Dharmendra Prasad Singh & Ors. vs The Chairman, State Bank Of India & ...
2015 Latest Caselaw 1127 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.4061/2013

%                                                        9th February, 2015

DHARMENDRA PRASAD SINGH & ORS.              ..... Petitioners
                Through: Mr. Saket Sikri, Advocate with Mr.
                         Vikalp Mudgal, Advocate.


                          Versus

THE CHAIRMAN, STATE BANK OF INDIA & ORS.       ..... Respondents

Through: Mr. Rakesh Dwivedi, Senior Advocate with Mr. Rajiv Kapur, Advocate for respondent No.1.

Mrs. Suparna Srivastava, CGSC with Kr. Kumar Harsh, Advocate for respondent Nos.3 and 4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Articles 226 and 227 of the

Constitution of India, the petitioners who were contractual employees in

terms of their appointment letters dated 29/30.6.2010, seek quashing of the

orders of the respondent no.1/employer/State Bank of India (SBI) whereby

petitioners' contractual services have been terminated. Petitioners pray that

they should be in fact permanently absorbed in the Junior Management

Grade Scale-1 (Specialized Officers) in the respondent no.1 and which

prayer is related to the averment that petitioners have been terminated as

against similarly placed employees who have been regularized on 2.8.2010

in terms of the policy of the respondent no.1 dated 20.7.2010. In sum and

substance petitioners pray that they should be regularized in services and

their contractual appointments be not terminated by extending the policy

dated 20.7.2010 even to the petitioners.

2. Before I turn to the merits of the matter and the defence raised

by the respondent no.1, certain earlier orders passed by this Court are

required to be referred to and reproduced, inasmuch as, when the writ

petition came up for hearing and the respondent no.1 appeared on receiving

the advance copy of the writ petition, it was found that petitioners are

seeking equality with the contractual employees who are regularized in

terms of the policy of respondent no.1 dated 20.7.2010, and which policy, in

the opinion of this Court was clearly against the ratio of the Constitution

Bench judgment of the Supreme Court in the case of Secretary, State of

Karnataka Vs. Umadevi & Ors. (2006) 4 SCC 1.

3. After an initial order was passed by this Court on 30.7.2013

stating what is the ratio in the case of Umadevi & Ors. (supra) and whether

the regularization of contractual employees would violate the ratio in the

case of Umadevi & Ors. (supra), the case was adjourned to 16.9.2013 when

the following order was passed and which noticed the argument of the

respondent no.1 that respondent no.1 is entitled to make a policy for one

time regularization and also that bar as per the ratio in the case of Umadevi

& Ors. (supra) is not as against the employer but only against the employees

from seeking regularization:-

"1. Respondent no.1 in this case is State Bank of India. Arguably State Bank of India is one of the largest instrumentalities of State under Article 12 of the Constitution of India. It is this public sector undertaking being the respondent no.1 which claims that in spite of the categorical ratio of the Constitution Bench judgment of the Supreme Court in the case of Secretary, State Bank of Karnataka & Ors. Vs. Umadevi (3) and Ors. (2006) 4 SCC 1, it can regularise appointees who were specifically appointed on contract basis only by giving such persons permanent posts/appointments i.e it is contented on behalf of respondent no.1-State Bank of India that the judgment in the case of Umadevi (supra) only prevents the Courts from regularising the services of casual or contractual employees who have approached the Court, but there is no bar on the Executive to give regularization to ad hoc/temporary/casual/contractual employees in certain exigent circumstances or as one time measures in peculiar circumstances, and which may even frequently arise.

2. I may state that this case is pending since 4.7.2013 on this aspect. At first, realizing the quite categorical illegality in the action of the respondent no.1 in regularising the contractual employees, initially an opportunity was granted on 4.7.2013, without putting anything specifically on judicial record, for the respondent no.1 to consider whether it should take up a stand of an entitlement to regularisation of contractual employees on the ground of existence of exigent circumstances or peculiar circumstances.

3. After the order dated 4.7.2013, the respondent no.1-bank filed an affidavit on 27.7.2013. This affidavit justified the action of the respondent no.1 in regularising the contractual employees. Finding this action of respondent no.1 prima facie being in blatant violation of the ratio of the Constitution Bench judgment of the Supreme Court in the case of Umadevi (supra), an order was passed by this Court on 30.7.2013, and which reads as under:-

"1. The issue which arises in the present case is with respect to action of the respondent No.1-bank, and which is a premier nationalized bank in the country, is of regularization of contractual employees. Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka & Ors Vs. Umadevi & Ors. 2006(4) SCC 1 has laid down the following ratio:-

"(I) The questions to be asked before regularization are:-

(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of

(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.

(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated.

(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for

equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization. (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.

(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.

(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.

(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution".

2. It is thus clear that there could not have taken place regularization of contractual employees in view of categorical

ratio of the Constitution Bench judgment in the case of Umadevi (supra) which binds not only the Government but all the instrumentalities of the State as per Article 12 of the Constitution. That State Bank of India is an instrumentality of State surely cannot be disputed.

3. In the present case, it is necessary to know that whether the appropriate authority which passed the policy to regularize contractual employees was or was not made aware of the ratio of the judgment of the Supreme Court in the case of Umadevi (supra). I may note that the Supreme Court in the case of Umadevi (supra) has made categorical observations that no policy can be framed by the executive for regularization of contractual employees or casual employees inasmuch as public employment can only be done if there are vacancies in the sanctioned posts and duly qualified persons are appointed through an open recruitment process. In the present case, if the original recruitment process was for contractual persons, surely many candidates may not have wanted to get appointed to contractual posts, however they have been disadvantaged because contractual appointments have thereafter been regularized by the respondent No.1 by making the contractual employees as regular employees.

