Meghalaya High Court
Shri.Tanbor Langbnang And Others vs North Eastern Hill University And ... on 3 May, 2013
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
W.P.(C)No.(SH)113 OF 2011
1. Shri.Tanbor Langbnang,
S/o (L) Nesland Kharbuki,
R/o Shipara Cottage,
Lumdemthring, Shillong,
District: East Khasi Hills, Meghalaya
2. Smti.Jenita Shallam @ Challan,
D/o (L) K. Marphet,
R/o Mawtawar Umjarain, Shillong,
District: East Khasi Hills, Meghalaya.
3. Smti.Janailyn Nongkynrih
D/o (L) E.D. Lyndoh,
R/o Qualapaty, Shillong,
District:East Khasi Hills, Meghalaya.
4. Smti.Rupa Gurung,
D/o P.B. Gurung,
R/o Laiumkhrah, New Colony, Shillong,
District:East Khasi Hills, Meghalaya.
5. Shri.Langstar Jarain,
S/o (L) Konsing Lyndoh,
R/o Lumbalang Compound,
Malki, Shillong,
District: East Khasi Hills, Meghalaya.
6. Shri.Niatlien Syiem
S/o Worsin Kharbani,
R/o Lapalang Pdengshnong, Shillong,
District: East Khasi Hills, Meghalaya.
7. Shri.Webstar Jyrwa,
S/o (L) Y.R. Jana,
R/o Mawlai Mawdatbaki,
Nongpathaw, Shillong,
District: East Khasi Hills, Meghalaya.
8. Shri.Jesterwell Khongstit,
S/o Kondri Kharsohnoh,
R/o Nongumlong, Upper Shillong,
District: East Khasi Hills, Meghalaya.
9. Shri.George Charles Basiawmoit,
S/o (L) T. Basaiawmoit,
R/o Mawryngkneng, Shillong,
District: East Khasi Hills, Meghalaya.
10. Smti.Banri Kharumnuid,
S/o P Kshair,
R/o Mawkynroh, Umshing,
W.P.(C)No.(SH)113 OF 2011 Page 1 of 29
Mawlai, Shillong,
District: East Khasi Hills, Meghalaya.
11. Shri. K Mawiong,
S/o D. Lyndoh,
R/o Nongkrem Village, Shillong,
District: East Khasi Hills, Meghalaya.
12. Shri.Aldrin Nongdhar,
S/o (L) P. Nongbri,
R/o Mawlai Mawtawar, Shillong,
District: East Khasi Hills, Meghalaya.
13. Shri.Anthony Lyndoh,
S/o Christopher C. Nongrum,
R/o Nongumlong, Upper Shillong,
District: East Khasi Hills, Meghalaya.
14. Shri. Polin Thabah,
S/o (L) Meklien Lyngdoh Nonglait,
R/o Mawlai Mawtawar, Shillong,
District: East Khasi Hills, Meghalaya.
15. Shri.Martin M.Umlong,
S/o (L) T Sunn,
R/o Nongkseh, Upper Shillong,
District: East Khasi Hills, Meghalaya.
16. Shri.Arbanson Thawmuit,
S/o (L) W Sohtun,
R/o Mawlai Nonkwar, Shillong,
District: East Khasi Hills, Meghalaya.
17. Shri.Daniel Passi,
S/o D.K. Barua,
R/o Kyntonmassar, Mawlai, Shillong,
District: East Khasi Hills, Meghalaya.
18. Shri.Grassing Marbaniang,
S/o (L) F. Buhsan,
R/o Jaiaw Langsning, Shillong,
District: East Khasi Hills, Meghalaya.
19. Shri.Malcome Nongkynrh,
S/o S. Blah,
R/o Lumkshaid, Mawprem, Shillong,
District: East Khasi Hills, Meghalaya.
20. Shri. Kalbestar Pathaw,
S/o Thomin Massar,
R/o Mawlai Datbaki Nongpathaw, Shillong,
District: East Khasi Hills, Meghalaya.
21. Shri. Welson Khongwir,
S/o A. Kharsati,
R/o Mawlai, Mandatbaki, Shillong,
District: East Khasi Hills, Meghalaya.
W.P.(C)No.(SH)113 OF 2011 Page 2 of 29
22. Shri.Dining Star Dkhar,
S/o (L) P Kharmujai,
R/o Mawlai, Kynonmassar, Shillong,
District: East Khasi Hills, Meghalaya.
23. Shri.Sittal Singh,
S/o Sulkhan Singh,
R/o Bara Bazar, Punjab Line, Shillong,
District: East Khasi Hills, Meghalaya.
