Patna High Court
IndiaversusRajesh Kumar
- Decided
- Disposal
- DISMISSED
Holding
The Court held that the petitioner’s long‑standing contractual appointment, made against a vacant post and continued for over two decades, qualifies as an irregular appointment eligible for regularisation under the one‑time measure, and therefore the appeal is dismissed.
Summary
The petitioner was appointed on a contractual basis as a lecturer in 2001, received ex‑post‑facto approval and his contract was repeatedly extended for more than two decades. He sought regularisation and consequential benefits, arguing that his long, continuous service made him eligible for the one‑time regularisation measure recognised by the Supreme Court. The Single Judge ordered his regularisation, but the Union appealed, contending that new pleas were raised and that the appointment was illegal. The High Court examined whether fresh grounds could be introduced at the letters‑patent stage, and whether a contractual appointment that violated recruitment rules could be regularised. It held that the appellant could not raise new issues, that the petitioner’s appointment, though irregular, fell within the scope of the one‑time regularisation scheme, and that regularising him would not give undue preference over candidates selected in 2011. Consequently, the appeal was dismissed.
Issues considered
- Whether pleas not raised before the learned Single Judge can be permitted to be urged for the first time at the appellate stage in a Letters Patent Appeal.
- Whether the appointment and services of the writ‑petitioner against a vacant post of Lecturer on contractual basis are liable to be regularized, considering his long and continuous service.
- Whether the writ petitioner, having been declared unsuccessful in the recruitment process of 2011 for regular appointment, can be granted any preference over successful candidates, and whether his services can be regularized with effect from the date of his initial contractual appointment.
Subjects
- regularisation
- contractual appointment
- letters patent appeal
- equality
- service law
- one‑time regularisation
- procedural irregularities
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.14 of 2025
In
Civil Writ Jurisdiction Case No.13373 of 2023
======================================================
1. The Union of India through the Secretary, Ministry of Cooperation,
Government of India, New Delhi.
2. The Additional Secretary, Ministry of Cooperation, Govt. of India-cum-
President, Executive Council, National Council for Co-operative Training
(N.C.C.T), 3-Siri Institutional Area, August Kranti Marg, New Delhi-
110016.
3. The Secretary, National Council for Co-operative Training (N.C.C.T), 3-Siri
Institutional Area, August Kranti Marg, New Delhi-110016.
4. The Joint Director (Personnel), National Council for Co- operative Training
(N.C.C.T), 3-Siri Institutional Area, August Kranti Marg, New Delhi-
110016.
5. The Director, D.N.S. Regional Institute of Co-operative Management,
Shastri Nagar, Patna- 800023
... ... Appellants
Versus
(Dr.) Rajesh Kumar S/o Sri Narendra Kumar, Resident of X- 12, Ashiana
Nagar, Phase-1, P.S.-Rajiv Nagar, District- Patna.
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. K N Singh, Sr. Adv.
Mr. Anshay Bahadur Mathur, Adv.
Mr. Shivaditya Dhari Sinha, Adv.
Mr. Abhinav, Adv.
For the Respondent/s : Mr. Lalit Kishore, Sr. Adv.
Mr. Arbind Kumar Singh, Adv.
Mr. Kanishka Shankar, Adv.
For the State : Mr. Rishikesh Ojha, Adv.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)
Date : 17-04-2026
We have extensively heard Mr. K N Singh, learned
Senior Counsel duly assisted by Mr. Anshay Bahadur Mathur,
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learned counsel on behalf of the appellants and Mr. Lalit
Kishore, learned Senior Counsel with Mr. Kanishka Shankar,
learned counsel for the respondents. The State is represented
through Mr. Rishikesh Ojha, learned counsel.
2. The present intra-court appeal is preferred against
the order dated 02.12.2024 as well as its modified order dated
20.12.2024 passed by the learned Single Judge of this Court in
CWJC No. 13373 of 2023, directed the respondent no. 3 (the
Secretary, National Council for Co-operative Training)
(hereinafter referred to as, “NCCT”) to take steps to give equal
treatment to the writ petitioner at par with the other persons,
who have been selected following the law laid down by the
Hon’ble Apex Court and regularize the petitioner on the post of
Lecturer, from the date of his eligibility or at least from the date
other Lecturers have been appointed by obtaining expeditious
approval, in view of the admitted fact that the petitioner has
completed more than two decades of service.
3. The writ petitioner is also held to be entitled for all
consequential benefits and the arrears of pay and accordingly,
the respondent no. 3 was directed to ensure the payment of the
same within stipulated period of three months.
4. The aforenoted order has further been modified to
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the extent that other Lecturers, who were appointed in the year
2011 are differently placed while the writ petitioner is entitled to
be regularized from the date of his initial appointment i.e.
