Supreme Court of India
SECRETARY, STATE OF KARNATAKA AND ORS.versusUMADEVI AND ORS.
- Citation
- 2006 INSC 216
- Decided
- 10 April 2006
- Disposal
- Disposed off
- Bench
- Y K SABHARWAL
Holding
Temporary or contractual appointments made without following the constitutional recruitment procedure do not confer a legal right to regularisation or permanence, and the doctrine of legitimate expectation cannot be invoked in such cases.
Summary
The case concerned employees of the Karnataka Commercial Taxes Department who had been engaged on daily‑wage contracts since 1985‑86 and claimed, after more than ten years of service, that they were entitled to regularisation and the benefits of regular employees. The High Court had ordered that they receive wages equal to regular staff and that their cases be considered for regularisation, but the State appealed. The Supreme Court examined whether the doctrine of legitimate expectation applied, whether such employees had a fundamental right to be absorbed, and whether courts could issue mandamus directing permanent appointment. It held that temporary or contractual appointments do not create a legal right to regularisation, that the doctrine of legitimate expectation cannot be invoked where no assurance was given, and that courts must not undermine the constitutional scheme of public employment. Consequently, the Court allowed the appeals seeking to set aside the High Court’s regularisation orders and dismissed the appeals of the employees, while directing that the employees be paid wages equal to the lowest grade of regular staff from the date of the High Court judgment and that any future regular recruitment be conducted through proper procedures.
Issues considered
- The applicability of the doctrine of legitimate expectation to daily‑wage temporary employees.
- Whether employees engaged on daily‑wage or contractual basis have a fundamental right to be regularised or made permanent under Articles 14, 16 and 21.
- Whether a writ of mandamus can be issued directing the State to regularise such employees.
- Whether courts can issue directions that defeat the constitutional scheme of public employment under Articles 309, 315, 320 and 335.
Legislation cited
Subjects
public employmenttemporary appointmentdaily wage workersregularisationlegitimate expectationequalityArticle 14Article 16Article 309mandamusservice law
Judgment
SECRETARY, STATE OF KARNATAKA AND ORS. A
v.
UMADEVI AND ORS.
APRIL 10, 2006
[Y .K. SABHARW AL, CJ., ARUN KUMAR, G.P. MA THUR, C.K. THAKKER B
AND P.K. BALASUBRAMANYAN, JJ.]
Service Law:
Constitution of India, 1950: Articles 14, 16, 21, 23, 226 and 309. C
Public employment-Daily wage temporary employees-Right of
regularization or permanent absorption-Doctrine of legitimate expectation--
Applicability of-Temporary Government employees engaged on daily wages
Claim for regularization with all the benefits applicable to regular employees
lfn the basis that they worked for more than IO years-Such employees were D
engaged for the first time in the years 1985-86 inspite of orders not to make
such appointments issued in the year 1984-Administrative Tribunal dismissed
their claim for regularization-However High Court held that the said
employees were entitled to wages equal to the salary and allowances that
were being paid to the regular employees of their cadre in Government E
service with effect ji-0111 the dates ji-om which they were respectively appointed-
Correctness of-Held: There is no fundamental right in those who have been
employed on daily wages or temporarily or on contractual basis to claim
that they have a right to be absorbed in service-Doctrine of legitimate
expectation is not applicable in such cases-Employment on daily wages did
not amount to forced labour-State action in not regularizing such employees F
was not unfair within theji-amework of the rule of law-Hence, a mandamus
could not be issued in favour of the employees direr:ting the Government to
make them permanent since the employees could not show that they have an
enforceable legal right to be permanently absorbed or that the State has a
legal duty to make them permanent-Administrative Law.
G
Doctrines:
"Doctrine of Legiti1nate Expectation"-Explained
The respondents were temporarily engaged on daily wages in the
953 H
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954 SUPREME COURT REPORTS [2006] 3 S.C.R.
A Commercial Taxes Department and claimed that they worked in the
department based on such engagement for more than lO years and hence they
were entitled to be made permanent employees of the department entitled to
all the benefits of regular employees. They were engaged for the first time in
the years 1985-86 inspite of orders not to make such appointments issued in
B the year 1984. The Administrative Tribunal dismissed their claim for
regularization. However, the High Court held that the respondents were
entitled to wages equal to the salary and allowances that were being paid to
the regular employees of their cadre in Government service with effect from
the dates from which they were respectively appointed. Hence the appeal.
C On behalf of the respondents, it was contended that on the basis of the
doctrine of legitimate expectation, the respondents should be directed to be
regularized; that the rights of the respondents thus appointed under Articles
14 and 16 of the Constitution were violated; that employment on daily wages
amounted to forced labour; that a mandamus be issued in favour of such
persons; and that the State action in not regularizing the respondents was
D not fair within the framework of the rule of law.
Disposing of the appeal, the Court
HELD: 1. Public employment in a sovereign socialist secular democratic
republic has to be as set down by the Constitution and the laws made
E thereunder. Our constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a procedure established
in that behalf. Equality of opportunity is the hall mark and the Constitution
has provided also for affirmative action to ensure that unequals are not treated
equals. Thus, any public employment has to be in terms of the constitutional
scheme. (967-A-BJ
F
2. A sovereign Government, considering the economic situation in the
country and the work to be got done, is not precluded from making temporary
appointments or engaging workers on daily wages. Going by a law newly
enacted i.e. The National Rural Employment Guarantee Act, 2005; the object
G is to give employment, to at least one member of a family for hundred days in
a year, on paying wages as fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to, when regular vacancies in
posts, at a particular point of time, are to be filled up and the filling up of
those vacancies cannot be done in a manner or based on patronage or other
considerations. Regular appointment must be the rule. (967-C-Dl
H
SECRET ARY, STATE OF KARNATAKA v. UMADEVI 955
3. But, sometimes this process is not adhered to and the Constitutional A
scheme of public employment is by-passed. The Union, the States, their
departments and instrumentalities have resorted to irregular appointments,
especially in the lower rungs of the service, without reference to the duty to
ensure a proper appointment procedure through the Public Service
Commission or otherwise as per the rules adopted and to permit these B
irregular appointees or those appointed on contract or on daily wages, to
continue year after year, thus, keeping out those who are qualified to apply
for the post concerned and depriving them of an opportunity to compete for
the post. It has also led to persons who get employed, without following a
regular procedure or even through the backdoor or on daily wages,
approaching Courts, seeking directions to make them permanent in their posts C
and to prevent regular recruitment to the concerned posts. Courts have not
always kept the legal aspects in mind and have occasionally even stayed the
regular process of employment being set in motion and in some cases, even
directed that these illegal, irregular or improper entrants be absorbed into
service. A class of employment which can only be called 'litigious employment'
has risen like a phoenix seriously impairing the constitutional scheme. Such D
orders are passed apparently in exercise of the wide powers under Article
226 of the Constitution oflndia. Whether the wide powers under Article 226
of the Constitution is intended to be used for a purpose certain to defeat the
concept of social justice and equal opportunity for all, subject to affirmative
action in the matter of public employment as 1·ecognized.by our Constitution, E
has to be seriously pondered over. lt is time that Courts desist from issuing
orders preventing regular selection or recruitment at the instance of such
persons and from issuing directions for continuance of those who have not
secured regular appointments as per procedure established. The passing of
orders for continuance tends to defeat the very Constitutional scheme of public
employment. It has to be emphasized that this is not the role envisaged for. F
High Courts in the scheme of things and their wide powers under Article
226 of the Constitution of India are not intended to be used for the purpose of
perpetuating illegalities, irregularities or improprieties or for scuttling the
whole scheme of public employment. Its role as the sentinel and as the
guudian of equal rights protection should not be forgotten. G
[967-E-H; 968-A-C]
4. This Court has also on occasions issued directions which could not
be said to be consistent with the Constitutional scheme of public employment.
Such directions are issued presumably on the basis of equitable considerations
or individualization of justice. The question arises, equity to whom? Equity H
),_
I
956 Sl1PREME COURT REPORTS [2006) 3 S.C.R.
A for the handful of people who have approached the Court with a claim, or equity
for the teeming millions of this country seeking employment and seeking a
fair opportunity for competing for employment? When one side of the coin is
considered, the other side of the ~oin, has also to be considered and the way
open to any court of law or justice is to adhere to the law as laid down by the
Constitution and not to make directions which at times, even if do not run
B counter to the Constitutional scheme, certainly tend to water down the
Constitutional requirements. 1968-D-FI
5. The power of a State as an employer is more limited than that of a
private employer inasmuch as it is subjected to constitutional limitations and
C cannot be exercised arbitrarily. Article 309 of the Constitution gives the
Government the power to frame rules for the purpose of laying down the
conditions of service and recruitment of persons to be appointed to public
services and posts in connection with the affairs of the Union or any of the
States. That Article contemplates the drawing up of it procedure and rules to
regulate the recruitment and regulate the service conditions of appointees
D appointed to public posts. It is well acknowledged that because of this, the
entire process of recruitment for services is controlled by detailed procedure
which specifies the necessary qualifications, the mode of appointment etc. If
rules have been made under Article 309 of the Constitution, then the
Government can make appointments only in accordance with the rules. The
E State is meant to be a model employer. The Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal
opportunity for employment seekers. Though this Act may not oblige an
employer to employ only those persons who have been sponsored by
employment exchanges, it places an obligation on the employer to notify the
vacancies that may arise in the various departments and for filling up of those
F vacancies based on a procedure. Normally, statutory rules are framed under
the authority of law governing employment. It is recognized that no
Government order, notification or circular can be substituted for the statutory
rules framed under the authority of law. This is because following any other
course could be disastrous inasmuch as it will deprive the security of tenure
G and the right of equality conferred on civil servants under the Constitutional
scheme. It may even amount to negating the accepted service jurisprudence.
Therefore, when statutory rules are framed under Article 309 of the
Constitution which are exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed. [968-F-H; 969-A-DI
H Basu: "Shorter Constitution of India", referred to.
7
SECRETARY, STATEOFKARNATAKAv. UMADEVI 957
6. In addition to the equality clause represented by Article 14 of the A
Constitution, Article 16 has specifically provided for equality of opportunity
in matters of public employment. Buttressing these fundamental rights, Article
309 provides that subject to the provisions of the Constitution Acts of the
legislature may regulate the recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the B
Union or of a State. In view of the interpretation placed on Article 12 of the
Constitution by this Court, obviously, these principles also govern the
instrumentalities that come within the purview of Article 12 of the
Constitution. With a view to make the procedure for selection fair the
Constitution by Article 315 has also created a Public Service Commission
for the Union and Public Service Commissions for the States. Article 320 C
deals with the functions of Public Service Commissions and mandates
consultation with the Commission on all matters relating to methods of
recruitment to civil services and for civil posts and other related matters. As
a part of the affirmative action recognized by Article 16 of the Constitution,
Article 335 provides for special consideration in the matter of claims of the
' members of the scheduled castes and scheduled tribes for employment. The D
States have made Acts, Rules or Regulations for implementing the above
constitutional guarantees and any recruitment to the service in the State or
in the Union is governed by such Acts, Rules and Regulations. The
Constitution does not envisage any employment outside this constitutional
scheme and without following the requirements set down therein. E
1972-F-H; 973-A-BJ
7. Inspite of this scheme, there may be occasions when the sovereign
State or its instrumentalities will have to employ persons in posts which are
temporary, on daily wages, as additional hands or taking them in without
following the required procedure, to discharge the dutil\s in respect of the F
posts that are sanctioned and that are required to be filled in terms of the
relevant procedure established by the Constitution or for work in temporary
post or projects that are not needed permanently. This right of the Union or
of the State Government cannot but be recognized and there is nothing in the
Constitution which prohibits such engaging of persons temporarily or on daily G
wages to meet the needs of the situation. Bufthe fact that such engagements
are resorted to cannot be used to defeat the very scheme of public employment.
