Sushil Kumar Karare and Others vs Union of India and Others

Dhirendra Mishra, J.—Through these Original Applications (for brevity OAs) the applicants, who were engaged for work of casual nature and who have completed more than 10 years of service as on 10.4.2006, have prayed for their regularisation in service under the respondents from the date of their initial engagement. Since the question of law and issues involved in these OAs are similar, all the matters were heard together and the same are being disposed of by this common order. Applicants in these OAs have prayed for direction to the respondents to regularise their services from the dates of their initial engagement keeping in view the judgment of the Hon''ble Supreme Court in the matters of Secretary, State of Karnataka and Others Vs. Umadevi and Others, by quashing/setting aside/modifying the impugned orders whereby their representations have been rejected by the competent authority of the respondents.

Written arguments have also been filed on behalf of the applicants as well as the respondents, which have been taken on record.

For the purposes of this order reference is being made to the facts and documents pleaded in OA No. 1091 of 2010, unless not specifically referred to any other Original Application.

Learned counsel for the applicant submits that the applicant joined as casual worker on 14.8.1990 under the administrative control of the Commissioner of Income Tax, Bhopal and since then he is continuing to work as casual labourer till date and he has not been regularised. As per policy of the Government of India issued vide O.M. No. F.49014/2/86-Estt (c) dated 7.6.1988, framed in view of the judgment of the Hon''ble Supreme Court in the matters of Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others, , the applicant was eligible for regularisation in service. However, his services have not been regularised against the vacant regular post. From perusal of Annexure A-2, it would be clear that there were several vacancies for the posts of Daftari, Peon, Watchman, Farrash and Sweeper, and large numbers of posts were lying vacant for a considerable period. However, no steps for regularizing the services of the casual worker were initiated. A Scheme for Grant of Temporary Status and Regularisation of Casual Workers was framed vide Annexure A-3 and the same came into force with effect from 1.9.1993 and as per the said Scheme those casual labourers who had rendered a continuous service of at least one year would be conferred with the temporary status without reference to creation/availability of regular Group-D post. However, casual labourers, who acquired temporary status were not to be brought on the permanent establishment unless they get selected through regular recruitment. The benefit of the above Scheme was extended to all labourers, who were employed as on 1.9.1993, as would be evident from Annexures A-4, A-5, and A-12 by which, amongst others, one Arun Vaidya, who was junior to the applicant was granted temporary status, however, the applicant was not granted even temporary status.

4.1. The Department of Personnel and Training (for brevity DOPT) vide its OM dated 11.12.2006 (Annexure A-6) forwarded a copy of the judgment of the Hon''ble Supreme Court in the matters of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), with an observation that the Hon''ble Supreme Court has directed that the Shri Surendra Singh and Others v. Union of India (supra), the State Governments and their instrumentalities should take steps to regularise, as a one time measure, the services of such irregularly appointed, who are duly qualified persons in terms of the statutory requirement of the recruitment rules for the post and who have worked for 10 years or more against duly sanctioned post, but not under the cover of the orders of the Courts/Tribunal, for implementation of such directions. The Central Board of Direct Taxes also issued certain directions on 18.11.2008 to all cadre controlling Chief Commissioners of Income Tax (for brevity CCIT) for regularisation of all casual workers who had worked continuously for more than 10 years. Accordingly, different CCITs regularised the services of casual workers as Group-D as would be evident from the documents filed as Annexures A-7, A-8, and A-9. However, no such action has been taken by the CCIT, Bhopal, even though representations were made vide Annexure A-10. The CCIT, Indore requested the CCIT, Bhopal the cadre controlling authority, for regularisation of daily wagers on 30.11.2010 (Annexure A-II). However, no steps were taken by the respondents and their claims have been rejected by the impugned order, without following the binding judgment of the superior Courts with a pre-determined mind and not a single casual labourer has been regularised.

4.2. The cases of the applicants for grant of temporary status was forwarded to the CCIT Bhopal vide Annexure RJ-1 dated 21.8.2003. The respondents had verified the age of casual employee at the time of initial engagement and, therefore re-verification of their age at the time of considering their cases for regularisation is not called for, as instructions have been issued in this regard in the year 1968 vide Annexure RJ-2 to extend age concession to the employees and keep them in the department till they retire.