06.11.2001 on contract basis, which was not incidental but
integral and continuous for over more than two decades.
5. The relevant facts, which are necessary for the
adjudication of the present appeal are summarized hereinbelow,
for proper appreciation of the challenge led before this Court.
(i) The petitioner having Post Graduate degree in
Public Administration, subsequently awarded with Ph.D. degree
on “Management and Administration of Rural Co-operative in
Bihar”, applied for his appointment as Lecturer at DNS
Regional Institute of Co-operative Management, Shastri Nagar,
Patna. After due scrutiny, he was invited to appear for an
interview, wherein he was declared successful and subsequently
offered appointment to the post of Faculty Member on a purely
contractual basis, vide Office Order dated 03.11.2001
(Annexure-1 to the writ petition). In pursuant to the aforenoted
office order, the petitioner submitted his joining and
subsequently vide letter dated 21.07.2005, the Director, DNS
Regional Institute of Co-operative Management, Shastri Nagar,
Patna sought for ex-post-facto approval of the appointment of
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the petitioner along with other similarly situated employees and
accordingly, the ex-post-facto approval has been accorded by the
Regional Director vide Annexure-4 to the writ petition.
(ii) Subsequently, in the year 2011, a vacancy for the
post of 30 Lecturers was advertised by the Institute in which the
petitioner had also applied and participated, but failed to qualify.
In the meanwhile, the contract period of the petitioner was
extended, time to time, by different letters and lastly vide letter
dated 14.01.2023, it was extended for a further period of 11
months with effect from 16.01.2023. The petitioner, who has
been continuing since long submitted representations before all
the higher authorities, including before the Hon’ble Minister of
NCCT for absorption of his service and/or salary at the initial
grade of employees of similar grade.
(iii) The petitioner having found no response on his
representations has approached this Court by filing CWJC No.
8197 of 2023 with identical prayer of regularization of service.
The learned Single Judge vide its order dated 13.06.2023
disposed off the writ petition with a direction to the respondent
Institute to consider the case of the petitioner in light of the law
laid down by the Hon’ble Apex Court as well as this Court, after
giving him due opportunity of hearing and to pass a reasoned
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order within stipulated period.
(iv) In view of the direction of this Court passed in
CWJC No. 8197 of 2023, the petitioner filed a representation
before the concerned authority. However, the prayer of the
petitioner came to be rejected vide order dated 10.08.2023
issued by the Secretary, NCCT. Aggrieved, the petitioner
preferred CWJC No. 13373 of 2023, challenging the order dated
10.08.2023 on various grounds, inter alia, that respondent no. 3
(The Secretary, NCCT) denied the regularization of the
petitioner ignoring the judgment passed by the Hon’ble
Supreme Court in the case of Narendra Kumar Tiwary & Ors.
-Vrs.- State of Jharkhand & Ors., reported in (2018) 8 SCC
238, as also the concerned respondent failed to consider the
mandate of the Constitution Bench rendered in the case of
Secretary State of Karnataka & Ors. -Vrs.- Uma Devi (3) &
Ors., reported in (2006) 4 SCC 1 whereby specific direction has
been given to take steps to regularize those, who have worked
for ten years or more against the duly sanctioned post, as one
time measure.
(v) The respondent no. 5 (the Director, DNS Regional
Institute of Co-operative Management, Shastri Nagar, Patna)
entered his appearance and filed a counter affidavit stating
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therein that the petitioner was duly appointed on contractual
basis with a specified terms and conditions, wherein there is no
provision for regularization of service and the judgments over
which the writ petitioner had placed reliance are not applicable.
(vi) The learned Single Judge having heard the parties
have been pleased to dispose off the writ petition on 02.12.2024
with a direction to take steps to give equal treatment to the
petitioner with other identically situated persons and regularize
him on the post of Lecturer, which order was later on modified
vide order dated 20.12.2024 to the extent that other Lecturers,
who were appointed in the year 2011 are differently placed,
while the petitioner is entitled to be regularized from the date of
his initial appointment i.e. 06.11.2001 on contract basis, which
was not incidental but integral and continuous for over more
than two decades.
“This is the order, which is put to challenge before
this Court by filing the present intra-court appeal”.
6. Mr. K N Singh, learned Senior Counsel while
assailing the judgment/order of the learned Single Judge has
primarily submitted that the aforesaid judgment/order has been
passed without having extended the opportunity to file a
detailed counter affidavit by the Union of India. So far as
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respondent no. 5 in the writ petition is concerned, he is none
else but the Director, DNS Regional Institute of Co-operative
Management, Shastri Nagar, Patna and has not placed the entire
facts. Had the Union of India be given proper opportunity, it
would have been able to bring on record the entire factual
position as to why the petitioner is not entitled for his
regularization.