Nor can a court say that the Union or the State Governments do not have the
right to engage persons in various capacities for a duration or until the work
in a p:irticular project is completed. Once this right of the Government is
recognized and the mandate of the constitutional requirement for public H
958 SUPREME COURT REPORTS [2006) 3 S.C.R.
A employment is respected, there cannot be much difficulty in coming to the
conclusion that it is ordinarily not proper for courts whether acting under
Article 226 of the Constitution or under Article 32 of the Constitution, to
direct absorption in permanent employment of those who have been engaged
without following a due process of selection as envisaged by the constitutional
B scheme. [973-C-Fl
8. What is sought to be pitted against this approach is the so called
equity arising out of giving of temporary employment or engagement on daily
C
wages and the continuance of such persons in the engaged work for a certain
length of lime. Such considerations can have only a limited role to play when
every qualified citizen has a right to apply for appointment, the adoption of
-
'
the concept of rule of law and the scheme of the Constitution for appointment
to posts. It cannot also be forgotten that it is not the role of courts to ignore
encourage or approve appointments made or engagements given outside the
constitutional scheme. In effect orders based on such sentiments or approach
would result in perpetuating illegalities and in the jettisoning of the scheme
D of public employment while adopting the Constitution. The approving of such
acts also results in depriving many of their opportunity to compete for public
employment. The question, therefore, has to be considered objectively and
based on the constitutional and statutory provisions. [973-G-H; 974-AJ
State of Punjab v. Jagdip Singh, [ 1964 J 4 SCR 964, relied on.
E
9. Even at the threshold, it is necessary to keep in mind the distinction
between regularization and conferment of permanence in service
jurisprudence. [975-B]
B.N Nagarajan v. State of Karnataka, [1979] 3 SCR 937, relied on.
F
Dharwad District Public Works Department v. State of Karnataka,
[1990) l SCR 544, State of Mysore v. S. V Narayanappa, [1967] I SCR 128
and R.N. Nanjundappa v. T. Thimmiah. [197212 SCR 799, referred to.
10. The executive, or for that matter the Court, in appropriate cases,
G would have only the right to regularize an appointment made after following
the due procedure, even though a non-fundamental element of that process or
•
procedure has not been followed. This right of the executive and that of the
court would not extend to the executive or the court being in a position to
direct that an appointm~nt made in clear violation of the constitutional scheme
>
H and the statutory rules made in that behalf, can be treated as permanent or
,' SECRETARY, STATE OF KARNATAKA v. UMADEVI 959
can be directed to be treated as permanent. [976-B-CJ A
Daily Rated Casual Labour v. Union of India, [19881 1 SCR 598 and
Bhagwati Prasad v. Delhi State Mineral Development Corporation, [1989)
Supp. (2) SCR 513, overruled.
11. One aspect arises. Obviously, the State is also controlled by B
economic considerations and financial implications of any public employment.
The viability of the department or the instrumentality or of the project is also
of equal concern for the State. The State works out the scheme taking into
consideration the financial implications and the economic.aspects. The court
cannot impose on the State a financial burden of this nature by insisting on C
regularization or permanence in employment, when those employed
temporarily are not needed permanently or regularly. As an example a
direction to give permanent employment to all those who are being temporarily
or casually employed in a public sector undertaking can be envisaged. The
burden may become so heavy by such a direction that the undertaking itself
may collapse under its own weight. It is not as if this had not happened. So, D
the court ought not to impose a financial burden on the State by such
directions as such directions may turn counter-productive.
(976-H; 977-A-BJ
12. Regular recruitment should be insisted upon; only in a contingency
an ad hoc appointment can be made in a permanent vacancy, but the same E
should soon be followed by a regular recruitment and that appointments to
non-available 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 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. [948-F-G) F
State of Punjab v. Surinder Kumar, (19911 Supp. 3 SCR 553, Director,
Institute of Management v. Pushpa Srivastava (Smt.), [19921 3 SCR 712,
Madhyamik Shiksha Parishad v. Anil Kumar Mishra, AIR (1994) SC 1638,
State of Himachal Pradesh v. Suresh Kumar Verma, (199611SCR972 and
Ashwani Kumar v. State of Bihar, ( 1996) Supp. 10 SCR 120, relied on. G
Dharwad District Public Works Department v. State of Karna/aka,
(1990( I SCR 544 and R.N. Nanjundappa v. T Thimmiah, (1972) 2 SCR 799,
referred to.
State of Haryana v. Piara Singh, (1992) 3 SCR 826, overruled. H
\
960 SUPREME COURT REPORTS (2006) 3 S.C.R.
A 13. Adherence to the rule of equality in public employment is a basic
feature of our Constitution and since the rule of law is the core of our
Constitution, a Court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article 16 of the
B Constitution. Therefore, consistent with the scheme for public employment,
this Court while laying down the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an end at the end
of the contract; if it were an engagement or appointment on daily wages or
C casual basis, the same would come to an end when it is discontinued. Similarly,
a temporary employee could not claim to be made permanent on the expiry of
his term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time beyond
the term of his appointment he would not be entitled to be absorbed in regular
service or made permanent merely on the strength of such continuance, if
D the original appointment was not made by following a due process of selection
as envisaged by the relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who by the very nature
of their appointment do not acquire any right. High Courts acting under
E Article 226 of the Constitution of Jndia should not ordinarily issue directions
for absorption, regularization, or permanent continuance unless the
recruitment itself was made regularly and in terms of the constitutional
scheme. Merely because, an employee had continued under cover of an order
of Court, which has been described as 'litigious employment' in the earlier
part of the judgment, he would not be entitled to any right to be absorbed or
F made permanent in the service. rn fact, in such case, the High Court may not
be justified in issuing interim directions, since, after all, if ultimately the
employee approaching it is found entitled to relief, it may be possible for it to
mould the relief in such a manner that ultimately no prejudice will be caused
to him, whereas an interim direction to continue his employment would hold
G up the regular procedure for selection or impose on the State the burden of
paying an employee who is really not required. The courts must be careful in
ensuring that they do not interfere unduly with the economic arrangement of
•
its affairs by the State or its instrumentalities or lend themselves the
instruments to facilitate the bypassing of the constitutional and statutory
mandates. 1989-C-H; 990-A-BI
H
SECRETARY, STATEOFKARNATAKAv. UMADEVI 961
A. Umarani v. Registrar, Cooperative Societies, (2004] 7 SCC 112, State A
of UP. v. Niraj Awasthi, (2006] 1 SCC 667, State of Karnataka v. KGSD
Canteen Employees' Welfare Association, JT (2006) 1 SC 84 and Union Public
Service Commission v. Girish Jayanti Lal Vaghela, (2006) 2 SCALE 115,
relied on.
Teri Oat Estates (P) Ltd. v. U. T. Chandigarh, (2004) 2 SCC 130 and B
Latham v. Richard Johnson & Nephew Ltd., (1913) 1 KB 3988, referred to.
14. The concept of 'equal pay for equal work' is different from the
concept of conferring permanency on those who have been appointed on ad
hoc basis, temporary basis, or based on no process of selection as envisaged
by the Rules. This Court has in various decisions applied the principle of C
'equal pay for equal work' and has laid down the parameters for the application
of that principle. The decisions are rested on the concept of equality enshrined
in our Constitution in the light of the directive principles in that behalf. But
the acceptance of that principle cannot lead to a position where the court could
direct that appointments made without following the due procedure established D
by law be deemed permanent or issue directions to treat them as permanent.
Doing so would be negation of the principle of equality of opportunity. The
power to make an order as is necessary for doing complete justice in any
cause or matter pending before this Court would not normally be used for
giving the go-by to the procedure established by law in the matter of public
employment. (990-C-EI E
Kesavananda Bharati v. State of Kera/a, [ 1973] Supp. SCR I, Indra
Sawhney v. Union ofIndia, [19921Supp.2 SCR 454 and Dr. D.C. Wadlnva v.
State of Bihar, [1987] I SCR 798, relied on.
The Workmen of Bhurkunda Colliery of Mis Central Coalfields Ltd. v.
The Management of Bhurkunda Colliery of Mis Central Coalfields Ltd., JT F
(2006) 2 SC 1 and Indira SawhnMy v. Union of India, [1999] Supp. 5 SCR
229, referred to.
15. While directing that appointments, temporary or casual, be
regularized or made permanent, courts are swayed by the fact that the G
concerned person has worked for some time and in some cases for a
considerable length of time. It is not as i( the person who accepts an
engagement either temporary or casual in nature, is not aware of the nature
of his employment. He accepts the employment with eyes open . .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 !iis livelihood and H
962 SUPREME COURT REPORTS [2006] 3 S.C.R.
A accept whatever he gets. But on that ground alone, it would not be appropriate
to jettison the constitutional scheme of appointment and to take the view that
a person who has temporarily or casually got employed should be directed to
be continued permanently. By doing so, it will be creating another mode of
public appointment which is not permissible. If the court were to void a
B contractual employment of this nature on the ground that the parties were
not having equal bargaining power, that too would not enable the court to grant
any relief to that employee. A total embargo on such casual or temporary
employment is not possible, given the exigencies of administration and if
imposed, would only mean that some people who at least get employment
temporarily, contractually or casually, would not be getting even that
C employment when securing of such employment brings at least some succour
to them. After all, innumerable citizens of our vast country are in search of
employment and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an employment. It is in
that context that one has to proceed on the basis that the employment was
accepted fully knowing the nature of it and the consequences flowing from it.
D In other words, even while accepting the employment, the person concerned
knows the nature of his employment. It is not an appointment to a post in the
real sense of the term. The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be considered to be
of such a magnitude as to enable the giving up of the procedure established
E for making regular appointments to available posts in the services of the State.
The argument that since one has been working for some time in the post, it
will not be just to discontinue him, even though he was aware of the nature of
the employment when he first took it up, is not one that would enable the
jettisoning of the procedure established by law for public employment and
would have to fail when tested on the touchstone of constitutionality and
F equality of opportunity enshrined in Article 14 of the Constitution of India.
[991-A-GJ
16.1. The doctrine of legitimate expectation can be invoked if the
decisions of the Administrative Authority affect the person by depriving him
G of some benefit or advantage which either (i) he had in the past been permitted
by the decision-maker to enjoy and which he can legitimately expect to be
permitted to continue to do until he is communicated some rational grounds
for withdrawing it on which he has been given an opportunity to comment, or
(ii) he has received assurance from the decision-maker that they will not be
withdrawn without giving him first an opportunity of advancing reasons for
H contending that they should not be withdrawn. [992-A-CI
SECRETARY, STATE OF KARNA I AKA v. UMADEVI 963
National Buildings Construction Corpn. v. S. Raghunathan, [1998] 7 A
SCC 66 and Dr. Chanchal Goyal v. State of Rajasthan, (2003] 3 SCC 485,
relied on.
Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Services (1985) AC 374, referred to.
B
16.2. There is no case that any assurance was given by the Government
or the concerned department while making the appointment on daily wages
that the status conferred on him will not be withdrawn until some rational
reason comes into existence for withdrawing it. The very engagement was
against the constitutional scheme. Though, the Commissioner of the C
Commercial Taxes Department sought to get the appointments made
permanent, there is no case that at the time of appointment any promise was
held out. No such promise could also have been held out in view of the circulars
and directives issued by the Government after the Dharwad decision. Though,
there is a case that the State had made regularizations in the past of similarly
situated employees, the fact remains that such regularizations were done only D
pursuant to judicial directions, either of the Administrative Tribunal or of
the High Court and in some case by this Court. Moreover, the invocation of
the doctrine of legitimate expectation cannot enable the employees to claim
that they must be made permanent or they must be regularized in the service
though they had not been selected in terms of the roles for appointment. The
--- fact that in certain cases the court had directed regularization of the E
employees involved in those cases cannot be made use ofto found a claim based
on legitimate expectation. The argument if accepted would also run counter
to the constitutional mandate. The argument in that behalf has, therefore, to
be rejected. (992-D-G)
F
Dharwad District Public Works Department v. State of Karnataka,
(1990] 1 SCR 544, referred to.
