict that
reflected in these cases referred to the Constitution Bench.

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

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

?10. When these matters came up before a Bench of two Judges, the learned
Judges referred the cases to a Bench of three Judges. The order of reference
is reported in
Secy., State of Karnataka v. Umadevi
(1) [(2004) 7 SCC 132 :

2004 SCC (L&S) 935 : (2003) 9 Scale 187] . This Court noticed that in the
matter of regularisation of ad hoc employees, there were conflicting
decisions by three-Judge Benches of this Court and by two-Judge Benches and
hence the question required to be considered by a larger Bench. When the
matters came up before a three-Judge Bench, the Bench in turn felt that the
matter required consideration by a Constitution Bench in view of the conflict
and in the light of the arguments raised by the Additional Solicitor General.
The order of reference is reported in
Secy., State of Karnataka v. Umadevi

(2) [(2006) 4 SCC 44 : (2003) 10 Scale 388] . It appears to be proper to
quote that order of reference at this stage. It reads: (SCC p. 45, paras 1-5)
?1.

Apart from the conflicting opinions between the three-Judge Bench
decisions in
Ashwani Kumar v. State of Bihar
[(1997) 2 SCC 1 : 1997 SCC (L&S)
465 : 1996 Supp (10) SCR 120] , State of Haryana v. Piara Singh [(1992) 4 SCC
118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] and Dharwad
Distt.
PWD Literate Daily Wage Employees Assn. v. State of Karnataka [(1990)
2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] on the
one hand and State of H.P. v. Suresh Kumar Verma [(1996) 7 SCC 562 : 1996 SCC
(L&S) 645 : (1996) 33 ATC 336 : AIR 1996 SC 1565 : (1996) 1 SCR 972] , State
of Punjab v. Surinder Kumar [(1992) 1 SCC 489 : 1992 SCC (L&S) 345 : (1992)
19 ATC 500 : AIR 1992 SC 1593 : 1991 Supp (3) SCR 553] and B.N. Nagarajan v.

State of Karnataka [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
on the other, which have been brought out in one of the judgments under
appeal of the Karnataka High Court in
State of Karnataka v. H. Ganesh Rao

[(2001) 4 Kant LJ 466 (DB)] , decided on 1-6-2001 the learned Additional
Solicitor General urged that the scheme for regularisation is repugnant to

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

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

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

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

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

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

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

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

47. In view of the interpretation placed on
Article 12
of the
Constitution by this Court, obviously, these principles also govern the
instrumentalities that come within the purview of
Article 12
of the
Constitution. With a view to make the procedure for selection fair, the
Constitution by
Article 315
has also created a Public Service Commission for
the Union and the Public Service Commissions for the States.
Article 320

deals with the functions of the Public Service Commissions and mandates
consultation with the Commission on all matters relating to methods of
recruitment to civil services and for civil posts and other related matters.
As a part of the affirmative action recognised by
Article 16
of the
Constitution,
Article 335
provides for special consideration in the matter of
claims of the members of the Scheduled Castes and Scheduled Tribes for
employment.

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

?12. In spite of this scheme, there may be occasions when the sovereign State
or its instrumentalities will have to employ persons, in posts which are
temporary, on daily wages, as additional hands or taking them in without
following the required procedure, to discharge the duties in respect of the
posts that are sanctioned and that are required to be filled in terms of the
relevant procedure established by the Constitution or for work in temporary
posts or projects that are not needed permanently. This right of the Union or
of the State Government cannot but be recognised and there is nothing in the
Constitution which prohibits such engaging of persons temporarily or on daily
wages, to meet the needs of the situation. But the fact that such engagements
are resorted to, cannot be used to defeat the very scheme of public
employment. Nor can a court say that the Union or the State Governments do
not have the right to engage persons in various capacities for a duration or
until the work in a particular project is completed. Once this right of the
Government is recognised and the mandate of the constitutional requirement
for public employment is respected, there cannot be much difficulty in coming
to the conclusion that it is ordinarily not proper for the Courts whether
acting under
Article 226
of the Constitution or under
Article 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 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
length of time. Such considerations can have only a limited role to play,
when every qualified citizen has a right to apply for appointment, the
adoption of the concept of rule of law and the scheme of the Constitution for
appointment to posts. It cannot also be forgotten that it is not the role of
the courts to ignore, encourage or approve appointments made or engagements
given outside the constitutional scheme. In effect, orders based on such
sentiments or approach would result in perpetuating illegalities and in the
jettisoning of the scheme of public employment adopted by us while adopting
the Constitution. The approving of such acts also results in depriving many
of their opportunity to compete for public employment. We have, therefore, to
consider the question objectively and based on the constitutional and
statutory provisions.
In this context, we have also to bear in mind the
exposition of law by a Constitution Bench in
State of Punjab v. Jagdip Singh