4. In view of the above, let the highest authority being the highest officer in the policy making department of the respondent No.1 file an affidavit as to whether before framing the policy for regularization of contractual employees, was the ratio in the case of Umadevi (supra) brought to the notice of the authority which framed the policy for regularization of contractual employees. If the ratio of Umadevi's case (supra) was not brought to the notice of the competent authority while framing the policy, then, why was the direct ratio of Umadevi's case (supra) not brought to the notice of the competent authority and whereby possibly there is flagrant violation by an important instrumentality of State of the Constitution Bench ratio in the case of Umadevi (supra).

5. Let the affidavit in terms of aforesaid order be filed by the respondent no.1 within a period of four weeks from today. The affidavit to be filed will be the affidavit of the

highest officer in the policy making department of the respondent no.1.

6. Learned senior counsel for the respondents argued before this Court that in the present case the petitioners also seek regularization under the same policy, and which policy prima facie as per the present order is not in conformity with the ratio in the case of Umadevi (supra), and thus there cannot be issue of violation of Umadevi (supra). In my opinion, neither of the parties can bring about the infraction of law by stating that imprimatur of the Court should be given to actions of an instrumentality of State which would be in categorical violation of Constitution Bench judgment of the Supreme Court specifically given so as to prevent backdoor entry in the public employment.

7. Another submission of learned senior counsel for the respondents is that original recruitment of contractual employees being in accordance with open competition by inserting advertisement in newspaper, hence would be in accordance with the ratio in the case of Umadevi (supra) and the validity of regularization. Prima facie, this argument is absolutely without any substance because Constitution Bench in the case of Umadevi (supra) specifically states that advertisement must be with respect to sanctioned posts i.e vacancies existing in sanctioned posts whereby regular recruitment takes place to vacancies in sanctioned posts. In the present case, appointments being advertised are not against sanctioned posts because contractual appointments cannot be against sanctioned regular posts. I, for the present, would not like to dwell further as to any violation of the ratio of Umadevi's case (supra) by the respondent No.1 because it is necessary that the factual position and the stand of respondent No.1 be known with respect to its actions for framing of a policy of regularization of contractual employees.

8. List on 16th September, 2013.

9. Dasti to the counsel for respondent No.1."

4. Pursuant to the order dated 30.7.2013, an affidavit dated 3.9.2013 has been filed by respondent no.1 on 6.9.2013 justifying the regularisation of the contractual employees on the basis of legal advice of the legal department. In sum and substance what is argued before me on behalf of respondent no.1 is that what is stated in this affidavit dated 3.9.2013 by the respondent No.1 is that whereas Courts do not have powers to regularise casual or temporary or contractual employees, executive can do so because in Umadevi's case (supra) Court was not concerned with executive's right to regularise casual or temporary or contractual employees, i.e even after passing of the judgment in the case of Umadevi (supra) whereas Courts cannot regularize, the bank can. It is argued that peculiar circumstances may come into existence whereby employees can be engaged on contractual basis, and thereafter, the executive is fully justified in making permanent these contractual employees, and which action does not violate the ratio of the Constitution Bench judgment in the case of Umadevi (supra) because Umadevi's case (supra) dealt with persons who had approached the Courts seeking regularisation and the Constitution Bench was not concerned with regularisation by the executive suo moto, and which action is argued to be permissible.

5. Before I make my observations in this order, and which are necessary because petitioners are seeking benefit of employment and regularisation as per a scheme by which respondent no.1 has regularised its contractual employees, some facts are required to be stated. The facts are that respondent no.1-bank engaged on contractual basis Officers Marketing and Recovery (OMR). On 28.6.2010, the respondent no.1-bank took a decision for absorption as permanent the aforesaid OMRs appointed on contractual basis in JMGS-I scale (Rural Marketing and Recovery Officers). Bank was of the opinion that the OMRs had gathered sufficient experience and therefore were required to be regularised by giving permanent employment with the respondent no.1-bank. The bank states in this affidavit that petitioners are differently situated because though petitioners were appointed on contractual basis pursuant to the advertisement dated 6.6.2009, they were appointed as OMR-SI and not as OMRs and hence cannot seek parity for regularization with OMRs .

6. In my opinion, this affidavit filed by the respondent No.1 really is an apology for an affidavit which is expected from a gigantic organization like the State Bank of India. I say that this affidavit is an apology because not a single document has been annexed to this affidavit. No particulars are given in this affidavit as to whether and on which date the legal department of the respondent no.1 gave an opinion, and whether that opinion considered the ratio of the Constitution Bench judgment in the case of Umadevi (supra). Also, It is quite clear that whichever opinion the respondent no.1- bank has acted upon whereas the same did or did not consider the ratio in the case of Umadevi (supra). I may state that what I am stating with respect to the affidavit of respondent no.1 dated 3.9.2013 will equally apply to other affidavits which have been filed by the respondent no.1, and in which, basically two stands are taken. First is the entitlement to regularise even the contractual employees on the ground that ratio in Umadevi (supra) does not apply. Second reason is that petitioners are situated differently from the OMRs who are regularised and petitioners cannot be as they were not employees/regular officers as on 2.8.2010.

7. It may be stated that the basic contention of the petitioners is that if OMR officers, who perform the same work which the petitioners have, have been regularised after their original contractual appointments, then, petitioners were also occupied/employed in the same field and doing the same jobs which were done by the OMR officers, and hence they should also be regularised from their initial contractual employment and made permanent employees of respondent no.1. Discrimination was pleaded by the petitioners, and therefore the need was felt to call upon the respondent No.1 to file affidavits as to whether respondent no.1 can or cannot regularise contractual employees by giving them permanent employment.

