Sri. Anandu S/O Ramachandra Gaonkar vs The Principal Secretary on 20 February, 2025

[Cites 10, Cited by 0]

Karnataka High Court

Sri. Anandu S/O Ramachandra Gaonkar vs The Principal Secretary on 20 February, 2025

Bench: M.Nagaprasanna

Reserved on : 14.02.2025
Pronounced on : 20.02.2025

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 20TH DAY OF FEBRUARY, 2025 R
BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.100556 OF 2024 (S-RES)

BETWEEN:

1. SRI ANANDU
S/O RAMACHANDRA GAONKAR
AGED ABOUT 58 YEARS
WORKING AS LITERATE ASSISTANT
PANCHAYAT RAJ ENGINEERING SUB-DIVISION
TALUK: ANKOLA
DISTRICT: UTTARA-KANNADA - 581 314.

2. SRI ISHWAR
S/O URIYA NAIK
AGED ABOUT 54 YEARS
WORKING AS JUNIOR ENGINEER
PANCHAYAT RAJ ENGINEERING SUB-DIVSION
TALUK: ANKOLA
DISTRICT: UTTARA-KANNADA - 581 314.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
Location: High
... PETITIONERS
Court of Karnataka,
Dharwad Bench,
Dharwad
(BY SRI VINAYKUMAR BHAT, ADVOCATE AND
SRI RAVI HEGDE, ADVOCATE)

AND:

1. THE PRINCIPAL SECRETARY
2

GOVERNMENT OF KARNATAKA
RURAL DEVELOPMENT AND PANCHAYAT RAJ
VIKAS SOUDHA, BENGALURU - 560 001.

2. THE EXECUTIVE ENGINEER
PANCHAYAT RAJ ENGINEERING DIVISION
KARWAR, DISTRICT: UTTARA-KANNADA - 581
301.

3. THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT, KARWAR
DISTRICT: UTTARA-KANNADA - 581 301.

4. THE ASSISTANT EXECUTIVE ENGINEER
PANCHAYAT RAJ ENGINEERING DIVISION
ANKOLA, DISTRICT: UTTARA-KANNADA - 581
301.

... RESPONDENTS

(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1, R2 AND R4;
SRI VISHWANATH HEGDE, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT
OF MANDAMUS DIRECTING THE RESPONDENTS TO REGULARIZE
THE SERVICES OF THE PETITIONERS FROM THE DATE WHEN
THEY COMPLETED THE 10 YEARS OF SERVICES WITH ALL
FINANCIAL BENEFITS, BY FIXING OUTER LIMIT AND ETC.,

THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.02.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
3

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioners are before this Court seeking a direction by

issuance of a writ in the nature of mandamus to regularize their

services from the date on which they completed 10 years of

service with all consequential benefits.

2. Heard Sri Vinaykumar Bhat, learned counsel appearing

for the petitioners, Smt. Kirtilata R. Patil, learned High Court

Government Pleader appearing for respondents 1, 2 and 4 and

Sri Vishwanath Hegde, learned counsel appearing for respondent

No.3.

3. Sans details, facts in brief, germane, are as follows:-

The 1st petitioner joins the services of the respondents in

the Department of Rural Development and Panchayat Raj,

particularly in the Panchayat Raj Engineering Division as a

Literate Assistant on 12-08-1986. It is the averment in the

petition that it was against a sanctioned vacant post. Likewise,

the 2nd petitioner joins the service of the same Department as a

Junior Engineer on 06-09-1993. It is the averment that he was

also appointed against a sanctioned vacant post. Both the
4

petitioners join as daily wagers and did have the qualifications to

hold the posts. The 1st petitioner completed 10 years of service

in the year 1996 and likewise, the 2nd petitioner in the year

2003. During their services and after about 25 years, a

communication emerges from the Assistant Engineer

communicating to the Executive Engineer that the first petitioner

should be regularized as he fit into the criteria qua qualifications

and posts being sanctioned and vacant at the time when he was

appointed, the same goes with the second petitioner.

4. Notwithstanding this communication/recommendation,

the petitioners appear to have been brought under the ambit of

the Karnataka Daily Wage Employees Welfare Act, 2012 ('the

Act' for short). When the services of the petitioners were not

regularized for a long time, despite representations which were

said to have been given, they knocked at the doors of the 4th

respondent / Assistant Executive Engineer, Panchayat Raj

Engineering Division, Ankola, where they were then working,

with one more representation. On 02-01-2024, the 4th

respondent has also recommended the cases of the petitioners

observing that they have rendered close to 30 years of service

and their services have to be regularized. No order is passed on
5

the afore-quoted communication or recommendation. Therefore,

the petitioners are at the doors of this Court seeking a direction

by issuance of writ in the nature of mandamus, as

aforementioned.

5. The learned counsel for the petitioners would reiterate

the averments made in the petition, all of which are narrated

hereinabove. As the petitioners admittedly have completed more

than 30 years of service in the respective cadres in which they

are serving for these long years, would seek a direction for

regularizing their services. He would seek to place reliance upon

several judgments of the Apex Court, all of which would bear

consideration qua their relevance in the course of the order.

6. The learned High Court Government Pleader appearing

for respondents 1, 2 and 4 would vehemently refute the

submissions, contending that her submissions may be taken as

objections to the petition. She would contend that merely

because the petitioners are working from a long time as daily

wagers, it cannot be said that they are entitled for regularization

of their services. They have been brought under the Act which is

equally beneficial. The petitioners cannot claim regularization as
6

a matter of right, but would not dispute the fact that the

petitioners were initially appointed against sanctioned vacant

posts.

7. The learned counsel representing the 3rd respondent /

Karwar Zilla Panchayat would also accept the fact that the

petitioners have been working for more than 30 years, as on

today and were initially appointed against sanctioned vacant

posts. He would submit that recommendation has been sent not

once, but twice from the 4th respondent to the 3rd respondent,

which have all been forwarded to the State Government. But, so

far, no orders are received in this regard.

8. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and have perused the material on record.

9. The afore-narrated facts are not in dispute. The link in

the chain of events and the dates obtaining in the case at hand

require reiteration. The 1st petitioner was appointed as Literate

Assistant on 12-08-1986 in the Department of Rural

Development and Panchayat Raj to work in the office of the

Executive Engineer, Panchayat Raj Engineering Division, Karwar,
7

but later posted to Ankola. He was appointed against a

sanctioned vacant post. This is discernible from the confirmation

letter dated 16-03-1987 issued by the Assistant Executive

Engineer, Ankola, 4th respondent herein. It reads as follows:

"£ÀA.¯ÉÆÃ.EA.®.G.«. 86-87/1786

ಸ ಾಯಕ ಾಯ ಾ ಹಕ
ಅ ಯಂತರರು
ಉಪ- ಾಗ, ಅಂ ೋ ಾ ರವರ ಕ ೇ
¢£ÁAPÀ: 16/03/1987

ದೃ ೕಕರಣ ಪತ!

ಈ ಮೂಲಕ ದೃ ೕಕ ಸುವ%&ೇ'ೆಂದ(ೆ, )!ೕ. ಆನಂದು ಆ,. -ಾಂವಕರ, ಅ.ರಸ/
ಸ ಾಯಕ ಇವರು ಈ ಉಪ- ಾಗದ12 12-8-1985 ರಂದು ಮಂಜೂ(ಾ4 ೆಲಸ ೕ.ಕ
ಹು&ೆ5ಯ12 ಾಜ(ಾ6ದು5 ಆ ಅವ7ಯ12 7 ಹು&ೆ5 ಮಂಜೂ(ಾ4 ಇದು5 6 ಜನ ೆಲಸ
ವ 8ಸು49ದ5ರು. :ಾ1 ಇದ5 ಒಂದು ಹು&ೆ5ಯ12 ಾಜ(ಾ6ರು<ಾ9(ೆಂದು ಈ ಮೂಲಕ
ದೃ ೕಕ =&ೆ.

¸À»/-
ಸ ಾಯಕ ಾಯ ಾ ಹಕ
ಅ ಯಂತರು
ಉಪ ಾಗ ಅಂ ೋ ಾ

ಪ!4ಯನು>: )!ೕ. ಆನಂದು ಆ,. -ಾಂವಕರ ೕ.ರು ಇವ -ೆ ಇವರ ೋ ೆಯ ?ೕ ೆ
¤ÃrzÉ."

(Emphasis added)

The afore-quoted letter is indicative of the fact that there were 7

sanctioned posts of Literate Assistants in the 3rd respondent -

Office in which, six posts were filled up and incumbents are

functioning. Against the seventh sanctioned vacant post, the 1st
8

petitioner is appointed, but on daily wages. The 2nd petitioner,

likewise was appointed as a Junior Engineer in the 2nd

respondent - Panchayat Raj Engineering Division, Karwar on

06.09.1993 against a sanctioned vacant post. Thus, the

petitioners had already completed 10 years of service, in the

years 1996 and 2003 respectively. The government by its

communication dated 26/28-09-2011 addressing to all Zilla

Panchayats directed identification of those persons who were

working continuously for 10 years against sanctioned vacant

posts as on the date of the judgment of the Apex Court in the

case of SECRETARY, STATE OF KARNATAKA VS. UMADEVI

(3)1, which was rendered on 10.04.2006 and to consider the

services of the employees for regularization. The communication

dated 26/28-09-2011 reads as follows:

"ಕ'ಾ ಟಕ ಸ ಾ ರ

ಸಂ:ೆB: -ಾ!ಅಪ 43 Cಪಅ 2009 ಕ'ಾ ಟಕ ಸ ಾ ರದ ಸE ಾಲಯ,
ಬಹುಮಹG ಕಟHಡ,
JೆಂಗಳLರು, M'ಾಂಕ: 26/28-09-2011
ಇಂದ,

ಸ ಾ ರದ ಪ!Nಾನ ಾಯ ದ) ,
-ಾ!OೕPಾ ವೃMQ ಮತು9 ಪಂ.(ಾR ಇ ಾ:ೆ,
ಬಹುಮಹGಗಳ ಕಟHಡ,
JೆಂಗಳLರು.

1
(2006) 4 SCC 1
9

EªÀjUÉ,
ಎ ಾ2 C ಾ2 ಪಂUಾಯVಗಳ
ಮುಖB ಾಯ ಾ ಹಕ ಅ7 ಾ ಗX-ೆ,

YಾನB(ೇ,

ಷಯ :- Mನಗೂ1 'ೌಕರರ \ೇ ಾ ಸಕ!Yಾ4 ಬ-ೆ],

ಉ ೆ2ೕಖ:- ಸ ಾ ರದ =ಬ^ಂM ಮತು9 ಆಡXತ ಸುNಾರPೆ ಇ ಾ:ೆ (\ೇ ಾ
ಯಮಗಳ_) ಯ ಸು<ೊ9ೕ ೆ ಸಂ:ೆB: =.ಆಸುಇ/25/ \ೇಸಅ/2003
( ಾ) M'ಾಂಕ:13.11.2006.

