STATE OF JAMMU AND KASHMIR & ORSversusDISTRICT BAR ASSOCIATION, BANDIPORA

                             [2016) 12 S.C.R. 106



A              STATE OF JAMMU AND KASHMIR & ORS
                                        v.
              DISTRICT BAR ASSOCIATION, BANDIPORA
                       (Civil Appeal No. 11941 of2016)
B                           DECEMBER 08, 2016
       [T. S. THAKUR, CJI, DR. D. Y. CHANDRACHUD AND
                        L. NAGESWARA RAO, JJ.]
          Service Law:
c         Regularization - PIL seeking construction of District court
    complex - High Court proceeded to issue directions for en masse
    regularization of services of daily rated workers engaged in High
    Court - Held: High Court proceeded without considering relevant·
    constitutional and legal principles enunciated in the judgments of
D   Supreme Court regarding regularization of employees - On facts,
    the directions issued were totally unconnected to the reliefs sought
    in the PIL - The State Government had constituted an empowered
    Committee to inquire into the issue of creating posts for
    regularization of daily rated and casual workers - High Court,
    however, pre-empted consideration by issuing direction for
E   regularization - Further, lack of clarity in actual nu111ber of daily
    rated workers in the High Court and district judiciary and who
    among them eligible to be considered for regularization, yet to be
    determined - High Court erred in holding that daily rated workers
    in High Court would not be governed by SRO 64 of 1994 - Impugned
    order of the High Court directing regularization of e111ployees set
F
    aside - Public Interest Litigation.
          . While hearing a PIL instituted by the District Bar Association for
    construction of a District Court Complex, the High Court took note of an
    application filed by the daily rated workers engaged in the High Court
    and passed an interim order observing that the State is duty bound to
G                                                    a
    consider claim of the daily rated workers and as "one time exception"
    regularize their services. SLP filed by the State government against the
    interim order was dismissed. Subsequently, the High Court issued a
    further direction in which notice was taken of the fact that the State
    government had, over a considerable.period of time, failed to create the
H
                                       106
      STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                              107
                ASSOCIATION, BANDIPORA

  required number of posts for the State judiciary. The High Court took       A
  the view that following the dismissal of the said SLP, the State was duty
· bound to create posts for the absorption of daily rated workers.
       Disposing of the appeal, the Court
        HELD: 1. Regularisation is not a source of recruitment nor
 is it intended to confer permanency upon appointments which 8
 have been made without following the due process envisaged by
 Articles 14 and 16 of the Constitution. Essentially a scheme for
 regularisation, in order to be held to be legally valid, must be
 one which is aimed at validating certain irregular appointments
 which may have come to be made in genuine and legitimate c
 administrative exigencies. In all such cases it may be left open to
 Courts to iift the veil to enquire whether the scheme is aimed at
 achieving the above objective and is a genuine attempt at
 validating irregular appointments. The State and its
 instrumentalities cannot be permitted to use this window to
 validate illegal appointments. The second rider which must D
  necessarily be placed is that the principle as formulated above is
  not meant to create or invest in a temporary or ad hoc employee
 the right to seek a writ commanding the State to frame a scheme
  for regularisation. Otherwise, this would simply reinvigorate a
 class of claims which has been shut out permanently in Uma Devi E
  case. Ultimately, it would have to be left to the State and its
  instrumentalities to consider whether the circumstances warrant
  such a scheme being formulated. The formulation of such a
  scheme cannot be accord~d the status of an enforceable right. It
 would be prudent to leave it to a claimant to establish whether he
  or she falls within the exceptions carved out in paragraph 53 of F
 Uma Devi case and falls within the ambit of a scheme that may be
  formulated by the State. Subject to the riders referred to above,
  a scheme of regularisation could fall within the permissible limits
  of Uma Devi and be upheld. [Para 19) (127-C-G]                      r

      2. The High Court proceeded to issue directions for G
 regularization without considering either the legal position ·
 enunciated in the judgments of Supreme Court and without
 considering the prevailing rules and regulations on the subject.
 While some of the daily rated workers have been engaged over '
 long periods of time, others have been engaged as recently as in H
108           SUPREME COURT REPORTS                      [2016] 12 S.C.R.


A     2015. The issue of whether such appointments were irregular
      or wlrcther they were illegal should have been determined but
      has not been considered. Since the issue of regularization is a
      matter with which the State government is seized, as stated in
      the proceedings, therefore, at this stage it would be appropriate
B     and proper to set aside the impugned order of the High Court
      which directs the regularization en masse of two hundred nine
      daily rated workers. While doing so, the proceedings are restored
      back to the High Court for reconsideration. [Paras 22, 23] [129-
      B-C; F-H]
           Renu v. District & Sessions Judge, Tis Hazari Courts,
c          Delhi (2014) 14 SCC 50 : 2014 (2) SCR 537; Secretary,
           State of Karnataka v. Umadevi (2006) 4 SCC"l : 2006
           (3) SCR 953; Amarendra Kumar Mahapatra v. State
           of Orissa (2014) 4 SCC 583 : 2014 (2) SCR 1031 -
           relied on.
D          Maharashtra SRTC v. Casteribe Rajya Parivahan
           Karmchari Sanghatana (2009) 8 SCC 556; Surendra
           Kumar v. Greater_ Naida Industrial Development .
           Authority (2015) 14 SCC 382; State of Karnataka v.
           G. V. Chandrashekar (2009) 4 SCC 342 : 2009 (3)
E           SCR 624; In Employees' Union v. Mineral Exploration
           Corpn. Ltd. (2006) 6 SCC 310 : 2006 (4) Suppl.
           SCR 87; National Fertilizers Ltd. v. Somvir Singh (2006)
           5 SCC 493 : 2006 (2) Suppl. SCR 397; State of MP.
           v. Lalit Kumar Verma (2007) 1 SCC 575: 2006 (9) Suppl.
            SCR 591; Post Master General v. Tutu Das (Dutta)
F          (2007) 5 sec 317 : 2001 (5) SCR 1117; Official
           Liquidator v. Dayanand (2008) 10 SCC 1 : 2008 (15)
            SCR 331 - referred to.
                           Case Law Reference