8. I have already stated succinctly the ratio of the Constitution Bench judgment in the case of Umadevi (supra) in the order dated 30.7.2013. Let me now reproduce the relevant paras of the Supreme Court judgment on the basis of which the aforesaid order dated 30.7.2013 was crystallized. The relevant paragraphs of Umadevi (supra) are paras 2 to 6, 11,12,14,17,26,33,39,43,44,50 and 53 which read as under:-

"2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

11. 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, Article309 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 320deals 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.

12. 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.

14. 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 theDharwad 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.

17. 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.

26. 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.

33. 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.

39. 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 Central Coalfields Ltd. v. The Management of Bhurkunda Colliery of Central Coalfields Ltd. MANU/SC/0625/2006 : (2006)ILLJ842SC , 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.

43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a 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.

44. 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.

50. 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.

53. 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."

9. Out of the aforesaid paragraphs, the most important observations are contained in paras 14,17,26,33,43 and 50. Paragraph 17 specifically holds that as per the constitutional scheme of public employment neither the executive nor the court would have a right to regularise appointments made irregularly /illegally which have been made without following the due procedure. In both the lines of para-17, the Supreme Court has made it clear that neither the court nor the executive is in position to direct that an appointment made in clear violation of the constitutional scheme and the statutory rules can be treated as permanent or can be directed to be treated as permanent viz by regularisation of casual or temporary or contractual employees. Therefore, the contention of learned senior counsel for the respondent no.1 that the directions and the ratio of Umadevi's case (supra) are not binding on the executive and they can regularise contractual employees is an argument which totally lacks any substance whatsoever. Also, Para-26 reproduced above of the judgment in the case of Umadevi (supra) removes all doubts by stating that why should a State be allowed to depart from the normal rule of regular employment by the regular procedure and that courts shut its eyes to the persistent transgression of the rules of the regular recruitment. The Supreme Court has further observed that directions to make permanent employees who are not appointed to permanent posts of regular basis, will encourage the State which has to be a model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. In this para 26 the Constitution Bench has clarified that the judgment in the case of State of Haryana Vs. Piara Singh (1992) 4 SCC 118 cannot be said to have laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

10. So far as the facts of the present case are concerned, they squarely fall in the ratio of paras 17 and 33 in the case of Umadevi (supra) because paras 17 and 33 reproduced above state that if for contingency an ad hoc appointment is made, and which will also include contractual appointment, then that action of the State should be followed by a regular recruitment process and earlier contractual appointments should not be taken note of for regularization. Since the Supreme Court has categorically observed

in this para 33 that appointments to non-available posts (i.e non- sanctioned posts) should not be taken note of for regularisation, therefore, the argument urged today before me by the respondent no.1 that no sanctioned posts existed of OMRs, and though sanctioned posts were created by the policy for regularisation which have been implemented as one time measure, the action of regularization of contractual employees clearly falls foul of the ratio in the case of the Umadevi (supra) laid down in para 33.

11. Therefore, in view of the aforesaid paras, and especially paras 17, 26 and 33 of the judgment, there is left no manner of doubt that neither the courts nor the executive can in any circumstance regularise irregular and illegal employment. There is an illegal employment when without there existing sanctioned posts, without there existing vacancies in sanctioned posts, persons are appointed illegally/irregularly without competition brought about by inviting aspirants through advertisements and the employment exchange are regularized. The only exception created by Umadevi (supra) was that where duly qualified persons were appointed against vacancies in sanctioned posts, without using the process of competition, then, provided such employees have worked for more than 10 years in the posts without any court orders, only in such cases, the State or instrumentalities of State will create a scheme for regularisation of such employees. No other employees were to be regularised who had been appointed without regular recruitment process i.e without existing of vacancies in sanctioned posts and which are to be filled in by duly qualified persons who compete by they being called through advertisements in newspapers and/or through the employment exchange.

12. Therefore, I do not agree with the contention urged on behalf of respondent no.1 that respondent no.1 is not bound by the ratio in Umadevi's case (supra) because allegedly Umadevi's case (supra) permits a free hand to the executive to regularise ad hoc or temporary or contractual employees in certain alleged exigent circumstances. Not only in para 33 of Umadevi's case (supra) but in fact Constitution Bench has otherwise also said so in paras 17, 26,23 as stated above. Respondent no.1 therefore, quite clearly could not have regularised the OMRs who are contractual employees and in fact in terms of para 33 in Umadevi's case (supra), such posts should

have been advertised for regular recruitment and persons should have been selected only after competition.

13. In view of the above, before deciding this case, it is necessary that Union of India through the Ministries of Law and Finance be made as respondent nos. 3 and 4 to this writ petition. Copy of this order be also placed before the Secretaries of these two Ministries as also the Minister-in Charge of these Ministries to show as to how a leading PSU is flouting the ratio of the Constitution Bench judgment in the case of Umadevi (supra) by claiming a prerogative to regularise contractual employees although the Constitution Bench has strictly and specifically mandated against the same. Response will be required to the stand of the respondent no.1 as stated in this order by the Ministries of Law and Finance and therefore, notices be issued to the newly added respondents no.3 and 4 namely Ministry of Finance and Ministry of Law without filing of process fee, both in the ordinary method as well as by registered AD post, returnable on 10th October, 2013. Notices be issued to these two Ministries through the High Court Process Serving Agency. Respondent no.1 will file amended memo of parties within a period of two weeks from today or the petitioner can also file the same.

14. A copy of this order be also placed before the Board of Directors of the respondent No.1 before the next date of hearing and compliance of this be shown by filing an affidavit in this Court.

15. List on 10th October, 2013. Copy of this order to accompany the notices of respondent nos 3 and 4 namely, Ministry of Finance and Ministry of Law."

