CASE NO.:
Appeal (civil) 3595-3612 of 1999
PETITIONER:
Secretary, State of Karnataka and others
RESPONDENT:
Umadevi and others
DATE OF JUDGMENT: 10/04/2006
BENCH:
Y.K. SABHARWAL
& ARUN KUMAR
& G.P. MATHUR
& C.K. THAKKER
& P.K.I.BALASUBRAMANYAN
WITH
CIVIL APPEAL NO.1861-2063/2001, 3849/2001,
3520-3524/2002 and CIVIL APPEAL NO. 1968 of 2006
arising out of SLP(C)9103-9105 OF 2001
Delivered by
P.K. BALASUBRAMANYAN, J
Leave granted in SLP(C) Nos.9103-9105 of 2001
1. Public employment in a sovereign socialist secular democratic
republic, has to be as set down by the Constitution and the laws made
thereunder. Our constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a procedure established
in that behalf. Equality of opportunity is the hallmark, and the Constitution
has provided also for affirmative action to ensure that unequals are not
treated equals. Thus, any public employment has to be in terms of the
constitutional scheme.
2. A sovereign government, considering the economic situation in
the country and the work to be got done, is not precluded from making
temporary appointments or engaging workers on daily wages. Going by a
law newly enacted, The National Rural Employment Guarantee Act, 2005,
the object is to give employment to at least one member of a family for
hundred days in an year, on paying wages as fixed under that Act. But, a
regular process of recruitment or appointment has to be resorted to, when
regular vacancies in posts, at a particular point of time, are to be filled up
and the filling up of those vacancies cannot be done in a haphazard manner
or based on patronage or other considerations. Regular appointment must be
the rule.
3. But, sometimes this process is not adhered to and the
Constitutional scheme of public employment is by-passed. The Union, the
States, their departments and instrumentalities have resorted to irregular
appointments, especially in the lower rungs of the service, without reference
to the duty to ensure a proper appointment procedure through the Public
Service Commission or otherwise as per the rules adopted and to permit
these irregular appointees or those appointed on contract or on daily wages,
to continue year after year, thus, keeping out those who are qualified to
apply for the post concerned and depriving them of an opportunity to
compete for the post. It has also led to persons who get employed, without
the following of a regular procedure or even through the backdoor or on
daily wages, approaching Courts, seeking directions to make them
permanent in their posts and to prevent regular recruitment to the concerned
posts. Courts have not always kept the legal aspects in mind and have
occasionally even stayed the regular process of employment being set in
motion and in some cases, even directed that these illegal, irregular or
improper entrants be absorbed into service. A class of employment which
can only be called 'litigious employment', has risen like a phoenix seriously
impairing the constitutional scheme. Such orders are passed apparently in
exercise of the wide powers under Article 226 of the Constitution of India.
Whether the wide powers under Article 226 of the Constitution is intended
to be used for a purpose certain to defeat the concept of social justice and
equal opportunity for all, subject to affirmative action in the matter of public
employment as recognized by our Constitution, has to be seriously pondered
over. It is time, that Courts desist from issuing orders preventing regular
selection or recruitment at the instance of such persons and from issuing
directions for continuance of those who have not secured regular
appointments as per procedure established. The passing of orders for
continuance, tends to defeat the very Constitutional scheme of public
employment. It has to be emphasized that this is not the role envisaged for
High Courts in the scheme of things and their wide powers under Article 226
of the Constitution of India are not intended to be used for the purpose of
perpetuating illegalities, irregularities or improprieties or for scuttling the
whole scheme of public employment. Its role as the sentinel and as the
guardian of equal rights protection should not be forgotten.
4. This Court has also on occasions issued directions which could
not be said to be consistent with the Constitutional scheme of public
employment. Such directions are issued presumably on the basis of
equitable considerations or individualization of justice. The question arises,
equity to whom? Equity for the handful of people who have approached the
Court with a claim, or equity for the teeming millions of this country seeking
employment and seeking a fair opportunity for competing for employment?
When one side of the coin is considered, the other side of the coin, has also
to be considered and the way open to any court of law or justice, is to adhere
to the law as laid down by the Constitution and not to make directions,
which at times, even if do not run counter to the Constitutional scheme,
certainly tend to water down the Constitutional requirements. It is this
conflict that is reflected in these cases referred to the Constitution Bench.
5. The power of a State as an employer is more limited than that
of a private employer inasmuch as it is subjected to constitutional limitations
and cannot be exercised arbitrarily (See Basu's Shorter Constitution of
India). Article 309 of the Constitution gives the Government the power to
frame rules for the purpose of laying down the conditions of service and
recruitment of persons to be appointed to public services and posts in
connection with the affairs of the Union or any of the States. That Article
contemplates the drawing up of a procedure and rules to regulate the
recruitment and regulate the service conditions of appointees appointed to
public posts. It is well acknowledged that because of this, the entire process
of recruitment for services is controlled by detailed procedure which specify
the necessary qualifications, the mode of appointment etc. If rules have
been made under Article 309 of the Constitution, then the Government can
make appointments only in accordance with the rules. The State is meant
to be a model employer. The Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959 was enacted to ensure equal
opportunity for employment seekers. Though this Act may not oblige an
employer to employ only those persons who have been sponsored by
employment exchanges, it places an obligation on the employer to notify the
vacancies that may arise in the various departments and for filling up of
those vacancies, based on a procedure. Normally, statutory rules are framed
under the authority of law governing employment. It is recognized that no
government order, notification or circular can be substituted for the statutory
rules framed under the authority of law. This is because, following any
other course could be disastrous inasmuch as it will deprive the security of
tenure and the right of equality conferred on civil servants under the
Constitutional scheme. It may even amount to negating the accepted
service jurisprudence. Therefore, when statutory rules are framed under
Article 309 of the Constitution which are exhaustive, the only fair means to
adopt is to make appointments based on the rules so framed.
6. These two sets of appeals reflect the cleavage of opinion in the
High Court of Karnataka based on the difference in approach in two sets of
decisions of this Court leading to a reference of these appeals to the
Constitution Bench for decision. The conflict relates to the right, if any, of
employees appointed by the State or by its instrumentalities on a temporary
basis or on daily wages or casually, to approach the High Court for the issue
of a writ of mandamus directing that they be made permanent in appropriate
posts, the work of which they were otherwise doing. The claim is
essentially based on the fact that they having continued in employment or
engaged in the work for a significant length of time, they are entitled to be
absorbed in the posts in which they had worked in the department concerned
or the authority concerned. There are also more ambitious claims that even
if they were not working against a sanctioned post, even if they do not
possess the requisite qualification, even if they were not appointed in terms
of the procedure prescribed for appointment, and had only recently been
engaged, they are entitled to continue and should be directed to be absorbed.
7. In Civil Appeal Nos.3595-3612 of 1999 the respondents therein
who were temporarily engaged on daily wages in the Commercial Taxes
Department in some of the districts of the State of Karnataka claim that they
worked in the department based on such engagement for more than 10 years
and hence they are entitled to be made permanent employees of the
department, entitled to all the benefits of regular employees. They were
engaged for the first time in the years 1985-86 and in the teeth of orders not
to make such appointments issued on 3.7.1984. Though the Director of
Commercial Taxes recommended that they be absorbed, the Government did
not accede to that recommendation. These respondents thereupon
approached the Administrative Tribunal in the year 1997 with their claim.
The Administrative Tribunal rejected their claim finding that they have not
made out a right either to get wages equal to that of others regularly
employed or for regularization. Thus, the applications filed were dismissed.