16.3. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant rules or procedure, G
he is aware of the consequences of the appointment being temporary, casual
or contractual in nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed in the post when an appointment to the post
could be made only by following a proper procedure for selection and in
concerned cases, in consultation with the Public Service Commission.
Therefore, the theory of legitimate expectation cannot be successfully advanced H
964 SUPREME COURT REPORTS [2006] 3 S.C.R.
A by temporary, contractual or casual employees. It cannot also be held that the
State has held out any promise while engaging these persons either to
continue them where they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious that the theory cannot
be invoked to seek a positive relief of being made permanent in the post.
(992-H; 993-A-BJ
B
17. The employees were engaged on daily wages in the concerned
department on a wage that was made known to them. There is no case that the
·-
wage agreed upon was not being paid. Those who are working on daily wages
formed a class by themselves; they cannot claim that they are discriminated
C as against those who have been regularly recruited on the basis of the relevant
rules. No right can be founded on an employment on daily wages to claim that
such employee should be treated on par with a regularly recruited candidate,
and made permanent in employment, even assuming that the principle could
be invoked for claiming equal wages for equal work. There is no fundamental
right in those who have been employed on daily wages or temporarily or on
D contractual basis to claim that they have a right to be absorbed in service. As
has been held by this Court, they cannot be said to be holders of a post, since,
a regular appointment could be made only by making appointments consistent
with the requirements of Articles 14 and 16 of the Constitution. The right to
be treated equally with the other employees employed on daily wages cannot
E be extended to a claim for equal treatment with those who were regularly --- ........
employed. That would be treating unequals as equals. lt cannot also be relied
on to claim a right to be absorbed in service even though they have never
been selected in terms of the relevant recruitment rules. The arguments based
on Articles 14 and 16 of the Constitution are, therefore, overruled.
(993-D-GJ
F
18. The rule of law compels the State to make appointments as envisaged
by the Constitution and in the manner that has been indicated earlier. In most
of these cases, no doubt, the employees had worked for some length of time
but this has also been brought about by the pendency of proceedings in
Tribunals and courts initiated at the instance of the employees. Moreover,
G accepting an argument of this nature would mean that the State would be
permitted to perpetuate an illegality in the matter of public employment and
that would be a negation of the constitutional scheme adopted by us, the people
of India. It is, therefore, not possible to accept the argument that there must
be a direction to make permanent all the persons employed on daily wages.
H When the court is approached for relief by way of a writ, the court has
SECRETARY, STATE OF KARNATAKA v. UMADEVI 965
necessarily to ask itself whether the person before it had any legal rightto A
be enforced. Considered in the light of the very clear constitutional scheme,
it cannot be said that the employees have been able tf}'establish a legal right
to be made permanent even though they have never been appointed in terms of
the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
(994-A-DJ B
19. It is argued that in a country like India where there is so much
poverty and unemployment and there is no equality of bargaining power, the
action of the State in not making the employees permanent, would be violative
of Article 21 of the Constitution. But the very argument indicates that there
are so many waiting for employment and an equal opportunity for competing C
for employment and it is in that context that the Constitution, as one of its
basic features, has included Articles 14, 16 and 309 so as· to ensure that public
employment is given only in a fair and equitable manner by giving all those
who are qualified, an opportunity to seek employment. In the guise of
upholding rights under Article 21 of the Constitution of India, a set of persons
cannot be preferred.over a vast majority of people waiting for an opportunity D
to compete for State employment. The acceptance of the argument on behalf
of the respondents would really negate the rights of the others conferred by
Article 21 of the Constitution, assuming that this Court is in a position to
hold that the right to employment is also a right coming within the purview of
Article 21 of the Constitution. The argument that Article 23 of the E
Constitntion is breached because the employment on daily wages amounts to
forced labour cannot be accepted. After all, the employees accepted the
employment at their own volition and with eyes open as to the nature of their
employment. The Governments also revised the minimum wages payable from
time to time in the light of all relevant circumstances. Importing of these
theories to defeat the basic requirement of public employment would defeat F
the constitutional scheme and the constitutional goal of equality.
[994-E-H; 995-A]
20. The argument that the right to life protected by Article 21 of the
Constitution of India would include the right to employment cannot also be
accepted at this juncture. The law is dynamic and our Constitution is a living G
document. Maybe at some future point of time, the right to employment can
also be brought in under the concept of right to life or even included as a
fundamental right. The new statute is perhaps a beginning. As things now
stand, the acceptance of such a plea at the instance of the employees before
this Court would lead to the consequence of depriving a large number of other H
966 SUPREME COURT REPORTS (2006] 3 S.C.R.
A aspirants of an opportunity to compete for the post or employment. Their right
to employment, if it is a part of right to life, would stand denuded by the
preferring of those who have got in casually or those who have come through
the back door. The obligation cast l){I the State under Article 39(a) of the
Constitution of India is to ensure thatoft;ll citizens equally have the right to
B adequate means of livelihood. It will be more consistent with that policy if the
courts recognize that an appointment to a post in Government service or in
the service of its instrumentalities can only be by way of a proper selection in
the manner recognized by the relevant legislation in the context of the relevant
provisions of the Constitution. In the name of individualizing justice, it is also
not possible to shut one's eyes to the constitutional scheme and the right of
C the numerous as against the few who are before the court. The Directive
Principles of State Policy have also to be reconciled with the rights available
to the citizens under Part Ill of the Constitution and the obligation of the State
to one and all and not to a particular group of citizens. The argument based
on Article 21 of the Constitution is overruled. (995-B-El
D 21. 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 an enforceable legal right to be permanently absorbed or
that the State has a legal duty to make them permanent. (996-AI
Dr. Rai Shivendra Bahadur v. The Governing Body of the Na/anda
E Co!fege, 119621Supp.2 SCR 144, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3595-3612/1999.
From the Judgment and Order dated 11.9.1998 of the High Court of
Karnataka at Bangalore in W.P. Nos. 3190-320711998.
F WITH
C.A. Nos. 1861-2063/2001, 3849/2001, 3520-3524/2002 and 1968/2006.
Mukul Rohtagi, M.C. Bhandare, Raju Ramachandran, Sanjay R. Hegde,
Saurabh Kirpal, Anil K. Mishra, A. Rohen Singh, Mohan V. Katarki, M.A.
G
Limbikai, Ashok Kumar Sharma, Naveen R. Nath, Ranganath Jois, M. Anitha
Shenoy, Ms. Lalit Mohini Bhat, Pooja Dhar, Saurabh Sinha, Joseph Pookkatt,
I
Arvind Karnath, Simanti Chakrabarti, Basava Prabhu S. Patil, A.S. Bhasme, B.
Subrahmanya Prasad, V. Laxminarayana, Kashi Vishweshwar, Nikhil Majithia,
Prashant Kumar, Rajesh Mahale and S. Manjunath for the appearing parties.
The Judgment of the Court was delivered by
II P.K. BALASUBRAMANYAN, J. Leave granted in SLP(C) Nos.9103-
(
SECRETARY, ST ATE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.] 967
9105 of2001 A
1. Public employment in a sovereign socialist secular democratic republic,
has to be as set down by the Constitution and the laws made thereunder. Our
constitutional scheme envisages employment by the Government and its
instrumentalities on the basis of a procedure established in that behalf.
Equality of opportunity is the hallmark, and the Constitution has provided B
also for affirmative action to ensure that unequals are not treated equals.
Thus, any public employment has to be in terms of the constitutional scheme.
2. A sovereign government, qmsidering the economic situation in the
country and the work to be got done, is not precluded from making temporary
appointments or engaging workers on daily wages. Going by a law newly C
enacted, The National Rural Employment Guarantee Act, 2005, the object is
to give employment to at least one member of a family for hundred days in
an year, on paying wages as fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to, when regular vacancies in
posts, at. a particular point of time, are to be filled up and the filling up of D
those vacancies cannot be done in a haphazard manner or based on patronage
or other considerations. Regular appointment must be the rule.
3. But, sometimes th is process is not adhered to and the Constitutional
scheme of public employment is by-passed. The Union, the States, their
departments and instrumentalities have resorted to irregular appointments, E
especially in the lower rungs of the service, without reference to the duty to
ensure a proper appointment procedure through the Public Service Commission
or otherwise as per the rules adopted and to permit these irregular appointees
or those appointed on contract or on daily wages, to continue year after year,
thus, keeping out those who are qualified to apply for the post concerned and F
depriving them of an opportunity to compete for the post. It has also led to
persons who get employed, without the following of a regular procedure or
even through the backdoor or on daily wages, approaching Courts, seeking
directions to make them permanent in their posts and to prevent regular
recruitment to the concerned posts. Courts have not always kept the legal
aspects in mind and have occasionally even stayed the regular process of G
.J employment being set in motion and in some cases, even directed that these
illegal, irregular or .improper entrants be absorbed into service. A class of
employment which can only be called 'litigious employment', has risen like
a phoenix seriously impairing the constitutional scheme. Such orders are
passed apparently in exercise of the wide powers under Article 226 of the H
Constitution of India. Whether the wide powers under Article 226 of the
968 SUPREME COURT REPORTS [2006] 3 S.C.R.
A Constitution is intended to be used for a purpose certain to defeat the
concept of social justice and equal opportunity for all, subject to affirmative
action in the matter of public employment as recognized by our Constitution,
has to be seriously pondered over. It is time, that Courts desist from issuing
orders preventing regular selection or recruitment at the instance of such
B persons and from issuing directions for continuance of those who have not
secured regular appointments as per procedure established. The passing of
orders for continuance, tends to defeat the very Constitutional scheme of
public employment. It has to be emphasized that this is not the role envisaged
for High Courts in the scheme of things and their wide powers under Article
226 of the Constitution of India are not intended to be used for the purpose
C of perpetuating illegalities, irregularities or improprieties or for scuttling the
whole scheme of public employment. Its role as the sentinel and as the
guardian of equal rights protection should not be forgotten.
4. This Court has also on occasions issued directions which cou Id not
be said to be consistent with the Constitutional scheme of public employment.
D Such directions are issued presumably on the basis of equitable considerations
or individualization of justice. The question arises, equity to whom? Equity
for the handful of people who have approached the Court with a claim, or
equity for the teeming millions of this country seeking employment and
seeking a fair opportunity for competing for employment? When one side of
the coin is considered, the other side of the coin, has also to be considered
E
and the way open to any court of law or justice, is to adhere to the law as
laid down by the Constitution and not to make directions, which at times,
even if do not run counter to the Constitutional scheme, certainly tend to
water down the Constitutional requirements. It is this conflict that is reflected
in these cases referred to the Constitution Bench.
F
5. The power of a State as an employer is more limited than that of a
private employer inasmuch as it is subjected to constitutional limitations and
cannot be exercised arbitrarily (See Basu 's Shorter Constitution of India).
Article 309 of the Constitution gives the Government the power to frame rules
for the purpose of laying down the conditions of service and recruitment of
G persons to be appointed to public services and posts in connection with the
affairs of the Union or any of the States. That Article contemplates the I...
drawing up of a procedure and rules to regulate the recruitment and regulate
the service conditions of appointees appointed to public posts. It is well
acknowledged that because of this, the entire process of recruitment for
H services is controlled by detailed procedure which specify the necessary
SECRETARY, STATE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.] 969
qualifications, the mode of appointment etc. If rules have been made under A
Article 309 of the Constitution, then the Government can make appointments
only in accordance with the rules. The State is meant to be a model employer.