24. Shri. Kamal Manih,
S/o (L) U.B. Bailung,
R/o Mawlai Nongkwar, Shillong,
District: East Khasi Hills, Meghalaya.
25. Shri.Winchestar Marboh,
S/o W Mawrie,
R/o Rngi Jynriew Neng Lawjynriew,
Nongthymmai, Shillong,
District: East Khasi Hills, Meghalaya.
26. Shri. Bning Star Less Lyndoh,
S/o Dwess Mawlieh,
R/o Mawkynroh, Mawlai, Shillong,
District: East Khasi Hills, Meghalaya.
27. Shri. Sharless Lyndoh,
S/o Dwesland Mawlieh,
R/o Mawblei, Madanriting, Shillong,
District: East Khasi Hills, Meghalaya.
28. Shri. Swaren Singh Nongbri,
S/o D Nongdhar,
R/o Upper Shillong, Mawklot, Shillong,
District: East Khasi Hills, Meghalaya.
29. Shri. March Ryntathiang,
S/o (L) K Nongsiey,
R/o Mawlai Nongkwar, Shillong,
District: East Khasi Hills, Meghalaya.
30. Shri. Barristar Well Surong,
S/o W Mukhim,
R/o Nongmynsong, Umkdait, Shillong,
District: East Khasi Hills, Meghalaya.
31. Shri. Bernard Kharnaior,
S/o (L) A Lyngkhoj,
R/o Mawlai Nongpdeng Block-B, Shillong,
District: East Khasi Hills, Meghalaya.
32. Shri. Prester Kharumnuid,
S/o (L) P Kharkamni,
R/o Mawlai Mawkynroh Block-I, Shillong,
District: East Khasi Hills, Meghalaya.
33. Shri.Shanbor Mawbliew,
W.P.(C)No.(SH)113 OF 2011 Page 3 of 29
S/o Spinglon Kharhujon,
R/o Mawkynroh, Mawlai, Shillong,
District: East Khasi Hills, Meghalaya.
34. Shri. Tonic Thawmuit,
S/o (L) W Sohtun,
R/o Mawlai Mawiong, Umjapung, Shillong,
District: East Khasi Hills, Meghalaya.
(All the petitioners having common
Cause of action). :::: Petitioners
- Vrs -
1 North Eastern Hill University,
Represented by its Registrar at
Permanent University Campus at Shillong,
District: East Khasi Hills, Meghalaya.
2. Vice Chancellor
At Permanent University Campus at Shillong,
District: East Khasi Hills, Meghalaya.
3. Assistant Registrar (Administration),
At Permanent University Campus at Shillong,
District: East Khasi Hills, Meghalaya.
4. Union of India,
Represented by the Secretary to the Human
Resource Development, New Delhi. :::: Respondent
BEFORE
THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH
For the petitioners : Mr. SS Dey,
Mr.M Nath,
Miss.SG Momin, Advs.
For the respondent : Mr. S Sen, SC NEHU
Date of hearing : 16.04.2013
Date of Judgment : 03.05.2013
Heard Mr. SS Dey, learned counsel appearing for the
petitioners and Mr. S Sen, learned standing counsel for NEHU.
2. In this writ petition, writ petitioners 34 in numbers are praying
for a direction to the respondents to grant the status of regular employees to
W.P.(C)No.(SH)113 OF 2011 Page 4 of 29
the petitioners along with other consequential benefits by framing a time
bound scheme. For deciding the matter in issue in the present writ petition, it
is not required to mention the facts in details relating with the filing of the
present writ petition, it would suffice to note only the facts admitted by the
parties.
