[Cites 20, Cited by 0]
Delhi High Court
New Delhi Municipal Council Through Its ... vs Kalpana Sharma & Ors on 13 April, 2026
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~66 & 67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4646/2026, CM APPLs. 22658/2026 & 22659/2026
NEW DELHI MUNICIPAL COUNCIL
THROUGH ITS CHAIRMAN & ANR. .....Petitioners
Through: Ms. Archana Pathak Dave,
ASG with Mr. Vaibhav Agnihotri, ASC with
Ms. Suruchi Khandelwal, Mr. Vidit Pratap
Singh and Mr. Raghav Sharma, Advs.
versus
KALPANA SHARMA & ORS. .....Respondents
Through: Dr. Monika Arora, with Mr.
Subhrodeep Saha, Ms. Anamika Thakur and
Mr. Abhinav Verma, Advs.
+ W.P.(C) 4649/2026, CM APPLs. 22666/2026, 22667/2026 &
22668/2026
NEW DELHI MUNICIPAL COUNCIL & ANR. .....Petitioners
Through: Ms. Archana Pathak Dave,
ASG with Mr. Vaibhav Agnihotri, ASC with
Ms. Suruchi Khandelwal, Mr. Vidit Pratap
Singh and Mr. Raghav Sharma, Advs.
versus
RITIKA ARORA & ORS. .....Respondents
Through: Dr. Monika Arora, with Mr.
Subhrodeep Saha, Ms. Anamika Thakur and
Mr. Abhinav Verma, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 13.04.2026
C. HARI SHANKAR, J.
1. These writ petitions, at the instance of the New Delhi Municipal
Council1, assail a common order dated 25 November 2025 passed by
the Central Administrative Tribunal2 in OA 20/20223 and OA
3069/20214. Ritika Arora and others, the respondents in WP (C)
4649/2026 are Auxiliary Nurse Midwifes5 whereas Kalpana Sharma
and others, the respondents in WP (C) 4646/2026 are Pharmacists.
2. By the impugned judgment, the Tribunal has directed
regularisation of the respondents in the posts held by them. In doing
so, the Tribunal has followed the judgment of the Division Bench of
this Court in Pawan Sharma v. Govt. of NCT of Delhi6, authored by
one of us (C. Hari Shankar, J.) which, in turn, followed the judgments
of the Supreme Court in Vinod Kumar v. UOI7, Jaggo v. UOI8,
Shripal v. Nagar Nigam, Ghaziabad9 and Dharam Singh v. State of
U.P.10.
3. After the rendition of the decision in Pawan Sharma by this
Court, the same view has been reiterated by the Supreme Court in
Bhola Nath v. State of Jharkhand11 and Pawan Kumar v. UOI12.
4. Despite the matter being thus covered by a plethora of decisions
1 "NDMC", hereinafter
2 "the Tribunal", hereinafter
3 Ritika Arora and Ors. v. New Delhi Municipal Council and Anr.
4 Kalpana Sharma and Ors. v. NDMC and Anr.
5 "ANMs", hereinafter
6 2025 SCC OnLine Del 8313
7 (2024) 9 SCC 327
8 2024 SCC OnLine SC 3826
9 2025 SCC OnLine SC 221
10 2025 SCC OnLine SC 1735
11 2026 SCC OnLine SC 129
of the Supreme Court, the NDMC has yet again carried the dispute to
this Court.
Facts
5. Though the facts in these writ petitions are identical, for the
sake of clarity, we may advert to them separately.
WP(C) 4646/2026 (NDMC v. Kalpana Sharma and Ors.)
6. The respondents, who were Pharmacists registered with the
Indian Pharmacy Council applied in response to an advertisement
issued by the NDMC for filling up vacancies of Allopathic
Pharmacists. It is not in dispute that the respondents satisfied the
qualifications for recruitment as Pharmacists as set out in the
advertisement. The recruitment was by way of open selection. The
Selection Committee assessed the candidates, including the
respondents, and appointed them as Pharmacists on the following
dates:
S. No. Name Date of appointment
1 Kalpana Sharma 30.06.2008
2 Shweta Gupta 27.06.2008
3 Neha Thapliyal 30.06.2008
4 Neha Sikka 29.04.2014
5 Atul Sharma 20.01.2009
6 Pradeep Sharma 14.07.2008
7 Nitin Dabas 01.05.2014
8 Anuj Kumar 07.05.2014
9 Smrita Kumari 07.05.2014
10 Priyanka Yadav 29.04.2014
11 Rocky Wadhwa 30.01.2012
12 2026 SCC OnLine SC 200
12 Harendra Kumar 27.06.2008
13 Bharti Bhargav 29.04.2014
14 Sanjay Dutt 22.08.2014
15 Sandeep 30.08.2014
16 Kartar Singh 30.07.2008
17 Sonam Ranga 30.08.2014
7. The appointments were on contract basis for a period of six
months, which continued, and continue till today. A sample letter of
an offer of appointment issued to one of the respondents may be
reproduced as under:
"MEDICAL DEPARTMENT
CHGARAK PALIKA HOSPITAL
MOTI BAGH: NEW DELHI
No.DMO(ISM&H)/913/D/08 Dated 26.6.08
To,
Ms. Neha Thapliyal,
8-A/430, DDA Flats,
Tirlokpuri, Delhi-92
OFFER LETTER
Ms. Neha Thapliyal, candidate on the approved panel of Allopathic
Pharmacists is offered the post of Allopathic Pharmacist on
contract basis for a period of six months on the salary based upon
the basic pay on ₹4500+75% usual allowances as admissible under
contract rules.
In case the offer is accepted to you, you are advised to give your
acceptance within 10 days of the receipt of this letter, failing which
the offer will be given to the next candidate on wait list.
(Dr. N.D. Sharma)
CMO (ISM & H)
8. In OA 3069/2021 filed by the respondents before the Tribunal,
in which the impugned judgment has come to be rendered, the
respondents specifically averred that the NDMC was, at that time,
filling up all posts, including the posts of Medical Officer, Data Entry
Operators and ANMs (to which category the respondents in WP(C)
4649/2026 belong) on contract basis and that their contracts were
continued for years, and continue to be renewed till date.
9. Aggrieved by the fact that their services had never been
regularised, and they were also not being paid at par with the pay
drawn by regular Pharmacists, the respondents instituted OA
3069/2021 before the Tribunal, praying that they be regularised in the
post of Pharmacists to which they were originally appointed on
contract basis, with effect from the date of the original appointment
and that they be granted the pay of regular Pharmacists from that date.
WP(C) 4649/2026 (NDMC v. Ritika Arora and Ors.)
10. Like the respondents in WP(C) 4646/2026, the respondents in
this writ petition were also engaged by the NDMC, after
advertisement and open selection, as ANMs against sanctioned
vacancies. Their appointments were also on contract basis and
continuously renewed from time to time. They continued to be
renewed till date.
