Holding

Contractual appointments made for a specified period with an express clause denying any claim to regular appointment cannot be regularised merely on the basis of long service; regularisation must adhere to the constitutional provisions of equality and non‑arbitrariness.

Summary

The appellants, school teachers appointed on contract under the Chandigarh Education Service (School Cadre) Recruitment Rules, 1991, sought regularisation of their posts, arguing that their long tenure entitled them to be absorbed into the regular service. The Central Administrative Tribunal dismissed their applications, and the High Court upheld that dismissal. On appeal, the Supreme Court examined whether the contractual nature of the appointments, which expressly excluded any claim to regular appointment, could be overridden by the length of service. The Court held that the contracts were for a specified period, the rules were only relaxed for temporary purposes, and that long service alone does not create a right to regularisation. Regularisation is not a mode of appointment and must conform to the constitutional guarantees of equality and non‑arbitrariness under Articles 14 and 16. Consequently, the appeals were dismissed.

Issues considered

The contractual appointments were for a specified period and expressly excluded any right to regularisation.
Whether long service by itself can justify directing regularisation of contract teachers.
Whether the relaxation of recruitment rules permits conversion of contract posts into regular posts.
Whether the appointments complied with the constitutional requirements of Articles 14 and 16.

Legislation cited

Constitution of Indias. Article 14, s. Article 141, s. Article 16, s. Article 162

Subjects

service lawregularisationcontractual appointmentequality clauseArticle 14Article 16recruitment rulespublic employmentconstitutional law

Judgment

[2009] 7 S.C.R. 1050

A HARMINDER KAUR & ORS.
v r
UNION OF INDIA & ORS.
Civil Appeal No. 3337-3361 of 2009
MAY 06, 2009
8
(S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Service Law - Regularisation - Chandigarh Education
Service (School Cadre)(Group 'CJ Recruitment Rules, 1991 .~

- Education Department of Chandigarh Administration - ."
c School teachers appointed on contract basis - Claimed ...
regularisation - Claim negated by CAT and High Court -
Whether, having regard to the long tenure of service, the
appointments should have been or could be directed to be
regularized - Held, No - Appointments in question were only
D for a specified period - Offers of appointment in no uncertain
terms provided that the appointees would have no claim for
regular appointment - Regularization is not a mode of )-
appointment- When appointments in public office are required
to be made, Articles 14 and 16 of the Constitution are required
E to be scrupulously followed - Long service by itself may not
be a ground for directing regularization - Constitution of India,
1950 - Articles 14 and 16.
The appellants are school teachers. They were
appointed by the Education Department of Chandigarh
~
F Administration on contract basis. Their services were
governed by the Chandigarh Education Service (School
Cadre) (Group C) Recruitment Rules, 1991. Appellants,
contending that they are entitled to be absorbed in the
services of the Education Department, filed application
G for their regularization before the Central Administrative
Tribunal. The Tribunal dismissed the application holding
i
that the appellants had no right to be regularised in service •
and their appointment ·has to come to an end on their
replacement by the regularly selected teachers. Appellants
H 1050
HARMINDER KAUR & ORS. V. 1051
UNION OF INDIA & ORS.

} filed writ petitions challenging the judgment of Tribunal A
-1 which were dismissed by the High Court.
In appeals to this Court, the question which arose
for consideration was whether, having regard to the long
tenure of service, appointment of the appellants should
have been or could be directed to be regularised. B