The respondents approached the High Court of Karnataka challenging the
decision of the Administrative Tribunal. It is seen that the High Court
without really coming to grips with the question falling for decision in the
light of the findings of the Administrative Tribunal and the decisions of this
Court, proceeded to order that they are entitled to wages equal to the salary
and allowances that are being paid to the regular employees of their cadre in
government service with effect from the dates from which they were
respectively appointed. It may be noted that this gave retrospective effect to
the judgment of the High Court by more than 12 years. The High Court
also issued a command to the State to consider their cases for regularization
within a period of four months from the date of receipt of that order. The
High Court seems to have proceeded on the basis that, whether they were
appointed before 01.07.1984, a situation covered by the decision of this
Court in Dharwad District Public Works Department vs. State of
Karnataka (1990 (1) SCR 544) and the scheme framed pursuant to the
direction thereunder, or subsequently, since they have worked for a period
of 10 years, they were entitled to equal pay for equal work from the very
inception of their engagement on daily wages and were also entitled to be
considered for regularization in their posts.
8. Civil Appeal Nos.1861-2063 of 2001 reflects the other side of
the coin. The appellant association with indefinite number of members
approached the High Court with a writ petition under Article 226 of the
Constitution of India challenging the order of the government directing
cancellation of appointments of all casual workers/daily rated workers made
after 01.07.1984 and further seeking a direction for the regularization of all
the daily wagers engaged by the government of Karnataka and its local
bodies. A learned Single Judge of the High Court disposed of the writ
petition by granting permission to the petitioners before him, to approach
their employers for absorption and regularization of their services and also
for payment of their salaries on par with the regular workers, by making
appropriate representations within the time fixed therein and directing the
employers to consider the cases of the claimants for absorption and
regularization in accordance with the observations made by the Supreme
Court in similar cases. The State of Karnataka filed appeals against the
decision of the learned Single Judge. A Division Bench of the High Court
allowed the appeals. It held that the daily wage employees, employed or
engaged either in government departments or other statutory bodies after
01.07.1984, were not entitled to the benefit of the scheme framed by this
Court in Dharwad District Public Works Department case, referred to
earlier. The High Court considered various orders and directions issued by
the government interdicting such engagements or employment and the
manner of entry of the various employees. Feeling aggrieved by the
dismissal of their claim, the members of the associations have filed these
appeals.
9. When these matters came up before a Bench of two Judges, the
learned Judges referred the cases to a Bench of three Judges. The order of
reference is reported in 2003 (9) SCALE 187. This Court noticed that in the
matter of regularization of ad hoc employees, there were conflicting
decisions by three Judge Benches of this Court and by two Judge Benches
and hence the question required to be considered by a larger Bench. When
the matters came up before a three Judge Bench, the Bench in turn felt that
the matter required consideration by a Constitution Bench in view of the
conflict and in the light of the arguments raised by the Additional Solicitor
General. The order of reference is reported in 2003 (10) SCALE 388. It
appears to be proper to quote that order of reference at this stage. It reads:
1. "Apart from the conflicting opinions
between the three Judges' Bench decisions
in Ashwani Kumar and Ors. Vs. State of
Bihar and Ors., reported in 1997 (2) SCC
1, State of Haryana and Ors vs., Piara
Singh and Ors. Reported in 1992 (4) SCC
118 and Dharwad Distt. P.W.D. Literate
Daily Wage Employees Association and
Ors. Vs. State of Karnataka and Ors.
Reported in 1990 (2) SCC 396, on the one
hand and State of Himachal Pradesh vs.
Suresh Kumar Verma and Anr., reported
in AIR 1996 SC 1565, State of Punjab vs.
Surinder Kumar and Ors. Reported in
AIR 1992 SC 1593, and B.N. Nagarajan
and Ors. Vs. State of Karnataka and Ors.,
reported in 1979 (4) SCC 507 on the other,
which has been brought out in one of the
judgments under appeal of Karnataka High
Court in State of Karnataka vs. H. Ganesh
Rao, decided on 1.6.2000, reported in 2001
(4) Karnataka Law Journal 466, learned
Additional Solicitor General urged that the
scheme for regularization is repugnant to
Articles 16(4), 309, 320 and 335 of the
Constitution of India and, therefore, these
cases are required to be heard by a Bench of
Five learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare,
learned senior counsel, appearing for the
employees urged that such a scheme for
regularization is consistent with the
provision of Articles 14 and 21 of the
Constitution.
3. Mr. V. Lakshmi Narayan, learned counsel,
appearing in CC Nos.109-498 of 2003, has
filed the G.O. dated 19.7.2002 and
submitted that orders have already been
implemented.
4. After having found that there is conflict of
opinion between three Judges Bench
decisions of this Court, we are of the view
that these cases are required to be heard by a
Bench of five learned Judges.
5. Let these matters be placed before Hon'ble
the Chief Justice for appropriate orders."
We are, therefore, called upon to resolve this issue here. We
have to lay down the law. We have to approach the question as a
constitutional court should.
10. In addition to the equality clause represented by Article 14 of
the Constitution, Article 16 has specifically provided for equality of
opportunity in matters of public employment. Buttressing these fundamental
rights, Article 309 provides that subject to the provisions of the Constitution,
Acts of the legislature may regulate the recruitment and conditions of service
of persons appointed to public services and posts in connection with the
affairs of the Union or of a State. In view of the interpretation placed on
Article 12 of the Constitution by this Court, obviously, these principles also
govern the instrumentalities that come within the purview of Article 12 of
the Constitution. With a view to make the procedure for selection fair, the
Constitution by Article 315 has also created a Public Service Commission
for the Union and Public Service Commissions for the States. Article 320
deals with the functions of Public Service Commissions and mandates
consultation with the Commission on all matters relating to methods of
recruitment to civil services and for civil posts and other related matters. As
a part of the affirmative action recognized by Article 16 of the Constitution,
Article 335 provides for special consideration in the matter of claims of the
members of the scheduled castes and scheduled tribes for employment. The
States have made Acts, Rules or Regulations for implementing the above
constitutional guarantees and any recruitment to the service in the State or in
the Union is governed by such Acts, Rules and Regulations. The
Constitution does not envisage any employment outside this constitutional
scheme and without following the requirements set down therein.
11. In spite of this scheme, there may be occasions when the
sovereign State or its instrumentalities will have to employ persons, in posts
which are temporary, on daily wages, as additional hands or taking them in
without following the required procedure, to discharge the duties in respect
of the posts that are sanctioned and that are required to be filled in terms of
the relevant procedure established by the Constitution or for work in
temporary posts or projects that are not needed permanently. This right of
the Union or of the State Government cannot but be recognized and there is
nothing in the Constitution which prohibits such engaging of persons
temporarily or on daily wages, to meet the needs of the situation. But the
fact that such engagements are resorted to, cannot be used to defeat the very
scheme of public employment. Nor can a court say that the Union or the
State Governments do not have the right to engage persons in various
capacities for a duration or until the work in a particular project is
completed. Once this right of the Government is recognized and the
mandate of the constitutional requirement for public employment is
respected, there cannot be much difficulty in coming to the conclusion that it
is ordinarily not proper for courts whether acting under Article 226 of the
Constitution or under Article 32 of the Constitution, to direct absorption in
permanent employment of those who have been engaged without following
a due process of selection as envisaged by the constitutional scheme.
