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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 36084 OF 2016

SPECIAL LEAVE PETITION (C)11941 OF 2016

(@ out of SLP (C) CC No. 16091 OF 2016)

STATE OF JAMMU AND KASHMIR & ORS .....APPELLANTS

VERSUS

DISTRICT BAR ASSOCIATION, BANDIPORA .....RESPONDENT

J U D G M E N T

Dr D Y CHANDRACHUD, J

Delay condoned.

Leave granted.

2.The State of Jammu and Kashmir seeks to challenge the orders

dated 1 December 2015 and 10 August 2016 of a Division Bench of the

Page 2 2

High Court in a Public Interest Litigation instituted by the District Bar

Association, Bandipora. The grievance of the Bar Association was that

since the creation of the district of Bandipora in 2007, the Sessions Court

has been housed in a building which used to be a part of the Munsif’s Court

Complex. The Principal District and Sessions Judge, Chief Judicial

Magistrate and Munsif discharge their judicial functions in a building which

lacks basic amenities. On 30 November 2013 during the course of a mega

Lok Adalat, the Administrative Judge expressed the view that a suitable plot

of land is urgently required for the District Court. This was communicated

by the Additional Deputy Commissioner to the Tehsildar on 30 November

2013. A direction was sought for the transfer of certain land which is stated

to have been earmarked for the construction of the District Court Complex

or, in the alternative, for the provision of a suitable site. Provision of proper

amenities was sought.

3.During the course of the hearing of the Public Interest Litigation, the

Division Bench noted in an order dated 7 October 2015 that an application

had been filed by the daily rated workers engaged in the High Court at

Srinagar (MP1/2015). The Advocate General informed the Division Bench

that a direction had been issued by a co-ordinate Bench in a writ petition

filed by the daily rated workers requiring the State to file its response.

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4.By its interim direction dated 7 October 2015, the Division Bench

ordered thus :

“Respondent – State is duty bound to consider claim

of the daily rated workers and as a “one time

exception” regularize their services. Commissioner

Secretary to Government, Department of Law,

Justice and Parliamentary Affairs, to file Status

Report about this aspect of the matter as well before

next date of hearing.”

A Special Leave Petition filed by the state government against the interim

order of the High Court was dismissed by this Court on 16 December 2015.

5.On 1 December 2015, the Division Bench issued a further direction in

which notice was taken of the fact that the state government had, over a

considerable period of time, failed to create the required number of posts

for the state judiciary. As a result, and in order to ensure that the work of

the courts was not hampered, arrangements were made to engage

persons on a daily wage basis. The High Court observed that the state

government is duty bound to create an equal number of posts for the

absorption of daily rated employees at the earliest. The observations of the

High Court are extracted below :

“It is submitted that considerable period of time, the

Government has not created required number of

posts for the State Judiciary. It is also submitted that

because of dearth of staff, the work in the courts was

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hampered. It is also submitted that in order to

ensure that the work of the courts do not suffer and

until such time posts are created by the Government,

which is the Constitutional responsibility of the State,

it was deemed necessary to make engagements on

daily wage basis. It is submitted that this step was

taken to ensure that the judicial work does not suffer.

This class of employees in essence are the

substitute for regular employees posts which the

Government was duty bound to create. These Daily

Rated Workers would not be regulated by the rules

governed by SRO 64 of 1994. The information has

been already provided to the Government about

these persons who have been engaged in Daily

wage Basis and the Government shall have to create

equal number of posts in the State Judiciary for their

absorption which action is to be taken independent of

the Rules notified vide SRO 64 of 1994. The

information has been already provided to the

Government about these persons who have been

engaged on Daily Wage Basis and the Government

shall have to create equal number of posts in the

State Judiciary for their absorption which action is to

be taken independent of the Rules notified vide SRO

64 of 1994. The daily wagers constitute a class in

themselves.

The stand taken by the respondents in the aforesaid

additional information would not thus affect the rights

of the persons who have been engaged on Daily

Wages Basis in the State Judiciary. The State is duty

bound to create equal number of posts for their

absorption, inasmuch as no guarantee of status as

Government employee. The State Government

besides being duty bound to provide complete

infrastructure and paraphernalia area which include

creation of posts are duty bound to create posts are

those persons engaged on Daily rated Basis at the

earliest”.

