Holding

The question of regularisation on the ground of long rendition of service is governed by the principles laid down in Secretary, State of Karnataka v. Uma Devi, and therefore the matter must be remitted to the High Court for fresh consideration in light of that decision.

Summary

The respondents, who were employed as data‑entry operators on a contract basis, filed an application before the Central Administrative Tribunal (CAT) under Section 19 of the Administrative Tribunals Act, 1985, seeking regularisation of their services on the ground of long rendition of service. The CAT directed that their cases be considered for appointment on a regular basis, an order which was upheld by the High Court when the employer challenged it by a writ petition. The employer appealed to this Court, contending that the order conflicted with the Supreme Court’s decision in Secretary, State of Karnataka v. Uma Devi (2006) which held that long service alone does not justify conversion of temporary or contractual employment into a permanent post. The Court examined the principles laid down in Uma Devi and observed that the issue of regularisation on the basis of long service is precisely the matter decided therein. Consequently, the appeal was allowed and the matter was remitted to the High Court to reconsider the respondents’ claim in the light of the Uma Devi judgment. No order as to costs was made.

Issues considered

Whether contract or temporary employees can be regularised on the ground of long rendition of service
Whether the order of the CAT and the High Court is contrary to the law laid down in Secretary, State of Karnataka v. Uma Devi
Whether a mandamus can be issued directing the State to make such employees permanent

Legislation cited

Administrative Tribunals Act, 1985s. 19

Subjects

regularisationcontract employeeslong serviceAdministrative Tribunals Actpublic service recruitmentmandamusArticle 14employment law

Judgment

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j

CHIEF COMMISSIONER OF INCOME TAX AND ORS. A
v.
SMT. SUSHEELA PRASAD AND ORS.

NOVEMBER 27, 2007
B
[DR.ARIJITPASAYAT AND
LOKESHWAR SINGH PANT A, JJ.]

Service Law-Regularization of service-Of contract
employees-On the ground oflong rendition ofservice-Courts below c
directing consideration of their regularization-On appeal, held:
Matter remitted to High Court for considering the matter in the light
ofUma Devi's case.

The respondents (employees on contact basis) had filed application D
before Central Administrative Tribunal, seeking regularization of their
services on the ground oflong rendition ofservice. The Tribunal directed
for considering their cases for appointment on regular basis. Writ petition
against the order was dismissed by High Court.
E
In appeal to this Court appellant-employer contended that the
order was contrary to the law laid down by Supreme Court in *Secretary,
State ofKarnataka and Ors. v. Uma Devi and Ors., [2006) 4 SCC 1.
Allowing the appeal and remitting the matter to High Court, the
.,, Court F

HELD: 1. The question of regularization on the ground oflong
rendition of service was the subject matter in Uma Devi's case.
Therefore, the matter is remitted to the High Court to consider the case
afresh in the light of the said decision. [Paras 8 and 9) [587-B; 590-A] G

Secretary, State o.fKarnataka and Ors. v. Uma Devi and Ors., [2006)
4sec1, followed.
ChiefCommissioner ofIncome Tax, Bhopal and Ors. v. Lama Jain
585 H
{