12. What is sought to be pitted against this approach, is the so
called equity arising out of giving of temporary employment or engagement
on daily wages and the continuance of such persons in the engaged work for
a certain length of time. Such considerations can have only a limited role to
play, when every qualified citizen has a right to apply for appointment, the
adoption of the concept of rule of law and the scheme of the Constitution for
appointment to posts. It cannot also be forgotten that it is not the role of
courts to ignore, encourage or approve appointments made or engagements
given outside the constitutional scheme. In effect, orders based on such
sentiments or approach would result in perpetuating illegalities and in the
jettisoning of the scheme of public employment adopted by us while
adopting the Constitution. The approving of such acts also results in
depriving many of their opportunity to compete for public employment. We
have, therefore, to consider the question objectively and based on the
constitutional and statutory provisions. In this context, we have also to bear
in mind the exposition of law by a Constitution Bench in State of Punjab
Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein, "In our
opinion, where a Government servant has no right to a post or to a particular
status, though an authority under the Government acting beyond its
competence had purported to give that person a status which it was not
entitled to give, he will not in law be deemed to have been validly appointed
to the post or given the particular status."
13. During the course of the arguments, various orders of courts
either interim or final were brought to our notice. The purport of those
orders more or less was the issue of directions for continuation or absorption
without referring to the legal position obtaining. Learned counsel for the
State of Karnataka submitted that chaos has been created by such orders
without reference to legal principles and it is time that this Court settled the
law once for all so that in case the court finds that such orders should not be
made, the courts, especially, the High Courts would be precluded from
issuing such directions or passing such orders. The submission of learned
counsel for the respondents based on the various orders passed by the High
Court or by the Government pursuant to the directions of Court also
highlights the need for settling the law by this Court. The bypassing of the
constitutional scheme cannot be perpetuated by the passing of orders without
dealing with and deciding the validity of such orders on the touchstone of
constitutionality. While approaching the questions falling for our decision,
it is necessary to bear this in mind and to bring about certainty in the matter
of public employment. The argument on behalf of some of the respondents
is that this Court having once directed regularization in the Dharwad case
(supra), all those appointed temporarily at any point of time would be
entitled to be regularized since otherwise it would be discrimination between
those similarly situated and in that view, all appointments made on daily
wages, temporarily or contractually, must be directed to be regularized.
Acceptance of this argument would mean that appointments made otherwise
than by a regular process of selection would become the order of the day
completely jettisoning the constitutional scheme of appointment. This
argument also highlights the need for this Court to formally lay down the
law on the question and ensure certainty in dealings relating to public
employment. The very divergence in approach in this Court, the so-called
equitable approach made in some, as against those decisions which have
insisted on the rules being followed, also justifies a firm decision by this
Court one way or the other. It is necessary to put an end to uncertainty and
clarify the legal position emerging from the constitutional scheme, leaving
the High Courts to follow necessarily, the law thus laid down.
14. Even at the threshold, it is necessary to keep in mind the
distinction between regularization and conferment of permanence in service
jurisprudence. In STATE OF MYSORE Vs. S.V. NARAYANAPPA
[1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to
consider that regularization meant permanence. In R.N. NANJUNDAPPA
Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an
argument that regularization would mean conferring the quality of
permanence on the appointment. This Court stated:-
"Counsel on behalf of the respondent contended
that regularization would mean conferring the quality of
permanence on the appointment, whereas counsel on
behalf of the State contended that regularization did not
mean permanence but that it was a case of regularization
of the rules under Article 309. Both the contentions are
fallacious. If the appointment itself is in infraction of the
rules or if it is in violation of the provisions of the
Constitution, illegality cannot be regularized.
Ratification or regularization is possible of an act which
is within the power and province of the authority, but
there has been some non-compliance with procedure or
manner which does not go to the root of the appointment.
Regularization cannot be said to be a mode of
recruitment. To accede to such a proposition would be to
introduce a new head of appointment in defiance of rules
or it may have the effect of setting at naught the rules."
In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR
937], this court clearly held that the words "regular" or "regularization" do
not connote permanence and cannot be construed so as to convey an idea of
the nature of tenure of appointments. They are terms calculated to condone
any procedural irregularities and are meant to cure only such defects as are
attributable to methodology followed in making the appointments. This
court emphasized that when rules framed under Article 309 of the
Constitution of India are in force, no regularization is permissible in exercise
of the executive powers of the Government under Article 162 of the
Constitution in contravention of the rules. These decisions and the
principles recognized therein have not been dissented to by this Court and on
principle, we see no reason not to accept the proposition as enunciated in the
above decisions. We have, therefore, to keep this distinction in mind and
proceed on the basis that only something that is irregular for want of
compliance with one of the elements in the process of selection which does
not go to the root of the process, can be regularized and that it alone can be
regularized and granting permanence of employment is a totally different
concept and cannot be equated with regularization.
15. We have already indicated the constitutional scheme of public
employment in this country, and the executive, or for that matter the Court,
in appropriate cases, would have only the right to regularize an appointment
made after following the due procedure, even though a non-fundamental
element of that process or procedure has not been followed. This right of the
executive and that of the court, would not extend to the executive or the
court being in a position to direct that an appointment made in clear
violation of the constitutional scheme, and the statutory rules made in that
behalf, can be treated as permanent or can be directed to be treated as
permanent.
16. Without keeping the above distinction in mind and without
discussion of the law on the question or the effect of the directions on the
constitutional scheme of appointment, this Court in Daily Rated Casual
Labour Vs. Union of India & Ors. (1988 (1) SCR 598) directed the
Government to frame a scheme for absorption of daily rated casual labourers
continuously working in the Posts and Telegraphs Department for more than
one year. This Court seems to have been swayed by the idea that India is a
socialist republic and that implied the existence of certain important
obligations which the State had to discharge. While it might be one thing to
say that the daily rated workers, doing the identical work, had to be paid the
wages that were being paid to those who are regularly appointed and are
doing the same work, it would be quite a different thing to say that a
socialist republic and its Executive, is bound to give permanence to all those
who are employed as casual labourers or temporary hands and that too
without a process of selection or without following the mandate of the
Constitution and the laws made thereunder concerning public employment.
The same approach was made in Bhagwati Prasad Vs. Delhi State Mineral
Development Corporation (1989 Suppl. (2) SCR 513) where this Court
directed regularization of daily rated workers in phases and in accordance
with seniority.
17. One aspect arises. Obviously, the State is also controlled by
economic considerations and financial implications of any public
employment. The viability of the department or the instrumentality or of the
project is also of equal concern for the State. The State works out the
scheme taking into consideration the financial implications and the
economic aspects. Can the court impose on the State a financial burden of
this nature by insisting on regularization or permanence in employment,
when those employed temporarily are not needed permanently or regularly?
As an example, we can envisage a direction to give permanent employment
to all those who are being temporarily or casually employed in a public
sector undertaking. The burden may become so heavy by such a direction
that the undertaking itself may collapse under its own weight. It is not as if
this had not happened. So, the court ought not to impose a financial burden
on the State by such directions, as such directions may turn counter-
productive.
18. The Decision in Dharwad Distt. P.W.D. Literate Daily Wage
Employees Association & ors. Vs. State of Karnataka & Ors. (1990 (1)
SCR 544) dealt with a scheme framed by the State of Karnataka, though at
the instance of the court. The scheme was essentially relating to the
application of the concept of equal pay for equal work but it also provided
for making permanent, or what it called regularization, without keeping the
distinction in mind, of employees who had been appointed ad hoc, casually,
temporarily or on daily wage basis. In other words, employees who had
been appointed without following the procedure established by law for such
appointments. This Court, at the threshold, stated that it should
individualize justice to suit a given situation. With respect, it is not possible
to accept the statement, unqualified as it appears to be. This Court is not
only the constitutional court, it is also the highest court in the country, the
final court of appeal. By virtue of Article 141 of the Constitution of India,
what this Court lays down is the law of the land. Its decisions are binding on
all the courts. Its main role is to interpret the constitutional and other
statutory provisions bearing in mind the fundamental philosophy of the
Constitution. We have given unto ourselves a system of governance by rule
of law. The role of the Supreme Court is to render justice according to law.