6.On 10 August 2016 when the petition was taken up by the High

Court, the Additional Advocate General submitted that the Registrar

Page 5 5

General had addressed a communication on 23 April 2014 for the

regularization of 188 daily rated workers engaged from time to time in the

High Court and subordinate courts. However, the annexure enclosed to

the communication contained a list of 228 workers. Hence, on 27 July

2016 a clarification was sought in regard this discrepancy in numbers. On

29 July 2016 the Registrar General clarified that the actual strength of

daily rated workers in the High Court was 98 (and not 58 as incorrectly

stated earlier) and that the correct number of workers engaged in the High

Court and district courts together was 228. The current strength of daily

rated workers was stated to be 209. The High Court took the view that

following the dismissal of the Special Leave Petition by this Court against

its interim order the state was duty bound to create 209 posts for the

absorption of the daily rated workers. The statement of the AAG was

recorded on instructions that 209 Class IV posts would be created within

three weeks. However, the High Court proceeded to issue a notice to

show cause to Mr. Mohammad Ashraf Mir, the then

Commissioner/Secretary to the State Government in the Department of

Law, Justice and Parliamentary Affairs, for having made an incorrect

statement on 15 July 2016 that the State Government had already taken

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steps for implementing the order of the High Court to create additional

posts. The State Government is in appeal.

7.By an order dated 5 September 2016, the Secretary to the

Department of Law in the State Government was directed to secure

relevant information about the date of joining of all the daily wage

employees working in the High Court of Jammu and Kashmir and to file it

on affidavit before this Court. Pursuant thereto, an affidavit has been filed

stating that the information received from the Registrar General of the High

Court indicates that two hundred and nine daily wage employees are

working in the High Court and the district judiciary in the State. The

information which has been placed on the record indicates that :

(i)Fifty daily wage employees are engaged in the Jammu wing of the

High Court whose dates of engagement fall between August 2001 and

March 2015;

(ii)Eleven sewaks are employed in the Jammu wing with dates of

engagement falling between February 2011 and February 2016;

(iii)Forty five daily wagers are engaged in the Srinagar wing of the High

Court with dates of engagement between May 1998 and January 2015;

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(iv)Two daily wagers are posted in the main wing, being recruited in

2008 and 2013;

(v)Thirty seven daily wagers are engaged in ten districts of the Jammu

region and sixty four are engaged in twelve districts in Kashmir. While one

of them in District Kulgam was engaged as far back as in 1984, the most

recent of those engaged (District Badgam) is in March 2014; and

(vi)Of the two hundred and nine daily wage employees, one hundred

and one are engaged in the district courts while one hundred and eight are

engaged in the High Court, both at Jammu and Srinagar.

8.The first submission that has been urged is that the direction issued

by the High Court is contrary to the law laid down by this Court in Renu v.

District & Sessions Judge, Tis Hazari Courts, Delhi

1

.

9.The issue which arises must be viewed bearing in mind the essence

of the judgment of the Constitution Bench in Secretary, State of

Karnataka v. Umadevi

2

and subsequent judgments which followed it. In

the judgment of the Constitution Bench, the following two issues primarily

fell for consideration :

1

(2014) 14 SCC 50

2

(2006) 4 SCC 1

Page 8 8

(i)The right of employees seeking regularization on the strength of long

and continuous work; and

(ii)The correctness of directions issued by courts for regularisation of

employees under Article 226 of the Constitution.

The decision in Umadevi dealt firstly with the right claimed by temporary

employees to be regularised in service on the basis of long continuance,

legitimate expectations, employment under the State and the Directive

Principles. The second salient question which the Constitution Bench was

called upon to answer was whether courts would be justified in issuing

directions for regularisation based on such features such as equality and

long spells of service. On both counts the Constitution Bench held against

the temporary employees.

However Umadevi is not an authority for the proposition that the executive

or the legislature cannot frame a scheme for regularisation. Uma Devi does

not denude the State or its instrumentalities from framing a scheme for

regularisation. In paragraph 53 of the decision, this Court held as follows :

“53. One aspect needs to be clarified. There may be

cases where irregular appointments (not illegal

appointments) as explained in State of Mysore v. S.V.

Narayanappa, R.N. Nanjundappa v. T. Thimmiah and

B.N. Nagarajan v. State of Karnataka and referred to

in para 15 above, of duly qualified persons in duly

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sanctioned vacant posts might have been made and

the employees have continued to work for ten years

or more but without the intervention of orders of the

courts or of tribunals. The question of regularisation

of the services of such employees may have to be

considered on merits in the light of the principles

settled by this Court in the cases above referred to

and in the light of this judgment. In that context, the

Union of India, the State Governments and their

instrumentalities should take steps to regularise as a

one-time measure, the services of such irregularly

appointed, who have worked for ten years or more in

duly sanctioned posts but not under cover of orders

of the courts or of tribunals and should further ensure

that regular recruitments are undertaken to fill those

vacant sanctioned posts that require to be filled up,

in cases where temporary employees or daily wagers

are being now employed. The process must be set in

motion within six 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.”