[(1964) 4 SCR 964 : AIR 1964 SC 521] . It was held therein: (SCR pp. 971-72)
?In our opinion where a government servant has no right to a post or to a
particular status, though an authority under the Government acting beyond its
competence had purported to give that person a status which it was not
entitled to give he will not in law be deemed to have been validly appointed
to the post or given the particular status.?

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

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

52. The approving of such acts also results in depriving many of their
opportunity to compete for public employment.
The Constitution Bench of
?Umadevi
Case?, considered the proposition of law
laid down by
the previous
Constitution Bench in the case of
State of Punjab Vs. Jagdip Singh
, reported
in [AIR (1964) SC 521].

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

53.
In paragraph (
14) of the ?Umadevi
Case? judgment, the Hon'ble
Supreme Court of India has elaborately discussed about various orders of the
Courts either interim orders or final orders which were brought to the notice
of the Constitution Bench. The Hon'ble Supreme Court of India came to the
conclusion that those orders more or less was the issue of directions for
continuation or absorption without referring to the legal position obtaining.
It was brought to the notice of this Court that chaos has been created by
such orders without reference to the legal principles and it is time that
this Court settled the law once and for all so that in case the Court finds
that such orders should not be made, the Courts, especially, the High Courts
would be precluded from issuing such directions or passing such orders.

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

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

?20. The decision in Dharwad Distt.
PWD Literate Daily Wage Employees
Assn. v. State of Karnataka
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990)
12 ATC 902 : (1990) 1 SCR 544] dealt with a scheme framed by the State of
Karnataka, though at the instance of the Court. The scheme was essentially
relating to the application of the concept of equal pay for equal work but it
also provided for making permanent, or what it called regularisation, without
keeping the distinction in mind, of employees who had been appointed ad hoc,
casually, temporarily or on daily-wage basis. In other words, employees who
had been appointed without following the procedure established by law for
such appointments. This Court, at the threshold, stated that it should
individualise justice to suit a given situation. With respect, it is not
possible to accept the statement, unqualified as it appears to be. This Court
is not only the constitutional court, it is also the highest court in the
country, the final court of appeal. By virtue of
Article 141
of the
Constitution, what this Court lays down is the law of the land. Its decisions
are binding on all the courts. Its main role is to interpret the
constitutional and other statutory provisions bearing in mind the fundamental
philosophy of the Constitution. We have given unto ourselves a system of
governance by rule of law. The role of the Supreme Court is to render justice
according to law. As one jurist put it, the Supreme Court is expected to
decide questions of law for the country and not to decide individual cases
without reference to such principles of law. Consistency is a virtue. Passing
orders not consistent with its own decisions on law, is bound to send out
confusing signals and usher in judicial chaos. Its role, therefore, is really
to interpret the law and decide cases coming before it, according to law.

Orders which are inconsistent with the legal conclusions arrived at by the
court in the selfsame judgment not only create confusion but also tend to
usher in arbitrariness highlighting the statement, that equity tends to vary
with the Chancellor's foot.?

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

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

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

& 16
which was described as a facet of

Article 14
is part of the basic structure of the Constitution.

