Karnataka High Court
Smt K Shobha W/O D Kenchappa vs The Princiapl Secretary on 21 February, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2025:KHC-D:3605
WP No. 103618 of 2023
C/W WP No. 106372 of 2023
WP No. 106724 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 103618 OF 2023 (S-REG)
C/W. WRIT PETITION NO. 106372 OF 2023
& WRIT PETITION NO. 106724 OF 2023
IN WP.NO. 103618/2023
BETWEEN:
1. SMT SUREKHA KEERA NAIK,
AGE: 54 YEARS, OCC: JUNIOR HEALTH ASSISTANT,
R/O: C/O ANAND S. PATIL,
CCBN: 11, 2ND CROSS NEHARU NAGAR,
BELAGAVI, DIST: BELAGAVI.
2. SMT RAJASHRI SATAYYA HIREMATH,
AGE: 53 YEARS, OCC: JUNIOR HEALTH ASSISTANT,
R/O: MALLIKARJUN NAGAR MALLAPUR P.G,
VTC GOKAK (RURAL), TQ: GOKAK, DIST: BELAGAVI.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
...PETITIONERS
Location: High
Court of Karnataka,
(BY SRI S. B. DODDAGOUDAR, AND
Dharwad Bench,
Dharwad SRI S. G. NANDOOR, ADVOCATES)
AND:
1. THE PRINCIPAL SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
KARNATAKA VIKAS SOUDA, BENGALURU- 560001.
2. THE DIRECTOR,
HEALTH AND FAMILY WELFARE DEPARTMENT,
R/O: ANAND RAO CIRCLE,
SESHADRI ROAD, BENGALURU.
-2-
NC: 2025:KHC-D:3605
WP No. 103618 of 2023
C/W WP No. 106372 of 2023
WP No. 106724 of 2023
3. THE DEPUTY COMMISSIONER BELAGAVI,
DIST: BELGAVI- 590001.
4. THE HEALTH AND FAMILY WELFARE DEPARTMENT
BELAGAVI, DIST: BELAGAVI- 590001.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA IS PRAYING TO, A. TO
ISSUE WRIT OF CERTIORARI QUASHING THE ORDER
ENDORSEMENT DATED 15/02/2023 ISSUED BY THE
RESPONDENT NO.2 BEARING NO. KI.MA.A.S(1)369/2012-13
(ANNEXURE-A TO A1). B. TO ISSUE A WRIT OF MANDAMUS TO
THE RESPONDENT NO.1 TO CONSIDER THE PETITIONERS
REPRESENTATIONS AT ANNEXURE-F TO F1 DATED 14/12/2022
FOR THE PURPOSE OF REGULARIZATION OF PETITIONERS
SERVICES. C. THE HON'BLE COURT MAY ALSO BE PLEASED TO
PASS ANY OTHER WRIT, ORDER, DIRECTION ETC IN THE ABOVE
CASE TO SERVE THE ENDS OF JUSTICE.
IN WP.NO. 106372/2023
BETWEEN:
1. SMT SHOBHA W/O. HERMON TEGUR,
AGE: 56 YEARS, OCC: JUNIOR HEALTH ASSISTANT,
R/O: C/O. HALLIKATTI BUILDING
HANUMANTH DEVAR GUDI
ONI KAMANAKATTI DHARWAD,
DIST: DHARWAD- 580001.
2. DWARAKARANI W/O ALBART YAMA,
AGE: 52 YEARS, OCC: PRIMARY HEALTH WORKER,
R/O: PALANKAR BUILDING NEAR
ELECTRICAL OFFICE SANMATI
MARGA BRUNDAVAN LAYOUT
NEAR NTTF, DHARWAD- 580007.
3. SMT. ANITA ANANDAPPA TIMMANAL,
AGE: 51 YEARS OCC: JUNIOR HEALTH ASSISTANT,
R/O: C/O S B GUDASALAMANI,
MANGAL ONI KARWAR ROAD HUBBALLI,
-3-
NC: 2025:KHC-D:3605
WP No. 103618 of 2023
C/W WP No. 106372 of 2023
WP No. 106724 of 2023
DIST: DHARWAD- 580029.
4. SMT. PUSHPA YOHANAPPA OLAGUNDI,
AGE: 53 YEARS OCC: PRIMARY HEALTH WORKER,
R/O: C/O RAJAMMA YAHONAPPA OLAGUNDI,
B M COMPOUND HOSA ONI HUBBALLI,
DIST: DHARWAD- 580029.
5. SMT. LALITHA NIDANAPPA ADIN,
AGE: 54 YEARS, OCC: JUNIOR HEALTH ASSISTANT,
R/O: C/O S P HIREMATH PLOT NO. 19
SWARNGIRI LAYOUT NEAR
RAJIVA NAGAR, POLICE QUARTERS,
UNKAL, HUBBALLI, DIST: DHARWAD- 580030.
6. SMT. SHOBA SUNDAR AJAGARANI,
AGE: 52 YEARS, OCC: JUNIOR HEALTH ASSISTANT,
R/O: C/O SUNDAR JAN AJAGARANI
KRICHEN COLONY, 2ND CROSS GHATAKERI,
HUBBALLI, DIST: DHARWAD- 580029.
7. SMT. MERIBAI SAMSON CHANDANAVAR,
AGE: 57 YEARS, OCC: PRIMARY HEALTH WORKER,
R/O: BASSAL MISSION COMPOUND HOSA ONI
KARWAR ROAD HUBBALLI- 580029,
DIST: DHARWAD.
8. SMT. SUNITA SHRIPADAPPA HONNAYAKAR,
AGE: 54 YEARS, OCC: JUNIOR HEALTH ASSISTANT,
R/O: BASEL MISSION COMPOUND PASTER ONI
KARWAR ROAD HUBBALLI, DIST: DHARWAD-
580029.
...PETITIONERS
(BY SRI S. B. DODDAGOUDAR, AND
SRI S. G. NANDOOR, ADVOCATES)
AND:
1. THE PRINCIPAL SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT
KARNATAKA VIKAS SOUDA, BENGALURU- 560001.
-4-
NC: 2025:KHC-D:3605
WP No. 103618 of 2023
C/W WP No. 106372 of 2023
WP No. 106724 of 2023
2. THE DIRECTOR,
HEALTH AND FAMILY WELFARE DEPARTMENT
R/O: ANAND RAO CIRCLE,
SESHADRI ROAD, BENGALURU- 06.
3. THE DEPUTY COMMISSIONER,
DHARWAD, DIST: DHARWAD- 580008.
4. THE HEALTH AND FAMILY WELFARE DEPARTMENT,
DHARWAD, DIST: DHARWAD -580008.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA IS PRAYING TO A) ISSUE
A WRIT OF CERTIORARI QUASHING THE ORDER ENDORSEMENT
DATED 15-02-2023 ISSUED BY THE RESPONDENT NO.2
BEARING NO. KI.MA.A.S(1)369/2012-13 (ANNEXURE-A TO A7).
B) ISSUE A WRIT OF MANDAMUS TO THE RESPONDENT NO.1 TO
CONSIDER THE PETITIONER'S REPRESENTATIONS AT
ANNEXURE F TO F7 DATED 14-12-2022 FOR THE PURPOSE OF
REGULARIZATION OF PETITIONERS SERVICES. C) THE HON'BLE
COURT MAY ALSO BE PLEASED TO PASS ANY OTHER WRIT,
ORDER, DIRECTION ETC. IN THE ABOVE CASE TO SERVE THE
ENDS OF JUSTICE.
IN WP.NO. 106724/2023
BETWEEN:
1. SMT K. SHOBHA W/O. D. KENCHAPPA,
AGE: 51 YEARS, OCC: PRIMARY HEALTH WORKER,
R/O: 2ND CROSS SHASTRI NAGAR,
BALLARI,
NOW AT WARD NO. 35 SHIRAGUPPA ROAD,
NEAR DISH BASHAKAR HOUSE,
KURAHATTI, BALLARI, DIST: BALLARI- 583101.
2. M. B. DANAKUMARI,
AGE: 50 YEARS,OCC: PRIMARY HEALTH WORKER,
R/O: SURYA NAGAR BALLARI,
DIST: BALLARI- 583101.
...PETITIONERS
(BY SRI S. B. DODDAGOUDAR, AND
SRI S. G. NANDOOR, ADVOCATES)
-5-
NC: 2025:KHC-D:3605
WP No. 103618 of 2023
C/W WP No. 106372 of 2023
WP No. 106724 of 2023
AND:
1. THE PRINCIAPL SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT
KARNATAKA, VIKAS SOUDA, BENGALURU- 560001.