10.The third aspect of Umadevi which bears notice is the distinction

between an “irregular” and “illegal” appointment. While answering the

question of whether an appointment is irregular or illegal, the Court would

have to enquire as to whether the appointment process adopted was

tainted by the vice of non-adherence to an essential prerequisite or is liable

to be faulted on account of the lack of a fair process of recruitment. There

may be varied circumstances in which an ad hoc or temporary

appointment may be made. The power of the employer to make a

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temporary appointment, if the exigencies of the situation so demand,

cannot be disputed. The exercise of power however stands vitiated if it is

found that the exercise undertaken (a) was not in the exigencies of

administration; or (b) where the procedure adopted was violative of Articles

14 and 16 of the Constitution; and/or (c) where the recruitment process

was overridden by the vice of nepotism, bias or mala fides. If the

appointment process is not vitiated by any of the above faults, can it be

said that appointments made as an outcome of such an exercise cannot

be regularised under a scheme framed in that regard by the employer?

This is particularly when the employer himself proceeds to frame a scheme

to bring these employees within the protective umbrella of regular service

without the intervention or command of a court direction. This is the issue

to which we turn. We propose to analyse the precedents before

formulating the principles.

11.Dealing with the issue of whether Labour Courts are denuded of

authority to direct regularization pursuant to labour enactments, this Court

in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari

Sanghatana

3

, held thus :

3

(2009) 8 SCC 556

Page 11 11

“34. It is true that Dharwad Distt. PWD Literate Daily

Wages Employees' Assn. arising out of industrial

adjudication has been considered in Umadevi (3)

and that decision has been held to be not laying

down the correct law but a careful and complete

reading of the decision in Umadevi (3) leaves no

manner of doubt that what this Court was concerned

in Umadevi (3) was the exercise of power by the

High Courts under Article 226 and this Court under

Article 32 of the Constitution of India in the matters of

public employment where the employees have been

engaged as contractual, temporary or casual workers

not based on proper selection as recognised by the

rules or procedure and yet orders of their

regularisation and conferring them status of

permanency have been passed.

35. Umadevi (3) is an authoritative pronouncement

for the proposition that the Supreme Court (Article

32) and the High Courts (Article 226) should not

issue directions of absorption, regularisation or

permanent continuance of temporary, contractual,

casual, daily wage or ad hoc employees unless the

recruitment itself was made regularly in terms of the

constitutional scheme.

36. Umadevi (3) does not denude the Industrial and

Labour Courts of their statutory power under Section

30 read with Section 32 of the MRTU and PULP Act

to order permanency of the workers who have been

victims of unfair labour practice on the part of the

employer under Item 6 of Schedule IV where the

posts on which they have been working exist.

Umadevi (3) cannot be held to have overridden the

powers of the Industrial and Labour Courts in

passing appropriate order under Section 30 of the

MRTU and PULP Act, once unfair labour practice on

the part of the employer under Item 6 of Schedule IV

is established.”

The labour legislation in that case was the Maharashtra Recognition of

Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

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12.The decision in Renu v. District and Sessions Judge, Tis Hazari

Courts, Delhi

4

dealt with appointments which were shown to be illegal and

the outcome of arbitrariness. It was in that backdrop that the following

observations came to be made :

“2. This Court had appointed Shri P.S. Narasimha,

learned Senior Counsel as amicus curiae to assist

the Court. The matter was heard on 28-1-2014 and

deliberations took place at length wherein all the

learned counsel appearing for the States as well as

for the High Courts suggested that the matter should

be dealt with in a larger perspective i.e. also for

appointments of employees in the High Court and

courts subordinate to the High Court which must

include Class IV posts also. A large number of

instances have been pointed out on the basis of the

information received under the Right to Information

Act, 2005 of cases not only of irregularity but of

favouritism also in making such appointments. It has

been suggested by the learned counsel appearing in

the matter that this Court has a duty not only to

check illegality, irregularity, corruption, nepotism and

favouritism in judicial institutions, but also to provide

guidelines to prevent the menace of back-door

entries of employees who subsequently are ordered

to be regularised.

27. To say that the Chief Justice can appoint a

person without following the procedure provided

under Articles 14 and 16 would lead to an indefinite

conclusion that the Chief Justice can dismiss him

also without holding any inquiry or following the

principles of natural justice/Rules, etc. for as per

Section 16 of the General Clauses Act, 1897, power

to appoint includes power to

remove/suspend/dismiss. (Vide Pradyat Kumar Bose

4

 (2014) 14 SCC 50

Page 13 13

v. High Court of Calcutta [AIR 1956 SC 285] and

Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC

34 : 1979 SCC (L&S) 99] .) But as no employee can

be removed without following the procedure

prescribed by law or in violation of the terms of his

appointment, such a course would not be available to

the Chief Justice. Therefore, the natural corollary of

this is that the Chief Justice cannot make any

appointment in contravention of the statutory rules,

which have to be in consonance with the scheme of

our Constitution.”