3. Factual backgrounds:- The writ petitioners were
engaged/appointed as casual labourers/Peon/Gatekeeper on daily
wage/fixed salary basis by the respondent No.3 i.e. Assistant
Registrar(Administration), North Easter Hill University (for short 'NEHU') and
the date of their appointments/engagements are given below:-
Petitioner Qualification Date of Initial period of Designation/
No. Appointment/ Appointment/Engagement Post
Engagement
1 Class-VI 8.12.1988 Upto 31.12.1988 Casual
passed Labourer
2 Class-VIII 19.10.1989 3 months Cleaner
passed
3 Class-IX 12.1.1990 w.e.f 5.01.1990 to Cleaner
passed 22.01.1990 until further
orders
4 Class-IX 22.10.1990 1.7.90 to 31.12.90 Cleaner
passed
5 Pre- 02.12.1991 Upto 14.12.1991 Gate-
University Keeper
passed
6 HSLC 19.1.1993 1.1.1993 to 31.1.1993 Chowkidar
passed
7 HSLC 13.1.1993 1.1.1993 to 31.3.1993 Casual
passed Labourer
8 Class-VIII 13.1.1993 1.1.1993 to 31.3.1993 Casual
passed Labourer
9 Class-VIII 13.1.1993 1.1.1993 to 31.3.1993 Casual
passed Labourer
10 HSLC 27.4.1993 18.3.1993 to 31.7.1993 Casual
passed Labourer
11 HSLC 27.4.1993 22.3.1993 to 31.7.1993 Casual
passed Labourer
12 Class-IX 18.5.1993 30.3.1993 to 13.4.1993 Chowkidar
passed
13 Class-IX 7.9.1993 2.8.1993 to 30.9.1993 Chowkidar
passed
14 Class-IX 27.10.1993 4.10.1993 to 31.12.1993 Chowkidar
passed
15 HSLC 12.11.1993 14.10.1993 to 31.12.1993 Chowkidar
passed
16 Class-IX 24.2.2994 1.1.1994 to 28.2.1994 Chowkidar
passed
17 Class-VIII 24.2.1994 17.2.1994 to 30.6.1994 Chowkidar
passed
W.P.(C)No.(SH)113 OF 2011 Page 5 of 29
18 Class-VII 21.3.1994 3 months w.e.f.7.3.1994 Peon
passed
19 Class-VII 1.4.1994 1.4.1994 to 31.5.1994 Casual
passed Labourer
20 B.A. passed 16.4.1994 1.4.1994 until further Chowkidar
orders
21 Class-IX 16.5.1994 25.4.1994 to 30.6.1994 Chowkidar
passed
22 Class-VIII 28.6.1994 28.4.1994 until further Peon
passed orders
23 Class-VIII 1.9.1994 Safaiwala
passed
24 HSLC 19.9.1994 Till 11.12.1994 Laboratory
passed Attendant
25 B.A. passed 19.11.1994 10.10.1994 to 9.11.1994 Library
Attendant
26 Class-VIII 13.12.1994 1.12.1994 to 31.12.1994 Chowkidar
passed
27 Class-VIII 1/3/1995 1.1.1995 to 31.3.1995 Chowkidar
passed
28 HSLC 16.2.1995 3.1.1995 to 15.2.1995 Chowkidar
passed
29 Class-IX 7.3.1995 27.1.1995 to 26.4.1995 Safaiwala
passed
30 Class-VIII 7.3.1995 27.1.1995 to 26.4.1995 Safaiwala
passed
31 HSLC 10.5.1995 7.4.1995 to 30.6.1995 Chowkidar
passed
32 Class-IX 10.5.1995 10.4.1995 to 30.6.1995 Chowkidar
passed
33 Class-VIII 10.5.1995 11.4.1995 to 30.6.1995 Chowkidar
passed
34 Class-X 31.10.1997 17.12.1996 to 10.12.1997 Chowkidar
The terms of engagement/appointment of the petitioners have
been extended on various occasions. The last extensions were granted to
the petitioners by the respondent authorities by issuing various orders dated
17.09.2010, 22.09.2010, 08.10.2010, 15.10.2010, 10.11.2010, 16.11.2010,
11.10.2010, 26.10.2010, 09.12.2010, 05.01.2011 and 27.01.2011. The
nature of engagement of the petitioners as casual labourers on daily wage
basis under the orders of the Assistant Registrar (Administration), NEHU are
similar and for ready reference, three of the engagement orders are quoted
below:-
"North Eastern Hills University
NEHU Campus Shillong - 793022 (Meghalaya)
W.P.(C)No.(SH)113 OF 2011 Page 6 of 29
No. F.13-6/Estt.1/Apptt/90(Vol.XI)/254, Dated 26-10-2010
ORDER
Approval of the Registrar, NEHU, Shillong is hereby conveyed to the term of engagement of Shri. W. Myrboh as Casual labourer attached to the Department of Environment Studies on Daily Wage basis for 8(eight) hours duty a day @ 1/30th of the minimum pay of IS Pay band of Rs. 4440-7440/- with grade pay of Rs. 1300/- plus DA on pro-rata basis for a period of 3(three) months i.e. with effect from 22.10.2010 to 21.01.2011 or until further orders whichever is earlier.
The above arrangement is purely on casual basis which shall stand terminated on the expiry of the term and will not bestow on him a claim for regular appointment.
The expenditure is debitable to the Head "Part 1(NP), A. Estt. Charges.1.Salaries (A) Non-Teaching. Registrar's Office."