G          2014 (2) SCR537                 relied on        Paras
           2006 (3) SCR 953                relied on        Para9
            (2009) s sec 556               referred to      Para 11
           2014 (2) SCR 1031               -relied on       Para 12

H           (2015) 14 sec 382              referred to      Para 15
     STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                                109
               ASSOCIATION, BANDIPORA

       2009 (3) SCR624                     referred to      Para 16            A
       2006 (4) Suppl. SCR 87              referred to      Para 17
       2006 (2) Suppl. SCR397              referred to      Para 17
       2006 (9) Suppl. SCR591              referred to       Para 17
       2007 (5) SCR 1117                   referred to       Para 17           B

       2008 (15) SCR 331                   referred to       Para 18
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11941
of2016.
       From the Judgment and Order dated 01.12.2015 and 10.08.2016             C
of the High Court of Jammu and Kashmir at Srinagar in OWP No. 260
Of2014.                         I


     Dr. Rajeev Dhawan, Sr. Adv., Sunil Fernandes, Ms. Astha Sharma,
Puneeth K. G., N ikesh Tyagi, Ad vs. for the Appellants.
      The Judgment of the Court was ~elivered by                                D

      DR. D. Y. CHANDRACHUD;·J. I. Delay condoned. Leave
granted.
       2. The State of Jammu and Kashmir seeks to challenge the orders
dated 1 December 2015 and I 0 August 2016 of a Division Bench of the            E
High Court in a Public Interest Litigation instituted by the District Bar
Association, Bandipora. The grievance of the Bar Association was that
since the creation of the district ofBandipora in 2007, the Sessions Court
has been housed in a building which used to be a part of the Munsif's
Court Complex. The Principal District and Sessions Judge, Chief Judicial
Magistrate and Munsif discharge their judicial functions in a building          F
which lacks basic amenities. On 30 November 2013 during the course
of a mega Lok Adalat, the Administrative Judge expressed the view that
a suitable plot of land is urgently required for the District Court. This
was communicated by the Additional Deputy Commissioner to the
Tehsildar on 30 November 2013. A direction was sought for the transfer          G
of certain land which is stated to have been earmarked for the
construction of the District CoUI1 Complex or, in the alternative, for the
provision of a suitable site. Provision of proper amenities was sought.
      3. During the course of the hearing of the Public Interest Litigation.
the Division Bench noted in an order dated 7 October 2015 that an
                                                                                H
110             SUPREME COURT REPORTS                          f2016l 12 S.C.R.



A     application had been filed by the daily rated workers engaged in the
      High Court at Srinagar (MPI/2015). The Advocate General informed
      the Division Bench that a direction had been issued by a co-ordinate
      Bench in a writ petition filed by the daily rated workers requiring the
      State to file its response.                       '
B           4. By its interim-direction dated. 7 October 2015, the Division Bench
      ordered thus :
            "Respondent- State is duty bound to consider claim of the
            daily rated workers and as a "one time exception" regulaiize
            their services. Commissioner Secretary to Government,
c           Department of Law, Justice and Parliamentary Affairs, to
            file Status Report about this aspect of the matter as well
            before next date of hearing."                           ·
          A Special Leave Petition filed by the state ggyernment against
  'the interim order of the High Court was dismissed by this Court on 16
D December 2015.
          5. On 1 December 2015, the Division Bench issued a further
   direction in which notice was taken of the fact that the state government
   had, over a considerable period of time, failed to create the required
   number of posts for the state judiciary. As a result, and in order to
E ensure that the work of the courts was not hampered, arrangements
   were made to engage persons on a daily wage basis. The High Court
   observed that the state government is duty bound to create an equal
   number of posts for the absorption of daily rated employees at the earliest.
   The observations of the High Court are extracted below:
             "It is submitted that considerable period of time, the
 F
             Government has not created required number of posts for·
             the State Judiciary. It is also submitted that because of dearth
             pf staff, the work in the courts was hampered. It is also
             submitted that in order to ensure that the work of the courts
             do not suffer and until such time posts are created by the
G            Government, which is tlw Constitutional responsibility of
             the State, it was deemed necessary to make engagements_
             on daily wage basis. It is submitted that this step was taken
             to ensure that the judicial work does not suffer: This class
             of employees in essence are the substitute for regular
             employees posts which the Government was duty bound to.
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                                 111
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

      create. These Daily Rated Workers would not be regulated                A
      by the rules governed by SRO 64of1994. The information
      has been already provided to the Government about these
      persons who have been engaged in Daily wage Basis and
      the Government shall have to create equal number of posts
      in the State Judiciary for their absorption which action is to
                                                                              B
      be taken independent of the Rules notified vide SRO 64 of
      1994. The information has been already provided to the
      Government about these persons who have been engaged
      on Daily Wage Basis and the Government shall have to
      create equal number of posts in the State Judiciary for their
      absorption which action is to be taken independent of the               c
      Rules notified vide SRO 64 of 1994. The daily wagers
      constitute a class in themselves.
      The stand taken by the respondents in the aforesaid
      additional information would not thus affect the rights of
      the persons who have been engaged on Daily Wages Basis                  D
      in the State Judiciary. The State is duty bound to create
      equal number of posts for their absorption, inasmuch as no
      guarantee of status as Government employee. The State
      Government besides being duty bound to provide complete
      infrastructure and paraphernalia area which include creation
      of posts are duty bound to create posts are those persons                E
      engaged on Daily rated Basis at the earliest".
       6. On I 0 August 2016 when the petition was taken up by the High
Court, the Additional Advocate General submitted that the Registrar
General had addressed a communication on 23 April 2014 for the
regularization of 188 daily rated workers engaged from time to time in         F
the High Court and subordinate courts. However, the annexure enclosed
to the communication contained a list of 228 workers. Hence, on 27
July 2016 a clarification was sought in regard this discrepancy in numbers.
On 29 July 2016 the-Registrar General clarified that the actual strength
of daily rated workers in the High Court was 98 (and not 58 as incorrectly     G
stated earlier) and that the correct number of workers engaged in the
High Court and district courts together was 228. The current strength
of daily rated workers was stated to be 209. The High Court took the
view that following the dismissal of the Special Leave Petition by this
Court against its interim order'1he state was duty bound to create 209
                                                                               H
112            SUPREME COURT REPORTS                         [2016] 12 S.C.R.