This Court considered the modalities adopted by the High Courts across

the country in making recruitments and issued directions to ensure that

appointments made by judicial institutions are in accordance the principle

of equality of opportunity enshrined in Articles 14 and 16 of the

Constitution. Emphasizing the principle of transparency in public

appointment, this Court observed that :

“Another important requirement of public

appointment is that of transparency. Therefore, the

advertisement must specify the number of posts

available for selection and recruitment. The

qualifications and other eligibility criteria for such

posts should be explicitly provided and the schedule

of recruitment process should be published with

certainty and clarity. The advertisement should also

specify the rules under which the selection is to be

made and in absence of the rules, the procedure

under which the selection is likely to be undertaken.

This is necessary to prevent arbitrariness and to

avoid change of criteria of selection after the

selection process is commenced, thereby unjustly

benefiting someone at the cost of others.

Thus, the aforesaid decisions are an authority on

prescribing the limitations while making appointment

against public posts in terms of Articles 14 and 16 of

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the Constitution. What has been deprecated by this

Court time and again is “back-door appointments or

appointments dehors the rules”.”

The power that is vested in the Chief Justice of the High Court under Article

229(1) is, the Court held, subject to Article 16 :

“the law can be summarised to the effect that the

powers under Article 229(2) of the Constitution

cannot be exercised by the Chief Justice in an

unfettered and arbitrary manner. Appointments

should be made giving adherence to the provisions

of Articles 14 and 16 of the Constitution and/or such

rules as made by the legislature”.

13.Four fundamental principles emerge from the decision of this Court in

Renu. The first principle is that Article 235 enables the High Court to

exercise complete administrative control over the district judiciary which

extends to all functionaries attached to those courts, including ministerial

staff and employees on the establishment. The purpose of superintendence

would be frustrated if the administrative control of the High Court is not to

be exercised over the administrative and ministerial staff. However, the

Chief Justice of the High Court as a constitutional functionary is subject to

the mandate of Articles 14 and 16. No appointment can be made in

contravention of statutory rules. Moreover, the rules themselves must be

consistent with constitutional principles.

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The second principle is that employment in the High Courts or in the courts

subordinate to them constitutes public employment. All recruitment in

matters of public employment must be made in accordance with prevailing

rules and orders:

“30. In today’s system, daily labourers and casual

labourers have been conveniently introduced which

are followed by attempts to regularise them at a

subsequent stage. Therefore, most of the times the

issue raised is about the procedure adopted for

making appointments indicating an improper

exercise of discretion even when the rules specify a

particular mode to be adopted. There can be no

doubt that the employment whether of Class IV,

Class III, Class II or any other class in the High Court

or courts subordinate to it falls within the definition of

“public employment”. Such an employment,

therefore, has to be made under rules and under

orders of the competent authority.”

Thirdly, the date on which the vacancies are likely to occur are foreseeable

with a reasonable amount of clarity and precision. An exercise to fill up

vacancies must be undertaken in advance so as to ensure that there is no

occasion to appoint persons on an ad hoc basis :

“31. In a democratic set-up like ours, which is

governed by rule of law, the supremacy of law is to

be acknowledged and absence of arbitrariness has

been consistently described as essence of rule of

law. Thus, the powers have to be canalised and not

unbridled so as to breach the basic structure of the

Constitution. Equality of opportunity in matters of

employment being the constitutional mandate has

always been observed. The unquestionable authority

is always subject to the authority of the Constitution.

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The higher the dignitary, the more objectivity is

expected to be observed. We do not say that powers

should be curtailed. What we want to say is that the

power can be exercised only to the width of the

constitutional and legal limits. The date of retirement

of every employee is well known in advance and

therefore, the number of vacancies likely to occur in

near future in a particular cadre is always known to

the employer. Therefore, the exercise to fill up the

vacancies at the earliest must start in advance to

ensure that the selected person may join

immediately after availability of the post, and hence,

there may be no occasion to appoint any person on

ad hoc basis for the reason that the problem of

inducting the daily labourers who are ensured of a

regular appointment subsequently has to be avoided

and a fair procedure must be adopted giving equal

opportunity to everyone.”

The information before the Supreme Court indicated that several High

Courts have adopted a pattern of centralized recruitment so as to ensure

transparency and objectivity in the appointment of ministerial staff both on

the establishment of the High Court and in the district courts.