Dismissing the appeals, the Court
HELD:1.1. Appellants had be-en appointed only for a
,. ' specified period. The offers of appointment in no uncertain
...
terms provided that the appointee would have no claim c
for regular appointment available in the Institute. [Para 14)
[1056-F-G]
1.2. Rule 6 of the Chandigarh Education Service
(School Cadre) (Group C) Recruitment Rules, 1991
empowers the Administrator to make relaxation of the D
applicability of the Rules only in the event if he is of the
opinion that it was necessary or expedient so to do,
.. wherefor not only an appropriate order was required to
be issued but also reasons were to be recorded in writing
therefor. Relaxation of the Rules could be made only in
respect of any class or category of persons and not. with
E
regard to the mode of recruitment. The offers of appoint-
ment issued in favour of the appellants clearly go to show
that the Rules had been relaxed only for the purpose
mentioned therein. [Para 15) [1056-G-H; 1057-A-B]
~
F
1.3. Long service by itself may not be a ground for
directing regularization. Regularization is not a mode of
. appointment. When appointments in public office are
required to be made, the provisions of Articles 14 and 16
of the Constitution are required to be scrupulously
followed. When a departure is made for not scrupulously G
. .t·
following the conditions precedent laid down in the
~
statutory rules as also the constitutional scheme, it is
imperative that the same must be done within the four
corners of the delegated power by the Authority con-
cerned. [Para 15) [1057-C-D] H
1052 SUPREME COURT REPORTS [2009] 7 S.C.R. ·

A Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC
1; Mineral Exploration Corpn. Employees' Union v. Mineral "'
Exploration Corpn. Ltd. (2006) 6 SCC 31 O; National Fertilizers
Ltd. & Ors. v. Somvir Singh (2006) 5 SCC 493; State of M.P &
Ors. v. La/it Kumar Verma (2007) 1 SCC 575; Punjab Water
B $upp/y & Sewerage Board v. Ranjodh Singh & ors. (2007) 2
SCC 491; Postmaster General, Kolkata & Others v. Tutu Oas
(Dutta) (2007) 5 SCC 317; Official Liquidator vs. Oayanand &
ors. (2008) 10 SCC 1; State of Kamataka & Ors. vs. Sri G. V.
Chandrashekar (2009) 3 SCALE 653 and State of Bihar vs. ·i

c Upendra Narayan Singh (2009) 4 SCALE 282 - referred to. "
2. However, this Court was informed that 800 posts
of teachers are lying vacant and that the Administration
is ready and willing to fill up the said posts on a regular
basis. While doing so, the cases of the appellants be also
D taken into consideration and the Administrator may
consider the desirability of relaxing the age limit provided
for in the Rules. [Para 18] [1067-E-G] ).

Case Law Reference

E (2006) 4 sec 1 referred to Para 9
(2006) 6 sec 31 o referred to Para 17
(2006) 5 sec 493 referred to Para 17

c2001) 1 sec 575 referred to Para 17
F
c2001) 2 sec 491 referred to Para 17
(2007) 5 sec 317 referred to Para 17
c2008) 1o sec 1 referred to . Para 17
G (2009) 3 SCALE 653 referred to Para 17
(2009) 4 SCALE 282 referred to Para 17 't
•
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3337-3361 of 2009
H
HARMINDER KAUR & ORS. V. 1053
UNION OF INDIA & ORS.

From the Judgment and Order dated 28.03.2005 of the A
High Court of Punjab & Haryana at Chandigarh in CWP No.
15332-CAT of 2003
WITH
Civ!I Appeal Nos. 3299-3305 of 2009 B
P.S. Patwalia, Aman Preet Singh Rahi, D.K.
Tripathi, Tushar Bakshi, Ashok K. Mahajan, with him for the
Appellant(s).
- Kamini Jaiswal, for the Respondent(s). c
The Judgment of the Court was delivered by
S.B. SINHA, J.

' 1. Leave granted.
)
D
2. Appellants are school teachers. They were appointed
by the Education Department of Chandigarh Administration on
contract basis. Their services are governed by Chandigarh
Education Service (School Cadre) (Group 'C') Recruitment
Rules, 1991 (for short, "Recruitment Rules, 1991 "). We E
may notice one of the offers of appointment made to one of
the appellants herein, relevant clauses whereof reads as
under:

"2. That the person be appointed through Regional F
Employment Exchange after sending the requisition.
3. That the contract should be for six months which
can be extended further on the basis of perfor-
mance report for further six months with suitable
break. G
xxx xxx xxx

H
1054 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 7. That they will have no claim for ad hoc/regular
appointment available in the institute.
xxx xxx xxx
9. The contractual appointment will only be made
B against the sanctioned posts.
10. The contractual appointment will only be made when
the incumbent has proceeded on leave or is not
available for teaching beyond 45 days within 45 days
no substitute can be provided as per rules.
c 11. The persons put on contracts will only be for a
specified period which should not exceed more than
six months or till the regular incumbent of the post is
absent for not exceeding one year."