11. These respondents, too, approached the Tribunal by way of OA
20/2022, seeking regularisation as ANMs from the dates of their
initial appointment. In this context, they also referred to a resolution
passed by the NDMC on 27 August 2014, whereupon it had decided
to regularise contractual workers. The respondents complained that
the resolution have been implemented in the case of Doctors serving
in NDMC Hospitals, but had not been implemented in respect of other
categories of employees. The respondents also relied on the judgment
of the Division Bench of this Court in Pawan Sharma.
The impugned judgment
12. Before the Tribunal, the NDMC argued that the respondents in
these writ petitions, i.e., the applicants before the Tribunal, have been
engaged on purely temporary contractual basis on consolidated
remuneration with no right to regular appointment or parity of pay
with regular employees. It was also emphasised that, under the
Recruitment Rules13 applicable to the posts in question, they were
100% direct recruitment posts and regularisation was not envisaged, in
the RRs, as a mode of appointment. Having accepted the terms and
conditions on which they were appointed on contract, the NDMC also
submitted that the respondents were estopped from seeking
regularisation.
13. The Tribunal has allowed the OAs filed by the respondents
following the judgment of this Court in Pawan Sharma. Paragraphs 6
to 9 of the impugned judgment read as under:
"6. We have heard the parties and gone through the documents
placed record. The applicants were appointed through a proper
selection process, are qualified, have been working for many years
against sanctioned posts, and perform essential nursing/para-
medical duties.
7. The issue involved is identical to that of Pawan Sharma
13 "RRs", hereinafter
(supra) and also an earlier decision by this Tribunal in O.A.
3597/2017, where it was held that employees who are selected
through a regular recruitment-like process and continue to work for
long periods in essential posts earn a right to regularisation,
regardless of whether their initial engagement was contractual/ad-
hoc/temporary. In Para 18 of Pawan Sharma (supra) the Hon'ble
High Court has held as under:-
"Article 141 of the Constitution of India makes the
judgments in Vinod Kumar, Jaggo, Shripal and Dharam
Singh binding on us. Article 144 requires us to act in the
aid of the law declared by the Supreme Court, which would
include making all efforts to ensure that the law declared by
the Supreme Court is implemented with full vigour. We
cannot, therefore, craft an exception into the law declared in
Vinod Kumar, Jaggo, Shripal and Dharam Singh in cases
where regular recruitment exercises were undertaken.
Where petitioners had, by dint of their original appointment
and continuous uninterrupted blemish free service on the
post in which they were appointed, earned a right to
regularization, they could not be compelled to participate in
any recruitment exercise. Expressed otherwise, the
omission on the part of the petitioners to participate in the
regular recruitment exercises undertaken by the respondents
cannot derogate from their right to regularization flowing
from the facts of their cases and the law declared in Vinod
Kumar, Jaggo, Shripal and Dharam Singh."
8. The situation of the applicants herein, is exactly similar.
Therefore, the same view is required to be taken here as well.
9. In view of what has been discussed herein above and
following the judicial precedent in Pawan Sharma (supra) and in
O.A. No. 3597/2017, this OA is also disposed of in similar terms,
with directions to the respondents to fully implement the resolution
dated 27.08.2014 in a time-bound manner, ensuring that the
applicants receive all consequential benefits. The respondents shall
not displace the applicants through direct recruitment until their
regularization is effected. The arrears payable to the applicants on
account of pay fixation, allowances, and notional pay fixation with
effect from 27.08.2014 shall be released within a period of two
months from the date of receipt of a certified copy of this order."
14. These writ petitions, at the instance of the NDMC, assail the
aforesaid decision of the Tribunal.
15. We have heard Ms. Archana Pathak Dave, learned ASG for the
petitioners and Dr. Monika Arora, learned counsel for the respondents,
at length.
16. Ms. Dave submits that as per the NDMC Resolution dated 27
August 2014, NDMC had already written to the UPSC to finalize the
RRs for the posts held by the respondents and to take a decision
regarding their regularization in terms of the aforesaid circular. She,
therefore, submits that the respondents ought to await the decision of
the UPSC in that regard. To that extent, she seeks to submit that the
case of the respondents in these writ petitions differs from the case of
the persons who were before the Supreme Court in Jaggo and later
decisions.
17. As against this, Dr. Monika Arora, appearing for the
respondents, submits that the case is fully covered by the decision of
this Court in Pawan Sharma and the later judgments of the Supreme
Court in Bhola Nath and Pawan Kumar.
18. Having heard learned counsel for the parties and applied
ourselves to the material on record and the extant situation in law, we
are in agreement with Dr. Arora that the controversy is squarely
covered by the decisions of the Supreme Court in Vinod Kumar,
Jaggo, Shripal, Dharam Singh, Bhola Nath and Pawan Kumar, of
which the first four decisions were cited and relied upon by this Court
in Pawan Sharma. We may reproduce the legal position as it emerges
from Vinod Kumar, Jaggo, Shripal and Dharam Singh, as noted by
us in Pawan Sharma, thus:
"3. Vinod Kumar v Union of India
3.1 The appellants before the Supreme Court, in this case, were
appointed as Accounts Clerks under a temporary scheme based
arrangement, albeit after a selection process involving written test
and viva voce. On the date when the judgment was rendered by the
Supreme Court, they had been working continuously on the said
posts for over 25 years. They petitioned the Central Administrative
Tribunal14, seeking regularization. The Tribunal, as well as
thereafter the High Court, dismissed the pleas of the appellants on
the ground that their appointments were temporary and made under
a specific scheme. Reliance was placed, for the purpose, on the
well-known decision of the Constitution Bench of the Supreme
Court in State of Karnataka v Uma Devi15.
3.2 The Supreme Court reversed the decision of the Tribunal
and the High Court, reasoning thus:
"5. Having heard the arguments of both the sides, this
Court believes that the essence of employment and the
rights thereof cannot be merely determined by the initial
terms of appointment when the actual course of
employment has evolved significantly over time. The
continuous service of the appellants in the capacities of
regular employees, performing duties indistinguishable
from those in permanent posts, and their selection through
a process that mirrors that of regular recruitment,
constitute a substantive departure from the temporary and
scheme-specific nature of their initial engagement.
Moreover, the appellants' promotion process was conducted
and overseen by a Departmental Promotional Committee
and their sustained service for more than 25 years without
any indication of the temporary nature of their roles being
reaffirmed or the duration of such temporary engagement
being specified, merits a reconsideration of their
employment status.
6. The application of the judgment in Umadevi by the
High Court does not fit squarely with the facts at hand,
given the specific circumstances under which the appellants
were employed and have continued their service. The
reliance on procedural formalities at the outset cannot be
14 "Tribunal" hereinafter
15 (2006) 4 SCC 1
used to perpetually deny substantive rights that have
accrued over a considerable period through continuous
service. Their promotion was based on a specific
notification for vacancies and a subsequent circular,
followed by a selection process involving written tests and
interviews, which distinguishes their case from the
appointments through back door entry as discussed
in Umadevi.