A     posts for the absorption of the daily rated workers. The statement of
      theAAG was recorded on instructions that 209 Class IV posts would be
      created within three weeks. However, the High Court proceeded to
      issue a notice to show cause to Mr. Mohammad Ashraf Mir, the then
      Commissioner/Secretary to the State Government in the Department of
      Law, Justice and Parliamentary Affairs, for having made an incorrect
B
      statement on 15 July 2016 that the State Government had already taken
      steps for implementing the order of the High Court to create additional
      posts. The State Government is in appeal.
              7. By an order dated 5 September 2016, the Secretary to the
      Department of Law in the State Government _was directed to secure
c     relevant information about the date of joining of all the daily wage
      employees working in the High Court of Jammu and Kashmir and to file
      it on affidavit before this Court. Pursuant thereto, an affidavit has been
      filed stating that the information received from the Registrar General of
      the High Court indicates that two hundred and nine daily wage employees
D     are working in the High Court and the district judiciary in the State. The
      information which has been placed on the record indicates that:
            (i) Fifty d~ily wage employees are engaged in the Jammu wing of
      the High Court whose dates of engagement fall between August 2001
      and March 2015;
E          (ii) Eleven sewaks are employed in the Jammu wing with dates of
      engagement falling between February 2011 and February 2016;
            (iii) Forty five daily wagers are engaged in the Srinagar wing of
      the High Court with dates of engagement between May 1998 and January
      2015;
F
            (iv) Two daily wagers an: posted in the main wing, being recruited
      in 2008 and 2013;
            (v) Thirty seven daily wagers are engaged in ten districts of the
      Jammu region and sixty four are engaged in twelve districts in Kashmir.
G     While one of them in District Kulgam was engaged as tdr back as in
      1984, the most recent of those engaged (District Badgam) is in March
      2014; and
            (vi) Of the two hundred and nine daily wage employees, one
      hundred and one are engaged in the district courts while one hundred
      and eight are engaged in the High· Court, both at Jammu and Srinagar.
H
    STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                                 113
 ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

         8. The first submission that has been urged is that the direction     A
· issued by the High Court is contrary to the law laid down by this Court in
  Renu v. District & Sessions ~udge, Tis Hazari Courts, Delhi 1•
        9. The issue which arises must be viewed bearing in mind the
essence of the judgment of the Constitution Bench in Secretary, State
ofKarnataka v. Umadevi2 and subsequent judgments which followed                B
it. In the judgment of the Constitution Bench, the following two issues
primarily fell for consideration :
       (i) The right of employees seekiµg regularization on the strength
 of long and coi1tinuous work; and
       (ii) The correctness of directions issued by courts.tor                 c
 regularisation of employees under Article 226 of the Constitution.
       The decision in Umadevi dealt firstly with the right claimed by
 temporary employees to be regularised in service on the basis of long
 continuance, legitimate expectations, employment under the State and
 the Directive Principles. The second salient qu~stion which the                D
 Constitution Bench was called upon to answer was whether courts
 would be justified in issuing directions for regularisation based on such
 features such as equality and long spells of service. On both counts
 the Constitution Bench held against the temporary employees.
        However Umadevi is not an authority for the proposition that            E
 the executive or the legislature cannot frame a scheme for regularisation.
 Uma Devi does not denude the State or its instrumentalities from
 framing a scheme for regularisation. In paragraph 53 of the decision,
 this Court held as follows :
          "53. One aspect needs to be clarified. There may be cases             F
          where irregular appointments (not illegal appofotments) as ·
          explained in State of Mysore v. S.V. Narayanappa, R.N.
          Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State.
          of K!trnataka and referred to in para 15 above, of duly
          qualified persons in duly sanctioned vacant posts might·
                                                                                G
          have been made and the employees have continued to
          work for ten years or more but without the intervention
          of orders of the courts or of tribunals. The question of
          regularisation of the services of such employees may ha~e
  1
      (2014) 14 sec so
 2
      (2006) 4 sec 1                                                            H
114            SUPREME·COURT REPORTS                         [2016] 12 S.C.R.



A           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 regularise as a one-time measure, the
            services of such irregularly appointed, who have worked
B
            for ten years or more in duly sanctioned posts but not under
            cover of orders of the comis or of tribunals and should
            further ensure that regular recruitments are undertaken to
            fill those vacant sanctioned posts that require to be filled
            up, in cases where temporary employees or daily wagers
c           are being now employed. The process must be set in
            motion within six months from this date. We also clarify
            that regularisation, if any already made, but not sub judice,
            need not be reopened based on this judgment, but there
            should be no further bypassing of the constitutional
            requirement and regularising or making permanent, those
D
            not duly appointed as per the constitutional scheme."
             10. The third aspect of Umadevi which bears notice is the
      distinction between an "irregular" and "illegal" appointment. While
      answering the question of whether an appointment is irregularor illegal,
      the Court would have to enquire as to whether the appointment process
 E    adopted was tainted by the vice of non-adherence to an essential
      prerequisite or is liable to be faulted on account of the lack of a fair
      process ofrecruitment. There may be varied circumstances in which an
      ad hoc or temporary appointment may be made. The power of the
      employer to make a temporary appointment, if the exigencies of the
 F    situation so demand, cannot be disputed. The exercise of power however
      stands vitiated if it is found that the exercise undertaken (a) was not in.
      the exigencies of administration; or (b) where the procedure adopted
      was violative of Articles I 4 and 16 of the Constitution; and/or (c) where ·
      the recruitment process was overridden by the vice of nepotism, bias or
      ma/a fides. If the appointment process is not vitiated by any of the
 G    above faults, can it be said that appointments made as an 'outcome of
      such an exercise cannot be regularised under a scheme framed.in that
      regard by the employer? This is particularly when the employer himself
      proceeds to frame a scheme to bring these employees within the
      protective umbrella of regular service without the intervention or
H
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                               115
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