2. THE DIRECTORATE,
HEALTH AND FAMILY WELFARE DEPARTMENT,
R/O: ANAND RAO CIRCLE, SESHADRI ROAD,
BENGALURU- 560009.
3. THE DEPUTY COMMISSIONER BALLARI
DIST: BALLARI- 583101.
4. THE HEALTH AND FAMILY WELFARE DEPARTMENT
BALLARI, DIST: BALLARI- 583101.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA IS PRAYING TO, A. ISSUE
WRIT OF CERTIORARI QUASHING THE ORDER ENDORSEMENT
DATED. 15/02/2023 ISSUED BY THE RESPONDENT NO.2
BEARING NO. KI.MA.A.S(1)369/2012-13 (ANNEXURE-A TO A1).
B. TO ISSUE A WRIT OF MANDAMUS TO THE RESPONDENT NO.
2 TO CONSIDER THE PETITIONERS REPRESENTATIONS AT
ANNEXURE-E TO E1 DATED 14/12/2022 FOR THE PURPOSE OF
REGULARIZATION PETITIONERS SERVICES. C. THE HON'BLE
COURT MAY ALSO BE PLEASED TO PASS ANY OTHER WRIT,
ORDER, DIRECTION ETC IN THE ABOVE CASE TO SERVE THE
ENDS OF JUSTICE.
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:
-6-
NC: 2025:KHC-D:3605
WP No. 103618 of 2023
C/W WP No. 106372 of 2023
WP No. 106724 of 2023
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
1. Batch of these petitions have a grievance in
common that their services are not regularized. Therefore,
they are at the doors of this Court seeking a direction to
regularize the services by setting aside the endorsement
issued rejecting the claim of the petitioners for
regularization.
2. Heard the learned counsel Shri S.B.
Doddagoudar and Shri S.G. Nandoor appearing for the
petitioners and the learned HCGP Smt. Kirtilata R.Patil
appearing for respondent Nos.1 to 4.
3. In W.P. No.103618/2023, the petitioner
pursuant to a notification calling for an application for
appointment of Junior Health Worker applies to the said
post on 04.02.2001. After the selection process on
06.10.2001, the second respondent appoints the petitioner
as Junior Health Worker under a particular Scheme of
NC: 2025:KHC-D:3605
Population control. The petitioner then after working about
21 years submitted a representation to consider their cases
for regularization. This was not considered and the
petitioner was before this Court in W.P. No.104195/2022.
The Coordinate Bench of this Court disposes the petition
directing consideration of the cases for regularization on
02.11.2022. The result of the said direction is the impugned
endorsement dated 15.02.2023 rejecting the claim of the
petitioner and only observing that rupees six thousand that
was paid for the last 22 years would be enhanced to rupees
fifteen thousand, barring this there is no other reason to
deny the case of the petitioner for regularization. The
companion petitions bear the same facts. Therefore, the
facts in case need not be reiterated.
4. Learned counsel appearing for the petitioner
submits that the petitioners have put in close 24 years of
service today and are left without regularization of their
services. They are not working under the scheme, but they
are staff nurses working at different places in Shivamogga
NC: 2025:KHC-D:3605
District at the Primary Health Centers or otherwise. Learned
counsel would further submit that the petitioners are paid
rupees six thousand for the last 22 years and have now by
the impugned endorsement have agreed that the salary of
the petitioners would be increased to rupees fifteen
thousand and the claim of regularization is rejected. He
would seek to place reliance upon plethora of judgments
rendered by the Apex Court.
5. Per contra, learned HCGP would submit that the
petitioners have been appointed not against the sanctioned
vacant posts, but were under the Scheme. He would submit
that the petitioners have continued in employment for last
24 years and the claim for regularization has been
appropriately denied.
6. Therefore, the issue now is as to whether the
petitioners would be entitled to consideration of their cases
for regularization. In somewhat similar circumstances, this
Court analyzing the entire spectrum of the law laid down by
the Apex Court in the case of SECRETARY, STATEOF
NC: 2025:KHC-D:3605
KARNATAKA VS. UMADEVI (3)1 and its aftermath has
held as follows:
"10. When these matters came up before a Bench of
two Judges, the learned Judges referred the cases to a
Bench of three Judges. The order of reference is reported
in Secy., State of Karnataka v. Umadevi (1) [(2004) 7
SCC 132 : 2004 SCC (L&S) 935 : (2003) 9 Scale 187] .
This Court noticed that in the matter of regularisation of
ad hoc employees, there were conflicting decisions by
three-Judge Benches of this Court and by two-Judge
Benches and hence the question required to be
considered by a larger Bench. When the matters came up
before a three-Judge Bench, the Bench in turn felt that
the matter required consideration by a Constitution Bench
in view of the conflict and in the light of the arguments
raised by the Additional Solicitor General. The order of
reference is reported in Secy., State of
Karnataka v. Umadevi (2) [(2006) 4 SCC 44 : (2003) 10
Scale 388] . It appears to be proper to quote that order of
reference at this stage. It reads : (SCC p. 45, paras 1-5)
"1. Apart from the conflicting opinions between the
three-Judge Bench decisions in Ashwani
Kumar v. State of Bihar [(1997) 2 SCC 1 : 1997 SCC
(L&S) 465 : 1996 Supp (10) SCR 120] , State of
Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826]
and Dharwad Distt. PWD Literate Daily Wage
Employees Assn. v. State of Karnataka [(1990) 2 SCC
396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] on the one hand and State of
H.P. v. Suresh Kumar Verma [(1996) 7 SCC 562 :
1996 SCC (L&S) 645 : (1996) 33 ATC 336 : AIR 1996
SC 1565 : (1996) 1 SCR 972] , State of
Punjab v. Surinder Kumar [(1992) 1 SCC 489 : 1992
SCC (L&S) 345 : (1992) 19 ATC 500 : AIR 1992 SC
1593 : 1991 Supp (3) SCR 553] and B.N.
Nagarajan v. State of Karnataka [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] on the other,
which have been brought out in one of the judgments
(2006) 4 SCC 1
- 10 -
NC: 2025:KHC-D:3605
under appeal of the Karnataka High Court in State of
Karnataka v. H. Ganesh Rao [(2001) 4 Kant LJ 466
(DB)] , decided on 1-6-2001 the learned Additional
Solicitor General urged that the scheme for
regularisation is repugnant to Articles 16(4), 309, 320
and 335 of the Constitution and, therefore, these
cases are required to be heard by a Bench of five
learned Judges (Constitution Bench).
2. On the other hand, Mr M.C. Bhandare, learned
Senior Counsel, appearing for the employees urged
that such a scheme for regularisation is consistent with
the provisions of Articles 14 and 21 of the
Constitution.
3. Mr V. Lakshmi Narayan, learned counsel
appearing in CCs Nos. 109-498 of 2003, has filed the
GO dated 19-7-2002 and submitted that the orders
have already been implemented.
4. After having found that there is conflict of
opinion between the three-Judge Bench decisions of
this Court, we are of the view that these cases are
required to be heard by a Bench of five learned
Judges.
5. Let these matters be placed before the Hon'ble
the Chief Justice for appropriate orders."
We are, therefore, called upon to resolve this issue here.
We have to lay down the law. We have to approach the
question as a constitutional court should.
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,
Article 309 provides that subject to the provisions of the
Constitution, Acts of the legislature may regulate the
recruitment and conditions of service of persons
appointed to public services and posts in connection with
the affairs of the Union or of a State. In view of the
interpretation placed on Article 12 of the Constitution by
this Court, obviously, these principles also govern the
instrumentalities that come within the purview of Article
12 of the Constitution. With a view to make the procedure
- 11 -
NC: 2025:KHC-D:3605
for selection fair, the Constitution by Article 315 has also
created a Public Service Commission for the Union and
the Public Service Commissions for the States. Article 320
deals with the functions of the 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
recognised 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 recognised 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 recognised 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 the
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
- 12 -
NC: 2025:KHC-D:3605
have been engaged without following a due process of
selection as envisaged by the constitutional scheme.
13. What is sought to be pitted against this approach,
is the so-called equity arising out of giving of temporary
employment or engagement on daily wages and the
continuance of such persons in the engaged work for a
certain length of time. Such considerations can have only
a limited role to play, when every qualified citizen has a
right to apply for appointment, the adoption of the
concept of rule of law and the scheme of the Constitution
for appointment to posts. It cannot also be forgotten that
it is not the role of the courts to ignore, encourage or
approve appointments made or engagements given
outside the constitutional scheme. In effect, orders based
on such sentiments or approach would result in
perpetuating illegalities and in the jettisoning of the
scheme of public employment adopted by us while
adopting the Constitution. The approving of such acts also
results in depriving many of their opportunity to compete
for public employment. We have, therefore, to consider
the question objectively and based on the constitutional
and statutory provisions. In this context, we have also to
bear in mind the exposition of law by a Constitution
Bench in State of Punjab v. Jagdip Singh [(1964) 4 SCR
964 : AIR 1964 SC 521] . It was held therein : (SCR pp.