Fourthly, while the High Court is an autonomous constitutional authority

whose status cannot be undermined, it is equally necessary for it to strictly

comply with the rules framed in making recruitments :

“We would like to make it clear that the High Court is

a constitutional and an autonomous authority

subordinate to none. Therefore, nobody can

undermine the constitutional authority of the High

Court, and therefore the purpose to hear this case is

only to advise the High Court that if its rules are not

in consonance with the philosophy of our

Constitution then the same may be modified and no

appointment in contravention thereof should be

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made. It is necessary that there is strict compliance

with appropriate rules and the employer is bound to

adhere to the norms of Articles 14 and 16 of the

Constitution before making any recruitment.”

The following directions have been issued in Renu for observance by all

the High Courts :

“35.1. (i) All the High Courts are requested to

re-examine the statutory rules dealing with the

appointment of staff in the High Court as well as in

the subordinate courts and in case any of the rules is

not in conformity and consonance with the provisions

of Articles 14 and 16 of the Constitution, the same

may be modified.

35.2. (ii) To fill up any vacancy for any post either in

the High Court or in courts subordinate to the High

Court, in strict compliance with the statutory rules so

made. In case any appointment is made in

contravention of the statutory rules, the appointment

would be void ab initio irrespective of any class of the

post or the person occupying it.

35.3. (iii) The post shall be filled up by issuing the

advertisement in at least two newspapers and one of

which must be in vernacular language having wide

circulation in the respective State. In addition thereto,

the names may be requisitioned from the local

employment exchange and the vacancies may be

advertised by other modes also e.g. Employment

News, etc. Any vacancy filled up without advertising

as prescribed hereinabove, shall be void ab initio and

would remain unenforceable and unexecutable

except such appointments which are permissible to

be filled up without advertisement e.g. appointment

on compassionate grounds as per the rules

applicable. Before any appointment is made, the

eligibility as well as suitability of all the candidates

should be screened/tested while adhering to the

reservation policy adopted by the State, etc. if any.

35.4. (iv) Each High Court may examine and decide

within six months from today as to whether it is

desirable to have centralised selection of candidates

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for the courts subordinate to the respective High

Court and if it finds it desirable, may formulate the

rules to carry out that purpose either for the State or

on zonal or divisional basis.

35.5. (v) The High Court concerned or the

subordinate court as the case may be, shall

undertake the exercise of recruitment on a regular

basis at least once a year for existing vacancies or

vacancies that are likely to occur within the said

period, so that the vacancies are filled up timely, and

thereby avoiding any inconvenience or shortage of

staff as it will also control the menace of ad hocism.”

14.The judgment in Renu underlines the importance of the High Court

complying with statutory rules in matters of recruitment. The judgment also

emphasises the need to abide by the principles of equality and equal

opportunity in Articles 14 and 16.

15.The judgment in Renu does not preclude, as a principle of law, the

framing of an appropriate scheme of regularization in appropriate

situations meeting the norms spelt out in Umadevi and the decisions

which have followed. Dealing with a scheme framed for regularisation, this

Court in Amarendra Kumar Mohapatra v. State of Orissa

5

held as

follows :

“38. Equally important is the fact that even after

declaring the true legal position on the subject and

5

(2014) 4 SCC 583

Page 19 19

even after deprecating the practice of appointing

people by means other than legitimate, this Court felt

that those who had served for ten years or so may

be put to extreme hardship if they were to be

discharged from service and, therefore, directed the

formulation of a scheme for their regularisation. This

was no doubt a one-time measure, but so long as the

appointment sought to be regularised was not illegal,

the scheme envisaged by para 53 of the decision

(supra) extracted above permitted the State to

regularise such employees. Dr Dhavan argued that

the appellant Stipendiary Engineers had, by the time

the decision in Umadevi (3) case was pronounced,

qualified for the benefit of a scheme of regularisation

having put in ten years as ad hoc Assistant

Engineers and fifteen years if their tenure was to be

counted from the date of their employment as

Stipendiary Engineers. He contended that even in

the absence of a Validation Act, Stipendiary

Engineers appointed on ad hoc basis as Assistant

Engineers, who had worked for nearly ten years to

the full satisfaction of the State Government would

have been entitled to regularisation of their services

in terms of any such scheme.