7. The judgment in Umadevi also distinguished
between "irregular" and "illegal" appointments
underscoring the importance of considering certain
appointments even if were not made strictly in accordance
with the prescribed Rules and Procedure, cannot be said to
have been made illegally if they had followed the
procedures of regular appointments such as conduct of
written examinations or interviews as in the present case.
Para 53 of Umadevi is reproduced hereunder:
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in State of Mysore v
S.V. Narayanappa16, R.N. Nanjundappa v T.
Thimmiah17, and B.N. Nagarajan v. State of
Karnataka18 and referred to in para 15 above, of
duly qualified persons in duly sanctioned vacant
posts might have been made and the employees
have continued to work for ten years or more but
without the intervention of orders of the courts or of
tribunals. The question of regularisation 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 regularise 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 the 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
16 AIR 1967 SC 1071
17 (1972) 1 SCC 409
18 (1979) 4 SCC 507
months from this date. We also clarify that
regularisation, if any already made, but not sub
judice, need not be reopened based on this
judgment, but there should be no further bypassing
of the constitutional requirement and regularising or
making permanent, those not duly appointed as per
the constitutional scheme."
(emphasis in original)
8. In light of the reasons recorded above, this Court
finds merit in the appellants' arguments and holds that their
service conditions, as evolved over time, warrant a
reclassification from temporary to regular status. The
failure to recognise the substantive nature of their roles and
their continuous service akin to permanent employees runs
counter to the principles of equity, fairness, and the intent
behind employment regulations."
3.3 The takeaway
The following propositions emerge from this decision:
(i) What matters is the "essence of employment".
(ii) The rights flowing therefrom cannot be determined by the
initial terms of appointment, where the actual course of
employment has evolved significantly over time.
(iii) In assessing the rights of the employees, in such cases, the
relevant considerations would be
(a) continuous service of the employees in the
capacities of regular employees,
(b) performance of duties by such employees which are
indistinguishable from those performed by holders of
permanent posts and
(c) selection of the employees by a process which
mirrors regular recruitment.
(iv) The substantive rights of the employees, which have
evolved over a period of time, cannot be perpetually denied by
relying on non-compliance with procedural formalities at the
commencement of employment.
(v) The substantive rights of such employees accrue over a
considerable period through continuous service.
(vi) Even if appointments in such cases were not made strictly
in accordance with the prescribed rules and procedures, they could
not be treated as illegal if they had followed the procedure of
regular employment such as conduct of written examinations and
interviews.
3.4 Following the above reasoning, the Supreme Court held
that the appellants before it were entitled to regular status and that
failure to regularize them would run counter to the principles of
equity and fairness. The respondents before the Supreme Court
were, therefore, directed to regularize the appellants within three
months.
4. Jaggo v Union of India
4.1 The appellants in Jaggo were safaiwalas and khallasis,
engaged by the Central Water Commission19 on part-time ad hoc
terms in 1993, 1998 and 1999 for cleaning and maintaining offices
of the CWC and for performing duties of gardening, dusting and
ancillary maintenance. They were, therefore, performing essential
housekeeping work necessary for keeping the offices of the CWC
functioning. The appellants approached the Tribunal seeking
regularisation. The Tribunal dismissed their OA, on the ground that
they had not been engaged against regular vacancies and did not
have, to their credit, sufficient full-time service of 240 days per
year to entitle them to regularization. Following the judgment of
the Tribunal, the services of the appellants were terminated on 27
October 2018. The appellants, therefore, approached the High
Court seeking reinstatement and regularization. The High Court
also dismissed the writ petition, observing that they
(i) were doing part-time work,
(ii) had not been appointed against sanctioned posts,
(iii) did not have, to their credit, sufficient full-time service
needed for regularization and
(iv) did not possess the minimum educational qualifications for
regular appointment.
The appellants challenged the decision of the High Court by way of
SLP to the Supreme Court.
4.2 The following passages from the judgment of the Supreme
Court set out its ratio decidendi:
"15. Furthermore, the respondents' conduct in issuing
tenders for outsourcing the same tasks during the pendency
of judicial proceedings, despite a stay order from the
19 "CWC" hereinafter
Tribunal directing maintenance of status quo, reveals lack
of bona fide intentions. Such actions not only contravened
judicial directives but also underscored the respondents'
unwillingness to acknowledge the appellants' rightful
claims to regularization.
16. The appellants' consistent performance over their
long tenures further solidifies their claim for
regularization. At no point during their engagement did the
respondents raise any issues regarding their competence or
performance. On the contrary, their services were extended
repeatedly over the years, and their remuneration, though
minimal, was incrementally increased which was an
implicit acknowledgment of their satisfactory performance.
The respondents' belated plea of alleged unsatisfactory
service appears to be an afterthought and lacks credibility.
17. As for the argument relating to educational
qualifications, we find it untenable in the present context.
The nature of duties the appellants performed--cleaning,
sweeping, dusting, and gardening--does not inherently
mandate formal educational prerequisites. It would be
unjust to rely on educational criteria that were never
central to their engagement or the performance of their
duties for decades. Moreover, the respondents themselves
have, by their conduct, shown that such criteria were not
strictly enforced in other cases of regularization. The
appellants' long-standing satisfactory performance itself
attests to their capability to discharge these functions,
making rigid insistence on formal educational requirements
an unreasonable hurdle.
*****
19. It is evident from the foregoing that the appellants'
roles were not only essential but also indistinguishable
from those of regular employees. Their sustained
contributions over extended periods, coupled with absence
of any adverse record, warrant equitable treatment and
regularization of their services. Denial of this benefit,
followed by their arbitrary termination, amounts to manifest
injustice and must be rectified.
20. It is well established that the decision in Uma
Devi (supra) does not intend to penalize employees who
have rendered long years of service fulfilling ongoing and
necessary functions of the State or its instrumentalities. The
said judgment sought to prevent backdoor entries and
illegal appointments that circumvent constitutional
requirements. However, where appointments were not
illegal but possibly "irregular," and where employees had
served continuously against the backdrop of sanctioned
functions for a considerable period, the need for a fair and
humane resolution becomes paramount. Prolonged,
continuous, and unblemished service performing tasks
inherently required on a regular basis can, over the time,
transform what was initially ad-hoc or temporary into a
scenario demanding fair regularization. In a recent
judgment of this Court in Vinod Kumar v Union of India,
it was held that held that procedural formalities cannot be
used to deny regularization of service to an employee
whose appointment was termed "temporary" but has
performed the same duties as performed by the regular
employee over a considerable period in the capacity of the
regular employee.