7. Learned Senior Counsel, for the appellants, further
submitted that the learned Single Judge failed to appreciate that
the appointment of the writ petitioner-respondent herein was not
made through the proper channel or by following the process of
open selection. Rather, the Director, DNS Regional Institute of
Co-operative Management, Shastri Nagar, Patna, received the
application of the writ petitioner along with his bio-data without
obtaining approval from the Administration and Finance Sub-
Committee of NCCT and, as such, the appointment is apparently
contrary to Rule 3.6 of the Service Recruitment and Promotion
Rules, 1994 (hereinafter referred to as the “Rules, 1994”) of
NCCT.
8. In terms of Clause 2.1 of the Rules, 1994; the
Director General/the Executive Vice Chairman of the NCCT
was the appointing authority for Group-B employees, whereas
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appointment of the respondent was done and approved by
respondent no. 5 in an illegal manner. The writ petitioner was
also not carrying the required qualification for the post of
Lecturer, inasmuch as, for the post on which the petitioner was
appointed on contract basis, the required qualification was Post
Graduation in Economics/ Agriculture/ Business
Administration/ Cooperation/ LLM/ MCA or M.Tech in
Computer Science, whereas the petitioner was having the
qualification of Post Graduation in Public Administration.
9. Admittedly, the petitioner was appointed on
contractual basis on 03.11.2001 and after expiry of the
contractual period, the services of the writ petitioner was
discontinued on twenty two occasions.
10. The learned Senior Counsel, Mr. Singh, further
urged that the finding of the learned Single Judge, to the effect
that the petitioner would fall within the category of an irregular
appointment, is wholly erroneous. On the contrary, in light of
the judgment rendered in State of M.P. & Ors. v. Lalit Kumar
Verma, reported in (2007) 1 SCC 575, particularly paragraph 18
thereof, the appointment of the petitioner is patently illegal and,
therefore, cannot be regularized in terms of paragraph 53 of the
judgment in Secretary, State of Karnataka v. Uma Devi (3)
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(supra).
11. Learned Senior Counsel further submits that the
finding of appointment of the petitioner on duly vacant
sanctioned post is again contrary to the record, because in the
year 2011 vacancy for the post of 40 Lecturers were advertised,
in which the writ petitioner and other candidates have appeared
but failed to qualify and, as such, the qualified persons were
appointed against vacant and sanctioned post only.
12. Taking this Court through the decisions rendered
in the case of Uma Devi (3) (supra), Mr. K N Singh, learned
Senior Counsel submitted with all vehemence that the Hon’ble
Supreme Court clarified that if the appointment itself is
infraction of the rules or in violation of the constitutional
provisions, it cannot be regularized. Moreover, one time
exercise should consider all daily-wage/ad-hoc/casual
employees who had put in ten years of continuous service as on
10.04.2006, without availing the protection of any interim
orders or any Court or Tribunals. However, it is apparent that
the petitioner was brought in service on contractual post on
06.11.2001 and on the cut-off date, he was having 4 ½ years of
service.
13. Referring to a Full Bench decision of this Court in
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the case of Ram Sevak Yadav Vs. The State of Bihar & Ors.,
reported in (2013) 1 PLJR 964, it is submitted that any
appointment not preceded by any advertisement or selection
process or calling name from employment exchange against a
sanctioned post manifests that it was a backdoor appointment
doled out to him as an individual favour. The illegal and
irregular appointment both have different connotations while
latter denotes rudimentary compliance but with infractions
which could be remedied. The former denotes an action contrary
to law from the very inception making it void ab-initio. Thus,
those who came in through backdoor must go out through the
same door.
14. On the other hand, Mr. Lalit Kishore, learned
Senior Counsel for the respondent, dispelling the aforenoted
contentions, submitted that the very appointment of the
petitioner-respondent herein, was processed through scrutiny of
the application followed by interview by the Director, DNS
Regional Institute of Co-operative Management, Shastri Nagar,
Patna and further he sought an ex-post-facto approval
mentioning therein that such appointment was made against
vacant and sanctioned post; accordingly, ex-post-facto approval
was granted by respondent no. 3, the Secretary, NCCT, New
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Delhi.
15. Learned Senior Counsel for the respondent further
contended that the extension of the contractual period
continuously for over a two decades clearly indicates that the
services rendered by the petitioner was duly appreciated and
there was a need for such post, over which the petitioner has
been satisfactorily discharging his duty. The rejection of the
claim of the writ petitioner for regularization on the ground of
absence of any rule for regularization is unsustainable, in view
of the dictum of the Hon’ble Supreme Court in the case of Uma
Devi (3) (supra), where it is ruled that if an employee is
appointed against a sanctioned post and has been continuously
discharging his duty without any interruption, in such
circumstances, his case should be considered for regularization
as one time measure.