4.3. The respondents could not deny regularisation to the applicants by observing that there was no sanctioned vacant post, particularly when they are abolishing the various posts of Group-D to deny regularisation, as would be evident from Annexure RJ-3.

4.4. The applicant has been representing for his regularisation from 1996 onwards as would be evident from various applications filed by the applicant along with this OA and the respondents could not deny his claim for regularisation on the ground that there is no proof that he was engaged in the year 1990. The respondents could also not deny regularisation on the ground that his name was not sponsored by the employment exchange, as the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 has been enacted to ensure equal opportunity to employment seeker, and since the respondents themselves did not notify the vacancies as provided under the aforesaid Act, the applicant cannot be denied regularisation on the ground of non-sponsoring of his name through the Employment Exchange.

4.5. The applicant can also not be denied regularisation on the pretext that no record is available with the respondents with regard to his engagement, particularly when salary was disbursed to him by the respondents through out this period. The decision of the respondents is based on incorrect interpretation of the decision of Hon''ble Supreme Court in the matters of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), and they have selectively relied upon certain paragraphs of the said judgment, which were not relevant for regularisation.

4.6. The respondents could not have denied his claim of regularisation on the ground of irregularities mentioned in the order unless the same goes to the route of the process of selection. From the document filed by the applicant along with rejoinder it would be evident that the Head of the Department had certified that the applicant was appointed on 14.5.1990, and he was working since then and he was paid bonus, for different periods, and his name appears in the seniority list drawn by the department at serial No. 1. However, all these facts have been ignored by the respondents while passing the impugned order of rejection.

4.7. Reliance is placed on the judgments of the Hon''ble Supreme Court in the matters of State of Karnataka and Others Vs. M.L. Kesari and Others, , U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, , and Union of India (UOI) and Others Vs. Parul Debnath and Others, and also a judgment of Bombay Bench of this Tribunal in the matters of 2012 (2) SLJ 61 .

On the other hand learned counsel for the respondents, submits that the applicant had applied for regularisation of his services. Similar applications of daily wagers, were called from all the offices of the Region, who claimed to be eligible for regularisation. Large number of applications/representations, in different formats, were received for regularisation. In order to make uniform evaluation, a proforma of application was devised and sent to all persons, who claimed to be eligible for regularisation. The Head of the Departments were requested to certify the correctness of the data mentioned in the application and forward their applications along with supporting documents, to the office of the CCIT (CCA), MP and CG, Bhopal vide detailed directions dated 8.4.2011, clearly specifying various criteria to be adopted and considered while forwarding the applications as per judgments of the Hon''ble Supreme Court regarding regularisation of casual/daily wages/temporary status employees. As per judgment of the Hon''ble Supreme Court in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), only eligible workmen, who were engaged prior to 10.4.2006, were eligible to be considered for regularization and the CBDT vide its letters dated 18.9.2008 and 18.11.2008 had specifically clarified this position. The Hon''ble Supreme Court has clearly observed that casual workers/daily wagers do not have any inherent right for regularisation, as such persons were aware about the fact that their engagement was not against any permanent post. Such engagement, which were against the specific directions of the Government could never be regularised. The cases of the applicants were considered in the light of the criteria laid down by the Hon''ble Supreme Court for regularisation as a one time measure.

5.1 With a view to examine the applications for regularisation, the respondents have constituted a committee of six members under the Chairmanship of the DIT (Inv.) Bhopal for the purposes of scrutinizing and recommending the cases of the applicants who were eligible for regularisation. The above committee comprehensively examined all the cases individually and did not recommend regularisation of any of the applicants as none of the applicants (54 in number) produced sufficient documentary evidence to establish that he/she fulfils the prescribes criteria laid down by the Hon''ble Supreme Court for regularisation. As per recommendations of the committee further verification of the claim of the applicant was also carried out by the competent authority and separate speaking order dated 26.8.2011 was passed in his case.

Heard learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.