command of a court direction. This is the issue to which we turn. We        A
propose to analyse the precedents before formulating the principles.
       11. Dealing with the issue of whether Labour Courts are denuded
of authority to direct regularization pursuant to labour enactments, this
Court in Maharashtra SRTC v. Casteribe Rajya Parivahan
Karmchari Sanghatana3, held thus :                                          B
      "34. It is true that Dharwad Distt. PWD Literate Daily
      Wages Employees' Assn. arising out of industrial
      adjudication has been co11sidered in Umadevi (3) and that
      decision has been held to be not laying down the co~rect
      law but a careful and complete reading of the decision in             c
      Umadevi (3) leaves no manner of doubt that what this
      Court was concerned in Umadevi (3) was the exercise of
      power by the High Courts under A1ticle 226 and this Comt
      under Article 32 of the Constitution oflndia in the matters
      of public employment where the employees have been
      engaged as contractual, temporary or casual workers not               D
      based on proper selection as recognised by the rules or
      procedure and yet orders of their regularisation and
      conferring them status of permanency have been passed.
      35. Umadevi (3) is an authoritative pronouncement for the
      proposition that the Supreme Court (Article 32) and the                E
      High Courts (Artkle 226) should not issue directions of
      absorption, regularisation or permanent continuance of
      temporary, contractual, casual, daily wage or ad hoc
      employees unless the recruitment itself was made regularly
      in terms of the constitutional scheme.                                 F
       36. Umadevi (3) does notdenude the Industrial and Labour
       Courts of their statutory power under Section 30 read with
       Section 32 of the MRTU and PULP Act to order
       permanency of the workers who have been victims of
       unfair labour practice on the part .of the employer under             G
       Item 6 of Schedule IV where the posts on which they have
       been working exist. Umadevi (3) cannot be held to have
       overridden the powers of the Industrial and Labour Courts
      ·in passing appropriate order under Section 30 of the

' (2009) s sec 556                                                           H
116            SUPREME COURT REPORTS                           [2016] 12 S.C.R.



A           MRTU and PULP Act, once unfair labour practice on the
            part of the employer under Item 6 of Schedule IV is
            established."
            The labour legislation \n that case was the Maharashtra
      Recognition ofTrade Unions and Prevention of Unfair Labour Practices
B     Act, 1971.
             12. The decision in Renu v. District and Sessions Judge, Tis
      Hazari Courts, Delhi' dealt with appointments which were shown to
      be illegal and the outcome of arbitrariness. It was in that backdrop that
      the following observations came to be made :
c           "f This Court had appointed Shri P.S. Narasimha, learned
            Senior Counsel as amicus curiae to assist the Court. The
            matter was heard on 28-1-2014 and deliberations took
            place at length wherein all the learned counsel appearing
            for the States as well as for the High Courts suggested
D           that the matter should be dealt with in a larger perspective
            i.e. also for appointments ofemployees in the High Court
            and courts subordiirnte 'to the High Court which must
            include Class IV posts also. A large number of instances
            have been pointed out on the basis of the information
            received under the Right to Information Act,. 2005 of cases
 E          not only of irregularity but of favouritism also in making
            such appointments. It has been suggested by the learned
            counsel appearing in the matter that this Court has a duty
            not only to check illegality, irregularity, corruption, nepotism
            and favouritism in judicial institutions, but also to provide
 F          guidelines to prevent the menace of back-door entries of
            employees who subsequently are ordered to be regularised.
            27. To say that the Chief Justice can appoint a person
            without following the procedure provided under Articles 14
            and 16 would lead to an indefinite conclusion that the Chief
            Justice can dismiss him also without holding any inquiry
 G
            or following the principles of natural justke/Rules, etc. for
            as per Section 16 of the General Clauses Act, I 897, power
            to appoint includes power to remove/suspend/dismiss.
            (Vide Pradyat Kumar Bose v. High Court of Calcutta [AIR

H     '(2014) 14 sec so
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                               117
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

      1956 SC 285) and Chief Justice of A.P. v. L.V.A. Dixitulu             A
      [(1979) 2 sec 34 : 1979 sec (L&S) 99) .) But as no
      employee can be removed without following the procedure
      prescribed by law or in violation of the terms of his
      appointment, such a course would not be available to the
      Chief Justice. Therefore, the natural corollary of this is that
                                                                            B
      the Chief Justice cannot make any appointment in
      contravention of the statutory rules, which have to be in
      consonance with the scheme of our Constitution."
       This Court considered the modalities adopted by the High Courts
across the country in making recruitments and issued directions to ensure
that appointments made by judicial institutions are in accordance the       C
principle ofequality ofopportunity enshrined in Articles 14 and 16 of the
Constitution. Emphasizing the principle of°transparency in public
appointment, this Court observed that :
      "Another important requirement of public appointment is
      that of transparency. Therefore, the advertisement must               D
      specify the number of posts available for selection and
      recruitment. The qualifications and other eligibility criteria
      for such posts should be explicitly provided and the schedule
      ofrecruitment process should be published with certainty
      and clarity. The advertisement should also specify the rules           E
      under which the selection is to be made and in absence of
      the rules, the procedure under which the selection is likely
      to be undertaken. This is necessary to prevent arbitrariness
      and to avoi~ change ofcriteria of selection after the selection
      process is commenced, thereby unjustly benefiting someone
      at the cost of others.                                                 F
      Thus, the aforesaid decisions are an authority on prescribing
      the limitations while making appointment against public ~sts
      in terms of Articles 14 and 16 of the Constitution. What
      has been deprecated by this Court time and again is "back-
      door appointments or appointments dehors the rules"."                  G

      The power that is vested in the Chief Justice of the High Court
under Article 229( 1) is, the Court held, subject to Article 16 :
      "the law can be summarised to the effect that the powers
      under Article 229(2) ofthe Constitution cannot be exercised
                                                                            H
118             SUPREME COURT REPORTS                          f2016112 S.C.R.