?ೕಲ`ಂಡ ಷಯ ೆ` ಸಂಬಂ7=ದಂ<ೆ, Mನಗೂ1 'ೌಕರರ \ೇ ಾ ಸಕ!Yಾ4
ಕು ತು )!ೕಮ4, ಉYಾ&ೇ ಪ!ಕರಣದ12 YಾನB ಸaೕ ಚc 'ಾBdಾಲಯದ ಸಂ Nಾನ
eೕಠವ% M'ಾಂಕ: 10-04-2006 ರಂದು ೕGದ5 4ೕಪ ನು> ಆಧ = ಸ ಾ ರದ =ಬ^ಂM ಮತು9
ಆಡXತ ಸುNಾರPೆ ಇ ಾ:ೆ (\ೇ ಾ- ಯಮಗಳ_) ಯು M'ಾಂಕ: 13-11-2006. ರಂದು
ಸು<ೊ9ೕ ೆ ೊ =ರುತ9&ೆ. ಸದj ಸು<ೊ9ೕ ೆಯ12 ಈ ೆಳಕಂಡ 'ಾಲು` ಷರತು9ಗಳನು>
ಪh(ೈ=ದ Mನಗೂ1 'ೌಕರರ \ೇ ೆಯನು> ಸಕ!Yಾ4-ೊXಸಲು ಅವ ಾಶ ರುತ9&ೆ ಎಂದು
4Xಸ ಾ6&ೆ. ಅದರಂ<ೆ Mನಗೂ1 'ೌಕರರ \ೇ ಾ ಸಕ!Yಾ4 ಷಯದ°è 'ೇಮ ಾ4
kಾ!7 ಾರ/ಸ.ಮ kಾ!7 ಾರವ% ಸಂಬಂಧಪಟH C ಾ2 ಪಂUಾಯ4ಗಳ ಮುಖB
ಾಯ ಾ ಹಕ ಅ7 ಾ ಗಳ_ ಆ6ರುವ%ದ ಂದ Mನಗೂ1 'ೌಕರರ \ೇ ಾ ಸಕ!Yಾ4
ಷಯದ12 ಅC &ಾರರು ಸ12ಸುವ ಮನ /&ಾಖ ೆಗಳನು> C ಾ2 ಪಂUಾಯV ಹಂತದ12lೕ
ಯYಾನು\ಾರ ಪ )ೕ1= ಸೂಕ9 ಕ!ಮ ೈ-ೊಳmJೇ ೆಂದು ಸೂEಸ ಾ6&ೆ:-

1) ಅಂತಹ 'ೌಕರರನು> ಮೂಲಕತಃ ಮಂಜೂ(ಾದ :ಾ1 ಹು&ೆ5ಯ12 'ೇಮಕ
YಾGರJೇಕು.

2) 8ೕ-ೆ ಅವರನು> 'ೇಮಕ Yಾಡು ಾಗ ಅವರು ಸಂಬಂ7ತ ಹು&ೆ5-ೆ
ಗMಪG=ರುವ &ಾBಹ <ೆಯನು> ೊಂMರJೇಕು.

3) 8ೕ-ೆ 'ೇಮಕ-ೊಂಡಂತಹ 'ೌಕರರು 10 ವಷ ಗXಗೂ ೆEoನ ಅವ7-ೆ
ಸತತ ಾ6 ಅ&ೇ ಹು&ೆ5ಯ12 ಾಯ ವ 8=ರJೇಕು.

4) 'ಾBdಾಲಯಗಳ ಅಥ ಾ 'ಾBಯ ಮಂಡXಗಳ ಆ&ೇಶ ೊ`ಳಪಟುH 10
ವಷ ಗXಗೂ ೆEoನ ಅವ7-ೆ ಅವರನು> ಮುಂದುವ =ರJಾರದು.

ಮುಂದುವ(ೆದು Mನಗೂ1 'ೌಕರರ \ೇ ಾ ಸಕ!Yಾ4 ಷಯದ ಬ-ೆ] ಮುಖB
ಾಯ ಾ ಹಕ ಅ7 ಾ ಗಳ_ ಪ&ೇ ಪ&ೇ ಸ ಾ ರ ೆ` ಪ!\ಾ9ವ'ೆ ಸ12ಸುವ%ದರ ಮೂಲಕ
ಸ ಾ ರ ೆ` ಮುಜುಗರ ಉಂಟು YಾGರುತ9&ೆ. ಆದ5 ಂದ ಇನು> ಮುಂ&ೆ Mನಗೂ1 'ೌಕರರ
\ೇ ಾ ಸಕ!Yಾ4 ಷಯದ ಬ-ೆ] ಪ!\ಾ9ವ'ೆಯನು> ಸ ಾ ರ ೆ` ಸ12ಸJಾರ&ೆಂದು ಾಗೂ C ಾ2
10

ಪಂUಾಯV ಹಂತದ12lೕ ಪ )ೕ1= ಸೂಕ9 ಕ!ಮ ೈ-ೊಳmJೇ ೆಂದು ಕಟುH qಾH6 ಈ
ಮೂಲಕ 4Xಸ ಾ6&ೆ. ಾಗೂ ಒಂದು ೇrೆ ಮುಂ&ೆ ಇಂತಹ ಪ!\ಾ9ವ'ೆಗಳ_ ಸ ಾ ರ ೆ`
ಸ12=ದ12 ಗಂ ೕರ ಾ6 ಪ ಗs=, ಸಂಬಂಧಪಟH ಅ7 ಾ /'ೌಕರರ ರುದQ )ಸು9 ಕ!ಮ
ೈ-ೊಳm ಾಗುವ%&ೆಂದು ಸಹ 4Xಸಲು &ೇ )ತ'ಾ6&ೆ5ೕ'ೆ.

ತಮt ನಂಬು-ೆಯ,

¸À»/-
28.09.2011
(ಎu. ೈ. \ಾಗರ)
ಸ ಾ ರದ ಅ7ೕನ ಾಯ ದ) (\ೇ ೆಗಳ_-ಎ).
-ಾ!OೕPಾ ವೃMQ ಮತು9 ಪಂUಾಯV (ಾR
ಇ ಾ:ೆ."

(Emphasis added)
The petitioners would undoubtedly come within the ambit of

what was observed in the communication. The 4th respondent -

Assistant Executive Engineer, again based upon the government

order, recommends cases of both the petitioners enclosing

certificate of work. The communication dated 26.03.2014 reads

as follows:

"Office of the Assistant Executive ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgÀgÀ
Engineer, Panchayat Raj PÀbÉÃj ¥ÀAZÁAiÀÄvï gÁeï EAf¤AiÀÄjAUï
Engineering Sub-Division Ankola. G¥À «¨sÁUÀ CAPÉÆÃ¯Á, (G.PÀ) - 581
(UK)-581314
314
zÀÆgÀªÁtÂ : 08388 - 230205 E-mail: [email protected]
£ÀA.¥ÀA.gÁ.EA.G.«.CAPÉÆÃ¯Á/¢£ÀUÀÆ° 26.03.2014
¹§âA¢ 2013-14/2046
" ಾಡು " Jೆrೆ= " 'ಾಡು " ಉX=

jUÉ,
PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀÄ,
¥ÀAZÁAiÀÄvï gÁeï EAf¤ÃAiÀÄjAUï «¨sÁUÀ,
11

PÁgÀªÁgÀ, (G.PÀ.)
ªÀiÁ£ÀågÉÃ,

«µÀAiÀÄ: ²æÃ D£ÀAzï Dgï.UÁAªÀPÀgï ¢£ÀUÀÆ° PÉ®¸À ¤jÃPÀëPÀ EªÀgÀ
¸ÉÃªÉ SÁAiÀÄAUÉÆ½¸ÀÄªÀ §UÉÎ.

G¯ÉèÃR:- ²æÃ D£ÀAzï Dgï.UÁAªÀPÀgï ¢£ÀUÀÆ° PÉ®¸À ¤jÃPÀëPÀ EªÀgÀ
Cfð ¢£ÁAPÀ: 05-09-2013.

ªÉÄÃ¯ÁÌtÂ¹zÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ G¯ÉèÃTvÀ ¥ÀvÀæzÀ°è ²æÃ D£ÀAzï
Dgï.UÁAªÀPÀgï gÀªÀgÀÄ ¢£ÀUÀÆ° PÉ®¸À ¤jÃPÀëPÀ EªÀgÀÄ vÀªÀÄä ¸ÉÃªÉAiÀi£ÀÄß
¸ÀPÀæªÀÄUÉÆ½¸ÀÄªÀ PÀÄjvÀÄ «£ÀAw¹PÉÆAqÀAvÉ CªÀgÀÄ F PÀbÉÃjAiÀÄ°è ¢£ÁAPÀ: 12-08-
1986 ¢AzÀ ¢£ÀUÀÆ° PÉ®¸À ¤jÃPÀëPÀgÁV PÀbÉÃj SÁ° ºÀÄzÉÝAiÀÄ°è ¸ÉÃªÉ ¸À°è¸ÀÄwÛzÁÝgÉ.
EªÀgÀÄ ¢£ÁAPÀ: 13-11-2006 gÀ ¸ÀgÀPÁgÀzÀ ¸ÀÄvÉÆÛÃ¯ÉAiÀÄ°è ¸ÀÆa¹zÀ 4 ±ÀgÀvÀÄÛUÀ¼ÀÄ
¸ÀÄ¦æA PÉÆÃlð ¤zÉÃð±À£ÀzÀ ¥ÀæPÁgÀ vÀÈ¦ÛPÀgÀªÁVzÀÄÝ, EzÀÄÝzÀjAzÀ CªÀgÀ ¸ÉÃªÉAiÀÄ£ÀÄß
¸ÀPÀæªÀÄUÉÆ½¸À®Ä PÀæªÀÄ PÉÊUÉÆ¼Àî®Ä «£ÀAw¹zÉ. ºÁUÀÆ CªÀgÀ ¸ÉÃªÉAiÀÄÄ vÀÈ¦ÛPÀgÀªÁVzÉ
JAzÀÄ F ªÀÄÆ®PÀ zÀÈrüÃPÀj¹zÉ.