Sd/-
Section Officer Estt.1(Apptt) North Eastern Hills University NEHU Campus Shillong - 793022 (Meghalaya) No. F.13-6/Estt.1/Apptt/90-94(Vol.III)/233, Dated 08-10-2010 ORDER Approval of the Registrar, NEHU, Shillong is hereby conveyed to the term of engagement of Shri. M. Ryntathiang as Casual labourer attached to the Department of Environment Studies on Daily Wage basis for 8(eight) hours duty a day @ 1/30th of the minimum pay of IS Pay band of Rs. 4440-7440/- with grade pay of Rs. 1300/- plus DA on pro-rata basis for a period of 3(three) months i.e. with effect from 28.12.2010 to 27.03.2011 or until further orders whichever is earlier.
The above arrangement is purely on casual basis which shall stand terminated on the expiry of the term and will not bestow on him a claim for regular appointment.
The expenditure is debitable to the Head "Part 1(NP), A. Estt. Charges.1.Salaries (A) Non-Teaching. Registrar's Office.
Sd/-
Section Officer Estt.1(Apptt) North Eastern Hills University NEHU Campus Shillong - 793022 (Meghalaya) No. F.13-6/Estt.1/Apptt/90(Vol.XI)/235, Dated 11-10-2010 ORDER W.P.(C)No.(SH)113 OF 2011 Page 7 of 29 Approval of the Registrar, NEHU, Shillong is hereby conveyed to the term of engagement of Shri. B. Surong as Casual labourer attached to the Department of Environment Studies on Daily Wage basis for 8(eight) hours duty a day @ 1/30th of the minimum pay of IS Pay band of Rs. 4440-7440/- with grade pay of Rs. 1300/- plus DA on pro-rata basis for a period of 3(three) months i.e. with effect from 26.10.2010 to 25.01.2011 or until further orders whichever is earlier.
The above arrangement is purely on casual basis which shall stand terminated on the expiry of the term and will not bestow on him a claim for regular appointment.
The expenditure is debitable to the Head "Part 1(NP), A. Estt. Charges.1.Salaries (A) Non-Teaching. Registrar's Office."
Sd/-
Section Officer Estt.1(Apptt)"
It is the practice of the respondents that on various occasions, the terms of appointment/engagement of the petitioners are extended by issuing fresh orders covering the past period. Till now, the services of the petitioners are being extracted by the respondent authorities with assurance that respective fresh appointment/engagement/extension order would be issued for the petitioners. The petitioners being assured by the respondent authorities that their terms of engagement would be extended, they have been performing their assigned duties with utmost honesty, sincerity and without any complaint from any quarters. The petitioners and others approached this Court by filing a joint writ petition being WP(C)No.69(SH)1999 praying for granting of temporary status to the petitioners and also for setting aside the impugned restriction imposed by the authorities from granting temporary status to the petitioners who were engaged after 10.09.1993 by sub-paragraph (2) of para-1 of letter No.F-6- 2/97(CU) dated 22.04.1998. This Court vide judgment and order dated 24.05.2002, allowed the writ petition by setting aside the said impugned restriction with a further direction to the respondents to grant temporary status to the writ petitioners from 01.09.1993 or on completion of one year according to the respective dates of their engagement/appointment. The W.P.(C)No.(SH)113 OF 2011 Page 8 of 29 Division Bench of this Court in W.A. No.24(SH)2002 filed by the respondents against the said judgment and order of the learned Single Judge dated 24.05.2002 had set aside the judgment and order of the learned Single Judge vide judgment and order dated 07.06.2005 passed in WA No.24(SH)2002. It is the further case of the petitioners that as they had rendered more than 20 years in service as Casual employees, their case are covered by Para-53 of the (SCC) of the judgment and order of the Apex Court (Constitution Bench) in Secretary, State of Karnataka vs. Umadevi (3) reported in 2006 4 SCC 1. Para-53 of the SCC in Uma Devi's case (Supra) reads as follows:-
"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 paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
In compliance with the Para-53 in Umadevi's case (Supra), the respondents should have taken steps to regularize the casual employment of the writ petitioners as a one-time measure. It is the further case of the W.P.(C)No.(SH)113 OF 2011 Page 9 of 29 petitioners that in AIR 2010 SC 2587 in State of Karnataka vs. M.L. Kesari & Ors, the Apex Court had made an observation that:-
"8............................... The true effect of the direction is that all persons who have worked for more than ten years as on 10.04.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possession the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure ...................."
4. The respondents filed their joint affidavit-in-opposition, wherein it is stated categorically that the petitioners had been appointed as Casual workers depending on the availability of works and not against any sanctioned posts or vacancies. Further, while appointing the petitioners even on casual basis, the procedure prescribed under the Constitutional Scheme of public appointment were not followed. The petitioners have not been serving continuously as there were some breaks in their services.
