2010 JTR(SC) 663
2010 3 AIR(Kar)(R) 858 ; 2010 AIR(SC) 2587 ; 2010 AIR(SCW) 4577 ; 2010 6 AWC 5893 ; 2010 127 FLR 12 ; 2010 8 JT 96 ; 2010 Supp3 KLT 63 ; 2010 4 LLJ 583 ; 2010 4 LLN 95 ; 2011 1 MPHT 478 ; 2010 2 OLR 982 ; 2010 4 RSJ 194 ; 2010 7 Scale 743 ; 2010 9 SCC 247 ; 2010 2 SCC(L&S) 826 ; 2010 6 SCJ 180 ; 2010 9 SCR 543 ; 2010 3 SCT 678 ; 2011 1 SLR 598 ; 2010 5 SLT 763 ; 2010 KHC 4530 ; 2010 6 Supreme 262
2010 (6) Supreme 262
SUPREME COURT OF INDIA
R V Raveendran and H L Gokhale, JJ.
State of Karnataka & Ors. — Appellants
versus
M L Kesari & Ors. — Respondents
Civil Appeal No. 6208 of 2010
[Arising out of SLP (C) No.15774/2006]
Decided on : 3-8-2010
IMPORTANT POINT
Umadevi further explained.
Act Referred :SERVICE LAW : .
(A) The relevant service law framework, though not exhaustively enumerated in the referred acts, operates in conjunction with constitutional provisions on appointment and regularization, specifically as interpreted by the Supreme Court in State of Karnataka v. Umadevi, where it was held that irregular daily-wage appointments do not confer a legal right to permanentization unless certain conditions are met. This case directly engages with that precedent, applying the principles of due process, non-interference with statutory recruitment ecosystems, and the limited exception for long-term irregular employees who have served over ten years without court protection. The writ proceedings, appeals, and directions for one-time regularization are all evaluated through this constitutional and statutory lens.
(B) Key legal principles include: (i) no legal right to permanentization arises from irregular or casual appointments; (ii) courts cannot ordinarily direct absorption or regularization; (iii) an exception exists for employees with over ten years of continuous service in duly sanctioned posts without court protection; (iv) regularization is to be treated as a one-time measure subject to verification of eligibility; (v) the six-month period post-Umadevi is not a strict bar if the one-time exercise was not properly completed; and (vi) educational qualifications at appointment may be considered for suitable lower posts.
Facts of the case:
Respondents 1 to 3 were appointed as daily wage employees by the Zila Panchayat, Gadag, between 1985 and 1987 in various capacities. They served for more than 15 years without any court or tribunal interim orders. In 2002, they filed writ petitions seeking regularization, which were allowed by a Single Judge with directions to consider their representations per prior case law. The Division Bench dismissed appeals, directing individualized consideration within four months. The present appeal followed, invoking special leave, after the matter was adjourned awaiting the Constitution Bench decision in Umadevi.
Findings of Court:
The court held that the appeals are pending for over four years past Umadevi, and the Zila Panchayat has not complied with the mandate to undertake a one-time regularization exercise. The Division Bench direction to consider cases in accordance with law is valid, and further direction is needed to complete the one-time exercise within six months, including all eligible daily-wage employees. If the Panchayat previously ignored certain employees, their cases must be considered as a continuation of that exercise. Non-compliance with eligibility under Para 53 of Umadevi precludes regularization.
Issues:
Whether the respondents are entitled to regularization despite being daily-wage employees appointed without following due process; whether the delay in filing the SLP affects their rights; whether the Zila Panchayat has discharged its obligation under the Umadevi judgment to undertake a one-time regularization exercise; and what further directions are necessary to ensure compliance with the constitutional scheme.
Ratio Decidendi:
The Supreme Court applies the Umadevi precedent to hold that irregular daily-wage employees who have served for more than ten years in sanctioned posts without court protection are entitled to be considered for regularization as a one-time measure, subject to verification of eligibility, and that the failure of the employer to complete the exercise within six months does not extinguish this right; the case must be decided based on these principles with a fresh six-month timeline for compliance.
Result:
The appeal is disposed of by directing the Zila Panchayat, Gadag, to undertake a comprehensive one-time regularization exercise within six months to identify all daily-wage, casual, or ad-hoc employees who have completed ten years of service as of 10.4.2006, verify their eligibility per Para 53 of Umadevi, and regularize those who qualify, while also considering previously ignored cases as a continuation of that exercise; if eligibility is not met, regularization shall not be granted.
(A) The relevant service law framework, though not exhaustively enumerated in the referred acts, operates in conjunction with constitutional provisions on appointment and regularization, specifically as interpreted by the Supreme Court in State of Karnataka v. Umadevi, where it was held that irregular daily-wage appointments do not confer a legal right to permanentization unless certain conditions are met. This case directly engages with that precedent, applying the principles of due process, non-interference with statutory recruitment ecosystems, and the limited exception for long-term irregular employees who have served over ten years without court protection. The writ proceedings, appeals, and directions for one-time regularization are all evaluated through this constitutional and statutory lens.
(B) Key legal principles include: (i) no legal right to permanentization arises from irregular or casual appointments; (ii) courts cannot ordinarily direct absorption or regularization; (iii) an exception exists for employees with over ten years of continuous service in duly sanctioned posts without court protection; (iv) regularization is to be treated as a one-time measure subject to verification of eligibility; (v) the six-month period post-Umadevi is not a strict bar if the one-time exercise was not properly completed; and (vi) educational qualifications at appointment may be considered for suitable lower posts.
