SECRETARY TO GOVERNMENT, SCHOOL EDUCATION DEPARTMENT, CHENNAI & ORS.versusTHIRU R. GOVINDASWAMY & ORS.

                         [2014] 3 S.C.R. 84


A   SECRETARY TO GOVERNMENT, SCHOOL EDUCATION
             DEPARTMENT, CHENNAI & ORS.
                              v.
            THIRU R. GOVINDASWAMY & ORS.
           (Civil Appeal Nos. 2726-2729 of 2014)
B                       FEBRUARY 21, 2014
           [DR. B.S. CHAUHAN AND A.K. SIKRI, JJ.]

        Service Law: Regularisation - Part time sweepers -
C Working for more than 10 years sought regularisation of their
    services by filing writ petitions before the High Court - Writ
    Petitions allowed - Held: Mere continuation of service by a
    temporary or ad hoc or daily-wage employee, under cover of
    some interim orders of the court, would not confer upon him
D any right to be absorbed into service, as such service would
    be "litigious employment" - Even temporary, ad hoc or daily-
    wage service for a long number of years, let alone service for
    one or two years, will not entitle such employee to claim
    regularisation, if he is not working against a sanctioned post
E - Sympathy and sentiment cannot be grounds for passing any
    order of regularisation in the absence of a legal right - There
    cannot be a direction for absorption, regularisation or
    permanent continuance of part-time temporary employees -
    Part-time temporary employees in government-run
F institutions cannot claim parity in salary with regular
    employees of the Government on the principle of equal pay
    for equal work - Nor can employees in private employment,
    even if serving full time, seek parity in salary with government
    employees - The right to claim a particular salary against the
     State must arise under a contract or under a statute." -
G However, in light of the facts and circumstances of the case,
    since the department has already implemented the impugned
    judgment and does not want to disturb the services of the
  ' respondents, the services of the respondents which stood

H                                 84
SEC. TO GOVT., SCHOOL EDU. DEPT, CHENNAI v.                   85
          THIRU R. GOVINDASWAMY
regularised should not be affected.                                A
      State of Karnataka & Ors. v. Umadevi & Ors. AIR 2006
SC 1806: 2006 (3) SCR 953; Union of India & Ors. v. A. S.
Pillai & Ors. (2010) 13 SCC 448; State of Rajasthan & Ors.
v. Daya Lal & Ors. AIR 2011 SC 1193: 2011 (1) SCR 707 -            B
relied on.

                     Case Law Reference:

    2006 (3) SCR 953         Relied on               Para 4

    (2010) 13 seq 448        Relied on               Para 6        c
    2011 (1) SCR 707         Relied on               Para 7

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2726-2729 of 2014.
                                                                   D
     From the Judgment and Order dated 21.11.2012 of the
High Court of Madras in WA Nos. 2402, 2403, 2404 and 2405
of 2012.
                              WITH
C.A. Nos. 2730-2731 of 2014. ·                                     E

    P.P. Rao, Subroamonium Prasad, AAG, M. Yogesh
Kanna, A. Santha Kumaran for the Appellants.

    P.R. Kovilan P., Gettha Kovilan for the Respondent.            F

    The following Order of the Court was delivered

     DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the impugned judgments and orders dated
21.11.2012 and 16.11.2012 in Writ Appeal Nos. 2402, 2403           G
2404, 2405 of 2012 and 2555, 2556 of 2012 passed by the
High Court of Madras, by which the High Court has regularised
the services of part-time sweepers (respondents herein).

    2. Facts and circumstances giving rise to these appeals        H
    86          SUPREME COURT REPORTS             (2014] 3 S.C.R.


A   are that'

       The respondents had been appointed as part-time
  sweepers by appellant from 1987 till 1993 as their initial
  appointments had l>een issued to the respondents and others
B on 1.12.1987, 2.5.1991, 1.4.1993, 10.4.1993, 27.5.1999 and
  19.1.2001. As the respondents and others had been working
  for more than 10 years, they filed Writ Petition Nos. 17468,
  17470, 17472, 17473, 17469 and 17471 of 2012 before the
  High Court of Madras for seeking regularisation of their
  services. The said Writ Petitions were allowed by the common
C judgment and order dated 23.7.2012 with the direction to
  regularise the services of the respondents on full time basis
  based on the individual representation after verifying their
  service particulars from the date of completion of 10 years of
  service with time scale of pay.
D
       Aggrieved, the appellants preferred the writ appeals which
  were dismissed.

         Hence, these appeals.

E      3. Shri P.P. Rao, learned senior counsel appearing for the
  appellants have submitted that a direction to regularise the part-
  time employees itself is contrary to law and the said direction
  could not have been issued. It has further been submitted that
  as the impugned judgments and orders had been complied with
F and the appellants are not going to disturb any of the
  respondents and others, the law should be clarified on the issue
  so that in future the High Court may not use the impugned
  judgment as a precedent.