5. From the pleaded case of the petitioners in the writ petition, nature of their engagements and the affidavit-in-opposition filed by the respondents, it is clear that the petitioners have been engaged as casual employees or daily wage basis for a certain period without following the procedure prescribed under the Constitutional Scheme of public appointment. Over and above, the petitioners were not appointed/engaged in a sanctioned post but they were engaged in daily wage basis without following the required procedure for public employment as their services were needed to meet the needs of the Institution. The services of the petitioners come to an end when it is discontinued. It is fairly settled that the recruit process of recruitment or employment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up pf those vacancies cannot be done in a haphazard manner or W.P.(C)No.(SH)113 OF 2011 Page 10 of 29 based on patronage or other considerations. Regular appointment must be the rule. But in this instant case, there are no regular posts or regular vacancies for regular appointment of the petitioners and therefore, there is no question of filling up of regular vacancies or regularizations of the casual services of the petitioners. However, this Court in the following paras will discuss as to whether the case of the petitioners are covered by Para-53 of the Umadevi's case (Supra).
6. The legal position of a Govt. servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The Apex-Court (Constitution Bench) in Roshan Lal Tandon & Ors vs. Union of India & Anr reported in AIR 1967 SC 1889, held that:-
"6. ............ It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires status his right and obligations are no longer determined by consent of both the parties, but by statue or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is one of status than on contract. The hall- mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by the statue or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. .........................."
7. Again the Apex Court (Constitution Bench) in Union of India & Anr vs. Tulsiram Patel reported in AIR 1985 SC 1416, held that:-
W.P.(C)No.(SH)113 OF 2011 Page 11 of 29"43(A). The position that the pleasure doctrine is not based upon any special prerogative of the Crown but upon public policy has been accepted by this Court in The States of Uttar Pradesh & Ors. v. Babu Ram Upadhya, (1961) 2 SCR 679, 696: (AIR 1961 SC 751 at p. 759) and Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu etc., (1964) 5 SCR 683, 734-5: (AIR 1964 SC 600 at pp. 620-21) This Court has also accepted the principle that society has an interest in the due discharge of their duties by government servants. In Roshan Lal Tandon v. Union of India, (1968) 1 S.C.R. 185: (AIR 1967 SC 1889) Ramaswami, J., speaking for the Court said (at page 195 of SCR): (at p.1894 of AIR):
"It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status that of contract. The Hall- mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned."
(Emphasis supplied)
8. From the conjoint reading of the ratio decidendi in Roshan Lal Tandon's case (Supra) and Tulsiram Patel's case (Supra), it is clear that the origin of Govt. service is contractual. But once appointed to his post or office the Govt. servant acquires a status and his rights and obligations are no longer determined by consent of both the parties, but by a statue or statutory rules which may be framed. The hall-mark of status is the W.P.(C)No.(SH)113 OF 2011 Page 12 of 29 attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. Therefore, the legal relationship of rights and duties cannot be imposed by a mere agreement of the parties but by public law.
9. The public employment as laid down by the Constitution and the law made there-under and the Constitutional Scheme envisages employment by the Govt. and its instrumentalities on the basis of procedure established in that behalf. Any public employment has to be in terms of the Constitutional Scheme. The Courts have always kept the legal aspects in mind and therefore, the persons who get employed, without the following of a regular procedure or even through backdoor or on daily wage basis, approaching the Courts, seeking directions to make them permanent are not welcomed by the Courts and their case are not entertained inasmuch as the High Courts are not invoking the wide jurisdiction under Article 226 of the Constitution of India to defeat the concept of social justice and equal opportunity for all in the matter of public employment as recognized by our Constitution. The Courts desists from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. It is equally well settled that the wide power of the High Courts under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating, illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment.
10. Regularization cannot be said to be a form of appointment and also cannot be said to be a mode of recruitment. If the regularization is to be accepted as a mode of recruitment or regular appointment or one of the Constitutional Scheme in public employment, it would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at W.P.(C)No.(SH)113 OF 2011 Page 13 of 29 naught the rules. The Apex Court in R.N. Nanjundappa vs. T. Thimmiah and Another reported in (1972) 1 SCC 409, held that:-
"26. .............. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with the procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. .............................."
11. The Apex Court in B.N. Nagarajan & Ors vs. State of Karnataka & Ors reported in (1979) 4 SCC 507, held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments.
They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Procedural irregularities which could have been corrected are those in the process of selection which do not go to the root of appointment.