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

59.
In paragraph (41), the earlier decision in the above said case of

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

60. The judgment of the another Constitution Bench in the case of

D.C.Wadhwa(Dr.) Vs. State of Bihar
, reported in (1987) 1 SCC 378 and the
relevant paragraph (3) is extracted hereunder:

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

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

?43. Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our Constitution and since the rule of law
is the core of our Constitution, a court would certainly be disabled from
passing an order upholding a violation of
Article 14
or in ordering the
overlooking of the need to comply with the requirements of
Article 14
read
with
Article 16
of the Constitution. Therefore, consistent with the scheme
for public employment, this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the relevant rules and
after a proper competition among qualified persons, the same would not confer
any right on the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if it were an
engagement or appointment on daily wages or casual basis, the same would come
to an end when it is discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term of appointment. It has
also to be clarified that merely because a temporary employee or a casual
wage worker is continued for a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original appointment was
not made by following a due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular recruitment at the
instance of temporary employees whose period of employment has come to an end
or of ad hoc employees who by the very nature of their appointment, do not
acquire any right. The High Courts acting under
Article 226
of the
Constitution, should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the recruitment itself was
made regularly and in terms of the constitutional scheme. Merely because an
employee had continued under cover of an order of the court, which we have
described as ?litigious employment? in the earlier part of the judgment, he
would not be entitled to any right to be absorbed or made permanent in the
service. In fact, in such cases, the High Court may not be justified in
issuing interim directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be possible for it to
mould the relief in such a manner that ultimately no prejudice will be caused
to him, whereas an interim direction to continue his employment would hold up
the regular procedure for selection or impose on the State the burden of
paying an employee who is really not required. The courts must be careful in
ensuring that they do not interfere unduly with the economic arrangement of
its affairs by the State or its instrumentalities or lend themselves the
instruments to facilitate the bypassing of the constitutional and statutory
mandates.

44. The concept of ?equal pay for equal work? is different from the
concept of conferring permanency on those who have been appointed on ad hoc
basis, temporary basis, or based on no process of selection as envisaged by
the rules. This Court has in various decisions applied the principle of equal
pay for equal work and has laid down the parameters for the application of
that principle. The decisions are rested on the concept of equality enshrined
in our Constitution in the light of the directive principles in that behalf.

But the acceptance of that principle cannot lead to a position where the
court could direct that appointments made without following the due procedure
established by law, be deemed permanent or issue directions to treat them as
permanent. Doing so, would be negation of the principle of equality of
opportunity. The power to make an order as is necessary for doing complete
justice in any cause or matter pending before this Court, would not normally
be used for giving the go-by to the procedure established by law in the
matter of public employment. Take the situation arising in the cases before
us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC
396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] the
Government had issued repeated directions and mandatory orders that no
temporary or ad hoc employment or engagement be given. Some of the
authorities and departments had ignored those directions or defied those
directions and had continued to give employment, specifically interdicted by
the orders issued by the executive. Some of the appointing officers have even
been punished for their defiance. It would not be just or proper to pass an
order in exercise of jurisdiction under
Article 226
or 32 of the Constitution
or in exercise of power under
Article 142
of the Constitution permitting
those persons engaged, to be absorbed or to be made permanent, based on their
appointments or engagements. Complete justice would be justice according to
law and though it would be open to this Court to mould the relief, this Court
would not grant a relief which would amount to perpetuating an illegality.

45. While directing that appointments, temporary or casual, be
regularised or made permanent, the courts are swayed by the fact that the
person concerned has worked for some time and in some cases for a
considerable length of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not aware of the nature
of his employment. He accepts the employment with open eyes. It may be true
that he is not in a position to bargain?not at arm's length?since he might
have been searching for some employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground alone, it would not be
appropriate to jettison the constitutional scheme of appointment and to take
the view that a person who has temporarily or casually got employed should be
directed to be continued permanently. By doing so, it will be creating
another mode of public appointment which is not permissible. If the court
were to void a contractual employment of this nature on the ground that the
parties were not having equal bargaining power, that too would not enable the
court to grant any relief to that employee. A total embargo on such casual or
temporary employment is not possible, given the exigencies of administration
and if imposed, would only mean that some people who at least get employment
temporarily, contractually or casually, would not be getting even that
employment when securing of such employment brings at least some succour to
them. After all, innumerable citizens of our vast country are in search of
employment and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an employment. It is in
that context that one has to proceed on the basis that the employment was
accepted fully knowing the nature of it and the consequences flowing from it.
In other words, even while accepting the employment, the person concerned
knows the nature of his employment. It is not an appointment to a post in the
real sense of the term. The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be considered to be
of such a magnitude as to enable the giving up of the procedure established,
for making regular appointments to available posts in the services of the
State. The argument that since one has been working for some time in the
post, it will not be just to discontinue him, even though he was aware of the
nature of the employment when he first took it up, is not one that would
enable the jettisoning of the procedure established by law for public
employment and would have to fail when tested on the touchstone of
constitutionality and equality of opportunity enshrined in
Article 14
of the
Constitution.

