Delhi High Court
Kumar Mayank vs Delhi Technological University & Anr on 10 November, 2016
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No.10368/2016 & conn.
% 10th November, 2016
+ W.P(C) No. 10368/2016
KUMAR MAYANK ..... Petitioner
Through: Mr. Vivek Chib, Mr. Asif Ahmed,
Mr. Rishabh Kapur and Mr. Kushal
Gupta, Advocates.
versus
DELHI TECHNOLOGICAL UNIVERSITY & ANR ..... Respondents
Through: Ms. Avnish Ahlawat, Adv. with Ms.
Latika Chaudhary, Adv. for R-1.
Mr. Peeyosh Kalra, ASC, GNCTD
with Ms. Sona Babbar, Advocate for
R-2.
+ W.P(C) No.10370/2016
SIKANDER ALI KHAN ..... Petitioner
Through: Mr. Vivek Chib, Mr. Asif Ahmed,
Mr. Rishabh Kapur and Mr. Kushal
Gupta, Advocates.
versus
DELHI TECHNOLOGICAL UNIVERSITY & ANR ..... Respondent
Through: Ms. Avnish Ahlawat, Adv. with Ms.
Latika Chaudhary, Adv. for R-1.
WP(C) No.10368/2016 & conn. Page 1 of 36
Mr. Peeyosh Kalra, ASC, GNCTD
with Ms. Sona Babbar, Advocate for
R-2.
+ W.P(C) No.10372/2016
SUMAN RANI ..... Petitioner
Through: Mr. Vivek Chib, Mr. Asif Ahmed,
Mr. Rishabh Kapur and Mr. Kushal
Gupta, Advocates.
versus
DELHI TECHNOLOGICAL UNIVERSITY & ANR ..... Respondents
Through: Ms. Avnish Ahlawat, Adv. with Ms.
Latika Chaudhary, Adv. for R-1.
Mr. Peeyosh Kalra, ASC, GNCTD
with Ms. Sona Babbar, Advocate for
R-2.
+ W.P(C) No. 10375/2016
AMRITESH KUMAR ..... Petitioner
Through: Mr. Vivek Chib, Mr. Asif Ahmed,
Mr. Rishabh Kapur and Mr. Kushal
Gupta, Advocates.
versus
WP(C) No.10368/2016 & conn. Page 2 of 36
DELHI TECHNOLOGICAL UNIVERSITY & ANR ..... Respondents
Through: Ms. Avnish Ahlawat, Adv. with Ms.
Latika Chaudhary, Adv. for R-1.
Mr. Peeyosh Kalra, ASC, GNCTD
with Ms. Sona Babbar, Advocate for
R-2.
+ W.P(C) No.10379/2016
KUMAR VIMAL ..... Petitioner
Through: Mr. Vivek Chib, Mr. Asif Ahmed,
Mr. Rishabh Kapur and Mr. Kushal
Gupta, Advocates.
versus
DELHI TECHNOLOGICAL UNIVERSITY & ANR ..... Respondent
Through: Ms. Avnish Ahlawat, Adv. with Ms.
Latika Chaudhary, Adv. for R-1.
Mr. Peeyosh Kalra, ASC, GNCTD
with Ms. Sona Babbar, Advocate for
R-2.
+ W.P(C) No.10387/2016
SHIKHA ..... Petitioner
Through: Mr. Vivek Chib, Mr. Asif Ahmed,
Mr. Rishabh Kapur and Mr. Kushal
Gupta, Advocates.
Versus
WP(C) No.10368/2016 & conn. Page 3 of 36
DELHI TECHNOLOGICAL UNIVERSITY & ANR ..... Respondent
Through: Ms. Avnish Ahlawat, Adv. with Ms.
Latika Chaudhary, Adv. for R-1.
Mr. Peeyosh Kalra, ASC, GNCTD
with Ms. Sona Babbar, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. These writ petitions are filed under Article 226 of the
Constitution of India by the petitioners who are working as Assistant
Professors with the respondent no.1 as contractual appointees. Petitioner
seeks their regularization of their services. The prayers made in the
petitions are identical and for the purpose of convenience the relevant prayer
clauses of WP(C) No. 10368/2016 are reproduced below:
"PRAYER
In view of the foregoing, it is most respectfully prayed that this Hon‟ble Court
may be pleased to:-
i)Pass an appropriate Writ for quashing the Impugned Advertisement dated
17.10.2016, issued by the Respondent No.1 University, for being violative of
the Petitioner‟s Fundamental Rights under Articles 14 and 16 of the
Constitution of India;
ii) Pass an appropriate Writ in the nature of Writ of Mandamus or any
other writ directing the Respondents to regularize the services of the Petitioner
to the post of Assistant Professor in the Electronics & Communications
Engineering Department of the Respondent University in terms of the policy
decision of Respondent No.2 vide Order dated 19.10.2015;
WP(C) No.10368/2016 & conn. Page 4 of 36
iii) Pass an appropriate Writ in the nature of a Mandamus or any other
writ directing the Respondent No.1 University to absorb the Petitioner herein
to the post of Assistant Professor in the Electronics & Communications
Engineering Department of the Respondent University; and
iv) Pass such other and further order(s) as this Hon‟ble Court may deem
fit and proper in the facts and circumstances of the case."
2. It is now over 10 years since the of passing of the judgment by
the Constitution Bench of the Supreme Court in the case of Secretary, State
of Karnataka and Others Vs. Umadevi (3) and Others 2006 (4) SCC 1 and
which judgment effectively puts to an end the „industry‟ created of
temporary appointments and thereafter regularization of such temporary
employees. The Supreme Court has made it abundantly clear in Umadevi's
case (supra) that before appointing of persons on a regular/permanent basis
there have to exist recruitment rules or specific eligibility criteria laid down
for the appointments, there must be sanctioned posts, there must be
vacancies in the sanctioned posts, and finally there must be issued
advertisements for filling the posts; not as temporary or contractual posts
but as permanent posts; so that there should be a level playing field of
competition with respect to prospective appointees. Candidates can also be
called from the lists of employment exchanges. Umadevi's case (supra) has
laid down the following ratio:-
"(I) The questions to be asked before regularization are:-
(a)(i)Was there a sanctioned post (court cannot order creation of posts because
finances of the state may go haywire), (ii) is there a vacancy, (iii) are the
WP(C) No.10368/2016 & conn. Page 5 of 36
persons qualified persons and (iv) are the appointments through regular
recruitment process of
(b) A court can condone an irregularity in the appointment procedure
only if the irregularity does not go to the root of the matter.
(II) For sanctioned posts having vacancies, such posts have to be filled by
regular recruitment process of prescribed procedure otherwise, the
constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is
violated.
(III) In case of existence of necessary circumstances the government has a
right to appoint contract employees or casual labour or employees for a
project, but, such persons form a class in themselves and they cannot claim
equality(except possibly for equal pay for equal work) with regular employees
who form a separate class. Such temporary employees cannot claim legitimate
expectation of absorption/regularization as they knew when they were
appointed that they were temporary inasmuch as the government did not give
and nor could have given an assurance of regularization without the regular
recruitment process being followed. Such irregularly appointed persons
cannot claim to be regularized alleging violation of Article 21. Also the equity
in favour of the millions who await public employment through the regular
recruitment process outweighs the equity in favour of the limited number of
irregularly appointed persons who claim regularization.
(IV) Once there are vacancies in sanctioned posts such vacancies cannot be
filled in except without regular recruitment process, and thus neither the court
nor the executive can frame a scheme to absorb or regularize persons
appointed to such posts without following the regular recruitment process.