ಅಡಕ : 1) \ೇ ೆಯ ಧೃGೕಕೃತ ನಕಲು ಪ!4 : 1 vÀªÀÄä «±Áé¹
2) J¸ï.J¸ï.J¯ï.¹. CAPÀ¥ÀnÖ £ÀPÀ®Ä ¥Àæw: 1 ¸À»/-
3) PÀbÉÃjAiÀÄ DzÉÃ±ÀzÀ ¥Àæw: 1 ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ
C©üAiÀÄAvÀgÀgÀÄ
4) £ÀUÀzÀÄ ¥ÀÄ¸ÀÛPÀ zsÀÈrÃPÀÈvÀ ¥Àæw: 1 ¥ÀA.gÁeï.EA.G¥À-«¨sÁUÀ
CAPÉÆÃ¯Á.
5) ¥ÀæªÀiÁt ¥ÀvÀæ: 1"

The certificate of service of the second petitioner reads as

follows:

"ಅ.ಕ!.ನಂ.ಪ.(ಾ.ಇ.ಕುಮqಾ:M.\ೇ:2011-12/1124 ಸ ಾಯಕ ಾಯ ಾ ಹಕ
ಅ ಯಂತರರು
ಪಂUಾಯತ(ಾR ಇಂC ೕಯ ಂv ಉಪ ಾಗ
ಕುಮqಾ ಇವರ ಕ ೇ 31-3-2012

\ೇ ಾ ಪ!Yಾಣ ಪತ!

)!ೕ ಈಶwರ ಯು. 'ಾಯ` <ಾಂ4!ಕ Gx2ೕಮ&ಾರ ಇವರು ಈ ಉಪ ಾಗದ12
M'ಾಂಕ: 06/09/1993 ರಂದು Mನಗೂ1 ಆNಾರದ ?ೕ ೆ 'ೇಮಕ-ೊಂGದು5 ಉಪ
ಾಗದ12 ಮಂಜೂ dಾ6ದು5 'ಾ1 ಇರುವ y ಯ ಇಂC ೕಯರ ಹು&ೆ5ಯ12
ೊಂM ೊಂಡು ಸತತ ಾ6 ೆಲಸ ವ 8ಸು49&ಾ5(ೆ.

¸À»/-
12

¸ÀºÁAiÀÄPÀ PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀÄ
ಪಂUಾಯತ(ಾR ಇಂC ೕಯ ಂv ಉಪ ಾಗ
ಕುಮqಾ(ಉ.ಕ)

ಪ!4 )!ೕ ಈಶwರ ಯು. 'ಾಯ` <ಾಂ4!ಕ Gx2ೕYಾ&ಾರ ಇವ -ೆ ಮt ಪತ!
M'ಾಂಕ : 31/03/2012 gÀAvÉ ¤ÃqÀ¯ÁVzÉ."

(Emphasis added)

It appears that recommendations so made resulted in bringing

these petitioners, without they being made aware of, under the

Act. The petitioners then represent to the 4th respondent that

they cannot be brought under the Act but will have to be

considered for regularizing their services as they have completed

requisite number of years of services and had fulfilled all the

conditions of the Government as per the communication quoted

supra. This representation again results in recommendation on

02-01-2024. It reads as follows:

"EªÀjUÉ,
ಾಯ ಾ ಹಕ ಅ ಯಂತರರು,
ಪಂUಾಯತ (ಾR ಇಂC ೕಯ ಂv
ಾಗ, ಾರ ಾರ,

YಾನB(ೇ,

ಷಯ: ಈ ಕ ೇ ಯ12 ೆಲಸ ವ 8ಸು49ರುವ zೇYಾ ವೃMQ 'ೌಕರರ
\ೇ ೆಯನು> ಸಕ!ಮ-ೊXಸುವ ಕು ತು.

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2
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ಅ ಯಂತರರು,
ಪಂ.(ಾ.ಇಂ. ಉಪ ಾಗ, ಅಂ ೋ ಾ."

No order is passed on the said recommendation/communication

between the quarters of the respondents. The petitioners are
14

now before this Court seeking a direction to regularize their

services and extending all service benefits.

10. What is to be noticed is, as on today, the 1st

petitioner has put in 39 years of service in a sanctioned

vacant post. He is now 58 years. The 2nd petitioner has

put in 32 years of service in a sanctioned vacant post. He

is now 54 years. In their prime youth, they have toiled without

knowing their future, as they were daily wage employees then,

and daily wage employees even today. The only difference is

that, they are brought under the Act. Whether that would suffice

or a direction is to be issued for their regularization is what is

required to be considered.

11. The petitioners fulfill quad conditions that were

enunciated, in the judgment of the Apex Court, in the case of

UMADEVI (3) supra. The Apex Court in the case of UMADEVI

(3) has held as follows:

".... .... ....

51. The argument that the right to life protected by
Article 21 of the Constitution would include the right to
employment cannot also be accepted at this juncture. The
law is dynamic and our Constitution is a living document.
May be at some future point of time, the right to
employment can also be brought in under the concept of
right to life or even included as a fundamental right. The
15

new statute is perhaps a beginning. As things now stand,
the acceptance of such a plea at the instance of the
employees before us would lead to the consequence of
depriving a large number of other aspirants of an
opportunity to compete for the post or employment. Their
right to employment, if it is a part of right to life, would
stand denuded by the preferring of those who have got in
casually or those who have come through the backdoor.
The obligation cast on the State under Article 39(a) of the
Constitution is to ensure that all citizens equally have the
right to adequate means of livelihood. It will be more
consistent with that policy if the courts recognise that an
appointment to a post in government service or in the
service of its instrumentalities, can only be by way of a
proper selection in the manner recognised by the relevant
legislation in the context of the relevant provisions of the
Constitution. In the name of individualising justice, it is
also not possible to shut our eyes to the constitutional
scheme and the right of the numerous as against the few
who are before the court. The directive principles of State
policy have also to be reconciled with the rights available
to the citizen under Part III of the Constitution and the
obligation of the State to one and all and not to a
particular group of citizens. We, therefore, overrule the
argument based on Article 21 of the Constitution.

.... .... ....

53. One aspect needs to be clarified. There
may be cases where irregular appointments (not
illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4
SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
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 abovereferred to and in the light
of this judgment. In that context, the Union of
16

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 by passing of the constitutional
requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme."

(Emphasis supplied)

Pursuant to the judgment of the Apex Court, a government order

comes about on 13-11-2006 which directed consideration of

those cases for regularization in the event they would fulfill the

four conditions. Those four conditions are quoted supra. The

petitioners fulfill all the four conditions. The first

condition is that they should be appointed against a

sanctioned vacant post; they are. The second is that they

should fulfill the qualifications for the posts; they do. The

third condition is that they should have completed 10

years of service as on the date of judgment of the Apex

Court in the case of UMADEVI (3) supra which was

rendered on 10.04.2006. Both the petitioners had
17

completed 10 years of service by 10.04.2006 itself. In

fact, the 1st petitioner had completed close to 20 years of service

by then and the 2nd petitioner, 13 years by 01.04.2006 itself.

Therefore, they fulfill that condition as well. The 4th condition is

that, their continuance should not be litigious which would mean

that they should not be continued on the strength of any interim

order. The petitioners fulfill every condition. It is un-

understandable as to how the State would bring these petitioners

under the Act, rendering a temporary solace, when they had a

right to be regularized, in terms of the judgment of the Apex

Court, in the case of UMADEVI (3) supra.

12. The State projects that the judgment of the Apex Court

in the case of UMADEVI (3) supra, in all such cases and relies

on the same judgment to become an impediment for

consideration of the cases of the petitioners for regularization.

The projection on the face of it being untenable, is noted only to

be rejected.

13. It thus becomes, germane to consider the judgments

rendered by the Apex Court in the aftermath of the judgment

rendered by the Apex Court in the case of UMADEVI (3) supra.
18

The judgment of the Apex Court in the case of UMADEVI (3)

supra is quoted hereinabove. The directions are also found in

the paragraphs that are quoted. Much water has flown after the

judgment of the Apex Court in the case of UMADEVI (3).

14. As observed hereinabove, the Apex Court rendered its

judgment in the case of UMADEVI (3) on 10-04-2006. Relevant

paragraphs are already quoted hereinabove. Subsequent to the

judgment of the Apex Court in the case of UMADEVI (3),

considering the case of UMADEVI (3), the Apex Court in several

judgments held and affirmed the right of several employees for

regularization under several circumstances. The Apex Court in

the case of NARENDRA KUMAR TIWARI v. STATE OF

JHARKHAND2, holds as follows:

"7. The purpose and intent of the decision in Umadevi
(3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC
1 : 2006 SCC (L&S) 753] was therefore twofold, namely, to
prevent irregular or illegal appointments in the future and
secondly, to confer a benefit on those who had been
irregularly appointed in the past. The fact that the State of
Jharkhand continued with the irregular appointments for
almost a decade after the decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] is a clear indication that it believes that it was all
right to continue with irregular appointments, and whenever
required, terminate the services of the irregularly appointed
employees on the ground that they were irregularly
appointed. This is nothing but a form of exploitation of the

2
(2018) 8 SCC 238
19

employees by not giving them the benefits of regularisation
and by placing the sword of Damocles over their head. This
is precisely what Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S)
753] and Kesari [State of Karnataka v. M.L. Kesari, (2010) 9
SCC 247 : (2010) 2 SCC (L&S) 826] sought to avoid.

8. If a strict and literal interpretation, forgetting the
spirit of the decision of the Constitution Bench in Umadevi
(3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC
1 : 2006 SCC (L&S) 753], is to be taken into consideration
then no irregularly appointed employee of the State of
Jharkhand could ever be regularised since that State came
into existence only on 15-11-2000 and the cut-off date was
fixed as 10-4-2006. In other words, in this manner the
pernicious practice of indefinitely continuing
irregularly appointed employees would be
perpetuated contrary to the intent of the Constitution
Bench.

9. The High Court as well as the State of
Jharkhand ought to have considered the entire issue
in a contextual perspective and not only from the
point of view of the interest of the State, financial or
otherwise - the interest of the employees is also
required to be kept in mind. What has eventually been
achieved by the State of Jharkhand is to short circuit
the process of regular appointments and instead make
appointments on an irregular basis. This is hardly
good governance.

10. Under the circumstances, we are of the view that
the Regularisation Rules must be given a pragmatic
interpretation and the appellants, if they have completed 10
years of service on the date of promulgation of the
Regularisation Rules, ought to be given the benefit of the
service rendered by them. If they have completed 10
years of service they should be regularised unless
there is some valid objection to their regularisation
like misconduct, etc.

11. The impugned judgment and order [Anil Kumar
Sinha v. State of Jharkhand, 2016 SCC OnLine Jhar 2904]
passed by the High Court is set aside in view of our
conclusions. The State should take a decision within four
20

months from today on regularisation of the status of the
appellants. The appeals are accordingly disposed of."

