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Monday, December 12, 2016

whether such appointments were irregular or whether they were illegal should have been determined but has not been considered. Since the issue of regularization is a matter with which the state government is seized, as stated in the proceedings before this Court, we are of the view that at this stage it would be appropriate and proper to set aside the impugned order of the High Court which directs the regularization en masse of two hundred nine daily rated workers. While doing so, we restore the proceedings back to the file of the High Court for reconsideration. We order accordingly, leave it open to the High Court to reconsider the entire matter afresh having due regard to the constitutional and legal principles enunciated and having regard to all relevant factual aspects.

                                                                  REPORTABLE


IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL No.    36084     OF 2016
                   SPECIAL LEAVE PETITION (C)11941 OF 2016
                  (@ out of  SLP (C) CC No. 16091 OF 2016)




STATE OF JAMMU AND KASHMIR & ORS                   .....APPELLANTS



                                   VERSUS



DISTRICT BAR ASSOCIATION, BANDIPORA            .....RESPONDENT




                               J U D G M E N T



Dr D Y CHANDRACHUD, J

Delay condoned.

Leave granted.

The State of Jammu and  Kashmir  seeks  to  challenge  the  orders  dated  1
December 2015 and 10 August 2016 of a Division Bench of the High Court in  a
Public Interest Litigation  instituted  by  the  District  Bar  Association,
Bandipora. The grievance of the Bar Association was that since the  creation
of the district of Bandipora in 2007, the Sessions Court has been housed  in
a building which used to be a part  of  the  Munsif’s  Court  Complex.   The
Principal District and Sessions Judge, Chief Judicial Magistrate and  Munsif
discharge  their  judicial  functions  in  a  building  which  lacks   basic
amenities.  On 30 November 2013 during the course of a mega Lok Adalat,  the
Administrative Judge expressed the view that a  suitable  plot  of  land  is
urgently required for the District  Court.  This  was  communicated  by  the
Additional Deputy Commissioner to the Tehsildar  on  30  November  2013.   A
direction was sought for the transfer of certain land  which  is  stated  to
have been earmarked for the construction of the District Court  Complex  or,
in the alternative, for the provision  of  a  suitable  site.  Provision  of
proper amenities was sought.



During the course of the hearing of  the  Public  Interest  Litigation,  the
Division Bench noted in an order dated 7 October 2015  that  an  application
had been filed by the daily rated workers  engaged  in  the  High  Court  at
Srinagar (MP1/2015).  The Advocate General informed the Division Bench  that
a direction had been issued by a co-ordinate Bench in a writ petition  filed
by the daily rated workers requiring the State to file its response.

By its interim direction dated 7 October 2015, the  Division  Bench  ordered
thus :

“Respondent – State is duty bound to  consider  claim  of  the  daily  rated
workers  and  as  a  “one  time  exception”   regularize   their   services.
Commissioner  Secretary  to  Government,  Department  of  Law,  Justice  and
Parliamentary Affairs, to file  Status  Report  about  this  aspect  of  the
matter as well before next date of hearing.”



A Special Leave Petition filed by the state government against  the  interim
order of the High Court was dismissed by this Court on 16 December 2015.

On 1 December 2015, the Division Bench issued a further direction  in  which
notice was taken  of  the  fact  that  the  state  government  had,  over  a
considerable period of time, failed to create the required number  of  posts
for the state judiciary.  As a result, and in order to ensure that the  work
of the courts was not hampered, arrangements were made to engage persons  on
a daily wage basis.  The High Court observed that the  state  government  is
duty bound to create an equal number of posts for the  absorption  of  daily
rated employees at the earliest. The observations  of  the  High  Court  are
extracted below :

“It is submitted that considerable period of time, the  Government  has  not
created required number of  posts  for  the  State  Judiciary.  It  is  also
submitted that because of dearth of  staff,  the  work  in  the  courts  was
hampered.  It is also submitted that in order to ensure  that  the  work  of
the courts do not suffer and until  such  time  posts  are  created  by  the
Government, which is the Constitutional responsibility of the State, it  was
deemed necessary to make engagements on daily wage basis.  It  is  submitted
that this step was taken to ensure that the judicial work does  not  suffer.
This class of employees in essence are the substitute for regular  employees
posts which the Government was duty  bound  to  create.  These  Daily  Rated
Workers would not be regulated by the rules governed by SRO 64 of 1994.  The
information has been already provided to the Government about these  persons
who have been engaged in Daily wage Basis and the Government shall  have  to
create equal number of posts in the State  Judiciary  for  their  absorption
which action is to be taken independent of the Rules notified  vide  SRO  64
of 1994.  The information has been already provided to the Government  about
these persons who have been engaged on Daily Wage Basis and  the  Government
shall have to create equal number of posts in the State Judiciary for  their
absorption which action is to be taken independent  of  the  Rules  notified
vide SRO 64 of 1994.  The daily wagers constitute a class in themselves.