The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959
was enacted to ensure equal opportunity for employment seekers. Though
this Act may not oblige an employer to employ only those persons who have
been sponsored by employment exchanges, it places an obligation on the B
employer to notify the vacancies that may arise in the various departments
and for filling up of those vacancies, based on a procedure. Normally, statutory
rules are framed under the authority of law governing employment. It is
recognized that no government order, notification or circular can be substituted
for the statutory rules framed under the authority of law. This is because, C
following any other course cou Id be disastrous inasmuch as it will deprive
the security of tenure and the right of equality conferred on civil servants
under the Constitutional scheme. It may even amount to negating the accepted
· service jurisprudence. Therefore, when statutory rules are framed under Article
309 of the Constitution which are exhaustive, the only fair means t.o adopt is
to make appointments based on the rules so framed. D
6. These two sets of appeals reflect the cleavage of opinion in the High
Court of Karnataka based on the difference in approach in two sets of
decisions of this Court leading to a reference of these appeals to the
Constitution Bench for decision. The conflict relates to the right, if any, of E
employees appointed by the State or by its instrumentalities on a temporary
basis or on daily wages or casually, to approach the High Court for the issue
of a writ of mandamus directing that they be made permaneht in appropriate
posts, the work of which they were otherwise doing. The claim is essentially
based on the fact that they having continued in employment or engaged in
the work for a significant length of time, they are entitled to be absorbed in F
the posts . in which they had worked in the department concerned or the
authority concerned. There are also more ambitious claims that even if they
were not working against a sanctioned post, even if they do not possess the
requisite qualification, even if they were not appointed in terms of the procedure
prescribed for appointment, and had only recently been engaged, they are G
entitled to continue and should be directed to be absorbed.
_/ 7. In Civil Appeal Nos.3595-3612of1999 the respondents therein who
were temporarily engaged on daily wages in the Commercial Taxes Department
in some of the districts of the State of Karnataka claim that they worked in
the department based on such engagement for more than I 0 years and hence H
970 SUPREME COURT REPORTS [2006) 3 S.C.R.
A they are entitled to be made permanent employees of the department, entitled
to all the benefits of regular employees. They were engaged for the first time
in the years 1985-86 and in the teeth of orders not to make such appointments
issued on 3. 7.1984. Though the Director of Commercial Taxes recommended
that they be absorbed, the Government did not accede to that recommendation.
These respondents thereupon approached the Administrative Tribunal in the
B year 1997 with their claim. The Administrative Tribunal rejected their claim
finding that they have not made out a right either to get wages equal to that
of others regularly employed or for regularization. Thus, the applications filed
were dismissed. The respondents approached the High Court of Kamataka
challenging the decision of the Administrative Tribunal. It is seen that the
C High Court without really coming to grips with the question falling for decision
in the light of the findings of the Administrative Tribunal and the decisions
of this Court, proceeded to order that they are entitled to wages equal to the
salary and allowances that are being paid to the regular employees of their
cadre in government service with effect from the dates from which they were
respectively appointed. It may be noted that this gave retrospective effect to
D the judgment of the High Court by more than I2 years. The High Court also
issued a command to the State to consider their cases for regularization within
a period of four months from the date of receipt of that order. The High Court
seems to have proceeded on the basis that, whether they were appointed
before 01.07.1984, a situation covered by the decision of this Court in Dharwad
E District Public Works Department v. State of Karnataka, [ 1990] 1 SCR 544
and the scheme framed pursuant to the direction thereunder, or subsequently,
since they have worked for a period of 10 years, they were entitled to equal
--
pay for equal work from the very inception of their engagement on daily
wage5 and were also entitled to be considered for regularization in their posts.
F 8. Civil Appeal Nos.1861-2063 of2001 reflects the other side of the coin.
The appellant association with indefinite number of members approached the
High Court with a writ petition under Article 226 of the Constitution of India
challenging the order of the government directing cancellation of appointments
of all casual workers/daily rated workers made after 01.07 .1984 and further
G seeking a direction for the regularization of all the daily wagers engaged by
the government of Kamataka and its local bodies. A learned Single Judge of
the High Court disposed of the writ petition by granting permission to the
petitioners before him, to approach their employers for absorption and
regularization of their services and also for payment of their salaries on par
with the regular workers, by making appropriate representations within the
H time fixed therein and directing the employers to consider the cases of the
7
SECRETARY, STATEOFKARNATAKAv. UMADEVI [BALASUBRAMANYAN,l] 971
claimants for absorption and regularization in accordance with the observations A
made by the Supreme Court in similar cases. The State of Karnataka filed
appeals against the decision of the learned Single Judge. A Division Bench
of the High Court allowed the appeals. It held that the daily wage employees,
employed or engaged either in government departments or other statutory
bodies after 01.07.1984, were not entitled to the benefit of the scheme framed B
by this Court in Dharwad District Public Works Department case, referred
to earlier. The High Court considered various orders and directions issued by
the government interdicting such engagements or employment and the manner
of entry of the various employees. Feeling aggrieved by the dismissal of their
claim, the members of the associations have filed these appeals.
9. When these matters came up before a Bench of two· Judges, the
c
learned Judges referred the cases to a Bench of three Judges. The order of
reference is reported in 2003 (9) SCALE 187. This Court noticed that in the
matter of regularization of ad hoc employees, there were conflicting decisions
by three Judge Benches of this Court and by two Judge Benches and hence
the question required to be considered by a larger Bench. When the matters D
came up before a three Judge Bench, the Bench in tum felt that the matter
required consideration by a Constitution Bench in view of the conflict and
in the light of the arguments raised by the Additional Solicitor General. The
order ofreference is reported in 2003 (10) SCALE 388. It appears to be proper
to quote that order of reference at this stage. It reads: E
I. "Apart from the conflicting opinions between the three
Judges' Bench decisions in Ashwani Kumar and Ors. v.
State of Bihar and Ors., reported in [ 1997] 2 SCC 1, State of
Ha1yana and Ors v. Piara Singh and Ors., Reported in
[1992] 4 SCC 118 and Dharwad Distt. P. W.D. Literate Daily F
Wage Employees Association and Ors. v. State of Karnataka
and Ors., Reported in [1990] 2 SCC 396, on the one hand and
State of Himachal Pradesh v. Suresh Kumar Verma and
Anr, reported in AIR (1996) SC 1565, State of Punjab v.
Surinder Kumar and Ors., Reported in AIR (1992) SC 1593,
and B.N. Nagarajan and Ors. v. State of Karnataka and G
Ors., reported in [ 1979] 4 SCC 507 on the other, which has
_/ been brought out in one of the judgments under appeal of
Karnataka High Court in State of Karnataka v. H Ganesh
Rao, decided on 1.6.2000, reported. in (2001) 4 Karnataka Law
Journal 466, learned Additional Solicitor General urged that H
972 SUPREME COURT REPORTS (2006] 3 S. C.R.
A the scheme for regularization is repugnant to Articles 16(4),
309, 320 and 335 of the Constitution of India and, therefore,
these cases are required to be heard by a Bench of Five
learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare, learned senior counsel,
B appearing for the employees urged that such a scheme for
regularization is consistent with the provision of Articles 14
and 21 of the Constitution.
3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CC
Nos.109-498 of2003, has filed the G.O. dated 19.7.2002 and
C submitted that orders have already been implemented.
4. After having found that there is conflict of opinion between
three Judges Bench decisions of this Court, we are of the
view that these cases are required to be heard by a Bench
of five learned Judges.
D
5. Let these matters be placed before Hon'ble the Chief Justice
for appropriate orders."
We are, therefore, called upon to resolve this issue here. We have to
lay down the law. We have to approach the question as a constitutional court
E should.
10. In addition to the equality clause represented by Article 14 of the
Constitution, Article 16 has specifically provided for equality ofopportunity
·-
in matters of public employment. Buttressing these fundamental rights, Article
309 provides that subject to the provisions of the Constitution, Acts of the
F legislature may regulate the recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the
Union or of a State. In view of the interp~~tation placed on Article 12 of the
Constitution by this Court, obviously, these principles also govern the
instrumentalities that come within the purview of Article 12 of the Constitution.
G With a view to make the procedure for selection fair, the Constitution by
Article 315 has also created a Public Service Commission for the Union and
Public Service Commissions for the States. Article 320 deals with the functions
of Public Service Commissions and mandates consultation with the Commission
on all matters relating to methods of recruitment to civil services and for civil
-
posts and other related matters. As a part of the affirmative action recognized
H by Article 16 of the Constitution, Article 335 provides for special consideration
SECRETARY, STATE OF KARNA I AKA v. UMADEVI [BALASUBRAMANYAN, J.] 973
in the matter cif claims of the members of the scheduled castes and scheduled A
tribes for employment. The States have made Acts, Rules or Regulations for
implementing the above constitutional guarantees and any recruitment to the
service in the State or in the Union is governed by such Acts, Rules and
Regulations. The Constitution does not envisage any employment outside
this constitutional scheme and without following the requirements set down B
therein.
11. In spite of this scheme, there may be occasions when the sovereign
State or its instrumerttalities will have to employ persons, in posts which are
temporary, on daily wages, as additional hands or taking them in without
following the required procedure, to discharge the duties in respect of the C
posts that are sanctioned and that are required to be filled in terms of the
relevant procedure established by the Constitution or for work in temporary
posts or projects that are not needed permanently. This right of the Union
or of the State Government cannot but be recognized and there is nothing in
the Constitiition which prohibits such engaging of persons temporarily or on
daily wages, to meet the needs of the situation. But the fact that such D
engagements are resorted to, cannot be used to defeat the very scheme of
public employment. Nor can a court say that the Union or the State
Governments do not have the right to engage persons in various capacities
for a duration or until the work in a particular project is completed. Once this
right of the Government is recognized and the mandate of the constitutional E
requirement for public employment is respected, there cannot be much difficulty
in coming to the conclusion that it is ordinarily not proper for courts.whether
acting under Article 226 of the Constitution or under Article 32 of the
Constitution, to direct absorption in permanent employment of those who
have been engaged without following a due process of selection as envisaged
by the constitutional scheme. F
12. What is sought to be pitted against this approach, is the so called
equity arising out of giving of temporary employment or engagement on daily
wages and the continuance of such persons in the engaged work for a certain
length of time. Such considerations can have only a limited role to play, when
every qualified citizen has a right to apply for appointment, the adoption of G
the concept of rule of law and the scheme of the Constitution for appointment
to posts. It cannot also be forgotten that it is not the role of courts to ignore,
encourage or approve appointments made or engagements given outside the
constitutional scheme. Jn effect, orders based on such sentiments or approach
would result in perpetuating illegalities and in the jettisoning of the scheme H
974 SUPREME COURT REPORTS [2006] 3 S.C.R.
A of public employment adopted by us while adopting. the Constitution. The
approving of such acts also results in depriving many of their opportunity
to compete for public employment. We have, therefore, to consider the question
objectively and based on the constitutional and statutory provisions. In this
context, we have also to bear in mind the exposition of law by a Constitution
B Bench in State of Punjab v. Jagdip Singh & Ors., [1964] 4 SCR 964. It was
held therein, "In our opinion, where a Government servant has no right to a
post or to a particular status, though an authority under the Government
acting beyond its competence had purported to give that person a status
which it was not entitled to give, he will not in law be deemed to have been
validly appointed to the post or given the particular status."
c 13. During the course of the arguments, various orders of courts either
interim or final were brought to our notice. The purport of those .orders more
or less was the issue of directions for continuation or absorption without
referring to the legal position obtaining. Learned counsel for the State of
Karnataka submitted that chaos has been created by such orders without
D reference to legal principles and it is time that this Court settled the law once
for all so that in case the court finds that such orders should not be made,
the courts, especially, the High Courts would be precluded from issuing such
directions or passing such orders. The submission of learned counsel for the
respondents based on the various orders passed by the High Court or by the
E Government pursuant to the directions of Court also highlights the need for
settling the law by this Court. The bypassing of the constitutional scheme
cannot be perpetuated by the passing of orders without dealing with and
deciding the validity of such orders on the touchstone of constitutionality.