(Emphasis supplied)

15. Later, the Apex Court in the case of SHEO NARAIN

NAGAR v. STATE OF U.P.3, holds as follows:

"6. The learned counsel appearing on behalf of the
respondent has relied upon para 44 of the decision
in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753], so as to contend that it
was not the case of irregular appointment but of illegal
appointment; there was no post available on which the
services of the appellants could have been regularised and
appointment were in contravention of the reservation policy
also; thus, termination order was rightly issued and, in no
case, the appellants were entitled for regularisation of their
services.

7. When we consider the prevailing scenario, it is
painful to note that the decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] has not been properly understood and rather
wrongly applied by various State Governments. We have
called for the data in the instant case to ensure as to how
many employees were working on contract basis or ad hoc
basis or daily-wage basis in different State departments.
We can take judicial notice that widely aforesaid practice is
being continued. Though this Court has emphasised that
incumbents should be appointed on regular basis as per
rules but new devise of making appointment on contract
basis has been adopted, employment is offered on daily-
wage basis, etc. in exploitative forms. This situation was
not envisaged by Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753]. The prime intendment of the decision was that
the employment process should be by fair means and not
by back door entry and in the available pay scale. That
spirit of the Umadevi (3) [State of
Karnataka v. Umadevi(3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] has been ignored and conveniently overlooked

3
(2018) 13 SCC 432
21

by various State Governments/authorities. We regretfully
make the observation that Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] has not been implemented in its true spirit and
has not been followed in its pith and substance. It is being
used only as a tool for not regularising the services of
incumbents. They are being continued in service
without payment of due salary for which they are
entitled on the basis of Articles 14, 16 read with
Article 34(1)(d) of the Constitution of India as if they
have no constitutional protection as envisaged in D.S.
Nakara v. Union of India [D.S. Nakara v. Union of
India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145 : AIR 1983
SC 130], from cradle to grave. In heydays of life they
are serving on exploitative terms with no guarantee
of livelihood to be continued and in old age they are
going to be destituted, there being no provision for
pension, retiral benefits, etc. There is clear
contravention of constitutional provisions and
aspiration of downtrodden class. They do have equal
rights and to make them equals they require
protection and cannot be dealt with arbitrarily. The
kind of treatment meted out is not only bad but
equally unconstitutional and is denial of rights. We
have to strike a balance to really implement the
ideology of Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]. Thus, the
time has come to stop the situation where Umadevi
(3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC
1 : 2006 SCC (L&S) 753] can be permitted to be
flouted, whereas, this Court has interdicted such
employment way back in the year 2006. The
employment cannot be on exploitative terms,
whereas Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] laid down that
there should not be back door entry and every post should
be filled by regular employment, but a new device has been
adopted for making appointment on payment of paltry
system on contract/ad hoc basis or otherwise. This kind of
action is not permissible when we consider the pith and
substance of true spirit in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753].

8. Coming to the facts of the instant case, there was
a direction issued way back in the year 1999, to consider
22

the regularisation of the appellants. However, regularisation
was not done. The respondents chose to give minimum of
the pay scale, which was available to the regular
employees, way back in the year 2000 and by passing an
order, the appellants were also conferred temporary status
in the year 2006, with retrospective effect on 2-10-2002.
As the respondents have themselves chosen to confer a
temporary status to the employees, as such there was
requirement at work and posts were also available at the
particular point of time when order was passed. Thus, the
submission raised by the learned counsel for the
respondent that posts were not available, is belied by their
own action. Obviously, the order was passed considering
the long period of services rendered by the appellants,
which were taken on exploitative terms.

9. The High Court dismissed the writ application relying
on the decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC
(L&S) 753]. But the appellants were employed
basically in the year 1993; they had rendered service
for three years, when they were offered the service
on contract basis; it was not the case of back door
entry; and there were no Rules in place for offering
such kind of appointment. Thus, the appointment
could not be said to be illegal and in contravention of
Rules, as there were no such Rules available at the
relevant point of time, when their temporary status
was conferred w.e.f. 2-10-2002. The appellants were
required to be appointed on regular basis as a one-
time measure, as laid down in para 53 of Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753]. Since the appellants had completed
10 years of service and temporary status had been
given by the respondents with retrospective effect
from 2-10-2002, we direct that the services of the
appellants be regularised from the said date i.e.
2.10.2002, consequential benefits and the arrears of
pay also to be paid to the appellants within a period
of three months from today."
(Emphasis supplied)
23

16. The Apex Court in the case of CHANDER MOHAN

NEGI v. STATE OF H.P.4, holds as follows:

"11. At the outset, it is to be noted that the schemes
in question were notified in the years 2001 and 2003 under
which appointments were made with regard to Primary
Assistant Teachers and Teachers in other categories. At the
relevant point of time, nobody has questioned either the
schemes or the appointments. It is the specific case of the
respondent State that such appointments have not affected
the writ petitioners and the Department was not in a position
to leave the schools, Teachers deficient for long since it
would have affected the studies of the students very badly.
Therefore, it was the case of the State that Teachers had
been appointed under various schemes at that point of time
and such appointments have been made up to the year 2007
and have no impact on the appellants since they have
completed their two-year JBT training in the year 2011. As is
evident from the order [Pankaj Kumar v. State of H.P., 2014
SCC OnLine HP 5944] under appeal passed by the Division
Bench of the High Court, the appellant-writ petitioners have
not even chosen to file rejoinder and the stand taken by the
State thus has remained uncontroverted. Further, it is also to
be noted that when such appointments were made during the
years 2001 and 2003 the writ petitions came to be filed in
the years 2012 and 2013. As the writ petitioners have
claimed interest for their appointment, the Division Bench of
the High Court has rightly held [Pankaj Kumar v. State of
H.P., 2014 SCC OnLine HP 5944] that such petitions cannot
be considered as the public interest litigation. Such a writ
petition which was filed by the petitioners who came to be
qualified only in the year 2011 are not entitled for any relief
on the ground of unexplained laches and inordinate delay of
about more than 10 years in approaching the court for
questioning the appointments. Though relief was sought
against the State to deny the benefit of regularisation to the
appointed Teachers, they were not even impleaded as party
respondents. An association was impleaded as third
respondent but without furnishing any material to show that
at least majority of appointees are members of such
association. So far as Primary Assistant Teachers Scheme of
2003, which was the subject-matter of letters patent appeal
arising out of CWP No. 3303 of 2012-A filed by Chander

4
(2020) 5 SCC 732
24

Mohan Negi and others, is concerned, the appellants in Civil
Appeal No. 2813 of 2017 except Appellants 1, 2 and 4 have
withdrawn [Chander Mohan Negi v. State of H.P., 2020 SCC
OnLine SC 459] the appeal and Appellants 1 and 4 are
already appointed as JBTs. Insofar as the only appellant viz.
Appellant 2, Rajiv Chauhan is concerned, it is stated that he
is qualified and there are vacant posts and he can be
considered if he applies to any of the existing vacancies. So
far as the Primary Assistant Teacher Scheme is concerned,
same was notified as early as on 27-8-2003. As is evident
from the Scheme itself, the object of the Scheme appears to
be to compulsorily enrol children in schools for elementary
and primary education in the remote areas to achieve the
goals as set by the Government while enacting the Himachal
Pradesh Compulsory Primary Education Act, 1997 with a view
to achieve the target of 100% enrolment to children. As per
the Scheme, the eligibility was 10+2 from a recognised
Board/University and the candidates with higher
qualifications were also eligible and candidates with
professional qualifications were to be preferred. As per the
regular Recruitment Rules the requisite qualification for the
post of JBT Teacher during the relevant time was 10+2 with
50% marks and JBT certificate. As submitted by the learned
Senior Counsel appearing for the State that initially though
3500 odd Teachers were appointed, as of now there are only
a total of 3294 Teachers working in this category and out of
this about 1866 had the qualification of 10+2 with more than
50% marks at the relevant point of engagement. Out of the
balance, 1015 had 10+2 with less than 50% marks, but they
had higher qualification such as BA/MA/M Sc or B Ed, etc.
Further, it is also brought to our notice that out of all the
candidates, 3294 candidates who are presently working have
acquired the professional qualification of diploma in
elementary education or have undergone Professional
Development Programme for Elementary Teachers. In that
view of the matter, we are of the view that when the
appointees appointed under the scheme have completed
more than almost 15 years of service now and also have
acquired the professional qualifications, they cannot be
denied regularisation at this point of time. As the
appointments were made as per the schemes notified by the
Government such appointments cannot be treated as illegal,
if at all they can be considered irregular. When it is the plea
of the State that in view of the hard topography/tribal areas
in the State, large number of vacancies were there even in
single teacher schools and to achieve the object of the
25

Himachal Pradesh Primary Education Act, 1997 such steps
were taken, there is no reason to disbelieve the same, more
so, in absence of any affidavit by way of rejoinder by the writ
petitioners before the High Court controverting the
allegations in the reply filed on behalf of the State.

12. Even with regard to the Para Teachers Policy under
which various category of Teachers were appointed in the
year 2003 pursuant to policy notified on 17-9-2003 it is clear
from the record placed before this Court that all the persons
who were recruited as Para Teachers were fully qualified as
per the Recruitment and Promotion Rules i.e. the Himachal
Pradesh Education Department Class III (School and
Inspection Cadre) Service Rules, 1973. In view of the stand
of the State that such policy was necessitated due to large
number of vacant posts which have arisen year after year
and which could not be filled since the State Selection
Subordinate Board, Hamirpur, which was responsible for the
selection of Teachers had come under a cloud and the
selection process had come to a halt, such appointments
cannot be rendered as illegal. Such aspect is also evident
from the policy itself. Even in other category of the Grant-in-
Aid to Parent Teacher Association Rules, all Teachers
appointed under the Scheme fulfil the educational
qualifications prescribed in the Rules. For such kind of
Teachers, the Cabinet has taken decision to take over the
Teachers on contract basis after completion of eight years of
service which period was later reduced to seven years. It is
also brought to our notice during the course of arguments
that out of the total 6799 Teachers, 5017 Teachers were
already taken over on contract basis by the State
Government and only 1782 could not be taken over in view
of the interim orders passed by this Court.