16. Learned Senior Counsel for the respondent further
emphasised that the scope of Uma Devi (3) (supra) was duly
expanded by subsequent judgments, including Jaggo Vs. Union
of India, reported in 2025 (1) PLJR (SC) 165, Vinod Kumar &
Ors. Etc. -Vrs.- Union of India & Ors., reported in (2024) 1
SCR 1230 and recently in the case of Shripal & Anr. -Vrs.-
Nagar Nigam, Ghaziabad (Civil Appeal No. 8157 of 2024), as
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well as Bhola Nath v. The State of Jharkhand and Ors.,
reported in 2026 INSC 99, wherein even contractual employees
rendering continuous, unblemished service discharging
perennial and essential duties are directed to be regularized from
the date of employment; as the mandate of Uma Devi (3)
(supra) cannot serve as a shield to justify exploitative
engagements persisting for years.
17. In the writ petition, moreover, the plea of
appointment having been made by unauthorized authority and
petitioner lacks requisite qualification had never been raised by
the appellant at any stage of proceedings. Hence, the appellant
cannot be allowed to raise all the new pleas at the stage of
appeal.
18. Adverting to the aforesaid facts, Mr. Lalit Kishore,
learned Senior Counsel, lastly submits that the grounds which
have been raised by the appellants find no whisper in the
pleadings and arguments advanced before the learned Single
Judge, wherein all the appellants had appeared and duly heard,
besides sufficient opportunity was granted to file counter
affidavit. Thus, at this belated stage before appellate Court,
appellants are not permitted to make out a new case, especially
when no perversity is pointed out by them from the records of
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the case.
19. After having anxiously heard the learned Senior
Counsel appearing on behalf of the respective parties, the issues
arising for consideration before this Court are formulated as
under:
ISSUES
(i) Whether pleas not raised before the learned Single
Judge can be permitted to be urged for the first time at the
appellate stage in a Letters Patent Appeal, in the absence of any
adjudication thereon by the learned Single Judge?
(ii) Whether the appointment and services of the writ-
petitioner against a vacant post of Lecturer on contractual basis
are liable to be regularized, considering his long and continuous
service?
(iii) Whether the writ petitioner, having been declared
unsuccessful in the recruitment process of 2011 for regular
appointment, can be granted any preference over successful
candidates, and whether his services can be regularized with
effect from the date of his initial contractual appointment?
20. Having formulated the aforesaid issues for
consideration, this Court now proceeds to examine the same,
issue-wise, in the light of the pleadings on record, the
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submissions advanced by the learned counsel for the parties, and
the settled principles of law governing the field.
21. Issue No.(i): Whether pleas not raised before the
learned Single Judge can be permitted to be urged for the first
time at the appellate stage in a Letters Patent Appeal, in the
absence of any adjudication thereon by the learned Single
Judge?
21.1 It is trite that pleadings constitute the foundation
of adjudication in writ proceedings, and the parties are bound by
their pleadings. The Court ordinarily adjudicates only upon the
issues arising from the pleadings on record. An appellate court,
particularly while exercising jurisdiction under Letters Patent,
does not permit wholly new pleas involving questions of fact or
mixed questions of fact and law to be raised for the first time,
unless such pleas go to the root of the matter and involve a pure
question of law not requiring any further factual inquiry.
21.2 The Hon’ble Supreme Court in National Textile
Corporation Limited v. Naresh Kumar Badrikumar Jagad &
Ors. [(2011) 12 SCC 695], has held that there is no quarrel with
the settled legal proposition that a new plea cannot be taken in
respect of any factual controversy whatsoever; however, a new
ground raising a pure legal issue for which no inquiry/proof is
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required, can be permitted to be raised before the court at any
stage of the proceedings.
21.3 In Chinta Lingam & Ors. v. Government of
India & Ors. [(1970) 3 SCC 768], the Hon’ble Supreme Court
has held that unless a proper factual foundation is laid in the
pleadings, no argument can be permitted to be raised on that
point. It has further been observed that in the absence of specific
pleadings, no evidence can be led, as it is a settled principle of
law that no amount of evidence can be looked into in the
absence of corresponding pleadings. [vide Syed and Company
and Ors. v. State of Jammu and Kashmir & Ors., 1995, Supp
(4) SCC 422].