971-72)
"In our opinion where a government servant has no
right to a post or to a particular status, though an
authority under the Government acting beyond its
competence had purported to give that person a status
which it was not entitled to give he will not in law be
deemed to have been validly appointed to the post or
given the particular status."
14. During the course of the arguments, various
orders of the 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 the
legal principles and it is time that this Court settled the
law once and for all so that in case the Court finds that
such orders should not be made, the courts, especially,
- 13 -
NC: 2025:KHC-D:3605
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 the 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 regularisation
in Dharwad case [(1990) 2 SCC 396 : 1990 SCC (L&S)
274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] all those
appointed temporarily at any point of time would be
entitled to be regularised 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
regularised. 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.
15. Even at the threshold, it is necessary to keep in
mind the distinction between regularisation and
conferment of permanence in service jurisprudence.
In State of Mysore v. S.V. Narayanappa [(1967) 1 SCR
128 : AIR 1967 SC 1071] this Court stated that it was a
misconception to consider that regularisation meant
permanence. In R.N. Nanjundappa v. T.
Thimmiah [(1972) 1 SCC 409 : (1972) 2 SCR 799] this
Court dealt with an argument that regularisation would
- 14 -
NC: 2025:KHC-D:3605
mean conferring the quality of permanence on the
appointment. This Court stated : (SCC pp. 416-17, para
26)
"Counsel on behalf of the respondent contended
that regularisation would mean conferring the quality
of permanence on the appointment whereas counsel
on behalf of the State contended that regularisation
did not mean permanence but that it was a case of
regularisation of the rules under Article 309. Both the
contentions are fallacious. If the appointment itself is
in infraction of the rules or if it is in violation of the
provisions of the Constitution illegality cannot be
regularised. Ratification or regularisation is possible of
an act which is within the power and province of the
authority but there has been some non-compliance
with procedure or manner which does not go to the
root of the appointment. Regularisation cannot be said
to be a mode of recruitment. To accede to such a
proposition would be to introduce a new head of
appointment in defiance of rules or it may have the
effect of setting at naught the rules."
16. In B.N. Nagarajan v. State of Karnataka [(1979) 4
SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] this
Court clearly held that the words "regular" or
"regularisation" do not connote permanence and cannot
be construed so as to convey an idea of the nature of
tenure of appointments. They are terms calculated to
condone any procedural irregularities and are meant to
cure only such defects as are attributable to methodology
followed in making the appointments. This Court
emphasised that when rules framed under Article 309 of
the Constitution are in force, no regularisation is
permissible in exercise of the executive powers of the
Government under Article 162 of the Constitution in
contravention of the rules. These decisions and the
principles recognised therein have not been dissented to
by this Court and on principle, we see no reason not to
accept the proposition as enunciated in the above
decisions. We have, therefore, to keep this distinction in
mind and proceed on the basis that only something that is
irregular for want of compliance with one of the elements
in the process of selection which does not go to the root
of the process, can be regularised and that it alone can be
regularised and granting permanence of employment is a
- 15 -
NC: 2025:KHC-D:3605
totally different concept and cannot be equated with
regularisation.
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 regularise 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.
18. Without keeping the above distinction in mind and
without discussion of the law on the question or the effect
of the directions on the constitutional scheme of
appointment, this Court in Daily Rated Casual
Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC
(L&S) 138 : (1987) 5 ATC 228 : (1988) 1 SCR 598]
directed the Government to frame a scheme for
absorption of daily-rated casual labourers continuously
working in the Posts and Telegraphs Department for more
than one year. This Court seems to have been swayed by
the idea that India is a socialist republic and that implied
the existence of certain important obligations which the
State had to discharge. While it might be one thing to say
that the daily-rated workers, doing the identical work, had
to be paid the wages that were being paid to those who
are regularly appointed and are doing the same work, it
would be quite a different thing to say that a socialist
republic and its executive, is bound to give permanence
to all those who are employed as casual labourers or
temporary hands and that too without a process of
selection or without following the mandate of the
Constitution and the laws made thereunder concerning
public employment. The same approach was made
in Bhagwati Prasad v. Delhi State Mineral Development
Corpn. [(1990) 1 SCC 361 : 1990 SCC (L&S) 174 : 1989
Supp (2) SCR 513] where this Court directed
regularisation of daily-rated workers in phases and in
accordance with seniority.
- 16 -
NC: 2025:KHC-D:3605
19. One aspect arises. Obviously, the State is also
controlled by economic considerations and financial
implications of any public employment. The viability of the
department or the instrumentality of the project is also of
equal concern for the State. The State works out the
scheme taking into consideration the financial implications
and the economic aspects. Can the court impose on the
State a financial burden of this nature by insisting on
regularisation or permanence in employment, when those
employed temporarily are not needed permanently or
regularly? As an example, we can envisage a direction to
give permanent employment to all those who are being
temporarily or casually employed in a public sector
undertaking. The burden may become so heavy by such a
direction that the undertaking itself may collapse under
its own weight. It is not as if this had not happened. So,
the court ought not to impose a financial burden on the
State by such directions, as such directions may turn
counterproductive.
20. The decision in Dharwad Distt. PWD Literate Daily
Wage Employees Assn. v. State of Karnataka [(1990) 2
SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] dealt with a scheme framed by the
State of Karnataka, though at the instance of the Court.
The scheme was essentially relating to the application of
the concept of equal pay for equal work but it also
provided for making permanent, or what it called
regularisation, without keeping the distinction in mind, of
employees who had been appointed ad hoc, casually,
temporarily or on daily-wage basis. In other words,
employees who had been appointed without following the
procedure established by law for such appointments. This
Court, at the threshold, stated that it should individualise
justice to suit a given situation. With respect, it is not
possible to accept the statement, unqualified as it appears
to be. This Court is not only the constitutional court, it is
also the highest court in the country, the final court of
appeal. By virtue of Article 141 of the Constitution, what
this Court lays down is the law of the land. Its decisions
are binding on all the courts. Its main role is to interpret
the constitutional and other statutory provisions bearing
in mind the fundamental philosophy of the Constitution.
We have given unto ourselves a system of governance by
rule of law. The role of the Supreme Court is to render
justice according to law. As one jurist put it, the Supreme
- 17 -
NC: 2025:KHC-D:3605
Court is expected to decide questions of law for the
country and not to decide individual cases without
reference to such principles of law. Consistency is a
virtue. Passing orders not consistent with its own
decisions on law, is bound to send out confusing signals
and usher in judicial chaos. Its role, therefore, is really to
interpret the law and decide cases coming before it,
according to law. Orders which are inconsistent with the
legal conclusions arrived at by the court in the selfsame
judgment not only create confusion but also tend to usher
in arbitrariness highlighting the statement, that equity
tends to vary with the Chancellor's foot.
21. In Dharwad case [(1990) 2 SCC 396 : 1990 SCC
(L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] this
Court was actually dealing with the question of "equal pay
for equal work" and had directed the State of Karnataka
to frame a scheme in that behalf. In para 17 of the
judgment (in SCC), this Court stated that the precedents
obliged the State of Karnataka to regularise the services
of the casual or daily/monthly-rated employees and to
make them the same payment as regular employees were
getting. Actually, this Court took note of the argument of
counsel for the State that in reality and as a matter of
statecraft, implementation of such a direction was an
economic impossibility and at best only a scheme could
be framed. Thus a scheme for absorption of casual/daily-
rated employees appointed on or before 1-7-1984 was
framed and accepted. The economic consequences of its
direction were taken note of by this Court in the following
words : (SCC pp. 408-09, para 24)
"24. We are alive to the position that the scheme
which we have finalised is not the ideal one but as we
have already stated, it is the obligation of the court to
individualise justice to suit a given situation in a set of
facts that are placed before it. Under the scheme of
the Constitution the purse remains in the hands of the
executive. The legislature of the State controls the
Consolidated Fund out of which the expenditure to be
incurred, in giving effect to the scheme, will have to be
met. The flow into the Consolidated Fund depends
upon the policy of taxation depending perhaps on the
capacity of the payer. Therefore, unduly burdening the
State for implementing the constitutional obligation
forthwith would create problems which the State may
- 18 -
NC: 2025:KHC-D:3605
not be able to stand. We have, therefore, made our
directions with judicious restraint with the hope and
trust that both parties would appreciate and
understand the situation. The instrumentality of the
State must realise that it is charged with a big trust.