The stand taken by the respondents in the aforesaid  additional  information
would not thus affect the rights of the persons who  have  been  engaged  on
Daily Wages Basis in the State Judiciary. The State is duty bound to  create
equal number of posts for their absorption,  inasmuch  as  no  guarantee  of
status as Government employee.  The  State  Government  besides  being  duty
bound to  provide  complete  infrastructure  and  paraphernalia  area  which
include creation of posts are duty bound to create posts are  those  persons
engaged on Daily rated Basis at the earliest”.



On 10 August 2016 when the petition was taken up  by  the  High  Court,  the
Additional  Advocate  General  submitted  that  the  Registrar  General  had
addressed a communication on 23 April 2014 for  the  regularization  of  188
daily rated workers engaged  from  time  to  time  in  the  High  Court  and
subordinate courts. However, the  annexure  enclosed  to  the  communication
contained a list of 228 workers.  Hence, on 27  July  2016  a  clarification
was sought in regard this discrepancy in  numbers.   On  29  July  2016  the
Registrar General clarified that the actual strength of daily rated  workers
in the High Court was 98 (and not 58  as  incorrectly  stated  earlier)  and
that the correct number of workers engaged in the High  Court  and  district
courts together was 228.  The current strength of daily  rated  workers  was
stated to be  209.   The  High  Court  took  the  view  that  following  the
dismissal of the Special Leave Petition by this Court  against  its  interim
order the state was duty bound to create 209 posts  for  the  absorption  of
the daily  rated  workers.   The  statement  of  the  AAG  was  recorded  on
instructions that 209 Class IV posts would be created  within  three  weeks.
However, the High Court proceeded to issue a notice to  show  cause  to  Mr.
Mohammad  Ashraf  Mir,  the  then  Commissioner/Secretary   to   the   State
Government in the Department of Law, Justice and Parliamentary Affairs,  for
having  made  an  incorrect  statement  on  15  July  2016  that  the  State
Government had already taken steps for implementing the order  of  the  High
Court to create additional posts.  The State Government is in appeal.





By an order dated 5 September 2016, the Secretary to the Department  of  Law
in the State Government was directed to secure  relevant  information  about
the date of joining of all the daily wage  employees  working  in  the  High
Court of Jammu and Kashmir and to file it on affidavit  before  this  Court.
Pursuant thereto, an affidavit has been filed stating that  the  information
received from the Registrar General of the High  Court  indicates  that  two
hundred and nine daily wage employees are working in the High Court and  the
district judiciary in the State.  The information which has been  placed  on
the record indicates that :





Fifty daily wage employees are engaged in the Jammu wing of the  High  Court
whose dates of engagement fall between August 2001 and March 2015;



Eleven sewaks are employed in  the  Jammu  wing  with  dates  of  engagement
falling between February 2011 and February 2016;



Forty five daily wagers are engaged in the Srinagar wing of the  High  Court
with dates of engagement between May 1998 and January 2015;

Two daily wagers are posted in the main wing, being recruited  in  2008  and
2013;



Thirty seven daily wagers are engaged in ten districts of the  Jammu  region
and sixty four are engaged in twelve districts in  Kashmir.   While  one  of
them in District Kulgam was engaged as far back as in 1984, the most  recent
of those engaged (District Badgam) is in March 2014; and



Of the two hundred and nine daily wage employees, one hundred  and  one  are
engaged in the district courts while one hundred and eight  are  engaged  in
the High Court, both at Jammu and Srinagar.



The first submission that has been urged is that  the  direction  issued  by
the High Court is contrary to the law laid down by this  Court  in  Renu  v.
District & Sessions Judge, Tis Hazari Courts, Delhi[1].





The issue which arises must be viewed bearing in mind  the  essence  of  the
judgment of the Constitution Bench  in  Secretary,  State  of  Karnataka  v.
Umadevi[2] and subsequent judgments which followed it. In  the  judgment  of
the  Constitution  Bench,  the  following  two  issues  primarily  fell  for
consideration :

The right of employees seeking regularization on the strength  of  long  and
continuous work; and
The correctness  of  directions  issued  by  courts  for  regularisation  of
employees under Article 226 of the Constitution.
The decision in Umadevi dealt firstly with the right  claimed  by  temporary
employees to be regularised in service on the  basis  of  long  continuance,
legitimate expectations,  employment  under  the  State  and  the  Directive
Principles. The second salient question which  the  Constitution  Bench  was
called upon to answer was whether  courts  would  be  justified  in  issuing
directions for regularisation based on such features such  as  equality  and
long spells of service. On both counts the Constitution Bench  held  against
the temporary employees.
However Umadevi is not an authority for the proposition that  the  executive
or the legislature cannot frame a scheme for regularisation. Uma  Devi  does
not denude the State or its instrumentalities  from  framing  a  scheme  for
regularisation. In paragraph 53 of the decision, this Court held as  follows
:

“53. One aspect needs to be clarified. There may be  cases  where  irregular
appointments (not illegal appointments) as explained in State of  Mysore  v.
S.V. Narayanappa, R.N. Nanjundappa v. T.  Thimmiah  and  B.N.  Nagarajan  v.
State of Karnataka and referred to in  para  15  above,  of  duly  qualified
persons in duly sanctioned  vacant  posts  might  have  been  made  and  the
employees have continued to work for ten  years  or  more  but  without  the
intervention of orders of the  courts  or  of  tribunals.  The  question  of
regularisation of the services of such employees may have to  be  considered
on merits in the light of the principles settled by this Court in the  cases
above referred to and in the light of this judgment. In  that  context,  the
Union of India, the State Governments  and  their  instrumentalities  should
take steps to regularise  as  a  one-time  measure,  the  services  of  such
irregularly appointed, who have  worked  for  ten  years  or  more  in  duly
sanctioned posts but  not  under  cover  of  orders  of  the  courts  or  of
tribunals  and  should  further  ensure  that   regular   recruitments   are
undertaken to fill those vacant sanctioned posts that require to  be  filled
up, in cases where  temporary  employees  or  daily  wagers  are  being  now
employed. The process must be set in motion  within  six  months  from  this
date. We also clarify that regularisation, if any already made, but not  sub
judice, need not be reopened based on this judgment, but there should be  no
further bypassing of the  constitutional  requirement  and  regularising  or
making permanent,  those  not  duly  appointed  as  per  the  constitutional
scheme.”


The third aspect of Umadevi which bears notice is  the  distinction  between
an “irregular” and “illegal” appointment. While answering  the  question  of
whether an appointment is  irregular or illegal, the  Court  would  have  to
enquire as to whether the appointment process adopted  was  tainted  by  the
vice of non-adherence to an  essential  prerequisite  or  is  liable  to  be
faulted on account of the lack of a fair process of recruitment.  There  may
be varied circumstances in which an ad hoc or temporary appointment  may  be
made. The power of the employer to make  a  temporary  appointment,  if  the
exigencies of the situation so demand, cannot be disputed. The  exercise  of
power however stands vitiated if it is found that  the  exercise  undertaken
(a) was not in the exigencies of administration; or (b) where the  procedure
adopted was violative of Articles 14 and 16 of the Constitution; and/or  (c)
where the recruitment process was overridden by the vice of  nepotism,  bias
or mala fides.  If the appointment process is not vitiated  by  any  of  the
above faults, can it be said that appointments made as an  outcome  of  such
an exercise cannot be regularised under a scheme framed in  that  regard  by
the employer? This is particularly when the  employer  himself  proceeds  to
frame a scheme to bring these employees within the  protective  umbrella  of
regular service without the intervention or command of  a  court  direction.
This is the issue to which we turn. We propose  to  analyse  the  precedents
before formulating the principles.





Dealing with the issue of whether Labour Courts are denuded of authority  to
direct  regularization  pursuant  to  labour  enactments,  this   Court   in
Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana[3],  held
thus :

“34. It is true that Dharwad Distt.  PWD  Literate  Daily  Wages  Employees'
Assn. arising out of industrial adjudication has been considered in  Umadevi
(3) and that decision has been held to be not laying down  the  correct  law
but a careful and complete reading of the decision in Umadevi (3) leaves  no
manner of doubt that what this Court was concerned in Umadevi  (3)  was  the
exercise of power by the High Courts under Article 226 and this Court  under
Article 32 of the Constitution of India in the matters of public  employment
where the employees have been engaged as contractual,  temporary  or  casual
workers not based  on  proper  selection  as  recognised  by  the  rules  or
procedure and yet orders of their regularisation and conferring them  status
of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the  proposition  that
the Supreme Court (Article 32) and the High Courts (Article 226) should  not
issue directions of absorption, regularisation or permanent  continuance  of
temporary, contractual, casual, daily wage or ad hoc  employees  unless  the
recruitment itself  was  made  regularly  in  terms  of  the  constitutional
scheme.
36. Umadevi (3) does not denude the Industrial and Labour  Courts  of  their
statutory power under Section 30 read with Section 32 of the MRTU  and  PULP
Act to order permanency of the workers  who  have  been  victims  of  unfair
labour practice on the part of the employer under  Item  6  of  Schedule  IV
where the posts on which they have been working exist.  Umadevi  (3)  cannot
be held to have overridden the powers of the Industrial  and  Labour  Courts
in passing appropriate order under Section 30 of  the  MRTU  and  PULP  Act,
once unfair labour practice on the part of the  employer  under  Item  6  of
Schedule IV is established.”