As one jurist put it, the Supreme Court is expected to decide questions of
law for the country and not to decide individual cases without reference to
such principles of law. Consistency is a virtue. Passing orders not
consistent with its own decisions on law, is bound to send out confusing
signals and usher in judicial chaos. Its role, therefore, is really to interpret
the law and decide cases coming before it, according to law. Orders which
are inconsistent with the legal conclusions arrived at by the court in the self
same judgment not only create confusion but also tend to usher in
arbitrariness highlighting the statement, that equity tends to vary with the
Chancellor's foot.
19. In Dharwad case, this Court was actually dealing with the
question of 'equal pay for equal work' and had directed the State of
Karnataka to frame a scheme in that behalf. In paragraph 17 of the
judgment, this Court stated that the precedents obliged the State of
Karnataka to regularize the services of the casual or daily/monthly rated
employees and to make them the same payment as regular employees were
getting. Actually, this Court took note of the argument of counsel for the
State that in reality and as a matter of statecraft, implementation of such a
direction was an economic impossibility and at best only a scheme could be
framed. Thus a scheme for absorption of casual/daily rated employees
appointed on or before 1.7.1984 was framed and accepted. The economic
consequences of its direction were taken note of by this Court in the
following words.
"We are alive to the position that the scheme which we
have finalized is not the ideal one but as we have already
stated, it is the obligation of the court to individualize
justice to suit a given situation in a set of facts that are
placed before it. Under the scheme of the Constitution,
the purse remains in the hands of the executive. The
legislature of the State controls the Consolidated Fund
out of which the expenditure to be incurred, in giving
effect to the scheme, will have to be met. The flow into
the Consolidated Fund depends upon the policy of
taxation depending perhaps on the capacity of the payer.
Therefore, unduly burdening the State for implementing
the constitutional obligation forthwith would create
problems which the State may not be able to stand. We
have, therefore, made our directions with judicious
restraint with the hope and trust that both parties would
appreciate and understand the situation. The
instrumentality of the State must realize that it is charged
with a big trust. The money that flows into the
Consolidated Fund and constitutes the resources of the
State comes from the people and the welfare expenditure
that is meted out goes from the same Fund back to the
people. May be that in every situation the same tax payer
is not the beneficiary. That is an incident of taxation and
a necessary concomitant of living within a welfare
society."
With respect, it appears to us that the question whether the jettisoning of the
constitutional scheme of appointment can be approved, was not considered
or decided. The distinction emphasized in R.N. NANJUNDAPPA Vs T.
THIMMIAH & ANR. (supra), was also not kept in mind. The Court
appears to have been dealing with a scheme for 'equal pay for equal work'
and in the process, without an actual discussion of the question, had
approved a scheme put forward by the State, prepared obviously at the
direction of the Court, to order permanent absorption of such daily rated
workers. With respect to the learned judges, the decision cannot be said to
lay down any law, that all those engaged on daily wages, casually,
temporarily, or when no sanctioned post or vacancy existed and without
following the rules of selection, should be absorbed or made permanent
though not at a stretch, but gradually. If that were the ratio, with respect, we
have to disagree with it.
20. We may now consider, State of Haryana Vs. Piara Singh and
Others [1992) 3 SCR 826]. There, the court was considering the
sustainability of certain directions issued by the High Court in the light of
various orders passed by the State for the absorption of its ad hoc or
temporary employees and daily wagers or casual labour. This Court started
by saying:
"Ordinarily speaking, the creation and abolition of a post
is the prerogative of the Executive. It is the Executive
again that lays down the conditions of service subject, of
course, to a law made by the appropriate legislature.
This power to prescribe the conditions of service can be
exercised either by making rules under the proviso to
Article 309 of the Constitution or (in the absence of such
rules) by issued rules/instructions in exercise of its
executive power. The court comes into the picture only
to ensure observance of fundamental rights, statutory
provisions, rules and other instructions, if any governing
the conditions of service"
This Court then referred to some of the earlier decisions of this Court while
stating:
"The main concern of the court in such matters is to
ensure the rule of law and to see that the Executive acts
fairly and gives a fair deal to its employees consistent
with the requirements of Articles 14 and 16. It also
means that the State should not exploit its employees nor
should it seek to take advantage of the helplessness and
misery of either the unemployed persons or the
employees, as the case may be. As is often said, the State
must be a model employer. It is for this reason, it is held
that equal pay must be given for equal work, which is
indeed one of the directive principles of the Constitution.
it is for this very reason it is held that a person should not
be kept in a temporary or ad hoc status for long. Where a
temporary or ad hoc appointment is continued for long
the court presumes that there is need and warrant for a
regular post and accordingly directs regularization.
While all the situations in which the court may act to
ensure fairness cannot be detailed here, it is sufficient to
indicate that the guiding principles are the ones stated
above."
This Court then concluded in paragraphs 45 to 50:
"The normal rule, of course, is regular recruitment
through the prescribed agency but exigencies of
administration may sometimes call for an ad hoc or
temporary appointment to be made. In such a situation,
effort should always be to replace such an ad
hoc/temporary employee by a regularly selected
employee as early as possible. Such a temporary
employee may also compete along with others for such
regular selection/appointment. If he gets selected, well
and good, but if he does not, he must give way to the
regularly selected candidate. The appointment of the
regularly selected candidate cannot be withheld or kept in
abeyance for the sake of such an ad hoc/temporary
employee.
Secondly, an ad hoc or temporary employee should
not be replaced by another ad hoc or temporary
employee; he must be replaced only by a regularly
selected employee. This is necessary to avoid arbitrary
action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary
employment is necessitated on account of the exigencies
of administration, he should ordinarily be drawn from the
employment exchange unless it cannot brook delay in
which case the pressing cause must be stated on the file.
If no candidate is available or is not sponsored by the
employment exchange, some appropriate method
consistent with the requirements of Article 16 should be
followed. In other words, there must be a notice
published in the appropriate manner calling for
applications and all those who apply in response thereto
should be considered fairly.
An unqualified person ought to be appointed only
when qualified persons are not available through the
above processes.
If for any reason, an ad hoc or temporary employee
is continued for a fairly long spell, the authorities must
consider his case for regularization provided he is
eligible and qualified according to the rules and his
service record is satisfactory and his appointment does
not run counter to the reservation policy of the State "
With respect, why should the State be allowed to depart from the normal
rule and indulge in temporary employment in permanent posts? This Court,
in our view, is bound to insist on the State making regular and proper
recruitments and is bound not to encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The direction to make
permanent -- the distinction between regularization and making permanent,
was not emphasized here -- can only encourage the State, the model
employer, to flout its own rules and would confer undue benefits on a few at
the cost of many waiting to compete. With respect, the direction made in
paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the
conclusion in paragraph 45 therein. With great respect, it appears to us that
the last of the directions clearly runs counter to the constitutional scheme of
employment recognized in the earlier part of the decision. Really, it cannot
be said that this decision has laid down the law that all ad hoc, temporary or
casual employees engaged without following the regular recruitment
procedure should be made permanent.