The money that flows into the Consolidated Fund and
constitutes the resources of the State comes from the
people and the welfare expenditure that is meted out
goes from the same Fund back to the people. May be
that in every situation the same taxpayer is not the
beneficiary. That is an incident of taxation and a
necessary concomitant of living within a welfare
society."
22. With respect, it appears to us that the question
whether the jettisoning of the constitutional scheme of
appointment can be approved, was not considered or
decided. The distinction emphasised in R.N.
Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409 : (1972)
2 SCR 799] was also not kept in mind. The Court appears
to have been dealing with a scheme for "equal pay for
equal work" and in the process, without an actual
discussion of the question, had approved a scheme put
forward by the State, prepared obviously at the direction
of the Court, to order permanent absorption of such daily-
rated workers. With respect to the learned judges, the
decision cannot be said to lay down any law, that all those
engaged on daily wages, casually, temporarily, or when
no sanctioned post or vacancy existed and without
following the rules of selection, should be absorbed or
made permanent though not at a stretch, but gradually. If
that were the ratio, with respect, we have to disagree
with it.
23. We may now consider State of Haryana v. Piara
Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992)
21 ATC 403 : (1992) 3 SCR 826] . There, the Court was
considering the sustainability of certain directions issued
by the High Court in the light of various orders passed by
the State for the absorption of its ad hoc or temporary
employees and daily-wagers or casual labour. This Court
started by saying : (SCC p. 134, para 21)
"21. Ordinarily speaking, the creation and abolition
of a post is the prerogative of the executive. It is the
executive again that lays down the conditions of
- 19 -
NC: 2025:KHC-D:3605
service subject, of course, to a law made by the
appropriate legislature. This power to prescribe the
conditions of service can be exercised either by
making rules under the proviso to Article 309 of the
Constitution or (in the absence of such rules) by
issuing rules/instructions in exercise of its executive
power. The court comes into the picture only to ensure
observance of fundamental rights, statutory
provisions, rules and other instructions, if any,
governing the conditions of service."
24. This Court then referred to some of the earlier
decisions of this Court while stating : (SCC p. 134, para
21)
"The main concern of the court in such matters is
to ensure the rule of law and to see that the executive
acts fairly and gives a fair deal to its employees
consistent with the requirements of Articles 14 and 16.
It also means that the State should not exploit its
employees nor should it seek to take advantage of the
helplessness and misery of either the unemployed
persons or the employees, as the case may be. As is
often said, the State must be a model employer. It is
for this reason, it is held that equal pay must be given
for equal work, which is indeed one of the directive
principles of the Constitution. It is for this very reason
it is held that a person should not be kept in a
temporary or ad hoc status for long. Where a
temporary or ad hoc appointment is continued for long
the court presumes that there is need and warrant for
a regular post and accordingly directs regularisation.
While all the situations in which the court may act to
ensure fairness cannot be detailed here, it is sufficient
to indicate that the guiding principles are the ones
stated above."
25. This Court then concluded in paras 45 to 49 : (SCC
p. 152)
"45. The normal rule, of course, is regular
recruitment through the prescribed agency but
exigencies of administration may sometimes call for an
ad hoc or temporary appointment to be made. In such
a situation, effort should always be to replace such an
ad hoc/temporary employee by a regularly selected
- 20 -
NC: 2025:KHC-D:3605
employee as early as possible. Such a temporary
employee may also compete along with others for
such regular selection/appointment. If he gets
selected, well and good, but if he does not, he must
give way to the regularly selected candidate. The
appointment of the regularly selected candidate cannot
be withheld or kept in abeyance for the sake of such
an ad hoc/temporary employee.
46. Secondly, an ad hoc or temporary employee
should not be replaced by another ad hoc or
temporary employee; he must be replaced only by a
regularly selected employee. This is necessary to avoid
arbitrary action on the part of the appointing
authority.
47. Thirdly, even where an ad hoc or temporary
employment is necessitated on account of the
exigencies of administration, he should ordinarily be
drawn from the employment exchange unless it cannot
brook delay in which case the pressing cause must be
stated on the file. If no candidate is available or is not
sponsored by the employment exchange, some
appropriate method consistent with the requirements
of Article 16 should be followed. In other words, there
must be a notice published in the appropriate manner
calling for applications and all those who apply in
response thereto should be considered fairly.
48. An unqualified person ought to be appointed
only when qualified persons are not available through
the above processes.
49. If for any reason, an ad hoc or temporary
employee is continued for a fairly long spell, the
authorities must consider his case for regularisation
provided he is eligible and qualified according to the
rules and his service record is satisfactory and his
appointment does not run counter to the reservation
policy of the State."
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
- 21 -
NC: 2025:KHC-D:3605
eyes to the persistent transgression of the rules of regular
recruitment. The direction to make permanent--the
distinction between regularisation and making permanent,
was not emphasised 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
para 50 (of SCC) of Piara Singh [(1992) 4 SCC 118 :
1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR
826] is to some extent inconsistent with the conclusion in
para 45 (of SCC) therein. With great respect, it appears
to us that the last of the directions clearly runs counter to
the constitutional scheme of employment recognised 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.
27. We shall now refer to the other decisions. In State
of Punjab v. Surinder Kumar [(1992) 1 SCC 489 : 1992
SCC (L&S) 345 : (1992) 19 ATC 500 : AIR 1992 SC 1593
: 1991 Supp (3) SCR 553] a three-Judge Bench of this
Court held that the High Courts had no power, like the
power available to the Supreme Court under Article 142
of the Constitution, and merely because the Supreme
Court granted certain reliefs in exercise of its power under
Article 142 of the Constitution, similar orders could not be
issued by the High Courts. The Bench pointed out that a
decision is available as a precedent only if it decides a
question of law. The temporary employees would not be
entitled to rely in a writ petition they filed before the High
Court upon an order of the Supreme Court which directs a
temporary employee to be regularised in his service
without assigning reasons and ask the High Court to pass
an order of a similar nature. This Court noticed that the
jurisdiction of the High Court while dealing with a writ
petition was circumscribed by the limitations discussed
and declared by judicial decisions and the High Court
cannot transgress the limits on the basis of the whims or
subjective sense of justice varying from judge to judge.
Though the High Court is entitled to exercise its judicial
discretion in deciding writ petitions or civil revision
applications coming before it, the discretion had to be
confined in declining to entertain petitions and refusing to
grant reliefs asked for by the petitioners on adequate
- 22 -
NC: 2025:KHC-D:3605
considerations and it did not permit the High Court to
grant relief on such a consideration alone. This Court set
aside the directions given by the High Court for
regularisation of persons appointed temporarily to the
post of lecturers. The Court also emphasised that specific
terms on which appointments were made should be
normally enforced. Of course, this decision is more on the
absence of power in the High Court to pass orders against
the constitutional scheme of appointment.
28. In Director, Institute of Management
Development, U.P. v. Pushpa Srivastava [(1992) 4 SCC
33 : 1992 SCC (L&S) 767 : (1992) 21 ATC 377 : (1992) 3
SCR 712] this Court held that since the appointment was
on purely contractual and ad hoc basis on consolidated
pay for a fixed period and terminable without notice,
when the appointment came to an end by efflux of time,
the appointee had no right to continue in the post and to
claim regularisation in service in the absence of any rule
providing for regularisation after the period of service. A
limited relief of directing that the appointee be permitted
on sympathetic consideration to be continued in service
till the end of the calendar year concerned was issued.
This Court noticed that when the appointment was purely
on ad hoc and contractual basis for a limited period, on
the expiry of the period, the right to remain in the post
came to an end. This Court stated that the view they
were taking was the only view possible and set aside the
judgment of the High Court which had given relief to the
appointee.
29. In Madhyamik Shiksha Parishad, U.P. v. Anil
Kumar Mishra [(2005) 5 SCC 122 : 2005 SCC (L&S) 628 :
AIR 1994 SC 1638] a three-Judge Bench of this Court
held that ad hoc appointees/temporary employees
engaged on ad hoc basis and paid on piece-rate basis for
certain clerical work and discontinued on completion of
their task, were not entitled to reinstatement or
regularisation of their services even if their working
period ranged from one to two years. This decision
indicates that if the engagement was made in a particular
work or in connection with particular project, on
completion of that work or of that project, those who
were temporarily engaged or employed in that work or
project could not claim any right to continue in service
- 23 -
NC: 2025:KHC-D:3605
and the High Court cannot direct that they be continued
or absorbed elsewhere.