21.4 Recently, a Coordinate Bench of this Court in
Binod Kumar Mishra v. The Indian Oil Corporation Limited
& Ors. [2026 (2) BLJ 508], of which one of us, Hon’ble the
Chief Justice, was a member, had occasion to consider a similar
issue. The learned Division Bench, while examining whether an
appellant in a Letters Patent Appeal can be permitted to raise a
plea which was neither pleaded nor urged in the earlier
proceedings, and whether such plea would be barred by the
doctrine of constructive res judicata and the principle of finality
of pleadings, answered the issue in the following terms:
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“It is equally well settled that an
appellate court, especially in Letters Patent
jurisdiction, does not ordinarily permit a wholly
new factual or mixed question of fact and law to
be raised for the first time, unless it goes to the
root of jurisdiction or involves a pure question
of law not requiring further factual inquiry. The
plea of suppression under Clause 10 is a matter
which ought to have been specifically pleaded
and adjudicated upon in the writ proceedings.
To entertain such a contention at this stage
would not only enlarge the scope of the appeal
but also cause prejudice to respondent no. 10,
who had no occasion to meet such a distinct
plea before the learned Single Judge.
Therefore, this Court is of the
considered view that the appellant is not
entitled to raise, at the stage of the present
Letters Patent Appeal, a new and independent
ground alleging violation of Clause 10 of the
advertisement, when such plea was neither
specifically pleaded nor urged in the earlier
proceedings. The attempt is clearly hit by the
principles analogous to constructive res
judicata and the settled doctrine of finality of
pleadings. Accordingly, the issue is answered
against the appellant.”
21.5 In the present case, the principal submission of
the learned Senior Counsel for the appellant is that he was not
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afforded adequate opportunity to file a counter-affidavit so as to
bring all relevant facts on record, and that such facts have now
been placed before this Court in the present Letters Patent
Appeal. However, this contention does not persuade this Court
to undertake an adjudication on issues which were neither raised
nor dealt with by the learned Single Judge.
21.6 In such circumstances, the appropriate remedy
available to the appellants was to approach the learned Single
Judge by filing an appropriate application and placing the entire
material on record. Having failed to do so, the appellants cannot
be permitted to raise such issues for the first time in the present
appeal.
21.7 This Court, therefore, is confined to the findings
recorded in the impugned order and the materials that were
available before the learned Single Judge. Accordingly, while
answering Issue No. (i), this Court proceeds to consider only
those issues which arise from the record before the learned
Single Judge and the impugned judgment passed on that basis.
22. Issue No.(ii): Whether the appointment and
services of the writ-petitioner against a vacant post of Lecturer
on contractual basis are liable to be regularized, considering his
long and continuous service?
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22.1 The facts are not in dispute that, vide office order
dated 03.11.2001 issued by the Regional Director, DNS
Regional Institute of Cooperative Management, the writ
petitioner was appointed as a faculty member purely on
contractual basis on a consolidated salary, with a clear
stipulation that the engagement could be terminated at any time
without assigning any reason. Subsequently, the names of the
employees, including the writ petitioner, who were appointed on
contractual basis, were forwarded for approval to the Chairman
of the Management Committee of the Institute. The records
indicate that such appointments were made against vacant posts
within the sanctioned strength, and the Secretary, NCCT, New
Delhi, thereafter acceded to the request and conveyed ex post
facto approval for the appointment of five employees on
contractual basis, as contained in Annexure-4 to the writ
petition. It is also admitted that the services of the petitioner
have been continuously extended from time to time since
inception i.e. from 03.11.2001, except some technical breakage
caused due to issuance of delayed extension letters. In
particular, his engagement was recently extended for a period of
11 months from 16.02.2022 to 15.01.2023 vide office order
dated 14.02.2022 (Annexure-5), and thereafter further extended
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for a similar period of 11 months with effect from 16.01.2023
on the same terms and conditions vide order dated 14.01.2023.
22.2 The aforesaid facts clearly indicate that the writ
petitioner has been continued on the said post for over a period
of more than two decades. In such circumstances, it reasonably
follows that the duties discharged by the petitioner were of a
regular and perennial nature and integral to the day to day
functioning of the institution.
22.3 In the aforesaid factual background, this Court
now proceeds to consider the mandate of law as enunciated by
the Hon’ble Supreme Court in a catena of decisions; and at the
outset, takes note of the Constitution Bench judgment in
Umadevi (3)(supra).
The said judgment arose out of a reference on account
of divergence of views expressed by different Benches of the
High Court of Karnataka. The conflict essentially related to the
right, if any, of employees appointed by the State or its
instrumentalities on temporary, daily wage or casual basis, to
seek a writ of mandamus for their absorption or regularization in
service.
While in certain decisions such claims were
entertained, in others the action of the Government in
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restraining such appointments and regulating the mode of entry
into public service was upheld. When the matter came up before
a Bench of two Hon’ble Judges, it was referred to a larger
Bench, and eventually, in view of conflicting decisions even by
Benches of three Judges, the issue was authoritatively settled by
the Constitution Bench.
22.4 The Hon’ble Constitution Bench, after an
exhaustive consideration of the earlier precedents, underscored
that adherence to the rule of equality in public employment is a
basic feature of the Constitution. It was observed that since the
rule of law forms the core of the Constitution, the Courts would
be precluded from issuing directions that would result in
violation of Articles 14 and 16.
