STATE OF GUJARAT AND ANR.versusKARSHANBHAI K. RABARI AND ORS.

A                       STATE OF GUJARAT AND ANR.
                                    v.
                      KARSHANBHAI K. RABARI AND ORS.

                                    JULY 18, 2006

B           [ARIJlT PASAYA T AND LOKESHWAR SINGH PANTA, JJ.]


          Service Law:

          Temporary employees of State Government-Entitlement to benefits
C under Government Resolution at par with regular employees-Single Judge
    of High Court denied the benefit-Division Bench held them entitled to the
    benefits under the Resolution and also to the benefits apart from the
    Resolution-On appeal, held: The entitlement of the temporary employees to
    the benefits under the Resolution required to be considered in the light of
D   the judgments passed by Supreme Court in Uma Devi's and Ma nu Dev Arya's
    cases-Hence matter remitted to High Court.

          In a Writ Petition by daily workers-respondents, Single Judge of High
    Court denied them benefit under a Government Resolution at par with the
    regular employees on the ground that they were temporarily appointed for
E   transitory work on a work charge basis and could not be treated at par with
    regular employees. Letters Patent Appeal was allowed by the Division Bench
    holding that the respondent-employees were entitled to all the benefits available
    to the permanent employees of the State Government under the Resolution;
    and that they were also entitled to other benefits, apart from the benefits
    specifically mentioned in the Resolution.
F         In appeal to this Court appellant contended that the view expressed by
    this Court was contrary to the judgment in Umadevi 's case and also contrary
    to Manu Dev Arya's case.

          Allowing the appeal, and remitting the matter to High Court, this Court

G         HELD: The case of the parties has to be considered in the light of the
    judgments passed by this Court in Uma Devi's case and in Manu Dev Arya's
    case. Therefore, the matter is remitted to the High Court for fresh
    consideration, keeping ip view what has been indicated by this Court in the
    above-mentioned cases. (665-A-B]

H                                          660
        STA TE OF GUJARAT v. KARSHANBHAI K.RABARI [PASAYA T, J.] 661

      Secretary, State of Karnataka and Ors. v. Umadevi and Ors., (20061 4         A
SCC 1 and Union of India and Anr. v. Manu Dev Arya, (2004) 5 SCC 232,
referred to.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3018 of2006.

     From the Judgment and Order dated 10.3.2004 of the High Court of              B
Gujarat at Ahmedabad, in L.P.A. No. 1134/1997.

     R.P. Bhatt, Shivangi, Pinky Behera and Hemantika Wahi for the
Appellants.

      S.C. Patel for the Respondents.                                              c
      The Judgment of the Court was delivered by

      ARIJIT PASAY AT, J. Leave granted.

      The State of Gujarat and Superintending Engineer, Capital Project Circle,    D
Gandhinagar, Gujarat, question legality of the judgment rendered by a Division
Bench of the Gujarat High Court . By the impugned judgment the Division
Bench set aside the judgment of a learned Single judge· who had dismissed
the writ petition filed by the respondents. Learned Single Judge held that the
respondents were daily workers who were temporarily appointed for transitory
work on a work charge basis and could not be treated at par with regular           E
employees who were appointed on the basis of Recruitment Rules.

       The Division Bench by the impugned judgment held that the respondents
were entitled to all the benefits available to permanent employees of the State
Government under the.Government Resolution dated 17.10.1988 and no order
diluting/reversing the same can/could be passed by any other Authority/            F
Functionaries of the State Government. Accordingly the Letters Patent Appeal
filed by the respondents was allowed and the Communication/Order dated
12.8.1991 by the State Government was quashed. It was held that benefits
apart from those clearly mentioned in the resolution dated 17.10.1988 like
leave travel concession, leave increment, various advances, allotment of           G
Government quarter were admissible to daily wagers covered under the said
resolution.