0 3. Indisputably, appellants fulfilled the requisite educational
qualification. They have been drawing salary on a scale of pay. " >

Indisputably again they had been continuing in the said posts
for a long time.
Appellants, contending that they were entitled to be
E absorbed in the services of the Education Department, filed
applications .for their regularization before the Central
Administrative Tribunal (for short, "the Tribunal") on the premise
that the respondent-Administration could not have issued fresh
-
advertisement for appointment of teachers . The said
F applications, however, were allowed only to the extent that they
may not be replaced or substituted by another set of teachers
appointed on contract basis.
4. Another original application was filed before the Tribunal
for a direction on the respondent herein to frame a scheme and/
G or policy to regularize their services and respondents be
restrained from appointing or recruiting regular teachers.
By order dated 27 .8.2003, the Tribunal dismissed the said
Original Application opining that they had no right to be
regularized in service and their appointment has to come to an
H end on their replacement by the regularly selected teachers.
I._.
HARMINDER KAUR & ORS. V.
UNION OF INDIA & ORS. [S.B. SINHA, J.]
1055

6. However, the respondent - Administration directed A
appointment of teachers on deputation basis from the States of
Punjab and Haryana by an order dated 15.9.2003.
7. On or about 9.10.2003, appellants filed writ petitions
before the High Court challenging the judgment and order dated
27.8.2003 passed by the Tribunal. B
8. By reason of the impugned judgment, the said writ
petitions have been dismissed.
,.
> 9. Mr. J.L. Gupta and Mr. P.S. Patwalia, learned Senior
Counsel appearing on behalf of the appellants would contend C
that the appointments having been made strictly in terms of the
Rules framed by the respondent-Administration, the impugned
judgment is liable to be set aside. It was furthermore contended
that having regard to the fact that a large number of sanctioned
posts have been lying vacant and as the appellants have the D
essential academic qualification, this Court should apply the
·.~ principles stated at Paragraph 53 of the decision of the
Constitution Bench in Secretary, State of Kamataka vs. Uma
Devi (2006) 4 sec 1 .
10. Ms. Kamini Jaiswal, learned counsel appearing on E
behalf of the respondents, on the other hand, would support the
impugned judgment.
11. As indicated hereinbefore, the matter relating to
' recruitment of teachers is governed by statutory rules known as F
Chandigarh Education Service (School Cadre) (Group - C)
Recruitment Rules, 1991; Rules 4 and 6 whereof read as under:
"4. Method of Recruitment, Age· limit and
qualification, etc.:-
G
The method of recruitment to the said posts, age limit,
qualifications and other matters connected therewith shall
be as specified in column 5 to 13 of the said Schedule.
)()()( xxx xxx
H
1056 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 6. Power to relax:
Where the Administrator, Union Territory, Chandigarh is of
the opinion that it is necessary or expedient so to do, he
may, by order, for reasons to be recorded in writing, relax
any of the provisions of these rules in respect of any class
B or category of persons."