4. Paras 9 and 10 of the aforesaid order show that this Court

prima facie observed that the argument of the respondent no.1 that the

ratio of the case of Umadevi & Ors. (supra) is not binding on the

executives is not correct. Para 10 of the aforesaid order by making cross

reference to the relevant observations of the Supreme Court in the

case of Umadevi & Ors. (supra) observes that even contractual

appointments should not be regularized by the respondent no.1. Since

respondent no.1 was, in the prima facie opinion of this Court, taking up a

stand violative of the ratio of the Constitution Bench judgment in the case of

Umadevi & Ors. (supra), notices were hence issued to the Ministry of Law

and the Ministry of Finance as to whether the understanding of the prima

facie observations made by this Court in the order dated 16.9.2013 were

correct that contractual employees cannot seek regularization in view of the

ratio in the case of Umadevi & Ors. (supra).

5(i) The Ministry of Finance and the Ministry of Law thereafter

appeared pursuant to the notices issued by this Court and affidavits have

been filed by both the Ministries. The Ministry of Finance has filed its short

affidavit dated 12.12.2013 and whereunder the Ministry of Finance stated

that public authorities including respondent no.1 herein viz SBI are bound

by the ratio of the Constitution Bench judgment in the case of Umadevi &

Ors. (supra) and in fact the Ministry of Finance had taken up a proactive

stand that before filing its affidavit, it issued a letter dated 10.12.2013 to

CEOs of all the Public Sector Banks including the respondent no.1 and its

associates, that the banks should not violate the ratio of the judgment of the

Supreme Court in the case of Umadevi & Ors. (supra). Paras 7 and 8 of the

affidavit dated 12.12.2013 filed by the Ministry of Finance read as under:-

"7. It is further submitted that public authorities including SBI are bound by law laid down by the Supreme Court keeping in view the provisions of Articles 141 of the Constitution and any submission made by the SBI or any public authority against the law laid down by the Apex Court cannot be supported. It is further submitted that the ratio of Secretary, State Bank of Karnataka and Ors. Vs. Umadevi (3) and Ors. cited as (2006) 4 SCC 1 is binding on the Government as well as the PSUs.

8. That it is submitted that all Public Sector Banks including State Bank of India (SBI) have been apprised that the ratio of Umadevi's case (supra) is binding on the Government as well as the PSUs and the PSBs have been requested to adhere to the law laid by the Hon'ble Supreme Court. A copy of the said letter dated 10.12.2013 is annexed herewith as ANNEXURE-I to this affidavit."

(ii) The Ministry of Law also filed its affidavit dated 19.12.2013

again reiterating, like the Ministry of Finance, that the ratio of the

Constitution Bench judgment in the case of Umadevi & Ors. (supra) is

binding on all public authorities inclusive of public sector undertakings like

the respondent no.1. I hence adopt the reasoning contained in the order

dated 16.9.2013 which has been reproduced above.

6(i) Let us now therefore turn to the arguments urged by the

respective parties being as to whether petitioners can claim regularization of

their services with the respondent no.1, although they were only

contractually appointed and by seeking extension to the petitioners the

benefit as given to similarly situated employees of the respondent no.1 in

terms of the policy of the respondent no.1 dated 20.7.2010. Petitioners state

that respondent no.1 is wrongly seeking to distinguish the facts of the

services of the petitioners; including with respect to the cut off date of

14.7.2010; by allegedly referring to the employment of the already

regularized persons being in accordance with the terms of the policy dated

20.7.2010, in that persons covered under the policy dated 20.7.2010 have to

perform services by achieving targets in the year 2009-2010. The aforesaid

argument of the respondent no.1 is said to be incorrect on the ground that

respondent no.1 in terms of its subsequent letter dated 18.8.2010 had itself

watered-down the criteria with respect to meeting 60% of the business

targets as required by para 2(I) of the policy dated 20.7.2010.

(ii) Respondent no.1 on the other hand has argued that the ratio of

the Constitution Bench judgment in the case of Umadevi & Ors. (supra)

does not prohibit the respondent no.1 in taking out a 'one time measure'

being the policy dated 20.7.2010 for regularizing those contractual

employees who fall within the terms of the policy dated 20.7.2010 because

such employees have been in the service of the respondent no.1/bank as on

14.7.2010 and such persons had achieved minimum 60% targets during the

year 2009-2010. It is also argued on behalf of the respondent no.1 that this

Court should not interfere in policy matters inasmuch as making of policies

falls within the prerogatives of the respondent no.1 inasmuch as the policy in

question dated 20.7.2010 is not arbitrary but was based upon the facts and

circumstances that the contractual officers who were regularized in terms of

the policy dated 20.7.2010 were the marketing and recovery officers who

had on account of their contractual work with the respondent no.1 achieved

necessary specialities for the respondent no.1 to regularize their contractual

services. On behalf of respondent no.1 it is finally argued that even

assuming the appointments made by the respondent no.1 of those officers

who are covered under the policy dated 20.7.2010 are violative of the ratio

in the case of Umadevi & Ors. (supra), petitioners however cannot enforce

negative equality because Article 14 of the Constitution of India is a positive

concept and it is argued that even if assumingly regularization has been done

illegally in terms of the policy dated 20.7.2010 of the respondent no.1

petitioners cannot claim regularization by enforcing an illegality of seeking

regularization of contractual services by making them as permanent

employees.