The labour legislation in that  case  was  the  Maharashtra  Recognition  of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
The decision in Renu v. District and  Sessions  Judge,  Tis  Hazari  Courts,
Delhi[4] dealt with appointments which were shown  to  be  illegal  and  the
outcome of arbitrariness.  It  was  in  that  backdrop  that  the  following
observations came to be made :


“2. This Court had appointed Shri P.S. Narasimha, learned Senior Counsel  as
amicus curiae to assist the Court. The matter was  heard  on  28-1-2014  and
deliberations  took  place  at  length  wherein  all  the  learned   counsel
appearing for the States as well as for the High Courts suggested  that  the
matter  should  be  dealt  with  in  a  larger  perspective  i.e.  also  for
appointments of employees in the High Court and courts  subordinate  to  the
High Court which must include  Class  IV  posts  also.  A  large  number  of
instances have been pointed out on the basis  of  the  information  received
under the Right to Information Act, 2005 of cases not only  of  irregularity
but of favouritism also in making such appointments. It has  been  suggested
by the learned counsel appearing in the matter that this Court  has  a  duty
not  only  to  check  illegality,  irregularity,  corruption,  nepotism  and
favouritism in judicial institutions, but  also  to  provide  guidelines  to
prevent the menace of back-door entries of employees  who  subsequently  are
ordered to be regularised.
27. To say that the Chief Justice can appoint  a  person  without  following
the procedure provided under Articles 14 and 16 would lead to an  indefinite
conclusion that the Chief Justice can dismiss him also without  holding  any
inquiry or following the principles of natural justice/Rules,  etc.  for  as
per Section 16 of the General Clauses Act, 1897, power to  appoint  includes
power to remove/suspend/dismiss. (Vide Pradyat Kumar Bose v. High  Court  of
Calcutta [AIR 1956 SC 285] and Chief Justice  of  A.P.  v.  L.V.A.  Dixitulu
[(1979) 2 SCC 34 : 1979 SCC (L&S) 99] .) But as no employee can  be  removed
without following the procedure prescribed by law or  in  violation  of  the
terms of his appointment, such a course would not be available to the  Chief
Justice. Therefore, the natural corollary of this is that the Chief  Justice
cannot make any appointment in contravention of the statutory  rules,  which
have to be in consonance with the scheme of our Constitution.”

This Court considered the modalities adopted by the High Courts  across  the
country  in  making  recruitments  and  issued  directions  to  ensure  that
appointments made by judicial institutions are in accordance  the  principle
of  equality  of  opportunity  enshrined  in  Articles  14  and  16  of  the
Constitution.  Emphasizing  the  principle   of   transparency   in   public
appointment, this Court observed that :

“Another  important  requirement  of   public   appointment   is   that   of
transparency. Therefore, the advertisement must specify the number of  posts
available for  selection  and  recruitment.  The  qualifications  and  other
eligibility criteria for such posts should be explicitly  provided  and  the
schedule of recruitment process  should  be  published  with  certainty  and
clarity. The advertisement should also specify the  rules  under  which  the
selection is to be made and in absence of the  rules,  the  procedure  under
which the selection is  likely  to  be  undertaken.  This  is  necessary  to
prevent arbitrariness and to avoid change of  criteria  of  selection  after
the selection process is commenced, thereby unjustly benefiting  someone  at
the cost of others.

Thus,  the  aforesaid  decisions  are  an  authority  on   prescribing   the
limitations while making  appointment  against  public  posts  in  terms  of
Articles 14 and 16 of the Constitution.  What has been  deprecated  by  this
Court time and again is “back-door appointments or appointments  dehors  the
rules”.”



The power that is vested in the  Chief  Justice  of  the  High  Court  under
Article 229(1) is, the Court held, subject to Article 16 :

“the law can be summarised to the  effect  that  the  powers  under  Article
229(2) of the Constitution cannot be exercised by the Chief  Justice  in  an
unfettered  and  arbitrary  manner.  Appointments  should  be  made   giving
adherence to the provisions of  Articles  14  and  16  of  the  Constitution
and/or such rules as made by the legislature”.