12. The post of teachers with which we are concerned is
known as 'General Central Service (Group C)'. It is a 'non-
selection' post. The essential academic and other qualifications /
c have been laid down therefor. The posts are to be filled up: 60%
by direct recruitment, 20% by promotion and 20% by transfer
on deputation.
13. The short question which, thus, arises for consideration
is as to whether, having regard to the long tenure of service,
D appointment of the appellants should have been or could be
directed to be regularized.
~
14. Appointments had been made strictly in terms of
contract by contract. No doubt, for the said purpose an office
E order had been issued. It furthermore appears that the names
of the appellant have been called for from the Regional ·
Employment Exchange. It is, however, beyond any doubt or
dispute that they had been appointed only for a specified period.
The power conferred on the Heads of the School to engage
Lecturers, Masters/Mistresses was for a limited purpose, ).-
F namely, when the incumbent has proceeded on leave or is not
available for teaching beyond 45 days and when no substitute
could be provided for in terms of the Rules. We may furthermore
notice that the offers of appointment in no uncertain terms
provided that the appointee would have no claim for regular
G appointment available in the Institute.
15. Rule 6 of the Rules empowers the Administrator to make i- ....
relaxation of the applicability of the Rules only in the event if he
is of the opinion that it was necessary or expedient so to do,
H wherefor not only an appropriate order was required to be
•
HARMINDER KAUR & ORS. V. 1057
UNION OF l~DIA & ORS. [S.B. SINHA, J.]
,.0 .
issued but also reasons were to be recorded in writing therefor. A
.i ~
Relaxation of the Rules could be made only in respect of any
class or category of persons and not with regard to the mode of
'
I
recruitment. The offers of appointment issued in favour of the
, appellants clearly go to show that the Rules had been relaxed
' only for the purpose mentioned therein. We, however, have not B
been informed as to whether the requisite prior permission from
the Department had been obtained by the Heads of the Schools
upon assigning detailed reasons/justification therefor as stated
. )I.
in Pa_ragraph 1 of the order dated 27 .11.1997 .
c
Be that as it may, it is now well known that long service by
itself may not be a ground for directing regularization.
Regularization as is well known is not a mode of appointment.
When appointments in public office are required to be made,
the provisions of Articles 14 and 16 of the Constitution of India
are required to be scrupulously followed. When a departure is D
,. made for not scrupulously following the conditions precedent
laid down in the statutory rules as also the constitutional scheme,
" it is imperative that the same must be done within the four corner$
of the delegated power by the Authority concerned. The High
Court in its judgment has referred to a few decisions of this E
Court. We need not advert thereto as the matter has since been
considered by a Constitution Bench of this Court in Uma Devi
(supra). Therein, it has categorically been held:

~ "43. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution F
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. G
,I -f
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 H
1058 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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 •

c
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
D 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
E 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
F
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
G his employment would hold up the regular procedure for
selection or impose on the State the burden of paying an i- ..
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
H instrumentalities or lend themselves the instruments to
HARMINDER KAUR & ORS. V. 1059
UNION OF INDIA & ORS. [S.B. SINHA, J.]

-- ,; facilitate the bypassing of the constitutional and statutory
mandates."
A

Paragraph 53 of the said decision on which reliance has
been placed by Mr. Patwalia reads as under: -
"53. One aspect needs to be clarified. There may be cases B
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
c
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, D
. t
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 E
' 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 F
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."
G
-{
16. A judgment of a Constitution Bench of this Court laying
~

•, down the law within the meaning of Article 141 of the Constitution
of India must be read in its entirely for the purpose of finding out
the ratio laid down therein. The Constitution Bench, in no
uncertain terms, based its decision on the touchstone of the H
1060 SUPREME COURT REPORTS [2009] 7 S.C.R

..:
A 'equality clause' contained in Articles 14 and 16 of the ..
Constitution of India. Emphasis has been laid at more than one
place for making appointments only upon giving an opportunity
to all concerned. Appointment through side-door has been held
to be constitutionally impermissible.
B 17. We are not oblivious of the fact that in some decisions
rendered by different benches of this Court taking a sympathetic ~
view in favour of the employees who had been serving the State
for a long time, the rigours test laid down therein were sought to _, •
be dilated. However, some other benches of this Court had
c interpreted Paragraph 53 of the Uma Devi (supra) in the light of '
the decisions mentioned therein.
In Mineral Exploration Corpn. Employees' Union vs.
Mineral Exploration Corpn. Ltd._[(2006) 6 SCC 310] wherein
this Court, while following Umadevi (3) (supra), invoked para
D
53 of the said decision to opine:
"39. We, therefore, direct the Tribunal to decide the claim •
of the workmen of the Union strictly in accordance with
and in compliance with all the directions given in the
·E judgment by the Constitution Bench in Secy., State of ~