*****
21. The High Court placed undue emphasis on the
initial label of the appellants' engagements and the
outsourcing decision taken after their dismissal. Courts
must look beyond the surface labels and consider the
realities of employment: continuous, long-term service,
indispensable duties, and absence of any mala fide or
illegalities in their appointments. In that light, refusing
regularization simply because their original terms did not
explicitly state so, or because an outsourcing policy was
belatedly introduced, would be contrary to principles of
fairness and equity.
*****
25. It is a disconcerting reality that temporary
employees, particularly in government institutions, often
face multifaceted forms of exploitation. While the
foundational purpose of temporary contracts may have been
to address short-term or seasonal needs, they have
increasingly become a mechanism to evade long-term
obligations owed to employees. These practices manifest in
several ways:
Misuse of "Temporary" Labels: Employees
engaged for work that is essential, recurring, and integral to
the functioning of an institution are often labeled as
"temporary" or "contractual," even when their roles mirror
those of regular employees. Such misclassification deprives
workers of the dignity, security, and benefits that regular
employees are entitled to, despite performing identical
tasks.
Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as seen in the
present case. This practice undermines the principles of
natural justice and subjects workers to a state of constant
insecurity, regardless of the quality or duration of their
service.
Lack of Career Progression: Temporary
employees often find themselves excluded from
opportunities for skill development, promotions, or
incremental pay raises. They remain stagnant in their roles,
creating a systemic disparity between them and their
regular counterparts, despite their contributions being
equally significant.
Using Outsourcing as a Shield: Institutions
increasingly resort to outsourcing roles performed by
temporary employees, effectively replacing one set of
exploited workers with another. This practice not only
perpetuates exploitation but also demonstrates a deliberate
effort to bypass the obligation to offer regular employment.
Denial of Basic Rights and Benefits: Temporary
employees are often denied fundamental benefits such as
pension, provident fund, health insurance, and paid leave,
even when their tenure spans decades. This lack of social
security subjects them and their families to undue hardship,
especially in cases of illness, retirement, or unforeseen
circumstances.
26. While the judgment in Uma Devi (supra) sought to
curtail the practice of backdoor entries and ensure
appointments adhered to constitutional principles, it is
regrettable that its principles are often misinterpreted or
misapplied to deny legitimate claims of long-serving
employees. This judgment aimed to distinguish between
"illegal" and "irregular" appointments. It categorically held
that employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be considered
for regularization as a one-time measure. However, the
laudable intent of the judgment is being subverted when
institutions rely on its dicta to indiscriminately reject the
claims of employees, even in cases where their
appointments are not illegal, but merely lack adherence to
procedural formalities. Government departments often cite
the judgment in Uma Devi (supra) to argue that no vested
right to regularization exists for temporary employees,
overlooking the judgment's explicit acknowledgment of
cases where regularization is appropriate. This selective
application distorts the judgment's spirit and purpose,
effectively weaponizing it against employees who have
rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is
imperative for government departments to lead by example
in providing fair and stable employment. Engaging workers
on a temporary basis for extended periods, especially when
their roles are integral to the organization's functioning,
not only contravenes international labour standards but
also exposes the organization to legal challenges and
undermines employee morale. By ensuring fair employment
practices, government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to
embody. This approach aligns with international standards
and sets a positive precedent for the private sector to
follow, thereby contributing to the overall betterment of
labour practices in the country.
(Italics supplied)
4.3 The takeaway
Thus, from the above passages, the propositions laid down by the
Supreme Court, and the reasoning of the Supreme Court in
allowing the appellants' appeals may be set out thus:
(i) Long standing and uninterrupted service of the appellants
could not be brushed aside by labeling their initial appointment as
part-time or contractual.
(ii) The essence of the appellants' employment had to be seen
in the light of
(a) their sustained contribution,
(b) the integral nature of their work, and
(c) the fact that their entry was not through any illegal or
surreptitious route.
(iii) The appellants were holding essential and indispensable
functions related to the basic operational functionality of the CWC.
(iv) The appellants had rendered continuous and uninterrupted
service for 10-20 years. Their re-engagement was not sporadic or
temporary in nature. They, therefore, were performing regular and
recurrent service, akin to the responsibilities associated with the
sanctioned posts. That the appellants' services were indispensable
was also manifest from the fact that the respondent did not engage
any other personnel to perform the tasks being performed by the
appellants.
(v) In such circumstances, the respondent could not be
permitted to contend that the posts held by the appellants were not
regular, as the work performed by them was perennial and essential
to the functioning of the CWC offices.
(vi) Recurrent nature of the duties performed by the appellants
necessitated their classification as regular posts, irrespective of
how their initial engagements labeled.
(vii) The subsequent outsourcing by the respondent of the
services being performed by the appellants to private agencies
also demonstrated the inherent need for the said services.
(viii) In such circumstances, the abrupt termination of the
appellants without notice was arbitrary and violative of the
principles of natural justice.
(ix) Contractual employees were also entitled to a hearing
before any adverse action was taken against them, particularly
where their service records were unblemished.
(x) The consistent performance of the appellants over a long
period solidified their claim for regularisation. Their services were
extended continuously.
(xi) In such circumstances, the respondent's plea that the
appellants did not possess the requisite educational qualifications
was unsustainable. Moreover, the appellants were performing
Group-D work, for which educational qualifications were not
central.
(xii) Besides, persons with less service than the appellants had
been regularised, thereby also resulting in discrimination.
(xiii) The decision in Uma Devi was never intended to penalize
employees with long years of service, performing necessary
functions of the organization. It was intended to prevent backdoor
entries and illegal appointments.
(xiv) Prolonged, continuous and unblemished service of the
employees, performing essential tasks, transformed the initially
temporary employment into a scenario demanding fair
regularisation.
(xv) As was held in Vinod Kumar, procedural formalities could
not, in such circumstances, be used to deny regularisation of
service to employees whose employment was termed "temporary",
but who performed the same duties as were performed by regular
employees, over an extended period.
(xvi) In such circumstances, the Court was required to look
beyond the surface level of the appointment and to consider
(a) the realities of the employment,
(b) continuous and long-term service of the employee,
(c) the indispensable nature of their duties and
(d) the absence of mala fides or illegalities in their initial
appointment.
(xvii) In such circumstances, refusing regularisation to the
employees because their original terms of employment did not
envisage regularisation, or because of belated outsourcing of same
work, was contrary to the principles of fairness and equality.
(xviii) Uma Devi was often misinterpreted and misapplied to deny
legitimate claims to regularisation, of long-serving employees.
(xix) In the case before the Supreme Court, claims of employees
had been rejected even where their appointments were not illegal,
but merely lacked adherence to procedural formalities.
(xx) Uma Devi had, thus, been weaponized against employees
who had rendered indispensable service over decades.
4.4 Following the above reasoning, the Supreme Court quashed
the termination order of the appellant before it, directed that they
be reinstated and regularized forthwith, albeit back wages, but with
continuity of service.