21. We shall now refer to the other decisions. In State of Punjab
and others Vs. Surinder Kumar and others (1991 Suppl. (3) SCR 553), a
three judge bench of this Court held that High Courts had no power, like the
power available to the Supreme Court under Article 142 of the Constitution
of India, and merely because the Supreme Court granted certain reliefs in
exercise of its power under Article 142 of the Constitution of India, similar
orders could not be issued by the High Courts. The bench pointed out that a
decision is available as a precedent only if it decides a question of law. The
temporary employees would not be entitled to rely in a Writ Petition they
filed before the High Court upon an order of the Supreme Court which
directs a temporary employee to be regularized in his service without
assigning reasons and ask the High Court to pass an order of a similar
nature. This Court noticed that the jurisdiction of the High Court while
dealing with a Writ Petition was circumscribed by the limitations
discussed and declared by judicial decisions and the High Court cannot
transgress the limits on the basis of the whims or subjective sense of justice
varying from judge to judge. Though the High Court is entitled to exercise
its judicial discretion in deciding Writ Petitions or Civil Revision
Applications coming before it, the discretion had to be confined in declining
to entertain petitions and refusing to grant reliefs asked for by the petitioners
on adequate considerations and it did not permit the High Court to grant
relief on such a consideration alone. This Court set aside the directions
given by the High Court for regularization of persons appointed temporarily
to the post of lecturers. The Court also emphasized that specific terms on
which appointments were made should be normally enforced. Of course,
this decision is more on the absence of power in the High Court to pass
orders against the constitutional scheme of appointment.
22. In Director, Institute of Management Development, U.P.
Vs. Pushpa Srivastava (Smt.) (1992 (3) SCR 712), this Court held that
since the appointment was on purely contractual and ad hoc basis on
consolidated pay for a fixed period and terminable without notice, when the
appointment came to an end by efflux of time, the appointee had no right to
continue in the post and to claim regularization in service in the absence of
any rule providing for regularization after the period of service. A limited
relief of directing that the appointee be permitted on sympathetic
consideration to be continued in service till the end of the concerned
calendar year was issued. This Court noticed that when the appointment was
purely on ad hoc and contractual basis for a limited period, on the expiry of
the period, the right to remain in the post came to an end. This Court stated
that the view they were taking was the only view possible and set aside the
judgment of the High Court which had given relief to the appointee.
23. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar
Mishra and Others [AIR 1994 SC 1638], a three judge bench of this Court
held that ad hoc appointees/temporary employees engaged on ad hoc basis
and paid on piece-rate basis for certain clerical work and discontinued on
completion of their task, were not entitled to reinstatement or regularization
of their services even if their working period ranged from one to two years.
This decision indicates that if the engagement was made in a particular work
or in connection with particular project, on completion of that work or of
that project, those who were temporarily engaged or employed in that work
or project could not claim any right to continue in service and the High
Court cannot direct that they be continued or absorbed elsewhere.
24. In State of Himachal Pradesh Vs. Suresh Kumar Verma
(1996 (1) SCR 972), a three Judge Bench of this Court held that a person
appointed on daily wage basis was not an appointee to a post according to
Rules. On his termination, on the project employing him coming to an end,
the Court could not issue a direction to re-engage him in any other work or
appoint him against existing vacancies. This Court said:
"It is settled law that having made rules of recruitment to
various services under the State or to a class of posts
under the State, the State is bound to follow the same and
to have the selection of the candidates made as per
recruitment rules and appointments shall be made
accordingly. From the date of discharging the duties
attached to the post the incumbent becomes a member of
the services. Appointment on daily wage basis is not an
appointment to a post according to the Rules."
Their Lordships cautioned that if directions are given to re-engage such
persons in any other work or appoint them against existing vacancies, "the
judicial process would become another mode of recruitment dehors the
rules."
25. In Ashwani Kumar and others Vs. State of Bihar and
others (1996 Supp. (10) SCR 120), this Court was considering the validity
of confirmation of the irregularly employed. It was stated:
"So far as the question of confirmation of these
employees whose entry was illegal and void, is
concerned, it is to be noted that question of confirmation
or regularization of an irregularly appointed candidate
would arise if the candidate concerned is appointed in an
irregular manner or on ad hoc basis against an available
vacancy which is already sanctioned. But if the initial
entry itself is unauthorized and is not against any
sanctioned vacancy, question of regularizing the
incumbent on such a non-existing vacancy would never
survive for consideration and even if such purported
regularization or confirmation is given it would be an
exercise in futility."
This Court further stated :
"In this connection it is pertinent to note that
question of regularization in any service including any
government service may arise in two contingencies.
Firstly, if on any available clear vacancies which are of a
long duration appointments are made on ad hoc basis or
daily-wage basis by a competent authority and are
continued from time to time and if it is found that the
incumbents concerned have continued to be employed for
a long period of time with or without any artificial
breaks, and their services are otherwise required by the
institution which employs them, a time may come in the
service career of such employees who are continued on
ad hoc basis for a given substantial length of time to
regularize them so that the employees concerned can give
their best by being assured security of tenure. But this
would require one precondition that the initial entry of
such an employee must be made against an available
sanctioned vacancy by following the rules and
regulations governing such entry. The second type of
situation in which the question of regularization may
arise would be when the initial entry of the employee
against an available vacancy is found to have suffered
from some flaw in the procedural exercise though the
person appointing is competent to effect such initial
recruitment and has otherwise followed due procedure
for such recruitment. A need may then arise in the light
of the exigency of administrative requirement for
waiving such irregularity in the initial appointment by a
competent authority and the irregular initial appointment
may be regularized and security of tenure may be made
available to the incumbent concerned. But even in such a
case the initial entry must not be found to be totally
illegal or in blatant disregard of all the established rules
and regulations governing such recruitment."
The Court noticed that in that case all constitutional requirements were
thrown to the wind while making the appointments. It was stated,
"On the contrary all efforts were made to bypass the
recruitment procedure known to law which resulted in
clear violation of Articles 14 and 16(1) of the
Constitution of India, both at the initial stage as well as at
the stage of confirmation of these illegal entrants. The so
called regularizations and confirmations could not be
relied on as shields to cover up initial illegal and void
actions or to perpetuate the corrupt methods by which
these 6000 initial entrants were drafted in the scheme."
26. It is not necessary to notice all the decisions of this Court on
this aspect. By and large what emerges is that regular recruitment should be
insisted upon, only in a contingency an ad hoc appointment can be made in a
permanent vacancy, but the same should soon be followed by a regular
recruitment and that appointments to non-available posts should not be taken
note of for regularization. The cases directing regularization have mainly
proceeded on the basis that having permitted the employee to work for some
period, he should be absorbed, without really laying down any law to that
effect, after discussing the constitutional scheme for public employment.
27. In A. Umarani Vs. Registrar, Cooperative Societies and
Others (2004 (7) SCC 112), a three judge bench made a survey of the
authorities and held that when appointments were made in contravention of
mandatory provisions of the Act and statutory rules framed thereunder and
by ignoring essential qualifications, the appointments would be illegal and
cannot be regularized by the State. The State could not invoke its power
under Article 162 of the Constitution to regularize such appointments. This
Court also held that regularization is not and cannot be a mode of
recruitment by any State within the meaning of Article 12 of the
Constitution of India or any body or authority governed by a statutory Act or
the Rules framed thereunder. Regularization furthermore cannot give
permanence to an employee whose services are ad hoc in nature. It was also
held that the fact that some persons had been working for a long time would
not mean that they had acquired a right for regularization.
28. Incidentally, the Bench also referred to the nature of the orders
to be passed in exercise of this Court's jurisdiction under Article 142 of the
Constitution. This Court stated that jurisdiction under Article 142 of the
Constitution could not be exercised on misplaced sympathy. This Court
quoted with approval the observations of Farewell, L.J. in Latham vs.