Karnataka v. Umadevi (3) (supra) and in particular, paras ~

53 and 12 relied on by the learned Senior Counsel
appearing forthe Union. The Tribunal is directed to dispose
of the matter afresh within 9 months from the date of receipt ;.
F of this judgment without being influenced by any of the
observations made by us in this judgment. Both the parties
are at liberty to submit and furnish the details in regard to
the names of the workmen, nature of the work, pay scales
and the wages drawn by them from time to time and the
transfers of the workmen made from time to time, from
G
place to place and other necessary and requisite details. 1- ...
The above details shall be submitted within two months from
the date of the receipt of this judgment before the Tribunal."
However, in National Fertilizers Ltd. & ors. vs. Somvir
H Singh (2006) 5 SCC 493, this Court held:-
HARMINDER KAUR & ORS. V 1061
UNION OF INDIA & ORS. [S.S. SINHA, J]

"23. The contention of the learned counsel appearing on A
.. 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 B
properly constitute.d. 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 .
)()()( )()()( )()()( c
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. o·
•• 26. It is true that the respondents had been working for a
long time. It may also be true that they had not been paid
"' wages on a regular scale of pay. But, they did not hold any
post. They were, therefore, not entitled to be paid salary
.. on a regular scale of pay. Furthermore, only because the E
respondents have worked for some time, the same by
• itself would not be a ground for directing regularization of
·,
their services in view of the decision of this Court in
Umadevi(3)"
~.
In State of M.P & Ors. vs. La/it Kumar Verma {(2007) 1 F
SCC 575], this Court held:-
"20. The decision to implement the judgment was evidently
subject to the decision of this Court. But, the Special Leave
Petition is barred by limitation. The question, inter a/ia,
G
which arises for consideration before us is as to whether
# -.. we should condone the delay or allow the respondent to
continue to occupy the permanent post.
21. The legal position somehow was uncertain before
the decision rendered by the Constitution Bench of this H
1062 SUPREME COURT REPORTS (2009] 7 S.C.R.

A Court in Uma Devi (3) (supra). It has categorically been Ir
stated before us that there was no vacant post in the
department in which the respondent could be reinstated.
The State had also adopted a policy decision regarding
regularisation. The said policy decision has also no
B application in the case of the respondent. Even otherwise,
it would be unconstitutional being hit by Article 16 of the
Constitution of India."
In Punjab Water Supply & Sewerage Board vs. Ranjodh ~

1
Singh & ors., [(2007) 2 SCC 491], this Court held:-
c
"19. In the instant case, the High Court did not issue a writ
of mandamus on arriving at a finding that the respondents
had a legal right in relation to their claim for regularization,
which it was obligated to do. It proceeded to issue the
directions only on the basis of the purported policy decision
D
adopted by means of a circular letter and, as noticed
hereinbefore, even a policy decision adopted in terms of
•
•
Article 162 of the Constitution of India in that behalf would
be void. Any departmental letter or executive instruction
cannot prevail over statutory rule and constitutional
..
E provisions. Any appointment, thus, made without following
the procedure would be ultravires."
.
In Postmaster General, Kolkata & Others vs. Tutu Das
(Dutta) ((2007) 5 SCC 317], this Court held as under:-
F "20. The statement of law contained in para 53 of Umadevi
(3) cannot also be invoked in this case. The question has
been considered by this Court in a large number of
decisions. We would, however, refer to only a few of them.
21. In Punjab Water Supply& SewerageBoardv. Ranjodh
G
Singh referring to paras 15, 16 and 53 of Umadevi (3)
r- ..
this Court:
"17. A combined reading of the aforementioned
paragraphs would clearly indicate that what the Constitution
H Bench had in mind in directing regularisation was in
HARMINDER KAUR & ORS. V 1063
UNION OF !NOIA & ORS. [S.B. SINHA, J.]