5. Shripal v Nagar Nigam, Ghaziabad
5.1 This was an appeal which emanated out of proceedings
under the Industrial Disputes Act, 1947.
5.2 The workmen before the Supreme Court had been engaged
as Gardeners in the Horticulture Department of the Ghaziabad
Nagar Nigam20 since 1998 and 1999. They continuously
discharged horticultural and maintenance duties, though no formal
20 "GNN", hereinafter
appointment letters were ever issued to them. In 2004, they raised
an industrial dispute seeking regularisation. While the proceedings
were pending, several of the workmen were terminated orally in
mid July 2005. The State Government referred the disputes relating
to regularisation of the workmen, as well as legality of their
termination, to the Ghaziabad Labour Court for adjudication. The
Labour Court passed contradictory orders, holding the termination
illegal in some cases and holding that the workmen had no right to
regularisation in others.
5.3 Cross writ petitions were filed by the GNN and the
workmen before the High Court of Allahabad. The High Court,
holding that several disputed issues existed, partially modified the
award of the Labour Court, directing re-engagement of the
workmen on daily wages with pay equivalent to minimum of the
regular pay scale of Gardeners, as well as consideration of their
regularisation in future.
5.4 The judgment of the High Court was also challenged before
the Supreme Court both by GNN and the workmen.
5.5 Before the Supreme Court, the workmen contended that
they had continuously discharged horticultural and maintenance
duties under direct supervision and control of the GNN and that
their longstanding and continuous employment entitled them to
regularisation. It was also asserted that their termination was
illegal. As against this, the GNN contended that
(i) no proper selection process had been followed to appoint
the workmen,
(ii) their appointment was not against sanctioned posts,
(iii) all horticulture work was carried out through independent
contractors appointed via tender,
(iv) in view of the decision in Uma Devi, no daily wager could
claim a right to permanent absorption without adherence to
constitutional requirements and in the absence of duly sanctioned
vacancies, and
(v) the workmen had not demonstrated that they had completed
240 days of continuous work in any calendar year.
5.6 The Supreme Court held as under:
"9. On a plain reading of this section, we can deduce
that any unilateral alteration in service conditions,
including termination, is impermissible during the
pendency of such proceedings unless prior approval is
obtained from the appropriate authority. The record in the
present case does not indicate that the Respondent
Employer ever sought or was granted the requisite
approval. Prima facie, therefore, this conduct reflects a
deliberate attempt to circumvent the lawful claims of the
workmen, particularly when their dispute over
regularization and wages remained sub judice.
10. The Respondent Employer consistently labelled the
Appellant Workmen as casual employees (or workers
engaged through an unnamed contractor), yet there is no
material proof of adherence to Section 6N of the U.P.
Industrial Disputes Act, 1947, which mandates a proper
notice or wages in lieu thereof as well as retrenchment
compensation. In this context, whether an individual is
classified as regular or temporary is irrelevant as
retrenchment obligations under the Act must be met in all
cases attracting Section 6N. Any termination thus effected
without statutory safeguards cannot be undertaken lightly.
11. Furthermore, the Employer's stance that there was
never a direct employer-employee relationship is wholly
unsubstantiated. If, in fact, the Appellant Workmen had
been engaged solely through a contractor, the Employer
would have necessarily maintained some form of contract
documentation, license copies, or invoices substantiating
the contractor's role in hiring, paying, and supervising these
workers. However, no such documents have been placed on
record. Additionally, the Employer has failed to establish
that wages were ever paid by any entity other than its own
Horticulture Department, which strongly indicates direct
control and supervision over the Workmen's day-to-day
tasks is a hallmark of an employer-employee relationship.
Had there been a legitimate third-party contractor, one
would expect to see details such as tender notices, contract
agreements, attendance records maintained by the
contractor, or testimony from the contractor's
representatives. The absence of these crucial elements
undermines the Employer's claim of outsourced
engagement. In fact, it appears that the Workmen were
reporting directly to the Horticulture Department officials,
receiving instructions on their duties, and drawing wages
issued under the Municipality's authority. This pattern of
direct oversight and wage disbursement substantially
negates the narrative that they were "contractor's
personnel." Consequently, the discontinuation of their
services carried out without compliance with statutory
obligations pertaining to notice, retrenchment
compensation, or approval under Section 6E of the U.P.
Industrial Disputes Act, stands on precarious ground. The
very foundation of the Employer's defense (i.e., lack of an
employer-employee relationship) is not supported by any
credible or contemporaneous evidence.
12. The evidence, including documentary material and
undisputed facts, reveals that the Appellant Workmen
performed duties integral to the Respondent Employer's
municipal functions specifically the upkeep of parks,
horticultural tasks, and city beautification efforts. Such
work is evidently perennial rather than sporadic or project-
based. Reliance on a general "ban on fresh recruitment"
cannot be used to deny labor protections to long-serving
workmen. On the contrary, the acknowledged shortage of
Gardeners in the Ghaziabad Nagar Nigam reinforces the
notion that these positions are essential and ongoing, not
intermittent.
13. By requiring the same tasks (planting, pruning,
general upkeep) from the Appellant Workmen as from
regular Gardeners but still compensating them inadequately
and inconsistently the Respondent Employer has effectively
engaged in an unfair labour practice. The principle of
"equal pay for equal work," repeatedly emphasized by this
Court, cannot be casually disregarded when workers have
served for extended periods in roles resembling those of
permanent employees. Long-standing assignments under
the Employer's direct supervision belie any notion that
these were mere short-term casual engagements.
14. The Respondent Employer places reliance
on Umadevi to contend that daily-wage or temporary
employees cannot claim permanent absorption in the
absence of statutory rules providing such absorption.
However, as frequently reiterated, Uma Devi itself
distinguishes between appointments that are "illegal" and
those that are "irregular," the latter being eligible for
regularization if they meet certain conditions. More
importantly, Uma Devi cannot serve as a shield to justify
exploitative engagements persisting for years without the
Employer undertaking legitimate recruitment. Given the
record which shows no true contractor-based arrangement
and a consistent need for permanent horticultural staff the
alleged asserted ban on fresh recruitment, though real,
cannot justify indefinite daily-wage status or continued
unfair practices.
15. It is manifest that the Appellant Workmen
continuously rendered their services over several years,
sometimes spanning more than a decade. Even if certain
muster rolls were not produced in full, the Employer's
failure to furnish such records--despite directions to do
so--allows an adverse inference under well-established
labour jurisprudence. Indian labour law strongly disfavors
perpetual daily-wage or contractual engagements in
circumstances where the work is permanent in nature.
Morally and legally, workers who fulfil ongoing municipal
requirements year after year cannot be dismissed summarily
as dispensable, particularly in the absence of a genuine
contractor agreement.......
