Karnataka High Court
Indiramma vs State Of Karnataka on 7 March, 2025
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 86327 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 86327 OF 2012 (L-RES)
BETWEEN:
1. INDIRAMMA,
W/O LATE LAXMIPATHI,
AGE 36 YEARS,
OCC. COOK, R/O H.No.1-6-135,
AMBABHAVANI AREA,
INDIRA NAGAR, RAICHUR.
2. KHALEEL AHMED,
S/O MOHD.SAB,
AGE 41 YEARS, OCC. ASST. COOK,
R/O H.No.4-4-848/76,
ZAHEERABAD, RAICHUR.
Digitally
signed by 3. ERAMMA,
KIRAN
KUMAR R W/O NAGENDRA,
Location:
HIGH COURT AGE 29 YEARS, OCC. COOK,
OF
KARNATAKA R/O ARALIBENCHI,
POST:NALAL TQ. & DIST.RAICHUR-585101.
4. NARASAMMA,
W/O NARASAPPA, AGE 36 YEARS,
OCC. NIGHT WATCHMAN,
R/O RALKAPUR TQ. &
DIST. RAICHUR-585101.
5. ANJANAPPA,
S/O BOJARAPPA,
AGE 40 YEARS, OCC. HELPER,
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WP No. 86327 of 2012
R/O H.No.8-7-17, HARIJAN WADA,
RAICHUR-585 101.
6. GOPAL,
S/O HUSSAINAPPA,
AGE 41 YEARS, OCC. HELPER,
H.No.4-3-73, MANGALWARPETH,
RAICHUR.
7. URKUNDAMMA,
W/O HANMANTHU,
AGE 41 YEARS, OCC. COOK,
R/O H.No.4-3-63,
MANGALWARPETH, RAICHUR.
8. SABAMMA,
W/O RAMANNA,
AGE 37 YEARS, OCC. COOK,
R/O H.No.1-11-46/52,
RANA PRATAP SINGH COLONY,
RAMPUR TALUK AND DIST. RAICHUR.
...PETITIONERS
(BY SRI. VILAS KUMAR SENIOR COUNSEL FOR
SRI. NITESH PADIYAL., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
SOCIAL WELFARE DEPARTMENT,
VIKAS SOUDHA,
BANGALORE-560 001.
2. THE STATE OF KARNATAKA,
REPRESENTED BY ITS,
PRINCIPAL SECRETARY,
RURAL DEVELOPMENT & PANCHAYAT RAJ
DEPARTMENT, M.S.BUILDING,
BANGALORE-560 001.
3. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
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WP No. 86327 of 2012
EDUCATION DEPARTMENT,
(PRIMARY & SECONDARY EDUCATION)
M.S.BUILDING, BANGALORE-560 001.
4. THE EXECUTIVE DIRECTOR,
KARNATAKA RESIDENTIAL EDUCATIONAL
INSTITUTION SOCIETY,
AN ORGANIZATION OF SOCIAL WELFARE,
DEPARTMENT, CFC BUILDING,
NRUPATHUNGA ROAD,
BANGALORE-560 001.
5. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYAT,
RAICHUR DISTRICT,
RAICHUR-585 101.
6. THE DISTRICT OFFICER,
SOCIAL WELFARE DEPARTMENT,
RAICHUR DISTRICT,
RAICHUR-585 101.
...RESPONDENTS
(BY SMT. ARTI PATIL., HCGP FOR R-1 TO 3 & 6;
SRI. SHARANABASAPPA.K., BABSHETTY, FOR R-4;
SRI. GOURISH.S.KESHAVPUR., FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI FOR QUASHING THE AWARD
PASSED BY LABOUR COURT GULBARGA PASSED IN
REF.No.132/11 DATED:11.7.12 WHICH IS AT ANNEXURE-A
AND ORDER FOR THE REGULARIZATION OF SERVICE OF THE
PETITIONERS WITH ALL CONSEQUENTIAL BENEFITS.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27.08.2024, COMING ON FOR
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PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CAV ORDER
1. This petition is filed challenging the order passed by
the Labour Court, Gulbarga, by which the Labour
Court has rejected the Reference.