The respondents have rejected applicant Sushil Karares case for regularisation vide impugned order dated 26.8.2011 (Annexure R-l). His case has been scrutinized keeping in view the circular dated 18.11.2008 issued by the CBDT, according to which only cases of those casual workers/daily wagers who were engaged prior to 10.4.2006 were eligible to be considered for regularisation as per decision of the Hon''ble Supreme Court in Secretary, State of Karnataka and Others v. Uma Devi and Others case (supra). The respondents have also considered various office memoranda issued by the DOPT from time to time with regard to general terms and conditions for employment of casual labourers, appointment of casual labourers to Group-D post, grant of temporary status, and regularisation scheme, including clarification issued in this regard, as also various judgments of the Hon''ble Supreme Court in the matter, including the judgment of Secretary, State of Karnataka and Others v. Uma Devi and Others case (supra), while issuing the instructions dated 18.9.2008 and 18.11.2008 and laid down criteria which was to be applied for screening/processing applications for regularisation. Applicants claim has been rejected by the impugned order dated 26.8.2011 (Annexure R-l) with observations that though the Head of the Department has certified that the applicant was appointed on 14.8.1990, no relevant order/letter/document in this regard has been enclosed to substantiate the claim of appointment. It has been certified that applicant was appointed as casual labour however no sanctioned post of group-D was available and applicants name was not sponsored by the Employment Exchange and the Head of the Department has certified that no record of his engagement against duly sanctioned post which was vacant at that time is available. There is no evidence in support of the claim that the applicant has completed 10 years of continuous service as on 10.4.2006. On the contrary it has been certified that the office does not have any record that the applicant did not work on contract basis at any point of time during the 10 year period ending on 10.4.2006, even his caste certificate that he belongs to Scheduled Caste is not in a proper format and as such not acceptable.

In State of Karnataka and Others v. M.L. Kesar (supra) the Hon''ble Supreme Court interpreting para 53 of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) observed as under:

It is evident from the above that there is an exception to the general principles against regularisation enunciated in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in 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.

Further, considering that the employer had not undertaken the exercise of one time regularisation within six months of the decision in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), the matter was disposed of with a direction to now undertake an exercise within six months, a general one time regularisation exercise, to find out whether there are any daily wage/casual/ad hoc employee serving and if so whether such employees (including the respondents) fulfill the requirements mentioned in Para 53 of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), and if they fulfill them, their services have to be regularised, clearly mentioning that if the respondents do not fulfill the requirement of para 53 of Secretary State of Karnataka and Others v. Uma Devi and Others (supra), their services may not be regularised.

In U.P. State Electricity Board v. Pooran Chandra Pandey and Others (supra) the Hon''ble Supreme Court considering that Electricity Board vide its decision dated 28.11.1996 had taken a decision for regularisation of the employees of the Electricity Board, who were engaged before 4.5.1990, held that the employees of the society taken over by the Electricity Board, have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointment in the society, as all of them were appointed before 4.5.1990 and they cannot be denied the benefit of regularisation as per the decision of the Board dated 28.11.1996 and the decision of Secretary State of Karnataka and Others v. Uma Devi and Others (supra) cannot be applied as in their cases regularisation has been sought for on the ground of violation of Article 14 of the Constitution.

In the matters of Union of India and Others v. Parul Debnath and Others (supra), the respondents therein were appointed as members of the Home Guard Organization under Regulation 4 of the Andaman and Nicobar Island Home Guard Regulations, 1964 for periods of three years and since then they were continuously made to perform duties of regular nature and they were working for periods ranging from 12 years to 23 years. Their writ petition was disposed of by following the decision of the Hon''ble Supreme Court in the matters of State of West Bengal and Others Vs. Pantha Chatterjee and Others, , with a direction to the appropriate authority to frame a scheme as directed by the Tribunal, keeping in view the principles laid down in State of West Bengal and Others v. Pantha Chatterjee and Others (supra). Disapproving the scheme, framed by the Union of India, whereby reservation of 20% of the vacant post in a phased manner and setting apart 80% of the vacancies for other candidates, it was held that the scheme of absorption in phases is not in accordance with the directions of the Division Bench to absorb the respondents. Accordingly, absorption was directed by creating supernumerary posts for the purposes.