A            by the Chief Justice in an unfettered and arbitrary manner.
             Appointments should be made giving adherence to the
             provisions of Articles 14and16 of the Constitution and/or
             such rules as made by the legislature".
             13. Four fundamental principles emerge from the decision of this
B     Court in Renu. The first principle is that Article 235 enables the High
      Court to exercise complete administrative control over the district judiciary
      which extends to all functionaries attached to those courts, including
      ministerial staff and employees on the establishment. The purpose of
      superintendence would be frustrated ifthe administrative control of the
      High Court is not to be exercised over the administrative and ministerial
c     staff. However, the Chief Justice of the High Court as a constitutional
      functionary is subject to the mandate of Articles 14 and 16. No
      appointment can be made in contravention of statutory rules. Moreover,
      the rules themselves must be consistent with constitutional principles.
             The second principle is that employment in the High Courts or in
D     the courts subordinate to them constitutes public employment. All
      recruitment in matters of public employment must be made in accordance
      with prevailing rules and orders:
             "30. In today's system, daily labourers and casual labourers
             have been conveniently introduced which are followed by
E            attempts to regularise them at a subsequent stage.
             Therefore, most of the times the issue raised is about the
             procedure adopted for making appointments indicating an
             improper exercise of discretion even when the rules specify
             a particular mode to be adopted. There can be no doubt
F            that the employment whether of Class IV, Class Ill, Class
             II or any other class in the High Court or courts subordinate
             to it falls within the definition of"public employment". Such
             an employment, therefore, has to be made under rules and
             under orders of the competent authority."

G           Thirdly, the date on which the vacancies are likely to occur are
      foreseeable with a reasonable amount of clarity and precision. An
      exercise to fill up vacancies must be undertaken in advance so as to
      ensure that there is no occasion to appoint persons on an ad hoc basis :
             "31. In a democratic set-up like ours, which is governed by
             rule of Jaw, the supremacy of law is to be acknowledged
H
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                              119
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

      and absence of arbitrariness has been consistently described         A
      as essence of rule of law. Thus, the powers have to be
      canalised and not unbridled so as to breach the basic
      structure of the Constitution. Equality of opportunity in ·
      matters of employment being the constitutional mandate has
      always been observed. The unquestionable authority is
                                                                           B
      always subject to the authority of the Constitution. The
      higher the dignitary, the more objectivity is expected to be
      observed. We do not say that powers should be curtailed.
      What we want to say is that the power can be exercised
      only to the width of the constitutional and legal limits. The
      date of retirement of every employee is well known in                c
      advance and therefore, the number of vacancies likely to
      occur in near future in a particular cadre is always known
      to the employer. Therefore, the exercise to fill up the
      vacancies at'the earliest must start in advance to ensure
      that the selected person may join immediately after
                                                                           D
      availability of the post, and hence, there may be no occasion
      to appoint any person on ad hoc basis for the reason that
      the problem of inducting the daily labourers who are ensured
     ·of a regular appointment subsequently has to be avoided
      and a fair procedure must be adopted giving equal opportunity
      to everyone."                                                         E
       The information before the Supreme Court indicated that several
High Courts have adopted a pattern of centralized recruitment so as to
ensure transparency and objectivity in the appointment of ministerial
staff both on the establishment of the High Court and in the district
courts.                                                                     F
        Fourthly, while the High Court is an autonomous constitutional
authority whose status cannot be undermined, it is equally necessary for
it to strictly comply with the rules framed in making recruitments :
      "We would like to make it clear that the High Court is a
      constitutional and an autonomous authority subordinate to             G
      none. Therefore, nobody can undermine the constitutional
      authority of the High Comt, and therefore the purpose to
      hear this case is only to advise the High Court that if its
      rules are not in consonance with the philosophy of our
      Constitution then the same_may be modified and no
                                                                            H
120            SUPREME COURT REPORTS                         [2016] 12 S.C.R.


A           appointment in contravention thereof should be made. It is
            necessary that there is strict compliance with appropriate
            rules and the employer is bound to adhere to the norms of
            Articles 14 and 16 of the Constitution before making any
            recruitment."
B             The following directions have been issued in Renu for observance
      by all the High Courts:
            "35.1. (i) All the High Courts are requested to re-examine
            the statutory rules dealing with the appointmertftlf staff in
            the High Court as well as in the subordinate courts and in
c           case any of the rules is not in conformity and consonance
            with the provisions ofArticles 14 and 16 of the Constitution,
            the same may be modified. '
            35.2. (ii) To fill up any vacancy for any post either in the
            High Court or in courts subordinate to the High Court, in
D           strictcompliance with the statutory rules so made. In case
            any appointment is made in contravention of the statutory
            rules, the appointment would be void ab initio irrespective
            of any class of the post or the person occupying it.
            35.3. (iii) The post shall be filled up by issuing the
E           advertisement in at least two newspapers and one of which
            must be in vernacular language having wide circulation in
            the respective State. In addition thereto, the names may be
            requisitioned from the local employment exchange and the
            vacancies may be advertised by other modes also e.g.
            Employment News, etc. Any vacancy filled up without
F           advertising as prescribed hereinabove, shall be void ab initio
            and would remain unenforceable and unexecutable except
            such appointments which are permissible to be filled up
            without advertisement e.g. appointment on compassionate
            grounds as per the rules applicable. Before any appointment
            is made, the eligibility as well as suitability of all the
            candidates should be screened/tested while adhering to the
            reservation policy adopted by the State, etc. if any.
            35.4. (iv) Each High Court may examine and decide within
            six months from today as to whether it is desirable to have
            centralised selection of candidates forthe courts subordinate
H                                        I
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                              121
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