2. On 28.08.2011, the Government of Karnataka
referred the dispute as to whether the respondents
therein (State, Executive Director of Karnataka
Residential Educational Institutions Society; Chief
Executive Officer, Zilla Panchayat, Raichur; and the
District Officer, Social Welfare Department) were
right in not regularizing the services of the claimants.
3. It was the case of the petitioners that they were
working as Cooks, Assistant Cook, Helpers and
Watchman at Morarji Desai Residential School
Hostels and they had been appointed in accordance
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with law through the District Committee of Social
Welfare Department which had passed a resolution
for selecting the petitioners.
4. It was contended that they were working from
several years and were therefore entitled to be
regularized. They stated that they were aggrieved by
a Notification by which tenders have been called for
to engage employees on contract basis and since this
would result in their removal, they were constrained
to raise a dispute.
5. In response, the State Government entered
appearance and contested the proceedings by filing
objections. The State denied all the contentions
raised by the petitioners and stated that they were
not entitled to regularization. It was, however,
admitted that the petitioners were working in the
Moraji Desai Government Residential Hostel as piece-
rate workers and their appointment was only for a
temporary period till permanent appointment was
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made to the posts according to the Rules of
Recruitment.
6. They contended that their claim for regularization
cannot be considered since the Government had not
given permission after 01.07.1984 to engage any
daily wage workers and, therefore, the petitioners
could not be permitted to seek regularization.
7. The petitioners adduced evidence by examining one
of themselves and got two documents marked. On
behalf of the State, no evidence was adduced.
8. The Labour Court on consideration of the evidence
produced recorded a finding that as per Annexure-A
to the Reference, it was clear that the petitioners had
worked in the Social Department as Assistant Cooks,
Helpers and Watchman right from 1995 and it was
clear that they had rendered service in the Social
Welfare Department for a fairly long period.
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9. However, the Labour Court took the view that merely
because they had rendered service for a very long
period that would not confer a right on them to seek
regularization.
10. The Labour Court, placing reliance on the judgment
rendered in Umadevi's case1, has come to the
conclusion that the appointment of the petitioners
could not be regularized and accordingly, rejected
their Reference.
11. Aggrieved by this rejection of their Reference, the
petitioners are before this Court.
12. Learned Senior Counsel Sri. P. Vilas Kumar appearing
for the petitioners contended that the fact that the
petitioners had rendered services in excess of 20
years was not in dispute and the Labour Court has
affirmed this fact by recording a clear finding in that
regard. He, therefore, submitted that the
petitioners, having rendered service in excess of two
State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.
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decades, were entitled to be regularized since their
appointments could, at best, be considered as
irregular. It was stated that since the petitioners
were continued for a very long period, it was obvious
that their employment was permanent in nature and
the jobs entrusted were also perennial in nature.
13. He submitted that the judgment rendered in
Umadevi's case can have no application in cases of
this kind where the workman had rendered services
for more than two decades and were still employed
by the respondents.
14. Learned counsel for the State, on the other hand,
supported the order of the Labour Court and
contended that Umadevi's case prohibited the
regularization of improperly appointed persons and
no fault can thus be found with the award of the
Labour Court.
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15. On 20.08.2024, the State placed on record the
communication dated 17.08.2024, in which it was
stated that petitioner Nos.3, 4, 5 and 6 continued to
work at Morarji Desai Residential School on Ashapur
Road, Raichur. It was also stated that petitioner No.6
had suffered a paralytic stroke and that his son is
working on his behalf. It was also stated that
petitioner No.1 was dead and petitioner Nos.2, 7 and
8 were employed elsewhere.
16. This Court took note of the fact that the Government
Pleader admitted that the petitioners were working at
Morarji Desai Residential School from the year 2000,
but he contended that they were not entitled to
regularization.
