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
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