13. It is true that in the initial schemes notified
by the Government, there was a condition that such
appointees should not seek regularisation/ absorption
but at the same time for no fault of them, they cannot
be denied regularisation/absorption. It is in view of
the requirement of the State, their services were
extended from time to time and now all the appointees
have completed more than 15 years of service. For
majority of the appointed Teachers under the various
schemes, benefit was already extended and some left
over candidates were denied on account of interim
orders passed by this Court. With regard to Primary
26

Assistant Teachers, it is stated that all the candidates
have completed Special Teacher Training Qualifying
Condensed Course and also had obtained special JBT
certificate after 5 years' continuous service in terms of
the Himachal Pradesh Education Code, 1985. The
judgments relied on by learned counsel Shri Prashant
Bhushan also would not render any assistance to the
case of the appellants herein for the reason that there
was unexplained and inordinate delay on the part of
the appellants in approaching the High Court and
further having regard to explanation offered by the
State about the need of framing such policies to meet
the immediate requirement to fill up single teacher
schools which were vacant for a very long time, having
regard to topographical conditions, which is not even
controverted by way of any rejoinder before the High
Court. In such view of the matter, taking the totality of
peculiar circumstances of these cases, we are of the
view that the view expressed by this Court in the
judgments relied on cannot be applied to the facts of
the case on hand. All the appointed candidates are
working for the meagre salaries pursuant to schemes
notified by the Government. Except the vague
submission that such schemes were framed only to
make backdoor entries, there is no material placed on
record to buttress such submission. Further it is also to
be noted that though such schemes were notified as
early as in 2003, nobody has questioned such policies
and appointments up to 2012 and 2013. The writ
petition i.e. CWP No. 3303 of 2012-A was filed in the
year 2012 without even impleading the appointees as
party respondents. In the writ petition, there was no
rejoinder filed by the writ petitioners disputing the
averments of the State as stated in the reply-affidavit.
Having regard to the nature of such appointments,
appointments made as per policies cannot be termed
as illegal. Having regard to material placed before this
Court and having regard to reasons recorded in the
impugned order [Pankaj Kumar v. State of H.P., 2014 SCC
OnLine HP 5944] by the High Court, we are of the view
that no case is made out to interfere with the
impugned judgment [Pankaj Kumar v. State of H.P., 2014
SCC OnLine HP 5944] of the High Court."
(Emphasis supplied)
27

17. Earlier to the judgment rendered by the Apex Court in

the afore-quoted judgment, the Apex Court in the case

of AMARENDRA KUMAR MOHAPATRA v. STATE OF ORISSA5,

had held as follows:

"42. The decision in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753], as noticed earlier, permitted regularisation of
regular appointments and not illegal appointments.
Question, however, is whether the appointments in the
instant case could be described as illegal and if they were
not, whether the State could be directed to regularise the
services of the degree-holder Junior Engineers who have
worked as ad hoc Assistant Engineers for such a long period,
not only on the analogy of the legislative enactment for
regularisation but also on the principle underlying para 53 of
the decision in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753].

43. As to what would constitute an irregular
appointment is no longer res integra. The decision of
this Court in State of Karnataka v. M.L. Kesari [(2010) 9
SCC 247 : (2010) 2 SCC (L&S) 826], has examined that
question and explained the principle regarding
regularisation as enunciated in Umadevi (3) case [State
of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753]. The decision in that case summed up the
following three essentials for regularisation : (1) the
employees have worked for ten years or more, (2)
that they have so worked in a duly sanctioned post
without the benefit or protection of the interim order
of any court or tribunal, and (3) they should have
possessed the minimum qualification stipulated for
the appointment. Subject to these three requirements
being satisfied, even if the appointment process did
not involve open competitive selection, the
appointment would be treated irregular and not illegal
and thereby qualify for regularisation. Para 7 in this
regard is apposite and may be extracted at this

5
(2014) 4 SCC 583
28

stage: (M.L. Kesari case [(2010) 9 SCC 247 : (2010) 2
SCC (L&S) 826], SCC p. 250)

"7. It is evident from the above that there is an
exception to the general principles against 'regularisation'
enunciated in Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753], if the following
conditions are fulfilled:

(i) The employee concerned should have worked for 10
years or more in a duly sanctioned post without the
benefit or protection of the interim order of any court
or tribunal. In other words, the State Government or
its instrumentality should have employed the
employee and continued him in service voluntarily
and continuously for more than ten years.

(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or
where the persons appointed do not possess the
prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person
employed possessed the prescribed qualifications and
was working against sanctioned posts, but had been
selected without undergoing the process of open
competitive selection, such appointments are
considered to be irregular."

44. It is nobody's case that the degree-holder
Junior Engineers were not qualified for appointment
as Assistant Engineers as even they possess degrees
from recognised institutions. It is also nobody's
case that they were not appointed against the
sanctioned post. There was some debate as to the
actual number of vacancies available from time to
time but we have no hesitation in holding that the
appointments made were at all relevant points of time
against sanctioned posts. The information provided by
Mr. Nageswara Rao, learned Additional Solicitor
General, appearing for the State of Orissa, in fact,
suggests that the number of vacancies was at all
points of time more than the number of appointments
made on ad hoc basis. It is also clear that each one of
the degree-holders has worked for more than 10
years ever since his appointment as ad hoc Assistant
29

Engineer. It is in that view difficult to describe these
appointments of the Stipendiary Engineers on ad hoc
basis to be illegal so as to fall beyond the purview of
the scheme envisaged in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753].

45. The upshot of the above discussion is that not
only because in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] this Court did not disturb the appointments
already made or regularisation granted, but also because
the decision itself permitted regularisation in case of
irregular appointments, the legislative enactment granting
such regularisation does not call for interference at this late
stage when those appointed or regularised have already
started retiring having served their respective departments,
in some cases for as long as 22 years."
(Emphasis supplied)

18. A three Judges bench of the Apex Court considering

the case of UMADEVI (3) supra and subsequent judgments, in

the case of PREM SINGH v. STATE OF U.P.6, holds as follows:

"36. There are some of the employees who have not
been regularised in spite of having rendered the services for
30-40 or more years whereas they have been
superannuated. As they have worked in the work-charged
establishment, not against any particular project, their
services ought to have been regularised under the
Government instructions and even as per the decision of this
Court in State of Karnataka v. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)
753]. This Court in the said decision has laid down that
in case services have been rendered for more than ten
years without the cover of the Court's order, as one-
time measure, the services be regularised of such
employees. In the facts of the case, those employees
who have worked for ten years or more should have
been regularised. It would not be proper to regulate
them for consideration of regularisation as others have

6
(2019) 10 SCC 516
30

been regularised, we direct that their services be
treated as a regular one. However, it is made clear that
they shall not be entitled to claiming any dues of
difference in wages had they been continued in service
regularly before attaining the age of superannuation.
They shall be entitled to receive the pension as if they
have retired from the regular establishment and the
services rendered by them right from the day they
entered the work-charged establishment shall be
counted as qualifying service for purpose of pension.

37. In view of reading down Rule 3(8) of the U.P.
Retirement Benefits Rules, 1961, we hold that services
rendered in the work-charged establishment shall be treated
as qualifying service under the aforesaid rule for grant of
pension. The arrears of pension shall be confined to three
years only before the date of the order. Let the admissible
benefits be paid accordingly within three months.
Resultantly, the appeals filed by the employees are allowed
and filed by the State are dismissed."
(Emphasis supplied)

19. The Apex Court later, in the case of JAGGO v. UNION

OF INDIA7 has held as follows:

"7. They urged the High Court to recognize their
long and continuous service, the nature of their work,
and the lack of any backdoor or illegal entry. They
highlighted that they had functioned without any
break, performed tasks equivalent to regular
employees, and had been assigned duties essential to
the regular upkeep, cleanliness, and maintenance of
the respondent's offices. The High Court, after
examining the Tribunal's decision and the submissions
advanced, concluded that the petitioners before it
were part-time workers who had not been appointed
against sanctioned posts, nor had they performed a
sufficient duration of full-time service to satisfy the
criteria for regularization. It relied on the principle laid
down in Secretary, State of Karnataka v. Uma Devi3 holding
that the petitioners could not claim a vested right to be
7
2024 SCC OnLine SC 3826
31

absorbed or regularized without fulfilling the requisite
conditions. The High Court further observed that the
petitioners did not possess the minimum educational
qualifications ordinarily required for regular appointments,
and additionally noted that the employer had subsequently
outsourced the relevant housekeeping and maintenance
activities. Concluding that there was no legal basis to grant
the reliefs sought, the High Court dismissed the writ petition.
Aggrieved by this rejection, the appellants have approached
this Court by way of these appeals.

8. On behalf of the appellants, the following
arguments have been advanced before us:

(i). Continuous and Substantive Engagement: The
appellants emphasize their long, uninterrupted service
spanning well over a decade--and in some instances,
exceeding two decades. They argue that their duties
were neither sporadic nor project-based but
permanent and integral to the daily functioning of the
respondent's offices.

(ii). Nature of Duties: Their responsibilities-- such as
cleaning, dusting, gardening, and other maintenance
tasks--were not casual or peripheral. Instead, they
were central to ensuring a clean, orderly, and
functional work environment, effectively aligning with
roles typically associated with regular posts.

(iii). Absence of Performance Issues: Throughout their
tenure, the appellants were never issued any warning
or adverse remarks. They highlight that their work was
consistently satisfactory, and there was no indication
from the respondents that their performance was not
satisfactory or required improvement.

(iv). Compliance with 'Uma Devi' Guidelines: The
appellants assert that their appointments were not
"illegal" but at most "irregular." Drawing on the
principles laid down in Secretary, State of
Karnataka v. Uma Devi4, they submit that long-serving
employees in irregular appointments--who fulfil
essential, sanctioned functions--are entitled to
consideration for regularization.
32

(v). Discrimination in Regularization: The appellants
point out that individuals with fewer years of service or
similar engagements have been regularized. They
contend that denying them the same benefit, despite
their longer service and crucial role, constitutes
arbitrary and discriminatory treatment.

(vi). Irrelevance of Educational Qualifications: The
appellants reject the respondents' reliance on formal
educational requirements, noting that such criteria
were never enforced earlier and that the nature of
their work does not inherently demand formal
schooling. They argue that retrospectively imposing
such qualifications is unjustified given their proven
capability over many years.

(vii). Equity and Fairness: Ultimately, the appellants
submit that the High Court erred by focusing too
rigidly on their initial terms of engagement and
ignoring the substantive reality of their long, integral
service. They maintain that fairness, equity, and
established judicial principles call for their
regularization rather than abrupt termination

9. On the other hand, the following primary arguments
have been advanced before us on behalf of the Respondents:

(i). Nature of Engagement: The respondents maintain
that the appellants were engaged purely on a part-
time, contractual basis, limited to a few hours a day,
and that their work was never intended to be
permanent or full-time.

(ii). Absence of Sanctioned Posts: They assert that the
appellants were not appointed against any sanctioned
posts. According to the respondents, without
sanctioned vacancies, there can be no question of
regularization or absorption into the permanent
workforce.