While approaching the questions falling for our decision, it is necessary to
bear this in mind and to bring about certainty in the matter of public
F employment. The argument on behalf of some of the respondents is that this
Court having once directed regularization in the Dharwad case (supra), all
those appointed temporarily at any point of time would be entitled to be
regularized since otherwise it would be discrimination between those similarly
situated and in that view, all appointments made on daily wages, temporarily
G or contractually, must be directed to be regularized. Acceptance of this argument
would mean that appointments made otherwise than by a regular process of
selection would become the order of the day completely jettisoning the
constitutional scheme of appointment. This argument also highlights the need
for this Court to formally lay down the law on the question and ensure
--
certainty in dealings relating to public employment. The very divergence in
H approach in this Court, the so-called equitable approach made in some, as
l
SECRETARY, STATEOFKARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.] 975
against those decisions which· have insisted on the rules being followed, also A
justifies a firm decision by this Court one way or the other. It is necessary
to put an end to uncertainty and clarify the legal position emerging from the
constitutional scheme, leaving the High Courts to follow necessarily, the law
thus laid down.
14. Even at the threshold, it is.necessary to keep in mind the distinction B
between regularization and conferment of permanence in service jurisprudence.
In State ofMysore v. S. V. Narayanappa, [1967] l S.C.R. 128, this Court stated
that it was a mis-conception to consider that regularization meant permanence.
In R.N. Nanjundappa v. T. Thimmiah and Anr., [1972] 2 SCR 799, this Court
dealt with an argument that regularization would mean conferring the quality C
of permanence on the appointment. This Court stated:-
"Counsel on behalf of the respondent contended that regularization
would mean conferring the quality of permanence on the appointment,
whereas counsel on behalf of the State contended that regularization
did not mean permanence but that it was a case of regularization 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 regularized:
· Ratification or regularization is possible of an act which is within the
pcwer 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. Regularization 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 & Ors. v. State of Karnataka & Ors., [1979] 3 SCR 937, F
this court clearly held that the words "regular" or "regularization" 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 appaintments. This court G
emphasized that when rules framed under Article 309 of the Constitution of
India are in force, no regularization is permissible in exercise of the executive
powers of the Government under Article 162 of the Constitution in
contravention of the ru Jes. These decisions and the principles recognized
therein have not been dissented to by this Court and on principle, we see no
reason not to accept the proposition as enunciated in the above decisions. H
976 SUPREME COURT REPORTS [2006] 3 S.C.R.
A 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 regularized and that it alone can be regularized and granting
permanence of employment is a totally different concept and cannot be
B equated with regularization.
15. We have already indicated the constitutional scheme of public
employment in this country, and the executive, or for that matter the Court,
in appropriate cases, would have only the right to regularize an appointment
made after following the due procedure, even though a non-fundamental
C element of that process or procedure has not been followed. This right of the
executive and that of the court, would not extend to the executive or the court
being in a position to direct that an appointment made in clear violation of
the constitutional scheme, and the statutory rules made in that behalf, can be
treated as permanent or can be directed to be treated as permanent.
16. Without keeping the above distinction in mind and without
D discussion of the law on the question or the effect of the directions on the
constitutional scheme of appointment, this Court in Daily Rated Casual
Labour v. Union of India & Ors., (1988] l SCR 598 directed the Government
to frame a scheme for absorption of daily rated casual labourers continuously
working in the Posts and Telegraphs Department for more than one year. This
E Court seems to have been swayed by the idea that India is a socialist republic
and that implied the existence of certain important obligations which the State
.....
had to discharge. While it might be one thing to say that the daily rated
workers, doing the identical work, had to be paid the wages that were being
paid to those who are regularly appointed and are doing the same work, it
would be quite a different thing to say that a socialist republic and its
F Executive, is bound to give permanence to all those who are employed as
casual labourers or temporary hands and that too without a process of
selection or without following the mandate of the Constitution and the laws
made thereunder concerning public employment. The same approach was
made in Bhagwati Prasad v. Delhi State Mineral Development Corporation.
G [1989] Suppl. 2 SCR 513 where this Court directed regularization of daily rated
workers in phases and in accordance with seniority.
17. One aspect arises. Obviously, the State is also controlled by economic
considerations and financial implications of any public employment. The
viability of the department or the instrumentality or of the project is also of
H equal concern for the State. The State works out the scheme taking into
SECRETARY, STATE OF KARNA I AKA v. UMADEVI [BALASUBRAMANYAN,J.] 977
consideration the financial implications and the economic aspects. Can the A
court impose on the State a financial burden of this nature by insisting on
regularization or permanence in employment,.when those employed temporarily
are not needed permanently or regularly? As an example, we can envisage a
direction to give permanent employment to all those who are being temporarily
or casually employed in a public sector undertaking. The burden may become B
so heavy by such a direction that the undertaking itself may collapse under
its own weight. It is not as if this had not happened. So, the court ought not
to impose a financial burden on the State by such directions, as such directions
may turn counter-productive.
18. The Decision in Dharwad Distt. P. W.D. Literate Daily Wage C
Employees Association & Ors. v. State of Karnataka & Ors., [1990] I SCR
544 dealt with a scheme framed by the State of Karnataka, though at the
instance of the court. The scheme was essentially relating to the application
of the concept of equal pay for equal work but it also provided for making
permanent, or what it called regularization, without keeping the distinction in
mind, of employees who had been appointed ad hoc, casually, temporarily or D
on daily wage basis. In other words, employees who had been appointed
without following the procedure established by law for such appointments.
This Court, at the threshold, stated that it should individualize justice to suit
,- a given situation. With respect, it is not possible to accept the statement,
unqualified as it appears to be. This Court is not only the constitutional court, E
it is also the highest court in the country, the final court of appeal. By virtue
of Article 141 of the Constitution of India, what this Court lays down is the
law of the land. Its decisions are binding on all the courts. Its main role is
to interpret the constitutional and other statutory provisions bearing in mind
the fundamental philosophy of the Constitution. We have given unto ourselves
a system of governance by rule of law. The role of the Supreme Court is to F
render justice according to law. As one jurist put it, the Supreme Court is
expected to decide questions of law for the country and not to decide
individual cases without reference to such principles of law. Consistency is
a virtue. Passing orders not consistent with its own decisions on law, is
bound to send out confusing signals and usher in judicial chaos. Its role, G
therefore, is really to interpret the law and decide cases coming before it,
according to law. Orders which are inconsistent with the legal conclusions
arrived at by the court in the self same judgment not only create confusion
but also tend to usher in arbitrariness highlighting the statement, that equity
tends to vary with the Chancellor's foot.
H
978 SUPREME COURT REPORTS (2006] 3 S. C.R.
A 19. In Dharwad case, this Court was actually dealing with the question
of'equal pay for equal work' and had directed the State ofKamataka to frame
a scheme in that behalf. In paragraph 17 of the judgment, this Court stated
that the precedents obliged the State of Kamataka to regularize the services
of the casual or daily/monthly rated employees and to make them the same
payment as regular employees were getting. Actually, this Court took note of
B the argument of counsel for the State that in rea!ity and as a matter of
statecraft, implementation of such a direction was an economic impossibility
and at best only a scheme could be framed. Thus a scheme for absorption
of casual/daily rated employees appointed on or before 1.7.1984 was framed
and accepted. The economic consequences of its direction were taken note
C of by this Court in the following words.
"We are alive to the position that the scheme which we have finalized
is not the ideal one but as we have already stated, it is the obligation
of the court to individualize justice to suit a given situation in a set
of facts that are placed before it. Under the scheme of the Constitution,
D the purse remains in the hands of the executive. The legislature of the
State controls the Consolidated Fund out of which the expenditure to
be incurred, in giving effect to the scheme, will have to be met. The
-
flow into the Consolidated Fund depends upon the policy of taxation
depending perhaps on the capacity of the payer. Therefore, unduly
burdening the State for implementing the constitutional obligation
E forthwith would create problems which the State may not be able to
stand. We have, therefore, made our directions with judicious restraint
with the hope and trust that both parties would appreciate and
understand the situation. The instrumentality of the State must realize
that it is charged wiih a big trust. The money that flows into the
F Consolidated Fund and constitutes the resources of the State comes
from the people and the welfare expenditure that is meted out goes
from the same Fund back to the people. May be that in every situation
the same tax payer is not the beneficiary. That is an incident of
taxation and a necessary concomitant ofliving within a welfare society."
G With respect, it appears to us that the question whether the jettisoning of the
constitutional scheme of appointment can be approved, was not considered
or decided. The distinction emphasized in R.N. Nanjundappa v. T. Thimmiah
and .4nr., (supra), was also not kept in mind. The Court appears to have been
dealing with a scheme for 'equal pay for equal work' and in the process,
H without an actual discussion of the question, had approved a scheme put
SECRETARY, STATE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.] 979
forward by the State, prepared obviously at the direction of the Court, to A
order permanent absorption of such daily rated workers. With respect to the
learned judges, the decision cannot be said to lay down any law, that all those
engaged on daily wages, casually, temporarily, or when no sanctioned post
or vacancy existed and without following the rules of selection, should be
absorbed or made permanent though not at a stretch, but gradually. If that B
were the ratio, with respect, we have to disagree with it.
20. We may now consider, State of Haryana v. Piara Singh and Ors.,
[1992] 3 SCR 826. There, the court was considering the sustainability of
certain directions issued by the High Court in the light of various orders
passed by the State for the absorption of its ad hoc or temporary employees C
and daily wagers or casual labour. This Court started by saying:
"Ordinarily speaking, the creation and abnlition of a post is the
prerogative of the Executive. It is the Executive again that lays down
the conditions of service subject, of course, to a law made by the
appropriate legislature. This power to prescribe the conditions of D
service can be exercised either by making rules under the proviso to
Article 309 of the Constitution or (in the absence of such rules) by
issued rules/instructions in exercise of its executive power. The court
comes into the picture only to ensure observance of fundamental
rights, statutory provisions, rules and other instructions, if any
governing the conditions of service" E
This Court then referred to some of the earlier decisions of this Court while
stating:
"The main concern of the court in such matters is to ensure the rule
of law and to see that the Executive acts fairly and gives a fair deal F
to its employees consistent with the requirements of Articles 14 and
16. It also means that the State should not exploit its employees nor
should it seek to take advantage of the helplessness and misery of
either the unemployed persons or the employees, as the case may be.
As is often said, the State must be a model employer. It is for this G
reason, it is held that equal pay must be given for equal work, which
is indeed one of the directive principles of the Constitution. it is for
this very reason it is held that a person should not be kept in a
temporary or ad hoc status for long. Where a temporary or ad hoc
appointment is continued for long the court presumes that there is.
need and warrant for a regular post and accordingly directs H
980 SUPREME COURT REPORTS [2006] 3 S.C.R.
A regularization. While all the situations in which the court may act to
ensure fairness cannot be detailed here, it is sufficient to indicate that
the guiding principles are the ones stated above."
This Court then concluded in paragraphs 45 to 50:
B "The normal rule, of course, is regular recruitment through the
prescribed agency but exigencies of administration may sometimes
call for an ad hoc or temporary appointment to be made. In such a
situation, effort should always be to replace such an ad hoc/temporary
employee by a regularly selected employee as early as possible. Such
a temporary employee may also compete along with others for such
c regular selection/appointment. If he gets selected, well and good, but
if he does not, he must give way to the regularly selected candidate.
