P.Arumugam vs The Secretary to Government & Ors

The order of rejection, dated 01.04.2010 issued by the second respondent in respect of the claim of the Writ Petitioner seeking regularisation of

service, is under challenge in this Writ Petition.

The learned counsel appearing on behalf of the writ petitioner states that the writ petitioner was initially appointed on 1.1.1987 on daily wages

basis. However, there is no order of appointment as such, which is enclosed in this writ petition.

The learned counsel for the petitioner states that the writ petitioner was allowed to continue in service for a considerable length of time and

continuing in service even today. This being the fact, the writ petitioner is entitled for regularisation of service in the post of watchman.

On a perusal of the order impugned, it is stated that the writ petitioner was not appointed through the District Employment Exchange. He was

engaged as daily wages employee and accordingly, continuing in service. This apart, the salary is being paid by the Hostel Warden under his

control. This apart, there is no evidence in the files to say that the office of the District Adi Dravidar Welfare Department has disbursed the daily

wages to the petitioner. However, contrary to the statement made in the impugned order, the proceedings of the District Adi Dravidar Welfare

Officer, dated 18.12.1997 states that the writ petitioner along with other employees were engaged on daily wages basis based on the

recommendation of the Special Tahsildar, Trichirappalli and accordingly, the payment of the year 1997-1998 was paid. However, the impugned

order was passed in the year 2010 and the payment made as per the orders, dated 18.12.1997 was relating to the period 1996-1997.

May that it be, this Court is of the opinion that the initial appointment of the writ petitioner was not in accordance with the recruitment rules in

force and it was an irregular appointment. The petitioner is continued only as daily rated employee and his claim for regularisation was also rejected

by the Commissioner of Adi Dravidar Welfare Department. This being the factum of the case, now this Court cannot issue any direction for

regularisation of service or permanent absorption in view of the legal principles settled by the Constitution Bench of the Honourable Supreme

Court of India in the case of the Secretary, State of Karnataka and others .vs. Umadevi(3) and others reported in (2006) 4 Supreme Court Cases

1, wherein, at Paragraph 5,10,13,20 and 43 to 50, it is held as follows:

This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of

public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The

question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the

teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of

the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to

adhere to the law as laid down by the Constitution and not to make directions, which at times,even if do not run counter to the

Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases

referred to the Constitution Bench.

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 in2003 (9) SCALE 187. This Court noticed that in the matter of regularization 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 2003 (10) SCALE 388. It appears to be proper to quotethat order of

reference at this stage. It reads:

1 . Apart from the conflicting opinions between the three Judges'' Bench decisions in Ashwani Kumar and Ors. v. State of Bihar and

Ors.reported in (1997) II LLJ 856 SC ,S tate of Haryana and Ors. v. Piara Singh and Ors. Reported in (1993) II LL J 937 SC and

Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Ors.Reported in (1990) II

LL J 318 SC , on the one hand and State of Himachal Pradesh v. Suresh Kumar Verma and Anr. Reported in [1996] 1 SCR 972 ,S

tate of Punjab v. Surinder Kumar and Ors. Reported in [1992] 194 ITR 434 (SC), and B.N. Nagarajan and Ors. v. State of

Karnataka and Ors. Reported in (1979) II LL J 209 SC on the other, which has been brought out in one of the judgments under

appeal of Karnataka High Court in State of Karnataka v. H. Ganesh Rao decided on 1.6.2000, reported in2001 (4) KLJ 466,

learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the

Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench).

On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for

regularization is consistent with the provision of Articles 14 and 21 of the Constitution.

Mr. V. Lakshmi Narayan, learned Counsel, appearing in CC Nos. 109-498of 2003, has filed the G.O. dated 19.7.2002 and

submitted that orders have already been implemented.

After having found that there is conflict of opinion between three Judges 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 Hon''ble the JChief 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.

In spite of this scheme, there may be occasions when the sovereign State or itsinstrumentalities will have to employ persons, in

posts which are temporary, on dailywages, as additional hands or taking them in without following the requiredprocedure, to

discharge the duties in respect of the posts that are sanctioned and thatare required to be filled in terms of the relevant procedure

established by theConstitution 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 berecognized and there is nothing in the Constitution which prohibits such engaging of persons

temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used

to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right

to engage persons in various capacities for a duration or until

the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional

requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not

proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in

permanent employment of those who have been engaged without following a due process of selection as envisaged by the

constitutional scheme.

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 aright 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 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 Stateof Punjab v. Jagdip Singh and Ors.

(1966) I LLJ 749 SC . It was held therein,

In our opinion, where a Government servant has no right to a pos tor 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 courts either interim or final were brought to our notice. The purport of

those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining.

Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal

principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made,

the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of

learned Counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the

directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be

perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of

constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about

certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once

directed regularization in the Dharwad case (supra), all those appointed temporarily at any point of time would be entitled to be

regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on

daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that

appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the

constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the

question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the socalled

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.

20.The Decision in Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Ors.

(1990) II LLJ 318 SC 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 regularization, 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 individualize 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 of India, 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 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 self same 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.

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

of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or

in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.

Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily

to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same

would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the

contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is

discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has

also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his

appointment,he would not be entitled to be absorbed in regular service or made permanent,merely on the strength of such

continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is

not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come

to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under

Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance

unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had

continued under cover of an order of Court, which we have described as ''litigious employment'' in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be

justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to

continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee

who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of

its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and

statutory mandates.

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 forgiving the go-by to the procedure established by law in the matter of

public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad

decision, the Government had issue deprecated directions and mandatory orders that no temporary or ad hoc employ mentor

engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had

continued to give employment,specifically interdicted by the orders issued by the executive. Some of the appointing officers have even

been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of

the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be

absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to

law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to

perpetuating an illegality.

While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the

concerned person 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 eyes open. It maybe true that he is not in a position to bargain -- not at arms 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 succor 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 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 of India.

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 regularized since the decisions in Dharwad

(supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that

their services would also be regularized. 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 of Civil Service Unions v. Minister for the Civil Service 1985 Appeal Cases 374, National

Buildings Construction Corporation v.S. Raghunathan, AIR 1998 SC 2779 and Dr. Chanchal Goyalv. State of Rajasthan [2003] 2

SCR 112 . There is no case that any assurance was given by the Government or the concerned department 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 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 the

Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact

remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High

Court and in some case 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 regularized 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 regularization 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.

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 recognized 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

concerned cases, 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.

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 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 concerned department 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 un-equals 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.

It is contended that the State action in not regularizing 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 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.

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, 16and 309 so as to ensue that public

employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In

the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of

people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents

would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that

the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the

Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all,the

employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments

also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that

importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the

constitutional goal of equality.

In a case of part-time employee, the legal principles enunciated by the Constitution Bench was re-emphasised by the Two Judges Bench of the

Honourable Supreme Court of India in the case of Secretary to Government, School Education Department, Chennai .vs. R.Govindaswamy and

others reported in (2014) 4 Supreme Court Cases 769, held that:

''''8.This Court in State of Rajasthan .vs. Daya lal has considered the scope of regularization of irregular or part time appointments in

all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of

issues involved therein. The same are as under:(SCC P.435, Para 12)

''''(i)The High Courts in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption

or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in

accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in

Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an

employee which would be violative of the constitutional scheme.

In view of the legal principles settled, this Court cannot issue any order in respect of the appointment of the writ petitioner, who was engaged in

daily rated and not appointed in accordance with the recruitment Rules in force. In view of this factor, no further consideration needs to be

provided in respect of the grounds raised in this Writ Petition.

Accordingly, the Writ Petition stands dismissed. No costs. However, there shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.