(iii). Non-Compliance with 'Uma Devi' Criteria: Relying
heavily on Secretary, State of Karnataka v. Uma
Devi (supra), the respondents argue that the
appellants do not meet the conditions necessary for
regularization. They emphasize that merely serving a
33

long period on a part-time or ad-hoc basis does not
create a right to be regularized.

(iv). Educational Qualifications: The respondents
contend that even if the appellants were to be
considered for regular appointments, they do not
possess the minimum educational qualifications
mandated for regular recruitment. This, in their view,
disqualifies the appellants from being absorbed into
regular service.

(v). Outsourcing as a Legitimate Policy Decision: The
respondents point out that they have chosen to
outsource the relevant housekeeping and maintenance
work to a private agency. This, they argue, is a
legitimate administrative policy decision aimed at
improving efficiency and cannot be interfered with by
the courts.

(vi). No Fundamental Right to Regularization: Finally,
the respondents underscore that no employee, merely
by virtue of long-standing temporary or part-time
engagement, acquires a vested right to be regularized.
They maintain that the appellants' claims are devoid of
any legal entitlement and that the High Court was
correct in dismissing their petition.

10. Having given careful consideration to the
submissions advanced and the material on record, we
find that the appellants' long and uninterrupted
service, for periods extending well beyond ten years,
cannot be brushed aside merely by labelling their
initial appointments as part-time or contractual. The
essence of their employment must be considered in the
light of their sustained contribution, the integral
nature of their work, and the fact that no evidence
suggests their entry was through any illegal or
surreptitious route.

11. The appellants, throughout their tenure, were
engaged in performing essential duties that were
indispensable to the day-to-day functioning of the offices of
the Central Water Commission (CWC). Applicant Nos. 1, 2,
and 3, as Safaiwalis, were responsible for maintaining
hygiene, cleanliness, and a conducive working environment
within the office premises. Their duties involved sweeping,
34

dusting, and cleaning of floors, workstations, and common
areas--a set of responsibilities that directly contributed to the
basic operational functionality of the CWC. Applicant No. 5, in
the role of a Khallasi (with additional functions akin to those
of a Mali), was entrusted with critical maintenance tasks,
including gardening, upkeep of outdoor premises, and
ensuring orderly surroundings.

12. Despite being labelled as "part-time
workers," the appellants performed these essential
tasks on a daily and continuous basis over extensive
periods, ranging from over a decade to nearly two
decades. Their engagement was not sporadic or
temporary in nature; instead, it was recurrent, regular,
and akin to the responsibilities typically associated
with sanctioned posts. Moreover, the respondents did
not engage any other personnel for these tasks during
the appellants' tenure, underscoring the indispensable
nature of their work.

13. The claim by the respondents that these were
not regular posts lacks merit, as the nature of the work
performed by the appellants was perennial and
fundamental to the functioning of the offices. The
recurring nature of these duties necessitates their
classification as regular posts, irrespective of how
their initial engagements were labelled. It is also
noteworthy that subsequent outsourcing of these
same tasks to private agencies after the appellants'
termination demonstrates the inherent need for these
services. This act of outsourcing, which effectively
replaced one set of workers with another, further
underscores that the work in question was neither
temporary nor occasional.

14. xxx

15. xxx

16. The appellants' consistent performance over
their long tenures further solidifies their claim for
regularization. At no point during their engagement
did the respondents raise any issues regarding their
competence or performance. On the contrary, their
services were extended repeatedly over the years, and
35

their remuneration, though minimal, was
incrementally increased which was an implicit
acknowledgment of their satisfactory performance.
The respondents' belated plea of alleged
unsatisfactory service appears to be an afterthought
and lacks credibility.

17. As for the argument relating to educational
qualifications, we find it untenable in the present context.
The nature of duties the appellants performed--cleaning,
sweeping, dusting, and gardening--does not inherently
mandate formal educational prerequisites. It would be unjust
to rely on educational criteria that were never central to their
engagement or the performance of their duties for decades.
Moreover, the respondents themselves have, by their
conduct, shown that such criteria were not strictly enforced
in other cases of regularization. The appellants' long-standing
satisfactory performance itself attests to their capability to
discharge these functions, making rigid insistence on formal
educational requirements an unreasonable hurdle.

18. xxx

19. It is evident from the foregoing that the
appellants' roles were not only essential but also
indistinguishable from those of regular employees. Their
sustained contributions over extended periods, coupled with
absence of any adverse record, warrant equitable treatment
and regularization of their services. Denial of this benefit,
followed by their arbitrary termination, amounts to manifest
injustice and must be rectified.

20. It is well established that the decision in Uma
Devi (supra) does not intend to penalize employees
who have rendered long years of service fulfilling
ongoing and necessary functions of the State or its
instrumentalities. The said judgment sought to prevent
backdoor entries and illegal appointments that
circumvent constitutional requirements. However,
where appointments were not illegal but possibly
"irregular," and where employees had served
continuously against the backdrop of sanctioned
functions for a considerable period, the need for a fair
and humane resolution becomes paramount.
Prolonged, continuous, and unblemished service
performing tasks inherently required on a regular
36

basis can, over the time, transform what was initially
ad-hoc or temporary into a scenario demanding fair
regularization. In a recent judgment of this Court
in Vinod Kumar v. Union of India5, it was held that held
that procedural formalities cannot be used to deny
regularization of service to an employee whose
appointment was termed "temporary" but has
performed the same duties as performed by the
regular employee over a considerable period in the
capacity of the regular employee. The relevant paras of
this judgment have been reproduced below:

"6. The application of the judgment in Uma
Devi (supra) by the High Court does not fit squarely
with the facts at hand, given the specific
circumstances under which the appellants were
employed and have continued their service. The
reliance on procedural formalities at the outset cannot
be used to perpetually deny substantive rights that
have accrued over a considerable period through
continuous service. Their promotion was based on a
specific notification for vacancies and a subsequent
circular, followed by a selection process involving
written tests and interviews, which distinguishes their
case from the appointments through back door entry
as discussed in the case of Uma Devi (supra).

7. The judgment in the case Uma Devi (supra)
also distinguished between "irregular" and "illegal"
appointments underscoring the importance of
considering certain appointments even if were not
made strictly in accordance with the prescribed Rules
and Procedure, cannot be said to have been made
illegally if they had followed the procedures of regular
appointments such as conduct of written examinations
or interviews as in the present case..."

21. The High Court placed undue emphasis on
the initial label of the appellants' engagements and the
outsourcing decision taken after their dismissal. Courts
must look beyond the surface labels and consider the
realities of employment : continuous, long-term
service, indispensable duties, and absence of any mala
fide or illegalities in their appointments. In that light,
refusing regularization simply because their original
terms did not explicitly state so, or because an
37

outsourcing policy was belatedly introduced, would be
contrary to principles of fairness and equity.

22. The pervasive misuse of temporary employment
contracts, as exemplified in this case, reflects a broader
systemic issue that adversely affects workers' rights and job
security. In the private sector, the rise of the gig economy
has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job
security, and fair treatment. Such practices have been
criticized for exploiting workers and undermining labour
standards. Government institutions, entrusted with upholding
the principles of fairness and justice, bear an even greater
responsibility to avoid such exploitative employment
practices. When public sector entities engage in misuse of
temporary contracts, it not only mirrors the detrimental
trends observed in the gig economy but also sets a
concerning precedent that can erode public trust in
governmental operations.

23. The International Labour Organization (ILO), of
which India is a founding member, has consistently
advocated for employment stability and the fair treatment of
workers. The ILO's Multinational Enterprises
Declaration6 encourages companies to provide stable
employment and to observe obligations concerning
employment stability and social security. It emphasizes that
enterprises should assume a leading role in promoting
employment security, particularly in contexts where job
discontinuation could exacerbate long-term unemployment.

24. The landmark judgment of the United State in the
case of Vizcaino v. Microsoft Corporation7 serves as a
pertinent example from the private sector, illustrating the
consequences of misclassifying employees to circumvent
providing benefits. In this case, Microsoft classified certain
workers as independent contractors, thereby denying them
employee benefits. The U.S. Court of Appeals for the Ninth
Circuit determined that these workers were, in fact,
common-law employees and were entitled to the same
benefits as regular employees. The Court noted that large
Corporations have increasingly adopted the practice of hiring
temporary employees or independent contractors as a means
of avoiding payment of employee benefits, thereby increasing
their profits. This judgment underscores the principle that the
nature of the work performed, rather than the label assigned
38

to the worker, should determine employment status and the
corresponding rights and benefits. It highlights the judiciary's
role in rectifying such misclassifications and ensuring that
workers receive fair treatment.

25. It is a disconcerting reality that temporary
employees, particularly in government institutions, often face
multifaceted forms of exploitation. While the foundational
purpose of temporary contracts may have been to address
short-term or seasonal needs, they have increasingly become
a mechanism to evade long-term obligations owed to
employees. These practices manifest in several ways:

• Misuse of "Temporary" Labels: Employees engaged
for work that is essential, recurring, and integral to the
functioning of an institution are often labeled as
"temporary" or "contractual," even when their roles
mirror those of regular employees. Such
misclassification deprives workers of the dignity,
security, and benefits that regular employees are
entitled to, despite performing identical tasks.

• Arbitrary Termination: Temporary employees are
frequently dismissed without cause or notice, as seen in the
present case. This practice undermines the principles of
natural justice and subjects workers to a state of constant
insecurity, regardless of the quality or duration of their
service.

• Lack of Career Progression: Temporary employees often
find themselves excluded from opportunities for skill
development, promotions, or incremental pay raises. They
remain stagnant in their roles, creating a systemic disparity
between them and their regular counterparts, despite their
contributions being equally significant.

• Using Outsourcing as a Shield: Institutions
increasingly resort to outsourcing roles performed by
temporary employees, effectively replacing one set of
exploited workers with another. This practice not only
perpetuates exploitation but also demonstrates a
deliberate effort to bypass the obligation to offer
regular employment.

• Denial of Basic Rights and Benefits: Temporary
employees are often denied fundamental benefits such as
39

pension, provident fund, health insurance, and paid leave,
even when their tenure spans decades. This lack of social
security subjects them and their families to undue hardship,
especially in cases of illness, retirement, or unforeseen
circumstances.

26. While the judgment in Uma Devi (supra)
sought to curtail the practice of backdoor entries and
ensure appointments adhered to constitutional
principles, it is regrettable that its principles are often
misinterpreted or misapplied to deny legitimate claims
of long-serving employees. This judgment aimed to
distinguish between "illegal" and "irregular"
appointments. It categorically held that employees in
irregular appointments, who were engaged in duly
sanctioned posts and had served continuously for more
than ten years, should be considered for regularization
as a one-time measure. However, the laudable intent
of the judgment is being subverted when institutions
rely on its dicta to indiscriminately reject the claims of
employees, even in cases where their appointments
are not illegal, but merely lack adherence to
procedural formalities. Government departments often
cite the judgment in Uma Devi (supra) to argue that no
vested right to regularization exists for temporary
employees, overlooking the judgment's explicit
acknowledgment of cases where regularization is
appropriate. This selective application distorts the
judgment's spirit and purpose, effectively weaponizing
it against employees who have rendered indispensable
services over decades.