30. In State of H.P. v. Suresh Kumar Verma [(1996) 7
SCC 562 : 1996 SCC (L&S) 645 : (1996) 33 ATC 336 :
AIR 1996 SC 1565 : (1996) 1 SCR 972] a three-Judge
Bench of this Court held that a person appointed on daily-
wage basis was not an appointee to a post according to
rules. On his termination, on the project employing him
coming to an end, the Court could not issue a direction to
re-engage him in any other work or appoint him against
existing vacancies. This Court said : (SCC p. 563, para 2)
"It is settled law that having made rules of
recruitment to various services under the State or to a
class of posts under the State, the State is bound to
follow the same and to have the selection of the
candidates made as per recruitment rules and
appointments shall be made accordingly. From the
date of discharging the duties attached to the post the
incumbent becomes a member of the services.
Appointment on daily-wage basis is not an
appointment to a post according to the rules."
Their Lordships cautioned that if directions are given to
re-engage such persons in any other work or appoint
them against existing vacancies, "the judicial process
would become another mode of recruitment dehors the
rules".
31. In Ashwani Kumar v. State of Bihar [(1997) 2 SCC
1 : 1997 SCC (L&S) 465 : 1996 Supp (10) SCR 120] this
Court was considering the validity of confirmation of the
irregularly employed. It was stated : (SCC p. 17, para 13)
"13. So far as the question of confirmation of these
employees whose entry itself was illegal and void, is
concerned, it is to be noted that question of
confirmation or regularisation of an irregularly
appointed candidate would arise if the candidate
concerned is appointed in an irregular manner or on ad
hoc basis against an available vacancy which is
already sanctioned. But if the initial entry itself is
unauthorised and is not against any sanctioned
vacancy, question of regularising the incumbent on
such a non-existing vacancy would never survive for
- 24 -
NC: 2025:KHC-D:3605
consideration and even if such purported regularisation
or confirmation is given it would be an exercise in
futility."
This Court further stated : (SCC pp. 18-19, para 14)
"14. In this connection it is pertinent to note that
question of regularisation in any service including any
government service may arise in two contingencies.
Firstly, if on any available clear vacancies which are of
a long duration appointments are made on ad hoc
basis or daily-wage basis by a competent authority
and are continued from time to time and if it is found
that the incumbents concerned have continued to be
employed for a long period of time with or without any
artificial breaks, and their services are otherwise
required by the institution which employs them, a time
may come in the service career of such employees
who are continued on ad hoc basis for a given
substantial length of time to regularise them so that
the employees concerned can give their best by being
assured security of tenure. But this would require one
precondition that the initial entry of such an employee
must be made against an available sanctioned vacancy
by following the rules and regulations governing such
entry. The second type of situation in which the
question of regularisation may arise would be when
the initial entry of the employee against an available
vacancy is found to have suffered from some flaw in
the procedural exercise though the person appointing
is competent to effect such initial recruitment and has
otherwise followed due procedure for such
recruitment. A need may then arise in the light of the
exigency of administrative requirement for waiving
such irregularity in the initial appointment by a
competent authority and the irregular initial
appointment may be regularised and security of tenure
may be made available to the incumbent concerned.
But even in such a case the initial entry must not be
found to be totally illegal or in blatant disregard of all
the established rules and regulations governing such
recruitment."
32. The Court noticed that in that case all
constitutional requirements were thrown to the wind while
- 25 -
NC: 2025:KHC-D:3605
making the appointments. It was stated : (SCC pp. 19-
20, para 14)
"On the contrary all efforts were made to bypass
the recruitment procedure known to law which
resulted in clear violation of Articles 14 and 16(1) of
the Constitution both at the initial stage as well as at
the stage of confirmation of these illegal entrants. The
so-called regularisations and confirmations could not
be relied on as shields to cover up initial illegal and
void actions or to perpetuate the corrupt methods by
which these 6000 initial entrants were drafted in the
scheme...."
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 can an ad hoc appointment 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
regularisation. The cases directing regularisation 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.
34. In A. Umarani v. Registrar, Coop.
Societies [(2004) 7 SCC 112 : 2004 SCC (L&S) 918] a
three-Judge Bench made a survey of the authorities and
held that when appointments were made in contravention
of mandatory provisions of the Act and statutory rules
framed thereunder and by ignoring essential
qualifications, the appointments would be illegal and
cannot be regularised by the State. The State could not
invoke its power under Article 162 of the Constitution to
regularise such appointments. This Court also held that
regularisation is not and cannot be a mode of recruitment
by any State within the meaning of Article 12 of the
Constitution or any body or authority governed by a
statutory Act or the rules framed thereunder.
Regularisation furthermore cannot give permanence to an
employee whose services are ad hoc in nature. It was
also held that the fact that some persons had been
- 26 -
NC: 2025:KHC-D:3605
working for a long time would not mean that they had
acquired a right for regularisation.
35. Incidentally, the Bench also referred to the nature
of the orders to be passed in exercise of this Court's
jurisdiction under Article 142 of the Constitution. This
Court stated that jurisdiction under Article 142 of the
Constitution could not be exercised on misplaced
sympathy. This Court quoted with approval the
observations of Farwell, L.J. in Latham v. Richard Johnson
& Nephew Ltd. [(1913) 1 KB 398 : (1911-13) All ER Rep
117 : 108 LT 4 (CA)] : (All ER p. 123 E)
"We must be [very] careful not to allow our
sympathy with the infant plaintiff to affect our
judgment. Sentiment is a dangerous will o' the wisp to
take as a guide in the search for legal principles."
36. This Court also quoted with approval (at SCC p.
131, para 69) the observations of this Court in Teri Oat
Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130]
to the effect : (SCC p. 144, para 36)
"36. We have no doubt in our mind that sympathy
or sentiment by itself cannot be a ground for passing
an order in relation whereto the appellants miserably
fail to establish a legal right. It is further trite that
despite an extraordinary constitutional jurisdiction
contained in Article 142 of the Constitution, this Court
ordinarily would not pass an order which would be in
contravention of a statutory provision."
This decision kept in mind the distinction between
"regularisation" and "permanency" and laid down that
regularisation is not and cannot be the mode of
recruitment by any State. It also held that regularisation
cannot give permanence to an employee whose services
are ad hoc in nature.
37. It is not necessary to multiply authorities on this
aspect. It is only necessary to refer to one or two of the
recent decisions in this context. In State of U.P. v. Neeraj
Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] this
Court after referring to a number of prior decisions held
that there was no power in the State under Article 162 of
the Constitution to make appointments and even if there
- 27 -
NC: 2025:KHC-D:3605
was any such power, no appointment could be made in
contravention of statutory rules. This Court also held that
past alleged regularisation or appointment does not
connote entitlement to further regularisation or
appointment. It was further held that the High Court has
no jurisdiction to frame a scheme by itself or direct the
framing of a scheme for regularisation. This view was
reiterated in State of Karnataka v. KGSD Canteen
Employees' Welfare Assn. [(2006) 1 SCC 567 : 2006 SCC
(L&S) 158 : JT (2006) 1 SC 84]
38. In Union Public Service Commission v. Girish
Jayanti Lal Vaghela [(2006) 2 SCC 482 : 2006 SCC (L&S)
339 : (2006) 2 Scale 115] this Court answered the
question, who was a government servant and stated :
(SCC p. 490, para 12)
"12. Article 16 which finds place in Part III of the
Constitution relating to fundamental rights provides
that there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State. The main
object of Article 16 is to create a constitutional right to
equality of opportunity and employment in public
offices. The words 'employment' or 'appointment'
cover not merely the initial appointment but also other
attributes of service like promotion and age of
superannuation, etc. The appointment to any post
under the State can only be made after a proper
advertisement has been made inviting applications
from eligible candidates and holding of selection by a
body of experts or a specially constituted committee
whose members are fair and impartial through a
written examination or interview or some other
rational criteria for judging the inter se merit of
candidates who have applied in response to the
advertisement made. A regular appointment to a post
under the State or Union cannot be made without
issuing advertisement in the prescribed manner which
may in some cases include inviting applications from
the employment exchange where eligible candidates
get their names registered. Any regular appointment
made on a post under the State or Union without
issuing advertisement inviting applications from
eligible candidates and without holding a proper
selection where all eligible candidates get a fair chance
- 28 -
NC: 2025:KHC-D:3605
to compete would violate the guarantee enshrined
under Article 16 of the Constitution (see B.S.