43. As to what would constitute an irregular

appointment is no longer res integra. The decision of

this Court in State of Karnataka v. M.L. Kesari , has

examined that question and explained the principle

regarding regularisation as enunciated in Umadevi

(3) case. The decision in that case summed up the

following three essentials for regularisation: (1) the

employees have worked for ten years or more, (2)

that they have so worked in a duly sanctioned post

without the benefit or protection of the interim order

of any court or tribunal, and (3) they should have

possessed the minimum qualification stipulated for

the appointment. Subject to these three requirements

being satisfied, even if the appointment process did

not involve open competitive selection, the

appointment would be treated irregular and not illegal

and thereby qualify for regularisation. Para 7 in this

regard is apposite and may be extracted at this stage

:

“7. It is evident from the above that there is an

exception to the general principles against

Page 20 20

‘regularisation’ enunciated in Umadevi (3) [State of

Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006

SCC (L&S) 753] , if the following conditions are

fulfilled:

(i) The employee concerned should have worked for

10 years or more in a duly sanctioned post without

the benefit or protection of the interim order of any

court or tribunal. In other words, the State

Government or its instrumentality should have

employed the employee and continued him in service

voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be

illegal, even if irregular. Where the appointments are

not made or continued against sanctioned posts or

where the persons appointed do not possess the

prescribed minimum qualifications, the appointments

will be considered to be illegal. But where the person

employed possessed the prescribed qualifications

and was working against sanctioned posts, but had

been selected without undergoing the process of

open competitive selection, such appointments are

considered to be irregular.”

45. The upshot of the above discussion is that not

only because in Umadevi (3) case this Court did not

disturb the appointments already made or

regularisation granted, but also because the decision

itself permitted regularisation in case of irregular

appointments, the legislative enactment granting

such regularisation does not call for interference at

this late stage when those appointed or regularised

have already started retiring having served their

respective departments, in some cases for as long

as 22 years.”

16.This would be again evident from the following observations made by

the Court in Surendra Kumar v. Greater Noida Industrial Development

Authority

6

, wherein it was held :

6

(2015) 14 SCC 382

Page 21 21

“In the impugned judgment [Greater Noida Industrial

Development Authority v. Surendra Kumar, 2013

SCC OnLine All 9827 : (2014) 102 ALR 418] , the

Division Bench proceeded on the premise as if

Umadevi (3) case held that the State Government, in

no circumstance, can regularise the services of

contractual employees. In para 53 of Umadevi (3)

case, the Constitution Bench carved out an

exception by observing that the Union of India/State

Governments/their instrumentalities should take

steps to regularise the services of such irregular

employees who have worked for more than ten years

and para 53 reads as under: (SCC p. 42)

13. Considering the facts of the present case on the

touchstone laid down in Umadevi (3) case, it will be

seen that the Division Bench was not right in setting

aside the appointment of the appellants. More so, it

was nobody's case challenging the appointment of

the appellants. Admittedly, the appellants were

engaged as contractual employees from 1994 and

have completed more than ten years of continuous

service with Respondent 1. They continued in service

not by the orders of the Court/Tribunal, but by the

decision of the respondents. The appellants were

regularised as per the policy decision dated

16-4-2003 taken by Respondent 1 and approved by

the State Government vide Letter dated 5-3-2008.

Since the appointment of the appellants were made

pursuant to the policy of regularisation, the High

Court was not right in quashing the appointment of

the appellants as the same were never in question

before the High Court. The plea that was raised by

the appellants was only to seek regularisation with

retrospective effect from 20-11-2002 and the

consequential seniority.”

17.The difference between irregular and illegal appointments as also the

scope of paragraph 53 of Uma Devi has fallen for consideration in various

subsequent judgments of this Court . These decisions have been adverted

Page 22 22

to in State of Karnataka v. G.V. Chandrashekar

7

. In Employees' Union

v. Mineral Exploration Corpn. Ltd

8

. this Court observed as follows :

“39. We, therefore, direct the Tribunal to decide the

claim of the workmen of the Union strictly in

accordance with and in compliance with all the

directions given in the judgment by the Constitution

Bench in State of Karnataka v. Umadevi (3) and in

particular, paras 53 and 12 relied on by the learned

Senior Counsel appearing for the Union. The

Tribunal is directed to dispose of the matter afresh

within 9 months from the date of receipt of this

judgment without being influenced by any of the

observations made by us in this judgment. Both the

parties are at liberty to submit and furnish the details

in regard to the names of the workmen, nature of the

work, pay scales and the wages drawn by them from

time to time and the transfers of the workmen made

from time to time, from place to place and other

necessary and requisite details. The above details

shall be submitted within two months from the date of

the receipt of this judgment before the Tribunal.”

