Holding

No regularisation can be ordered because the respondent did not satisfy the statutory criteria, and regularisation cannot be effected contrary to recruitment rules and the constitutional scheme.

Summary

The respondent, a daily‑wage substitute to a regular EDA, claimed she had completed 240 days of service before 7 May 1985 and sought regularisation under a 13 Nov 1987 circular that allowed such substitutes to be appointed as EDAs in vacant posts. The Central Administrative Tribunal directed that if she had indeed completed the 240 days she should be regularised, and the Calcutta High Court dismissed the Department’s writ petition in her favour. On appeal, the Supreme Court found no documentary evidence that the respondent had satisfied the 240‑day requirement and held that the Tribunal had not made a positive factual finding. The Court further held that the 240‑day rule under Section 25F of the Industrial Disputes Act applies only to retrenchment cases, not to regularisation, and that regularisation cannot be effected contrary to statutory recruitment rules or the proviso to Article 309 of the Constitution. Relying on the Umadevi judgment and related precedents, the Court overruled the earlier decision in Debika Guha and set aside the High Court’s order. The appeal was allowed and no regularisation was ordered.

Issues considered

The respondent’s claim that she completed 240 days of service before 7 May 1985 making her eligible for regularisation under the 1987 circular.
Whether the 240‑day criterion under Section 25F of the Industrial Disputes Act is relevant for regularisation of service.
Whether a circular and the CAT’s direction can override statutory recruitment rules and the constitutional proviso to Article 309.
Whether the equality provisions of Articles 14 and 16 of the Constitution compel regularisation in the absence of a legal right.
Whether the Supreme Court’s earlier decisions (Umadevi, etc.) supersede the High Court’s judgment.

Legislation cited

Constitution of Indias. 14, s. 16, s. 162, s. 309, s. 77
Industrial Disputes Act, 1947s. 25F

Subjects

service lawregularisationdaily wage substituteemployment equalityArticle 309Industrial Disputes ActCentral Administrative Tribunalrecruitment rules

Judgment

;.
POST MASTER GENERAL, KOLKATA AND ORS. A
'f V.

TUTU DAS (DUTTA)

"""· MAY 2, 2007

[S.B. SINHA AND MARKANDEY KATJU, JJ.] B

Service Law:

Daily wager substitute to EDA-Claim for regularization-Held: Neither
the Central Administrative Tribunal nor the High Court recorded a positive · C
finding that the daily wager had completed 240 days in a year as substitute
to EDA-No appointment should be made contrary to statutory provisions
governing recruitment or the rules framed in that behalf under a statute by
the proviso to Article 309 of the Constitution-Constitution of India-Arts.
14, 16, 77, 162 and 309-Industrial Disputes Act, 1947-25F. D
Respondent, a daily rated substitute to a regular EDA, claimed to have
completed 240 days in one year prior to 7.5.1985. She was disengaged on
10.9.1987. She approached the Central Administrative Tribunal claiming
absorption on the basis of the circular dated 13.11.1987 of the PMG West
Bengal, which provided for, as one time exception, appointment of daily rated E
substitutes as EDA on vacant posts. The respondent also contended that in
the case of some other similarly situated daily rated substitutes, the CAT
directed the Department to give benefit of the Circular to the petitioners. The
Tribunal directed that in case the respondent was found to have completed
240 days of work, she should be regularized. The writ petition of the
Department having been dismissed by the High Court, it filed the present F
appeal

Allowing the appeal, the Court

HELD: 1.1. The respondent was asked to produce relevant documents
showing the period during which she had worked as EDA substitute in G
)
different post offices from time to time prior to 7.5.1985. There is nothing on
record to show that she brought such materials on record. The Tribunal also
did not come to a definite finding that the respondent had completed 240 days
in a year as a substituted EDA prior to issuance of the circular letter dated
1117 H
1118 SUPREME COURT REPORTS [2007] 5 S. C.R.

A 12th 13th November, 1987. Besides, the concept of240 days of continuous -4

service in a year would be attracted only in case where retrenchment has '<;
been effected without complying with the provisions contained in Section 25F
of the Industrial Disputes Act, but would not be relevant for regularization of
_.,
service. [Paras 11 and 1611122-D-E; 1125-C-DI

B Madhyamik Si~ha Parishad, U.P. v. Anil Kumar Mishra and Ors. etc.,
AIR (1994) SC 1638, referred to.