(V) At the instance of persons irregularly appointed the process of regular
recruitment shall not be stopped. Courts should not pass interim orders to
continue employment of such irregularly appointed persons because the same
will result in stoppage of recruitment through regular appointment procedure.
(VI) If there are sanctioned posts with vacancies, and qualified persons
were appointed without a regular recruitment process, then, such persons who
when the judgment of Uma Devi is passed have worked for over 10 years
without court orders, such persons be regularized under schemes to be framed
by the concerned organization.
(VII)The aforesaid law which applies to the Union and the States will also
apply to all instrumentalities of the State governed by Article 12 of the
Constitution".
WP(C) No.10368/2016 & conn. Page 6 of 36
3. The aforesaid ratio of the Supreme Court can be culled out
from the following paragraphs of the judgment of the Supreme Court in
Umadevi's case (supra):-
"2. Public employment in a sovereign socialist secular democratic republic,
has to be as set down by the Constitution and the laws made thereunder. Our
constitutional scheme envisages employment by the Government and its
instrumentalities on the basis of a procedure established in that behalf.
Equality of opportunity is the hallmark, and the Constitution has provided also
for affirmative action to ensure that unequals are not treated equals. Thus, any
public employment has to be in terms of the constitutional scheme.
3. A sovereign government, considering the economic situation in the country
and the work to be got done, is not precluded from making temporary
appointments or engaging workers on daily wages. Going by a law newly
enacted, The National Rural Employment Guarantee Act, 2005, the object is to
give employment to at least one member of a family for hundred days in an
year, on paying wages as fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to, when regular vacancies in
posts, at a particular point of time, are to be filled up and the filling up of those
vacancies cannot be done in a haphazard manner or based on patronage or
other considerations. Regular appointment must be the rule.
4. But, sometimes this process is not adhered to and the Constitutional scheme
of public employment is by-passed. The Union, the States, their departments
and instrumentalities have resorted to irregular appointments, especially in the
lower rungs of the service, without reference to the duty to ensure a proper
appointment procedure through the Public Service Commission or otherwise as
per the rules adopted and to permit these irregular appointees or those
appointed on contract or on daily wages, to continue year after year, thus,
keeping out those who are qualified to apply for the post concerned and
depriving them of an opportunity to compete for the post. It has also led to
persons who get employed, without the following of a regular procedure or
even through the backdoor or on daily wages, approaching Courts, seeking
directions to make them permanent in their posts and to prevent regular
recruitment to the concerned posts. Courts have not always kept the legal
aspects in mind and have occasionally even stayed the regular process of
employment being set in motion and in some cases, even directed that these
illegal, irregular or improper entrants be absorbed into service. A class of
employment which can only be called 'litigious employment', has risen like a
phoenix seriously impairing the constitutional scheme. Such orders are passed
apparently in exercise of the wide powers under Article 226 of the Constitution
WP(C) No.10368/2016 & conn. Page 7 of 36
of India. Whether the wide powers under Article 226 of the Constitution is
intended to be used for a purpose certain to defeat the concept of social justice
and equal opportunity for all, subject to affirmative action in the matter of
public employment as recognized by our Constitution, has to be seriously
pondered over. It is time, that Courts desist from issuing orders preventing
regular selection or recruitment at the instance of such persons and from
issuing directions for continuance of those who have not secured regular
appointments as per procedure established. The passing of orders for
continuance, tends to defeat the very Constitutional scheme of public
employment. It has to be emphasized that this is not the role envisaged for
High Courts in the scheme of things and their wide powers under
Article 226 of the Constitution of India are not intended to be used for the
purpose of perpetuating illegalities, irregularities or improprieties or for
scuttling the whole scheme of public employment. Its role as the sentinel and
as the guardian of equal rights protection should not be forgotten.
5. 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.
6. The power of a State as an employer is more limited than that of a private
employer inasmuch as it is subjected to constitutional limitations and cannot be
exercised arbitrarily (See Basu's Shorter Constitution of India).
Article 309 of the Constitution gives the Government the power to frame rules
for the purpose of laying down the conditions of service and recruitment of
persons to be appointed to public services and posts in connection with the
affairs of the Union or any of the States. That Article contemplates the drawing
up of a procedure and rules to regulate the recruitment and regulate the service
conditions of appointees appointed to public posts. It is well acknowledged
that because of this, the entire process of recruitment for services is controlled
by detailed procedure which specify the necessary qualifications, the mode of
appointment etc. If rules have been made under Article 309 of the
Constitution, then the Government can make appointments only in accordance
with the rules. The State is meant to be a model employer. The Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to
ensure equal opportunity for employment seekers. Though this Act may not
WP(C) No.10368/2016 & conn. Page 8 of 36
oblige an employer to employ only those persons who have been sponsored by
employment exchanges, it places an obligation on the employer to notify the
vacancies that may arise in the various departments and for filling up of those
vacancies, based on a procedure. Normally, statutory rules are framed under
the authority of law governing employment. It is recognized that no
government order, notification or circular can be substituted for the statutory
rules framed under the authority of law. This is because, following any other
course could be disastrous inasmuch as it will deprive the security of tenure
and the right of equality conferred on civil servants under the Constitutional
scheme. It may even amount to negating the accepted service jurisprudence.
Therefore, when statutory rules are framed under Article 309 of the
Constitution which are exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed.
xxxxx
xxxxx
11. In addition to the equality clause represented by Article 14 of the
Constitution, Article 16 has specifically provided for equality of opportunity in
matters of public employment. Buttressing these fundamental rights,
Article309 provides that subject to the provisions of the Constitution, Acts of
the legislature may regulate the recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of
the Union or of a State. In view of the interpretation placed on Article 12 of the
Constitution by this Court, obviously, these principles also govern the
instrumentalities that come within the purview of Article 12 of the
Constitution. With a view to make the procedure for selection fair, the
Constitution by Article 315 has also created a Public Service Commission for
the Union and Public Service Commissions for the States. Article 320deals
with the functions of Public Service Commissions and mandates consultation
with the Commission on all matters relating to methods of recruitment to civil
services and for civil posts and other related matters. As a part of the
affirmative action recognized by Article 16 of the Constitution,
Article 335 provides for special consideration in the matter of claims of the
members of the scheduled castes and scheduled tribes for employment. The
States have made Acts, Rules or Regulations for implementing the above
constitutional guarantees and any recruitment to the service in the State or in
the Union is governed by such Acts, Rules and Regulations. The Constitution
does not envisage any employment outside this constitutional scheme and
without following the requirements set down therein.