*****
17. In light of these considerations, the Employer's
discontinuation of the Appellant Workmen stands in
violation of the most basic labour law principles. Once it is
established that their services were terminated without
adhering to Sections 6E and 6N of the U.P. Industrial
Disputes Act, 1947, and that they were engaged in
essential, perennial duties, these workers cannot be
relegated to perpetual uncertainty. While concerns of
municipal budget and compliance with recruitment rules
merit consideration, such concerns do not absolve the
Employer of statutory obligations or negate equitable
entitlements. Indeed, bureaucratic limitations cannot trump
the legitimate rights of workmen who have served
continuously in de facto regular roles for an extended
period."
(emphasis supplied)
5.7 The Supreme Court also followed its earlier decision in
Jaggo.
5.8 Following the above discussion, the Supreme Court
directed reinstatement of the workmen and further directed the
GNN to initiate a fair and transparent process for regularizing them
within six months from the date of reinstatement, considering the
fact that they have performed perennial municipal duties akin to
permanent posts.
5.9 The takeaway
From this decision, the following propositions emerge:
(i) Where persons have been appointed and continuously
worked on their posts uninterruptedly for long periods of time
KUMAR
Signing Date:20.04.2026
12:39:26
without any complaint, it was unconstitutional to terminate them or
not to regularize their services, especially where the work
undertaken by them was perennial and essential in nature.
(ii) In such cases, the plea that no proper selection process had
been followed or that the workmen had not been appointed against
any sanctioned posts, was not available to the establishment.
(iii) Uma Devi did not militate against directing regularisation
of the services of the workmen in such a case.
(iv) Nor were the workmen in such a case required to establish
that they had completed 240 days of continuous service in any
year.
(v) It was also not open to the establishment to contend, in such
cases, that there was any ban on recruitment.
6. Dharam Singh v State of UP
6.1 In Dharam Singh, the Supreme Court carried the principles
laid down in Vinod Kumar, Jaggo and Shripal a notch further.
6.2 Dharam Singh opened with the following exordium:
"When public institutions depend, day after day, on the
same hands to perform permanent tasks, equity demands
that those tasks are placed on sanctioned posts, and those
workers are treated with fairness and dignity. The
controversy before us is not about rewarding irregular
employment. It is about whether years of ad hoc
engagement, defended by shifting excuses and pleas of
financial strain, can be used to deny the rights of those who
have kept public institutions running. We resolve it by
insisting that public employment should be organised with
fairness, reasoned decision making, and respect for the
dignity of work."
6.3 The workmen in Dharam Singh had been employed as
peon/ attendant and driver, on daily wage basis in the UP Higher
Education Services Commission21.
6.4 On 24 October 1991, the UPHESC resolved to create 14
Class 3 and Class 4 posts and sought sanction from the State
Government. This request was reiterated by the UPHESC on 16
October 1999. The request was rejected by the State Government
21 "UPHESC", hereinafter
on 11 November 1999 citing financial constraints.
6.5 The workmen thereupon approached the High Court of
Allahabad by way of a writ petition, seeking a mandamus to the
State to sanction/create 14 posts in Class 3/Class 4 for the
UPHESC in terms of the resolution of the UPHESC and to
regularize the workmen against the said posts.
6.6 This petition was disposed of, by the High Court on 24
April 2002 with a direction to the UPHESC to send a fresh
recommendation for sanction of appropriate Group C/Group D
posts and a direction to the State to take a fresh decision thereon. In
the meanwhile, it was directed that the appellants be paid the
minimum of the applicable pay scale.
6.7 Pursuant thereto, the UPHESC sent a fresh
recommendation on 25 November 2003, which was again declined
by the State, citing financial grounds and ban on creation of new
posts.
6.8 This decision was again carried by the workmen to the
High Court which dismissed the writ petition on 19 May 2009 on
the ground that there were no rules for regularization in the
UPHESC and that no vacancies existed in which the workmen
could be accommodated and the prayer for regularization was, in
any case, impermissible in view of the law laid down in Uma Devi.
This decision was affirmed by the Division Bench of the High
Court in appeal observing that the workmen were daily wagers and
there was no provision in the Rules of the UPHESC envisaging
their regularization and no vacancy existed in which they could be
accommodated.
6.9 In these circumstances, the Supreme Court identified the
issue that arose before it for consideration thus, in para 6:
"6. The question before us is whether the High Court
erred in failing to adjudicate the appellants' principal
challenge to the State's refusals to sanction posts and
treating the matter as a mere plea for regularization, and, if
so, given the appellants' long and undisputed service, what
appropriate relief ought to follow from this Court."
6.10 The Supreme Court held the approach of the High Court to
be unacceptable. The relevant paragraphs from the decision of the
Supreme Court may be reproduced hereunder:
"8. The State's refusal of 11.11.1999 cites "financial
constraints" and the subsequent decision of 25.11.2003
(taken after the High Court's direction to reconsider)
adverts to financial crisis and a ban on creation of posts.
Neither decision engages with relevant considerations
placed on record, namely, the Commission's 1991
resolution and repeated proposals, the acknowledged
administrative exigencies of a recruiting body handling
large cycles, the continuous deployment of these very hands
for years, and the existence of attendant work that is
primarily perennial rather than sporadic. While creation of
posts is primarily an executive function, the refusal to
sanction posts cannot be immune from judicial scrutiny for
arbitrariness. We believe that a non-speaking rejection on a
generic plea of "financial constraints", ignoring functional
necessity and the employer's own longstanding reliance on
daily wagers to discharge regular duties, does not meet the
standard of reasonableness expected of a model public
institution.
9. Moreover, it is undisputed that the nature of work
performed by the appellants, i.e. sorting and scrutiny of
applications, dispatch and office support, and driving, has
been continuous and integral to the Commission's
functioning since their engagement between 1989 and
1992. The Commission itself moved for sanction of fourteen
posts and furnished a list of fourteen daily wagers
including the appellants. That consistent internal demand,
coupled with uninterrupted utilisation of the appellants'
labour on regular office hours, fortifies the conclusion that
the duties are perennial. To continue extracting such work
for decades while pleading want of sanctioned strength is a
position that cannot be sustained.
10. It must be noted that the premise of "no vacancy" is,
in any event, contradicted by the evidence on record. An
RTI response of 22.01.2010 received from the office of
Respondent No. 2 indicated existence of Class-IV
vacancies. Furthermore, I.A. No. 109487 of 2020 filed
before this Court by the appellants specifically pointed to at
least five vacant Class-IV/Guard posts and one vacant
Driver post within the establishment. That application also
set out the names of similarly situated daily wagers who
were regularised earlier within the same Commission. No
rebuttal was filed to the I.A. The unrebutted assertion of
vacancies and the comparison with those who received
regularisation materially undermine the High Court's
conclusion that no vacancy existed and reveal unequal
treatment vis-à-vis persons similarly placed. Selective
regularisation in the same establishment, while continuing
the appellants on daily wages despite comparable tenure
and duties with those regularized, is a clear violation of
equity.