27. In light of these considerations, in our opinion, it is
imperative for government departments to lead by example
in providing fair and stable employment. Engaging workers
on a temporary basis for extended periods, especially when
their roles are integral to the organization's functioning, not
only contravenes international labour standards but also
exposes the organization to legal challenges and undermines
employee morale. By ensuring fair employment practices,
government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to
embody. This approach aligns with international standards
and sets a positive precedent for the private sector to follow,
40

thereby contributing to the overall betterment of labour
practices in the country."

(Emphasis supplied)

Again, the Apex Court in the case of SHRIPAL v. NAGAR

NIGAM8, has held as follows:

"3. The factual matrix leading up to the appeal
before us is as follows:

3.1. The Appellant Workmen claim to have been
engaged as Gardeners (Malis) in the Horticulture
Department of the Respondent Employer, Ghaziabad Nagar
Nigam, since the year 1998 (in some instances, since
1999). According to them, they continuously discharged
horticultural and maintenance duties-- such as planting
trees, maintaining parks, and beautifying public spaces--
under the direct supervision of the Respondent Employer.
They further allege that no formal appointment letters were
ever issued to them, and that they were persistently denied
minimum wages, weekly offs, national holidays, and other
statutory benefits.

3.2. In 2004, the Appellant Workmen, along with
many other similarly situated employees, raised an
industrial dispute (C.B. Case No. 6 of 2004) before the
Conciliation Officer at Ghaziabad, seeking regularization of
their services and the requisite statutory benefits. They
contend that, upon learning of this demand, the
Respondent Employer began delaying their salaries and
subjected them to adverse working conditions. Eventually,
around mid-July 2005, the services of numerous workmen
were allegedly terminated orally, without any notice,
written orders, or retrenchment compensation.

3.3. Since the above termination took place during
the pendency of the conciliation proceedings, the Appellant
Workmen argue it violated Section 6E of the U.P. Industrial
Disputes Act, 1947. Consequently, the State Government
referred the disputes concerning both (i) regularization and
8
2025 SCC OnLine SC 221
41

(ii) legality of the alleged termination, to the Labour Court,
Ghaziabad for adjudication.

3.4. The Labour Court proceeded to decide the
references vide two orders:

(i) Order dated 03.06.2011 : In numerous adjudication
cases (e.g., Adjudication Case Nos. 448, 451, 467 of
2006, etc.), the Labour Court passed awards holding
the terminations illegal for want of compliance with
Section 6N of the U.P. Industrial Disputes Act, 1947,
and directed reinstatement with 30% back wages.

(ii) Order dated 11.10.2011 : However, in about 41
other adjudication cases (e.g., Adjudication Case
Nos. 269, 270, 272, etc.), the Labour Court arrived
at a contrary conclusion, dismissing the claims on the
finding that the concerned workmen had not been
engaged directly by the Nagar Nigam but rather
through a contractor, and hence had no enforceable
right to reinstatement or regularization against the
Respondent Employer.

3.5. Aggrieved by the adverse portion of the awards
(i.e., those granting reinstatement), the Respondent
Employer, Ghaziabad Nagar Nigam, filed several writ
petitions before the High Court of Judicature at Allahabad,
challenging the Labour Court's findings. On the other hand,
the workmen whose claims were dismissed by the other set
of awards also approached the High Court by filing their
own writ petitions. All these writ petitions were heard
together, culminating in the common judgment dated
01.03.2019, which partly modified the Labour Court's
conclusions.

3.6. Through the impugned judgment, the High
Court held that while the Labour Court was correct in
exercising jurisdiction under the U.P. Industrial
Disputes Act (since municipalities could be treated as
"industry"), there remained factual complexities as
to whether the workmen were genuinely on the rolls
of the Nagar Nigam or were provided by contractors.
The High Court also noted that the State Government
had, by notifications/orders, placed a ban on fresh
recruitments in Municipal Corporations, thereby
restricting direct appointments to any post.
42

Ultimately, the High Court partially modified the relief
granted, directing re-engagement of the workmen on
daily wages, with pay equivalent to the minimum in
the regular pay scale of Gardeners, while allowing
future consideration of their regularization if
permissible by law.

4. Both the Appellant Workmen and the Respondent
Employer have now approached this Court by way of
Special Leave Petitions. The workmen primarily seek full
reinstatement with back wages and a direction to secure
their regularization, whereas the Respondent Employer
seeks to quash the modifications ordered by the High Court
on the ground that the High Court exceeded its jurisdiction
by granting partial relief akin to regular employees,
contrary to constitutional provisions and the State's ban on
recruitment.

5. Learned counsel for the Appellant Workmen made
the following submissions:

I. Continuous Service & Comparable Duties : The
Appellant Workmen had continuously discharged
horticultural and maintenance duties-- like planting trees,
upkeep of public parks, and general beautification--under
the direct supervision and control of the Respondent
Employer for periods often exceeding a decade. They insist
such longstanding, continuous work parallels that of
permanent Gardeners.

II. Direct Engagement & Wage Disbursement : They
aver that their wages, though inadequate, were paid
directly by the Horticulture Department of the Respondent
Employer, nullifying the Employer's claim of contractual
hiring. Muster rolls and internal notes are cited to show
direct employer-employee relations.

III. Illegal Termination : Alleging violation of Sections 6E
and 6N of the U.P. Industrial Disputes Act, 1947, the
Appellant Workmen maintain their abrupt termination in
July 2005 (during pendency of conciliation proceedings)
was devoid of due process and statutory payments,
rendering it patently illegal.

IV. Entitlement to Reinstatement & Regularization :
Given their long service and the principle of "equal pay for
43

equal work," the Appellant Workmen submit they deserve
full reinstatement with back wages and a legitimate
pathway to regularization, as opposed to the partial relief of
mere daily-wage re-engagement prescribed by the High
Court.

6. On the other, the learned counsel for the
Respondent Employer, Ghaziabad Nagar Nigam made the
following submissions:

I. Compliance with Constitutional Requirements :
Emphasizing the constitutional scheme of public
employment, it is urged that there was (and remains) a ban
on fresh recruitment in Municipal Corporations, and no
proper selection process was ever followed to appoint the
Workmen on any sanctioned posts.

II. No Direct Employer-Employee Relationship : The
Respondent Employer contends that all horticulture work
was carried out through independent contractors appointed
via tender processes. It claims any partial wage
documentation cited by the Workmen fails to establish
direct engagement.

III. Inapplicability of Regularization : Relying
1
on Secretary, State of Karnataka v. Umadevi , it is asserted
that no daily wager can claim permanent absorption
without adherence to constitutional requirements and
availability of duly sanctioned vacancies.

IV. Inadequate Proof of 240 Days' Service : The
Respondent Employer points out that the Workmen did not
convincingly demonstrate they completed 240 days of
continuous work in any calendar year, thus undermining
the assertion that their cessation from service was illegal.

V. Challenge to Modified Relief: Finally, it argues that the
High Court's direction to pay minimum-scale wages and to
consider the Workmen for future regularization oversteps
legal boundaries, disregards the recruitment ban, and
fosters an impermissible avenue of public employment. The
Respondent Employer, therefore, seeks the quashing of the
impugned judgment.

7. Having heard the arguments and submissions of
the learned counsel for the parties and having perused the
44

record, this Court is of the considered opinion that the
nature of engagement of the Appellant Workmen, the
admitted shortage of Gardeners, and the circumstances
under which their services were brought to an end, merit
closer scrutiny.

8. It is undisputed that, while the Appellant
Workmen were pressing for regularization and proper
wages through pending conciliation proceedings, the
Respondent Employer proceeded to discontinue their
services, without issuing prior notice or granting
retrenchment compensation. At this juncture, it is to have a
look at the requirements of Section 6E of the U.P. Industrial
Disputes Act, 1947 which has been reproduced
hereunder:--

"6E. [Conditions of service, etc. to remain
unchanged in certain circumstances during the
pendency of proceedings. [Inserted by U.P. Act No. 1
of 1957.]

(1) During the pendency of any conciliation
proceeding before a Conciliation Officer or a Board or
of any proceeding before a Labour Court or Tribunal
in respect of an industrial dispute, no employer shall,
-

(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before
the commencement of such proceeding, or

(b) for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise any workman
concerned in such dispute save with the
express permission in writing of the authority
before which the proceeding is pending.

(2) During the pendency of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a
workman concerned in such dispute, -
45

(a) alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately before
the commencement of such proceeding, or

(b) for any misconduct not connected with the
dispute, discharge or punish, whether by
dismissal or otherwise:

Provided that no such workman shall be
discharged or dismissed, unless he has been
paid wages for one month and an application
has been made by the employer to the
authority before which the proceeding is
pending for approval of the action taken by the
employer.

(3) Notwithstanding anything contained in sub-
section (2) no employer shall during the pendency of
any such proceeding in respect of an industrial
dispute, take any action against any protected
workman concerned in such dispute, -

(a) by altering, to the prejudice of such protected
workman, the conditions of service applicable
to him immediately before the commencement
of such proceeding, or

(b) by discharging or punishing, whether by
dismissal or otherwise, such protected
workman, such with the express permission in
writing of the authority before which the
proceeding is pending. Explanation. - For the
purposes of this sub-section, a 'protected
workman' in relation to an establishment,
means a workman who, being an officer of a
registered trade union connected with the
establishment, is recognized as such in
accordance with rules made in this behalf.

(4) In every establishment, the number of
workmen to be recognized as protected workmen for
the purposes of sub-section (3) shall not exceed one
per cent of the total number of workmen employed
therein subject to a minimum number of five
protected workmen and a maximum number of one
46

hundred protected workmen and for the aforesaid
purpose, the State Government may make rules
providing for the distribution of such protected
workmen among various trade unions, if any,
connected with the establishment and the manner in
which they may be chosen and recognized as
protected workmen.

(5) Where an employer makes an application to a
Board, Labour Court or Tribunal under the proviso to
sub-section (2) for approval of the action taken by
him, the authority concerned shall, without delay,
hear such application and pass, as expeditiously as
possible, such order in relation thereto as it deems
fit."