Minhas v. Indian Statistical Institute [(1983) 4 SCC
582 : 1984 SCC (L&S) 26 : AIR 1984 SC 363] )."
39. There have been decisions which have taken the
cue from Dharwad case [(1990) 2 SCC 396 : 1990 SCC
(L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] and
given directions for regularisation, 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 Workmen v. Bhurkunda Colliery of
Central Coalfields Ltd. [(2006) 3 SCC 297 : 2006 SCC
(L&S) 530 : JT (2006) 2 SC 1] though the legality or
validity of such an approach has not been independently
examined. But on a survey of authorities, the
predominant view is seen to be that such appointments
did not confer any right on the appointees and that the
Court cannot direct their absorption or regularisation or
re-engagement or making them permanent.
40. At this stage, it is relevant to notice two aspects.
In Kesavananda Bharati v. State of Kerala [(1973) 4 SCC
225 : 1973 Supp SCR 1] this Court held that Article 14,
and Article 16, which was described as a facet of Article
14, is part of the basic structure of the Constitution. The
position emerging from Kesavananda Bharati [(1973) 4
SCC 225 : 1973 Supp SCR 1] was summed up by
Jagannadha Rao, J. speaking for a Bench of three Judges
in Indra Sawhney v. Union of India [(2000) 1 SCC 168 :
2000 SCC (L&S) 1 : 1999 Supp (5) SCR 229] . That
decision also reiterated how neither Parliament nor the
legislature could transgress the basic feature of the
Constitution, namely, the principle of equality enshrined
in Article 14 of which Article 16(1) is a facet. This Court
stated : (Indra Sawhney case [(2000) 1 SCC 168 : 2000
SCC (L&S) 1 : 1999 Supp (5) SCR 229] , SCC p. 202,
paras 64-65)
"64. The preamble to the Constitution of India
emphasises the principle of equality as basic to our
Constitution. In Kesavananda Bharati v. State of
Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] it was
ruled that even constitutional amendments which
offended the basic structure of the Constitution would
- 29 -
NC: 2025:KHC-D:3605
be ultra vires the basic structure. Sikri, C.J. laid stress
on the basic features enumerated in the preamble to
the Constitution and said that there were other basic
features too which could be gathered from the
constitutional scheme (para 506-A of SCC). Equality
was one of the basic features referred to in the
preamble to our Constitution. Shelat and Grover, JJ.
also referred to the basic rights referred to in the
preamble. They specifically referred to equality (paras
520 and 535-A of SCC). Hegde & Shelat, JJ. also
referred to the preamble (paras 648, 652). Ray, J. (as
he then was) also did so (para 886). Jaganmohan
Reddy, J. too referred to the preamble and the
equality doctrine (para 1159). Khanna, J. accepted this
position (para 1471). Mathew, J. referred to equality
as a basic feature (para 1621). Dwivedi, J. (paras
1882, 1883) and Chandrachud, J. (as he then was)
(see para 2086) accepted this position.
65. What we mean to say is that Parliament and
the legislature in this country cannot transgress the
basic feature of the Constitution, namely, the principle
of equality enshrined in Article 14 of which Article
16(1) is a facet."
41. In the earlier decision in Indra Sawhney v. Union
of India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp
1 : (1992) 22 ATC 385 : 1992 Supp (2) SCR 454] B.P.
Jeevan Reddy, J. speaking for the majority, while
acknowledging that equality and equal opportunity is a
basic feature of our Constitution, has explained the
exultant (sic exalted) position of Articles 14 and 16 of the
Constitution in the scheme of things. His Lordship stated :
(SCC pp. 633-34, paras 644-45)
"644[6]. The significance attached by the Founding
Fathers to the right to equality is evident not only from
the fact that they employed both the expressions
'equality before the law' and 'equal protection of the
laws' in Article 14 but proceeded further to state the
same rule in positive and affirmative terms in Articles
15 to 18. ...
645[7]. Inasmuch as public employment always
gave a certain status and power--it has always been
the repository of State power--besides the means of
- 30 -
NC: 2025:KHC-D:3605
livelihood, special care was taken to declare equality of
opportunity in the matter of public employment by
Article 16. Clause (1) expressly declares that in the
matter of public employment or appointment to any
office under the State, citizens of this country shall
have equal opportunity while clause (2) declares that
no citizen shall be discriminated in the said matter on
the grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them. At the same
time, care was taken to declare in clause (4) that
nothing in the said article shall prevent the State from
making any provision for reservation of appointments
or posts in favour of any backward class of citizens
which in the opinion of the State is not adequately
represented in the services under the State." (See
paras 6 and 7 in SCR pp. 544 and 545.)
These binding decisions are clear imperatives that
adherence to Articles 14 and 16 of the Constitution is a
must in the process of public employment.
42. While answering an objection to the locus standi of
the writ petitioners in challenging the repeated issue of an
ordinance by the Governor of Bihar, the exalted position
of rule of law in the scheme of things was emphasised,
Bhagwati, C.J., speaking on behalf of the Constitution
Bench in D.C. Wadhwa (Dr.) v. State of Bihar [(1987) 1
SCC 378] stated : (SCC p. 384, para 3)
"The rule of law constitutes the core of our
Constitution and it is the essence of the rule of law
that the exercise of the power by the State whether it
be the legislature or the executive or any other
authority should be within the constitutional limitations
and if any practice is adopted by the executive which
is in flagrant and systematic violation of its
constitutional limitations, Petitioner 1 as a member of
the public would have sufficient interest to challenge
such practice by filing a writ petition and it would be
the constitutional duty of this Court to entertain the
writ petition and adjudicate upon the validity of such
practice."
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
- 31 -
NC: 2025:KHC-D:3605
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. The High Courts acting under Article
226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, 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 the 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
- 32 -
NC: 2025:KHC-D:3605
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 Dharwad decision [(1990) 2 SCC 396 : 1990 SCC
(L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] 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 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.
- 33 -
NC: 2025:KHC-D:3605
45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts are
swayed by the fact that the person concerned has worked
for some time and in some cases for a considerable length
of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not
aware of the nature of his employment. He accepts the
employment with open eyes. It may be true that he is not
in a position to bargain--not at arm's length--since he
might have been searching for some employment so as to
eke out his livelihood and accepts whatever he gets. But
on that ground alone, it would not be appropriate to
jettison the constitutional scheme of appointment and to
take the view that a person who has temporarily or
casually got employed should be directed to be continued
permanently. By doing so, it will be creating another
mode of public appointment which is not permissible. If
the court were to void a contractual employment of this
nature on the ground that the parties were not having
equal bargaining power, that too would not enable the
court to grant any relief to that employee. A total
embargo on such casual or temporary employment is not
possible, given the exigencies of administration and if
imposed, would only mean that some people who at least
get employment temporarily, contractually or casually,
would not be getting even that employment when
securing of such employment brings at least some
succour to them. After all, innumerable citizens of our
vast country are in search of employment and one is not
compelled to accept a casual or temporary employment if
one is not inclined to go in for such an employment. It is
in that context that one has to proceed on the basis that
the employment was accepted fully knowing the nature of
it and the consequences flowing from it. In other words,
even while accepting the employment, the person
concerned knows the nature of his employment. It is not
an appointment to a post in the real sense of the term.
The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot
be considered to be of such a magnitude as to enable the
giving up of the procedure established, for making regular
appointments to available posts in the services of the
State. The argument that since one has been working for
some time in the post, it will not be just to discontinue
him, even though he was aware of the nature of the
employment when he first took it up, is not one that
- 34 -
NC: 2025:KHC-D:3605
would enable the jettisoning of the procedure established
by law for public employment and would have to fail when
tested on the touchstone of constitutionality and equality
of opportunity enshrined in Article 14 of the Constitution.
46. Learned Senior Counsel for some of the
respondents argued that on the basis of the doctrine of
legitimate expectation, the employees, especially of the
Commercial Taxes Department, should be directed to be
regularised since the decisions in Dharwad [(1990) 2 SCC
396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990)
1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826]
, Jacob [Jacob M. Puthuparambil v. Kerala Water
Authority, (1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991)
15 ATC 697] and Gujarat Agricultural University [Gujarat
Agricultural University v. Rathod Labhu Bechar, (2001) 3
SCC 574 : 2001 SCC (L&S) 613] and the like, have given
rise to an expectation in them that their services would
also be regularised. The doctrine can be invoked if the
decisions of the administrative authority affect the person
by depriving him of some benefit or advantage which
either (i) he had in the past been permitted by the
decision-maker to enjoy and which he can legitimately
expect to be permitted to continue to do until there have
been communicated to him some rational grounds for
withdrawing it on which he has been given an opportunity
to comment; or (ii) he has received assurance from the
decision-maker that they will not be withdrawn without
giving him first an opportunity of advancing reasons for
contending that they should not be withdrawn. [See Lord
Diplock in Council for Civil Services Union v. Minister of
Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984)
3 WLR 1174 (HL)] , National Buildings Construction
Corpn. v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC
(L&S) 1770] and Chanchal Goyal (Dr.) v. State of
Rajasthan [(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .]
