Holding

A casual or daily‑wage employee whose appointment was not made in accordance with the prescribed recruitment rules cannot claim regularisation merely on the basis of long continuous service.

Summary

The respondents, who were daily‑wage workers such as plantation watchmen, wireless operators and helpers, claimed regularisation of service after more than ten years of continuous employment. The State of Karnataka contended that the respondents were not recruited under the prescribed recruitment rules and that the regularisation scheme applied only to employees who had been engaged before 1 July 1984. The Karnataka Administrative Tribunal and the High Court directed the employer to consider the respondents' claims, which were appealed to the Supreme Court. The Court held that a casual or daily‑wage employee whose original appointment did not follow due‑process recruitment cannot acquire a right to regularisation merely by long service, reaffirming earlier decisions on equality under Articles 14 and 16. It also ruled that a new plea invoking the Industrial Disputes Act, 1947, could not be raised at this stage as it was not pleaded earlier. Consequently, the appeals were allowed and the orders of the Tribunal and High Court were set aside, dismissing the respondents' claims, while granting them liberty to approach the appropriate forum under the Industrial Disputes Act.

Issues considered

Whether a daily‑wage or casual employee not appointed under the recruitment rules is entitled to regularisation after continuous service of more than ten years.
Whether the scheme of regularisation applies to employees appointed after 1 July 1984.
Whether a new plea under the Industrial Disputes Act, 1947, can be raised before the Supreme Court when it was not pleaded in the lower courts.

Legislation cited

Subjects

regularisationcasual employmentdaily wage workersrecruitment rulesIndustrial Disputes Actconstitutional lawArticle 14Article 16public employmentservice law

Judgment

[2010] 1 S.C.R. 807

STATE OF KARNATAKA & ORS. A
v.
GANPATHI CHAYA NAIK & ORS.
(Civil Appeal No. 795-798 of 2010)
JANUARY 22, 2010
B
[V.S. SIRPURKAR AND DR. MUKUNDAKAM
SHARMA, JJ.]

Service law - Regularization/absorption - Daily wagers in
continuous service for more than ten years since the date of C
their appointment - Regularization of service - Claim of - Held:
Not sustainable since daily wagers were not recruited as per
the Recruitment Rules - Order of tribunal as upheld by High
Cowt directing the employer to consider in the cases of daily
wagers for regularization, set aside. -0

Plea - New plea - Raising of - Before Supreme Court -
Permissibility of - Held: Not permissible.

Respondent-daily wagers claimed regularization of
service on the ground that they had been in continuous E
service for more than ten years since their initial
appointment. Appellant-State contended that the
respondents had not been recruited as per the
Recruitment Rules and the scheme of regularization
pertained only to those persons who had been working F
prior to 01.7.1984, whereas respondents were recruited
after the said date. Tribunal directed the appellants to
consider the cases of the respondents for regularization
of their service on merits. High Court upheld the same.
Hence the present appeals. G

Allowing the appeals, the Court

HELD: 1. Merely because a temporary employee or
a casual wage worker is continued for a time beyond the
807 H
808 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 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 the original
appointment was not made by following a due process
of selection as envisaged by the relevant rules the claims
B of the respondents for regularization or absorption
cannot be sustained. The orders passed by the High
Court as also the tribunal is set aside. [Para 6) [811-E-F]

2. The respondents did not argue about their rights
under the Industrial Disputes Act, 1947 at any stage till
C the hearing of the appeal before this Court. A faint
argument was sought to be made by their counsel which,
however, was not permitted to be raised as neither there
was any pleading in support of the same nor any
argument in the Courts below at any stage. Further, even
D a case of the said nature has not been pleaded before this
Court. Therefore, such a plea could not be raised before
this Court by the respondents. Therefore, in these
appeals the rights of the respondent under the said Act
is not adjudicated upon. [Para 8) [813-H; 814-A-B]
E
Union of India &Anr. v. Kartick Chandra Monda/ and Anr.
2010 (1) JT. 206; Secretary, State of Kamataka and Others
v. Umadevi (3) and Ors. (2006) 4 SCC 1; Official Liquidator
v. Dayanand and Others (2008) 10 sec 1 , relied on.
F Case Law Reference:

2010 (1) JT. 206 Relied on. Para 6
(2006) 4 sec 1 Relied on. Para 6

G (2008) 1o sec 1 Relied on. Para 7

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 795-
798 of 2010.

From the Judgment & Order dated 5.1.2004 of the High
H
STATE OF KARNATAKA & ORS. v. GANPATHI 809
CHAYA NAIK

Court of Karnataka at Bangalore in W.P. Nos. 53790, 53804- A
53806 of 2003.

WITH

C.A. Nos. 799-805, 806-810, 811-813, 814-817 & 818 of
2010. B

Sanjay R. Hedge, A. Rohan Singh, Amit Kr. Chawla for the
Appellants.

R.S. Hegde (for P.P. Singh), Hari Shankar, Sudarshan C
Singh Rawat, K. Saradai Devi, Rajesh Mahale for the
Respondents.

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. Leave Granted in D
all the Special Leave Petitions.