In National Fertilizers Ltd. v. Somvir Singh

9

this Court held thus :

“23. The contention of the learned counsel appearing

on behalf of the respondents that the appointments

were irregular and not illegal, cannot be accepted for

more than one reason. They were appointed only on

the basis of their applications. The Recruitment

Rules were not followed. Even the Selection

Committee had not been properly constituted. In

view of the ban on employment, no recruitment was

7

(2009) 4 SCC 342

8

(2006) 6 SCC 310

9

(2006) 5 SCC 493

Page 23 23

permissible in law. The reservation policy adopted by

the appellant had not been maintained. Even cases

of minorities had not been given due consideration.

***

25. Judged by the standards laid down by this Court

in the aforementioned decisions, the appointments of

the respondents are illegal. They do not, thus, have

any legal right to continue in service.

26. It is true that the respondents had been working

for a long time. It may also be true that they had not

been paid wages on a regular scale of pay. But, they

did not hold any post. They were, therefore, not

entitled to be paid salary on a regular scale of pay.

Furthermore, only because the respondents have

worked for some time, the same by itself would not

be a ground for directing regularisation of their

services in view of the decision of this Court in

Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753]

.”

In State of M.P. v. Lalit Kumar Verma

10

: this Court held that :

“21. The legal position somehow was uncertain

before the decision rendered by the Constitution

Bench of this Court in Umadevi (3) [(2006) 4 SCC 1 :

2006 SCC (L&S) 753]. It has categorically been

stated before us that there was no vacant post in the

Department in which the respondent could be

reinstated. The State had also adopted a policy

decision regarding regularisation. The said policy

decision also has no application in the case of the

respondent. Even otherwise, it would be

unconstitutional being hit by Article 16 of the

Constitution of India.”

In Post Master General v. Tutu Das (Dutta)

11

this Court held as under :

10

(2007) 1 SCC 575

11

(2007) 5 SCC 317

Page 24 24

“20. The statement of law contained in para 53 of

Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753]

cannot also be invoked in this case. The question

has been considered by this Court in a large number

of decisions. We would, however, refer to only a few

of them….

21. In Punjab Water Supply & Sewerage Board v.

Ranjodh Singh [(2007) 2 SCC 491 : (2007) 1 SCC

(L&S) 713] referring to paras 15, 16 and 53 of

Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753]

this Court observed: (Ranjodh Singh case [(2007) 2

SCC 491 : (2007) 1 SCC (L&S) 713] , SCC p. 500

paras 17-18)

‘17. A combined reading of the aforementioned

paragraphs would clearly indicate that what the

Constitution Bench had in mind in directing

regularisation was in relation to such appointments,

which were irregular in nature and not illegal ones.”

18.A three-Judge Bench of this Court in Official Liquidator v.

Dayanand

12

, held thus :

“75. By virtue of Article 141 of the Constitution, the

judgment of the Constitution Bench in State of

Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006

SCC (L&S) 753] is binding on all the courts including

this Court till the same is overruled by a larger

Bench. The ratio of the Constitution Bench judgment

has been followed by different two-Judge Benches

for declining to entertain the claim of regularisation of

service made by ad hoc/temporary/daily wage/casual

employees or for reversing the orders of the High

Court granting relief to such employees — Indian

Drugs and Pharmaceuticals Ltd. v. Workmen [(2007)

1 SCC 408 : (2007) 1 SCC (L&S) 270] , Gangadhar

12

(2008) 10 SCC 1

Page 25 25

Pillai v. Siemens Ltd. [(2007) 1 SCC 533 : (2007) 1

SCC (L&S) 346] , Kendriya Vidyalaya Sangathan v.

L.V. Subramanyeswara [(2007) 5 SCC 326 : (2007) 2

SCC (L&S) 143] and Hindustan Aeronautics Ltd. v.

Dan Bahadur Singh [(2007) 6 SCC 207 : (2007) 2

SCC (L&S) 441].”

19.The principles will have to be formulated bearing in mind the position

set out in the above judgments. Regularisation is not a source of

recruitment nor is it intended to confer permanency upon appointments

which have been made without following the due process envisaged by

Articles 14 and 16 of the Constitution. Essentially a scheme for

regularisation, in order to be held to be legally valid, must be one which is

aimed at validating certain irregular appointments which may have come to

be made in genuine and legitimate administrative exigencies. In all such

cases it may be left open to Courts to lift the veil to enquire whether the

scheme is aimed at achieving the above objective and is a genuine attempt

at validating irregular appointments. The State and its instrumentalities

cannot be permitted to use this window to validate illegal appointments.