(iii) I may note that on a query to the learned senior counsel for the

respondent no.1 it is not urged before me that the experience of the

marketing and recovery officers while working with the respondent no.1

and who have been regularized under the policy dated 20.7.2010, was such

that no other person in the open market/other candidates in the country,

could have such knowledge or experience and therefore there was no option

but to regularize the contractual employees by the policy dated 20.7.2010

and therefore there existed special circumstances i.e there would be available

candidates in an open recruitment process who would have experience

similar to the Officers-Marketing and Recovery (OMRs) who have been

regularized under the policy dated 20.7.2010. Obviously, this stand of the

respondent no.1 is so because it could not have been argued otherwise by the

respondent no.1 that as on 20.7.2010 persons who had worked as marketing

and recovery officers with various organizations including various banks

would not have been available for regular recruitment with the respondent

no.1 if selection process had been initiated for appointment of similarly

eligible and qualified persons as the marketing and recovery officers in

question who have been regularized in terms of the policy of the respondent

no.1 dated 20.7.2010.

7. Let us now note the arguments urged on behalf of the

petitioners as to how and whether the petitioners fall or do not fall within the

parameters specified in the subject policy of the respondent no.1 dated

20.7.2010. For such purpose, reference has been made by the petitioners to

the relevant paras of the policy relied upon on behalf of the respondent no.1

including by placing reliance upon the letter of the respondent no.1 dated

18.8.2010 that this letter dated 18.8.2010 itself waters down the criteria

required of only those employees will be considered who have achieved

experience while working with the respondent no.1 in the year 2009-2010.

These relevant paras relied upon by the petitioners read as under:-.

  "                 POLICY DATED 20.7.2010

                                           20th July, 2010
  The Chief General Manager,
  State Bank of India,
  Local Head Office,
  All
  Dear Sir/Madam,

STAFF: SUPERVISING OPPORTUNITY FOR PERMANENT ABSORPTION TO OFFICERS APPOINTED ON CONTRACT The Executive Committee of the Central Board in their meeting held on the 14th July 2010 approved a policy for permanent absorption of Officers Marketing and Recovery (Rural), Technical Officers (Farm Sector), Micro Finance Marketing Officer, Customer Relationship Executive (PB) and Customers Relationship Executive (ME) in JMGS-I as Specialist Officers at the initial Stage of pay, as under:-

       Existing Designations                   New Designations

       Officers-Marketing & Recovery           Rural Marketing & Recovery
       (Rural)                                 Officers

       Technical Officers-Farm Sector          Farm            Sector-Technical
                                               Officers

       Micro    Finance        Marketing       Micro Finance         Marketing
       Officers                                Officers

       Customer           Relationship         Customer            Relationship
       Executives (PB)                         Officers (PB)

       Customer           Relationship         Customer            Relationship
       Executive (ME)                          Officers (ME)

2. The terms and conditions of absorption of the aforementioned officers are as under:-

I. All above mentioned officers who are in the service of the Bank as on 14.07. 2010 will be eligible for absorption, subject to having achieved minimum 60% targets during the year 2009-10. The performance of the officers, will be assessed as per the performance evaluation matrix advised by the concerned SBUs.

xxxx xxxx xxxx xxxx xii The OMRs/TOFSs who have resigned from the service of the Bank and rejoined in higher cadre as OMR-S1 and TOFS-S1 will also be considered for permanent absorption on the same footings as OMRs and TOFSs. Similarly, the officers who have submitted resignation, but were not yet released, will have the option to withdraw resignation and will be offered permanent appointment under the scheme.

  xxx                          xxxx               xxxx                  xxxx
  Yours faithfully,
  For DY. MANAGING DIRECTOR &
  CORPORATE DEVELOPMENT OFFICER

                        LETTER DATED 18.8.2010
  The Chief General Manager
  State Bank of India
  Local Head Office
  All Circles
  RB/AC/SB/121                                                  Date: 18.08.2010
  Dear Sir/Madam

RURAL BUSINESS OPPORTUNITY FOR PERMANENT ABSORPTION TO OFFICERS APPOINTED ON CONTRACT We refer to our letter No.RB/AC/SB/90 dated 28th July 2010, wherein we have advised that those OMRs who have achieved minimum of 60% of the business targets during the year 2009-10 in loans and recovery should be considered for permanent absorption, and to factor in any extraneous/extenuating circumstances while arriving at the targets of the OMRs to ensure that performing OMRs are duly recognized.

2. One of the Circles has suggested that for considering OMRs who could not achieve their targets for various reasons for permanent absorption in the Bank functional knowledge examination be conducted so that capable officers can be retained in our fold. We have examined the matter and advise as under:

a) The OMRs, who have not been able to achieve 60% of their business targets in Loans and Recovery due to reasons which are attributable to their lack of efforts, do not deserve permanent absorption in the Bank.

b) However OMRs who have not been able to achieve the 60% of their business targets inspite of best efforts, due to reasons beyond their control and reasons like their being used by the operating staff for tasks other than the purpose for which the officers were recruited, need to be given a fair chance. In such circumstances, their business targets could be suitably revised and then achievement measured.

c) In view of what is stated above, we are not in favour of holding any functional knowledge examination for the OMRs who have not qualified for permanent absorption.

3. Please, therefore, re-examine the performance of OMRs in light of what is stated above and take appropriate decision in the matter. Yours faithfully, Sd/-(illegible) Chief General Manager (Rural Business)"

8. In my opinion, I need not at all go into the arguments urged on

behalf of both the parties as to petitioners falling or not falling within the

policy dated 20.7.2010 and as qualified by the letter dated 18.8.2010,

inamsuch as, if I allow the reliefs claimed by the petitioners, then the effect

of granting of the reliefs will be that contractual employees will get

regularization as permanent employees of the respondent no.1 which is a

State under Article 12 of the Constitution of India and which is wholly

impermissible under the ratio of Umadevi's case (supra). Even if we take

that petitioners are fully covered under the policy dated 20.7.2010 and as

clarified by the letter dated 18.8.2010 and though which is disputed on

behalf of respondent no.1, I am of the clear opinion that the reliefs cannot be

granted to the petitioners on the ground that the policy of the respondent

no.1 dated 20.7.2010 itself is unsustainable and grossly illegal inasmuch as it

flies in the face of the ratio of the judgment in the case of Umadevi & Ors.