12. In spite of this scheme, there may be occasions when the sovereign State or
its instrumentalities will have to employ persons, in posts which are temporary,
on daily wages, as additional hands or taking them in without following the
required procedure, to discharge the duties in respect of the posts that are
WP(C) No.10368/2016 & conn. Page 9 of 36
sanctioned and that are required to be filled in terms of the relevant procedure
established by the Constitution or for work in temporary posts or projects that
are not needed permanently. This right of the Union or of the State
Government cannot but be recognized 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.
xxxxx
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
theDharwad 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 so-called equitable
WP(C) No.10368/2016 & conn. Page 10 of 36
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.
xxxxx
xxxxx
17. We have already indicated the constitutional scheme of public employment
in this country, and the executive, or for that matter the Court, in appropriate
cases, would have only the right to regularize an appointment made after
following the due procedure, even though a non-fundamental element of that
process or procedure has not been followed. This right of the executive and
that of the court, would not extend to the executive or the court being in a
position to direct that an appointment made in clear violation of the
constitutional scheme, and the statutory rules made in that behalf, can be
treated as permanent or can be directed to be treated as permanent.
xxxxx
xxxxx
26. With respect, why should the State be allowed to depart from the normal
rule and indulge in temporary employment in permanent posts? This Court, in
our view, is bound to insist on the State making regular and proper
recruitments and is bound not to encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The direction to make
permanent -- the distinction between regularization and making permanent,
was not emphasized here -- can only encourage the State, the model employer,
to flout its own rules and would confer undue benefits on a few at the cost of
many waiting to compete. With respect, the direction made in paragraph 50
of Piara Singh (supra) are to some extent inconsistent with the conclusion in
paragraph 45 therein. With great respect, it appears to us that the last of the
directions clearly runs counter to the constitutional scheme of employment
recognized in the earlier part of the decision. Really, it cannot be said that this
decision has laid down the law that all ad hoc, temporary or casual employees
engaged without following the regular recruitment procedure should be made
permanent.
xxxxx
xxxxx
WP(C) No.10368/2016 & conn. Page 11 of 36
33. It is not necessary to notice all the decisions of this Court on this aspect.
By and large what emerges is that regular recruitment should be insisted upon,
only in a contingency an ad hoc appointment can be made in a permanent
vacancy, but the same should soon be followed by a regular recruitment and
that appointments to non-available posts should not be taken note of for
regularization. The cases directing regularization have mainly proceeded on
the basis that having permitted the employee to work for some period, he
should be absorbed, without really laying down any law to that effect, after
discussing the constitutional scheme for public employment.
xxxxx
xxxxx
39. There have been decisions which have taken the cue from
the Dharwad (supra) case and given directions for regularization, absorption
or making permanent, employees engaged or appointed without following the
due process or the rules for appointment. The philosophy behind this approach
is seen set out in the recent decision in The Workmen of Bhurkunda
Colliery of Central Coalfields Ltd. v. The Management of Bhurkunda
Colliery of Central Coalfields Ltd. MANU/SC/0625/2006 :
(2006)ILLJ842SC , though the legality or validity of such an approach has not
been independently examined. But on a survey of authorities, the predominant
view is seen to be that such appointments did not confer any right on the
appointees and that the Court cannot direct their absorption or regularization or
re-engagement or making them permanent.
xxxxx
xxxxx
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
WP(C) No.10368/2016 & conn. Page 12 of 36
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.
44. The concept of 'equal pay for equal work' is different from the concept of
conferring permanency on those who have been appointed on ad hoc basis,
temporary basis, or based on no process of selection as envisaged by the Rules.
This Court has in various decisions applied the principle of equal pay for equal
work and has laid down the parameters for the application of that principle.
The decisions are rested on the concept of equality enshrined in our
Constitution in the light of the directive principles in that behalf. But the
acceptance of that principle cannot lead to a position where the court could
direct that appointments made without following the due procedure established
by law, be deemed permanent or issue directions to treat them as permanent.
Doing so, would be negation of the principle of equality of opportunity. The
power to make an order as is necessary for doing complete justice in any cause
or matter pending before this Court, would not normally be used for giving the
go-by to the procedure established by law in the matter of public employment.
Take the situation arising in the cases before us from the State of Karnataka.
Therein, after the Dharwad decision, 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
WP(C) No.10368/2016 & conn. Page 13 of 36
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.
xxxxx
xxxxx
50. It is argued that in a country like India where there is so much poverty and
unemployment and there is no equality of bargaining power, the action of the
State in not making the employees permanent, would be violative of
Article 21 of the Constitution. But the very argument indicates that there are so
many waiting for employment and an equal opportunity for competing for
employment and it is in that context that the Constitution as one of its basic
features, has included Articles 14, 16 and 309 so as to ensure that public
employment is given only in a fair and equitable manner by giving all those
who are qualified, an opportunity to seek employment. In the guise of
upholding rights under Article 21 of the Constitution 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.
xxxxx
xxxxx
53. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V.
Narayanappa (supra), R.N. Nanjundappa (supra), and B.N.
Nagarajan (supra), and referred to in paragraph 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
WP(C) No.10368/2016 & conn. Page 14 of 36
intervention of orders of courts or of tribunals. The question of regularization
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 regularize 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 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 regularization, if any already made, but not
subjudice, need not be reopened based on this judgment, but there should be no
further by-passing of the constitutional requirement and regularizing or making
permanent, those not duly appointed as per the constitutional scheme."
4. Whatever doubt which could have existed as regards that
contractual/temporary employees cannot be regularized becomes clear from
the judgment of the Division Bench of Three Judges in the case of Official
Liquidator Vs. Dayanand & Others. (2008) 10 SCC 1, wherein the
Supreme Court has clearly so stated as under:-
"49. Although neither of the parties to the appeals nor the intervenors have
placed before the Court advertisements issued by the Official Liquidators of
Bombay, Calcutta, Delhi and Madhya Pradesh or any other High Court for
employment of special or additional staff in accordance with the sanction
accorded by the concerned Court and we have not been apprised of the specific
terms and conditions, subject to which the respondents were
employed/engaged by the Official Liquidators but from the tenor of the
pleadings and other records, it can be safely inferred that the respondents were
appointed on purely temporary basis for fixed period with a stipulation that
they shall not be entitled to seek regularization or absorption in the regular
cadre against the sanctioned post. Those who applied in response to the
advertisements issued by the Official Liquidators must have been aware of the
fact that they were being engaged/employed pursuant to the sanction accorded
by the Court under Rule 308 of the 1959 Rules in connection with liquidation
proceedings; that their appointments will not be against the posts sanctioned by
the Government; that they will have no right to claim absorption in the regular
cadre and that they will be paid salaries and allowances which may be fixed by
the Court. They must have accepted the appointment/engagement knowing
WP(C) No.10368/2016 & conn. Page 15 of 36
fully well that they will have fixed tenure without any right to continue in
service or to seek absorption against the sanctioned posts.
50. It was neither the pleaded case of the respondents before the High Courts
nor Shri Bhaskar P. Gupta and other learned counsel appearing on their behalf
argued before this Court that their clients were lured into accepting
employment as company paid staff by the Official Liquidators by promising
absorption in future against the sanctioned posts or that they were coerced by
some authority to accept such employment. Therefore, they cannot be heard to
complain of the violation of Articles 14 and 16 of the Constitution on the
ground that even after having worked for more than one decade, they have not
been absorbed in the regular cadres under the Government. In our opinion,
after having applied for and accepted employment/engagement as company
paid staff with fixed tenure superimposed by a stipulation that they will have
no right to continue in service or to be absorbed in the regular cadres, the
respondents are estopped from seeking a direction for their absorption against
the posts sanctioned by the Government of India and the High Courts
committed a serious error in granting their prayer.
