State of Karnataka v. G.V. Chandrashekar

1. Leave granted.

2. These appeals involving similar questions of law and facts were taken up for hearing together and are being disposed of by this common judgment. The short question which arises for consideration herein is as to whether the respondents herein having been appointed on an ad-hoc basis could be treated to have been regularized in their services. We may notice individual fact of the matters before us:- Civil Appeal arising out of SLP(C) No.24124/2004 Respondent herein was appointed as a Typist on 5.9.1985 and worked for more than ten years without break in service. Under these circumstances, he sought direction from appellants herein to regularize his services with all consequential benefits. His claim was denied by the appellants. Aggrieved by the same, respondent approached the Karnataka Administrative Tribunal which by its order dated 22.9.2003 directed that the question of regularization of the services of the respondent be examined by the appellants with reference to records and decision thereon be taken within 90 days thereafter. Challenging the order of the tribunal, appellant- State approached the High Court which by its order dated 9.8.2004 dismissed the same and directed the appellant to consider the claim of the respondent in terms of the judgment in Premakala Shetty vs. Common Cadre Committee. Civil Appeals arising out of SLP(C) No.24985-25042/2006 Respondents were working in the Forest Department for over ten years as gate watchman, driver, wireless operator and computer operator and sought for regularization of their services from the authorities of the department with all consequential benefits. Their claim was denied by the appellants. Aggrieved by the same, respondents approached the Karnataka Administrative Tribunal which by its order dated 24.9.2003 directed that the question of regularization of the services of the respondent be examined by the appellants with reference to records and decision thereof may be taken within 90 days. Challenging the order of the Tribunal appellant State approached the High Court which dismissed the writ petition by reason of an order dated 21.7.04 and directed the appellant to consider the claim of the respondents following the judgment in Premakala Shetty vs. Common Cadre Committee. Civil Appeal arising out of SLP(C) No.12223/2006 Respondents were appointed as sweepers on 1.4.1980 and 29.4.1978 respectively and sought for regularization of their services with all consequential benefits as they had put in more than ten years of service. Their claim was denied by the appellants. Aggrieved by the same, respondents approached the Karnataka Administrative Tribunal which by its order dated 10.1.2003 directed that regularization of the respondents be made from the day they had completed 10 years of continuous service, as against the posts on which they had been irregularly recruited, with all consequential benefits. Challenging the order of the Tribunal, appellant State approached the High Court, by filing a writ petition which dismissed the writ petition by reason of an order dated 5.1.2004 directing it to consider the claim of the respondents following the judgment in State of Karnataka, By Secretary Forest Department, Bagalore and Ors. vs. T.B. Manjunath and Ors. and Premakala Shetty vs. Common Cadre Committee. Civil Appeals arising out of SLP(C) Nos.15115-15119/2004 Respondents herein have been working as Forest Watchers for more than 10 years, having been inducted as daily wagers. As their applications for regularization was rejected by the appellants, they approached the Karnataka Administrative Tribunal which by its order dated 19.12.2002 directed that in the event of respondents filing fresh application with supportive evidence, their claim for regularization may be taken up and appropriate orders thereon may be passed within three months from the date of representation. Challenging the order of the Tribunal, appellant State approached the High Court by filing a writ petition which rejected the writ petition by reason of an order dated 28.1.04 and directing it to consider the claim of the respondents following the judgment in State of Karnataka, By Secretary Forest Department, Bangalore and Ors. vs. T.B. Manjunath and Ors. and Premakala Shetty vs. Common Cadre Committee. Civil Appeals arising out of SLP(C) Nos.16273-16276/2004 Respondents have been working as mazdoors and sought for regularization of their services having completed more than 10 years of service. As their applications for regularization was denied by the appellants, they approached the Karnataka Administrative Tribunal which by its order dated 24.7.2003 directed that the claim of the respondents be examined and decided within 90 days from the date of receipt of the order and in the event of having completed 10 years of service, on any subsequent date, on any day prior to or after the date of filing of the application, the appellants shall consider the claim for regularization. Challenging the order of the Tribunal, appellant State approached the High Court, by way of writ which was rejected by reason of order dated 28.1.2004 and directing it to consider the claim of the respondents following the judgment in State of Karnataka, By Secretary Forest Department, Bangalore and Ors. vs. T.B. Manjunath and Ors. and Premakala Shetty vs. Common Cadre Committee. Civil Appeals arising out of SLP(C) Nos.17865-17873/2004 Respondents were appointed as forest watcher, literate Assistant and Board Driver and sought for regularization of their services with all consequential benefits. As their applications for regularization was denied by the appellants, they approached the Karnataka Administrative Tribunal which ordered on 11.11.2002 that the appellants shall consider the claim of the respondents but subject to verification of the claim of their having completed ten years of continuous service be examined and decided within 90 days from the date of receipt of the order. Challenging the order of the Tribunal, appellant State approached the High Court by way of a writ petition which was rejected by reason of order dated 12.1.2004 and directing it to consider the claim of the respondents in terms of judgment in State of Karnataka, By Secretary Forest Department, Bangalore and Ors. vs. T.B. Manjunath and Ors. and Premakala Shetty vs. Common Cadre Committee and directed to comply with the order within two months. Civil Appeals arising out of SLP(C) Nos. 16527-16534/2004 Respondents herein were appointed as first division assistant, stenographer, watchman and have approached the KAT for their regularization of their services. The Tribunal by way of order dated 23.9.03 allowed the application of the respondents herein and directed compliance within 90 days from the date of receipt of the order. Challenging the order of the Tribunal, appellant State approached the High Court by way of a writ petition which was rejected by reason of order dated 17.3.2004 and directing it to consider the claim of the respondents. Civil Appeal arising out of SLP(C) No.11893/2006 Respondent’s husband was appointed a Driver on 30.5.1980 and he died on 15.8.92. Respondent sought for regularization of his services with all consequential benefits. The Tribunal on 10.7.2003 relying upon the decision on Bidu vs. State of Karnataka (ILR 2000 KAR 2405) directed to pass appropriate orders within 90 days, including consideration of claim for compassionate appointment. Challenging the order of the Tribunal the appellants came up with a writ petition before the High Court which was dismissed by reason of order dated 9.11.2004, placing reliance on State of Karnataka vs. Karnataka Casual and Daily rated workers’ Union (ILR 2001 KAR 1178), Himachal Pradesh vs. Suresh Kumar [(AIR 1986 SC 1565] and Randhir Singh, D.S. Nakara, Dharwad etc. Civil Appeal arising out of SLP(C) No.11894/2006 Respondents herein were appointed as literate assistant, hand-pump helper, typist and sought for regularization of services with all consequential benefits from their authorities. The High Court dismissed the writ petition filed by the State, which challenged the Tribunal’s order dated 09.06.2003 and directed the appellant to consider the claim of the respondents.