46. Learned Senior Counsel for some of the respondents argued that on
the basis of the doctrine of legitimate expectation, the employees,
especially of the Commercial Taxes Department, should be directed to be
regularised since the decisions in Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S)
274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 :

1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (
1992) 3 SCR 826] , Jacob [Jacob M.
Puthuparambil v. Kerala Water Authority
, (1991) 1 SCC 28 : 1991 SCC (L&S) 25
: (
1991) 15 ATC 697] and Gujarat Agricultural University [Gujarat
Agricultural University v. Rathod Labhu Bechar
, (2001) 3 SCC 574 : 2001 SCC
(L&S) 613] and the like, have given rise to an expectation in them that their
services would also be regularised. The doctrine can be invoked if the
decisions of the administrative authority affect the person by depriving him
of some benefit or advantage which either (i) he had in the past been
permitted by the decision-maker to enjoy and which he can legitimately expect
to be permitted to continue to do until there have been communicated to him
some rational grounds for withdrawing it on which he has been given an
opportunity to comment; or (ii) he has received assurance from the decision-
maker that they will not be withdrawn without giving him first an opportunity
of advancing reasons for contending that they should not be withdrawn.

[See
Lord Diplock in Council for Civil Services Union v. Minister of Civil Service
[1985 AC 374 : (1984) 3 All ER 935 : (
1984) 3 WLR 1174 (HL)] , National
Buildings Construction Corpn. v. S. Raghunathan
[(1998) 7 SCC 66 : 1998 SCC
(L&S) 1770] and Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3 SCC 485
: 2003 SCC (L&S) 322] .] There is no case that any assurance was given by the
Government or the department concerned while making the appointment on daily
wages that the status conferred on him will not be withdrawn until some
rational reason comes into existence for withdrawing it. The very engagement
was against the constitutional scheme. Though, the Commissioner of the
Commercial Taxes Department sought to get the appointments made permanent,
there is no case that at the time of appointment any promise was held out. No
such promise could also have been held out in view of the circulars and
directives issued by the Government after Dharwad decision [(1990) 2 SCC 396
: 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there
is a case that the State had made regularisations in the past of similarly
situated employees, the fact remains that such regularisations were done only
pursuant to judicial directions, either of the Administrative Tribunal or of
the High Court and in some cases by this Court. Moreover, the invocation of
the doctrine of legitimate expectation cannot enable the employees to claim
that they must be made permanent or they must be regularised in the service
though they had not been selected in terms of the rules for appointment. The
fact that in certain cases the court had directed regularisation of the
employees involved in those cases cannot be made use of to found a claim
based on legitimate expectation. The argument if accepted would also run
counter to the constitutional mandate. The argument in that behalf has
therefore to be rejected.

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

48. It was then contended that the rights of the employees thus
appointed, under
Articles 14
and
of the Constitution, are violated. It is
stated that the State has treated the employees unfairly by employing them on
less than minimum wages and extracting work from them for a pretty long
period in comparison with those directly recruited who are getting more wages
or salaries for doing similar work. The employees before us were engaged on
daily wages in the department concerned on a wage that was made known to
them. There is no case that the wage agreed upon was not being paid. Those
who are working on daily wages formed a class by themselves, they cannot
claim that they are discriminated as against those who have been regularly
recruited on the basis of the relevant rules. No right can be founded on an
employment on daily wages to claim that such employee should be treated on a
par with a regularly recruited candidate, and made permanent in employment,
even assuming that the principle could be invoked for claiming equal wages
for equal work. There is no fundamental right in those who have been employed
on daily wages or temporarily or on contractual basis, to claim that they
have a right to be absorbed in service. As has been held by this Court, they
cannot be said to be holders of a post, since, a regular appointment could be
made only by making appointments consistent with the requirements of
Articles
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 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 argument that
Article 23
of the
Constitution is breached because the employment on daily wages amounts to
forced labour, cannot be accepted. After all, the employees accepted the
employment at their own volition and with eyes open as to the nature of their
employment. The Governments also revised the minimum wages payable from time
to time in the light of all relevant circumstances. It also appears to us
that importing of these theories to defeat the basic requirement of public
employment would defeat the constitutional scheme and the constitutional goal
of equality.?