17. In light of the submissions made, this Court directed
respondent No.4 to file an affidavit as to how many
years petitioner Nos.3, 4, 5 and 6 were working in
the school.
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18. In response, respondent No.4 through its Executive
Director has filed an affidavit stating that as per the
records, the 3rd petitioner had joined Morarji Desai
Residential School, Ashapur Road, Raichur on
01.09.2000 as a 'Cook' and she had been continued
to work as a Cook in said school even as on date and
was being paid a sum of Rs.14,427/- per month after
deductions.
19. It was stated that petitioner No.4 had joined the
school on 01.09.1997 as a 'Night Watchman' and had
continued her service till date and was drawing a
sum of Rs.12,299/- per month after deductions.
20. It was stated that petitioner No.5 had joined the
school on 22.06.1996 as 'Helper' (peon) under
temporary daily wages scheme and continued to be
in service till date through ARC out-source agency
and was drawing a sum of Rs.12,299/- per month
after deductions.
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21. It was stated that petitioner No.6 had joined the
services of the school as 'Helper' (cleaning staff) on
1997 and he continued to work till December, 2020.
But, thereafter, he suffered a paralytic stroke and his
son Hussinappa had therefore replaced him. He was
continued as a 'Helper' from 01.01.2021 and was
being paid a sum of Rs.12,299/- per month after
deductions.
22. It is also stated that petitioner Nos.3 to 5 were
working as employees of an outsourcing agency,
namely ARC Agency.
23. It is thus clear from this affidavit that the present
petition will have to be confined only to petitioner
Nos.3 to 6, since all of them have been working for
more than 20 years.
24. The claim of the 1st petitioner would not survive since
he is no more and the claim of the 2nd, 7th and 8th
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petitioners need not be considered since they were
employed elsewhere.
25. The case of petitioner No.6, though not working as of
now due the stroke that he suffered, would also have
to be considered since he had been working for 22
years before he was afflicted with illness and as a
result of which his son has continued in his place.
26. The principal argument advanced by the learned AGA
is that there is a clear bar for regularization of
employees who have been appointed without
following any procedural Rules after 1st July, 1984. It
is sought to be contended that the post to which the
petitioners were appointed were not sanctioned
posts, and, therefore, they cannot take the benefit of
the judgment of Umadevi's case and that
Umadevi's case, in fact, barred the regularization.
27. The argument that there was a complete bar for
entertaining any plea for regularization in light of the
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judgment rendered in Umadevi's case cannot be
accepted.
28. Though there are a number of decisions rendered by
the Apex Court wherein it is held that regularisation
is an exception -- only if initial appointment was
irregular and the person so appointed had worked for
more than 10 years without Court intervention -- the
decision rendered in Umadevi and the guidelines
laid therein cannot, as also explained by the Apex
Court in other cases, be used as a shield to exploit
contract workers endlessly.
29. In this regard, it would be pertinent to consider a few
judgments of the Apex Court which take note of the
above observation to interpret Umadevi accordingly.
30. The Apex Court in case of Narendra Kumar Tiwari2
considered another judgment rendered by it in
Narendra Kumar Tiwari v. State of Jharkhand, (2018) 8 SCC 238.
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M.L.Kesari3 to interpret the decision rendered in
Umadevi as extracted below:
"4. Having heard the learned counsel for the
parties and having considered the decision of
the Constitution Bench in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] as well as the
subsequent decision of this Court explaining
Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] in
State of Karnataka v. M.L. Kesari [State of
Karnataka v. M.L. Kesari, (2010) 9 SCC 247 :
(2010) 2 SCC (L&S) 826], we are of the view
that the High Court has erred in taking an
impractical view of the directions in Umadevi
(3) [State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] as well as its
consideration in Kesari [State of Karnataka v.
M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC
(L&S) 826] .