      to the respective High Court and if it finds it desirable, may       A
      formulate the rules to carry out that purpose either for the
      State or on zonal or divisional basis.
      35 .5. (v) The High Co wt concerned or the subordinate court
      as the case may be, shall undertake the exercise of
      recruitment on a regular basis at least once a year for existing     B
      vacancies or vacancies that are likely to occur within the
      said period, so that the vacancies are filled up timely, and
      thereby avoiding any inconvenience or shortage of staff as
      it will also control the menace of ad hocism."
      ·14. The judgment in Renu underlines the importance of the High      c
Court complying with statutory rules in matters of recruitment. The
judgment also emphasises the need to abide by the.principles of equality
and equal opportunity in A1ticles 14 and I 6.
       15. The judgment in Renu does not preclude, as a principle of
law, the framing of an appropriate scheme of regularization in appropriate D
situations meeting the norms spelt out in Umadevi and the decisions
which have followed. Dealing with a scheme framed for regularisation,
this Court in Amarendra Kumar Mohapatra v. State of Orissa 5 held
as follows:
      "38. Equally important is the fact that even after declaring         E
      the true legal position on the subject .and even after
      deprecating the practice of appointing people by means
      other than legitimate, this Court felt that those who had
      served for ten years or so may be put to extreme hardship
      if they were to be discharged from service and, therefore,
      directed the formulation of a scheme for their                        F
      regularisation. This was no doubt a one-time measure, but
      so long as the appointment sought to be regularised was
      not illegal, the scheme envisaged by para 53 of the decision
      (supra) extracted above permitted the State to regularise
      such employees. Dr Dhavan argued that the appellant                  G
      Stipendiary Engineers had, by the time the decision in
      Umadevi (3) case was pronounced, qualified for the
      benefit of a scheme cf regularisation having put in ten
      years as ad hoc Assistant Engineers and fifteen years if

' (ZOI4J 4 sec ssJ                                                         H
122      SUPREME COURT REPORTS                         [2016) 12 S.C.R.



A     their tenure was to be counted from the date of their
      employment as Stipendiary Engineers. He contended that
      even in the absence of.a Validation Act, Stipendiary
      Engineers appointed on ad hoc basis as Ass·istant
      Engineers, who had worked for nearly ten years to the full
      satisfaction of the State Government would have been
B
      entitled to regularisation of their services in terms of any
      such scheme.
      43. As to what would con~titute an irregular appointment
      is no longer res integra. The decision of this Court in State
      ofKarnataka v. M.L. Kesari, has examined that question
c     and explained the principle regarding regularisation as
      enunciated in Umadevi (3) case. The decision in that case
      summed up the following three essentials for regularisation:
      (1) the employees have worked for ten years or more, (2)
      that they have so.worked in a duly sanctioned post without
D     the benefit or protection of the interim order of any coo-rt
      or tribunal, and (3) they should have possessed the
      minimum qualification stipulated for the appointment.
      Subject to these three requirements being satisfied, even
      ifthe appointment process did not involve open competitive
      selection, the appointment would be treated irregular and
E     not illegal and thereby qualify for regularisation. Para 7 in
      this regard is apposite and may be extracted at this stage


      "7. It is evident from the above that there is an exception
      to the general principles against 'regularisation' enunciated
 F    in Umadevi (3) [State ofKarnataka v. Umadevi (3), (2006)
      4 SCC I : 2006 SCC (L&S) 753) , if the following
      conditions are fulfilled:
      (i) The employee concerned should have worked for I 0
      years or more in a duly sanctioned post without the benefit
 G    or protection of the interim order of any court or tribunal.
      In other words, the State Government or its instrumentality
      should have employed the employee and continued him in
      service voluntarily and continuously for more than ten
      years.
H
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                           123
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

      (ii) The appointment of such employee should not be illegal,      A
      even if irregular. Where the appointments are not made
      or continued against sanctioned posts ot where the persons
     ·appointed do not possess the prescribed minimum
      qualifications, the appointments will be considered to be
      illegal. But where the person employed possessed the
                                                                        B
      prescribed qualifications and was working against
      sanctioned posts, but had been selected without undergoing
      the process of open competitive selection, such
      appointments are considered to be irregular."
      45. The upshot of the above discussion is that not only
      because in Umadevi (3) case t~is Court did not disturb the        c
      appointments already made or regularisation granted, but
      also because the decision itself permitted regularisation in,
      case of irregular appointments, the legislative enactm~
      granting such regularisation does not call for interference
      at this late stage when those appointed or regularised have       D
      already started retiring having served their respective
      departments, in some cases for as long as 22 years." .
     16. This would be_ again evident from the following observations
made by the Court in Surendra Kumar v. Greater Noida Industrial
Development Authority6 , wherein it was held : .            ·            E
      "In the impugned judgment [Greater Noida Industrial
      Development Authority v. Surendra Kumar, 2013 SCC
      OnLine All 9827: (2014) 102 ALR 418], the Division
      Bench proceeded on the premise as if Umadevi (3) case
      held that the State Government, in no circumstance, can            F
      regularise the services of contractual employees. In para
      53 of Umadevi (3) case, the Constitution Bench carved
      out an exception by observing that the Union oflndia/State
      Governments/their instrumentalities should take steps to
      regularise the services of such irregular employees who
      have worked for more than ten years and para 53 reads             ,G
      as under: (SGC p. 42)                           ·
      13. Considering the facts of the present case on _the
      touchstone laid down in Umadevi (3) case, it will be seen
• (2015) 14 sec 382
                                                                        H
124             SUPREME COURT REPORTS                        f2016l 12 S.C.R.