1.2. Equality clause contained in Articles 14 and 16 of the Constitution
of India must be ginn primacy. No policy decision can be taken in terms of
Article 77 or Article 162 of the Constitution oflndia which would run contrary
c to the constitutional or statutory schemes. [Para 131 [1122-G-HI

1.3 In the instant case, there are two distinctive features, namely, (i)
equality is a positive concept, therefore, it cannot be invoked where any
illegality has been committed or where no legal right is established; and (ii)
according to the appellant, the respondent having not completed 240 days, does
D
not fulfill the requisite criteria. A disputed question of fact has been raised.
The High Court did not come to a positive finding that the respondent had
worked for more than 240 days in a year. Even otherwise this Court is bound
by the Constitution Bench decision in Uma Devi's case*. The statement of
law contained in para 53 of the said judgment cannot also be invoked in this
E case. The question has been considered by this Court in a large number of
decisions. (Para 18 and 20) [1125-D-GI

*Secretary State ofKarnataka and Ors. v. Uma Devi and Ors., [2006) 3
SCR 953= [2006) 4 SCC 1; Punjab Water Supply and Sewarage Board v.
Ranjodh Singh & Ors., [20061 13 SCALE 426; Punjab State Warehousing
F Corp., Chandigarh v. Manmohan Singh & Anr., [2007) 3 SCALE 401, relied
y
on.

2. What was considered to be permissible at a given point of time,
keeping in view the decisions of this Court which had then been operating in
the field, does no longer hold good. Indisputably, the situation has completely
G
changed in view ofa large number of decisions rendered by this Court in the
last 15 years or so. It was felt that no appointment should be made contrary
to the statutory provisions governing recruitment or the rules framed in that
< -
behalf under a statute or the proviso appended to Article 309 of the
Constitution oflndia. [Para 12) [1122-F]
H
POST MASTER GENERAL, KOLKATA v. TUTU DAS (DUTTA) [S.B. SINHA, J.] 1119

Secretary, State of Karnataka and Ors v. Umadevi (3) and Ors., (2006) A
'f 3 SCR 953 [2006) 4 SCC 1, followed.

Union of India and Ors. v. Debika Guha and Ors., (2006) 9 SCC 416,
overruled.

A. Umarani v. Registrar, Cooperative Societies and Ors., (2004) 7 SCC B
112, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2319 of2007.

From the Final Judgment and Order dated 19.11.2004 of the High Court
of Judicature at Calcutta in COCT No. 17 of 2004. c
R. Mohan, ASG., Rajiv Dutta, M.F. Humayunisa, Rashmi Malhotra and
V .K. Verma for the Appellants.

Piyush K. Roy and G. Ramakrishna Prasad for the Respondent.
D
The Judgment of the Court was delivered by

S.B. SINHA, J. I. Leave granted.

2. Respondent had been working as a substitute to a regular EDA as
and when he would remain on leave. She allegedly had completed a period E
of240 days in one year prior to 7.5.1985. Respondent joined her services on
1.10.1980. She was disengaged on 10.9.1987.

3. On or about 12th I 13th November, 1987, a circular was issued stating
that although the substitutes of EDA were being engaged on an ad-hoc basis
who were required to perform their duties only for few hours a day, despite F
absorption of the regular incumbents, they had been continued as daily rated
mazdoor and thus, irregular substitutes who had been working as such prior
to 7.5.1985 may be considered for appointment as EDAs in vacant posts, even
if they had not been recruited through Employment Exchanges provided they
were found eligible therefor in all respects statin:-
G
" .... It has been decided as one time exception, that such daily rated
~
mazdoors irregular substitutes, who have been working as such from
a date prior to 7th May, 1985, the date of issue of C.M. No. 49014/
18/84-Estt.(C) dtd. 07.5.85 from the Govt. of India (Department of
Personnel & training) to tally banning appointment of casual workers
H
1120 SUPREME COURT REPORTS [2007] 5 S.C.R.

A otherwise than through employment Exchanges may be considered for
appointment as ED As in vacant posts even if they were not recruited
through Employment Exchanges provided they are eligible for such
appointment in all respects. It is reiterated that this concession has
not been and cannot be given to the daily rated/casual workers from
07.5.1985 from which date the nominees of the Employment Exchange
B are only to be considered for such appointment.. ...."