       4. Per contra, Shri P.R. Kovilan P, learned counsel
G appearing for the respondents has submitted that as the
  respondents had been working as part-time sweepers for a very
  long time and not regularising their services would tantamount
  to exploitation. Therefore, no interference is called for in these
  appeals.
H
SEC. TO GOVT., SCHOOL EDU. DEPT., CHENNAI v.               87
THIRU R. GOVINDASWAMY [DR. B.S. CHAUHAN, J.)
     5. The issue involved here remains restricted as to whether A
the services of the part~time sweepers could have been
directed by the High Court to be regularized. The issue is no
more res integra.

    In State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006
                                                                8
SC 1806, this Court held as under:

    "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 held by this Court, they cannot be C
    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 D
    to a claim for equal treatment with those who were regularly
    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."                    E

     6. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13
SCC 448, this Court dealt with the issue of regularisation of
part-time employees and the court refused the relief on the
ground that part-timers are free to get themselves engaged
elsewhere and they are notrestrained from working elsewhere F
when they are not working for the authority/employer. Being the
part-time employees, they are not subject to service rules or
other regulations which govern and control the regularly
appointed staff of the department. Therefore, the question of
giving them equal pay for equal work or considering their case G
for regularisation would not arise.

    7. This Court in State of Rajasthan & Ors. v. Daya Lal &
Ors., AIR 2011 SC 1193, has considered the scope of
regularisation of irregular or part-time appointments in all    H
    88        SUPREME COURT REPORTS                  (2014] 3 S.C.R.


A   possible eventualities and laid down well-settled principles
    relating to regularisation and parity in pay relevant in the context
    of the issues involved therein. The same are as under:

         "8(i) The High Courts, in exercising power under Article
         226 of the- Constitution will not issue directions for
B
         regularisation, absorption or permanent continuance,
         unless the employees claiming regularisation had been
         appointed in pursuance of a regular recruitment in
         accordance with relevant rules in an open competitive
         process, against sanctioned vacant posts. The equality
c        clause contained in Articles 14 and 16 should be
         scrupulously followed and Courts should not issue a
         direction for regularisation of services of an employee
         which would be violative of the constitutional scheme.
         While something that is irregular for want of compliance
D        with one of the elements in the process of selection which
         does not go to the root of the process, can be regularised,
         back door entries, appointments contrary to the
         constitutional scheme and/or appointment of ineligible
         candidates cannot be regularised.
E
         (ii) Mere continuation of service by a temporary or ad hoc
         or daily-wage employee, under cover of some interim
         orders of the court, would not cor.fer upon him any right to
         be absorbed into service, as such service would be
F        "litigious employment". Even temporary, ad hoc or daily-
         wage service for a long number of years, let alone service
         for one or two years, will not entitle such employee to claim
         regularisation, if he is not working against a
         sanctioned post. Sympathy and sentiment cannot be
         grounds for passing any order of regularisation in the
G
         absence of a legal right.

         (iii) Even where a scheme is formulated for regularisation
         with a cut-off date (that is a scheme providing that persons
         who had put in a specified number of years of service and
H        continuing in employment as on the cut-off date), it is not
SEC. TO GOVT., SCHOOL EDU. DEPT., CHENNAI v.                89
THIRU R. GOVINDASWAMY [DR. S.S. CHAUHAN, J.]

       possible to others who were appointed subsequent to the    A
       cut-off date, to claim or contend that the scheme should
       be applied to them by extending the cut-off date or seek
       a direction for framing of fresh schemes providing for
       successive cut-off dates.
                                                                  B
       (iv) Part-time employees are not entitled to seek
       regularisation as they are not working against any
       sanctioned posts. There cannot be a direction for
       absorption, regularisation or permanent continuance of
       part-time temporary employees.
                                                                  c
       (v) Part-time temporary employees in government-run
       institutions cannot claim parity in salary with regular
       employees of the Government on the principle of equal pay
       for equal work. Nor can employees in private employment,
       even if serving full time, seek parity in salary with D
       government employees. The right to claim a particular
       salary against the State must arise under a contract or
       under a statute." (Emphasis added)

      8. The present appeals are squarely covered by clauses      E
(ii), (iv) and (v) of the aforesaid judgment. Therefore, the
appeals are allowed. However, in light of the facts and
circumstances of the case as Shri P.P. Rao, learned senior
counsel has submitted that the appellants have already
implemented the impugneid judgments and does not want to          F
disturb the services of th~ respondents, the services of the
respondents which stood regularised should not be affected.

    With the aforesaid observations, the appeals stand
disposed of accordingly. No order as to costs.
                                                                  G
D.G.                                     Appeals disposed of.