xxxxx
52. As mentioned above, while approving the reasons and conclusions
recorded by the two High Courts and dismissing the appeals, this Court not
only permitted the Government of India to frame a scheme modeled on the
1978 Scheme but also stayed implementation of the orders impugned in the
appeal and the one passed by itself in the transferred writ petition. If the Court
intended that all members of the company paid staff working on the date of
judgment i.e. 27.8.1999 should be absorbed in the regular cadres against Group
`C' and `D' posts, then a simple direction to that effect would have been
sufficient and there was no occasion to stay the implementation of the orders
of the High Courts for six months with liberty to the Government of India to
frame a new scheme within the same period. The absence of such a direction
shows that the Court was very much conscious of the fact that recruitment to
the regular cadres is governed by the rules framed under Article 309 of the
Constitution and it would be highly detrimental to public interest to issue
direction for wholesale absorption/regularization of the company paid staff and
thereby abrogate/stultify opportunity of competition to younger generation
comprising more meritorious persons who may be waiting for a chance to
apply for direct recruitment. Obviously, the Court did not want to sacrifice the
merit by showing undue sympathy with members of the company paid staff
who joined service with full knowledge about their status, terms and
conditions of their employment and the fact that they were to be paid from the
company fund and not Consolidated Fund of India. In this context, we may
also mention that though the Official Liquidators appear to have issued
advertisements for appointing the company paid staff and made some sort
of selection, more qualified and meritorious persons must have shunned
from applying because they knew that the employment will be for a fixed
WP(C) No.10368/2016 & conn. Page 16 of 36
term on fixed salary and their engagement will come to an end with the
conclusion of liquidation proceedings. As a result of this, only mediocres
must have responded to the advertisements and jointed as company paid
staff. In this scenario, a direction for absorption of all the company paid
staff has to be treated as violative of the doctrine of equality enshrined in
Articles 14 and 16 of the Constitution." (emphasis is mine)
5. Supreme Court has further clarified this position in its
subsequent judgments in the following cases:-
(i) National Fertilizers Ltd. and Others Vs. Somvir Singh
(2006) 5 SCC 493.
(ii) Kendriya Vidyalaya Sangathan and Others Vs. L.V.
Subramanyeswara and Another (2007) 5 SCC 326.
(iii) State of Orissa and Another Vs. Mamata Mohanty
(2011) 3 SCC 436.
6. In the judgment in the case of Keshav Dutt & Ors. Vs. Delhi
Tourism & Transport Corporation Limited and Ors. (2015) 150 DRJ 406,
I have referred to the aforesaid three judgments of the Supreme Court which
make it clear that if advertisements are issued not for permanent
appointment in the regular posts, and advertisements are issued only for
contractual appointments or ad hoc appointments or temporary
appointments, then persons who are appointed by such appointments cannot
be regularized because it would amount to a fraud being played upon the
ratio of the judgment of the Supreme Court in the case of Umadevi (supra).
WP(C) No.10368/2016 & conn. Page 17 of 36
The relevant paras of the judgment in the case of Keshav Dutt (supra) are
paras 2 to 15 and these paras read as under:-
"2. The advertisement pursuant to which petitioners were
appointed is dated 26.6.2007 and this advertisement reads as under:-
" ADVERTISEMENT
DTTDC required Helper/Attendant for short period
Qualification 8th passed, desire experienced qualification is two years,
Maximum age 25 years for (General), 30 years for (SC/ST), 28 years for
(OBC). Interview shall be take place at Garden of Five Senses, Said-Ul-Ajaib,
Mehrauli Badarpur Road, New Delhi on dated 27/06/2007 at 10:30 AM.
Aspiring applicants may please bring their educational certificate and
experience certificates on the above mention date for the interview.
General Manager"
3. A reference to the aforesaid advertisement shows that by the
advertisement appointment was sought to be made of persons as
Helper/Attendant only for a short period i.e appointments which were sought
to be made were not permanent appointments as distinguished from
contractual/short term appointments or casual appointments. The issue is that
can these persons claim regularization of their services by seeking permanent
employment only on the ground that they were appointed against vacancies in
sanctioned posts and they had the necessary eligibility criteria/qualifications
and were recruited through the process of advertisement.
4. It is now no longer res integra that in terms of the Constitution
Bench judgment of the Supreme Court in the case of Secretary, State of
Karnataka and Others Vs. Umadevi (3) and Others 2006 (4) SCC 1 before a
person can seek regularization, four aspects must exist viz first of there
existing sanctioned posts, second of there existing vacancies in sanctioned
posts for which there exists authority/entitlement to fill up, thirdly that the
persons who are appointed in vacancies against sanctioned posts are duly
qualified persons, and fourthly appointment is made of persons who have been
called through advertisements widely circulated so that there is open
competition among the eligible persons.
5. The issue in the present case is that whether the advertisement
in question reproduced above by which appointments were sought to be made
only for a short period, is an advertisement in accordance with the ratio of the
judgment of the Supreme Court in the case of Umadevi (supra).
WP(C) No.10368/2016 & conn. Page 18 of 36
6. I have recently had an occasion to examine this aspect in the
bunch of cases with the lead case being Radhey Shyam & Ors. Vs. GNCT of
Delhi & Ors. W.P.(C) No. 471/2015 decided on 22.1.2015 and I have held in
this judgment that to allow regularization of contractual employees or short
period appointment employees, merely because such persons meet 3 out of 4
criteria in terms of the ratio of Umadevi's case (supra) being that they are
qualified persons and appointed against vacancies in sanctioned posts, the
same would result in fraud upon the ratio of Umadevi's case (supra) as also
the general public because the object of Umadevi's case (supra) was to
prevent back-door entry and spoils system in public appointment and there
cannot be regularization of employees who have got appointment in terms of
the advertisement only for a fixed period. The relevant paras in Radhey
Shyam's case (supra) are paras 14 and 15 and which read as under:-
"14. Petitioners in this case seek appointment as Lab
Technicians/Lab Assistants. In the present case, the relief which is
claimed by the petitioners of their being regularized cannot be granted
because if petitioners are specifically appointed for contractual period
in terms of the advertisement which required only contractual
employment for 11 months, then, if the petitioners are regularized
only because they were appointed against sanctioned posts, the same
would be clearly a violation of the ratio of the Constitution Bench
judgment in the case of Umadevi (supra) because if the petitioners are
directed to be regularized merely because there existed sanctioned
posts, although the advertisement and appointments were only and
specifically for 11 months only, then what will happen is that by
issuing of an advertisement by the respondent no.2 which was only for
contractual appointments of a limited period of 11 months, injustice
would be caused to dozens or hundreds of other persons who would
not have applied to the posts on the ground that the posts are
contractual posts only for 11 months and such persons, being the
ordinary citizens, who therefore would seek appointment with other
employers who would offer permanent posts. If this Court allows
regularization of the petitioners, and merely because petitioners are
appointed against sanctioned posts, the spirit of the ratio of Umadevi's
case (supra) would be violated because then in such cases the
authorities of the State instead of making regular appointments to
sanctioned posts, will advertise and make contractual appointments to
sanctioned posts for specified periods, and thereby play a fraud upon
general public being persons who would have applied if the posts
were advertised as permanent posts. Thus regularization cannot be
granted only because petitioners were appointed against sanctioned
posts, once the advertisement and appointments were only for a
limited period of just 11 months.
15. It is not the ratio of Umadevi's case (supra) that contractual
employees must be regularized only because there are vacant
sanctioned posts to which they were appointed to limited contractual
WP(C) No.10368/2016 & conn. Page 19 of 36
period of mere 11 months, inasmuch as, Umadevi (supra) requires
that the appointments must be as per the regular recruitment process
and rules which will require advertisement for appointments as
permanent posts, and much less because in terms of the ratio of the
Umadevi's case (supra), the Delhi State Services Selection Board
(DSSSB), and who appoints employees for the respondent no.2, has
already issued a circular that there should not be appointments to
regular posts except in accordance with the law and the process as
specified in the regular recruitment rules."
