STATE OF KARNATAKA & ORS.versusM.L. KESARI & ORS.

                  [2010] 9 S.C.R. 543


             STATE OF KARNATAKA & ORS.                         A
                             v.
                    M.L. KESARI & ORS.
              (Civil Appeal No. 6208 of 2010)
                     AUGUST 3, 2010
                                                               B
     [R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]

     Labour Laws - Regularization - Daily wage workers -
Continuance in service for 15 years, without intervention of
court/tribunal - Writ petition seeking regularization - Allowed C
by single Judge as well as Division Bench of High Court - In
*Uma Devi's case, constitution Bench of Supreme Court gave
exception to the general rule against regularization holding
that irregular appointments of the employees having 10 years
service or more without intervention for the Court/tribunal to D
be regularized on one time measure within six months from
the date of the judgment - Instant case was not considered
within six months from the date of judgment in Uma Devi's
case - Held: Employer not undertaking exercise of
regularization within six months of Umadevi's case, does not E
disentitle the employees, the right to be considered for
regularization in terms of the directions in Umadevi's case -
Direction to the employer to consider the cases of the
appellant-employees within six months as a one time
regularization exercise.                                        F

    Respondents 1 to 3 were appointed on daily wage
basis by the appellant-Zila Panchayat. They were
continued as daily wagers for more than 15 years and
such continuance was without any intervention of a court
and without the protection of any interim orders of any        G
court or tribunal. Thereafter, they filed writ petitions
seeking regularization of their services. Single Judge of
High Court allowed the petition directing to consider their

                            543                                H
    544      SUPREME COURT REPORTS              [2010] 9 S.C.R.


A representation. The writ appeals thereagainst, were
  dismissed by the Division Bench of High Court, holding
  that the respondent would be entitled to regularization,
  depending upon the terms and conditions of
  appointment, availability of existing substantive
B vacancies, eligibility, qualifications, continuity of service,
  seniority and the prevailing rules. Therefore, the instant
  appeal was filed. The appeal was adjourned to await the
  decision of the Constitution Bench in Umadevi's case.

          Disposing of the appeal, the Court
c
       HELD: 1.1 It has been held in Uma Devi's case that
  appointments made without due process or the rules
  relating to appointment did not confer any right upon
  appointees for regularization. However, in Para 53 of the
D judgment, the Court made an exception to the general
  rule against regularization, holding that irregular (not
  illegal) appointments, where employees have continued
  in service for ten years or more without the intervention
  of courts or tribunals, have to be considered on merits,
E as a one time measure within six months from the date
  of the decision i.e. 10.4.2006. [Paras 4 and 5] [548-G-H;
   550-B-G]

       1.2 The object behind the direction in Para 53 of
  Umadevi's case, is two-fold. First is to ensure that those
F who have put in more than ten years of continuous
  service without the protection of any interim orders of
  courts or tribunals, before the date of decision in
  Umadevi was rendered, are considered for regularization
  in view of their long service. Second is to ensure that the
G departments/instrumentalities do not perpetuate the
  practice of employing persons on daily-wage/ad-hoc/
  casual for long periods and then periodically regularize
  them on the ground that they have served for more than
  ten years, thereby defeating the constitutional or statutory
H
 STATE OF KARNATAKA & ORS. v. M.L. KESARI &             545
                  ORS.
provisions relating to recruitment and appointment. The        A
true effect of the direction is that all persons who have
worked for more than ten years as on 10.4.2006 (the date
of decision in Umadevi) without the protection of any
interim order of any court or tribunal, in vacant posts,
possessing the requisite qualification, are entitled to be     B
considered for regularization. The fact that the employer
has not undertaken such exercise of regularization within
six months of the decision in Umadevi's case or that such
exercise was undertaken only with regard to a limited few,
will not disentitle such employees, the right to be            c
considered for regularization in terms of the above
directions in Umadevi's case as a one-time measure.
[Para 8) [551-H; 552-A-E]

      1.3 At the end of six months from the date of decision
 in Umadevi's case, cases of several daily-wage/ad-hoc/        D
casual employees were still pending before courts.
Consequently, several departments and instrumentalities
did not commence the one-time regularization process.
On the other hand, some Government Departments or
 instrumentalities undertook the one-time exercise             E
excluding several employees from consideration either
on the ground that their cases were pending in courts or
due to sheer oversight. In such circumstances, the
employees who were entitled to be considered in terms
of Para 53 of the decision in Umadevi, will not lose their     F
 right to be considered for regularization, merely because
·the one-time exercise was completed without considering
 their cases, or because the six month period mentioned
 in Para 53 of Umadevi's case has expired. The one-time
 exercise should consider all daily-wage/adhoc/those           G
 employees who had put in 10 years of continuous
 service as on 10.4.2006 without availing the protection of
 any interim orders of courts or tribunals. If any employer
 had held the one-time exercise in terms of Para 53 of
                                                               H
    546   SUPREME COURT REPORTS              (2010) 9 S.C.R.