(supra). This aspect I will dilate in few paras later, however, at this stage I

would seek to refer to a recent judgment decided by me in a bunch of cases

with the lead case being Radhey Shyam and Ors. Vs. GNCT of Delhi and

Ors. in W.P.(C) No. 471/2015 decided on 22.1.2015. The connected case

decided with the bunch of cases is the case of Som Dutt and Ors. Vs. GNCT

of Delhi and Ors. in W.P.(C) No. 474/2015. In the case of Radhey Shyam

(supra), I have held that contractual employees cannot seek regularization in

view of the ratio of the judgment of the Supreme Court in the case of

Umadevi & Ors. (supra). While dealing with the facts in the case of Som

Dutt and Ors. (supra), I have deliberated on the aspect as to if contractual

employees are employed in terms of a regular selection process, but only as

contractual appointees, both in terms of the advertisement and appointment

letters, had the requisite eligibility criteria of being appointed in the

permanent posts, whether such contractual employees can be regularized on

the ground that they have been selected through a process which involved

calling of candidates through advertisement and who were thereafter

selected pursuant to a selection process containing the eligibility criteria of

the permanent posts, and I have held that once the contractual employment is

sought for through such specific advertisement for contractual appointments,

the contractual employees cannot seek regularization inasmuch as otherwise

this will amount to fraud on the common citizens of this country and the

common citizens being such candidates who would not have applied for

appointments to the contractual posts and instead waited for advertisements

in permanent posts of an employer. This is stated in paras 14 and 15 of the

judgment in Radhey Shyam's (supra) and Som Dutt's (supra) cases and

which paras read as under:-

"14. Petitioners in this case seek appointment as Lab Technicians/Lab Assistants. In the present case, the relief which is claimed by the petitioners of their being regularized cannot be granted because if petitioners are specifically appointed for contractual period in terms of the advertisement which required only contractual employment for 11 months, then, if the petitioners are regularized only because they were appointed against sanctioned posts, the same would be clearly a violation of the ratio of the Constitution Bench judgment in the case of Umadevi (supra) because if the petitioners are directed to be regularized merely because there existed sanctioned posts, although the advertisement and appointments were only and specifically for 11 months only, then what will happen is that by issuing of an advertisement by the respondent no.2 which was only for contractual appointments of a limited period of 11 months, injustice would be caused to dozens or

hundreds of other persons who would not have applied to the posts on the ground that the posts are contractual posts only for 11 months and such persons, being the ordinary citizens, who therefore would seek appointment with other employers who would offer permanent posts. If this Court allows regularization of the petitioners, and merely because petitioners are appointed against sanctioned posts, the spirit of the ratio of Umadevi's case (supra) would be violated because then in such cases the authorities of the State instead of making regular appointments to sanctioned posts, will advertise and make contractual appointments to sanctioned posts for specified periods, and thereby play a fraud upon general public being persons who would have applied if the posts were advertised as permanent posts. Thus regularization cannot be granted only because petitioners were appointed against sanctioned posts, once the advertisement and appointments were only for a limited period of just 11 months.

15. It is not the ratio of Umadevi's case (supra) that contractual employees must be regularized only because there are vacant sanctioned posts to which they were appointed to limited contractual period of mere 11 months, inasmuch as, Umadevi (supra) requires that the appointments must be as per the regular recruitment process and rules which will require advertisement for appointments as permanent posts, and much less because in terms of the ratio of the Umadevi's case (supra), the Delhi State Services Selection Board (DSSSB), and who appoints employees for the respondent no.2, has already issued a circular that there should not be appointments to regular posts except in accordance with the law and the process as specified in the regular recruitment rules."

9. It bears reiteration that it will be a very peculiar position if

contractual employees are regularized simply on the ground that they were

appointed on the vacancies in sanctioned posts by means of a regular

selection process because in such cases serious and grave fraud will be

effectively perpetrated against those persons who would have also applied

for the posts if the posts were not advertised as contractual posts but were

advertised as permanent posts. What cannot be done directly cannot also be

done indirectly and therefore what cannot be done directly in view of the

ratio in the case of Umadevi & Ors. (supra) that contractual appointments

cannot be regularized as permanent appointments, then even indirectly also

this cannot therefore be done by urging that since a regular recruitment

process is followed by appointing contractual employees in vacancies in

sanctioned posts such contractual appointees be regularized because in effect

and in reality contractual employees will be regularized in permanent posts,

although in law contractual employees ordinarily have to end their services

with the conclusion of the contractual period of course with the caveat that a

contractual employee cannot be replaced by another contractual employee

and which aspect I have dealt with in the judgment in the case of Abhinav

Chaudhary & Ors. Vs. Delhi Technological University & Anr. in W.P.(C)

No.3512/2014 decided on 20.1.2015. In this judgment in the case of

Abhinav Chaudhary (supra) I have referred to the ratios of the judgments of

the Supreme Court in the cases of State of Haryana and Ors. etc. etc. Vs.

Piara Singh and Ors. etc. etc. (1992) 4 SCC 118 and Mohd. Abdul Kadir

and Anr. Vs. Director General of Police, Assam and Ors. (2009) 6 SCC

611 to arrive at the conclusion that a contractual/casual/project employee

cannot be replaced with a similar employee.