9. On a plain reading of this section, we can
deduce that any unilateral alteration in service
conditions, including termination, is impermissible
during the pendency of such proceedings unless prior
approval is obtained from the appropriate authority.
The record in the present case does not indicate that
the Respondent Employer ever sought or was granted
the requisite approval. Prima facie, therefore, this
conduct reflects a deliberate attempt to circumvent
the lawful claims of the workmen, particularly when
their dispute over regularization and wages remained
sub judice.

10. The Respondent Employer consistently labelled
the Appellant Workmen as casual employees (or workers
engaged through an unnamed contractor), yet there is no
material proof of adherence to Section 6N of the U.P.
Industrial Disputes Act, 1947, which mandates a proper
notice or wages in lieu thereof as well as retrenchment
compensation. In this context, whether an individual is
classified as regular or temporary is irrelevant as
retrenchment obligations under the Act must be met in all
cases attracting Section 6N. Any termination thus effected
without statutory safeguards cannot be undertaken lightly.

11. xxxx

12. xxxx

13. xxxx
47

14. The Respondent Employer places reliance
on Umadevi (supra)2 to contend that daily-wage or
temporary employees cannot claim permanent
absorption in the absence of statutory rules providing
such absorption. However, as frequently
reiterated, Uma Devi itself distinguishes between
appointments that are "illegal" and those that are
"irregular," the latter being eligible for regularization
if they meet certain conditions. More
importantly, Uma Devi cannot serve as a shield to
justify exploitative engagements persisting for years
without the Employer undertaking legitimate
recruitment. Given the record which shows no true
contractor-based arrangement and a consistent need
for permanent horticultural staff the alleged asserted
ban on fresh recruitment, though real, cannot justify
indefinite daily-wage status or continued unfair
practices.

15. It is manifest that the Appellant Workmen
continuously rendered their services over several
years, sometimes spanning more than a decade. Even
if certain muster rolls were not produced in full, the
Employer's failure to furnish such records--despite
directions to do so--allows an adverse inference
under well-established labour jurisprudence. Indian
labour law strongly disfavors perpetual daily-wage or
contractual engagements in circumstances where the
work is permanent in nature. Morally and legally,
workers who fulfil ongoing municipal requirements
year after year cannot be dismissed summarily as
dispensable, particularly in the absence of a genuine
contractor agreement. At this juncture, it would be
appropriate to recall the broader critique of indefinite
"temporary" employment practices as done by a
recent judgment of this court in Jaggo v. Union of
India3 in the following paragraphs:

"xxxxxxxxx"

16. xxx

17. xxx
48

18. The impugned order of the High Court, to the
extent they confine the Appellant Workmen to future daily-
wage engagement without continuity or meaningful back
wages, is hereby set aside with the following directions:

I. The discontinuation of the Appellant Workmen's
services, effected without compliance with Section 6E
and Section 6N of the U.P. Industrial Disputes Act,
1947, is declared illegal. All orders or
communications terminating their services are
quashed. In consequence, the Appellant Workmen
shall be treated as continuing in service from the
date of their termination, for all purposes, including
seniority and continuity in service.

II. The Respondent Employer shall reinstate the
Appellant Workmen in their respective posts (or
posts akin to the duties they previously performed)
within four weeks from the date of this judgment.
Their entire period of absence (from the date of
termination until actual reinstatement) shall be
counted for continuity of service and all
consequential benefits, such as seniority and
eligibility for promotions, if any.

III. Considering the length of service, the Appellant
Workmen shall be entitled to 50% of the back
wages from the date of their discontinuation
until their actual reinstatement. The
Respondent Employer shall clear the aforesaid
dues within three months from the date of their
reinstatement.

IV. The Respondent Employer is directed to initiate
a fair and transparent process for regularizing
the Appellant Workmen within six months from
the date of reinstatement, duly considering the
fact that they have performed perennial
municipal duties akin to permanent posts. In
assessing regularization, the Employer shall not
impose educational or procedural criteria
retroactively if such requirements were never
applied to the Appellant Workmen or to
similarly situated regular employees in the
past. To the extent that sanctioned vacancies
for such duties exist or are required, the
49

Respondent Employer shall expedite all
necessary administrative processes to ensure
these long-time employees are not indefinitely
retained on daily wages contrary to statutory
and equitable norms.

19. In view of the above, the appeal(s) filed by the
workmen are allowed, whereas the appeal(s) filed by the
Nagar Nigam Ghaziabad are dismissed."

(Emphasis supplied)

On a coalesce of the judgments rendered by the Apex

Court in the afore-quoted cases, which were in the aftermath of

the judgment in the case of UMADEVI (3) supra, would in

unmistakable terms indicate that regularization of employees is

not a concept that is obliterated, but could be considered on

several parameters laid down in the said judgments. One

unmistakable stream that runs through judicial thinking of

judgments of the Apex Court is that, regularization of the

services of the employees engaged to work for the State for long

years should be considered, failing which, it would amount to

violation of Article 14 of the Constitution of India.

20. Therefore, on a blend of the judgments rendered by

the Apex Court as afore-quoted, what would unequivocally

mistakably emerge is, the State practising exploitation of human

labour, should by judicial orders be curbed. The Apex Court
50

terms the engagements made in those cases, as exploitative

engagements. In the case at hand even, I deem it appropriate

to observe that the petitioners have in their prime youth worked

for the services of the State, as daily wagers. They are

continued to be in that position even today, with certain benefits

conferred from time to time. They are in the last leg of their

services. If their services are not directed to be regularised

today, it would be putting a premium on the act of the State,

exploiting human labour, as these petitioners, if left in the lurch

will have to wander for their livelihood after having served the

State for 39 years and 32 years respectively.

21. In the light of such exploitation which has to be

stopped and stopped forthwith, the subject case becomes a

classic illustration where mandamus is required to be issued, not

for considering the cases of the petitioners, but to regularise

their services, as any direction, if issued only to consider the

cases of the petitioners, it will generate another round of

litigation, as the State would get a hand, to handle against the

petitioners. Therefore, positive mandamus ensues in the case at

hand only to save the petitioners from the brunt of another

litigation.
51

22. One more aspect that is required to be noticed is that,

there is no explanation from the hands of the State as to why the

cases of these petitioners are deliberately left out while scores

and scores of the services of the daily wagers have been

regularised pursuant to circulars issued, in the aftermath of

UMADEVI(3). Therefore, the State has practised, pick and

choose procedure in considering the cases for regularization.

This is what the Apex Court has observed and deprecated in the

case of STATE OF MADHYA PRADESH v. SHYAM KUMAR

YADAV9, wherein it is held as under:

"2. The issue that arose for consideration before the
High Court in the second round of litigation was whether
respondent No.1 was entitled to be absorbed as a regular
employee, keeping in view the Government policy/circular
and the long period of service rendered by him as a daily
wager. The High Court held that respondent No.1 was
entitled to regularisation of his services as several
persons junior to him had already been absorbed. The
intra-court appeal preferred by the State has also been
turned down by a Division Bench of the High Court vide the
impugned order dated 16-03-2018.

3. We have heard learned Additional Advocate General
for the petitioners as well as learned counsel for respondent
No.1 at a considerable length and carefully perused the
material placed on record.

4. We are constrained to observe that the affidavits or
the documents filed on behalf of the petitioner-State from
time to time, particularly the affidavit of the Commissioner,

9
Special Leave to Appeal No.25609 of 2018 decided on 22-07-2024
52

Technical Education, Bhopal, in purported compliance of our
order dated 22-04-2024, are vague, evasive, and misleading.

5. It is true that an employee engaged on daily
wages has no legally vested right to seek
regularisation of his services. However, if the
competent authority takes a policy decision within the
permissible framework, its benefit must be extended
to all those who fall within the parameters of such a
policy. Authorities cannot be permitted to pick and
choose in such circumstances.

6. The fact that respondent No.1 has worked as a daily
wager from 2005 to 2009 is not in dispute. The eligibility for
the post he holds has also not been controverted. The fact
that he initially entered through the process in
conformity with Articles 14 and 16 of the Constitution
is also not a serious issue. That being so, we see no
reason to interfere with the impugned order passed by the
High Court directing the petitioners to confer the status of a
regular employee on respondent No.1

7. The Special Leave Petition is, accordingly,
dismissed.

8. The petitioners are directed to do the needful and
grant all the benefits, including arrears of pay and seniority,
to respondent No.1 from the due date."

(Emphasis supplied)

The Apex Court observed that practice of State of Madhya

Pradesh in pick and choose for regularisation violates Articles 14

and 16 of the Constitution of India. The said observation would

become applicable to the case at hand as well.

22. A parting observation in the case at hand would not be

inapt. The judgments rendered by the Apex Court as quoted
53

above would leave none in doubt that the employees who have

served for long years with minimum threshold of 10 years and

beyond, and if they come within the parameters of what the

Apex Court noted as quoted hereinabove, the State itself should

consider regularisation of those cases, albeit, on case to case

basis, as a person who is working on daily wage, would not be in

a position to bear the brunt of litigation and it is not the law that

every person should be driven to the Court seeking the very

same relief that is granted to similarly situated persons, if they

are in fact, similar.

23. It becomes apposite to refer to the observations of the

division bench in the case of NAGAPPA VS STATE OF

KARNATAKA10, where the division bench observes as follows:

"2. We have perused the said decisions and also the
averments made in the Writ Petition. In our opinion, it is not
necessary for every person to approach this Court for
a relief similar to the one already granted by this Court
in the aforesaid decisions. If a decision has been
rendered by this Court, it would be proper for the
authorities to follow and extend the benefit of that
decision in like cases coming before them. That should
be the guiding principle to be borne in mind in the
administration. It is not proper to drive every person

10 ILR 1986 Kar 3093
54

to seek relief in this Court. It is indeed the duty of the
authorities to extend the benefits of the concluded
decision of this Court to all other similar cases.

(Emphasis supplied)

Therefore, the State should take steps towards the

observations of the division bench, which would result in

avoiding mushrooming of litigations and save docket explosion.

24. For the aforesaid reasons, the following:

ORDER

     (i)     The writ petition is allowed.

     (ii)    A mandamus issues to the respondents to regularise

the services of the petitioners from the dates on which the petitioners completed ten years of service.

(iii) The petitioners shall become entitled to fixation of their salaries on such regularisation as obtaining to a permanent employee from the dates they complete 10 years of services and would not be entitled for arrears of salary, but the period shall be treated for all consequential benefits that would flow from such regularisation.

(iv) The services rendered by the petitioners throughout shall be counted for the purpose of determination of pension and all other incidental terminal benefits.

(v) The aforesaid directions shall be complied with by the respondents within 12 weeks from the date of receipt of a copy of this order, if not earlier.

Ordered accordingly.

__________SD/-_________ JUSTICE M.NAGAPRASANNA nvj CT:SS

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