4. Respondent filed an original application before the Central
Administrative Tribunal claiming absorption in the post of EDA relying on or
on the basis of the said circular as also claiming parity in terms of an order
C passed by the Central Administrative Tribunal, Calcutta Bench in O.A. No.
731 of 1998, Niva Ghosh and Ors. v. Union ofIndia and Ors., which although
was initially dismissed but a direction was issued in a review proceedings in
terms of an order dated 30.9.1997 directing;

"This review petitioners shall be given an opportunity by the
D respondents to produce documents in their possession in support of
their period of service claimed to have been rendered by them within
12 weeks from the date of communication of this order and if such
documents are produced, the same shall be checked and verified by
the respondent authorities with reference to documents in their office
and upon such verification, if it is found that the petitioners or any
E of them had rendered 240 days of service as substitute ED prior to
7.5.1985, the benefit of the letter dated 13.11.1987 of the PMG, West
Bengal Circle, shall be extended to them. In case it is found by the
respondent authorities after verification of documents, if any, produced
by the petitioner, they or any of them did not work for 240 days as
substitute ED prior to 7.5.1985, a reasoned order shall be passed and
F y
communicated to the petitioners as soon as such an order is passed."

5. Whereas pursuant to the said direction, although the case of Niva
Ghosh was allegedly considered, her case was not, whereupon a contempt
petition was filed. In the said contempt proceedings, a stand was taken by
G the appellant that she had not completed a period of240 days in a year before
the said cut off date. The said contempt petition was dismissed with liberty
to the respondent to file a fresh original application. Pursuant to the said
observations, respondent filed an application before the Central Administrative
Tribunal, Calcutta Bench, Calcutta which was marked as 0.A. No. 484/2002.

H 6. By a judgment and Order dated 18.12.2003, the Central Administrative
POSTMASTER GENERAL, KOLKATA "·TUTU DAS(DUTTA)[S.B. SINHA,}.] 1121
Tribunal directed; A
'r
"Therefore, in the aforesaid fact situation, we direct the respondent
no. 2 to examine the available records along with certificate granted
to the applicant as regards the number of days she had purported to
have worked, in consultation with the notification and orders passed
by the department from time to time and to ascertain whether she had B
completed the requisite number of days/ of work for regularisation in
service. In case she is found to have completed 240 days of work, it
is needless to mention that she should also be regularized."

7. Appellant herein filed a writ petition thereagainst which has been
dismissed by reason of the impugned judgment by a Division Bench of the c
Calcutta High Court; proceeding on the premise that the respondent had been
working since 1987. Relying or on the basis of a purported observations made
by this Court in Union of India and Ors. v. Debika Guha and Ors., (2000]
9 SCC 416 as also the said purported circular dated 12th /13th November. 1987,
the High Court directed as under:- D
"Considering the aforementioned we find that admittedly law is settled
by the apex Court holding that even in such case of the petitioner, on
admitted facts the long period of service entitles the employee to get
regularisation. We also found that circular issued by the authorities
long back in the year 1987 recognised right of regularisation of an E
employee in case of a continuous working inspite of irregularities in
particular factual circumstances. It is admitted that the case of the
present private Respondent is also governed by the said circular. In
such circumstances, we find that the direction given by the learned
tribunal for consideration of the case of the private Respondent here
to be considered for ascertaining whether she had rendered service F
for a long period, does not require any interference. The complaint of
the authorities as petitioners here on the ground that the period of240
days has no relevance through mentioned in the order of the learned
Tribunal, also does not require any interference as we find that the
said period is also a substantial long period in the facts and G
,. circumstances of the case."
•
8. Mr. Raj iv Dutta, learned senior counsel appearing on behalf of the
appellant would submit that the impugned judgment cannot be sustained as
. question of regularisation of the services of the respondent did not arise in
view of the decisions of this Court. H
1122 SUPREME COURT REPORTS (2007] 5 S.C.R.

A 9. Mr. Pijush K. Roy, learned counsel appearing on behalf of the
respondent, on the other hand, submitted that having regard to the decisions
of this Court in Debika Guha (supra) as also the fact that she had been
discriminated against vis-a-vis the aforementioned Niva Ghosh, the impugned
judgment should not be interfered with by this Court.