10(i) Let me now turn to the issue as to whether the respondent no.1

is justified in contending and arguing that the policy dated 20.7.2010 was

only a 'one time measure' and such one time measures as per the facts and

circumstances emerging are not prohibited by the ratio of the judgment in

the case of Umadevi & Ors. (supra) including for the reason that Umadevi

& Ors. (supra) only prohibits employees from seeking regularization but

does not prohibit the employer from regularizing casual employees or

contractual employees who are employed in an illegal or irregular manner.

To answer this aspect, one needs to refer to para 53 of the judgment in the

case of Umadevi & Ors. (supra) and which para 53 reads as under:-

"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 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 sub judice, 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."

(emphasis is mine)

(ii) A reading of the aforesaid para 53 shows that the Supreme

Court held that all appointments which were either not against vacancies in

sanctioned posts or were of persons who did not meet the eligibility criteria

are illegal appointments and cannot be regularized except that the employees

who were qualified and appointed against vacancies in sanctioned posts but

when they were employed there was no competition process of all eligible

candidates called through advertisements and/or employment exchanges

then such employees who have worked for a continuous period of 10 years

prior to passing of the judgment in the case of Umadevi & Ors. (supra) are

such persons whose employments are only irregular and can be regularized

provided such persons have worked for 10 years without benefit of any

Court order. Be it noted that the Supreme Court has clarified that the

directions given in the aforesaid para 53 for framing of policy by the

government or its authorities was with respect to legal appointments and not

for illegal appointments i.e persons who had worked for 10 years in the posts

were appointed against vacancies in sanctioned posts by having the

necessary qualifications but the recruitment process was not followed by

calling for candidates by means of an advertisement or through employment

exchanges. Therefore, only irregular appointments were to be regularized as

a 'one time measure' in terms of the aforesaid para 53. Once the Supreme

Court uses the expression 'one time measure' in the aforesaid para 53, one

time means only one time and not repeatedly one times many a times over.

It would be most absurd for the government or public authorities which are a

State under Article 12 of the Constitution of India to argue that there can be

a 'one time measure' several times. I refuse to accede to such an argument

which would fly in the face of the ratio as per the case of Umadevi & Ors.

(supra) and more particularly para 53 of the judgment in the case of

Umadevi & Ors. (supra) wherein irregular appointments were to be

regularized only as a one time measure i.e no further 'one time measure'

could be taken to violate the ratio in the case of Umadevi & Ors. (supra) by

asking irregular appointments or contractual appointments or casual

appointments or illegal appointments to be confirmed to permanent posts.

Also, I have already reproduced above the complete order passed by this

Court on 16.9.2013 and in which order I have given reference to various

paras of the Supreme Court judgment in the case of Umadevi & Ors. (supra)

and therefore it is not permissible for the respondent no.1 to argue that only

employees cannot violate the ratio in the case of Umadevi & Ors. (supra) by

seeking regularization but employers can violate the ratio by regularizing

even in future the employees who have been employed in violation of the

ratio in the case of Umadevi & Ors. (supra) i.e regularization can be made

in permanent posts although the four requirements of Umadevi & Ors.

(supra) are not complied with being the requirement of existence of

sanctioned posts, existence of vacancies in sanctioned posts, candidates

fulfilling the eligibility criteria and lastly appointments done only through

open competition by calling for candidates through advertisements and/or

through employment exchanges.

11(i). Reliance placed by the respondent no.1 on various judgments to

argue that it was entitled to take out as a 'one time measure' the policy dated

20.7.2010 is also misconceived and the reasons for the same are stated

hereinafter.

(ii). So far as the judgment of the Supreme Court in the case of

Bank of India and Anr. Vs. Tarun Kr. Biswan and Ors. (2007) 7 SCC 114

is concerned, the said judgment except referring to the case of Umadevi &

Ors. (supra) does not refer to the relevant paras and the ratio of the

judgment in the case of Umadevi & Ors. (supra) and therefore I have to

follow the ratio not of a Division Bench of two Judges of the Supreme Court

in the case of Bank of India (supra) but the ratio of the Constitution Bench

of the Supreme Court in the case of Umadevi & Ors. (supra). Also, I would

like to note that the facts in the case of Bank of India (supra) show that the

scheme which was sought to be implemented was a scheme which was taken

out much prior to the decision in the case of Umadevi & Ors. (supra)

inasmuch as the scheme for absorption was dated 24.2.1988 and which was

the scheme which was enforced in the case of Bank of India (supra) of

course without referring to the detailed paragraphs and the complete ratio in

the case of Umadevi & Ors. (supra).

(iii) Reliance placed upon by the respondent no.1 on the judgment

in the case of Council of Scientific and Industrial Research & Ors. Vs.

Ramesh Chandra Agrawal and Anr. (2009) 3 SCC 35 is again

misconceived for the reason that in the said judgment the issue which arose

was that one employee of CSIR was claiming that relaxation be granted with

respect to such employee by questioning the cut off date. In such

circumstances, the Supreme Court observed that it is the prerogative of the

executive to have a cut off date and which cut off date is ordinarily not

interfered with by the Courts. Also, the scheme which was enforced in the

said case, and which scheme was sought to be enforced by the concerned

employee in the CSIR case, was the scheme dated 3.7.1998 viz a scheme

which was a 'one time measure' prior to the decision in the case of Umadevi

& Ors. (supra). I must state that para 44 of the judgment in the case of

Council of Scientific and Industrial Research (supra) does not help the

respondent no.1 as is sought to be argued but in fact observations are to the

effect that Courts do not violate the ratio of the Constitution Bench judgment

of the Supreme Court in the case of Umadevi & Ors. (supra) inasmuch as

regularization cannot take place of employees in violation of the ratio in the

case of Umadevi & Ors. (supra). Also, the argument that this Court will not

interfere with the policy matters is an argument of futility because no doubt

Courts will not interfere with policy matters provided the policy does not

violate the applicable law of the land or a statutory provision i.e the policy

does not suffer from an illegality. If the policy is illegal because the policy

has the effect of violating the ratio of a Constitution Bench judgment of the

Supreme Court, in such a case then it cannot be argued that the Court should

not interfere with policy matters although such policies are in violation of

the law of the land being the Constitution Bench judgment of the Supreme

Court in the case of Umadevi & Ors. (supra). Therefore, no benefit can be

taken by the respondent no.1 of the judgment in the case of Council of

Scientific and Industrial Research (supra).