A Umadevi's case, but did not consider the cases of some
  employees who were entitled to the benefit of Para 53 the
  employer concerned should consider their cases also, as
  a continuation of the one-time exercise. The one time
  exercise will be concluded only when all the employees
B who are entitled to be considered in terms of Para 53 are
  so considered. [Para 7] [551-C-G]

       2.1 Umadevi's case casts a duty upon the concerned
  Government or instrumentality, to take steps to regularize
C the services of those irregularly appointed employees
  who had served for more than ten years without the
  benefit or protection of any interim orders of courts or
  tribunals, as a one-time measure. Umadevi's case,
  directed that such one-time measure must be set in
  motion within six months from the date of its decision
D (rendered on 10.4.2006). [Para 5] [550-F-G]

      2.2 The term 'one-time measure' has to be
  understood in its proper. perspective. This would
  normally mean that after the decision in Umadevi, each
E department or each instrumentality should undertake a
  one-time exercise and prepare a list of all casual, daily-
  wage or ad hoc employees who have been working for
  more than ten years without the intervention of courts
  and tribunals and subject them to a process verification
F as to whether they are working against vacant posts and
  possess the requisite qualification for the post and if so,
  regularize their serv:ces. [Para 6] [550-H; 551-A-B]

      2.3 In the instant appeals, the appellant (Zila
  Panchayat) has not considered the cases of respondents
G of regularization within six months of the decision in
  Umadevi or thereafter. The High Court has directed that
  the cases of respondents should be considered in
  accordance with law. The only further direction that

H
 STATE OF KARNATAKA & ORS. v. M.L. KESARI & 547
                  ORS.

needs be given, in view of Umadevi's case, is that the         A
appellant should now undertake an exercise within six
months, a general one-time regularization exercise, to
find out whether there are any daily wage/casual/ad-hoc
employees serving the appellant and if so whether such
employees (including the respondents) fulfill the              B
requirements mentioned in Para 53 of Umadevi's case. If
they fulfill them, their services have to be regularized. If
such an exercise has already been undertaken by
ignoring or omitting the cases of respondents 1 to 3
because of the pendency of these cases, then their cases       c
shall have to be considered in continuation of the said
one time exercise within three months. [Paras 9 and 10)
[552-E-H; 553-A-C]

    *State of Karnataka vs. Uma Devi (2006) 4 SCC 1 -
explained and followed.                                        D

                    Case Law Reference:

    (2006) 4 SCC 1explained and followed. Paras 5-10

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.            E
6208 of 2010.

     From the Judgment & Order dated 22.07.2004 of the High
Court of Karnataka at Bangalore in W.A. Nos. 1641 to 1643
of 2003.                                                       F
   Sanjay R. Hegde, Ramesh Kr. Mishra, Krutin Joshi,
Ramesh S. Jadhav, Vikrant Yadav for the Appellants.

    K. Sarada Devi for the Respondents.
                                                               G
    The Judgment of the Court was delivered by

    R.V.RAVEENDRAN, J. 1. Delay condoned. Leave
granted.

    2. Respondents 1 to 3 were appointed on daily wage         H
    548     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A basis by the Zila Panchayat, Gadag, between 1985 and 1987.
  Their services were utilized as Typist, Literate Assistant and
  \/Vatchman respectively in the office of the Executive Engineer,
  Zila Panchayat Engineering Sub-Division, Ron, Gadag District.
  They were continued as daily wagers for more than 15 years
B without the intervention of any court and without the protection
  of any interim orders of any court or tribunal. In the year 2002
  they filed Writ Petitions (Nos.31687-31689/2002) seeking
  regularization. The said writ petitions were allowed by a learned
  Single Judge of Karnataka High Court by order dated
c 27.9.2002 with a direction to consider their representations in
  accordance with the judgment dated 24.1.2001 in W.A.
  Nos.5697/2000 and 6677-7351/2000. The writ appeals filed by
  the appellants against the said order were dismissed by a
  Division Bench by the impugned order dated 28.7.2004 holding
D that the respondents will be entitled to regularization, depending
  upon the terms and conditions of appointment, availability of
  existing substantive vacancies, eligibility, qualifications,
  continuity of service, seniority and the prevailing rules. The
  Division Bench directed that the case of each of the appellants
  shall be considered independently on its own facts, within four
E months. The said judgment is challenged in this appeal by
  special leave.