5. The decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] was intended to put a
full stop to the somewhat pernicious practice
of irregularly or illegally appointing daily-wage
State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247.
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workers and continuing with them indefinitely.
In fact, in para 49 of the Report, it was
pointed out that the rule of law requires
appointments to be made in a constitutional
manner and the State cannot be permitted to
perpetuate an irregularity in the matter of
public employment which would adversely
affect those who could be employed in terms
of the constitutional scheme. It is for this
reason that the concept of a one-time
measure and a cut-off date was introduced in
the hope and expectation that the State would
cease and desist from making irregular or
illegal appointments and instead make
appointments on a regular basis.
6. The concept of a one-time measure was
further explained in Kesari [State of Karnataka
v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2
SCC (L&S) 826] in paras 9, 10 and 11 of the
Report which read as follows: (SCC pp. 250-
51, paras 9-11)"
"9. The term "one-time measure" has to be
understood in its proper perspective. This
would normally mean that after the decision
in Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753], each department or each
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instrumentality should undertake a one-
time exercise and prepare a list of all
casual, daily-wage or ad hoc employees
who have been working for more than ten
years without the intervention of courts and
tribunals and subject them to a process
verification as to whether they are working
against vacant posts and possess the
requisite qualification for the post and if so,
regularise their services.
10. At the end of six months from the date
of decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1
: 2006 SCC (L&S) 753] , cases of several
daily-wage/ad hoc/casual employees were
still pending before courts. Consequently,
several departments and instrumentalities
did not commence the one-time
regularisation process. On the other hand,
some government departments or
instrumentalities undertook the one-time
exercise excluding several employees from
consideration either on the ground that
their cases were pending in courts or due to
sheer oversight. In such circumstances, the
employees who were entitled to be
considered in terms of para 53 of the
decision in Umadevi (3) [State of Karnataka
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v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , will not lose their right to be
considered for regularisation, merely
because the one-time exercise was
completed without considering their cases,
or because the six-month period mentioned
in para 53 of Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1
: 2006 SCC (L&S) 753] has expired. The
one-time exercise should consider all daily-
wage/ad hoc/casual employees who had put
in 10 years of continuous service as on 10-
4-2006 without availing the protection of
any interim orders of courts or tribunals. If
any employer had held the one-time
exercise in terms of para 53 of Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] , but did
not consider the cases of some employees
who were entitled to the benefit of para 53
of Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , the employer concerned
should consider their cases also, as a
continuation of the one-time exercise. The
one-time exercise will be concluded only
when all the employees who are entitled to
be considered in terms of para 53 of
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Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , are so considered.
11. The object behind the said direction in
para 53 of Umadevi (3) [State of Karnataka
v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] is twofold. First is to ensure that
those who have put in more than ten years
of continuous service without the protection
of any interim orders of courts or tribunals,
before the date of decision in Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] was
rendered, are considered for regularisation
in view of their long service. Second is to
ensure that the
departments/instrumentalities do not
perpetuate the practice of employing
persons on daily-wage/ad hoc/casual basis
for long periods and then periodically
regularise them on the ground that they
have served for more than ten years,
thereby defeating the constitutional or
statutory provisions relating to recruitment
and appointment. The true effect of the
direction is that all persons who have
worked for more than ten years as on 10-4-
2006 [the date of decision in Umadevi (3)
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[State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] ] without
the protection of any interim order of any
court or tribunal, in vacant posts,
possessing the requisite qualification, are
entitled to be considered for regularisation.
The fact that the employer has not
undertaken such exercise of regularisation
within six months of the decision in
Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] or that such exercise was
undertaken only in regard to a limited few,
will not disentitle such employees, the right
to be considered for regularisation in terms
of the above directions in Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] as a one-
time measure."