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

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

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

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

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

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

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

69.
Paragraph (47) of the ?Umadevi
Case? judgment enumerates that when
a person enters a temporary employment or gets engagement as a contractual or
casual worker and the engagement is not based on a proper selection as
recognised by the relevant rules or procedure, he is aware of the
consequences of the appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate expectation for
being confirmed in the post when an appointment to the post could be made
only by following a proper procedure for selection and in cases concerned, in
consultation with the Public Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully advanced by temporary,
contractual or casual employees.

70.
In paragraph (
48) of the ?Umadevi
Case? Judgment, the Constitution
Bench considered the right of the employees thus appointed, under
Articles 14

and
of the Constitution, are violated.

Even in ?
Umadevi
Case?, those
employees before the Supreme Court of India were engaged on daily wages in
the department concerned on a daily wage that was made known to them. There
is no case that the wage agreed upon was not being paid. Those who are
working on daily wages formed a class by themselves, they cannot claim that
they are discriminated as against those who have been regularly recruited on
the basis of the relevant rules. No right can be founded on an employment on
daily wages to claim that such employee should be treated on par with a
regularly recruited candidate, and made permanent in employment, even
assuming that the principle could be invoked for claiming equal wages for
equal work. There is no fundamental right for those who have been employed
on daily wages or temporarily or on contractual basis, to claim that they
have a right to be absorbed in service. As has been held by this Court, they
cannot be said to be holders of a post, since, a regular appointment could be
made only by making appointments consistent with the requirements of
Articles
and
of the Constitution.

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

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

Case?.

Paragraph (53) of the Judgment is extracted hereunder:

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

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

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

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

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

?11. Learned counsel for the appellant has relied upon the decision of this
Court in
Secy., State of Karnataka v. Umadevi
(3) [(2006) 4 SCC 1 : 2006 SCC
(L&S) 753] and has urged that no direction for regularisation can be given by
the Court. In our opinion, the decision in Umadevi (3) case [(2006) 4 SCC 1 :

2006 SCC (L&S) 753] is clearly distinguishable. The said decision cannot be
applied to a case where regularisation has been sought for in pursuance of

Article 14
of the Constitution.?

77.
In the above said case, the Hon'ble Two Judges Bench distinguished
that case with the ?
Umadevi
Case?.

The very language used in Paragraph (11)
states that ?in our opinion, the decision in ?
Umadevi
Case? is clearly
distinguishable. The said decision cannot be applied to a case where
regularization has been sought for in pursuance of
Article 14
of the
Constitution.

However, this Court is of the opinion that their Lordships
have distinguished the ?
Umadevi
Case? in respect of the facts and
circumstances that the case.

When their Lordships have distinguished that
case, this Court is of the opinion that the legal principles settled in
?
Umadevi
Case? has not been deviated by the Hon'ble Two Judges Bench of the
Hon'ble Supreme Court of India, as it is a ?binding precedent? as stated by
this Court in earlier paragraphs.

78. ?
Umadevi
Case? being a ?binding precedent?

and when the case was
distinguished from ?
Umadevi
Case? on factual circumstances, the same cannot
be applied in the present case before this Court.

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

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

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

However, the Hon'ble Supreme Court of India in that case, remanded the matter
back for reconsideration by the High Court in the light of the legal
principles settled in the ?
Umadevi
Case?. Thus, in all respects, the case
cannot have any application in respect of the facts and circumstances of the
present writ petition.