12. The Apex Court in B.N. Nagarajan's case (Supra) held that:
"23. Orders made by the State Government later on and right upto the 31st of October, 1961 when the direct recruits were appointed Assistant Engineers did not improve the position of any of the promotees in any manner. Those orders were either silent on the point of the nature of the tenure of the promotees as Assistant Engineers, or stated in no uncertain terms that the promotees would hold the posts of Assistant Engineers on a temporary or officiating basis. That is why Dr. Chitaley and Mr. Sen, learned counsel for the promotees, mainly placed their reliance on the two notifications dated the 27th of February, 1962, and order exhibit D dated the 6th of October, 1962, the combined effect of which was to promote the said 107 officers as Assistant Engineers with effect from the 1st of November, 1956 "on a regular basis". It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st of November, 1956. The argument however is unacceptable to us for two reasons. Firstly the words "regular"
or "regularisation" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the W.P.(C)No.(SH)113 OF 2011 Page 14 of 29 methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. In this connection reference may with advantage be made to State of Mysore v. S. V. Narayanappa (1967) 1 SCR 128, 132: AIR 1967 SC 1071 and R. N. Nanjundappa v. T. Thimmiah, (1972) 2 SCR 799:
(1972) 1 SCC 409. In the former this Court observed:
Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence."
24. In Nanjundappa's case (1972) 2 SCR 799: (1972) 1 SCC 409 also the question of regularisation of an appointment arose and this Court dealt with it thus: (SCC p.416, para 26) Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. It the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not to to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
13. The Apex Court in Dr. Chanchal Goyal (Mrs) vs. State of Rajasthan reported in (2003) 3 SCC 485, held that:-
"6. There is no scope of regularization unless the appointment was on regular basis. Considerable emphasis has been laid down by the appellant to the position that even for temporary appointment there was a selection. That is really of no consequence. Another plea of the appellant needs to be noted. With reference to the extension granted it was contended that a W.P.(C)No.(SH)113 OF 2011 Page 15 of 29 presumption of the Service Commission's concurrence can be drawn, when extensions were granted from time to time. This plea is without any substance. As noted above, there is no scope for drawing a presumption about such concurrence in terms of sub-rule (2) of Rule 27. After one year, currency of appointment is lost. The extension orders operated only during the period of effectiveness.
7. The decisions relied upon by the learned counsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and not for what could be inferred from the conclusion."
14. There cannot be a legitimate expectation of a persons whose appointments on casual basis without following the procedure prescribed under the Constitutional Scheme in public appointment that their illegal appointments would be regularized only for their continuation of their employment/engagement for a decade inasmuch as, the legitimacy of an expectation can be inferred only if it is founded on the sanction of law.
15. The Apex Court in Union of India & Ors vs. Hindustan Development Corporation & Ors reported in (1993) 3 SCC 499, held that:-
"28. Time is a three-fold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes, the expectation can not be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves can not amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation can not amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."
The Apex Court also followed the said ratio laid down in Hindustan Development Corporation's case (Supra) and Dr. Chanchal Goyal's case (Supra).
W.P.(C)No.(SH)113 OF 2011 Page 16 of 2916. The Apex Court in State of Karnataka & Ors vs. G.V. Chandrashekar reported in (2009) 4 SCC 342, had considered the Para-53 of the judgment in Umadevi's case (Supra) and held that regularization is not permissible where initial recruitment vis-à-vis is illegal and contrary to Constitutional Scheme. Paragraphs 25, 26, 27, 28 & 29 of the SCC in G.V. Chandrashekar's case (Supra) read as follows:-
"25. Interpretation of Para 53 in Umadevi's case (2006) 4 SCC 1:
2006 SCC (L&S) 753 had come up for consideration before this Court in a large number of decisions. In Mineral Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd. (2006) 6 SCC 310: 2006 SCC (L&S) 1318 wherein this Court, while following Umadevi (3) (2006) 4 SCC 1 :2006 SCC (L&S) 753 invoked para 53 of the said decision to opine: (Mineral Exploration (2006) 6 SCC 310: 2006 SCC (L&S) 1318, SCC p.325, para 39) "39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 :2006 SCC (L&S) 753 and in particular, paras 53 and 12 relied on by the learned Senior Counsel appearing for the Union. The Tribunal is directed to dispose of the matter afresh within 9 months from the date of receipt of this judgment without being influenced by any of the observations made by us in this judgment. Both the parties are at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to time and the transfers of the workmen made from time to time, from place to place and other necessary and requisite details. The above details shall be submitted within two months from the date of the receipt of this judgment before the Tribunal.
26. However, in National Fertilizers Ltd. & ors. vs. Somvir Singh (2006)5 SCC 493: 2006 SCC (L&S)1152, this Court held:
(SCC pp.500-01, paras 23 and 25-26)
23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law.
The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
* * * W.P.(C)No.(SH)113 OF 2011 Page 17 of 29
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.