The appointment of the regularly selected candidate cannot be withheld
or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced
D by another ad hoc or temporary employee; he must be replaced only
by a regularly selected employee. This is necessary to avoid arbitrary
action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is
m:cessitated on account of the exigencies of administration, he should
E ordinarily be drawn from the employment exchange unless it cannot
brook delay in which case the pressing cause must be stated on the
file. If no candidate is available or is not sponsored by the employment
exchange, some appropriate method consistent with the requirements
of Article 16 should be followed. In other words, there must be a
F notice published in the appropriate manner calling for applications
and all those who apply in response thereto should be considered
fuirly.
An unqualified person ought to be appointed only when qualified
persons are not available through the above processes.
G
If for any reason, an ad hue or temporary employee is continued
for a fairly long spell, the authorities must consider his case for
regularization provided he is eligible and qualified according to the
rules and his service record is satisfactory and his appointment does
not run counter to the reservation policy of the State."
H
SECRET ARY, STA TE OF KARNA TAKA '" UMADEV! [BALASUBRAMANYAN, J.] 98 J
With respect, why should the State be allowed to depart from the normal rule A
and indulge in temporary employment in permanent posts? This Court, in our
view, is bound to insist on the State making regular and proper recruitments
and is bound not to encourage or shut its eyes to the persistent transgression
of the rules of regular recruitment. The direction to make permanent-the
distinction between regularization and making permanent, was not emphasized B
here--can only encourage the State, the model employer, to flout its own
rules and would confer undue benefits ori a few at the cost of many waiting
to compete. With respect, the direction made in paragraph 50 of Piara Singh
(supra) are to some extent inconsistent with the conclusion in paragraph 45
therein. With great respect, it appears to us that the last of the directions
clearly runs counter to the constitutional scheme of employment recognized C
in the earlier part of the decision. Really, it cannot be said that this decision
has laid down the law that all ad hoc, temporary or casual employees engaged
without following the regular recruitment procedure should be made permanent.
21. We shall now refer to the other decisions. In State of Punjab and
Ors. v. Surinder Kumar and Ors., [1991] Suppl. 3 SCR 553, a three judge D
bench of this Court held that High Courts ·had no power, like the power
available to the Supreme Court under Article 142 of the Constitution of India,
and merely because the Supreme Court granted certain reliefs in exercise of
its power under Article 142 of the Constitution of India, similar orders could
not be issued by the High Courts. The bench pointed out that a decision is E
available as a precedent only if it decides a question of law. The temporary
employees would not be entitled to rely in a Writ Petition they filed before
the High Court upon an order of the Supreme Court which directs a temporary
employee to be regularized in his service without assigning reasons and ask
the High Court to pass an order of a similar nature. This Court noticed that
the jurisdiction of the High Court while dealing with a Writ Petition was F
circumscribed by the limitations discussed and declared by judicial decisions
and the High Court cannot transgress the limits on the basis of the whims
or subjective sense of justice varying from judge to judge. Though the High
Court is entitled to exercise its judicial discretion in deciding Writ Petitions
or Civil Revision Applications corning before it, the discretion had to be G
confined in declining to entertain petitions and refusing to grant reliefs asked
for by the petitioners on adequate considerations and it did not permit the
High Court to grant relief on such a consideration alone. This Court set aside
the directions given by the High Court for regularization of persons appointed
temporarily to the post of lecturers. The Court also emphasized that specific
terms on which appointments were made should be normally enforced. Of H
982 SUPREME COURT REPORTS [2006] 3 S.C.R.
A course, this decision is more on the absence of power in the High Court to
pass orders against the constitutional scheme of appointment.
22. In Director, Institute of Management Development, U.P. v. Pushpa
Srivastava (Smt.), [1992] 3 SCR 712, this Court held that since the appointment
was on purely contractual and ad hoc basis on consolidated pay for a fixed
B period and terminable without notice, when the appointment came to an end
by efflux of time, the appointee had no right to continue in the post and to
claim regularization in service in the absence of any rule providing for
regularization after the period of service. A limited relief of directing that the
appointee be permitted on sympathetic consideration to be continued in
C service till the end of the concerned calendar year was issued. This Court
noticed that when the appointment was purely on ad hoc and contractual
basis for a limited period, on the expiry of the period, the right to remain in
the post came to an end. This Court stated that the view they were taking
was the only view possible and set aside the judgment of the High Court
which had given relief to the appointee.
D
23. In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and
Ors., AIR [1994] SC 1638, a three judge bench of this Court held that ad hoc
appointees/temporary employees engaged on ad hoc basis and paid on piece-
rate basis for certain clerical work and discontinued on completion of their
task, were not entitled to reinstatement or regularization of their services even
E if their working period ranged from one to two years. This decision indicates
that if the engagement was made in a particular work or in connection with
particular project, on completion of that work or of that project, those who
were temporarily engaged or employed in that work or project could not claim
any right to continue in service and the High Court cannot direct that they
p be continued or absorbed elsewhere.
24. In State ofHimachal Pradesh v. Suresh Kumar Verma, [1996] l SCR
972, a three Judge Bench of this Court held that a person appointed on daily
wage basis was not an appointee to a post according to Rules. On his
termination, on the project employing him coming to an end, the Court could
G not issue a direction to re-engage him in any other work or appoint him
against existing vacancies. This Court said:
"It is settled law that having made rules of recruitment to various
services under the State or to a class of posts under the State, the
State is bound to follow the same and to have the selection of the
H candidates made as per recruitment rules and appointments shall be
SECRETARY, STATE OF KARNA TAKA v. UMADEVI [BALASUBRAMANYAN, J.] 983
made accordingly. From the date of discharging the duties attached A
to the post the incumbent becomes a member of the services.
Appointment on daily wage basis is not an appointment to a post
according to the Rules."·
Their Lordships cautioned that if directions are given to re-engage such
persons in any other work or appoint them against existing vacancies, "the B
judicial process would become another mode of recruitment dehors the rules."
25. In Ashwani Kumar and Ors. v. State of Bihar and Ors.,. (1996] Supp.
10 SCR 120, this Court was considering the validity of confirmation of the
irregularly employed. It was stated:
c
"So far as the question of confirmation of these employees whose
entry was illegal and void, is concerned, it is to be noted that question
of confirmation or regularization of an irregularly appointed candidate
would arise if the candidate concerned is appointed in an irregular
manner or on ad hoc basis against an available vacancy which is D
already sanctioned. But if the initial entry itself is unauthorized and
is not against any sanctioned vacancy, question of regularizing the
incumbent on such a non-existing vacancy would never survive for
c<;msideration and even if such purported regularization or confirmation
is given it would be an exercise in futility."
E
This Court further stated :
"In this connection it is pertinent to note that question of
regularization in any service including any government service rii.ay
arise in two contingencies. Firstly, if on any available clear vacancies
which are of a long duration appointments are made on ad hoc basis F
or daily-wage basis by a competent authority and are continued from
time to time and if it is found that the incumbents concerned have
continued to be employed for a long period of time with br without
any artificial breaks, and their services are otherwise required by the
institution which employs them, a time may come in the service career
of such employees who are continued on ad hoc basis for a given G
substantial length of time to regularize them so that the employees
concerned can give their best by being assured security of tenure. But
this would require one precondition that the initial entry of such an
employee must be made against an available sanctioned vacancy by
following the rules and regulations governing such entry. The second H
984 SUPREME COURT REPORTS [2006] 3 S.C.R.
A type of situation in which the question of regularization may arise
would be when the initial entry of the employee against an available
vacancy is found to have suffered from some flaw in the procedural
exercise though the person appointing is competent to effect such
initial recruitment and has otherwise followed due procedure for such
recruitment. A need may then arise in the light of the exigency of
B administrative requirement for waiving such irregularity in the initial
appointment by a competent authority and the irregular initial
appointment may be regularized and security of tenure may be made
available to the incumbent concerned. But even in such a case the
initial entry must not be found to be totally illegal or in blatant
c disregard of all the established rules and regulations governing such
recruitment."
The Court noticed that in that case all constitutional requirements were
thrown to the wind while making the appointments. It was stated,
D "On the contrary all efforts were made to bypass the recruitment
procedure known to law which resulted in clear violation of Articles
14 and 15(1) of the Constitution oflndia, both at the initial stage as
well as at the stage of confirmation of these illegal entrants. The so
called regularizations and confirmations could not be relied on as
shields to cover up initial illegal and void actions or to perpetuate the
E corrupt methods by which these 6000 initial entrants were drafted in
the scheme."
26. 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 an ad hoc appointment can be made in
F a permanent vacancy, but the same should soon be followed by a regular
recruitment and that appointments to non-available 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 work for some
period, he should be absorbed, without really laying down any law to that
G effect, after discussing the constitutional scheme for public employment.
27. In A. Umarani v. Registrar, Cooperative Societies and Ors., (2004]
7 sec 112, a three judge bench made a survey of the authorities and held that
when appointments were made in contravention of mandatory provisions of
the Act and statutory rules framed thereunder and by ignoring essential
H qualifications, the appointments would be illegal and cannot be regularized by
SECRETARY, STATEOFKARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.] 985
the State. The State could nC!t invoke its power under Article 162 of the A
Constitution to regularize such appointments. This Court also held that
regularization is not and cannot be a mode of recruitment by any State within
the meaning of Article 12 of the Constitution oflndia or any body or authority
governed by a statutory Act or the Rules framed thereunder. Regularization
furthermore cannot give permanence to an employee whose services are ad B
hoc in nature. It was also held that the fact that some persons had been
working for a long time· would not mean that they had acquired a right for
regularization.
28. Incidentally, the Bench also referred to the nature of the orders to
be passed in exercise of this Court's jurisdiction under Article 142 of the C
Constitution. This Court stated that jurisdiction under Article 142 of the
Constitution could not be exercised on misplaced sympathy. This Court quoted
with approval the observations of Farewell, L.J. in Latham v. Richard Johnson
& Nephew Ltd., (1913) 1 KB 398):
"We must be very careful not to allow our sympathy with the D
infant plaintiff to affect our judgment. Sentiment is a dangerous will
o' the wisp to take as a guide in the search for legal principles."
This Court also quoted with approval the observations of this Court in Teri
Oat Estates (P) Ltd. v. UT., Chandigarh, [2004] 2 SCC 130 to the effect:
E
"We have no doubt in our mind that sympathy or sentiment by
itself cannot be a ground for passing an order in relation whereto the
appellants miserably fail to establish a legal right. It is further trite that
despite an extraordinary constitutional jurisdiction contained in Article
142 of the Constitution of India, this Court ordinarily would not pass
an order which would be in contravention of a statutory provision." F
This decision kept in mind the distinction between 'regularization' and
'permanency' and laid down that regularization is not and cannot be the mode
of recruitment by any State. It also held that regularization cannot give
permanence to an employee whose services are ad hoc in nature.
G
29. It is not necessary to multiply authorities on this aspect. It is only
necessary to refer to one or two of the recent decisions in this context. In
State of U.P. v. Niraj Awasthi and Ors., [2006] I SCC 667 this Court after
referring to a number of prior decisions held that there was no power in the
State under Art. 162 of the Constitution of India to make appointments and H
986 SUPREME COURT REPORTS (2006] 3 S. C.R.
A even if there was any such power, no appointment could be made in
contravention of statutory rules. This Court also held that past alleged
regularisation or appointment does not connote entitlement to further
regularization or appointment. It was further held that the High Court has no
jurisdiction to frame a scheme by itself or direct the framing of a scheme for
B regularization. This view was reiterated in State ofKarnataka v. KGSD Canteen
Employees Welfare Association, JT (2006) 1 SC 84.