Richard Johnson & Nephew Ltd. (1913 (1) KB 398)"
"We must be very careful not to allow our
sympathy with the infant plaintiff to affect our judgment.
Sentiment is a dangerous will o' the wisp to take as a
guide in the search for legal principles."
This Court also quoted with approval the observations of this Court in Teri
Oat Estates (P) Ltd. Vs. U.T., Chandigarh (2004 (2) SCC 130) to the
effect:
"We have no doubt in our mind that sympathy or
sentiment by itself cannot be a ground for passing an
order in relation whereto the appellants miserably fail to
establish a legal right. It is further trite that despite an
extraordinary constitutional jurisdiction contained in
Article 142 of the Constitution of India, this Court
ordinarily would not pass an order which would be in
contravention of a statutory provision."
This decision kept in mind the distinction between 'regularization' and
'permanency' and laid down that regularization is not and cannot be the
mode of recruitment by any State. It also held that regularization cannot
give permanence to an employee whose services are ad hoc in nature.
29. It is not necessary to multiply authorities on this aspect. It is
only necessary to refer to one or two of the recent decisions in this context.
In State of U.P. vs. Niraj Awasthi and others (2006 (1) SCC 667) this
Court after referring to a number of prior decisions held that there was no
power in the State under Art. 162 of the Constitution of India to make
appointments and even if there was any such power, no appointment could
be made in contravention of statutory rules. This Court also held that past
alleged regularisation or appointment does not connote entitlement to further
regularization or appointment. It was further held that the High Court has
no jurisdiction to frame a scheme by itself or direct the framing of a scheme
for regularization. This view was reiterated in State of Karnataka vs.
KGSD Canteen Employees Welfare Association (JT 2006 (1) SC 84).
30. In Union Public Service Commission Vs. Girish Jayanti Lal
Vaghela & Others [2006 (2) SCALE 115], this Court answered the
question, who was a Government servant and stated:-
"Article 16 which finds place in Part III of the
Constitution relating to fundamental rights provides that
there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State. The main object of Article 16 is to
create a constitutional right to equality of opportunity and
employment in public offices. The words "employment"
or "appointment" cover not merely the initial
appointment but also other attributes of service like
promotion and age of superannuation etc. The
appointment to any post under the State can only be
made after a proper advertisement has been made
inviting applications from eligible candidates and holding
of selection by a body of experts or a specially
constituted committee whose members are fair and
impartial through a written examination or interview or
some other rational criteria for judging the inter se merit
of candidates who have applied in response to the
advertisement made. A regular appointment to a post
under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in
some cases include inviting applications from the
employment exchange where eligible candidates get their
names registered. Any regular appointment made on a
post under the State or Union without issuing
advertisement inviting applications from eligible
candidates and without holding a proper selection where
all eligible candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of the
Constitution (See B.S. Minhas Vs. Indian Statistical
Institute and others AIR 1984 SC 363)."
31. There have been decisions which have taken the cue from the
Dharwad (supra) case and given directions for regularization, absorption or
making permanent, employees engaged or appointed without following the
due process or the rules for appointment. The philosophy behind this
approach is seen set out in the recent decision in The Workmen of
Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The
Management of Bhurkunda Colliery of M/s Central Coalfields Ltd.
(JT 2006 (2) SC 1), though the legality or validity of such an approach has
not been independently examined. But on a survey of authorities, the
predominant view is seen to be that such appointments did not confer any
right on the appointees and that the Court cannot direct their absorption or
regularization or re-engagement or making them permanent.
32. At this stage, it is relevant to notice two aspects. In
Kesavananda Bharati Vs. State of Kerala (1973 Supp. S.C.R. 1), this
Court held that Article 14, and Article 16, which was described as a facet of
Article 14, is part of the basic structure of the Constitution of India. The
position emerging from Kesavananada Bharati (supra) was summed up by
Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney
Vs. Union of India (1999 Suppl. (5) S.C.R. 229). That decision also
reiterated how neither the Parliament nor the Legislature could transgress the
basic feature of the Constitution, namely, the principle of equality enshrined
in Article 14 of which Article 16 (1) is a facet. This Court stated, "
The preamble to the Constitution of India
emphasises the principle of equality as basic to our
constitution. In Keshavananda Bharati v. State of Kerala,
it was ruled that even constitutional amendments which
offended the basic structure of the Constitution would be
ultra vires the basic structure. Sikri, CJ. laid stress on the
basic features enumerated in the preamble to the
Constitution and said that there were other basic features
too which could be gathered from the Constitutional
scheme (para 506 A of SCC). Equality was one of the
basic features referred to in the Preamble to our
Constitution. Shelat and Grover, JJ. also referred to the
basic rights referred to in the Preamble. They specifically
referred to equality (paras 520 and 535A of SCC). Hegde
& Shelat, JJ. also referred to the Preamble (paras 648,
652). Ray, J. (as he then was) also did so (para 886).
Jaganmohan Reddy, J. too referred to the Preamble and
the equality doctrine (para 1159). Khanna, J. accepted
this position (para 1471). Mathew, J. referred to equality
as a basic feature(para 1621). Dwivedi, J. (paras 1882,
1883) and Chandrachud, J.(as he then was) (see para
2086) accepted this position.
What we mean to say is that Parliament and the
legislatures in this Country cannot transgress the basic
feature of the Constitution, namely, the principle of
equality enshrined in Article 14 of which Article 16(1) is
a facet."
33. In the earlier decision in Indra Sawhney Vs. Union of India
[1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the
majority, while acknowledging that equality and equal opportunity is a basic
feature of our Constitution, has explained the exultant position of Articles
14 and 16 of the Constitution of India in the scheme of things. His Lordship
stated:-
"6. The significance attached by the founding fathers to
the right to equality is evident not only from the fact that
they employed both the expressions 'equality before the
law' and 'equal protection of the laws' in Article 14 but
proceeded further to state the same rule in positive and
affirmative terms in Articles 15 to18
7. Inasmuch as public employment always gave a certain
status and power --- it has always been the repository of
State power ---besides the means of livelihood, special
care was taken to declare equality of opportunity in the
matter of public employment by Article 16. Clause (1),
expressly declares that in the matter of public
employment or appointment to any office under the state,
citizens of this country shall have equal opportunity
while clause (2) declares that no citizen shall be
discriminated in the said matter on the grounds only of
religion, race, caste, sex, descent, place of birth,
residence or any of them. At the same time, care was
taken to, declare in clause (4) that nothing in the said
Article shall prevent the state from making any provision
for reservation of appointments or posts in favour of any
backward class of citizen which in the opinion of the
state, is not adequately represented in the services under
the state .."
(See paragraphs 6 and 7 at pages 544 and 545)
These binding decisions are clear imperatives that adherence to
Articles 14 and 16 of the Constitution is a must in the process of
public employment.
34. While answering an objection to the locus standi of the
Writ Petitioners in challenging the repeated issue of an ordinance by
the Governor of Bihar, the exalted position of rule of law in the
scheme of things was emphasized, Chief Justice Bhagwati, speaking
on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs.
State of Bihar & Ors. (1987 (1) S.C.R. 798) stated:
"The rule of law constitutes the core of our Constitution
of India and it is the essence of the rule of law that the
exercise of the power by the State whether it be the
Legislature or the Executive or any other authority
should be within the constitutional limitations and if any
practice is adopted by the Executive which is in flagrant
and systematic violation of its constitutional limitations,
petitioner No. 1 as a member of the public would have
sufficient interest to challenge such practice by filing a
writ petition and it would be the constitutional duty of
this Court to entertain the writ petition and adjudicate
upon the validity of such practice."