There is no case that any assurance was given by the
Government or the department concerned while making
the appointment on daily wages that the status conferred
on him will not be withdrawn until some rational reason
comes into existence for withdrawing it. The very
engagement was against the constitutional scheme.
Though, the Commissioner of the Commercial Taxes
Department sought to get the appointments made
permanent, there is no case that at the time of
- 35 -
NC: 2025:KHC-D:3605
appointment any promise was held out. No such promise
could also have been held out in view of the circulars and
directives issued by the Government after Dharwad
decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :
(1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there
is a case that the State had made regularisations in the
past of similarly situated employees, the fact remains that
such regularisations were done only pursuant to judicial
directions, either of the Administrative Tribunal or of the
High Court and in some cases by this Court. Moreover,
the invocation of the doctrine of legitimate expectation
cannot enable the employees to claim that they must be
made permanent or they must be regularised in the
service though they had not been selected in terms of the
rules for appointment. The fact that in certain cases the
court had directed regularisation of the employees
involved in those cases cannot be made use of to found a
claim based on legitimate expectation. The argument if
accepted would also run counter to the constitutional
mandate. The argument in that behalf has therefore to be
rejected.
47. When a person enters a temporary employment or
gets engagement as a contractual or casual worker and
the engagement is not based on a proper selection as
recognised by the relevant rules or procedure, he is aware
of the consequences of the appointment being temporary,
casual or contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for being
confirmed in the post when an appointment to the post
could be made only by following a proper procedure for
selection and in cases concerned, in consultation with the
Public Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully advanced by
temporary, contractual or casual employees. It cannot
also be held that the State has held out any promise while
engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious
that the theory cannot be invoked to seek a positive relief
of being made permanent in the post.
48. It was then contended that the rights of the
employees thus appointed, under Articles 14 and 16 of
the Constitution, are violated. It is stated that the State
has treated the employees unfairly by employing them on
- 36 -
NC: 2025:KHC-D:3605
less than minimum wages and extracting work from them
for a pretty long period in comparison with those directly
recruited who are getting more wages or salaries for
doing similar work. The employees before us were
engaged on daily wages in the department concerned on
a wage that was made known to them. There is no case
that the wage agreed upon was not being paid. Those
who are working on daily wages formed a class by
themselves, they cannot claim that they are discriminated
as against those who have been regularly recruited on the
basis of the relevant rules. No right can be founded on an
employment on daily wages to claim that such employee
should be treated on a par with a regularly recruited
candidate, and made permanent in employment, even
assuming that the principle could be invoked for claiming
equal wages for equal work. There is no fundamental
right in those who have been employed on daily wages or
temporarily or on contractual basis, to claim that they
have a right to be absorbed in service. As has been held
by this Court, they cannot be said to be holders of a post,
since, a regular appointment could be made only by
making appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The right to be
treated equally with the other employees employed on
daily wages, cannot be extended to a claim for equal
treatment with those who were regularly employed. That
would be treating unequals as equals. It cannot also be
relied on to claim a right to be absorbed in service even
though they have never been selected in terms of the
relevant recruitment rules. The arguments based on
Articles 14 and 16 of the Constitution are therefore
overruled.
49. It is contended that the State action in not
regularising the employees was not fair within the
framework of the rule of law. The rule of law compels the
State to make appointments as envisaged by the
Constitution and in the manner we have indicated earlier.
In most of these cases, no doubt, the employees had
worked for some length of time but this has also been
brought about by the pendency of proceedings in
tribunals and courts initiated at the instance of the
employees. Moreover, accepting an argument of this
nature would mean that the State would be permitted to
perpetuate an illegality in the matter of public
employment and that would be a negation of the
- 37 -
NC: 2025:KHC-D:3605
constitutional scheme adopted by us, the people of India.
It is therefore not possible to accept the argument that
there must be a direction to make permanent all the
persons employed on daily wages. When the court is
approached for relief by way of a writ, the court has
necessarily to ask itself whether the person before it had
any legal right to be enforced. Considered in the light of
the very clear constitutional scheme, it cannot be said
that the employees have been able to establish a legal
right to be made permanent even though they have never
been appointed in terms of the relevant rules or in
adherence of Articles 14 and 16 of the Constitution.
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, 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.
- 38 -
NC: 2025:KHC-D:3605
51. The argument that the right to life protected by
Article 21 of the Constitution would include the right to
employment cannot also be accepted at this juncture. The
law is dynamic and our Constitution is a living document.
May be at some future point of time, the right to
employment can also be brought in under the concept of
right to life or even included as a fundamental right. The
new statute is perhaps a beginning. As things now stand,
the acceptance of such a plea at the instance of the
employees before us would lead to the consequence of
depriving a large number of other aspirants of an
opportunity to compete for the post or employment. Their
right to employment, if it is a part of right to life, would
stand denuded by the preferring of those who have got in
casually or those who have come through the backdoor.
The obligation cast on the State under Article 39(a) of the
Constitution is to ensure that all citizens equally have the
right to adequate means of livelihood. It will be more
consistent with that policy if the courts recognise that an
appointment to a post in government service or in the
service of its instrumentalities, can only be by way of a
proper selection in the manner recognised by the relevant
legislation in the context of the relevant provisions of the
Constitution. In the name of individualising justice, it is
also not possible to shut our eyes to the constitutional
scheme and the right of the numerous as against the few
who are before the court. The directive principles of State
policy have also to be reconciled with the rights available
to the citizen under Part III of the Constitution and the
obligation of the State to one and all and not to a
particular group of citizens. We, therefore, overrule the
argument based on Article 21 of the Constitution.
52. Normally, what is sought for by such temporary
employees when they approach the court, is the issue of
a writ of mandamus directing the employer, the State or
its instrumentalities, to absorb them in permanent service
or to allow them to continue. In this context, the question
arises whether a mandamus could be issued in favour of
such persons. At this juncture, it will be proper to refer to
the decision of the Constitution Bench of this Court in Rai
Shivendra Bahadur (Dr.) v. Governing Body of the
Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC
1210] . That case arose out of a refusal to promote the
writ petitioner therein as the Principal of a college. This
Court held that in order that a mandamus may issue to
- 39 -
NC: 2025:KHC-D:3605
compel the authorities to do something, it must be shown
that the statute imposes a legal duty on the authority and
the aggrieved party had a legal right under the statute or
rule to enforce it. This classical position continues and a
mandamus could not be issued in favour of the employees
directing the Government to make them permanent since
the employees cannot show that they have an enforceable
legal right to be permanently absorbed or that the State
has a legal duty to make them permanent.
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 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4
SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
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 abovereferred to and in the light
of this judgment. In that context, the Union of
India, the State Governments and their
instrumentalities should take steps to 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 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.
- 40 -
NC: 2025:KHC-D:3605
54. It is also clarified that those decisions which run
counter to the principle settled in this decision, or in
which directions running counter to what we have held
herein, will stand denuded of their status as precedents.
55. In cases relating to service in the Commercial
Taxes Department, the High Court has directed that those
engaged on daily wages, be paid wages equal to the
salary and allowances that are being paid to the regular
employees of their cadre in government service, with
effect from the dates from which they were respectively
appointed. The objection taken was to the direction for
payment from the dates of engagement. We find that the
High Court had clearly gone wrong in directing that these
employees be paid salary equal to the salary and
allowances that are being paid to the regular employees
of their cadre in government service, with effect from the
dates from which they were respectively engaged or
appointed. It was not open to the High Court to impose
such an obligation on the State when the very question
before the High Court in the case was whether these
employees were entitled to have equal pay for equal work
so called and were entitled to any other benefit. They had
also been engaged in the teeth of directions not to do so.