26. It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Umadevi(3) (2006) 4 SCC 1: 2006 SCC (L&S) 753."
27. In State of M.P. vs. Lalit Kumar Verma, (2007) 1 SCC 575:
(2007) 1 SCC (L&S) 405 this Court held: (SCC p.583, paras 20-21) "20. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation. The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post.
21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753. It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India.
28. In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh, (2007) 2 SCC 491: (2007) 1 SCC (L&S) 713, this Court held: (SCC p.501, para 19) "19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires."
29. In Postmaster General vs. Tutu Das (Dutta), (2007) 5 SCC 317: (2007) 2 SCC (L&S) 179, this Court held as under: (SCC pp.324-25, paras 20-21) "20. The statement of law contained in para 53 of Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753 cannot also be invoked W.P.(C)No.(SH)113 OF 2011 Page 18 of 29 in this case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them.
21. In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh, (2007) 2 SCC 491: (2007) 1 SCC (L&S) 713, referring to paras 15, 16 and 53 of Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753 this Court observed: (Ranjodh Singh case Sewerage Board vs. Ranjodh Singh, (2007) 2 SCC 491:
(2007) 1 SCC (L&S) 713 SCC p. 500-01 paras 17-18) '17. A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones.
18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh (2006) 5 SCC 493:
2006 SCC (L&S)1152 in the following terms: (SCC pp. 500- 01, paras 23-25) "23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law.
The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, AIR 1967 SC 1071, R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507: 1980 SCC (L&S) 4 wherein this Court observed: [Umadevi (3) (2006) 4 SCC 1: 2006 SCC (L&S) 753, SCC p. 24, para 16] '16. In B.N. Nagarajan v. Stateof Karnataka, (1979) 4 SCC 507: 1980 SCC (L&S) 4 this Court clearly held that the words `regular' or `regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service."
W.P.(C)No.(SH)113 OF 2011 Page 19 of 29(See also State of M.P. v. Yogesh Chandra Dubey, (2006) 8 SCC 67: 2006 SCC (L&S) 1797 and State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575: (2007) 1 SCC (L&S) 405)."
17. The Apex Court in State of Karnataka & Ors vs. M.L. Kesari & Ors reported in (2010) 9 SCC 247, had again considered and discussed the contents in Para-53 in Umadevi's case (Supra) and held that the appointment of an unqualified persons made against sanctioned posts without following process of open competition is illegal or in other words, appointment of qualified persons against sanctioned post following all the procedures provided under the Constitutional Scheme in public employment except one of the procedures which does not go to the root of the appointment is irregular appointments and only irregular appointments in terms of Para-53 of Umadevi's case (Supra) are to be considered for regularization as one time measure and further held that the appointments not against sanctioned posts or appointment of unqualified persons are illegal appointment.
18. The Apex Court in Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & Ors reported in (2007) 2 SCC 491 also held that distinction between the irregularity and illegality is explicit. Irregular appointment is one where the appointment of qualified persons are made against sanctioned posts without following the procedure which does not go at the root of the procedure for appointment i.e. in other words, mere irregularities in the process of appointment.
19. Paragraphs 6, 7 & 8 of the SCC in M.L. Kesari's case (Supra) read as follows:-
"6. This Court in Umadevi (3)1 further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below:- (SCC p.42, para 53).W.P.(C)No.(SH)113 OF 2011 Page 20 of 29
"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 regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of 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." (Emphasis in original)
7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi (3)1, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal.
In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
8. Umadevi (3)1 casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3)1 directed that such one-time measure must be set W.P.(C)No.(SH)113 OF 2011 Page 21 of 29 in motion within six months from the date of its decision (rendered on 10.4.2006).
20. In U.P. State Electricity Board vs. Pooran Chandra Pandey & Ors reported in (2007) 11 SCC 92, the only reason for not applying the ratio of Umadevi's case (Supra) in that case was that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Paragraphs 3, 4, 5, 6, 12, 14 & 15 of the SCC in Pooran Chandra Pandey case (Supra) read as follows:-
"3. By means of the writ petition, 34 petitioners who were daily wage employees of the Cooperative Electric Supply Society (hereinafter referred to as "the Society") had prayed for regularization of their services in the U.P. State Electricity Board (hereinafter referred to as "the Electricity Board"). It appears that the Society had been taken over by the Electricity Board on 3.4.1997. A copy of the minutes of the proceeding dated 3.4.1997 is Annexure P-2 to this appeal. That proceeding was presided over by the Minister of Cooperatives, U.P. Government and there were a large number of senior officers of the State government present in the proceeding. In the said proceeding, it was mentioned that the daily wage employees of the Society who are being taken over by the Board will start working in the Electricity Board "in the same manner and position"
4. Pursuant to the said proceeding, the respondents herein were absorbed in the service of the Electricity Board.
5. Earlier, the Electricity Board had taken a decision on 28.11.1996 to regularize the services of its employees working on daily wage basis from before 4.5.1990 on the existing vacant posts and that an examination for selection would be held for that purpose.