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 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 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 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 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 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 not acquire any right. High Courts acting under Article 226 of the
Constitution of India, should not ordinarily issue directions for absorption,
regularization, or permanent continuance unless the recruitment itself was
made regularly and in terms of the constitutional scheme. Merely because,
an employee had continued under cover of an order of Court, which we have
described as 'litigious employment' in the earlier part of the judgment, he
would not be entitled to any right to be absorbed or made permanent in the
service. In fact, in such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the employee approaching it
is found entitled to relief, it may be possible for it to mould the relief in such
a manner that ultimately no prejudice will be caused to him, whereas an
interim direction to continue his employment would hold up the regular
procedure for selection or impose on the State the burden of paying an
employee who is really not required. The courts must be careful in ensuring
that they do not interfere unduly with the economic arrangement of its
affairs by the State or its instrumentalities or lend themselves the instruments
to facilitate the bypassing of the constitutional and statutory mandates.
35. The concept of 'equal pay for equal work' is different from the
concept of conferring permanency on those who have been appointed on ad
hoc basis, temporary basis, or based on no process of selection as envisaged
by the Rules. This Court has in various decisions applied the principle of
equal pay for equal work and has laid down the parameters for the
application of that principle. The decisions are rested on the concept of
equality enshrined in our Constitution in the light of the directive principles
in that behalf. But the acceptance of that principle cannot lead to a position
where the court could direct that appointments made without following the
due procedure established by law, be deemed permanent or issue directions
to treat them as permanent. Doing so, would be negation of the principle of
equality of opportunity. The power to make an order as is necessary for
doing complete justice in any cause or matter pending before this Court,
would not normally be used for giving the go-by to the procedure
established by law in the matter of public employment. Take the situation
arising in the cases before us from the State of Karnataka. Therein, after the
Dharwad decision, the Government had issued repeated directions and
mandatory orders that no temporary or ad hoc employment or engagement
be given. Some of the authorities and departments had ignored those
directions or defied those directions and had continued to give employment,
specifically interdicted by the orders issued by the executive. Some of the
appointing officers have even been punished for their defiance. It would not
be just or proper to pass an order in exercise of jurisdiction under Article
226 or 32 of the Constitution or in exercise of power under Article 142 of
the Constitution of India permitting those persons engaged, to be absorbed
or to be made permanent, based on their appointments or engagements.
Complete justice would be justice according to law and though it would be
open to this Court to mould the relief, this Court would not grant a relief
which would amount to perpetuating an illegality.
36. While directing that appointments, temporary or casual, be
regularized or made permanent, courts are swayed by the fact that the
concerned person has worked 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 his employment. He accepts the employment with eyes open. It may be
true that he is not in a position to bargain -- not at arms 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 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. If
the court were to void a contractual employment of this nature on the ground
that the parties were not having equal bargaining power, that too would not
enable the court to grant any relief to that employee. A total embargo on
such casual or temporary employment is not possible, given the exigencies
of administration and if imposed, would only mean that some people who at
least get employment temporarily, contractually or casually, would not be
getting even that employment when securing of such employment brings at
least some succor to them. After all, innumerable citizens of our vast
country are in search of employment and one is not compelled to accept a
casual or temporary employment if one is not inclined to go in for such an
employment. 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 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 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 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 of India.
37. Learned Senior Counsel for some of the respondents argued
that on the basis of the doctrine of legitimate expectation, the employees,
especially of the Commercial Taxes Department, should be directed to be
regularized since the decisions in Dharwad (supra), Piara Singh (supra),
Jacob, and Gujarat Agricultural University and the like, have given rise
to an expectation in them that their services would also be regularized. The
doctrine can be invoked if the decisions of the Administrative Authority
affect the person by depriving him of some benefit or advantage which
either (i) he had in the past been permitted by the decision-maker to enjoy
and which he can legitimately expect to be permitted to continue to do until
there have been communicated to him some rational grounds for
withdrawing it on which he has been given an opportunity to comment; or
(ii) he has received assurance from the decision-maker that they will not be
withdrawn without giving him first an opportunity of advancing reasons for
contending that they should not be withdrawn {See Lord Diplock in
Council of Civil Service Unions V. Minister for the Civil Service (1985
Appeal Cases 374), National Buildings Construction Corpn. Vs. S.
Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of
Rajasthan (2003 (3) SCC 485). There is no case that any assurance was
given by the Government or the concerned department while making the
appointment on daily wages that the status conferred on him will not be
withdrawn until some rational reason comes into existence for withdrawing
it. The very engagement was against the constitutional scheme. Though, the
Commissioner of the Commercial Taxes Department sought to get the
appointments made permanent, there is no case that at the time of
appointment any promise was held out. No such promise could also have
been held out in view of the circulars and directives issued by the
Government after the Dharwad decision. Though, there is a case that the
State had made regularizations in the past of similarly situated employees,
the fact remains that such regularizations were done only pursuant to judicial
directions, either of the Administrative Tribunal or of the High Court and in
some case by this Court. Moreover, the invocation of the doctrine of
legitimate expectation cannot enable the employees to claim that they must
be made permanent or they must be regularized in the service though they
had not been selected in terms of the rules for appointment. The fact that in
certain cases the court had directed regularization of the employees involved
in those cases cannot be made use of to found a claim based on legitimate
expectation. The argument if accepted would also run counter to the
constitutional mandate. The argument in that behalf has therefore to be
rejected.
38. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant rules or procedure,
he is aware of the consequences of the appointment being temporary, casual
or contractual in nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post when an appointment
to the post could be made only by following a proper procedure for selection
and in concerned cases, in consultation with the Public Service Commission.
Therefore, the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees. It cannot also be
held that the State has held out any promise while engaging these persons
either to continue them where they are or to make them permanent. The
State cannot constitutionally make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of being made permanent
in the post.
39. It was then contended that the rights of the employees thus
appointed, under Articles 14 and 16 of the Constitution, are violated. It is
stated that the State has treated the employees unfairly by employing them
on less than minimum wages and extracting work from them for a pretty
long period in comparison with those directly recruited who are getting more
wages or salaries for doing similar work. The employees before us were
engaged on daily wages in the concerned department on a wage that was
made known to them. There is no case that the wage agreed upon was not
being paid. Those who are working on daily wages formed a class by
themselves, they cannot claim that they are discriminated as against those
who have been regularly recruited on the basis of the relevant rules. No
right can be founded on an employment on daily wages to claim that such
employee should be treated on a par with a regularly recruited candidate, and
made permanent in employment, even assuming that the principle could be
invoked for claiming equal wages for equal work. There is no fundamental
right in those who have been employed on daily wages or temporarily or on
contractual basis, to claim that they have a right to be absorbed in service.
As has been held by this Court, they cannot be said to be holders of a post,
since, a regular appointment could be made only by making appointments
consistent with the requirements of Articles 14 and 16 of the Constitution.
The right to be treated equally with the other employees employed on daily
wages, cannot be extended to a claim for equal treatment with those who
were regularly employed. That would be treating unequals as equals. It
cannot also be relied on to claim a right to be absorbed in service even
though they have never been selected in terms of the relevant recruitment
rules. The arguments based on Articles 14 and 16 of the Constitution are
therefore overruled.
40. It is contended that the State action in not regularizing the
employees was not fair within the framework of the rule of law. The rule of
law compels the State to make appointments as envisaged by the
Constitution and in the manner we have indicated earlier. In most of these
cases, no doubt, the employees had worked for some length of time but this
has also been brought about by the pendency of proceedings in Tribunals
and courts initiated at the instance of the employees. Moreover, accepting
an argument of this nature would mean that the State would be permitted to
perpetuate an illegality in the matter of public employment and that would
be a negation of the constitutional scheme adopted by us, the people of
India. It is therefore not possible to accept the argument that there must be a
direction to make permanent all the persons employed on daily wages.