11. Furthermore, it must be clarified that the reliance
placed by the High Court on Umadevi (supra) to non-suit
the appellants is misplaced. Unlike Umadevi (supra), the
challenge before us is not an invitation to bypass the
constitutional scheme of public employment. It is a
challenge to the State's arbitrary refusals to sanction posts
despite the employer's own acknowledgement of need and
decades of continuous reliance on the very workforce. On
the other hand, Umadevi (supra) draws a distinction
between illegal appointments and irregular engagements
and does not endorse the perpetuation of precarious
employment where the work itself is permanent and the
State has failed, for years, to put its house in order. Recent
decisions of this Court in Jaggo v Union of India and
in Shripal v Nagar Nigam, Ghaziabad have emphatically
cautioned that Umadevi (supra) cannot be deployed as a
shield to justify exploitation through long-term "ad
hocism", the use of outsourcing as a proxy, or the denial of
basic parity where identical duties are exacted over
extended periods. The principles articulated therein apply
with full force to the present case.
*****
12. We also note the Commission's affidavit filed in
21.04.2025 pursuant to the order of this Court dated
27.03.2025, wherein reference has been made to a
supervening reorganisation in 2024, whereby the U.P.
Higher Education Services Commission was merged into
the U.P. Education Services Selection Commission and, by
a Government Order of 05.07.2024, certain Group-C posts
were sanctioned while Class-IV/Driver requirements were
proposed to be met through outsourcing. We must point out
however, that supervening structural change cannot
extinguish accrued claims or pending proceedings. The
successor body steps into the shoes of its predecessor
subject to liabilities and obligations arising from the prior
regime. More fundamentally, a later policy to outsource
Class-IV/Driver functions cannot retrospectively validate
earlier arbitrary refusals, nor can it be invoked to deny
consideration to workers on whose continuous services the
establishment relied for decades.
13. As we have observed in both Jaggo (supra)
and Shripal (supra), outsourcing cannot become a
convenient shield to perpetuate precariousness and to
sidestep fair engagement practices where the work is
inherently perennial. The Commission's further contention
that the appellants are not "full-time" employees but
continue only by virtue of interim orders also does not
advance their case. That interim protection was granted
precisely because of the long history of engagement and the
pendency of the challenge to the State's refusals. It neither
creates rights that did not exist nor erases entitlements that
may arise upon a proper adjudication of the legality of
those refusals.
14. The learned Single Judge of the High Court also
declined relief on the footing that the petitioners had not
specifically assailed the subsequent decision dated
25.11.2003. However, that view overlooks that the writ
petition squarely challenged the 11.11.1999 refusal as the
High Court itself directed a fresh decision during pendency,
and the later rejection was placed on record by the
respondents. In such circumstances, we believe that the
High Court was obliged to examine the legality of the
State's stance in refusing sanction, whether in 1999 or upon
reconsideration in 2003, rather than dispose of the matter
on a mere technicality. The Division Bench of the High
Court compounded the error by affirming the dismissal
without engaging with the principal challenge or the
intervening material. The approach of both the Courts, in
reducing the dispute to a mechanical enquiry about "rules"
and "vacancy" while ignoring the core question of
arbitrariness in the State's refusal to sanction posts despite
perennial need and long service, cannot be sustained.
15. Therefore, in view of the foregoing observations,
the impugned order of the High Court cannot be sustained.
The State's refusals dated 11.11.1999 and 25.11.2003, in so
far as they concern the Commission's proposals for
sanction/creation of Class-III/Class-IV posts to address
perennial ministerial/attendant work, are held unsustainable
and stand quashed.
16. The appeal must, accordingly, be allowed.
17. Before concluding, we think it necessary to recall
that the State (here referring to both the Union and the State
governments) is not a mere market participant but a
constitutional employer. It cannot balance budgets on the
backs of those who perform the most basic and recurring
public functions. Where work recurs day after day and year
after year, the establishment must reflect that reality in its
sanctioned strength and engagement practices. The long-
term extraction of regular labour under temporary labels
corrodes confidence in public administration and offends
the promise of equal protection. Financial stringency
certainly has a place in public policy, but it is not a
talisman that overrides fairness, reason and the duty to
organise work on lawful lines."
6.11 Following the above discussion, the Supreme Court issued
the following directions in para 19 of the report:
"19(i). Regularization and creation of Supernumerary
posts: All appellants shall stand regularized with effect
from 24.04.2002, the date on which the High Court directed
a fresh recommendation by the Commission and a fresh
decision by the State on sanctioning posts for the
appellants. For this purpose, the State and the successor
establishment (U.P. Education Services Selection
Commission) shall create supernumerary posts in the
corresponding cadres, Class-III (Driver or equivalent) and
Class-IV (Peon/Attendant/Guard or equivalent) without any
caveats or preconditions. On regularization, each appellant
shall be placed at not less than the minimum of the regular
pay-scale for the post, with protection of last-drawn wages
if higher and the appellants shall be entitled to the
subsequent increments in the pay scale as per the pay
grade. For seniority and promotion, service shall count
from the date of regularization as given above.
ii. Financial consequences and arrears: Each
appellant shall be paid as arrears the full difference between
(a) the pay and admissible allowances at the minimum of
the regular pay-level for the post from time to time, and (b)
the amounts actually paid, for the period from 24.04.2002
until the date of regularization/retirement/death, as the case
may be. Amounts already paid under previous interim
directions shall be so adjusted. The net arrears shall be
released within three months and if in default, the unpaid
amount shall carry compound interest at 6% per annum
from the date of default until payment.
iii. Retired appellants: Any appellant who has
already retired shall be granted regularization with effect
from 24.04.2002 until the date of superannuation for pay
fixation, arrears under clause (ii), and recalculation of
pension, gratuity and other terminal dues. The revised
pension and terminal dues shall be paid within three
months of this Judgment.
iv. Deceased appellants: In the case of Appellant No.
5 and any other appellant who has died during pendency,
his/her legal representatives on record shall be paid the
arrears under clause (ii) up to the date of death, together
with all terminal/retiral dues recalculated consistently with
clause (i), within three months of this Judgment.
v. Compliance affidavit: The Principal Secretary,
Higher Education Department, Government of Uttar
Pradesh, or the Secretary of the U.P. Education Services
Selection Commission or the prevalent competent authority,
shall file an affidavit of compliance before this Court within
four months of this Judgment."