The second rider which must necessarily be placed is that the principle as

formulated above is not meant to create or invest in a temporary or ad hoc

employee the right to seek a writ commanding the State to frame a scheme

for regularisation. Otherwise, this would simply reinvigorate a class of

Page 26 26

claims which has been shut out permanently by Uma Devi. Ultimately, it

would have to be left to the State and its instrumentalities to consider

whether the circumstances warrant such a scheme being formulated. The

formulation of such a scheme cannot be accorded the status of an

enforceable right. It would perhaps be prudent to leave it to a claimant to

establish whether he or she falls within the exceptions carved out in

paragraph 53 and falls within the ambit of a scheme that may be

formulated by the State. Subject to the riders referred to above, a scheme

of regularisation could fall within the permissible limits of Uma Devi and be

upheld.

20.The judgment in Renu was delivered on 12 February 2014. Neither

of the orders of the High Court in the present case would indicate that the

principles which have been enunciated by this Court have been

considered.

21.The grievances which have been set out on behalf of the state

government in the Special Leave Petition, and during the course of the

hearing, include the following :

(i)In a Public Interest Litigation seeking the construction of a district

court complex in Bandipora District the High Court proceeded to issue

Page 27 27

directions for the regularization of services of daily rated workers. These

directions were totally unconnected to the reliefs which were sought in the

PIL;

(ii)By an order of the High Court dated 7 October 2015, the state

government was directed to consider the claim for regularization of the

daily rated workers as a one-time exception which required the state

government necessarily to decide on the issue of regularization. The state

government has constituted an empowered committee on 19 August 2015

to inquire into the issue of creating posts for the regularization of nearly

sixty one thousand daily rated and casual workers working in various

departments of the state government. These include workers on the

establishment of the High Court and the district courts; The High Court has

pre-empted consideration by issuing a direction for regularisation;

(iii)There is a lack of clarity in the actual number of daily rated workers

engaged in the High Court and the district judiciary, as well as in the nature

of work performed. The list furnished by the Registrar General contains

the names of several Sewaks whose services are governed under a GO

dated 28 July 2016. All the two hundred nine workers do not perform the

same job and who among them is eligible to be considered for

regularization has yet to be determined;

Page 28 28

(iv)The High Court has proceeded on the erroneous basis that the issue

of regularization has attained finality. The dismissal of the Special Leave

Petition by this Court on 16 December 2015 against an interim order dated

7 October 2015 does not conclude the issue. There is no vested right to

seek regularization; and

(v)The High Court has erred, in its order dated 1 December 2015, in

holding that daily rated workers on the establishment of the High Court

would not be regulated by the rules governed by SRO 64 of 1994. If the

Daily Rated Workers are to be regularized, the state government should

be required to create a sufficient number of posts for the purpose.

22.We have adverted to the above grievances in order to emphasise that

there is substantial merit in the submission that the High Court proceeded

to issue directions for regularization without considering either the legal

position enunciated in the judgments of this Court referred to above and

without considering the prevailing rules and regulations on the subject. The

High Court has observed in its order dated 1 December 2015 that over a

considerable period of time the state government has not created the

required number of posts for the state judiciary as a result of which work

has been hampered. According to the High Court, appointment of daily

Page 29 29

rated workers was necessitated to ensure that judicial work does not suffer.

The High Court opined that these workers have been rendering work which

should have been assigned to persons appointed on a regular basis

against sanctioned posts. It is unfortunate, in our view, that the state

government has allowed the requirements of the state judiciary to be

neglected over such a long period of time. The need to facilitate the proper

functioning of the High Court and the district judiciary is a constitutional

necessity which imposes a non-negotiable obligation on the state

government to create an adequate number of posts and to provide

sufficient infrastructure. The state government is to blame for the

unfortunate situation which has resulted in a large number of persons being

recruited on a daily wage basis.

23.We have already indicated above our conclusion that the direction for

regularization was issued by the High Court without considering the

relevant constitutional and legal principles. While some of the daily rated

workers have been engaged over long periods of time, others have been

engaged as recently as in 2015. The issue of whether such appointments

were irregular or whether they were illegal should have been determined

but has not been considered. Since the issue of regularization is a matter

with which the state government is seized, as stated in the proceedings

Page 30 30

before this Court, we are of the view that at this stage it would be

appropriate and proper to set aside the impugned order of the High Court

which directs the regularization en masse of two hundred nine daily rated

workers. While doing so, we restore the proceedings back to the file of the

High Court for reconsideration. We order accordingly, leave it open to the

High Court to reconsider the entire matter afresh having due regard to the

constitutional and legal principles enunciated and having regard to all

relevant factual aspects.

24.The Civil Appeal shall accordingly stand disposed of. There shall be

no orders as to costs.

.........................................CJI

[T S THAKUR]

…........................................

..J

[Dr D Y CHANDRACHUD]

..............................................J

[L NAGESWARA RAO]

New Delhi

December 08, 2016.