We are, therefore, of the view that, at best, the Division
Bench of the High Court should have directed that wages
equal to the salary that is being paid to regular
employees be paid to these daily-wage employees with
effect from the date of its judgment. Hence, that part of
the direction of the Division Bench is modified and it is
directed that these daily-wage earners be paid wages
equal to the salary at the lowest grade of employees of
their cadre in the Commercial Taxes Department in
government service, from the date of the judgment of the
Division Bench of the High Court. Since, they are only
daily-wage earners, there would be no question of other
allowances being paid to them. In view of our conclusion,
that the courts are not expected to issue directions for
making such persons permanent in service, we set aside
that part of the direction of the High Court directing the
Government to consider their cases for regularisation. We
also notice that the High Court has not adverted to the
aspect as to whether it was regularisation or it was giving
permanency that was being directed by the High Court. In
such a situation, the direction in that regard will stand
deleted and the appeals filed by the State would stand
- 41 -
NC: 2025:KHC-D:3605
allowed to that extent. If sanctioned posts are vacant
(they are said to be vacant) the State will take immediate
steps for filling those posts by a regular process of
selection. But when regular recruitment is undertaken,
the respondents in CAs Nos. 3595-612 and those in the
Commercial Taxes Department similarly situated, will be
allowed to compete, waiving the age restriction imposed
for the recruitment and giving some weightage for their
having been engaged for work in the Department for a
significant period of time. That would be the extent of the
exercise of power by this Court under Article 142 of the
Constitution to do justice to them.
56. Coming to Civil Appeals Nos. 1861-2063 of 2001,
in view of our conclusion on the questions referred to, no
relief can be granted, that too to an indeterminate
number of members of the association. These
appointments or engagements were also made in the
teeth of directions of the Government not to make such
appointments and it is impermissible to recognise such
appointments made in the teeth of directions issued by
the Government in that regard. We have also held that
they are not legally entitled to any such relief. Granting of
the relief claimed would mean paying a premium for
defiance and insubordination by those concerned who
engaged these persons against the interdict in that
behalf. Thus, on the whole, the appellants in these
appeals are found to be not entitled to any relief. These
appeals have, therefore, to be dismissed.
57. CAs Nos. 3520-24 of 2002 have also to be allowed
since the decision of the Zilla Parishads to make
permanent the employees cannot be accepted as legal.
Nor can the employees be directed to be treated as
employees of the Government, in the circumstances. The
direction of the High Court is found unsustainable.
58. In the result, Civil Appeals Nos. 3595-612 of 1999,
Civil Appeal No. 3849 of 2001, Civil Appeals Nos. 3520-24
of 2002 and civil appeal arising out of Special Leave
Petitions (Civil) Nos. 9103-05 of 2001 are allowed subject
to the direction issued under Article 142 of the
Constitution in para 54 and the general directions
contained in para 52 of the judgment and Civil Appeals
Nos. 1861-2063 of 2001 are dismissed. There will be no
order as to costs."
- 42 -
NC: 2025:KHC-D:3605
7. This Court considered identical circumstances of
two of the employees, who had served for 39 years and 33
years respectively therein. The petitioners in the case at
hand, as on today rendered 24 years of service. The Apex
Court considers the very circumstance of those petitioners
therein being appointed under the Scheme or work charge
establishment issued. In that light, the endorsement that is
issued to the petitioners rejecting the claim needs to be
noticed.
" ೕಲ ಂಡ ಷಯ ಾಗೂ ಉ ೇಖ ೆ ಸಂಬಂ ದಂ ೆ,
ಾರ ೕಯ ಜನಸಂ ೆ !ೕಜ"ೆ-8 (ಐ.$.$-8) ರ%ಯ& ಗು ()ೆ ಆ+ಾರದ
ೕ ೆ "ೇಮಕ)ೊಂ%ರುವ /0ಯ ಮ12ಾ ಆ3ೋಗ ಸ ಾಯ/ಯರನು4
ಾಯಂ)ೊ5ಸುವ ಬ)ೆ6 ಉ ೇ7ತ (1) ರ& ೕಪ:; <ೕ%ದು=, ಉ ೇ7ತ (2)
ರ ಸ ಾ;ರದ ಆ>ೇಶದ ಪ@Aಾ(ವ"ೆಯ& ಬBಂC ಮತು( ಆಡ5ತ ಸು+ಾರDಾ
ಇ ಾ ೆ, ಆF;ಕ ಇ ಾ ೆ ಮತು( ಾನೂನು ಇ ಾ ೆಗ2ೆG ಂC)ೆ
ಸHಾ ೋIಸ ಾJದು=, ಸದ0 ಇ ಾ ೆಗಳL ಈ "ೌಕರರುಗಳ AೇOೆಯನು4
&ೕನ)ೊ5ಸಲು/ಸಕ@ಮ)ೊ5ಸಲು ಅವ ಾಶ ಇರುವ:Cಲ ಎಂದು
ಅRSಾ@ಯವನು4 <ೕ%ರ ಾJರುತ(>ೆ. ಅದರಂ ೆ ಾರತ ಜನಸಂ ಾ
<ಯಂತ@ಣ (ಐ.$.$-8) !ೕಜ"ೆಯ%ಯ& "ೇಮ ಾ )ೊಂಡು
ಾಯ;<ವ;1ಸು (ರುವ 27 ಜನ ಗು ()ೆ ಆ+ಾರದ /0ಯ ಮ12ಾ
ಆ3ೋಗ ಸ ಾಯ/ಯರನು4 ಸ ಾ;0 AೇOೆಯ& ಸಕ@ಮ)ೊ5ಸಲು
<ಯಮಗಳ& ಅವ ಾಶ ರದ 1ನ4 ೆಯ& "ೌಕರರುಗಳ AೇOೆಯನು4
&ೕನ)ೊ5ಸಲು/ ಸಕ@ಮ)ೊ5ಸಲು ಅವ ಾಶ ಇರುವ:CಲOೆಂಬ
- 43 -
NC: 2025:KHC-D:3605
ೕHಾ;ನವನು4 ೈ)ೊಳV ಾJರುತ(>ೆ. ಸದ0 27 ಗು ()ೆ ಆ+ಾರದ
"ೌಕರ0)ೆ ಪ@ಸು(ತ Hಾ ಕOಾJ ರೂ 6,000/- ಗಳ )ೌರವಧನದ ಬದ&)ೆ
Hಾ ಕ ರೂ. 15,000/- (ಹC"ೈದು Aಾ ರ ರೂSಾYಗಳL Hಾತ@) ಗಳ
)ೌರವ ಧನವನು4 ಭ ಷ ವ ;[ಾJ \ಾ0)ೆ ಬರುವಂ ೆ ಮಂಜೂರು
Hಾಡಲು ಸ ಾ;ರವ: ಉ ೇಖದ (2) ರ ಪ@ ಾರ ಆ>ೇ]ಸ ಾJ>ೆ. ಅದರಂ ೆ
ಗು ()ೆ "ೌಕರ3ಾದ <ಮ^ AೇOೆಯನು4 &ೕನ)ೊ5ಸಲು/ ಸಕ@ಮ)ೊ5ಸಲು
<ಯಮಗಳ& ಅವ ಾಶ ಇರುವ:Cಲ."
8. The endorsement does not whisper about the
claim for regularization, but observes that the salary of
rupees six thousand that was paid for the last 22 years
would now be increased to rupees fifteen thousand, which is
not even the minimum wage. Therefore, it is a clear case
that the services of the petitioners are continued for 24
years, they be left in the lurch today. This is the elucidation
of the Apex Court in the case of SHRIPAL VS. NAGAR
NINGAM2.
9. The other circumstances is that the learned
HCGP further projects another circumstances that the
judgment in the case of UMADEVI (3) supra was
regularization is one time measure and those who have not
2025 SCC OnLine SC 221
- 44 -
NC: 2025:KHC-D:3605
been found fit for regularization then cannot claim
regularization at a later point in time. This submission is
noted only to be rejected as the Apex Court in the
subsequent judgment, recorded after UMADEVI (3) supra
in the case of M.L. KESARI VS. STATE OF KARNATAKA3
has considered this aspect and directed the persons who
had not been regularized, are open to be regularized later
and observes that it was again for one time measure. The
subsequent judgments that have been considered by this
Court supra would steer clear the issue. Therefore, the
cases of these petitioners should merit consideration
bearing in mind the observations made in the course of this
order.
10. For the aforesaid reasons, the following:
ORDER
(i) The petitions are allowed.
(2010) 9 SCC 247
- 45 -
NC: 2025:KHC-D:3605
(ii) The endorsement dated 15.02.2023 issued
by respondent No.2 in all these petitions
stands quashed.
(iii) Mandamus issues and the respondent -
State shall now reconsider the cases of the
petitioners for regularization within an
outer limit of three months from the date
of receipt of a certified copy of this order
bearing in mind the observations made in
the course of the order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
VNP / CT: ASC