2. The common question which arises for consideration in
all these appeals is whether the orders passed by the Division
Bench of the High Court of Karnataka, Bangalore in different E
Writ Petitions filed before it by the appellants herein dismissing
the said Writ Petitions and upholding the directions given by
the Karnataka Administrative Tribunal, Bangalore ("KAT' for
short") to the appellants to consider the cases of the
respondents for regularization of their service on merits are
sustainable. F

3. The facts which are necessary to answer the aforesaid
question are being culled out here. The respondents in all these
appeals were working on daily wages either as plantation -.
watchmen or wireless operators or helpers. The respondents G
in all these appeals claimed regularization of their service in
light of the fact that they had been in continuous service for
more than ten years since the day of their initial appointment.
The appellants, however, refuted their claim on the ground that
the scheme of regularization pertained to only those persons H
810 SUPREME COURT REPORTS [2010] 1 S.C.R.

A who had been working prior to 01.07.1984.

4. The learned counsel appearing on behalf of the
respondents, on the other hand, supported the decision of the
High Court of Karnataka.
B 5. We have heard all the learned counsel appearing for the
parties. In light of the submissions made by the counsel
appearing for the parties, we have carefully perused the
documents available on record. The learned counsel appearing
for the appellants submitted that the High Court as also the KAT
C had erred in allowing the claim of the respondents for
regularization of their services as the respondents had failed
to establish their rights for regularization. The counsel
appearing for the appellants further submitted before us that the
claim of the respondents for regularization was not sustainable
D in view of the fact that they had not been recruited as per the
Recruitment Rules and also because the respondents had been
recruited after 01.07.1984 whereas the scheme of regularization
pertained to only those who had been working prior to the
aforesaid date. It was also contended before us by the learned
E counsel appearing for the appellants that the respondents not
being recruited through the proper procedure were back-door
entrants into government service, and therefore, regularization
of their services would be in violation of Articles 14 and 16 of
the Constitution of India.
F 6. At this juncture, we intend to refer to a few recent
decisions of this Court on the issue involved herein. In Civil
Appeal No. 2090 of 2007 which was pronounced on
15.01.2010, one of us (Mukundakam Sharma J.) had the
opportunity to deal with a similar question concerning
G regularization of the casual workers. This Court, while allowing
the petition dismissed the claim of the casual workers for
regularization or absorption. In coming to the aforesaid
conclusion, this Court placed reliance on two recent and
landmark decisions of this Court. In Secretary, State of
H Kamataka and Others v. Umadevi (3) and Others reported in
STATE OF KARNATAKA & ORS. v. GANPATHI 811
CHAYA NAIK [DR. MUKUNDAKAM SHARMA, J.]

(2006) 4 SCC 1 , this Court, in paragraphs 43 and 45 of the A
judgment, observed as follows: -

"43. 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
8
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 Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has C
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 D
it were an engagement or appointment on daily wages or
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 E
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 the original appointment was not made by F
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 G
not acquire any right. .............. ."

"45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts are
swayed by the fact that the person concerned has worked
H
812 SUPREME COURT REPORTS [2010) 1 S.C.R.

A 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 h~s employment. He accepts the
employment with open eyes It may be true that he is not
s in a position to bargain-not at arm's 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
c 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.

D
. .. . . . . . . . . . .. . .. . . .. . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 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. In other words, even
while accepting the employment, the person concerned
E 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
F 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
G 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 equality of opportunity
enshrined in Article 14 of the Constitution."
H
STATE OF KARNATAKA & ORS. v. GANPATHI 813
CHAYA NAIK [DR. MUKUNDAKAM SHARMA, J.]

?.Subsequent to the aforesaid decision, the issue again A
arose for consideration before the 3-Judges Bench of this Court
in the Official Liquidator v. Dayanand and Others reported in
(2008) 10 SCC 1 wherein this Court, in paragraphs 68 and 116,
observed as follows:-
8
"68. The abovenoted judgments and orders encouraged ·
the political set-up and bureaucracy to violate the soul of'
Articles 14 and 16 as also the provisions contained in the
Employment Exchanges (Compulsory Notification of
Vacancies) Act, 1959 with impunity and the spoils system C
which prevailed in the United States of America in the
sixteenth and seventeenth centuries got a firm foothold in
this country. Thousands of persons were employed/
engaged throughout the length and breadth of the country
by backdoor methods. Those who could pull strings in the
power corridors at the higher and lower levels managed D
to get the cake of public employment by trampling over the
rights of other eligible and more meritorious persons
registered with the employment exchanges. A huge illegal
employment market developed in different parts of the
country and rampant corruption afflicted the whole system." E

"116. In our opinion, any direction by the Court for
absorption of all company - paid staff would be detrimental
to public interest in more than one ways. Firstly, it will
compel the Government to abandon the policy decision of F
reducing the direct recruitment to various services.
Secondly, this will be virtual abrogation of the statutory rules
which envisage appointment to different cadres by direct
recruitment."

8. In view of the settled position of law in this regard which G
has been reiterated in a number of judgments of this Court, we
hold that the claims of the respondents for regularization or
absorption cannot be sustained. Accordingly, we allow the
appeals and set aside the orders passed by the High Court
as_also the KAT. The respondents· .:lid not argue about their H
814 SUPREME COURT REPORTS (2010) 1 S.C.R.

A rights under the Industrial Disputes Act, 1947 at any stage till
the hearing of the appeal before us. A faint argument was
sought to be made by the counsel appearing for the
respondents which, however, was not permitted to be raised
as neither there was any pleading in support of the same nor
B any argument in the Courts below at any stage. Further, even
a case of the said nature has not been pleaded before us.
Therefore, such a plea could not be raised before us by the
respondents. We have, therefore, in these appeals not
adjudicated upon the rights of the1respondents under the said
c Act. Liberty is, therefore, granted to the respondents to
approach the appropriate forum under the said Act, if such a
remedy and right is available to the respondents.

N.J. Appeals allowed.