B I0. It was furthennore submitted that a Constitution Bench of this
Court in its decision in Secretary, State of Karna/aka and Ors. v. Umadevi
3 and Ors.. [2006] 4 SCC I have opined that a case of this nature, the general
ratio laid down therein would not be attracted, the exception was made in
paragraph 53 thereof is squarely attracted in the instant case.
c 11. We have noticed hereinbefore that when the services of the
respondent had not been regularized, she filed a contempt application. An
extension was sought for by the appellant to comply with the said direction,
which having been rejected, the respondent was asked to produce relevant
documents showing the period during which she had worked as EDA
D substitute in different post offices under South Calcutta Division from time
to time prior to 7.5.1985. There is nothing on record to show that she brought
such materials on records. The Tribunal also did not come to a definite finding
that the respondent had completed 240 days in an year as a substituted EDA
prior to issuance of the said circular letter dated 12th /13th November, 1987.
It, however, proceeded to issue the directions which we have noticed
E hereinbefore.

12. What was considered to be pennissible at a given point of time
keeping in view the decisions of this Court which had then been operating
in the field, does no longer hold good. Indisputably the situation has completely
F changed in view of a large number of decisions rendered by this Court in last
15 years or so. It was felt that no appointment shouid be made contrary to
the statutory provisions governing recruitment or the rules framed in that
behalf under a statute or the proviso appended to Article 309 of the Constitution
of India.

G 13. Equality clause contained in Article 14 and 16 of the Constitution
of India must be given primacy. No policy decision can be taken in tenns of
Article 77 or Article 162 of the Constitution of!ndia which would run contrary ..
to the constitutional or statutory schemes.

14. The question involved herein came to be considered by a
H Constitution Bench of this Court in Umadevi (supra) wherein noticing a long
POST MASTER GENERAL, KOLKATA r. TUTU DAS (DUlTAJ[S.B. SINHA, J.] 1123

line of recent decisions and upon consideration of the question as to whether A
the right to life protected by Article 21 of the Constitution of India would
include the right of employment as well, vis-a-vis application of principles of
equality, it was inter alia held;

"Even at the threshold, it is necessary to keep in mind the distinction
between regularisation and conferment of permanence in service B
jurisprudence. In State of Mysore v. S. V. Narayanappa this Court
stated that it was a misconception to consider that regularisation
meant permanence. In R.N. Nanjundappa v. T. Thimmiah, this Coutt
dealt with an argument that regularisation would mean conferring the
quality of permanence on the appointment. This Court stated: (SCC C
pp. 416-17, para 26)

"Counsel on behalf of the respondent contended that regularisation
would mean conferring the quality of permanence on the appointment
whereas counsel on behalf of the State contended that regularisation
did not mean permanence but that it was a case of regularisation of D
the rules under Article 309. Both the contentions are fallacious. If the
appointment itself is in infraction of the rules or if it is in violation of
the provisions of the Constitution illegality cannot be regularised.
Ratification or regularisation is possible of an act which is within the
power and province of the authority but there has been some non-
compliance with procedure or manner which does not go to the root E
of the appointment. Regularisation cannot be said to be a mode of
recruitment. To accede to such a proposition would be to introduce
a new head of appointment in defiance of rules or it may have the
effect of setting at naught the rules."

In B.N. Nagarajan v. State of Karnataka, this Court clearly held that F
the words "regular" or "regularisation" do not connote permanence
and cannot be construed so as to convey an idea of the nature of
tenure of appointments. They are terms calculated to condone any
procedural irregularities and are meant to cure only such defects as
are attributable to methodology followed in making the zppointments. G
This Court emphasised that when rules framed under Article 309 of
the Constitution are in force, no regularisation is permissible in exercise
of the executive powers of the Government under Article 162 of the
Constitution in contravention of the rules. These decisions and the
principles recognised therein have not been dissented to by this
Court and on principle, we see no reason not to accept the proposition H
1124 SUPREME COURT REPORTS [2007] 5 S.C.R.

A as enunciated in the above decisions. We have, therefore, to keep this
distinction in mind and proceed on the basis that only something that
is irregular for want of compliance with one of the elements in the
process of selection which does not go to the root of the process, can
be regularised and that it alone can be regularised and granting
permanence of employment is a totally different concept and cannot
B be equated with regularisation.