In S.N. Kamble and Others v. Union of India and Others (supra) the Bombay Bench of this Tribunal considering the facts of that case that the applicants were recruited as casual labourer through Employment Exchange in early 1990s, and further considering that the DOPT placed ban on recruitment of casual labourer in the year 2004 with a direction to outsource the work through the engaged contractor, and the same persons were engaged as contract labourers, and also that the scheme as directed in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) not prepared in the department, held that no such intermediate change of service provider and engagement of the applicants through such service provider can be made and there is no escape to the respondents except to regularise the services of the applicants.

The issue of absorption/regularisation of temporarily engaged casual/daily rated employees has been extensively dealt with by the Constitution Bench of Hon''ble Supreme Court in the matters of Secretary State of Karnataka and Others v. Uma Devi and Others (supra). The relevant paragraphs of the above judgment for the purposes of the issue involved in this Original Application are reproduced as under:

The concept of equal pay for equal work is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the Court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

While directing that appointments, temporary or casual, be regularised or made permanent, the Courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain not at arm''s length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the Court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the Court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some 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 (sic) 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.

Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., , (1992) 4 SCC 118 Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, and Gujarat Agricultural University Vs. Rathod Labhu Bechar and Others, and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service 1985 AC 374, National Buildings Construction Corporation Vs. S. Raghunathan and Others, and Dr. (Mrs.) Chanchal Goyal Vs. State of Rajasthan, There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision (supra). Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the Court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.

When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

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 department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.

However, in paragraph 53 of the judgment it has been clarified that the cases where irregular appointments (not illegal appointments) as explained in State of Mysore and Another Vs. S.V. Narayanappa, and R.N. Nanjundappa Vs. T. Thimmiah and Another, and B.N. Nagarajan and Others Vs. State of Karnataka and Others, , of duly qualified persons against duly sanctioned post have been made, and such employees have worked for 10 years or more, without intervention of the orders of the Court or of the Tribunals, the Union of India, the State Government and their instrumentalities have been directed to take steps to regularise, as a one time measures, the services of such irregularly appointed persons. Para 53 of the said order reads thus:

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore and Another v. S.V. Narayanappa (supra), R.N. Nanjundappa v. T. Thimmiah and Another (supra) and B.N. Nagarajan and Others v. State of Karnataka and Others (supra), and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six 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.

In paragraph 54 in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), the Hon''ble Supreme Court has already clarified that all those decisions, which run counter to the principle settled in Secretary State of Karnataka and Others v. Uma Devi and Others (supra), or in which directions running counter to what has been held in the decision, shall stand denuded of their status as precedents.

In the matters of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) the Hon''ble Supreme Court has strongly disapproved absorption, regularisation or permanent continuance of temporary, contractual, casual daily-wage or ad hoc employees appointed/recruited and continued for long in public employment de hors the constitutional scheme of public employment. It has been observed that the Supreme Court and High Courts should not issue such directions unless the recruitment itself was made regularly and in terms of constitutional scheme, as a wide power under the Constitution to the superior Courts are not to be indented to be used for issuance of such directions, certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment. Merely because an employee had continued under cover of a order of the Court under litigious employment or had been continued beyond the term of his appointment by the State or its instrumentalities, he would not be entitled to any right to be absorbed or made permanent in service, 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. However, an exception has been carved out in para 53 of the judgment and the Union and the State Governments and their instrumentalities have been directed to set in motion the process for regular recruitment in cases where temporary or daily-wagers were employed against vacant sanctioned posts, and in cases of irregular appointments (not illegal appointments) of duly qualified persons against duly sanctioned vacant posts, who had continued to work for ten years or more, without the intervention of the orders of the Courts or tribunals were to be considered for regularisation, within six months of the date of judgment as a one time measure.

Thus from the above it is evident that it was the duty of the employee as also of the department, who was responsible to appoint and continue the said employee as a contractual/casual/daily wager/ad hoc/temporary employee for a long period, to establish by producing relevant documents that such appointment was against the vacant posts, and that the employee was possessing the necessary qualification, for the post against which he was recruited under the rules, and fulfills other eligibility criteria such as age, caste, etc., that the engagement was as per constitutional scheme by inviting applications through wide publications or his name was duly sponsored by the employment exchange.