relation to such appointments, which were irregular in A
.. 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 in the following terms:
B
'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
•J one reason. They were appointed only on the basis of
their applications. The Recruitment Rules were not c
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.
D
~
24. The Constitution Bench thought of directing regulari-
' sation of the services only of those employees whose
" appointments were irregular as explained in State of
Mysore v. S. V Narayanappa, R.N. Nanjundappa v. T
Thimmiah and B.N. Nagarajan v. State of Karnataka E
. wherein this Court observed: [Umadevi (3) case, SCC
p. 24, para 16]
"16. In B.N. Nagarajan v. State of Karnataka this Court

- ~
clearly held that the words 'regular' or 'regularisation' do
not connote permanence and cannot be construed so as F
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." G
> 1 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.' "
H
1064 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (See also State of MP v. Yogesh Chandra Dubey and ,..
State of MP v. La/it Kumar Verma.)

The controversy, if any, in our opinion, has been given a
quietus by a three Judge Bench of this Court in Official Liquidator
vs. Dayanand & ors. [(2008) 10 SCC 1], holding:
B
"75. By virtue of Article 141 of the Constitution, the
judgment of the Constitution Bench in Secretary, State of
Karnataka v. Uma Devi (3) is binding on all the courts
including this Court till the same is overruled by a larger
~
•
c Bench. The ratio of the Constitution Bench judgment has
been followed by different two-Judges Benches for
declining to entertain the claim of regularization of service
made by ad hoc/temporary/ daily wage/casual employees
or for reversing the orders of the High Court granting relief
to such employees - Indian Drugs and Pharamaceutica/s
D
Ltd. v. Workmen [(2007) 1 SCC 408], Gangadhar Pillai
v. Siemens Ltd. [(2007) 1 SCC 533], Kendriya Vidya/aya
),
Sangathan v. L. V Subramanyeswara [(2007) 5 SCC 326],
Hindustan Aeronautics Ltd. v. Dan Bahadur Singh [(2007)
6 SCC 207]. However, in UP SEB v. Pooran Chand
E Pandey (2007) 11 SCC 92 on which reliance has been
placed by Shri Gupta, a two-Judges Bench has attempted
to dilute the Constitution Bench judgment by suggesting
that the said decision cannot be applied to a case where
regularization has been sought for in pursuance of Article ,..
F 14 of the Constitution and that the same is in conflict with
the judgment of the seven-Judges Bench in Maneka
Gandhi v. Union of /ndia[(1978) 1 SCC 248]."
The Court noticed that in UP SEB v. Pooran Chandra
Pandey (supra), this Court had held:
G
"18. We may further point out that a seven-Judge Bench }- ..
decision of this Court in Maneka Gandhi v. Union of India
has held that reasonableness and non-arbitrariness is part
of Article 14 of the Constitution. It follows that the
H Government must act in a reasonable and non-arbitrary
HARMINDER KAUR & ORS. V. 1065
UNION OF INDIA & ORS. [S.B. SINHA, J.]

manner otherwise Article 14 of the Constitution would be A
violated. Maneka Gandhi case is a decision of a seven-
Judge Bench, whereas Umadevi (3) case is a decision of
a five-Judge Bench of this Court. It is well settled that a
smaller Bench decision cannot override a larger Bench
decision of the Court. No doubt, Maneka Gandhi case B
does not specifically deal with the question of regularisation
of government employees, but the principle of
reasonableness in executive action and the law which it
has laid down, in our opinion, is of general application."
(Emphasis supplied) C
However, the said observations were held to have been
·uncalled for.
The Bench noticed several judgments/orders of different
Benches taking a view contrary to Uma Devi (3) (supra) to opine D
that those cases were illustrative of non-adherence to the rule
of judicial discipline which is sine qua non for sustaining the
' system. It was opined:
"90. We are distressed to note that despite several
pronouncements on the subject, there is substantial E
increase in the number of cases involving violation of the
basics of judicial discipline. The learned Single Judges
and Benches ofthe High Courts refuse to follow and accept
the verdict and law laid down by coordinate and even
larger Benches by citing minor difference in the facts as F
the ground for doing so. Therefore, it has become
necessary to reiterate that disrespect to constitutional
ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and G
certainty is an important hallmark of judicial jurisprudence
developed in this country in last six decades and increase
in the frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system inasmuch
as the courts a_t the grass root will not be able to decide H
1066 SUPREME COURT REPORTS [2009] 7 S C.R.