7. The Supreme Court in the case of National Fertilizers Ltd.
and Others Vs. Somvir Singh (2006) 5 SCC 493 by referring to the ratio of
Umadevi's case (supra) has held that persons who have been only appointed
for temporary periods or are temporary employees in posts, such persons
cannot claim regularization. In National Fertilizers Ltd.'s case (supra) the
Supreme Court has reproduced the relevant paras of Umadevi's case (supra)
and the relevant paras of National Fertilizers Ltd.'s case (supra) are paras
20,21 and 22 and which paras read as under:-
"20. The Constitution Bench opined that any appointment made
in violation of the Recruitment Rules as also in violation of
Articles 14 and 16 of the Constitution would be nullity. The
contention raised on behalf of the employees that those temporary or
ad hoc employees who had continued for a fairly long spell, the
authorities must consider their cases for regularisation was answered,
thus: [Umadevi (3) Case (supra), SCC p.29, para 26]
"26. With respect, why should the State be allowed to depart from
the normal rule and indulge in temporary employment in
permanent posts? This Court, in our view, is bound to insist on the
State making regular and proper recruitments and is bound not to
encourage or shut its eyes to the persistent transgression of the
rules of regular recruitment. The direction to make permanent -- the
distinction between regularization and making permanent, was not
emphasized here -- can only encourage the State, the model
employer, to flout its own rules and would confer undue benefits on
a few at the cost of many waiting to compete. With respect, the
direction made in paragraph 50 of State of Haryana v. Piara Singh:
(1992) 4 SCC 118 are to some extent inconsistent with the
conclusion in paragraph 45 therein. With great respect, it appears to
us that the last of the directions clearly runs counter to the
constitutional scheme of employment recognized in the earlier part
of the decision. Really, it cannot be said that this decision has laid
down the law that all ad hoc, temporary or casual employees
engaged without following the regular recruitment procedure
should be made permanent."
WP(C) No.10368/2016 & conn. Page 20 of 36
21. It was furthermore opined: [Umadevi (3) Case (supra), SCC p.32,
para 33]
"33. It is not necessary to notice all the decisions of this Court on
this aspect. By and large what emerges is that regular recruitment
should be insisted upon, only in a contingency an ad hoc
appointment can be made in a permanent vacancy, but the same
should soon be followed by a regular recruitment and that
appointments to non-available posts should not be taken note of for
regularization. The cases directing regularization have mainly
proceeded on the basis that having permitted the employee to work
for some period, he should be absorbed, without really laying down
any law to that effect, after discussing the constitutional scheme for
public employment."
22. Taking note of some recent decisions of this Court, it was held
that the State does not enjoy a power to make appointments in terms
of Article 162 of the Constitution of India. It further quoted with
approval a decision of this Court in Union Public Service
Commission v. Girish Jayanti Lal Vaghela:(2006) 2 SCC 482 in the
following terms: (SCC p. 490, para 12)
"The appointment to any post under the State can only be made after a
proper advertisement has been made inviting applications from
eligible candidates and holding of selection by a body of experts or a
specially constituted committee whose members are fair and impartial
through a written examination or interview or some other rational
criteria for judging the inter se merit of candidates who have applied
in response to the advertisement made. A regular appointment to a
post under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in some cases
include inviting applications from the employment exchange where
eligible candidates get their names registered. Any regular
appointment made on a post under the State or Union without issuing
advertisement inviting applications from eligible candidates and
without holding a proper selection where all eligible candidates get a
fair chance to compete would violate the guarantee enshrined under
Article 16 of the Constitution."
It was clearly held: [Umadevi (3) case (supra), SCC p.35, para 41]
"These binding decisions are clear imperatives that adherence to
Articles 14 and 16 of the Constitution is a must in the process of
public employment." (emphasis added)
WP(C) No.10368/2016 & conn. Page 21 of 36
8. A reference to para 22 above in the case of
National Fertilizers Ltd. (supra) makes it abundantly clear that
the advertisement which should be issued for inviting
applications from eligible candidates has to be a proper
advertisement and an advertisement in the prescribed manner. In
my opinion, appropriate advertisement or advertisement in the
prescribed manner necessarily means that advertisement issued
for seeking appointment is advertisement for employment in
permanent tenure and not an advertisement which seeks
appointments to temporary posts or for temporary period in
permanent posts or appointments are to be only contractual
appointments. Para 22 above in the case of National Fertilizers
Ltd. (supra) specifically notes that regular appointment to a post
under the State or Union cannot be made without issuing
advertisement in the prescribed manner, and prescribed manner
necessarily has to mean that the posts have to be advertised as
permanent tenure posts for being filled up, inasmuch as,
otherwise multitude of people who would otherwise be eligible to
apply, may prefer to skip the employment process thinking that it
is only for a temporary period or a contractual period since posts
are not for permanent employment. Para 22 above in the case of
National Fertilizers Ltd. (supra) makes it clear that
appointments made without issuing requisite advertisement
would violate the guarantee under Articles 14 and 16 of the
Constitution of India.
9. Supreme Court recently in the judgment in the case
of Kendriya Vidyalaya Sangathan and Others Vs. L.V.
Subramanyeswara and Another (2007) 5 SCC 326 has held that
if all the eligible candidates are not called by means of the
advertisement, then, the process of recruitment will violate the
ratio in the case of Umadevi (supra) as also Articles 14 and 16 of
the Constitution of India. These observations have been made by
the Supreme Court in para 10 of the judgment in the case of
Kendriya Vidyalaya Sangathan (supra) and this para 10 reads
as under:-
"10. Had such regular vacancies been created, appellants would
have been directed to be appointed on All India Basis. Respondents
did not get their names registered in the Central Employment
Exchange. Keeping in view the nature of the job and in particular that
the posts are transferable throughout the country, an opportunity
within the meaning of Articles 14 and 16 of the Constitution of India
WP(C) No.10368/2016 & conn. Page 22 of 36
would mean an opportunity to all who are eligible therefore.
Advertisement was issued for a limited purpose, namely, for leave
vacancies, local employment exchanges were contacted only for
filling of such posts and not regular posts." (underlining added)
10. Another recent judgment of the Supreme Court and which
in a way lays down the same ratio is the judgment in the case of State of
Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC 436. In this
judgment the Supreme Court has held that candidates who are not duly
qualified if are appointed, the same would cause grave and irreparable
injury to other unqualified candidates who would have otherwise applied,
and therefore in such a case when unqualified persons seek regularization,
that would be violative of the ratio in the case of Umadevi (supra) as also
Articles 14 and 16 of the Constitution of India. The relevant observations
of the Supreme Court in the case of Mamta Mohanty (supra) are made in
para 36 of the judgment, and para 35 also is relevant because the same
makes the legal position very clear that the object of issuing
advertisement is to ensure open competition by calling of all the eligible
candidates. These paras 35 and 36 read as under:-
"35. At one time this Court had been of the view that
calling the names from Employment Exchange would curb to certain
extent the menace of nepotism and corruption in public employment.
But, later on, came to the conclusion that some appropriate method
consistent with the requirements of Article 16 should be followed. In
other words there must be a notice published in the appropriate manner
calling for applications and all those who apply in response thereto
should be considered fairly. Even if the names of candidates are
requisitioned from Employment Exchange, in addition thereto it is
mandatory on the part of the employer to invite applications from all
eligible candidates from the open market by advertising the vacancies
in newspapers having wide circulation or by announcement in Radio
and Television as merely calling the names from the Employment
Exchange does not meet the requirement of the said Article of the
Constitution. (Vide Delhi Development Horticulture Employees'
Union v. Delhi Admn., : AIR 1992 SC 789, State of Haryana v. Piara
Singh : AIR 1992 SC 2130, Excise Supdt. v. K.B.N. Visweshwara Rao :
(1996) 6 SCC 216, Arun Tewari v. Zila Mansavi Shikshak Sangh : AIR
1998 SC 331, Binod Kumar Gupta v. Ram Ashray Mahoto : AIR 2005
SC 2103, National Fertilizers Ltd. v. Somvir Singh : AIR 2006 SC
2319, Telecom District Manager v. Keshab Deb : (2008) 8 SCC
402, State of Bihar v. Upendra Narayan Singh : (2009) 5 SCC 65
and State of M.P. v. Mohd. Abrahim : (2009) 15 SCC 214.)