3. Indisputably, a Constitution Bench of this Court in Secretary. State of Karnataka & ors. vs. Umadevi (3) & ors. [(2006) 4 SCC 1] having regard to the provisions contained in Articles 14 and 16 of the Constitution of India opined that any appointment made in contravention of any recruitment rules framed in terms of the proviso appended to Article 309 of the Constitution of India would be wholly illegal and without jurisdiction, holding: “26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent— the distinction between regularisation and making permanent, was not emphasised here—can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh [(1992) 4 SCC 118] is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.

43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.” While saying so, however, the Constitution Bench with a view to give some relief to those employees in respect of whom the process of regularization had been completed and by way of one time measure, held as under:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of 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.”

4. The question which arises for consideration herein is as to whether having regard to the aforementioned law as laid down by the Constitution Bench the respondents herein are entitled to any relief or not. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the appellants and Mr. Girish Ananthamurthy, learned counsel appearing on behalf of the respondents, on the other hand, relied upon two orders passed by this Court; one dated 17.11.2006 in Civil Appeal No. 3956 of 2001 - Madanbi vs. Director of Horticulture & Ors., wherein all appeals have been allowed following Umadevi (supra), whereas in order dated 19.2.2007 in Civil Appeal No.838 of 2007 - State of Karnataka & Anr. vs. S.K. Halappa & Ors. another Division Bench of this Court directed as under::- “We have perused the order passed by the High Court dated 29.3.2004 whereby the Division Bench has directed that Government will consider each case independently in accordance with law, within ten weeks from today for regularization. Suffice it to say that Respondent No.1 (herein) was appointed on a daily wages and he continued for quite some time and thereafter he filed writ petition before the High Court for regularization on permanent basis with all consequential benefits. The High Court directed the State to consider the case of Respondent No.1 in accordance with law and within 10 weeks. Aggrieved against this order, the State is in appeal by way of special leave petition. We have heard learned counsel for the parties and perused the record. In our view, the point involved in this appeal has been decided by this Court in the case of Secretary, State of Karnataka and Others vs. Uma Devi(3) and Others, (2006) 4 SCC 1. The regularization has now been held to be bad in law. But certain observations have been made in the aforesaid judgment. Therefore, in the fitness of things, we set aside the order of the High Court and remit the matter back to the High Court for fresh consideration in light of the law laid down in Uma Devi’s case (supra)”

5. Our attention has also been drawn to the order dated 9.6.2003 passed by the learned single judge of the High Court of Karnataka, Bangalore in Writ Petition Nos. 10332-10342 of 2003 (S-Reg) by Mr. Anatha Murthy, which reads as under:-

6. Interpretation of Para 53 in Umadevi’s case (supra) had come up for consideration before this Court in a large number of decisions. In Mineral Exploration Corpn. Employees’ Union vs. Mineral Exploration Corpn. Ltd. [(2006) 6 SCC 310] wherein this Court, while following Umadevi (3) (supra), invoked para 53 of the said decision to opine: “39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi (3) (supra) 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.” However, in National Fertilizers Ltd. & ors. vs. Somvir Singh (2006) 5 SCC 493, this Court held:-

In State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575], this Court held:-

In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & ors., [(2007) 2 SCC 491], this Court held:- “19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires.” In Postmaster General, Kolkata & Others vs. Tutu Das (Dutta) [(2007) 5 SCC 317], this Court held as under:- “20. The statement of law contained in para 53 of Umadevi (3)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 referring to paras 15, 16 and 53 of Umadevi (3) this Court: (SCC pp. 500-01 paras 17-18) “17. A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones.

18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh in the following terms: (SCC pp. 500- 01, paras 23-25) ‘23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.