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

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

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

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

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

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

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

84. The learned counsel for the petitioner solicited the attention of
this Court relying the case decided by the Hon'ble Two Judges Bench of the
Hon'ble Supreme Court of India in the case of
Nihal Singh and Others Vs.
State of Punjab and Others
, reported in (2013) 14 SCC 65 and the paragraph
(31) and (33) of the judgments are extracted hereunder:

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

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

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

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

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

87. This Court has no hesitation in holding that the judgment cited by
the learned counsel for the petitioner in the case of
Nihal Singh and Others
Vs. State of Punjab and Others
, reported in (2013) 14 SCC 65, is to be
considered as denuded of their status as precedents. Thus, this Court is not
inclined to consider and follow the same.

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

?42.The decision in Umadevi (3) case [
State of Karnataka v. Umadevi

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

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

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

[(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , has examined that question and
explained the principle regarding regularisation as enunciated in Umadevi (3)
case [
State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
. The decision
in that case
summed up the following three essentials for
regularisation: (1) the employees have worked for ten years or more, (2) that
they have so worked in a duly sanctioned post without the benefit or
protection of the interim order of any court or tribunal, and (3) they should
have possessed the minimum qualification stipulated for the appointment.
Subject to these three requirements being satisfied, even if the appointment
process did not involve open competitive selection, the appointment would be
treated irregular and not illegal and thereby qualify for regularisation.

Para 7 in this regard is apposite and may be extracted at this stage: (
M.L.
Kesari
case [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , SCC p. 250)
?7. It is evident from the above that there is an exception to the general
principles against ?regularisation?

enunciated in
Umadevi (3) [State of
Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , if the
following conditions are fulfilled:

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

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

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

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

?8.this Court in
State of Rajasthan & Ors. v. Daya Lal & Ors.
, AIR 2011 SC
1193, has considered the scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid down well-settled
principles relating to regularisation and parity in pay relevant in the
context of the issues involved therein. The same are as under:

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

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage
employee, under cover of some interim orders of the court, would not confer
upon him any right to be absorbed into service, as such service would be
?litigious employment?. Even temporary, ad hoc or daily-wage service for a
long number of years, let alone service for one or two years, will not
entitle such employee to claim regularisation, if he is not working against a
sanctioned post. Sympathy and sentiment 5 Page 6 cannot be grounds for
passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off
date (that is a scheme providing that persons who had put in a specified
number of years of service and continuing in 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
of the Constitution of India will not issue directions for
regularization, absorption or permanent continuance. Unless the employees
claiming regularization had been appointed in pursuance of a regular
recruitment in accordance with relevant rules in an open competitive process
against sanctioned vacant posts, the equality clause contained in
Articles 14

and
should be scrupulously followed and Courts should not issue a
direction for regularization of services of an employee which would be
violative of the Constitutional scheme.

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

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

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

(See
Avas Vikas Sansthan v. Engineers Assn.

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

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

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

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

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

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

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

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

2006 SCC (L&S) 753] we are of the view that the stand taken by the appellants
in refusing regularisation to the respondents cannot be countenanced.
However, as the said stand of the appellants stems from their perception and
understanding of the decision in
Umadevi (3) [State of Karnataka v. Umadevi

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

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

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

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

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

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

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

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

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

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

97. Again, in this case also, the Hon'ble Supreme Court of India has
deviated the principles
laid down in
?
Umadevi
Case?. Thus, this Court has to
derive an opinion that the decision would be denuded of its status as
precedents.

For all these reasons, this Court has to independently apply the
legal principles settled by the Constitution Bench in the ?
Umadevi
Case?.

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

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

?13.Considering the facts of the present case on the touchstone
laid
down in
Umadevi (3) case [
State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 :

2006 SCC (L&S) 753] , it will be seen that the Division Bench was not right
in setting aside the appointment of the appellants. More so, it was nobody's
case challenging the appointment of the appellants. Admittedly, the
appellants were engaged as contractual employees from 1994 and have completed
more than ten years of continuous service with Respondent 1. They continued
in service not by the orders of the Court/Tribunal, but by the decision of
the respondents. The appellants were regularised as per the policy decision
dated 16-4-2003 taken by Respondent 1 and approved by the State Government
vide Letter dated 5-3-2008. Since the appointment of the appellants were made
pursuant to the policy of regularisation, the High Court was not right in
quashing the appointment of the appellants as the same were never in question
before the High Court. The plea that was raised by the appellants was only to
seek regularisation with retrospective effect from 20-11-2002 and the
consequential seniority.?