It was held that unless an appointment is made in
accordance with the relevant recruitment rules and through a
process of open competition amongst eligible candidates, such
appointment would not confer any right upon the appointee.
The Court further clarified that a contractual
appointment would come to an end in terms of the contract, and
similarly, an engagement on daily wage or casual basis would
cease upon its discontinuation. Mere continuation of a
temporary or casual employee beyond the term of appointment
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would not entitle such employee to absorption or regularization,
if the initial appointment itself was not made in accordance with
the prescribed procedure.
22.5 While laying down the aforesaid legal position,
the Hon’ble Constitution Bench, however, carved out a limited
exception by providing for a one-time measure in respect of
those employees who had been appointed irregularly and had
continued in service for ten years or more against duly
sanctioned posts, without the protection of any interim orders
passed by Courts or Tribunals, and issued directions in that
regard, which are as follows:
“One aspect needs to be clarified.
There may be cases where irregular
appointments (not illegal appointments) as
explained in S.V. Narayanappa R. N.
Nanjundappa and B.N. Nagarajan 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 regularization 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
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abovereffered 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-tme measure, the services of such
irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not
under cover or 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 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.”
22.6 After going through the decision in the case of
Uma Devi (3) (supra), it is evident that if the appointment itself
is in infraction of rules and if it is in violation of the provisions
of the Constitution, illegality cannot be regularized.
Rectification and regularization is possible of an act which is
within the power and province of the authority but there has
been some non-compliance with procedure and manner which
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does not go to the root of the appointment, there cases may be
considered for regularization as one time measure in terms with
the afore-noted mandate.
22.7 The exception contained in para-53 of the
judgment in Umadevi (3) (supra), wherein the Hon’ble
Constitution Bench directed that a one-time exercise for
regularization be undertaken within a period of six months, i.e.,
from 10.04.2006, subsequently came up for consideration before
the Hon’ble Supreme Court in State of Karnataka v. M.L.
Kesari & Ors. [(2010) 9 SCC 247], wherein the Hon’ble Court
clarified that those eligible employees who had been left out of
consideration for regularization, for any reason, within the
stipulated period, would also be entitled to be considered,
provided they satisfied the conditions laid down in Umadevi (3)
(supra). It was further observed that if the employer had not
undertaken the exercise of regularization within the prescribed
period, or had undertaken it only in respect of a limited number
of employees, the remaining eligible employees could not be
denied consideration.
22.8 Subsequently, in a series of decisions, including
Upendra Singh v. State of Bihar [(2018) 3 SCC 680], the
Hon’ble Supreme Court has reiterated the principles laid down
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in Umadevi (3) (supra), holding that the question of regularization
of employees appointed dehors the rules does not arise, except
in cases where such employees have worked for more than ten
years against duly sanctioned posts, without the protection of
any interim order passed by a Court or Tribunal.
22.9 A similar issue relating to regularization recently
came up for consideration before the Hon’ble Supreme Court in
Vinod Kumar v. Union of India [(2024) 9 SCC 327], wherein
the Hon’ble Court, upon considering the plethora of precedents
on the subject, observed that “the essence of employment and
the rights thereof cannot be merely determined by the initial
terms of appointment when the actual course of employment has
evolved significantly over time. The continuous service of the
appellants in the capacities of regular employees, performing
duties indistinguishable from those in permanent posts, and their
selection through a process that mirrors that of regular
recruitment, constitute a substantive departure from the
temporary and scheme-specific nature of their initial
engagement. Moreover, the appellants' promotion process was
conducted and overseen by a Departmental Promotional
Committee and their sustained service for more than 25 years
without any indication of the temporary nature of their roles
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being reaffirmed or the duration of such temporary engagement
being specified, merits a reconsideration of their employment
status.”
22.10 Further, in Jaggo v. Union of India [2024 SCC
OnLine SC 3826], the Hon’ble Supreme Court, upon a careful
consideration of the various aspects of the matter and the
submissions advanced, observed that long and uninterrupted
service of employees, extending well beyond ten years, cannot
be brushed aside merely by describing their initial appointment
as part-time or contractual. It was held that the true essence of
such employment is required to be assessed in the light of the
sustained contribution of the employees, the integral and
perennial nature of the duties discharged by them, and in the
absence of any material to indicate that their entry in service
was illegal or through any surreptitious means.