      Learned counsel for the appellant submitted that the view expressed by
the Division Bench is clearly contrary to what has been stated by a Constitution
                                                                                   H
    662                     SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A Bench of this Court in Secretary, State of Karnataka and Ors. v. Uniadevi
    and Ors., [2006] 4 SCC. I. It was further submitted that the Division Bench
    erroneously held that other benefits apart from those expressly mentioned in
    the Resolution dated 17.10.1988 were admissible as the expression "etc"
    (etcetera) has been mentioned. It was submitted that the view expressed in
B   this Court is clearly contrary to what has been stated in Union of India and
    Anr. v. Manu Dev Arya, [2004] 5 SCC 232.

         Learned counsel for the respondents on the other hand submitted that
    the High Court has adopted the view necessary to be taken in the case of
    poor employees who have been rendering services for a very long period.
c         We find that the case of the parties has to be considered in the light
    of what has been stated by this Court in Uma Devi's case (supra). It has been
    inter alia observed by the Constitution Bench as follows :

           "Even at the threshold, it is necessary to keep in mind the distinction
           between regularization and conferment of permanence in service
D
           jurisprudence. In State of Mysore v. S. V. Narayanappa, AIR (1967) SC
            1071 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] I SCC 409, this Court dealt with an argument that
           regularization would mean conferring the quality of permanence on
E          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
F               it was a case of regularization of 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 power and
                province of the authority, butthere has been some non-compliance
G               with procedure or manner which does not go to the root 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."
H
ST ATE OF GUJARAT v. KARSHANBHAI K. RAB ARI [PASAYA T, J.]      663
 In B.N. Nagarajan and Ors. v. State of Karnataka and Ors., [1979] A
 4 sec 507 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 appointments. This court emphasized that B
 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 rules. These decisions and the principles
 recognized therein have not been dissented to by this Court and on C
 principle, we see no reason not to accept the proposition as enunciated
 in the above decisions. We have, therefore, to keep this di.stinction
 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 D
 permanence of employment is a totally different concept and cannot
 be equated with regularization.

 One aspect arises. Obviously, the State is also controlled by economic
 considerations and financial implications of any public employment. E
 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. Can the 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 F
 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 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 G
 such directions, as such directions may turn counter-productive.
 In Director, Institute of Management Development, U.P. v. Pushpa
 Srivastava (Smt.), [ 1992] 4 SCC 33, this Court held that since the
 appointment was on purely contractual and ad hoc basis on
                                                                       H
    664                    SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A         consolidated pay for a fixed 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 service till
B         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
c         of the High Court which had given relief to the appointee.
          This Court also quoted with approval the observations of this Court
          in Teri Oat Estates (P) Ltd. v. U. T., Chandigarh, [2004] 2 SCC 130 to
          the effect:
              "We have no doubt in our mind that sympathy or sentiment by
D             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
E             contravention of a statutory provision:'
          This decision kept in mind the distinction between 'regularization'
          and 'permanency' and laid down that regularization is not and cannot
          be the mode of recmitment by any State. It also held that regularization
          cannot give permanence to an employee whose services are ad hoc
p         in nature.
          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
G         was no power in the State under Art. 162 of the Constitution of India
          to make appointments and 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
H         scheme by itself or direct the framing of a scheme for regularization.
       STATEOFGUJARATv. KARSHANBHAIK.RABARI [PASAYAT,J.]                     665
        This view was reiterated in State of Karnataka v. KGSD Canteen              A
        Employees Welfare Association, [2006] l SCC 567."

      So far as the entitlement of the respondents on the basis of the Resolution
dated 17.10.1988 where the word 'etc' has been used is concerned, has to be
considered in the light of what has been stated by this Court in Manu Dev
Arya 's case (supra).                                                               B
      We, therefore, remit the matter to the High Court for fresh consideration,
keeping in view what has been indicated by this Court in Uma Devi's Case
(supra) and Manu Dev Arya's case (supra).

      Accordingly, the appeal is allowed, but without any order as to costs.        C
KKT.                                                           Appeal allowed.