7. The purpose and intent of the decision in
Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
was therefore twofold, namely, to prevent
irregular or illegal appointments in the future
and secondly, to confer a benefit on those who
had been irregularly appointed in the past. The
fact that the State of Jharkhand continued with
the irregular appointments for almost a decade
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after the decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] is a clear indication that
it believes that it was all right to continue with
irregular appointments, and whenever
required, terminate the services of the
irregularly appointed employees on the ground
that they were irregularly appointed. This is
nothing but a form of exploitation of the
employees by not giving them the benefits of
regularisation and by placing the sword of
Damocles over their head. This is precisely
what Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)
753] and Kesari [State of Karnataka v. M.L.
Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S)
826] sought to avoid."
(emphasis supplied)
31. It is thus clear that the decisions rendered in
Umadevi and M.L. Kesari aimed at curbing the
exploitative practice of appointing workers on an
irregular or daily-wage basis and keeping them in
continued employment without regularisation.
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32. In a recent judgment rendered by the Hon'ble
Supreme Court in Jaggo's case4, the Apex Court
considered the case of Vinod Kumar5 to explain the
ratio laid down in Umadevi's case and the manner in
which it is to be construed, in the following terms -
"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
Jaggo v. Union of India, 2024 SCC Online SC 3826.
Vinod Kumar v. Union of India, (2024) 9 SCC 327.
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Kumar v. Union of India, it was 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. The relevant
paras of this judgment have been reproduced
below:
"6. The application of the judgment in Uma
Devi (supra) 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 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 the case of Uma Devi (supra).
7. The judgment in the case Uma Devi (supra)
also distinguished between "irregular" and
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"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..."
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.
22. The pervasive misuse of temporary
employment contracts, as exemplified in this case,
reflects a broader systemic issue that adversely
affects workers' rights and job security. In the
private sector, the rise of the gig economy has led
to an increase in precarious employment
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arrangements, often characterized by lack of
benefits, job security, and fair treatment. Such
practices have been criticized for exploiting
workers and undermining labour standards.
Government institutions, entrusted with upholding
the principles of fairness and justice, bear an even
greater responsibility to avoid such exploitative
employment practices. When public sector entities
engage in misuse of temporary contracts, it not
only mirrors the detrimental trends observed in the
gig economy but also sets a concerning precedent
that can erode public trust in governmental
operations.
23. The International Labour Organization (ILO),
of which India is a founding member, has
consistently advocated for employment stability
and the fair treatment of workers. The ILO's
Multinational Enterprises Declaration6 encourages
companies to provide stable employment and to
observe obligations concerning employment
stability and social security. It emphasizes that
enterprises should assume a leading role in
promoting employment security, particularly in
contexts where job discontinuation could
exacerbate long-term unemployment.
24. The landmark judgment of the United State in
the case of Vizcaino v. Microsoft Corporation7 serves
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as a pertinent example from the private sector,
illustrating the consequences of misclassifying
employees to circumvent providing benefits. In this
case, Microsoft classified certain workers as
independent contractors, thereby denying them
employee benefits. The U.S. Court of Appeals for
the Ninth Circuit determined that these workers
were, in fact, common-law employees and were
entitled to the same benefits as regular employees.
The Court noted that large Corporations have
increasingly adopted the practice of hiring
temporary employees or independent contractors as
a means of avoiding payment of employee benefits,
thereby increasing their profits. This judgment
underscores the principle that the nature of the
work performed, rather than the label assigned to
the worker, should determine employment status
and the corresponding rights and benefits. It
highlights the judiciary's role in rectifying such
misclassifications and ensuring that workers receive
fair treatment.
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
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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.
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• 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-
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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
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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."
(emphasis supplied)
33. In light of the above judgment, it is clear that the
reliance placed by the State on the judgment
rendered in Umadevi's case to contend that there
can be no orders passed regularizing the service of
daily wage employees, cannot be accepted.
34. In fact, the Hon'ble Supreme Court has stated that
the State Governments were overlooking the
judgments explicit acknowledgement in cases where
the regularization was appropriate but its selectively
application was distorting the spirit and purpose of
Umadevi's judgment.