36. Therefore, it is a settled legal proposition that no person can
be appointed even on a temporary or ad hoc basis without inviting
WP(C) No.10368/2016 & conn. Page 23 of 36
applications from all eligible candidates. If any appointment is made
by merely inviting names from the Employment Exchange or putting a
note on the Notice Board etc. that will not meet the requirement of
Articles 14 and 16 of the Constitution. Such a course violates the
mandates of Articles 14 and 16 of the Constitution of India as it
deprives the candidates who are eligible for the post, from being
considered. A person employed in violation of these provisions is not
entitled to any relief including salary. For a valid and legal
appointment mandatory compliance of the said Constitutional
requirement is to be fulfilled. The equality clause enshrined in
Article 16requires that every such appointment be made by an open
advertisement as to enable all eligible persons to compete on merit."
(underlining added)
11. In Umadevi's case (supra) the only exception which was
carved out with respect to regularization of persons was those persons
whose appointments were irregular as distinguished from illegal. Such
irregular appointees who had worked for 10 years prior to passing of the
decision in Umadevi's case (supra), if they had worked in their posts
without benefit of court orders, such eligible persons who had been
appointed against vacancies in sanctioned posts, the government and
governmental organizations were to float schemes to regularize
appointments of such irregularly appointed persons on account of the fact
that appointments made were only irregular i.e the recruitment process
was of filling posts from eligible candidates without means of
advertisements in newspapers and/or through the employment exchange.
Para 53 of the judgment in the case of Umadevi (supra) reads as under:-
"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 : AIR 1967 SC 1071, R.N.
Nanjundappa v. T. Thimmiah : (1972) 1 SCC 409, and B.N.
Nagarajan v. State of Karnataka : (1979) 4 SCC 507, and referred to in
paragraph 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
courts or of tribunals. The question of regularization 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 regularize
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 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
WP(C) No.10368/2016 & conn. Page 24 of 36
be set in motion within six months from this date. We also clarify that
regularization, if any already made, but not sub judice, need not be
reopened based on this judgment, but there should be no further by-
passing of the constitutional requirement and regularizing or making
permanent, those not duly appointed as per the constitutional scheme."
(emphasis added)
12. A reference to para 53 above in the case of Umadevi
(supra) shows that irregular appointments were to be regularized
only as a one-time measure. One time measure by its plain and
simple language means that only for once at the time of passing of
the judgment in Umadevi's case (supra) there can be regularization
of irregularly appointed employees ie after the decision in Umadevi's
case (supra), there cannot be regularization of appointees who are
irregularly appointed i.e the appointments may not be illegal and
only are irregular in the sense that appointment is not through the
means of calling of eligible candidates vide circulations in
newspapers for ensuring competition amongst the eligible candidates
but even such persons cannot be regularized after the decision in
Umadevi's case (supra) as even irregular appointments are in
violation of recruitment rules and there cannot be violation of
recruitment rules post Umadevi's case (supra). Therefore, in my
opinion, the ratio of para 53 above of Umadevi's case (supra) makes
it clear that the issue of regularization of irregularly appointed
employees post Umadevi's case (supra) is time and again not
permissible because that is exactly what the ratio of Umadevi's case
(supra) prohibits i.e regularization of persons appointed in violation
of recruitment rules which will require calling of candidates by
proper advertisements through newspapers.
13. I may note that a Division Bench of two judges of the
Supreme Court in the case of U.P. State Electricity Board Vs. Pooran
Chandra Pandey and Others (2007) 11 SCC 92 sought to water-down
the ratio of the Constitution Bench judgment of the Supreme Court in the
case of Umadevi (supra), and this judgment of a Division Bench of the
two Judges of Supreme Court was specifically overruled by a Division
Bench of three Judges of the Supreme Court in the case of Official
Liquidator Vs. Dayanand and Others (2008) 10 SCC 1. In Dayanand's
case (supra) the Supreme Court has made very strong observations that a
Division Bench of two or three judges of the Supreme Court cannot be
allowed to water-down the categorical ratio of the Constitution Bench
judgment of the Supreme Court in the case of Umadevi (supra) and made
observations with respect to judicial discipline with respect to Benches of
similar number of Judges being bound by the judgments passed by a
Bench consisting of similar or larger number of judges. These
WP(C) No.10368/2016 & conn. Page 25 of 36
observations are contained in paras 75 to 77 and 90 to 92 in Dayanand's
case (supra) and these paras read as under:-
"75. By virtue of Article 141 of the Constitution, the judgment of
the Constitution Bench in State of Karnataka v. Umadevi (3) (supra) 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-Judges Benches for declining to
entertain the claim of regularization 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, Gangadhar Pillai v. Siemens Ltd. : (2007) 1 SCC 533, Kendriya
Vidyalaya Sangathan v. L.V. Subramanyeswara : (2007) 5 SCC
326, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh : (2007) 6 SCC
207. However, in U.P. SEB v. Pooran Chandra Pandey : (2007) 11
SCC 92 on which reliance has been placed by Shri Gupta, a two-Judges
Bench has attempted to dilute the Constitution Bench judgment by
suggesting that the said decision cannot be applied to a case where
regularization has been sought for in pursuance of Article 14 of the
Constitution and that the same is in conflict with the judgment of the
seven-Judges Bench in Maneka Gandhi v. Union of India : (1978) 1
SCC 248.
76. The facts of U.P. SEB v. Pooran Chandra Pandey (supra)
were that the respondents (34 in number) were employed as daily wage
employees by the Cooperative Electricity Supply Society in 1985. The
Society was taken over by Uttar Pradesh Electricity Supply Board in
1997 along with daily wage employees. Earlier to this, the Electricity
Board had taken a policy decision on 28-11-1996 to regularize the
services of its employees working on daily wages from before 4-5-
1990, subject to their passing the examination. The respondents moved
the High Court claiming benefit of the policy decision dated 28-11-
1996. The learned Single Judge of the High Court held that once the
employees of the society became employees of the Electricity Board,
there was no valid ground to discriminate them in the matter of
regularization of service. The Division Bench approved the order of the
Single Bench. A two-Judges Bench of this Court dismissed the appeal
of the Electricity Board. In para 11 of its judgment, the two-Judges
Bench distinguished State of Karnataka v. Umadevi (3) (supra) by
observing that the ratio of that judgment cannot be applied to a case
where regularization has been sought for in pursuance of Article 14 of
the Constitution. The two-Judges Bench then referred to State of
Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647, Ambica Quarry
Works v. State of Gujarat : (1987) 1 SCC 213, Bhavnagar University
v. Palitana Sugar Mill (P) Ltd. : (2003) 2 SCC 111, Bharat Petroleum
WP(C) No.10368/2016 & conn. Page 26 of 36
Corpn. Ltd. v. N.R. Vairamani (2004) 8 SCC 579 and observed:
(Pooran Chandra Pandey case (supra), SCC pp. 98-99, paras 16 & 18)
"16. We are constrained to refer to the above decisions and
principles contained therein because we find that often Umadevi (3)
case (supra) is being applied by courts mechanically as if it were a
Euclid's formula without seeing the facts of a particular case. As
observed by this Court in Bhavnagar University (supra) and Bharat
Petroleum Corpn. Ltd (supra) a little difference in facts or even one
additional fact may make a lot of difference in the precedential
value of a decision. Hence, in our opinion, Umadevi (3) case
(supra) cannot be applied mechanically without seeing the facts of a
particular case, as a little difference in facts can make Umadevi (3)
case (supra) inapplicable to the facts of that case.