6.12 The justification for issuing the above directions, which
were unquestionably drastic in nature was thus provided in para 20
of the judgment:
"20. We have framed these directions comprehensively
because, case after case, orders of this Court in such matters
have been met with fresh technicalities, rolling
"reconsiderations," and administrative drift which further
prolongs the insecurity for those who have already laboured
for years on daily wages. Therefore, we have learned that
Justice in such cases cannot rest on simpliciter directions,
but it demands imposition of clear duties, fixed timelines,
and verifiable compliance. As a constitutional employer,
the State is held to a higher standard and therefore it must
organise its perennial workers on a sanctioned footing,
create a budget for lawful engagement, and implement
judicial directions in letter and spirit. Delay to follow these
obligations is not mere negligence but rather it is a
conscious method of denial that erodes livelihoods and
dignity for these workers. The operative scheme we have
set here comprising of creation of supernumerary posts, full
regularization, subsequent financial benefits, and a sworn
affidavit of compliance, is therefore a pathway designed to
convert rights into outcomes and to reaffirm that fairness in
engagement and transparency in administration are not
matters of grace, but obligations under
Articles 14, 16 and 21 of the Constitution of India."
6.12 The Takeaway
6.12.1 Besides reiterating the principles already contained in its
earlier decisions in Vinod Kumar, Jaggo and Shripal, the
Supreme Court in Dharam Singh went a step further and in fact
granted the relief, sought by the appellants in that case, for a
direction to the Executive Authorities to sanction posts and
regularize the appellants against the said posts. This is a radical
development in the law as, normally, the power to sanction posts
vests exclusively in the Executive, and no mandamus can issue to
an Executive Authority to create posts. The significance of this
direction is underscored by the fact that, in Union of India v Ilmo
Devi22, one of the judgments which, in another similar case, was
cited by us as contrary to the principles enunciated in Jaggo, the
Supreme Court held against the employees precisely on the ground
that the Court could not direct creation of posts. By endorsing the
prayers of the appellants in Dharam Singh seeking issuance of
such a direction, therefore, the Supreme Court has clearly heralded
development of the law beyond Ilmo Devi.
6.12.2 The Supreme Court has also, in fact, noticed this fact in
para 8 of the judgment. In the said paragraph, the Supreme Court
observed that "while creation of posts is primarily an executive
function, the refusal to sanction posts cannot be immune from
judicial scrutiny for arbitrariness". Thus, in a case in which the
appellants had been working since long, after being appointed on
contractual basis, with their contracts being periodically extended,
and when they were rendering essential functions, the Supreme
Court went to the extent of directing creation of posts to
accommodate and regularize the appellants."
19. From the decisions in Vinod Kumar, Jaggo, Shripal and
Dharam Singh, the position which emerges is that a right to
regularization arises ipso facto in favour of the employees who were
initially employed after open selection against sanctioned vacancies
and continued on the posts for long periods of time. These three facts
i.e., (i) appointment by open selection, (ii) appointment against
sanctioned vacancies, and (iii) long and continued discharge of duties
on the posts to which they were appointed, by themselves entitled
them to regularization. In fact, in Jaggo, the Supreme Court even went
22 (2021) 20 SCC 290
to the extent of holding that it was not open to the respondents to
contend that the appointments were not made against sanctioned
vacancies.
20. The only other additional consideration which emerges from the
later decisions on the issue is the duties discharged by the employees
concerned. If the appointment is against posts which are transient in
nature, the entitlement to regularization would be of a somewhat lower
degree. If, however, the employees discharge duties which are basic
and essential to the functioning of the organization, their right to
regularization stands sanctified.
21. In such circumstances, there can be no question of the
employees being required to await framing of RRs or any other such
eventualities in order to be regularized. Their right to regularization
flows as a consequence of long and unblemished service of the
establishment consequent on appointment by open selection against
sanctioned vacancies, for work which is essential to the functioning of
the organization. It is not open to the establishment after extracting
work from such persons for protracted periods of time to contest their
claim to regularization on the ground that RRs were to be framed or
that RRs which had been framed after the appointment of the
respondents, did not qualify them for regularization.
22. We are not inclined to agree with Ms. Dave's contention that
we should await the outcome of the correspondences between the
NDMC and the UPSC. In para 4(v) of the writ petition, the NDMC
has specifically averred that the UPSC rejected the proposal for
regularization mooted by the NDMC consequent on an earlier decision
of the Tribunal rendered in OA 3597/2017 on the ground that the
appointment of the employees was not in accordance with the RRs and
that, therefore, their services could not be regularized merely because
they had been serving the Establishment for a long period of time.
Reliance was placed by the UPSC for this opinion, on the judgment of
the Constitution Bench of the Supreme Court in State of Karnataka v
Uma Devi23. The view adopted by the UPSC is in the teeth of the law
declared in Jaggo and the decisions which followed it and reiterated
the same position. Uma Devi has been considered in all these
decisions and the Supreme Court has consistently held that Uma Devi,
which was intended to be a beneficial decision, aimed at curbing back
door appointment, has been weaponized and used as a tool to continue
persons on contractual and ad hoc basis for years at a stretch without
regularizing their services. Such a practice not only amounts to unfair
labour practice but also violates Article 21 of the Constitution of
India. As the UPSC has, in a similar case, refused to recommend
regularization of the employees concerned, we are of the opinion that
no useful purpose would be served by awaiting the reply of the UPSC
even if NDMC has been communicating with the UPSC in that regard.
23. Besides, once the right of the respondents to regularization
stands crystalized by, as on date, seven judgments of the Supreme
Court, all of which are consistent with each other, it would be a
travesty of justice and grossly unfair to the respondents to allow their
cases to continue to remain in suspended animation.
(2006) 4 SCC 1
24. It is true that in some earlier orders, we had issued notice
without disposing of the matters, keeping in mind the fact that against
earlier decisions passed by us, appeals had been preferred before the
Supreme Court which had issued notice thereon and, in some cases,
directed, as an interim measure, that the employees before it in those
cases be not removed from the posts which were held by them. In
view of the fact that the issue was sub judice before the Supreme
Court in some cases, we had refrained from passing any final
decisions in the writ petitions before us.
25. Ms. Dave predictably draws our attention to this fact.
26. After that, however, the same position had been reiterated by
the Supreme Court twice, firstly, in Bhola Nath and thereafter in
Pawan Kumar, rendered by two different Division Benches of the
Supreme Court. Pawan Sharma expressly reproduces and relies on
Jaggo.
27. Once the Supreme Court has made its view thus clear, we, as a
Court hierarchically lower on the judicial ladder, are bound to decide
the lis before us in terms of the law declared by the Supreme Court.
28. Besides in view of the decisions in Jaggo, Shripal, Dharam
Singh, Bhola Nath, Vinod Kumar and Pawan Kumar and the
judgment of this Court in Pawan Sharma, we find no error
whatsoever in the view adopted by the Tribunal.
29. However, we clarify that the respondents would be entitled to
exactly the same benefits which were granted to the petitioners in
Pawan Sharma, i.e., to be regularised prospectively with however, the
benefit of fixation of pay, seniority and continuity of service from the
date of initial appointment but without any back wages.
30. Para 9 of the impugned judgment stands modified in the above
terms.
31. Subject to this limited clarification, the present appeals are
dismissed in limine.
32. Let implementation of the impugned judgment be ensured
within 12 weeks from today.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
APRIL 13, 2026/aky/yg