A as to which of the judgments lay down the correct law and
which one should be followed. ~

91. We may add that in our constitutional set up every
citizen is under a duty to abide by the Constitution and
respect its ideals and institutions. Those who have been
B
entrusted with the task of administering the system and
operating various constituents of the State and who take
oath to act in accordance with the Constitution and uphold
the same, have to set an example by exhibiting total
commitment to the Constitutional ideals. This principle is ·•
~
c required to be observed with greater rigour by the members
of judicial fraternity who have been bestowed with the
power to adjudicate upon important constitutional and legal
issues and protect and preserve rights of the individuals
and society as a whole. Discipline is sine qua non for
D effective and efficient functioning of the judicial system. If
the Courts command others to act in accordance with the
provisions of the Constitution and rule of law, it is not
possible to countenance violation of the constitutional
'•
principle by those who are required to lay down the law.
E 92. In the light of what has been stated above, we deem
it proper to clarify that the comments and observations .....
made by the two-Judges Bench in UP State Electricity
Board v. Pooran Chandra Pandey (supra) should be read
as obiter and the same should neither be treated as binding
F by the High Courts, Tribunals and other judicial foras nor
they should be relied upon or made basis for bypassing the
principles laid down by the Constitution Bench."
We feel bound by the observations made therein.
G {See also State of Karnataka & Ors. vs. Sri G. V.
Chandrashekar [2009 (3) SCALE 653}
t- ~
Recently, in State of Bihar vs. Upendra Narayan Singh
[2009 (4) SCALE 282], a Bench of this Court, while holding that
equality clause enshrined in Article 16 mandates that every
H
HARMINDER KAUR & ORS. V 1067
UNION OF INDIA & ORS. [S.B. SINHA, J.]

.. appointment to public posts or office should be made by open A

- advertisement so as to enable all eligible persons to compete
for selection on merit and despite the fact there may be certain
exceptions thereto, observed:
"17. Notwithstanding the basic mandate of Article 16 that
B
there shall be equality of opportunity for all citizens in
matters relating to employment for appointment to any
office under the State, the spoil system which prevailed in
America in 17th and 18th centuries has spread its tentacles
• ). • in various segments of public employment apparatus and
a huge illegal employment market has developed in the c
country adversely affecting the legal and constitutional
rights of lakhs of meritorious members of younger genera-
tion of the country who are forced to seek intervention of
the court and wait for justice for years together."
The court noticed the spoil system as also a large number D
of decisions rendered thereon including Uma Devi (supra) to hold:
"33. In view of the above discussion, we hold that the initial
appointments of the respondents were made in gross
violation of the doctrine of equality enshrined in Articles
E
- 14 and 16 and the provisions of the 1959 Act and the
learned Single Judge gravely erred by directing their
reinstatement with consequential benefits."
18. We, therefore, are of the opinion that the High Court
was correct in its view. We were, however, informed that 800 F
posts of teachers are lying vacant. Ms. Kamini Jaiswal informed
that the Administration is ready and willing to fill up the said
posts on a regular basis. While doing so, we have no doubt in
our mind that the cases of the appellants shall also be taken
into consideration and the Administrator may consider the
G
desirability of relaxing the age limit provided for in the Rules.
" -+ 19. For the aforementioned reasons, the appeals are
dismissed. No costs.

B.B.B. Appeals dismissed.