30. In Union Public Service Commission v. Girish Jayanti Lal Vaghela
& Ors., (2006) 2 SCALE 115, this Court answered the question, who was a
Government servant and stated:-
c "Article 16 which finds place in Part III of the Constitution relating to
fundamental rights provides that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to
any office under the State. The main object of Article 16 is to create
a constitutional right to equality of opportunity and employment in
D public offices. The words "employment" or "appointment" cover not
merely the initial appointment but also other attributes of service like
promotion and age of superannuation etc. The appointment to any
post under the State can only be made after a proper advertisement
has been made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially constituted
E commitke whose members are fair and impartial through a written
examination or interview or some other rational criteria for judging the
inter se merit of candidates who have applied in response to the
advertisement made. A regular appointment to a post under the State
or Union cannot be made without issuing advertisement in the
F prescribed manner which may in some cases include inviting
applications from the employment exchange where eligible candidates
get their names registered. Any regular appointment made on a post
under the State or Union without issuing advertisement inviting
applications from eligible candidates and without holding a proper
selection where all eligible candidates get a fair chance to compete
G would violate the guarantee enshrined under Article 16 of the
Constitution (See B.S. Minhas v. Indian Statistical Institute and Ors.,
AIR (1984) SC 363)."
31. There have been decisions which have taken the cue from the
Dharwad (supra) case and given directions for regularization, absorption or
H
•
--1·,
SECRETARY, STA TE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN, J.] 987
making pennanent, employees engaged or appointed without following the A
due process or the rules for appointment. The philosophy behind this approach
is seen set out in the recent decision in The Workmen of Bhurkunda Colliery
of Mis Central Coalfields Ltd. v. The Management of Bhurkunda Colliery of
Mis Central Coalfields Ltd, JT (2006) 2 SC I, though the legality or validity
of such an approach has not been independently examined. But on a survey ·
- of authorities, the predominant view is seen to be that such appointments did B
not confer any right on the appointees and that the Court cannot direct their
absorption or regularization or re-engagement or making them permanent.
32. At this stage, it is relevant to notice two aspects. In Kesavananda
Bharativ. State of Kera/a, [1973] Supp. S.C.R. I, this Court held that Article C
14, and Article 16, which was described as a facet of Article 14, is part of the
basic structure of the Constitution of India. The position emerging from
Kesavananada Bharati (supra) was summed up by Jagannatha Rao, J., speaking
for a Bench of three Judges in Indira Sawhney v. Union of India, [1999]
Suppl. 5 S.C.R. 229. That decision also reiterated how neither the Parliament
nor the Legislature could transgress the basic feature of the Constitution, D
namely, the principle of equality enshrined in Article 14 of which Article 16
(I) is a facet. This Court stated,
"The preamble to the Constitution of India emphasises the principle
of equality as basic to our constitution. In Keshavananda Bharati v.
State of Kera/a, it was ruled that even constitutional amendments E
which offended the basic structure of the Constitution would be ultra
vires the basic structure. Sikri, CJ. laid stress on the basic features
enumerated in the preamble to the Constitution and said that there
were other basic features too which could be gathered. from the
Constitutional scheme (para 506 A of SCC). Equality was one of the F
basic features referred to in the Preamble to our Constitution. Shela!
and Grover, JJ. also referred to the basic rights referred to in the
Preamble. They specifically referred to equality (paras 520 and 535A
of SCC). Hegde & She lat, JJ. also referred to the Preamble (paras 648,
652). Ray, J. (as he then was) also did so (para 886). Jaganmohan
Reddy, J. too referred to the Preamble and the equality doctrine (para G
1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred
to equality as a basic feature (para 1621). Dwivedi, J. (paras 1882,
1883) and Chandrachud, J. (as he then was) (see para 2086) accepted
this position.
What we mean to say is that Parliament and the legislatures in this H
988 SUPREME COURT REPORTS [2006] 3 S.C.R.
A Country cannot transgress the basic feature of the Constitution, namely,
the principle of equality enshrined in Article 14 of which Article 16(1)
is a facet."
33. In the earlier decision in Indra Sawhney v. Union of India, [1992]
~upp. 2 S.C.R. 454, B.P. Jeevan Reddy, J. speaking for the majority, while
B acknowledging that equality and equal opportunity is a basic feature of our
Constitution, has explained the exultant position of Articles 14 and 16 of the
Constitution of India in the scheme of things. His Lordship stated:-
-
"6. The significance attached by the founding fathers to the right to
equality is evident not only from the fact that they employed both the
c expressions 'equality before the law' and 'equal protection of the
laws' in Article 14 but proceeded further to state the same rule in
positive and affirmative terms in Articles 15 to 18 ............................ .
7. Inasmuch as public employment always gave a certain status and
D power - it has always been the repository of State power -besides
the means of livelihood, special care was taken to declare equality of
opportunity in the matter of public employment by Article 16. Clause
(I), expressly declares that in the matter of public employment or
appointment to any office under the state, citizens of this country
E shall have equal opportunity while clause (2) declares that no citizen
shall be discriminated in the said matter on the grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of
them. At the same time, care was taken to, declare in clause (4) that
nothing in the said Article shall prevent the state from making any
provision for reservation of appointments or posts in favour of any
F backward class of citizen which in the opinion of the state, is not
adequately represented in the services under the state ..... "
(See paragraphs 6 and 7 at pages 544 and 545)
These binding decisions are clear imperatives that adherence to Articles 14
G and 16 of the Constitution is a must in the process of public employment.
34. While answering an objection to the locus standi of the Writ
Petitioners in challenging the repeated issue of an ordinance by the Governor
of Bihar, the exalted position of rule of law in the scheme of things was
emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution
H Bench in Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., [1987] l S.C.R.
SECRETARY, STATEOFKARNATAKA" UMADEVI [BALASUBRAMANYAN,J] 989
798 stated:
"The rule of law constitutes the core of our Constitution of India and
it is the essence of the rule of law that the exercise of th~ power by
the State whether it be the Legislature or the Executive or any other
authority should be within the constitutional limitations and if any
practice is adopted by the Executive which is in flagrant and systematic B
violation of its constitutional limitations, petitioner No. 1 as a member
of the public would have sufficient interest to challenge such practice
by filing a writ petition and it would be the constitutional duty of this
Court to entertain the writ petition and adjudicate upon the validity
of such practice."
c
Thus, it is clear that adherence to the rule of equality in public employment
is a basic feature of our Constitution and since the rule of law is the core of
our Constitution, a Court would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article 16 of the D
Constitution. Therefore, consistent with the scheme for public employment,
this Court while laying down the law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to al) end at the end
of the contract, if it were an engagement or appointment on daily wages or E
casual basis, the same would come to an end when it is discontinued. Similarly,
a temporary employee could not claim to be made permanent on the expiry
of his term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time beyond
the term of his appointment, he would not be entitled to be absorbed in F
regular service or made pennanent, merely on the strength of such continum,.;e,
if the original appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not open to the court to
prevent regular recruitment at the instance of temporary employees whose
period of employment has come to an end or of ad hoc employees who by
the very nature of their appointment, do not acquire any right. High Courts G
" acting under Article 226 of the Constitution of India, should not ordinarily
issue directions for absorption, regularization, or permanent continuance unless
the recruitment itself was made regularly and in terms of the constitutional
scheme. Merely because, an employee had continued under cover of an order
of Court, which we have described as 'litigious employment' in the earlier part H
990 SUPREME COURT REPORTS [2006] 3 S.C.R.
A of the judgment, he would not be entitled to any right to be absorbed or made
permanent in the service. In fact, in such cases, the High Court may not be
justified in issuing interim directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be possible for it to mould
the relief in such a manner that ultimately no prejudice will be caused to him,
whereas an interim direction to continue his employment would hold up the
B regular procedure for selection or impose on the State the burden of paying
an employee who is really not required. The courts must be careful in ensuring
that they do not interfere unduly with the economic arrangement of its affairs
by the State or its instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory mandates.
c 35. The concept of 'equal pay for equal work' is different from the
concept of conferring permanency on those who have been appointed on ad
hoc basis, temporary basis, or based on no process of selection as envisaged
by the Rules. This Court has in various decisions applied the principle of
equal pay for equal work and has laid down the parameters for the application
D of that principle. The decisions are rested on the concept of equality enshrined
in our Constitution in the light of the directive principles in that behalf. But
the acceptance of that principle cannot lead to a position where the court
could direct that appointments made without following the due procedure
established by law, be deemed permanent or issue directions to treat them as
E permanent. Doing so, would be negation of the principle of equality of
opportunity. The power to make an order as is necessary for doing complete
justice in any cause or matter pending before this Court, would not normally
be used for giving the go-by to the procedure established by law in the matter
of public employment. Take the situation arising in the cases before us from
the State of Karnataka. Therein, after the Dharwad decision, the Government
F had issued repeated directions and mandatory orders that no temporary or ad
hoc employment or engagement be given. Some of the authorities and
departments had ignored those directions or defied those directions and had
continued to give employment, specifically interdicted by the orders issued
by the executive. Some of the appointing officers have even been punished
G for their defiance. It would not be just or proper to pass an order in exercise
of jurisdiction under Article 226 or 32 of the Constitution or in exercise of
power under Article 142 of the Constitution of India permitting those persons
engaged, to be absorbed or to be made permanent, based on their appointments
or engagements. Complete justice would be justice according to law and
-
though it would be open to this Court to mould the relief, this Court would
H not grant a r.elief which would amount to perpetuating an illegality.
SECRET ARY, STA TEOF KARNA TAKA v. UMADEVI [BALASUBRAMANYAN, J.] 99 J
36. While directing that appointments, temporary or casual, be regularized A
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 aware of the nature of his employment. He accepts
the employment with eyes open. It may be true that he is not in a position B
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 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 pennanently. By
doing so, it will be creating another mode of public appointment which is not C
permissible. If the court were to void a contractual employment of this nature
· on the ground that the parties were not having equal bargaining power, that
too would not enable the court to grant any relief to that employee. A total
embargo on such casual or temporary employment is not possible, given the
exigencies of administration and if imposed, would only mean that some
peQPle who at least get employment temporarily, contractually or casually, D
would not be getting even that employment 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 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 E
the employment was accepted fully knowing the nature of it and the
consequences flowing from it. Jn other words, even while accepting the
employment, the person concerned knows the nature of his employment. It
is not an appointment to a post in the real sense of the term. The claim
acquired by him in the post in which he is temporarily employed or the
interest in that post cannot be considered to be of such a magnitude as to F
enable the giving up of the procedure established, for making regular
appointments to available posts in the services of the State. The argument
that since one has been working for some time in the post, it will not be just
to discontinue him, even though he was aware of the nature of the employment
when he first took it up, is not one that would enable the jettisoning of the G
.. procedure established by law for public employment and would have to fail
when tested on the touchstone of constitutionality and equality of opportunity
enshrined in Article I 4 of the Constitution of India.
37. Learned Senior Counsel for some of the respondents argued that on
the basis of the doctrine of legitimate expectation, the employees, especially H
992 Sl'PREME COURT REPORTS [2006] 3 S.C.R.
A of the Commercial Taxes Department, should be directed to be regularized
since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and
Gujarat Agricultural University and the like, have given rise to an expectation
in them that their services would also be regularized. The doctrine can be
invoked if the decisions of the Administrative Authority affect the person by
B depriving him of some benefit or advantage which either (i) he had in the past
been permitted by the decision-maker to enjoy and which he can legitimately
expect to be permitted to continue to do until there have been communicated
to him some rational grounds for withdrawing it on which he has been given
an opportunity to comment; or (ii) he has received assurance from the decision-
maker that they will not be withdrawn without giving him first an opportunity
C of advancing reasons for contending that they should not be withdrawn {See
Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Service, (1985) Appeal Cases 374, National Buildings Construction Corpn.
v. S. Raghunathan, [1998) 7 SCC 66 and Dr. Chanchal Goyal v. State of
Rajasthan, [2003) 3 SCC 485}. There is no case that any assurance was given
by the Government or the concerned department while making the appointment
D on daily wages that the status conferred on him will not be withdrawn until
some rational reason comes into existence for withdrawing it. The very
engagement was against the constitutional scheme. Though, the Commissioner
of the Commercial Taxes Department sought to get the appointments made
permanent, there is no case that at the time of appointment any promise was
E held out. No such promise could also have been held out in view of the
circulars and directives issued by the Government after the Dharwad decision.