Facts of the case:
Respondents 1 to 3 were appointed as daily wage employees by the Zila Panchayat, Gadag, between 1985 and 1987 in various capacities. They served for more than 15 years without any court or tribunal interim orders. In 2002, they filed writ petitions seeking regularization, which were allowed by a Single Judge with directions to consider their representations per prior case law. The Division Bench dismissed appeals, directing individualized consideration within four months. The present appeal followed, invoking special leave, after the matter was adjourned awaiting the Constitution Bench decision in Umadevi.
Findings of Court:
The court held that the appeals are pending for over four years past Umadevi, and the Zila Panchayat has not complied with the mandate to undertake a one-time regularization exercise. The Division Bench direction to consider cases in accordance with law is valid, and further direction is needed to complete the one-time exercise within six months, including all eligible daily-wage employees. If the Panchayat previously ignored certain employees, their cases must be considered as a continuation of that exercise. Non-compliance with eligibility under Para 53 of Umadevi precludes regularization.
Issues:
Whether the respondents are entitled to regularization despite being daily-wage employees appointed without following due process; whether the delay in filing the SLP affects their rights; whether the Zila Panchayat has discharged its obligation under the Umadevi judgment to undertake a one-time regularization exercise; and what further directions are necessary to ensure compliance with the constitutional scheme.
Ratio Decidendi:
The Supreme Court applies the Umadevi precedent to hold that irregular daily-wage employees who have served for more than ten years in sanctioned posts without court protection are entitled to be considered for regularization as a one-time measure, subject to verification of eligibility, and that the failure of the employer to complete the exercise within six months does not extinguish this right; the case must be decided based on these principles with a fresh six-month timeline for compliance.
Result:
The appeal is disposed of by directing the Zila Panchayat, Gadag, to undertake a comprehensive one-time regularization exercise within six months to identify all daily-wage, casual, or ad-hoc employees who have completed ten years of service as of 10.4.2006, verify their eligibility per Para 53 of Umadevi, and regularize those who qualify, while also considering previously ignored cases as a continuation of that exercise; if eligibility is not met, regularization shall not be granted.
Regularization - The Constitution Bench decision on regularization of daily-wage employees is relied upon to determine the rights of respondents and to direct a one-time regularization exercise by the Zila Panchayat.
IrregularAppointment - Cited as an illustrative example of irregular (not illegal) appointments of duly qualified persons in duly sanctioned posts, relevant to the exception for regularization under Umadevi.
IrregularAppointment - Cited as an illustrative example of irregular (not illegal) appointments of duly qualified persons in duly sanctioned posts, relevant to the exception for regularization under Umadevi.
IrregularAppointment - Cited as an illustrative example of irregular (not illegal) appointments of duly qualified persons in duly sanctioned posts, relevant to the exception for regularization under Umadevi.
JUDGMENT
R.V. Raveendran, J. —
Delay condoned. Leave granted.
2. Respondents 1 to 3 were appointed on daily wage basis by the Zila Panchayat, Gadag, between 1985 and 1987. Their services were utilized as Typist, Literate Assistant and Watchman respectively in the office of the Executive Engineer, Zila Panchayat Engineering Sub-Division, Ron, Gadag District. They were continued as daily wagers for more than 15 years without the intervention of any court and without the protection of any interim orders of any court or tribunal. In the year 2002 they filed Writ Petitions (Nos.31687-31689/2002) seeking regularization. The said writ petitions were allowed by a learned Single Judge of Karnataka High Court by order dated 27.9.2002 with a direction to consider their representations in accordance with the judgment dated 24.1.2001 in W.A. Nos.5697/2000 and 6677-7351/2000. The writ appeals filed by the appellants against the said order were dismissed by a Division Bench by the impugned order dated 28.7.2004 holding that the respondents will be entitled to regularization, depending upon the terms and conditions of appointment, availability of existing substantive vacancies, eligibility, qualifications, continuity of service, seniority and the prevailing rules. The Division Bench directed that the case of each of the appellants shall be considered independently on its own facts, within four months. The said judgment is challenged in this appeal by special leave.
3. When the matter came up for hearing on 10.3.2006, the matter was adjourned to await the decision of the Constitution Bench in CA Nos. 3595- 3612/1999 - State of Karnataka v. Umadevi. However, subsequently notice was directed to be issued both on the application for condonation of delay for 361 days’ in filing the SLP as also on the special leave petition.
4. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in,1 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below :
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ....”
5. It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
6. The term ‘one-time measure’ has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
7. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
8. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.
9. These appeals have been pending for more than four years after the decision in Umadevi. The Appellant (Zila Panchayat, Gadag) has not considered the cases of respondents of regularization within six months of the decision in Umadevi or thereafter.
10. The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The only further direction that needs be given, in view of Umadevi, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, a general one- time regularization exercise, to find out whether there are any daily wage/casual/ad-hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfill the requirements mentioned in para 53 of Umadevi. If they fulfill them, their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of Para 53 of Umadevi, their services need not be regularised. If the employees who have completed ten years service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularization in suitable lower posts. This appeal is disposed of accordingly.
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