* * *
18. We may further point out that a seven-Judge Bench decision
of this Court in Maneka Gandhi v. Union of India (supra) has held
that reasonableness and non-arbitrariness is part of Article 14 of the
Constitution. It follows that the Government must act in a
reasonable and non-arbitrary manner otherwise Article 14 of the
Constitution would be violated. Maneka Gandhi case (supra) is a
decision of a seven-Judge Bench, whereas Umadevi (3) case is a
decision of a five-Judge Bench of this Court. It is well settled that a
smaller Bench decision cannot override a larger Bench decision of
the Court. No doubt, Maneka Gandhi case (supra) does not
specifically deal with the question of regularisation of government
employees, but the principle of reasonableness in executive action
and the law which it has laid down, in our opinion, is of general
application."
(emphasis supplied)
77. We have carefully analyzed the judgment of the two-Judges
Bench (in Pooran Chandra Pandey case (supra)) and are of the
considered view that the above reproduced observations were not
called for. The only issue which fell for consideration by two-Judges
Bench was whether the daily wage employees of the society, the
establishment of which was taken over by the Electricity Board along
with the employees, were entitled to be regularized in terms of the
policy decision taken by the Board and whether the High Court
committed an error by invoking Article 14 of the Constitution for
granting relief to the writ petitioners. The question whether the
Electricity Board could frame such a policy was neither raised nor
considered by the High Court and this Court. The High Court simply
adverted to the facts of the case and held that once the daily wage
WP(C) No.10368/2016 & conn. Page 27 of 36
employees of the society became employees of the Electricity Board,
they could not be discriminated in the matter of implementation of the
policy of regularization. Therefore, the two-Judges Bench had no
occasion to make any adverse comment on the binding character of the
Constitution Bench judgment in State of Karnataka v. Umadevi (3)
(supra).
xxxxxxxxx
90. We are distressed to note that despite several
pronouncements on the subject, there is substantial increase in the
number of cases involving violation of the basics of judicial discipline.
The learned Single Judges and Benches of the High Courts refuse to
follow and accept the verdict and law laid down by coordinate and
even larger Benches by citing minor difference in the facts as the
ground for doing so. Therefore, it has become necessary to reiterate
that disrespect to constitutional ethos and breach of discipline have
grave impact on the credibility of judicial institution and encourages
chance litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence developed
in this country in last six decades and increase in the frequency of
conflicting judgments of the superior judiciary will do incalculable
harm to the system inasmuch as the courts at the grass root will not be
able to decide as to which of the judgment lay down the correct law
and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a
duty to abide by the Constitution and respect its ideals and institutions.
Those who have been entrusted with the task of administering the
system and operating various constituents of the State and who take
oath to act in accordance with the Constitution and uphold the same,
have to set an example by exhibiting total commitment to the
Constitutional ideals. This principle is required to be observed with
greater rigour by the members of judicial fraternity who have been
bestowed with the power to adjudicate upon important constitutional
and legal issues and protect and preserve rights of the individuals and
society as a whole. Discipline is sine qua non for effective and efficient
functioning of the judicial system. If the Courts command others to act
in accordance with the provisions of the Constitution and rule of law, it
is not possible to countenance violation of the constitutional principle
by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper
to clarify that the comments and observations made by the two-Judges
Bench in U.P. SEB v. Pooran Chandra Pandey (supra) should be read
as obiter and the same should neither be treated as binding by the High
Courts, Tribunals and other judicial foras nor they should be relied
WP(C) No.10368/2016 & conn. Page 28 of 36
upon or made basis for bypassing the principles laid down by the
Constitution Bench."
(emphasis added)
14. The ethos with respect to the ratio of Umadevi's case
(supra) stating that the entire object was to prevent the spoils system in
public employment which was existing prior to the Constitution Bench
judgment in Umadevi's case (supra) has been further clarified by the
Supreme Court in paras 66 to 68 in Dayanand's case (supra) and these
paras read as under:-
"66. The judgments of 1980s and early 1990s - Dhirendra Chamoli
v. State of U.P. : (1986) 1 SCC 637, Surinder Singh v. CPWD : (1986)
1 SCC 639, Daily Rated Casual Labour v. Union of India : (1988) 1
SCC 122, Dharwad Distt. P.W.D. Literate Daily Wage Employees'
Assn. v. State of Karnataka (1990) 2 SCC 396, Bhagwati Prasad v.
Delhi State Mineral Development Corpn. : (1990) 1 SCC 361 and
State of Haryana v. Piara Singh (supra) are representative of an era
when this Court enthusiastically endeavored to expand the meaning of
equality clause enshrined in the Constitution and ordained that
employees appointed on temporary/ad hoc/daily wage basis should be
treated at par with regular employees in the matter of payment of
salaries and allowances and that their services be regularized. In
several cases, the schemes framed by the governments and public
employer for regularization of temporary/ad- hoc/daily wag/casual
employees irrespective of the source and mode of their appointment/
engagement were also approved. In some cases, the courts also
directed the State and its instrumentalities/agencies to frame schemes
for regularization of the services of such employees.
67. In State of Haryana v. Piara Singh (supra), this Court while
reiterating that appointment to the public posts should ordinarily be
made by regular recruitment through the prescribed agency and that
even where ad-hoc or temporary employment is necessitated on
account of the exigencies of administration, the candidate should be
drawn from the employment exchange and that if no candidate is
available or sponsored with the employment exchange, some method
consistent with the requirements of Article14 of the Constitution
should be followed by publishing notice in appropriate manner for
calling for applications and all those who apply in response thereto
should be considered fairly, proceeded to observe that if an ad-hoc or
temporary employee is continued for a fairly long spell, the
authorities are duty bound to consider his case for regularization
subject to his fulfilling the conditions of eligibility and the
requirement of satisfactory service. The propositions laid down
in Piara Singh case (supra) were followed by almost all High Courts
for directing the concerned State Governments and public authorities
WP(C) No.10368/2016 & conn. Page 29 of 36
to regularize the services of ad- hoc/temporary/daily wage employees
only on the ground that they have continued for a particular length of
time. In some cases, the schemes framed for regularization of the
services of the backdoor entrants were also approved.