6. The contention of the writ petitioners (respondents herein) was that since the Society had been taken over by the Electricity Board, the decision dated 28.11.1996 taken by the Electricity Board with regard to its daily wage employees will also be applicable to the employees of the Society who were working from before 4.5.1990 and whose services stood transferred to the Electricity Board and who were working with the Electricity Board on daily wage basis.
12. As observed by this Court in State of Orissa vs. Sudhansu Sekhar Misra, AIR 1968 SC 647 (vide AIR pp.651- 52, para 13):
"13 ............ A decision is only an authority for what it actually decides. What is of the essence in a decision is W.P.(C)No.(SH)113 OF 2011 Page 22 of 29 its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495: (1900-03)All ER Rep 1 (HL) 'Before discussing the case of Allen v. Flood 1898 AC 1: (1895-99) All ER Rep.52 (HL) and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'"
(emphasis supplied)
14. In Bhavanagar University v. Palitana Sugar Mill (P) Ltd, (2003) 2 SCC 111 (vide SCC p.130, para 59) this Court observed:
"59. ....... It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
15. As held in Bharat Petroleum Corpn. Ltd. vs. N.R.Vairamani, (2004) 8 SCC 578: AIR 2004 SC 4778 a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed (SCC pp. 584-85, paras 9-12) "9.Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton, 1951 AC 737: (1951) 2 All ER 1 (HL) W.P.(C)No.(SH)113 OF 2011 Page 23 of 29 AC at p. 761), Lord Mac Dermot observed (All ER p.14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge, .........."
10. In Home Office vs. Dorset Yacht Co. 1970 AC 1004: (1970) 2 WLR 1140: (1970) 2 All ER 294 (HL) (All ER p. 297 g-h) Lord Reid said, 'Lord Atkin`s speech ... is not to be treated as if it was a statute definition; it will require qualification in new circumstances.' Megarry, J. in Shephered Homes Ltd. v. Sandham (No.2) (1971)1 WLR 1062: (1971) 2 All ER 1267 observed (All ER p.1274d):
'One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament.
And, in Herrington v. British Railways Board, 1972 AC 877: (1972 (2) WLR 537: (1972) 1 All ER 749 (HL(E)] Lord Morris said: (All ER. P. 761c) 'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.' * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the W.P.(C)No.(SH)113 OF 2011 Page 24 of 29 dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.'"
(emphasis supplied)
21. The only reason for not applying the ratio in Umadevi's case (Supra) in Pooran Chandra Pandey's case (Supra) is that there is difference of facts i.e. facts in Umadevi's case (Supra) are different that of Pooran Chandra Pandey's case (Supra). If that be so, this Court is afraid that the ratio laid down in Pooran Chandra Pandey case (Supra) is of no help to the case of the petitioners inasmuch as, the facts of the case in Pooran Chandra Pandey case (Supra) is diametrically different from the facts of the present case.
22. Paragraph 15, 28, 29, 37, 43, 45, 47 & 49 of the SCC in Umadevi's case (Supra) read as follows:-
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In State of Mysore Vs. S.V. Narayanappa (1967) 1 SCR 128: AIR 1967 SC 1071 this Court stated that it was a misconception to consider that regularization meant permanence. In R.N. Nanjunandappa v T. Thimmiah (1972) 1 SCC 409: (1972) 2 S.C.R. 799, this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp.416-17, para 26) "Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."W.P.(C)No.(SH)113 OF 2011 Page 25 of 29
28. In Director, Institute of Management Development, U.P. v. Pushpa Srivastava (1992) 4 SCC 33: 1992 SCC (L&S) 767 (1992) 21 ATC 377: (1992) 3 SCR 712 this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the concerned calendar year was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.
29. In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra (2005) 5 SCC 122: 2005 SCC (L&S) 628: AIR 1994 SC 1638 a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.
37. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the W.P.(C)No.(SH)113 OF 2011 Page 26 of 29 appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such W.P.(C)No.(SH)113 OF 2011 Page 27 of 29 casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation W.P.(C)No.(SH)113 OF 2011 Page 28 of 29 of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
23. For the foregoing reasons, this writ petition is devoid of merit and is accordingly dismissed.
JUDGE W.P.(C)No.(SH)113 OF 2011 Page 29 of 29