Keeping in view the law laid down in the above referred judgment of Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) as well as other judgments of the Hon''ble Supreme Court as also various circulars and schemes issued by the Union of India from time to time the Central Board of Direct Taxes vide its OM dated 18.11.2008 has issued directions for regularisation of casual labourers/daily wagers, who were engaged prior to 10.4.2006 and who are eligible for consideration for regularisation by applying the criteria detailed in the instructions reproduced below:

(i) The applicant must have completed continuous service of ten years or more as daily wagers but the continuity of service as daily wagers for ten years or more should not be on account of some order of Court.

(ii) The applicant must have been appointed as daily wager against a duly sanctioned post, which was vacant at the relevant time.

(iii) The applicant must have fulfilled the required qualification (as on the date of engagement) regarding education and age for the post for which the applicant is being considered for regularisation.

(iv) The applicant may have been engaged as daily wagers by irregular means but his appointment as daily wager should not be illegal. In other words, normally the applicant should have been appointed as daily wager through an employment exchange. Further, reference is invited to the clarification on the Temporary Status and Regulation Scheme of 1993, the DOPT (vide their OM 49014/19/84-Estt. (C), dated 26.10.1984, 49014/18/84-Estt.(C), dated 07.05.1985, 49014/2/93-Estt.(C), dated 12.07.1994), where it has been clarified that, since it is mandatory to engage casual employees through an employment exchange, the appointment of casual employee without going through an employment exchange is irregular.

(v) The appointment engagement should not be in contravention of any governmental directions. The Hon''ble Supreme Court in their decision in the case of Secretary, State of Karnataka v. Uma Devi and Others (supra) have stated that if any appointments or engagements were made in the teeth of directions of the Government not to make such appointments it is impermissible to recognize such appointment made in the teeth of directions issued by the Government in that regard. The persons concerned are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Hence, such casual employees can not be bestowed with temporary status.

(vi) They must have been appointed by an authority, which was competent to make such appointment.

That in compliance of decision in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) the respondents initially invited applications from all casual/daily wagers working in the Region, who claimed regularisation of their services in a prescribed proforma duly forwarded through their head of department and accordingly large number of applications were received for regularisation. The respondents constituted a committee consisting of six members under the chairmanship of DIT (Inv), who scrutinize the applications and to recommend eligible applicants for regularisation. The committee examined all the applications as per criteria mentioned above and found that none of the 54 applicants fulfill the prescribed criteria for their regularisation, as none of the applicants had produced sufficient documentary evidence to establish their claim.

After recommendations of the committee, verification of the applicants claim was also carried out by the competent authority, and the deficiencies, with regard to the applicant, were detailed in paragraph 8 of the speaking order dated 26.8.2011 (copy enclosed with Annexure R-l). The case of the applicant was rejected on the ground that though he claims to have been appointed on 14.8.1990 and the same has been certified by the HOD, however, no relevant order/letter/document in this regard has been enclosed to substantiate the claim of appointment and there was no sanctioned Group-D post available; that he was not sponsored by the employment exchange; that there is no record available with regard to his engagement against the duly sanctioned vacant post at that time; that there was no record to establish that the applicant completed 10 years of continuous service as on 10.4.2006; that there was not record that he did not work on contract basis at any point of time during the period of 10 years; and also on the ground that the SC category certificate is not in proper format.

In paragraph 15 in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) the Hon''ble Supreme Court has referred to the decision of the Supreme Court in the matters of State of Mysore v. S.V. Narayanappa (supra) and R.N. Nanjundappa v. T. Thimmiah and Another (supra), and has extracted the following observations: Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.

Further referring to its earlier decision in B.N. Nagarajan and Others v. State of Karnataka and Others (supra) with approval, it was observed that only such procedural irregularities are curable, which are attributable to methodology followed in making the appointments, however, where rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. Keeping in view the proposition enunciated above in the above decision, it has been observed that only something that is irregular for want of compliance with one of the elements in the process of selection, which does not go to the route of progress, can alone be regularised.