*** *** *** ***
One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S. V.
c 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 regularisation of the
services of such employees may have to be considered on merits in
D
the light of the principles settled by this Court in the cases
abovereferred to and in the light of this judgment. In that context, the
Union of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the services of
such irregularly appointed, who have worked for ten years or more
E in duly sanctioned posts but not under cover of orders of the courts
or of tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if any
F already made, but not sub judice, need not be reopened based on this f
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.

It is also clarified that those decisions which run counter to the
G
principle settled in this decision, or in which directions running counter
to what we have held herein, will stand denuded of their status as
precedents.

15. Before considering the submission of Mr. Roy based upon paragraph
H 53 of Umadevi (supra), we may notice that in A. Umarani v Registrar,
POST MASTER GENERAL, KOLKATA v. nrru DAS (DUTTA)[S.B. SINHA,J.] 1125

Cooperative Societies and Ors., [2004] 7 SCC 112, this Court held; A
"No regularisation is, thus, permissible in exercise of the statutory
power conferred under Article 162 of the Constitution if the
appointments have been made in contravention of the statutory rules."

16. The short order which was the subject matter of decision of this B
Court in Debika Guha (supra) also stood overruled in Umadevi (supra). We
may at this stage also notice that the concept of 240 days to be the cut off
mark for the purpose of regularisation of services came up for consideration
of this Court in Madhyamik Siksha Parishad, U.P. v Anil Kumar Mishra and
Ors. etc., AIR (1994) SC 1638, wherein it was clearly laid down that the
completion of 240 days of continuous service in a year would be attracted C
only in a case where retrenchment has been effected without complying with
the provisions contained in Section 25F of the Industrial Disputes Act , but
would not be relevant for regularisation of service.

17. Submission of Mr. Roy is that the respondent has been discriminated D
against inasmuch as although the services of Niva Ghosh were regularised,
she had not been, may now be noticed.

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

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

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

19. Even otherwise this Court is bound by the Constitution Bench
decision. Attention of the High Court unfortunately was not drawn to a large
number of recent decisions which had been rendered by this Court.

20. The statement of law contained in para 53 of Uma Devi (supra) G
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 and Sewerage Board v Ranjodh Singh & H
1126 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Ors., [2006) 13 SCALE 426 referring to paragraphs 15, 16 and 53 ofUma Devi
(supra), this Court;

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

Distinction between irregularity and illegality is explicit. It has been so pointed
out in National Fetilizers Ltd & Ors. v. Somvir Singh, [2006] 5 SCC 493 in
the following terms:

c "The contention of the learned counsel appearing on behalfof the
respcndents that the appointments were irregular and not illegal,
cannot be accepted for more than one reason. They were appointed
only on the basis of their applications. The Recruitment Rules were
not followed. Even the Selection Committee had not been properly
constituted. In view of the ban on employment, no recruitment was
D permissible in law. The reservation policy adopted by the appellant
had not been maintained. Even cases of minorities had not been given
due consideration.

The Constitution Bench thought of directing regularisation of the
services only of those employees whose appointments were irregular
E as explained in State ofMysore v S. V. Narayanappa, RN. Nanjundappa
v. T. Thimmiah and B.N. Nagarajan v State of Karnataka, wherein
this court observed: [Umadevi (3) case 1, SCC p. 24, para 16]
"16. In B.N. Nagarajan v. State of Karna/aka this Court clearly
held that the words 'regular' or 'regularisation' do not connote
F permanence and cannot be construed so as to convey an idea
of the nature of tenure of appointments. They are terms calculated
to condone any procedural irregularities and are meant to cure
only such defects as are attributable to methodology followed in
making the appointments."
G Judged by the standards laid down by this Court in the
aforementioned decisions, the appointments of the respondents
are illegal. They do not, thus, have any legal right to continue
in service."

{See also State of Madhya Pradesh & Ors. v. Yogesh Chandra Dubey
H
POST MASTER GENERAL, KOLKATA v. TUTU DAS (DUTTA)[S.B. SINHA, J.) J127

r
& Ors., [2006] 8 SCC 67 and State ofMP. & Ors. v. la/it Kumar ;rerma, [2006] A
12 SCALE 642.}

22. The same principle has been reiterated recently in Punjab State
Warehousing Corp., Chandigarh v. Manmohan Singh & Anr., [2007] 3 SCALE
401.
B
23. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. In the facts and
circumstances of this case, however, there shall be no order as to costs.

RP. Appeal allowed.

,