68. The above noted judgments and orders encouraged the political
set up and bureaucracy to violate the soul of Article 14 and 16 as also
the provisions contained in the Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959 with impunity and the spoil
system which prevailed in the United State of America in sixteenth
and seventeenth century got firm foothold in this country. Thousands
of persons were employed/engaged throughout the length and breadth
of the country by backdoor methods. Those who could pull strings in
the power corridors at the higher and lower levels managed to get the
cake of public employment by trampling over the rights of other
eligible and more meritorious persons registered with the employment
exchanges. A huge illegal employment market developed in different
parts of the country and rampant corruption afflicted the whole
system. This was recognized by the Court in Delhi Development
Horticulture Employees' Union v. Delhi Admn. : (1992) 4 SCC 99 in
the following words: ( SCC pp. 111-12, para 23)
"23. Apart from the fact that the petitioners cannot be directed to
be regularised for the reasons given above, we may take note of the
pernicious consequences to which the direction for regularisation of
workmen on the only ground that they have put in work for 240 or
more days, has been leading. Although there is an Employment
Exchange Act which requires recruitment on the basis of
registration in the Employment Exchange, it has become a common
practice to ignore the Employment Exchange and the persons
registered in the Employment Exchanges, and to employ and get
employed directly those who are either not registered with the
Employment Exchange or who though registered are lower in the
long waiting list in the Employment Register. The courts can take
judicial notice of the fact that such employment is sought and given
directly for various illegal considerations including money. The
employment is given first for temporary periods with technical
breaks to circumvent the relevant rules, and is continued for 240 or
more days with a view to give the benefit of regularization
knowing the judicial trend that those who have completed 240 or
more days are directed to be automatically regularized. A good deal
of illegal employment market has developed resulting in a new
source of corruption and frustration of those who are waiting at the
Employment Exchanges for years. Not all those who gain such
backdoor entry in the employment are in need of the particular
jobs. Though already employed elsewhere, they join the jobs for
better and secured prospects. That is why most of the cases which
come to the courts are of employment in government departments,
WP(C) No.10368/2016 & conn. Page 30 of 36
public undertakings or agencies. Ultimately it is the people who
bear the heavy burden of the surplus labour. The other equally
injurious effect of indiscriminate regularization has been that many
of the agencies have stopped undertaking casual or temporary
works though they are urgent and essential for fear that if those
who are employed on such works are required to be continued for
240 or more days they have to be absorbed as regular employees
although the works are time-bound and there is no need of the
workmen beyond the completion of the works undertaken. The
public interests are thus jeopardised on both counts." "
15. It is therefore clear that the ratio of the judgment in the
case of Umadevi (supra) really prevents regularization of persons who
have been appointed pursuant to such an advertisement and which
advertisement itself required employment only for a limited period, and
therefore such persons who have been appointed for a limited period in
terms of the advertisement requiring their appointments for limited
periods, cannot seek regularization." (emphasis is mine)
7. A reading of the ratios of various Supreme Court judgments
which have been reproduced, as also relevant paras in the judgment
delivered by this Court in the case of Keshav Dutt (supra), leaves no
manner of doubt that unless and until the four essential ingredients exist, the
appointments cannot be made in a regular/permanent basis and which four
ingredients are:- sanctioned posts existing, vacancies existing in such
sanctioned posts, eligibility criteria being fulfilled by the candidates as
specified in the recruitment rules or other applicable guidelines/circular, and
finally of competition between the candidates by calling the candidates by
advertisements in newspapers and through employment exchange.
WP(C) No.10368/2016 & conn. Page 31 of 36
8. It is not and cannot be disputed that the petitioners were
selected and appointed pursuant to such advertisement which advertisement
was not for appointments on permanent basis and petitioners were to be
appointed and actually appointed only for contractual terms. Once that is
so, such persons cannot seek regularization to the posts as held in various
judgments of the Supreme Court and which ratios of which have been
encapsulated in the judgment in the case of Keshav Dutt (supra).
9. Petitioners by placing reliance upon a Circular issued by the
respondent no.2/Govt. of NCT of Delhi dated 19.10.2015 have argued that
as per this circular either petitioners must get regularization or at least their
experience of working with the respondent no.1 must be considered for
appointments to the posts of Assistant Professors which have to be made
pursuant to the impugned Advertisement dated 17.10.2016. The Circular of
the respondent no.2/Govt. of NCT of Delhi dated 19.10.2015 reads as
under:-
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY
(SERVICES DEPARTMENT-BRANCH-IV)
LEVEL,B-WING, DELHI SECRETARIAT,
I.P.ESTATE, NEW DELHI-110002
No.F.19(11)/2015/S.IV/1890-96 Dated:19/10/2015
ORDER
The Government of National Capital Territory of Delhi has considered the issue of regularization of the Contractual employees working in various departments of Govt. of N.C.T of Delhi and approved the following general WP(C) No.10368/2016 & conn. Page 32 of 36 policy for regularization of the contractual employees vide Cabinet Decision No.2223 dated 06.10.2015:-
In line with the Uma Devi Judgment, Government of National Capital Territory of Delhi makes the following policy for contractual employees working against regular posts:-
1. Every department should formulate a scheme to fill up all vacant posts.
2. Contractual employees working against these posts should be allowed to apply with following conditions:-
(a) They should be given age relaxation.
(b) They should be given appropriate and adequate weightage of
experience for that post in evaluation.
(c) Any contractual employee, whose service was terminated due to
unsatisfactory work during their contractual employment, shall be treated as ineligible, under the scheme.
3. Policy in para-2 shall also be applicable to the contractual employees who have worked against these posts for an aggregate period of 6 months or more after 01.04.2013.
It is, therefore, requested that the necessary action with regard to implementation of above decisions may be initiated at the earliest.
Sd/-
(ANUPAMA CHAKRAVORTY)
DY. SECRETARY (SERVICES)"
10. Two issues arise with respect to this Circular dated 19.10.2015 as to whether the said circular allows regularization of contractual appointees in permanent posts and secondly as to whether experience of persons who have been working in contractual posts should be considered as WP(C) No.10368/2016 & conn. Page 33 of 36 a factor for giving appointments to the persons in permanent posts/regular posts which are now advertised.
11. Though the Circular of the respondent no.2 dated 19.10.2015 is not too happily worded, but the circular in fact directs appointments in terms of the Constitution Bench judgment of the Supreme Court in Umadevi's case (supra). Therefore, this circular has to be read in accordance with the ratio of the judgment in Umadevi's case (supra) and nothing of the circular which is violative of the ratio of the judgment in Umadevi's case (supra) can give any rights to any parties on the basis of the Circular dated 19.10.2015 as would be against the ratio of Umadevi's case (supra). Therefore, on the basis of this circular there cannot be regularization of persons who have been appointed only on contractual basis for a contractual period.
12. So far as condition that persons who are already working should get benefit of their experience in the existing posts with respect to which advertisements were issued for appointment/employment on regular/permanent basis, this Court would like to observe that appointments which are made to regular/permanent posts have necessarily to be only in accordance with the eligibility criteria for that posts. If there is no requirement in the eligibility criteria of such a post of requirement of any WP(C) No.10368/2016 & conn. Page 34 of 36 particular type of experience, then the subject circular cannot be deemed to have amended the recruitment rules or the eligibility criteria which are prescribed by circular/guidelines in the absence of framing of recruitment rules, and if that is done the action of the respondent no.2 will be arbitrary and violative of the Constitution Bench judgment in Umadevi's case (supra) because discrimination will be sought to be created between persons although there is no valid basis for such a discrimination. Putting it in other words if eligibility criteria does not require a particular experience portion then giving benefit of experience to the petitioners for appointment to the posts in question will create a discrimination in their favour and it will be violative of Article 14 of the Constitution of India. Benefit can be given of a particular criteria only after such criteria is a criteria applicable/provided for appointment to the post, otherwise in spirit the ratio of Umadevi's case (supra) will be violated because contractual employees who do not have a right to be regularized will effectively(but illegally) seek a right of "pre- emption" for appointment to the posts which have been advertised (in the regular manner for permanent employment) by claiming benefit of experience in the contractual posts in which they have worked. I therefore reject the argument urged on behalf of the petitioner that the experience of the petitioners working as Assistant Professors should be considered in their favour for appointment to the posts in question and it is held that WP(C) No.10368/2016 & conn. Page 35 of 36 appointments can only be in accordance with the laid down criteria and not the criteria which is not prescribed in the relevant recruitment rules or the applicable circulars and the guidelines laying down the eligibility criteria.
13. In view of the above, these writ petitions are completely misconceived and therefore dismissed.
NOVEMBER 10, 2016 VALMIKI J. MEHTA, J
ib
WP(C) No.10368/2016 & conn. Page 36 of 36