100.
In this case also, the Hon'ble Two Judges Bench of the Hon'ble
Supreme Court of India has taken note of the one time benefit granted by the
Constitution Bench in paragraph (53) of the Judgment in ?
Umadevi
Case?.
However, the legal principles settled in paragraphs 5,10,12,14,20 and 43 to
50 and 54 of the judgment has not been considered by their Lordships. Since
the legal principles enunciated in the above paragraphs of the Constitution
Bench has not been considered and the case was decided based on the
particular facts and circumstances of the case, this Court is not bound to
consider it as a ?binding precedent? as enumerated in the first portion of
this Judgment. This Court has earlier considered the nature of the ?binding
precedents?

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

101. In all the cases cited supra, this Court is able to find out that
those cases by the Hon'ble Two Judges of the Hon'ble Supreme Court of India
were decided based on certain facts and circumstances of the case. However,
all those circumstances and the legal principles were well settled by the
Constitution Bench in ?
Umadevi
Case?. Various paragraphs of the
Constitution Bench judgment as discussed above made it very clear that all
the circumstances arisen out of the temporary/casual/daily wages employees
were dealt with elaborately and a findings are provided. This being the
factum of the case, this Court is not inclined to follow the above judgment
of the Hon'ble Two Judges Bench of the Hon'ble Supreme Court of India as a
?binding precedent?

and this Court is bound by the legal principles settled
by the Constitution Bench in ?
Umadevi
Case? which remains as the law of the
land under
Article 141
of the Constitution of India.

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

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

18.Distinction between irregularity and illegality is explicit. It has been
so pointed out in
National Fertilizers Ltd. v. Somvir Singh
[(2006) 5 SCC 493
: 2006 SCC (L&S) 1152] in the following terms: (SCC pp. 500-01, paras 23-25)
?23. The contention of the learned counsel appearing on behalf of the
respondents that the appointments were irregular and not illegal, cannot be
accepted for more than one reason. They were appointed only on the basis of
their applications. The Recruitment Rules were not followed. Even the
Selection Committee had not been properly constituted. In view of the ban on
employment, no recruitment was permissible in law. The reservation policy
adopted by the appellant had not been maintained. Even cases of minorities
had not been given due consideration.

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

In
B.N. Nagarajan v. State of Karnataka
[(1979) 4 SCC 507 : 1980 SCC
(L&S) 4] this Court clearly held that the words ?regular? or ?regularisation?

do not connote permanence and cannot be construed so as to convey an idea of
the nature of tenure of appointments. They are terms calculated to condone
any procedural irregularities and are meant to cure only such defects as are
attributable to methodology followed in making the appointments.?

25. Judged by the standards
laid down by
this Court in the aforementioned
decisions, the appointments of the respondents are illegal. They do not,
thus, have any legal right to continue in service.?

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

103. The Hon'ble Two Judges Bench of the Hon'ble Supreme Court of India
has dealt with the interpretation of paragraphs 16, 17, 19 and 22 of ?
Umadevi

Case? and the paragraphs (16), (17), (19) and (22) are extracted hereunder:

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

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

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

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

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

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

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

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

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

(ii) According to the appellant the respondent having completed 240 days,
does not fulfil the requisite criteria. A disputed question of fact has been
raised. The High Court did not come to a positive finding that she had worked
for more than 240 days in a year.?