Four fundamental principles emerge from the decision of this Court in  Renu.
 The first principle is that Article 235 enables the High Court to  exercise
complete administrative control over the district  judiciary  which  extends
to all functionaries attached to those courts, including  ministerial  staff
and employees on the establishment. The purpose of superintendence would  be
frustrated if the administrative control of the High  Court  is  not  to  be
exercised over the administrative and ministerial staff. However, the  Chief
Justice of the High Court as a constitutional functionary is subject to  the
mandate of Articles 14 and 16.  No appointment can be made in  contravention
of statutory rules.  Moreover, the rules themselves must be consistent  with
constitutional principles.
The second principle is that employment in the High Courts or in the  courts
subordinate to them  constitutes  public  employment.   All  recruitment  in
matters of public employment must be  made  in  accordance  with  prevailing
rules and orders:
“30. In today’s system, daily  labourers  and  casual  labourers  have  been
conveniently introduced which are followed by attempts  to  regularise  them
at a subsequent stage. Therefore, most of the  times  the  issue  raised  is
about the procedure adopted for making appointments indicating  an  improper
exercise of discretion even when the rules specify a particular mode  to  be
adopted. There can be no doubt that the  employment  whether  of  Class  IV,
Class III, Class II  or  any  other  class  in  the  High  Court  or  courts
subordinate to it falls within the definition of “public  employment”.  Such
an employment, therefore, has to be made under rules  and  under  orders  of
the competent authority.”


Thirdly,  the  date  on  which  the  vacancies  are  likely  to  occur   are
foreseeable with a reasonable amount of clarity and precision.  An  exercise
to fill up vacancies must be undertaken in advance  so  as  to  ensure  that
there is no occasion to appoint persons on an ad hoc basis :
“31. In a democratic set-up like ours, which is governed  by  rule  of  law,
the supremacy of law is to be acknowledged and absence of arbitrariness  has
been consistently described as essence of rule  of  law.  Thus,  the  powers
have to be canalised and not unbridled so as to breach the  basic  structure
of the Constitution. Equality of opportunity in matters of employment  being
the constitutional mandate has  always  been  observed.  The  unquestionable
authority is always subject  to  the  authority  of  the  Constitution.  The
higher the dignitary, the more objectivity is expected to  be  observed.  We
do not say that powers should be curtailed. What we want to say is that  the
power can be exercised only to the width of  the  constitutional  and  legal
limits. The date of retirement of every employee is well  known  in  advance
and therefore, the number of vacancies likely to occur in near future  in  a
particular cadre is always known to the employer.  Therefore,  the  exercise
to fill up the vacancies at the earliest must start  in  advance  to  ensure
that the selected person may join  immediately  after  availability  of  the
post, and hence, there may be no occasion to appoint any person  on  ad  hoc
basis for the reason that the problem of inducting the daily  labourers  who
are ensured of a regular appointment subsequently has to be  avoided  and  a
fair procedure must be adopted giving equal opportunity to everyone.”

The information before the Supreme Court indicated that several High  Courts
have  adopted  a  pattern  of  centralized  recruitment  so  as  to   ensure
transparency and objectivity in the appointment of  ministerial  staff  both
on the establishment of the High Court and in the district courts.
Fourthly, while the High Court is  an  autonomous  constitutional  authority
whose status cannot be  undermined,  it  is  equally  necessary  for  it  to
strictly comply with the rules framed in making recruitments :
“We would like to make it clear that the High Court is a constitutional  and
an  autonomous  authority  subordinate  to  none.  Therefore,   nobody   can
undermine the constitutional authority of the High Court, and therefore  the
purpose to hear this case is only to advise  the  High  Court  that  if  its
rules are not in consonance with the philosophy  of  our  Constitution  then
the same may be modified and no appointment in contravention thereof  should
be made.  It is necessary that there is strict compliance  with  appropriate
rules and the employer is bound to adhere to the norms of  Articles  14  and
16 of the Constitution before making any recruitment.”

The following directions have been issued in Renu for observance by all  the
High Courts :
“35.1. (i) All the High Courts are requested  to  re-examine  the  statutory
rules dealing with the appointment of staff in the High Court as well as  in
the subordinate courts and in case any of the rules  is  not  in  conformity
and  consonance  with  the  provisions  of  Articles  14  and  16   of   the
Constitution, the same may be modified.
35.2. (ii) To fill up any vacancy for any post either in the High  Court  or
in courts subordinate to the High  Court,  in  strict  compliance  with  the
statutory rules so made. In case any appointment is  made  in  contravention
of  the  statutory  rules,  the  appointment  would  be   void   ab   initio
irrespective of any class of the post or the person occupying it.
35.3. (iii) The post shall be filled up by issuing the advertisement  in  at
least two newspapers and one of which must be in vernacular language  having
wide circulation in the respective State. In  addition  thereto,  the  names
may be requisitioned from the local employment exchange  and  the  vacancies
may be advertised by  other  modes  also  e.g.  Employment  News,  etc.  Any
vacancy filled up without advertising as prescribed  hereinabove,  shall  be
void ab initio and would remain unenforceable and unexecutable  except  such
appointments which are permissible to be  filled  up  without  advertisement
e.g. appointment on compassionate  grounds  as  per  the  rules  applicable.
Before any appointment is made, the eligibility as well  as  suitability  of
all  the  candidates  should  be  screened/tested  while  adhering  to   the
reservation policy adopted by the State, etc. if any.
35.4. (iv) Each High Court may examine and decide  within  six  months  from
today as to whether  it  is  desirable  to  have  centralised  selection  of
candidates for the courts subordinate to the respective High  Court  and  if
it finds it desirable, may formulate the rules to  carry  out  that  purpose
either for the State or on zonal or divisional basis.
35.5. (v) The High Court concerned or the subordinate court as the case  may
be, shall undertake the exercise of recruitment on a regular basis at  least
once a year for existing vacancies or vacancies that  are  likely  to  occur
within the said period, so that the vacancies  are  filled  up  timely,  and
thereby avoiding any inconvenience or shortage of  staff  as  it  will  also
control the menace of ad hocism.”