         3. When the matter came up for hearing on 10.3.2006, the
    matter was adjourned to await the decision of the Constitution
F   Bench in CA Nos. 3595-3612/1999 - State of Karnataka v.
    Umadevi. However, subsequently notice was directed to be
    issued both on the application for condonation of delay for 361
    days' in filing the SLP as also on the special leave petition

      4. The decision in State of Karnataka v. Umadevi was
G rendered on 10.4.2006 (reported in 2006 (4) SCC 1). In that
  case, a Constitution Bench of this Court held that appointments
  made without following the due process or the rules relating to
  appointment did not confer any right on the appointees and
  courts cannot direct their absorption, regularization or re-
H
 STATE OF KARNATAKA & ORS .. v. M.L. KESARI &                549
         ORS. [R.V. RAVEENDRAN, J.)

engagement nor make their service permanent, and the High           A
Court in exercise of jurisdiction under Article 226 of the
Constitution should not ordinarily issue directions for
absorption, regularization, or permanent continuance unless the
recruitment had been done in a regular manner, in terms of the
constitutional scheme; and that the courts must be careful in       -s
ensuring that they do not interfere unduly with the economic
arrangement of its affairs by the State or its instrumentalities,
nor lend themselves to be instruments to facilitate the bypassing
of the constitutional and statutory mandates. This Court further
held that a temporary, contractual, casual or a daily-wage          c
employee does not have a legal right to be made permanent
unless he had been appointed in terms of the relevant rules or
in adherence of Articles 14 and 16 of the Constitution. This
Court however made one exception to the above position and
the same is extracted below :
                                                                    D
    "53. One aspect needs to be clarified. There may be
    cases where irregular appointments (not illegal
    appointments) as explained in S. V. Narayanappa (1967
    (1) SCR 128), R.N. Nanjundappa (1972 (1) SCC 409] and
    B.N. Nagarajan (1979 (4) SCC 507] and referred to in            E
    para 15 above, of duly qualified persons in duly sanctioned
    vacant posts might 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 regularization of the services of such              F
    employees may have to be considered on.merits in the light
    of the principles settled by this Court ·in the cases
    abovereferred to and in the light of this judgment. In that
    context, the Union of India, the State Governments and their
    instrumentalities should take steps to regularize as a one-     G
    time measure, the services of such irregularly appointed,
    who have worked for ten years or more in duly sanctioned
    posts but not under cover of orders of the courts or of
    tribunals and should further ensure that regular recruitments
    are undertaken to fill those vacant sanctioned posts that       H
    550      SUPREME COURT REPORTS                 [2010] 9 S.C.R.

A         require to be filled up, in cases where temporary
          employees or daily wagers are being now employed. The
          process must be set in motion within six months from this
          date..... "

8       5. It is evident from the above that there is an exception to
    the general principles against 'regularization' enunciated in
    Umadevi, if the following conditions are fulfilled :

       (i) The employee concerned should have worked for 1O
  years or more in duly sanctioned post without the benefit or
C 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.

0      (ii) The appointment of such employee should not be illegal,
  even if irregular. Where the appointments are not made or
  continued against sanctioned posts or where the persons
  appointed do not possess the prescribed minimum
  qualifications, the appointments will be considered to be illegal.
E But where the person employed possessed the 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.

F   Umadevi casts a duty upon the concerned Government or
  instrumentality, to take steps to regularize the services of those
  irregularly appointed employees who had served for more than
  ten years without the benefit or protection of any interim orders
  of courts or tribunals, as a one-time measure. Umadevi,
G directed that such one-time measure must be set in motion
  within six months from the date of its decision (rendered on
    10.4.2006).
        6. The term 'one-time measure' has to be understood in
H its proper perspective. This would normally mean that after the
  STATE OF KARNATAKA & ORS. v. M.L. KESARI & 551
          ORS. [R.V. RAVEENDRAN, J.]
 decision in Umadevi, each department or each instrumentality           A
 should undertake a one-time exercise and prepare a list of all
 casual, daily-wage or ad hoc employees who have been
 working for more than ten years without the intervention of courts
 and tribunals and subject them to a process verification as to
 whether they are working against vacant posts and possess              B
 the requisite qualification for the post and if so, regularize their
 services.