105.
In the case of
C.Balachandran and Others Vs. State of Kerala and
Others
, reported in (2009) 1 SCC (L& S) 610, wherein the Hon'ble Supreme
Court of India interpreted the scope of paragraph 153 of ?
Umadevi
Case? and
the paragraphs (17) & (18) of
the said judgment
and the same is extracted
hereunder:

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

[(1979) 4 SCC 507 : 1980 SCC (L&S) 4] and referred to in para 15 above, of
duly qualified persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more but without
the intervention of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have to be considered on
merits in the light of the principles settled by this Court in the cases
abovereferred to and in the light of this judgment. In that context, the
Union of India, the State Governments and their instrumentalities should take
steps to regularise as a one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly sanctioned posts but
not under cover of orders of the courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must be set in
motion within six months from this date. We also clarify that regularisation,
if any already made, but not sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of the constitutional
requirement and regularising or making permanent, those not duly appointed as
per the constitutional scheme.?(emphasis in original)
A case of regularisation which thus attained finality and was not sub judice
would not come within the purview of exception to the rule contained in Para
53 of
the said judgment
. The appellants' case, thus, does not come within the
purview thereof. Only those cases where regularisations had already been made
were not to be reopened. It is not in dispute that services of the appellants
were terminated as far back as in 1987 and they did not question the legality
or validity of the said order.

It is only after the decision of this Court in

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

18. The appellants, in our opinion, thus, neither in law nor in equity
were entitled to be reinstated in service. The decision of this Court in

Jacob
case [(1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15 ATC 697] being
not applicable to the case of the appellants, we are bound by the
ratio
laid
down in
Umadevi [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . So far as Para 53 of
the judgment of the Constitution Bench in the said case is concerned, the
same has been considered by this Court in a large number of decisions.

In

Punjab Water Supply & Sewerage Board v. Ranjodh Singh
[(2007) 2 SCC 491 :

(2007) 1 SCC (L&S) 713] it was held: (SCC p. 498, para 15)
?15. The question came up for consideration before a Constitution Bench of
this Court in
State of Karnataka v. Umadevi
(3) [(2006) 4 SCC 1 : 2006 SCC
(L&S) 753] wherein it was held that no person who was temporarily or casually
been employed could be directed to be continued permanently. It was opined
that by doing so it would be creating another mode of public employment which
is not permissible.?

[See
Employees' Union v. Mineral Exploration Corpn. Ltd.
[(2006) 6 SCC 310 :
SCC (L&S) 1318] , State of M.P. v. Lalit Kumar Verma
[(2007) 1 SCC 575 :

(
2007) 1 SCC (L&S) 405] and Post Master General v. Tutu Das (Dutta
) [(2007) 5
SCC 317 : (2007) 2 SCC (L&S) 179] .]?

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

107. Now, considering the facts and circumstances of the case on hand,
it remains that the writ petitioners were appointed as daily rated employees
for a particular period and, this Court has to draw an inference that all the
Government orders passed subsequent to the Constitution Bench Judgment, if
runs contrary to the legal principles settled by the Constitution Bench,
would become invalid and the same cannot be implemented or followed. In
other words, it is to be noted that the Government has no authority to issue
any orders granting regularization, permanent absorption or appointment in
violation of the Constitutional schemes and in violation of the recruitment
rules in force. The power of the Government in this regard is certainly
abrogated by the principles settled by the Constitution Bench in the ?
Umadevi

Case?. Such being the factum of the case, the State Government is to be
precluded as well as its authority are to be regularized in respect of
appointing employees in contravention with the recruitment rules in force and
effecting appointments through back doors.

108. This Court has to place on record that the State is bound to over
see the appointments made in this regard illegally or irregularly by the
competent authorities and the same is to be construed as the fraud on the
Constitution and such authorities are liable for prosecution under the
Discipline and Appeal Rules and other relevant rules. The State shall be
vigilant in this regard and the authorities indulging in such activities of
exercising powers by issuing illegal or irregular appointments are to be
booked under the Discipline and Appeal Rules. No leniency can be shown by
the State in this regard, since these all are the Constitutional principles
required for the State to be followed and the State being a modal employer,
has to implement the Constitutional perspectives and the principles
scrupulously and without any deviation.

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

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

9. In view of the legal discussions made, no further adjudication is
required in this regard. Accordingly, this writ petitions stands dismissed.
No costs.

To
The Commissioner
Municipal Administration,
Ezhilagam, Cheppauk,
Chennai- 5.

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