It would be apposite to reproduce the relevant
paragraphs, which are quoted hereinbelow:
“20. It is well established that the
decision in Uma Devi (supra) does not intend to
penalize employees who have rendered long
years of service fulfilling ongoing and
necessary functions of the State or its
instrumentalities. The said judgment sought to
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prevent backdoor entries and illegal
appointments that circumvent constitutional
requirements. However, where appointments
were not illegal but possibly "irregular," and
where employees had served continuously
against the backdrop of sanctioned functions
for a considerable period, the need for a fair
and humane resolution becomes paramount.
Prolonged, continuous, and unblemished
service performing tasks inherently required on
a regular basis can, over the time, transform
what was initially ad-hoc or temporary into a
scenario demanding fair regularization. In a
recent judgment of this Court in Vinod Kumar v.
Union of India, it was held that held that
procedural formalities cannot be used to deny
regularization of service to an employee whose
appointment was termed "temporary" but has
performed the same duties as performed by the
regular employee over a considerable period in
the capacity of the regular employee.”
22.11 Further, in Shripal & Ors. v. Nagar Nigam,
Ghaziabad [2025 SCC OnLine SC 221], the Hon’ble Supreme
Court has emphasized that where the nature of work is
perennial, and the employees have been engaged for long
durations, such engagements cannot be treated as purely casual
or short-term. It has been observed that the principle of “equal
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pay for equal work” cannot be lightly disregarded where
employees have discharged duties akin to those of regular
employees for extended periods. The Court has also cautioned
State authorities and instrumentalities against the misuse of
temporary or contractual engagements in a manner that results
in exploitation of employees.
22.12 In Dharam Singh v. State of U.P. [(2025) SCC
OnLine SC 1735], the Hon’ble Court strongly deprecated the
culture of “ad hocism” adopted by States in their capacity as
employer. The Court criticized the practice of outsourcing and
informalizing recruitment as a means to evade regular
employment obligations, observing that such measures
perpetuate precarious working conditions while circumventing
fair and lawful engagement practice.
22.13 It would be worth benefiting to take note of the
recent verdict, in the case of Bhola Nath (supra), wherein the
Hon’ble Supreme Court while adjudicating the appeal preferred
by the appellants, whose cases were dismissed by the learned
Single Judge as well as Division Bench of Jharkhand High
Court on account of their engagement being purely contractual
in nature and continued in service by virtue of periodic removal
for specified terms and therefore did not acquire any enforceable
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right to seek regularization in absence of such scheme, set aside
both the judgments and allowed the appeal by observing as
follows:
“13.9. The State must remain
conscious that part-time employees, such as the
appellants, constitute an integral part of the
edifice upon which the machinery of the State
continues to function. They are not merely
ancillary to the system, but form essential
components thereof. The equality mandate of
our Constitution, therefore, requires that their
service be reciprocated in a manner free from
arbitrariness, ensuring that decisions of the
State affecting the careers and livelihood of
such part-time and contractual employees are
guided by fairness and reason.
13.10. In the aforesaid backdrop, we
are unable to persuade ourselves to accept the
respondent-State's contention that the mere
contractual nomenclature of the appellants'
engagement denudes constitutional protection.
The State, having availed of the appellants'
services on sanctioned posts for over a decade
pursuant to a due process of selection and
having consistently acknowledged their
satisfactory performance, cannot, in the
absence of cogent reasons or a speaking
decision, abruptly discontinue such engagement
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by taking refuge behind formal contractual
clauses. Such action is manifestly arbitrary,
inconsistent with the obligation of the State to
act as a model employer, and fails to withstand
scrutiny under Article 14 of the Constitution.
FINAL CONCLUSION:
14. In light of our discussion, in the
foregoing paragraphs, we summarize our
conclusions as follows:
I. The respondent-State was not
justified in continuing the appellants on
sanctioned vacant posts for over a decade
under the nomenclature of contractual
engagement and thereafter denying them
consideration for regularization.
II. Abrupt discontinuance of such
long-standing engagement solely on the basis of
contractual nomenclature, without either
recording cogent reasons or passing a speaking
order, is manifestly arbitrary and violative of
Article 14 of the Constitution.
III. Contractual stipulations
purporting to bar claims for regularization
cannot override constitutional guarantees.
Acceptance of contractual terms does not
amount to waiver of fundamental rights, and
contractual stipulations cannot immunize
arbitrary State action from constitutional
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scrutiny.
IV. The State, as a model employer,
cannot rely on contractual labels or mechanical
application of Umadevi (supra) to justify
prolonged ad-hocism or to discard long-serving
employees in a manner inconsistent with
fairness, dignity and constitutional governance.
V. In view of the foregoing discussion,
we direct the respondent-State to forthwith
regularize the services of all the appellants
against the sanctioned posts to which they were
initially appointed. The appellants shall be
entitled to all consequential service benefits
accruing from the date of this judgment.”