When the court is approached for relief by way of a writ, the court has
necessarily to ask itself whether the person before it had any legal right to be
enforced. Considered in the light of the very clear constitutional scheme, it
cannot be said that the employees have been able to establish a legal right to
be made permanent even though they have never been appointed in terms of
the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
41. It is argued that in a country like India where there is so much
poverty and unemployment and there is no equality of bargaining power, the
action of the State in not making the employees permanent, would be
violative of Article 21 of the Constitution. But the very argument indicates
that there are so many waiting for employment and an equal opportunity for
competing for employment and it is in that context that the Constitution as
one of its basic features, has included Articles 14, 16 and 309 so as to ensure
that public employment is given only in a fair and equitable manner by
giving all those who are qualified, an opportunity to seek employment. In
the guise of upholding rights under Article 21 of the Constitution of India,
a set of persons cannot be preferred over a vast majority of people waiting
for an opportunity to compete for State employment. The acceptance of the
argument on behalf of the respondents would really negate the rights of the
others conferred by Article 21 of the Constitution, assuming that we are in a
position to hold that the right to employment is also a right coming within
the purview of Article 21 of the Constitution. The argument that Article 23
of the Constitution is breached because the employment on daily wages
amounts to forced labour, cannot be accepted. After all, the employees
accepted the employment at their own volition and with eyes open as to the
nature of their employment. The Governments also revised the minimum
wages payable from time to time in the light of all relevant circumstances. It
also appears to us that importing of these theories to defeat the basic
requirement of public employment would defeat the constitutional scheme
and the constitutional goal of equality.
42. The argument that the right to life protected by Article 21 of the
Constitution of India would include the right to employment cannot also be
accepted at this juncture. The law is dynamic and our Constitution is a
living document. May be at some future point of time, the right to
employment can also be brought in under the concept of right to life or even
included as a fundamental right. The new statute is perhaps a beginning. As
things now stand, the acceptance of such a plea at the instance of the
employees before us would lead to the consequence of depriving a large
number of other aspirants of an opportunity to compete for the post or
employment. Their right to employment, if it is a part of right to life, would
stand denuded by the preferring of those who have got in casually or those
who have come through the back door. The obligation cast on the State
under Article 39(a) of the Constitution of India is to ensure that all citizens
equally have the right to adequate means of livelihood. It will be more
consistent with that policy if the courts recognize that an appointment to a
post in government service or in the service of its instrumentalities, can only
be by way of a proper selection in the manner recognized by the relevant
legislation in the context of the relevant provisions of the Constitution. In
the name of individualizing justice, it is also not possible to shut our eyes to
the constitutional scheme and the right of the numerous as against the few
who are before the court. The Directive Principles of State Policy have also
to be reconciled with the rights available to the citizen under Part III of the
Constitution and the obligation of the State to one and all and not to a
particular group of citizens. We, therefore, overrule the argument based on
Article 21 of the Constitution.
43. Normally, what is sought for by such temporary employees
when they approach the court, is the issue of a writ of mandamus directing
the employer, the State or its instrumentalities, to absorb them in permanent
service or to allow them to continue. In this context, the question arises
whether a mandamus could be issued in favour of such persons. At this
juncture, it will be proper to refer to the decision of the Constitution Bench
of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of
the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a
refusal to promote the writ petitioner therein as the Principal of a college.
This Court held that in order that a mandamus may issue to compel the
authorities to do something, it must be shown that the statute imposes a legal
duty on the authority and the aggrieved party had a legal right under the
statute or rule to enforce it. This classical position continues and a
mandamus could not be issued in favour of the employees directing the
government to make them permanent since the employees cannot show that
they have an enforceable legal right to be permanently absorbed or that the
State has a legal duty to make them permanent.
44. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N.
NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of
regularization of the services of such employees may have 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 regularize as a one 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 courts 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 are being now employed. The process must be
set in motion within six months from this date. We also clarify that
regularization, if any already made, but not subjudice, need not be reopened
based on this judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making permanent, those not
duly appointed as per the constitutional scheme.
45. It is also clarified that those decisions which run counter to the
principle settled in this decision, or in which directions running counter to
what we have held herein, will stand denuded of their status as precedents.
46. In cases relating to service in the commercial taxes department,
the High Court has directed that those engaged on daily wages, be paid
wages equal to the salary and allowances that are being paid to the regular
employees of their cadre in government service, with effect from the dates
from which they were respectively appointed. The objection taken was to
the direction for payment from the dates of engagement. We find that the
High Court had clearly gone wrong in directing that these employees be paid
salary equal to the salary and allowances that are being paid to the regular
employees of their cadre in government service, with effect from the dates
from which they were respectively engaged or appointed. It was not open to
the High Court to impose such an obligation on the State when the very
question before the High Court in the case was whether these employees
were entitled to have equal pay for equal work so called and were entitled to
any other benefit. They had also been engaged in the teeth of directions not
to do so. We are, therefore, of the view that, at best, the Division Bench of
the High Court should have directed that wages equal to the salary that are
being paid to regular employees be paid to these daily wage employees with
effect from the date of its judgment. Hence, that part of the direction of the
Division Bench is modified and it is directed that these daily wage earners
be paid wages equal to the salary at the lowest grade of employees of their
cadre in the Commercial Taxes Department in government service, from the
date of the judgment of the Division Bench of the High Court. Since, they
are only daily wage earners, there would be no question of other allowances
being paid to them. In view of our conclusion, that Courts are not expected
to issue directions for making such persons permanent in service, we set
aside that part of the direction of the High Court directing the Government to
consider their cases for regularization. We also notice that the High Court
has not adverted to the aspect as to whether it was regularization or it was
giving permanency that was being directed by the High Court. In such a
situation, the direction in that regard will stand deleted and the appeals filed
by the State would stand allowed to that extent. If sanctioned posts are
vacant (they are said to be vacant) the State will take immediate steps for
filling those posts by a regular process of selection. But when regular
recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those
in the Commercial Taxes Department similarly situated, will be allowed to
compete, waiving the age restriction imposed for the recruitment and giving
some weightage for their having been engaged for work in the Department
for a significant period of time. That would be the extent of the exercise of
power by this Court under Article 142 of the Constitution to do justice to
them.
47. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of
our conclusion on the questions referred to, no relief can be granted, that too
to an indeterminate number of members of the association. These
appointments or engagements were also made in the teeth of directions of
the Government not to make such appointments and it is impermissible to
recognize such appointments made in the teeth of directions issued by the
Government in that regard. We have also held that they are not legally
entitled to any such relief. Granting of the relief claimed would mean
paying a premium for defiance and insubordination by those concerned who
engaged these persons against the interdict in that behalf. Thus, on the
whole, the appellants in these appeals are found to be not entitled to any
relief. These appeals have, therefore, to be dismissed.
48. C.A. Nos. 3520-24 of 2002 have also to be allowed since the
decision of the Zilla Parishads to make permanent the employees cannot be
accepted as legal. Nor can the employees be directed to be treated as
employees of the Government, in the circumstances. The direction of the
High Court is found unsustainable.
49. In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil
Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil
appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001
are allowed subject to the direction issued under Article 142 of the
Constitution in paragraph 46 and the general directions contained in
paragraph 44 of the judgment and Civil Appeal Nos. 1861-2063 of 2001 are
dismissed. There will be no order as to costs.