35. It has also been clearly explained that this judgment
was used to indiscriminately reject the case of the
employees even in the cases where appointments
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were not illegal but merely lacked adherence to
procedural formalities.
36. The principles laid down in the judgment in Jaggo's
case has been reiterated by the Apex Court in
another recent judgment rendered in Shripal's case6
wherein the Court, while dealing with the contention
of the respondents therein regarding the
inapplicability of regularisation to a daily-wager as
contemplated in Umadevi's case, has interpreted the
judgment rendered in Umadevi and made clear
distinction between appointments which were
"illegal" from those "irregular", while also holding
that the latter would be eligible for absorption when
the criteria mentioned in said judgment are met. It
was also made clear that Umadevi could not be
used to justify exploitative engagements. The
relevant paragraphs have been reproduced below:
Shripal & Anr. v. Nagar Nigam, Ghaziabad, Civil Appeal No.8157 of 2024
dd.31.01.2025.
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"14. The Respondent Employer places reliance
on Umadevi (supra) 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
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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. At this juncture, it would be
appropriate to recall the broader critique of
indefinite "temporary" employment practices as
done by a recent judgement of this court in
Jaggo v. Union of India..."
37. It may also be pertinent to state here that in
Shripal's case, the Apex Court was dealing with a
case similar to the present case, inasmuch as it was
dealing with the claim of employees who were
working as gardeners' for more than 10 years and
their claim for regularisation had been negatived by
the labour Court and affirmed by the High Court.
38. However, despite these rulings, the continued
practice of irregular appointments and dismissals --
effectively exploiting part-time employees by
withholding regular employment benefits while also
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ensuring that they are appointed temporarily against
no sanction post -- is still widely prevalent. This was
precisely the kind of unfair practice that Umadevi
and M.L. Kesari sought to eliminate.
39. It is therefore clear that the reliance placed on the
interpretation of Umadevi's case by the Labour
Court as well as by the State is incorrect and cannot
be accepted.
40. As in the above cases, even in this case, the
respondents have embarked upon the practice of
issuing tenders and outsourcing the same tasks
during the pendency of the judicial proceedings and
it is, in fact, the clear finding recorded by the Labour
Court that the petitioners have admittedly been
serving the social welfare Department for a very long
time.
41. In fact, the Executive Director has filed an affidavit in
which he categorically admits that petitioner Nos.3 to
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6 have rendered for more than 20 years and
petitioner Nos.3, 4 and 5 continued to work even to
this date albeit through an outsourcing agency.
42. In other words, the petitioner Nos.3, 4 and 5 have
rendered 24, 26 and 27 years of service continuously
which, in the normal course of employment, would
be the regular tenure of a regularly appointed
employee of the State Government.
43. The fact that the petitioners were appointed for low
skilled jobs such as -- cook, watchman and helper,
by itself, indicates that there was no need for any
formal education qualifications, and having regard to
their long standing service rendered in the
Residential Schools, the refusal to register regularize
their service, in my view, would be a travesty of
justice.
44. It may also be pertinent to state here that for the
region of Hyderabad-Karnataka, an amendment was
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made to the Constitution and Article 371J was
inserted which provided for the President to give a
special responsibility to the Governor to provide for
the matters stated therein.
45. In fact, Article 371J (2)(b) provided in the matter of
recruitment as follows:
"Article 371J: Special provisions with
respect to the State of Karnataka
(1)...
(2) An order made under sub-clause (c) of
clause (1) may provide for--
(b) Identification of posts or classes of posts
under the State Government and in anybody or
organisation under the control of the State
Government in the Hyderabad-Karnataka
region and reservation of a proportion of such
posts for persons who belong to that region by
birth or by domicile and for appointment
thereto by direct recruitment or by promotion
or in any other manner as may be specified in
the order."
46. It is therefore clear that this Constitutional provision
itself provides for appointment by direct recruitment
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or by promotion or in any other manner as may be
specified in the order.