22.14 In the backdrop of the aforesaid legal position,
this Court finds that the writ petitioner, though initially
appointed on contractual basis, was granted ex post facto
approval, and his continued engagement on the said post cannot
be faulted on the ground of non-adherence to procedural
requirements and lacking eligibility. The long continuous
service over a considerable period clearly suggest, the duty,
substantive in nature, akin to permanent employees. Mere
contractual nomenclature of the petitioner engagement cannot
denude him from constitutional protection. Hence, the reliance
on procedural formalities at the outset cannot be used to deny
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substantive rights, that have accrued to the writ petitioner on
account of sustained service more than 23 years.
22.15 This Court is also conscious of the fact that in
the year 2011, the writ petitioner had participated in the process
of regular appointment along with other candidates, but was
declared unsuccessful. However, despite the same, he has been
allowed to continue in service for over a considerable period
extending beyond a decade and, in fact, he has served the
institution for more than two decades unblemishedly without
any interruption, consistently acknowledged his satisfactory
service and also fortified the case of the writ petitioner
regarding his perennial nature of services subserving the need of
institution.
It is not the case of the respondents that any decision
was ever taken to discontinue the writ petitioner on the ground
that his initial appointment was dehors the rules. On the
contrary, the materials on record, particularly the
communications seeking and granting ex post facto approval, as
well as the repeated extensions of his engagement, clearly
indicate and strengthen the claim of the writ petitioner that he
was appointed against a vacant sanctioned post of Lecturer and
has been continuously discharging his duties for over two
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decades.
22.16 In such circumstances, non-consideration of the
petitioner’s case for regularization, especially at this stage,
would amount to denial of legitimate benefits of regularization
and basic service security. Such a course is not expected of a
welfare State or its instrumentalities, which are under a
constitutional obligation to act fairly and to avoid exploitative
employment practices. The action of the Institution in engaging
the writ petitioner during his youth to discharge duties, and
thereafter, upon his rendering long and dedicated service,
leaving him to fend for himself, particularly when he has
attained the age of superannuation and no further employment
opportunities remain, cannot be countenanced in law. Such
conduct is not only in complete derogation of the principle of
equality enshrined under Article 14 of the Constitution, but also
suffers from the vice of arbitrariness and exploitation. The
highest court of the land, as noted above, has also ruled that
denial of consideration for regularization on account of
nomenclature of contractual appointment of the persons, who
have been working against a sanctioned post for over a decade
is wholly unjustified and fails to withstand the scrutiny of
Article 14 of the Constitution of India.
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22.17 Accordingly, in view of the aforesaid
discussions, this Court is of the considered view that the writ
petitioner, having been appointed against a vacant post and
having rendered long and continuous service for more than two
decades, is entitled to regularization of his services, in the facts
of the present case. Issue no.(ii) is answered accordingly.
23. Issue No. (iii): Whether the writ petitioner, having
been declared unsuccessful in the recruitment process of 2011
for regular appointment, can be granted any preference over
successful candidates, and whether his services can be
regularized with effect from the date of his initial contractual
appointment?
23.1. Once this Court has come to the conclusion that
the writ petitioner was appointed against a vacant post of
Lecturer and has rendered long, continuous and integral service
for more than two decades, even on contractual basis, making
him fit for regularization, his participation in the recruitment
process of the year 2011 would not disentitle him from such
consideration, nor would it amount to granting him any
premium over others if his services are regularized from the date
of his initial appointment.
The claim of the writ petitioner stands on an entirely
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different footing. Though he participated in the recruitment
process of 2011, but his claim for appointment/absorption was
not founded upon the said selection process, albeit on the basis
of his long and continuous service since the year 2001 against a
sanctioned post.
It is also not the case of the appellants that the
candidates selected in the year 2011 were similarly situated or
had been appointed in a manner akin to the respondent/writ
petitioner. Therefore, no parity can be drawn between the
petitioner and those appointed through the regular recruitment
process of 2011.
23.2 In the aforesaid premises, the appellants have
failed to establish any parity between the respondent/writ
petitioner and the candidates selected in the year 2011 so as to
deny him the benefit of regularization.
23.3 Accordingly, this Court is of the considered view
that regularization of the respondent/writ petitioner would not
amount to granting him any undue advantage or premium over
others. Issue No. (iii) is answered accordingly.
24. Having answered all the issues, and upon
consideration of the judgment and order passed by the learned
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Single Judge, this Court does not find any perversity or patent
illegality warranting interference in the present Letters Patent
Appeal.
25. Accordingly, the present Letters Patent Appeal
stands dismissed.
26. There shall be no order as to cost(s).
(Harish Kumar, J)
(Sangam Kumar Sahoo, CJ) : I agree.
(Sangam Kumar Sahoo, CJ)
rohit/-
AFR/NAFR NAFR
CAV DATE 25.03.2026
Uploading Date 18-04-2026
Transmission Date
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