The judgment in Renu underlines the importance of the High  Court  complying
with  statutory  rules  in  matters  of  recruitment.  The   judgment   also
emphasises the need to  abide  by  the  principles  of  equality  and  equal
opportunity in Articles 14 and 16.





The judgment in Renu does not preclude, as a principle of law,  the  framing
of  an  appropriate  scheme  of  regularization  in  appropriate  situations
meeting the norms  spelt  out  in  Umadevi  and  the  decisions  which  have
followed. Dealing with a scheme framed for  regularisation,  this  Court  in
Amarendra Kumar Mohapatra v. State of Orissa[5] held as follows :

“38. Equally important is the fact that even after declaring the true  legal
position  on  the  subject  and  even  after  deprecating  the  practice  of
appointing people by means other  than  legitimate,  this  Court  felt  that
those who had served for ten years or so may be put to extreme  hardship  if
they were to  be  discharged  from  service  and,  therefore,  directed  the
formulation of a scheme for their regularisation. This was no doubt  a  one-
time measure, but so long as the appointment sought to  be  regularised  was
not illegal, the scheme  envisaged  by  para  53  of  the  decision  (supra)
extracted above permitted the State to regularise such employees. Dr  Dhavan
argued that the  appellant  Stipendiary  Engineers  had,  by  the  time  the
decision in Umadevi (3) case was pronounced, qualified for the benefit of  a
scheme of regularisation having  put  in  ten  years  as  ad  hoc  Assistant
Engineers and fifteen years if their tenure was to be counted from the  date
of their employment as Stipendiary Engineers. He contended that even in  the
absence of a Validation Act,  Stipendiary  Engineers  appointed  on  ad  hoc
basis as Assistant Engineers, who had worked for nearly  ten  years  to  the
full satisfaction of the  State  Government  would  have  been  entitled  to
regularisation of their services in terms of any such scheme.
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  ,
has  examined  that  question  and   explained   the   principle   regarding
regularisation as enunciated in Umadevi (3) case. 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 stage :
“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.”
45. The upshot of the above discussion is that not only because  in  Umadevi
(3) case 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.”


This would be again evident from the  following  observations  made  by  the
Court  in  Surendra  Kumar   v.   Greater   Noida   Industrial   Development
Authority[6], wherein it was held :

“In the impugned judgment [Greater Noida  Industrial  Development  Authority
v. Surendra Kumar, 2013 SCC OnLine All 9827 : (2014)  102  ALR  418]  ,  the
Division Bench proceeded on the premise as if Umadevi  (3)  case  held  that
the State Government, in no circumstance, can  regularise  the  services  of
contractual employees. In para 53 of  Umadevi  (3)  case,  the  Constitution
Bench carved out an exception by observing that  the  Union  of  India/State
Governments/their instrumentalities should  take  steps  to  regularise  the
services of such irregular employees who  have  worked  for  more  than  ten
years and para 53 reads as under: (SCC p. 42)

13. Considering the facts of the present case on the  touchstone  laid  down
in Umadevi (3) case, it will be seen that the Division Bench was  not  right
in setting aside  the  appointment  of  the  appellants.  More  so,  it  was
nobody's case challenging the appointment  of  the  appellants.  Admittedly,
the appellants were engaged as contractual  employees  from  1994  and  have
completed more than ten years of continuous service with Respondent 1.  They
continued in service not by the orders of the  Court/Tribunal,  but  by  the
decision of the respondents. The appellants  were  regularised  as  per  the
policy decision dated 16-4-2003 taken by Respondent 1 and  approved  by  the
State Government vide Letter dated 5-3-2008. Since the  appointment  of  the
appellants were made pursuant to the  policy  of  regularisation,  the  High
Court was not right in quashing the appointment of  the  appellants  as  the
same were never in question before the High Court. The plea that was  raised
by the appellants was only to seek regularisation with retrospective  effect
from 20-11-2002 and the consequential seniority.”