(iv) Finally, reliance was placed by the respondent no.1 upon a

recent judgment of the Supreme Court in the case of State of Gujarat & Ors.

Vs. PWD Employees Union & Ors. Etc. 2013 (8) SCALE 579 to argue that

the Supreme Court in this recent judgment has directed regularization even

after the case of Umadevi & Ors. (supra) and therefore this Court should not

interfere with the policy dated 20.7.2010 by which regularization has been

granted to the contractual employees. I cannot agree with the argument

urged on behalf of the respondent no.1 by placing reliance upon the Division

Bench judgment of two Judges in the case of State of Gujarat (supra)

inasmuch as the issue in this judgment was essentially with respect to

enforcing of a judgment which had achieved finality. The judgment in that

case which had achieved finality was the judgment of the learned Single

Judge of the Gujarat High Court dated 21.3.1997 and which was confirmed

by the Division Bench of the Gujarat High Court in LPA by its order dated

29.4.2003 i.e judgments delivered prior to the case of Umadevi & Ors.

(supra). Since the finality was attached to this judgment, the Supreme Court

in view of the finality attached to such judgment was concerned with the

enforcement of the judgment and the issue came up of regularization of the

employees and accordingly in view of the fact that there was finality

attached to the applicable judgment, accordingly for one such reason, the

Supreme Court held that employees who had worked for between 5 to 25

years should get regularization. In the case of State of Gujarat (supra) the

Division Bench of the Supreme Court has referred to the case of Umadevi &

Ors. (supra), however, in no way does the judgment in the case of State of

Gujarat (supra) hold that the contractual employees who have been

appointed pursuant to the advertisement for a contractual period can even

after passing of the judgment in the case of Umadevi & Ors. (supra) seek

regularization of the contractual appointments by making such contractual

employees permanent in their posts although the contractual period has

expired. There was no issue in the case of State of Gujarat (supra) which

was decided by the Division Bench of the Supreme Court that there can be a

'one time measure' of regularization of contractual employees in violation of

the ratio of the Constitution Bench judgment of the Supreme Court in the

case of Umadevi & Ors (supra). Therefore, the judgment in the case of

State of Gujarat (supra) relied upon by the respondent no.1 will not apply to

the facts of the present case.

12(i) On behalf of the respondent no.1 reliance was placed upon

three judgments of the Supreme Court to argue that the petitioners cannot

claim negative equality because even assuming the policy dated 20.7.2010 is

illegal, petitioners cannot claim regularization and which judgments are the

judgments in the cases of U.P. State Sugar Corpn. Ltd. & Anr. Vs. Sant Raj

Singh and Ors. (2006) 9 SCC 82, State of Madhya Pradesh and Ors. Vs.

Ramesh Chand Bajpai (2009) 13 SCC 635 and State of Uttaranchal Vs.

Alok Sharma and Ors. (2009) 7 SCC 647.

(ii) In my opinion, this argument urged on behalf of the respondent

no.1 in fact leaves no manner of doubt that the first argument of the

respondent no.1 of a 'one time measure' had no legs to stand upon and that

this Court cannot enforce a negative equality i.e Article 14 of the

Constitution of India cannot be invoked to perpetuate an illegality i.e an

illegal order cannot be passed in a case by a Court on the ground that a

public authority has passed an illegal order in other such cases. I have held

that the policy dated 20.7.2010 is an illegal policy, and once such a policy is

illegal, petitioners cannot claim benefit of the said policy by which

contractual employees were illegally regularized by the respondent no.1. At

this stage, I must hasten to clarify and observe that I have in no manner

struck down the appointments which have been made by the respondent no.1

pursuant to its policy dated 20.7.2010 inasmuch as neither the petitioner has

argued for such a relief in this petition nor can the petitioner argue so

because this writ petition is not a Public Interest Litigation. In fact, I before

adverting to the arguments urged on behalf of the respondent no.1 made a

suggestion to the respondent no.1 that there is no possible requirement for

the respondent no.1 to give reference to many arguments and judgments and

insist that this Court should pronounce upon the respondent no.1's policy

dated 20.7.2010, however, the learned senior counsel for the respondent

no.1, on instructions, states that this Court must pronounce upon the

arguments which have been urged on behalf of the respondent no.1.

13. In view of the above, I do not find any merit in the petition

because this Court cannot grant regularization to contractual employees in

violation of the Constitution Bench judgment of the Supreme Court in the

case of Umadevi & Ors. (supra).

14. Dismissed.

15. Let a copy of this judgment be placed before the Secretaries of

the Ministries of Finance and Law, that the respondent no.1 insists, in spite

of the affidavits of the Ministries of Finance and Law to the contrary, in

justifying its illegal actions of violating the ratio of Umadevi & Ors's case

(supra), and this be done by sending copies of this judgment through the

High Court Process Serving Agency to the said Secretaries. Copy of this

judgment be also placed before the Board of Directors of the respondent

no.1 in the next three months and that this has been done be informed to this

Court by filing of an affidavit by the General Manager (Law) of the

respondent no.1 within four months from today.

FEBRUARY 09, 2015                                VALMIKI J. MEHTA, J
ib/Ne