586 SUPREME COURT REPORTS [2007] 12 S.C.R.

A and Ors.. [2006 J 11 sec 350, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5422 of
2007.
From the final Judgment and Order dated 28.7.2005 of the High
B Court of Madhya Pradesh at Jabalpur in W.P. (S) No. 13440/2004.
R. Mohan. A.S.G. and B.V. Balaram Das for the Appellants.
Ravindra Srivastava and B.K. Satija for the Respondents.
The Judgment of the Court was delivered by
c
DR ARIJIT PASAYAT, J. I. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench
of the High Court of Madhya Pradesh at Jabalpur in Writ Petition
D No.13440 of 2004. The appellants had challenged the composite order
dated 13.11.1997 passed in OA No.69111995 and OA No.89/1996 by
the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (in short
'CAT'). The respondents had moved CAT under Section 19 of the
Administrative Tribunals Act. 1985 (in short 'the Act') seeking
E regularization of their services.
3. The stand of the respondents before the CAT was that they have
been on duties as Data Entry Operators on contract basis and were being
paid at a rate ofRs.10 per hour up to the maximum of Rs.50/- per day.
They have sought for regularization placing reliance on the factum of long
F rendition of service.
4. In response, the present appellants contended that the respondents
were not departmental employees and their grievances cannot be agitated
before the CAT. Placing reliance on some other decisions rendered by
G the CAT, the stand of the present appellants was turned down and direction
was given for considering their cases for appointment on regular basis.
5. A writ petition was filed before the High Court, by the appellants
which was dismissed by the impugned order.
H 6. In support of the appeal, learned counsel for the appellants
CHIEF COMMISSIONER OF INCOME TAX v. 587
SUSHEELA PRASAD (PASA YAT, J.]
submitted that the decision of the High Court is contrary to law as laid A
down by the Constitution Bench of this Court in Secretary v. State of
Karnataka and Ors. v. Uma Devi and Ors., (2006] 4 SCC I.
7. Learned counsel for the respondents on the other hand submitted
that since the CAT had relied on an earlier judgment and High Court rightly B
did not find any distinguishable feature, the appeal, therefore, deserves
to be dismissed.
8. The question of regularization on the ground oflong rendition of
service was the subject matter in Uma Devi's case (supra). The said issue
has been elaborately dealt with in the judgment. It was inter alia held as C
follows:
"33. It is not necessary to notice all the decisions of this Court on
this aspect. By and large what emerges is that regular recruitment
should be insisted upon, only in a contingency and ad hoc D
appointment can be made in a permanent vacancy, but the same
should soon be followed by a regular recruitment and that
appointments to nonavailable posts should not be taken note of
for regularization. The cases directing regularization have mainly
proceeded on the basis that having permitted the employee to E
work for some period, he should be absorbed, without really laying
down any law to that effect, after discussing the constitutional
scheme for public employment.
xxx xxx xxx
F
45. While directing that appointments, temporary or casual, be
regularized or made permanent, courts are swayed by the fact that
the concerned person 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 G
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 arms 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 H
588 SUPREME COURT REPORTS [2007) 12 S.C.R.

A 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 contractual
B 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
C who at least get employment temporarily, contractually or casually,
would not be getting even that employment, moreover when
securing of such employment brings at least some succor 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
D 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
E 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
F 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
G employment and would have to fail when tested on the touchstone
of constitutionality and equality of opportunity enshrined in Article
14 of the Constitution.

xxx
H
CHIEF COMMISSIONER OF INCOME TAX v. 589
SUSHEELA PRASAD [PASAYAT, J.]
47. When a person enters a temporary employment or gets A
engagement as a contractual or casual worker and the engagement
is not based on a proper selection as recognized 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 B
being confinned in the post when an appointment to the post could
be made only by following a proper procedure for selection and
in concerned cases, in consultation with the Public Service
Commission. Therefore, the theory oflegitimate expectation cannot
be successfully advanced by temporary, contractual or casual C
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 D
permanent in the post.
xxx
52. Normally, what is sought for by such temporary employees
when they approach the court, is the issue of a writ of mandamus E
directing the employer, the State or its instrumentalities, to absorb
them in permanent service or to allow them to continue. In this
context, the question arises whether a mandamus could be issued
in favour of such persons. At this juncture, it will be proper to refer
to the decision of the Constitution Bench of this Court in Dr. Rai F
Shivendra Bahadur v. The Governing Body of the Nalanda
College, [1962] Supp. 2 SCR 144. That case arose out of a
refusal to promote the writ petitioner therein as the Principal of a
college. This Court held that in order that a mandamus may be
issued to compel the authorities to do something, it must be shown G
that the statute imposes a legal duty on the authority and the
aggrieved party had a legal right under the statute or rule to enforce
it. This classical position continues and a mandamus could not be
issued in favour of the employees directing the government to make
them permanent since the employees cannot show that they have H
590 SUPREME COURT REPORTS [2007) 12 S.C.R.

...
A an enforceable legal right to be pennanently absorbed or that the
State has a legal duty to make them pennanent."

9. In view of what has been stated in Uma Devi's case (supra), we
deem it proper to remit the matter to the High Court to consider the case
B afresh in the light of the said decision.
10. In the connected case decided by the High Court in 0.A. No.89/
1996 which related to Writ Petition No.14 74 of 1998, this Court had
dealt with the matter in Chief Commissioner of Income Tax, Bhopal
and Ors. v. Lama Jain and Ors., (2006] 11 SCC 350, where a similar
C direction, as contained above, was given.
11. The appeal is allowed to the aforesaid extent with no orders as
to costs.
K.K.T. Appeal allowed.

,.