The difference between irregular and illegal appointments as also the scope
of paragraph 53 of Uma Devi has fallen for consideration in various
subsequent judgments of this Court . These decisions have been adverted to
in State of Karnataka v. G.V. Chandrashekar[7]. In Employees' Union v.
Mineral Exploration Corpn. Ltd[8]. this Court observed as follows :

“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  State  of
Karnataka v. Umadevi (3) 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.”

In National Fertilizers Ltd. v. Somvir Singh[9] this Court held thus :
“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.
***
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  regularisation  of  their  services  in  view  of  the
decision of this Court in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S)  753]
.”


In State of M.P. v. Lalit Kumar Verma[10]:  this Court held that :

“21. The legal position somehow was uncertain before the  decision  rendered
by the Constitution Bench of this Court in Umadevi (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 also  has  no  application  in  the
case of the respondent. Even otherwise, it would be  unconstitutional  being
hit by Article 16 of the Constitution of India.”

In Post Master General v. Tutu Das (Dutta)[11] this Court held as under :

“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 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 v. 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 [(2007) 2 SCC 491 : (2007) 1 SCC (L&S) 713] , SCC  p.  500  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.”

A three-Judge Bench of this Court in Official  Liquidator  v.  Dayanand[12],
held thus :



“75. By virtue of Article 141 of  the  Constitution,  the  judgment  of  the
Constitution Bench in State of Karnataka v. Umadevi (3) [(2006) 4  SCC  1  :
2006 SCC (L&S) 753] is binding on all the courts including this  Court  till
the same is overruled by a larger  Bench.  The  ratio  of  the  Constitution
Bench  judgment  has  been  followed  by  different  two-Judge  Benches  for
declining to entertain the claim of regularisation of  service  made  by  ad
hoc/temporary/daily wage/casual employees or for  reversing  the  orders  of
the High Court  granting  relief  to  such  employees  —  Indian  Drugs  and
Pharmaceuticals Ltd. v. Workmen [(2007) 1 SCC 408 : (2007) 1 SCC (L&S)  270]
, Gangadhar Pillai v. Siemens Ltd. [(2007) 1 SCC 533 : (2007)  1  SCC  (L&S)
346] , Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara  [(2007)  5  SCC
326 : (2007) 2 SCC (L&S) 143] and Hindustan Aeronautics Ltd. v. Dan  Bahadur
Singh [(2007) 6 SCC 207 : (2007) 2 SCC (L&S) 441].”

The principles will have to be formulated bearing in mind the  position  set
out in the above judgments. Regularisation is not a  source  of  recruitment
nor is it intended to confer permanency upon appointments  which  have  been
made without following the due process envisaged by Articles 14  and  16  of
the Constitution. Essentially a scheme for regularisation, in  order  to  be
held to be legally valid, must be one which is aimed at  validating  certain
irregular appointments which may  have  come  to  be  made  in  genuine  and
legitimate administrative exigencies. In all such cases it may be left  open
to Courts to lift the veil  to  enquire  whether  the  scheme  is  aimed  at
achieving the above  objective  and  is  a  genuine  attempt  at  validating
irregular appointments.  The  State  and  its  instrumentalities  cannot  be
permitted to use this window to validate illegal  appointments.  The  second
rider which must necessarily be placed is that the principle  as  formulated
above is not meant to create or invest in a temporary  or  ad  hoc  employee
the right to seek a  writ  commanding  the  State  to  frame  a  scheme  for
regularisation. Otherwise, this would simply reinvigorate a class of  claims
which has been shut out permanently by Uma Devi. Ultimately, it  would  have
to be left to the State and its instrumentalities to  consider  whether  the
circumstances warrant such a scheme being  formulated.  The  formulation  of
such a scheme cannot be accorded the status  of  an  enforceable  right.  It
would perhaps be prudent to leave it to a claimant to establish  whether  he
or she falls within the exceptions carved out  in  paragraph  53  and  falls
within the ambit of a scheme that may be formulated by  the  State.  Subject
to the riders referred to above,  a  scheme  of  regularisation  could  fall
within the permissible limits of Uma Devi and be upheld.





The judgment in Renu was delivered on 12  February  2014.   Neither  of  the
orders of the High Court  in  the  present  case  would  indicate  that  the
principles which have been enunciated by this Court have been considered.