Though, there is a case that the State had made regularizations in the past
of similarly situated employees, the fact remains that such regularizations
were done only pursuant to judicial directions, either of the Administrative
Tribunal or of the High Court and in some case by this Court. Moreover, the
F invocation of the doctrine oflegitimate expectation cannot enable the employees
to claim that they must be made permanent or they must be regularized in the
service though they had not been selected in terms of the rules for appointment.
The fact that in certain cases the court had directed regularization of the
employees involved in those cases cannot be made use of to found a claim
G based on legitimate expectation. The argument if accepted would also run
counter to the constitutional mandate. The argument in that behalf has therefore
to be rejected.
38. When a person enters a temporary employment or gets engagement
as a contractual or casual worker and the engagement is not based on a
H proper selection as recognized by the relevant rules or procedure, he is aware
SECRETARY, STATE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN, J.1 993
.c
of the consequences of the appointment being temporary, casual or contractual A
in nature. Such a person cannot invoke the theory of legitimate expectation
for being confirmed in the post when an appointment to the post could be
made only by following a proper procedure for selection and in concerned
cases, in consultation with the Public Service Commission. Therefore, the
. theory of legitimate expectation cannot be successfully advanced by temporary, B
contractual or casual employees. It cannot also be held that the State has held
out any promise while engaging these persons either to continue them where
they are or to make them permanent. The State cannot constitutionally make
such a promise. It is also obvious that the theory cannot be invoked to seek
a positive relief of being made permanent in the post.
39. It was then contended that the rights of the employees thus
c
appointed, under Articles 14 and 16 of the Constitution, are violated. It is
stated that the State has treated the employees unfairly by employing them
on less than minimum wages and extracting work from them for a pretty long
period in comparison with those directly recruited who are getting more
wages or salaries for doing similar work. The employees before us were D
engaged on daily wages in the concerned department on a wage that was
made known to them. There is no case that the wage agreed upon was not
being paid. Those who are working on daily wages formed a class by
themselves, they cannot claim that they are discriminated as against those
who have been regularly recruited on the basis of the relevant rules. No right E
can be founded on an employment on daily wages to claim that such employee
should be treated on a par with a regularly recruited candidate, and made
permanent in employment, even assuming that the principle could be invoked
for claiming equal wages for equal work. There is no fundamental right in
those who have been employed on daily wages or temporarily or on contractual
basis, to claim that they have a right to be absorbed in service. As has been F
held by this Court, they cannot be said to be holders of a post, since, a
regular appointment could be made only by making appointments consistent
with the requirements of Articles 14 and 16 of the Constitution. The right to
be treated equally with the other employees employed on daily wages, cannot
be extended to a claim for equal treatment with those who were regularly G
employed. That would be treating unequals as equals. It cannot also be relied
on to claim a right to be absorbed in service even though they have never
been selected in terms of the relevant recruitment rules. The arguments based
on Articles 14 and· 16 of the Constitution are therefore overruled.
40. 1t is contended that the State action in not regularizing the employees H
•
994 SUPREME COURT REPORTS [2006] 3 S.C.R.
A was not fair within the framework of the rule of law. The rule oflaw compels
the State to make appointments as envisaged by the Constitution and in the
manner we have indicated earlier. In most of these cases, no doubt, the
employees had worked for some length of time but this has also been brought
about by the pendency of proceedings in Tribunals and courts initiated at the
instance of the employees. Moreover, accepting an argument of this nature
B would mean that the State would be permitted to perpetuate an illegality in
the matter of public employment and that would be a negation of the
constitutional scheme adopted by us, the people of India. It is therefore not
possible to accept the argument that there must be a direction to make
permanent all the persons employed on daily wages. When the court is
C approached for relief by way of a writ, the court has necessarily to ask itself
whether the person before it had any legal right to be enforced. Considered
in the light of the very clear constitutional scheme, it cannot be said that the
employees have been able to establish a legal right to be made permanent
even though they have never been appointed in terms of the relevant rules
or in adherence of Articles 14 and 16 of the Constitution.
D
41. It is argued that in a country like India where there is so much
poverty and unemployment and there is no equality of bargaining power, the
action of the State in not making the employees permanent, would be violative
of Article 21 of the Constitution. But the very argument indicates that there
are so many waiting for employment and an equal opportunity for competing
E for employment and it is in that context that the Constitution as one of its
basic features, has included Articles 14, 16 and 309 so as to ensure that public
employment is given only in a fair and equitable manner by giving all those
who are qualified, an opportunity to seek employment. In the guise of
upholding rights under Article 21 of the Constitution of India, a set of
F persons cannot be preferred over a vast majority of people waiting for an
opportunity to compete for State employment. The acceptance of the argument
on behalf of the respondents would really negate the rights of the others
conferred by Article 21 of the Constitution, assuming that we are in a position
to hold that the right to employment is also a right coming within the purview
G of Article 21 of the Constitution. The argument that Article 23 of the
Constitution is breached because the employment on daily wages amounts to
forced labour, cannot be accepted. After ull, the employees accepted the .
employment at their own volition and with eyes open as to the nature of their
employment. The Governments also revised the minimum wages payable from
time to time in the light of all relevant circumstances. It also appears to us
H that importing of these theories to defeat the basic requirement of public
SECRETARY, STATE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.J 995
employment would defeat the constitutional scheme and the constitutional A
goal of equality.
42. The argument that the right to life protected by Article 21 of the
Constitution of India would include the right to employment cannot also be
accepted at this juncture. The law is dynamic and our Constitution is a living
document. May be at some future point of time, the right to employment can B
also be brought in under the concept of right to life or even included as a
fundamental right. The new statute is perhaps a beginning. As things now
stand, the acceptance of such a plea at the instance of the employees before
us would lead to the consequence of depriving a large number of other
aspirants of an opportunity to compete for the post or employment. Their C
right to employment, if it is a part of right to life, would stand denuded by
the preferring of those who have got in casually or those who have come
through the back door. The obligation cast on the State under Article 39(a)
of the Constitution of India is to ensure that all citizens equally have the right
to adequate means of livelihood. It will be more consistent with that policy
if the courts recognize that an appointment to a post in government service D
or in the service of its instrumentalities, can only be by way of a proper
selection in the manner recognized by the relevant legislation in the context
of the relevant provisions of the Constitution. In the name of individualizing
justice, it is also not possible to shut our eyes to the constitutional scheme
and the right of the numerous as against the few who are before the court. E
The Directive Principles of State Policy have also to be reconciled with the
rights available to the citizen under Part III of the Constitution and the
obligation of the State to one and all and not to a particular group of citizens.
We, therefore, overrule the argmnent based on Article 21 of the Constitution.
43. Normally, what is sought for by such temporary employees when p
they approach the court, is the issue of a writ of mandamus 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 Shivendra Bahadur v. The Governing Body of the G
.... 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 issue to compel the authorities to
do something, it must be shown that the statute imposes a legal duty on the
authority and the aggrieved party had a legal right under the statute or rule H
996 SL'PREME COURT REPORTS [2006] 3 S.C.R.
A 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 an enforceable
legal right to be permanently absorbed or that the State has a legal duty to
make them permanent.
B 44. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S. V. Narayanappa
(supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred
to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant
posts might have been made and the employees have continued to work for
C ten years or more but without the intervention of orders of comts 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 above referred 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 regularize as a one time measure, the
D services of such irregularly appointed, who have worked for ten years or more
in duly sanctioned posts but not under cover of orders of 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
wht-re temporary employees or daily wagers are being now employed. The
E process must be set in motion within six months from this date. We also
clarify that regularization, if any already made, but not subjudice, need not
be reopened based on this judgment, but there should be no further by-
--
passing of the constitutional requirement and regularizing or making permanent,
those not duly appointed as per the constitutional scheme.
F 45. It is also clarified that those decisions which run counter to the
principle settled in this decision, or in which directions running counter to
what we have held herein, will stand denuded of their status as precedents.
46. In cases relating to service in the commercial taxes department, the
High Court has directed that those engaged on daily wages, be paid wages
G equal to the salary and allowances that are being paid to the regular employees
of their cadre in government service, with effect from the dates from which
they were respectively appointed. The objection taken was to the direction
for payment from the dates of engagement. We find that the High Court had
-
clearly gone wrong in d irccting that these employees be paid salary equal to
H the salary and allowances that are being paid to the regular employees of their
- SECRETARY, STATEOFKARNATAKA v. UMADEVI [BALASUBRAMANYAN, J.]997
cadre in government service, with effect from the dates from which they were A
respectively engaged or appointed. It was not open to the High Court to
impose such an obligation on the State when the very question before the
High Court in the case was whether these employees were entitled to have
equal pay for equal work so called and were entitled to any other benefit.
They had also been engaged in the teeth of directions not to do so. We are,
therefore, of the view that, at best, the Division Bench of the High Court B
should have directed that wages equal to the salary that are being paid to
regular employees be paid to these daily wage employees with effect from the
date of its judgment. Hence, that part of the direction of the Division Bench
is modified and it is directed that these daily wage earners be paid wages
equal to the salary at the lowest grade of employees of their cadre in the C
Commercial Taxes Department in government service, from the date of the
judgment of the Division Bench of the High Court. Since, they are only daily
wage earners, there would be no question of other allowances being paid to ·
them. In view of our conclusion, that Courts are not expected to issue
directions for making such persons permanent in service, we set aside that
part of the direction of the High Court directing the Government to consider D
their cases for regularization. We also notice that the High Court has not
adverted to the aspect as to whether it was regularization or it was giving
permanency that was being directed by the High Court. In such a situation,
the direction in that regard will stand deleted and the appeals filed by the
State would stand allowed to that extent. If sanctioned posts are vacant (they E
are said to be vacant) the State will take immediate steps for filling those posts
by a regular process of selection. But when regular recruitment is undertaken,
the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes
Department similarly situated, will be .allowed to compete, waiving the age
restriction imposed for the recruitment and giving some weightage for their
having been engaged for work in the Department for a significant period of F
time. That would be the extent of the exercise of power by this Court under
Article 142 of the Constitution to do justice to them.
47. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our
conclusion on the questions referred to, no relief can be granted, that too to G
an indeterminate number of members of the association. These appointments
or engagements were also made in the teeth of directions of the Government
not to make such appointments and it is impermissible to recognize such
appointments made in the teeth of directions ~ssued b_y the Government in
that regard. We have also held that they are not legally entitled to any such
relief. Granting of the relief claimed would mean paying a premium for defiance H
998 SUPREME COURT REPORTS [2006] 3 S.C.R.
A and insubordination by those concerned who engaged these persons against
the interdict in that behalf. Thus, on the whole, the appellants in these
appeals are found to be not entitled to any relief. These appeals have,
therefore, to be dismissed.
48. C.A. Nos. 3520-24 of2002 have also to be allowed since the decision
B of the Zilla Parishads to make permanent the employees cannot be accepted
as legal. Nor can the employees be directed to be treated as employees of the
Government, in the circumstances. The direction of the High Court is found
unsustainable.
49. In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil Appeal No.
C 3849 of2001, Civil Appeal Nos. 3520-3524 of2002 and Civil appeal arising out
of Special Leave Petition (Civil) Nos. 9103-9105 of 200 l are allowed subject
to the direction issued under Article 142 of the Constitution in paragraph 46
and the general directions contained in paragraph 44 of the judgment and
Civil Appeal Nos. 1861-2063 of 200 I are dismissed. There will be no order as
D to costs.
v.s.s. Appeal disposed of.
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