A           that the Division Bench was not right in setting aside the
            appointment of the appellants. More so, it was nobody's
            case challenging the appointment of the appellants.
            Admittedly, the appellants· were engaged as contractual
            employees from 1994 and have completed more than ten
            years of continuous service with Respondent 1. They
B
            continued in service not by the orders of the Court/Tribunal,
            but by the decision of the respondents~ The appellants were
            regulai:ised as per the policy decision dated 16-4-2003 taken
            by Respondent 1 and approved by the State Government
            vide Letter dated 5-3-2008. Since the appointment of the
c           appellants were made pursuant to the policy of
            regularisation, the High Court was not right in quashing the
            appointment of the appellants as the same were never in
            question before the High Court. The plea that was raised
            by the appellants was only to seek regularisation with
            retrospective effect from 20-l l-2002oand the consequential
D
            seniority."
           17. The difterence between irregular and illegal appointments as
    also the scope of paragraph 53 ofUma Devi has fallen for consideration.
    in various subsequent judgments of this Court . These decisions have
    been adverted to in State of Karnataka v. G.V. Chandrashekar7 • In
E Employees' Union v. Mineral Exploration Corpn. Ltd 8 • this Court
  · observed as follows :
            "39. We, therefore, direct the Tribunal to decide the claim
            of the workmen of the Union strictly in accordance with
            and in compliance with all the directions given in the
F           judgment by the Constitution Bench in State ofKarnataka
            v. Umadevi (3) and in pa1ticular, paras 53 and 12 relied
            on by the learned Senior Counsel appearing for the Union.
            The Tribunal is directed to dispose of the matter afresh
            within 9 months from the date of receipt of this judgment
G           without being influenced by any of the observations made
            by us in this judgment. Both the parties are at liberty to
            submit and furnish the details in regard to the names of
            the workmen, nature of the work, pay scales and the
      1
        (2009) 4 sec 342
      • (2006) 6 sec 310
H
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                            125
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

        wages drawn by them from time to time and the transfers          A
        of the workmen made from time to time, from place to
        place and other necessary and requisite details. The above
        details shall be submitted within two months from the date
        of the receipt of this judgment before the Tribunal."
        In National Fertilizers Ltd. v. Somvir Singh 9 this Court held   B
thus:
        "23. The contention of the learned counsel appearing on
        behalf of the respondents that the appointments were
        irregular and not illegal, cannot be accepted for more than
        one reason. They were appointed only on the basis of their       c
        applications. The Recruitment Rules were not followed.
        Even. the Selection .Committee had not been properly
        constituted. In view of the ban on employment, no
        recruitment was pennissible in law. The reservation policy
        adopted by the appellant had not been maintained. Even
        cases of minorities had not been given due consideration.        D

        ***
        25. Judged by the standards laid down by this Court in the
        aforementioned decisions, the appointments of the
        respondents are illegal. They do not, thus, have any legal        E
        right to continue in service.
        26. It is true that the respondents had been working for a
        long time. It may also be true that they had not been paid
        wages on a regular scale of pay. But, they did not hold
        any post. They were, therefore, not entitled to be paid
                                                                          F
        salary on a regular scale of pay. Furthermore, only because
        the respondents have worked for some time, the same by
        .itself would not be a ground for directing regularisation of
        their services in view of the decision of this Court in
        Umadevi (3) [(2~96) 4 sec L: 2006 sec (L&S) 753] ."
                                                                          G
        In State ofM.P. v. Lalit KumarVerma' 0 : this Court held that:
        "2 l. The legal position somehow was uncertain before the
        decision rendered by the Constitution Bench of this Court

• (2006) 5 sec 493
 '" (2007) 1 sec 575                                                     H
126               SUPREME COURT REPORTS                          [2016] 12 S.C.R.



A             in Umadevi (3) [(2006) 4 sec 1 : 2006 sec (L&S) 753].
              It has categorically been stated before us that there was
              no vacant post in the Department in which the respondent
              could be reinstated. The State had also adopted a policy
              decision regarding regularisation. The said policy decision
              also has no application in the case of the responclent. Even
B
              otherwise, it would be unconstitutional being hit by Article
              16 of the Constitution oflndia."
            In Post Master General v. Tutu Das (Dutta) 11 this Court held
      as under:
c             "20. The staterpent of law contained in para 53 ofUmadevi
              (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] cannot also
              be invoked in this case. The question has been considered
              by this Court in a large number of decisions. We would,
              however, refer to only a few of them ....

D              21. In Punjab Water Supply & Sewerage Board v. Ranjodh
               Singh ((2007) 2 sec 491 : (2007) 1 sec (L&S) 713]
               referring to paras 15, 16 and 53 ofUmadevi (3) [(2006) 4
               SCC I : 2006 SCC (L&S) 753] this Court observed:
               (Ranjodh Singh case [(2007) 2 SCC 491 : (2007) I SCC
               (L&S) 713], sec p. 500 paras 17-18)
E
               '17. A combined reading of the aforementioned paragraphs
               would clearly indicate that what the Constitution Bench
               had in mind in directing regularisation was in relation to
               such appointments, which were irregular in nature and not
               illegal ones."
F
           18. A three-Judge Bench of this Court in Official Liquidator v.
      Dayanand 12 , held thus:
               "75. By virtue of Article 141 of the Constitution, the
               judgment of the Constitution Bench in State ofKarnataka
               v. Umadevi (3) [(2006) 4 sec 1 : 2006 sec (L&S) 753]
G
               is binding on all the courts including this Court till the same
               is overruled by a larger:·ffench. The ratio of the
               Constitution Bench judgment has been followed by
               different two-Judge Benches for declining to entertain the
      11
           (2007) s sec 317
H     12
           c2oos) 1o sec 1
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                                  127
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