47. As provided under Article 371J, the President has
passed an order on 26.10.2013 conferring special
responsibility for the establishment of a development
Board and for matters connected therewith as
referred to in Article 371K (1) and (2).
48. The Governor, in exercise of his powers under the
Presidential order, on 06.11.2013, has also issued an
order titled "The Karnataka Public Employment
(Reservation in Appointment for Hyderabad-
Karnataka Region) Order, 2013" in which Clause 13C
in relation to "Protection and promotion of rights of
local candidates" reads as follows:
"13C: Protection and promotion of rights
of local candidates: Local candidates who
had been appointed by the Government on
local basis and who have worked for more than
10 years prior to 01-01-2013; or local
candidates who have worked on daily or
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contract basis in Government for more than 10
years prior to 01-01-2013 and fulfill conditions
as prescribed may be given certain concessions
in appointment and other benefits as
prescribed by the Government."
49. As could be seen from said clause, for the persons in
Hyderabad Karnataka region, who have rendered ten
(10) years of service prior to 01.01.2013, it is the
constitutional mandate that they are required to be
protected, promoted and also be given certain
concessions in the matter of recruitment.
50. The manner of recruitment contemplated would not
only include direct recruitment or promotion but any
other manner of recruitment. Since, this clause
specifically deals with a daily wager or a contractual
employee who has rendered more than 10 years of
service prior to 01.01.2013, it is obvious that the
other manner referred to in the order can only be
relatable to regularisation.
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51. It is, however, to be stated that the concessions
have not been prescribed by the framing of rules
relating to regularisation, but the fact remains that
there is a constitutional mandate to grant a
concession to persons in the matter of regularization
if they have put in service of more than ten (10)
years of service as daily wagers or as contractual
employees prior to 01.01.2013.
52. In light of this Governor's Order issued under Article
371J, it is obvious that the judgment of Umadevi's
case can also have no application since the residents
of Hyderabad-Karnataka region, who have worked
for more than 10 years as a daily-wager or as a
contractual employee, have been conferred a
constitutional right to be given concessions in the
matter of this recruitment. Consequently, their right
to be recruited by means of regularization, if they
have rendered service for more than ten (10) years
prior to 01.01.2013, cannot be denied and sets their
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case apart from the regular claims of regularisation
by persons from the other parts of the country which
do not have this Constitutional provision.
53. In this view of the matter, it is clear that the
impugned order cannot be sustained and the same is
accordingly set aside.
54. Since it is not in dispute that the petitioner Nos.3 to
6 have rendered service for more than twenty (20)
years and have continued to discharge their duties,
they shall be regularized forthwith.
55. The petitioners shall not, however, be entitled to any
backwages for their past service.
56. However, they will be entitled for consideration of
their service as permanent employees from the
expiry of ten (10) years from the date of their initial
appointment for the purposes of calculating their
retirement benefits and pension.
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57. As far as petitioner No.6 is concerned, since
petitioner No.6 has also worked from 1998 till 2016
i.e., for 22 years, as already held above, he would
also be entitled to be regularised on the expiry of his
completion of 10 years of service.
58. By virtue of this order of regularisation, he would be
a regular employee and on him suffering a paralytic
stroke, his son would be entitled to be appointed on
compassionate grounds. Therefore, his son who is
admittedly working on his behalf, he would be
deemed to have been appointed on compassionate
basis and he will be treated as a regular employee
from the date he has been engaged.
59. It is made clear that the obligation of the State to
pay pension to the 6th petitioner shall continue to
subsist if he possessed the requisite qualifying
service from the date of his regularization i.e., ten
(10) years from the date of his initial appointment.
This Writ Petition is, accordingly, allowed.
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60. Since petitioner No.1 is no more and petitioner
Nos.2, 7 and 8 are employed elsewhere, the
rejection of their reference insofar as they are
concerned, is affirmed.
61. In view of the disposal of this petition, all pending
interlocutory applications, if any, stand disposed of.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
HNM