It is true that in the instant case the Head of the department of the applicant has certified the claim of the applicant that he was appointed on 14.8.1990, however, no relevant order/letter/document was enclosed to substantive the claim of appointment. The applicant has also not annexed any appointment order to establish that he was appointed by a competent authority against the sanctioned vacancy as on 14.8.1990 and his name was not sponsored by the Employment Exchange and there is no record that his engagement was against a duly sanctioned post, which was vacant at that time. Even there was no documentary evidence in support of the claim that the applicant completed 10 years of continuous service as on 10.4.2006. The applicant has not filed any material, in this Original Application also, to controvert the above finding except orders of payment of bonus, which has been paid to him while working as Mazdoor. On the basis of above facts alone it cannot be presumed that the applicant was duly engaged by the competent authority as casual labourer against the sanctioned vacancy and that he continuously worked for a period of 10 years as on 10.4.2006, which are the basic criteria for regularisation of his services in terms of Uma Devis decision.

In other connected matters also we find that the competent authority has examined individual claims of the aforementioned applicants in the light of the criteria laid down by the CBDT as per directions of the Hon''ble Supreme Court and assigned cogent reasons for not considering them eligible for regularisation and the applicants have not effectively controverted the reasonings in the rejection order.

The judgments relied upon by the applicants and dealt with in the foregoing paragraphs have no application to the facts of the present case as in the instant case the respondents have duly constituted a committee, which considered the cases of the applicants and other similarly placed persons for regularisation after their applications were duly forwarded by the respective Head of the Departments and the same has been rejected on merit by citing cogent grounds.

In some of the cases the applicants have also challenged the demi official letter dated 4.7.2011 issued by the Central Board of Direct Taxes, and prayed for direction to the respondents to examine the possibility of regularising the services of the applicants.

The learned counsel for the respondents have brought to our notice that similarly placed employees had filed Original Application No. 746 of 2011 challenging the very impugned demi official letter dated 4.7.2011, and also for similar direction to the respondents to examine the possibility of regularising their services and for granting temporary status and the same was dismissed vide order dated 26.9.2012, and the Writ Petition No. 22083 of 2012 against the said order has been further dismissed by the Hon''ble High Court on 11.2.2013.

We have perused the order dated 26.9.2012 passed in aforementioned Original Application No. 746 of 2011 as also the order of the Hon''ble High Court of Madhya Pradesh in W.P. No. 22083 of 2012 filed by the applicants of Original Application No. 746 of 2011 against our order dated 26.9.2012. We find that the said Original Application No. 746 of 2011 was also filed for quashing of demi official letter dated 25.7.2011 addressed by the CBDT and consequential order in pursuance of the above demi official letter. The applicants therein had also prayed for directing the respondents to examine the possibility of regularising their services and for granting them temporary status. The Original Application No. 746 of 2011 was dismissed by this Tribunal on 26.9.2012 with an observation that the impugned decision is a policy decision which is in consonance with GFR 178 and same is not open to challenge and that too at the instance of the applicants only on the ground that aforesaid decision is likely to be enforced retrospectively which may affect their employment and they may be removed from service. The said decision of the Tribunal was further affirmed by the Hon''ble High Court of Madhya Pradesh at Jabalpur and the Writ Petition against the above order was dismissed on 11.2.2013, with the following observations: The petitioners despite opportunities have not filed their appointment orders. The respondents have stated that no appointment orders have been issued to the petitioners. The nature of relationship of the petitioners with the respondents, particularly regarding terms and conditions of their service, is therefore not clear. Apparently, the petitioners have no right to stop the respondents from outsourcing their certain services in the interest of economy and efficiency. The respondents submit that there is no bar for the contractor if he decides to appoint the petitioners for carrying out the services outsourced. For these reasons we find no illegality in the impugned order and merit in the present petition.

Accordingly, in view of the aforesaid settled position, the challenge of some of the applicants to the demi official letter dated 4.7.2011 issued by the Central Board of Direct Taxes, and for direction to the respondents to examine the possibility of regularising the services of the applicants can not be sustained.

The fact that the applicants have not produced any document to establish that their engagement at the inception was as per constitutional scheme by a competent authority against the sanctioned vacancy, the respondents cannot be faulted for rejecting their claim for regularisation by the impugned orders. Accordingly we do not find any merit in these Original Applications. The same deserve to be and are accordingly dismissed, however, without any order as to costs.