      claim of regularisation of service made by ad hoc/                       A
      temporary/daily wage/casual employees or for reversing
      the orders of the High Court granting relief to such
      employees - Indian Drugs and Pharmaceuticals Ltd. v.
      Workmen [(2007) I SCC 408 : (2007) 1 SCC (L&S) 270]
      , Gangadhar Pillai v. Siemens Ltd. [(2007) 1 SCC 533 :
                                                                               B
      (2007) 1 SCC (L&S) 346] , Kendriya Vidyalaya Sangathan
      v. L.V. Subramanyeswara [(2007) 5 SCC 326 : (2007) 2
      SCC (L&S) 143] and Hindustan Aeronautics Ltd. v. Dan
      Bahadur Singh [(2007) 6 SCC 207 : (2007) 2 SCC (L&S)
      441]."
        19. The principles will have to be formulated bearing in mind the      C
position set out in the above judgments. Regularisation is not a source of
recruitment nor is it intended to confer permanency upon appointments
which have been made without following the due process envisaged by
Articles 14 and 16 of the Constitution. Essentially a scheme for
regularisation, in order to be held to be legally valid, must be one which     D
is aimed at validating certain irregular appointments which may have
come to be made in genuine and legitimate administrative exigencies. In
all such cases it may be left open to Courts to lift the veil to enquire
whether the scheme is aimed at achieving the above objective and is a
genuine attempt at validating irregular appointments. The State and its
instrumentalities cannot be permitted to use this window to validate illegal    E
appointments. The second rider which must necessarily be placed is
that the principle as formulated above is not meant to cr_eate or invest in
a temporary or ad hoc employee the right to seek a writ commanding
the State to frame a scheme for regularisation. Otherwise, this would
simply reinvigorate a class of claims which has been shut out pennanently       F
by Uma Devi. Ultimately, it would have to be left to the State and its
instrumentalities to consider whether the circumstances warrant cSuch a
scheme being formulated. The fo~mulation of such a scheme cannot be
accorded the status of an enforceable right. It would perhaps be prudent
to leave it to a claimant to establish whether he or she falls within the
exceptions carved out in paragraph 53 and falls within the ambit of a           G
scheme that may be formulated by the State. Subject to the riders· referred
to above, a scheme of regularisation could fall withi.n the permissible
 limits ofUma Devi and be upheld.
       20. The judgment in Renu was delivered on 12 February 2014.
                                                                               H
128             SUPREME COURT REPORTS                         f20161 12 S.C.R.



A     Neither of the orders of the High Court in the present case would indicate
      that the principles which have been enunciated by this Court have been
      considered.
            21. The grievances which have been set out on behaif of the state
      government in the Special Leave Petition, and during the course of the
B     hearing, include the following:
             (i) In a Public Interest Litigation seeking the construction of a
      district court complex in Bandipora District the High Court proceeded to
      issue directions for the regularization of services of daily rated workers.
      These directions were totally unconnected to the reliefs which were
c     sought in the PIL;
             (ii) By an order of the High Court dated 7 October2015, the state
      government was directed to consider the claim for regularization of the
      daily rated workers as a one-time exception which required the state
      government necessarily to decide on the issue of regularization. The
D     state government has constituted an empowered committee on 19 August
      2015 to inquire into the issue of creating posts for the regularization of
      nearly sixty one thousand daily rated and casual workers working in
      various departments of the state government. These include workers on
      the establishment of the High Court and the district courts; The High
      Court has pre-empted consideration by issuing a direction for
E     regularisation;
             (iii) There is a lack of clarity in the actual number of daily rated
      workers engaged in the High Court and the district judiciary, as well as
      in the nature of work performed. The list furnished by the Registrar
      General contains the names of several .Sewaks whose services are
F     governed under a GO dated 28 July 2016. All the two hundred nine
      workers do not perform the same job and who among them is eligible to
      be considered for regularization has yet to be determined;
             (iv) The High Court has proceeded on the erroneous basis that
      the issue of regularization has attained finality. The dismissal of the
G     Special Leave Petition by this Court on 16 December 2015 against an
      interim order dated 7 October 2015 does not conclude the issue. There
      is no vested right to seek regularization; and
            (v) The High Court has erred, in its order dated 1 December
      2015, in holding that daily rated workers on the establishment of the
H
   STATE OF JAMMU AND KASHMIR v. DISTRICT BAR                              I29
ASSOCIATION, BANDIPORA[DR. D. Y. CHANDRACHUD, J.]

High Court would not be regulated by the rules governed by SRO 64 of       A
1994. If the Daily Rated Workers are to be regularized, the state
government should be required to create a sufficient number of posts
for Jhe _purpose.
       22. We have adverted to the above grievances in order to
emphasise that there is substantial merit in the submission that the High B
Court proceeded to issue directions for regularization without considering
eitherthe legal position enunciated in the judgments of this Court referred
to above and without considering the prevailing rules and regulations on
the subject. The High Court has observed in its order dated 1 December
2015 that over a considerable period of time the state government has
not created the required number of posts for the state judiciary as a
                                                                             c
result of which work has been hampered. According to the High Court,
appointment of daily rated workers was necessitated to ensure that judicial
work does not suffer. The High Court opined that these workers have
been rendering work which should have been assigned to persons
appointed on a regular basis against sanctioned posts. It is unfortunate, D
in our view, that the state government has allowed the requirements of
the state judiciary to be neglected over such a long period of time. The
need to facilitate the proper functioning of the High Court and the district
judiciary is a constitutional necessity which imposes a non-negotiable
obligation on the state government to create an adequate number of
posts and to provide sufficient infrastructure. The state government is to E
 blame for the unfortunate situation which has resulted ina large number
of persons being recruited on a daily wage basis.
       23. We have already indicated above our conclusion that the
direction for regularization was issued by the High Court without
considering the relevant constitutional and legal principles. While some    F
of the daily rated workers have been engaged over long periods of time,
others have been engaged as recently as in 2015. The issue of whether
such appointments were irregular or whether they were illegal should
have been determined but has not been considered. Since the issue of
regularization is a matter with which the state government is seized, as    G
stated in the proceedings before this Court, we are of the view that at
this stage it would be appropriate and proper to set aside the impugned
order of the High Court which directs the regularization en masse of
two hundred nine daily rated workers. While doing so, we restore the
proceedings back to the file of the High Court for reconsideration. We
                                                                            H
130                SUPREME COURT REPORTS                  [2016] 12 S.C.R.


A order accordingly, leave it open to the High Court to reconsider the entire
  matter afresh having due regard to the constitutional and legal principles
  enunciated and having regard to all relevant factual aspects.
             24. The Civil Appeal shall accordingly stand disposed of. There
      shall be no orders as to costs.
B
      Ankit Gyan                                             Appeal disposed of.