        7. At the end of six months from the date of decision in
  Umadevi, cases of several daily-wage/ad-hoc/casual
  employees were still pending before Courts. Consequently, C
  several departments and instrumentalities did not commence
  the one-time regularization process. On the other hand, some
  Government departments ·or instrumentalities undertook the
  one-time exercise excluding several employees frgm
  consideration either on the ground that their cases we-rf!-, .0
  pending in courts or due to sheer oversight. In such
  circumstances, the employees who were entitled to be
  considered in terms of Para 53 of the decision in Umadevi,
  will not lose their right to be considered for regularization, merely
  because the one-time exercise was completed without E
  considering their cases, or because the six month period
  mentioned in para 53 of Umadevi has expired. The one-time
  exereise should consider all daily-wage/adhoc/those employees
  who had put in 10 years of continuous service as on 10.4.2006
  without availing the protection of any interim orders of courts F
· or tribunals. If any employer had held the one-time exercise in
  terms of para 53 of Umadevi, but did not consider the cases
  of some employees who were entitled to the benefit of para 53
  of Umadevi, the employer concerned should consider their
  cases also, as a continuation of the one-time exercise. The one G
  time exercise will be concluded only when all the employees
  who are entitled to be considered in terms of Para 53 of
  Umadevi, are so considered.

      8. The object behind the said direction in par_a 53 of
                                                                        H
    552      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A Umadevi is two-fold. First is to ensure that those who have put
  in more than ten years of continuous service without the
  protection of any interim orders of courts or tribunals, before
  the date of decision in Umadevi was rendered, are considered
  for regularization in view of their long service. Second is to
B ensure that the departments/instrumentalities do not perpetuate
  the practice of employing persons on daily-wage/ad-hoc/casual
  for long periods and then periodically regularize them on the
  ground that they have served for more than ten years, thereby
  defeating the constitutional or statutory 'provisions relating to
c recruitment and appointment. The true effect of the direction is
  that all persons who have worked for more than ten years as
  on 10.4.2006 (the date of decision in Umadev1) without the
  protection of any interim order of any court or tribunal, in vacant
  posts, possessing the requisite qualification, are entitled to be
  considered for regularization. The fact that the employer has
0
  not undertaken such exercise of regularization within six months
  of the decisio'n in Umadevi or that such exercise was
  undertaken only in regard to a limited few, will not disentitle such
  employees, the right to be considered for regularization in terms
  of the above directions in Umadevi as a one-time measure.
E
        9. These appeals have been pending for more than four
  years after the decision in Uinadevi. The Appellant (Zila
   Panchayat, Gadag) has not considered the cases of
   respondents of regularization within six months of the decision
F in Umadevi or thereafter.

        10. The Division Bench of the High Court has directed that
  the cases of respondents should be considered in accordance
  with law. The only further direction that needs be given, in view
  of Umadevi, is that the Zila Panchayat, Gadag should now
G undertake an exercise within six months, as a general one-time
  regularization exercise, to find out whE!ther there are any daily
  wage/casual/ad-hoc employees serving the Zila Panchayat and
  if so whether such employees (including the respondents) fulfill
  the requirements mentioned in para 53 of Umadevi. If they fulfill
H
 STATE OF KARNATAKA & ORS. v. M.L. KESARI &                  553
         ORS. [R.V. RAVEENDRAN, J.)
                                                 •
them, their services have to be regularized. If such an exercise    A
has already been undertaken by ignoring or omitting the cases
of respondents 1 to 3 because of the pendency of these cases,
then their cases shall have to be considered in continuation of
the said one time exercise within three months. It is needless
to say that if the respondents do not fulfill the requirements of   B
Para 53 of Umadevi, their services need ,not be regularised. If
the employees who l:Jave completed ten years service do not
possess the educationai qualifications prescribed for the post,
at the time of their appointment, they may be considered for
regularization in suitable lower posts. This appeal is disposed     C
of accordingly.

K.K.T                                     Appeal disposed of.