The grievances which have been set out on behalf of the state government  in
the Special Leave Petition, and during the course of  the  hearing,  include
the following :



In a Public Interest Litigation  seeking  the  construction  of  a  district
court complex in Bandipora  District  the  High  Court  proceeded  to  issue
directions for the  regularization  of  services  of  daily  rated  workers.
These directions were totally unconnected to the reliefs which  were  sought
in the PIL;
By an order of the High Court dated 7 October  2015,  the  state  government
was directed to consider the claim for regularization  of  the  daily  rated
workers  as  a  one-time  exception  which  required  the  state  government
necessarily to decide on the issue of regularization.  The state  government
has constituted an empowered committee on 19 August  2015  to  inquire  into
the issue of creating posts for  the  regularization  of  nearly  sixty  one
thousand daily rated and casual workers working in  various  departments  of
the state government. These include workers  on  the  establishment  of  the
High  Court  and  the  district  courts;  The  High  Court  has   pre-empted
consideration by issuing a direction for regularisation;

There is a lack of clarity in the  actual  number  of  daily  rated  workers
engaged in the High Court and the district judiciary,  as  well  as  in  the
nature of work performed.  The  list  furnished  by  the  Registrar  General
contains the names of several Sewaks whose services are governed under a  GO
dated 28 July 2016.  All the two hundred nine workers  do  not  perform  the
same job and who among them is eligible to be considered for  regularization
has yet to be determined;

The High Court has proceeded on  the  erroneous  basis  that  the  issue  of
regularization has attained finality.  The dismissal of  the  Special  Leave
Petition by this Court on 16 December 2015 against an interim order dated  7
October 2015 does not conclude the issue.  There is no vested right to  seek
regularization; and

The High Court has erred, in its order dated 1  December  2015,  in  holding
that daily rated workers on the establishment of the High  Court  would  not
be regulated by the rules governed by SRO 64 of 1994.  If  the  Daily  Rated
Workers are to be regularized, the state government should  be  required  to
create a sufficient number of posts for the purpose.


We have adverted to the above grievances in order to  emphasise  that  there
is substantial merit in the submission that  the  High  Court  proceeded  to
issue directions for regularization without  considering  either  the  legal
position enunciated in the judgments of this Court  referred  to  above  and
without considering the prevailing rules and  regulations  on  the  subject.
The High Court has observed in its order dated 1 December 2015 that  over  a
considerable period of  time  the  state  government  has  not  created  the
required number of posts for the state judiciary as a result of  which  work
has been hampered. According to the High Court, appointment of  daily  rated
workers was necessitated to ensure that judicial work does not  suffer.  The
High Court opined that these workers have been rendering work  which  should
have  been  assigned  to  persons  appointed  on  a  regular  basis  against
sanctioned  posts.   It  is  unfortunate,  in  our  view,  that  the   state
government has allowed  the  requirements  of  the  state  judiciary  to  be
neglected over such a long period of  time.   The  need  to  facilitate  the
proper functioning of the  High  Court  and  the  district  judiciary  is  a
constitutional necessity which imposes a non-negotiable  obligation  on  the
state government to create an  adequate  number  of  posts  and  to  provide
sufficient  infrastructure.  The  state  government  is  to  blame  for  the
unfortunate situation which has resulted in a large number of persons  being
recruited on a daily wage basis.

We have already indicated  above  our  conclusion  that  the  direction  for
regularization  was  issued  by  the  High  Court  without  considering  the
relevant constitutional and legal principles. While some of the daily  rated
workers have been engaged over  long  periods  of  time,  others  have  been
engaged as recently as in 2015.   The issue  of  whether  such  appointments
were irregular or whether they were illegal should have been determined  but
has not been considered. Since the issue of regularization is a matter  with
which the state government is seized, as stated in  the  proceedings  before
this Court, we are of the view that at this stage it  would  be  appropriate
and proper to set aside the impugned order of the High Court  which  directs
the regularization en masse of two hundred nine daily rated  workers.  While
doing so, we restore the proceedings back to the file of the High Court  for
reconsideration.  We order accordingly, leave it open to the High  Court  to
reconsider the entire matter afresh having due regard to the  constitutional
and legal principles enunciated and having regard to  all  relevant  factual
aspects.

The Civil Appeal shall accordingly stand disposed  of.  There  shall  be  no
orders as to costs.



                                .........................................CJI
                                                       [T S  THAKUR]


                                …..........................................J
                                                       [Dr D Y
CHANDRACHUD]




                             ..............................................J
                                                           [L NAGESWARA RAO]


New Delhi
December 08, 2016.
-----------------------
[1]

      [2] (2014) 14 SCC 50
[3]

      [4] (2006) 4 SCC 1
[5]

      [6](2009) 8 SCC 556
[7]

      [8] (2014) 14 SCC 50
[9]

      [10](2014) 4 SCC 583
[11]

      [12](2015) 14 SCC 382
[13]

      [14](2009) 4 SCC 342
[15]

      [16] (2006) 6 SCC 310
[17]

      [18]  (2006) 5 SCC 493
[19]

      [20] (2007) 1 SCC 575
[21]

      [22] (2007) 5 SCC 317
[23]

      [24] (2008) 10 SCC 1


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