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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.

2. 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

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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.

3. 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.

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4. 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.

5. 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

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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”.

6. On 10  August  2016 when the  petition  was taken  up  by  the  High

Court,  the  Additional  Advocate  General  submitted  that  the  Registrar

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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

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steps for implementing the order of the High Court to create additional

posts.  The State Government is in appeal.

7. 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 :  

(i) 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;

(ii) Eleven  sewaks  are  employed  in  the  Jammu  wing  with  dates  of

engagement falling between February 2011 and February 2016;

(iii) Forty five daily wagers are engaged in the Srinagar wing of the High

Court with dates of engagement between May 1998 and January 2015;

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(iv) Two daily  wagers are posted in  the main wing,  being recruited in

2008 and 2013;

(v) 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  

(vi) 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.

8. 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, Delhi1.

9. 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. Umadevi2 and subsequent judgments which followed it. In

the judgment of the Constitution Bench, the following two issues primarily

fell for consideration :

1

(2014) 14 SCC 50 2

(2006) 4 SCC 1

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(i) The right of employees seeking regularization on the strength of long

and continuous work; and

(ii) 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

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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.”

10. 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

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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.  

11. 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

Sanghatana3, held thus :

3

(2009) 8 SCC 556

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“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.

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12. The decision in  Renu  v. District and Sessions Judge, Tis Hazari

Courts, Delhi4 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

4

(2014) 14 SCC 50

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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

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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”.

13. 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.

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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.

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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

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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

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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.”

14. 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.

15. 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  Orissa5 held  as

follows :

“38.  Equally  important  is  the  fact  that  even  after declaring the true legal position on the subject and

5

(2014) 4 SCC 583

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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

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‘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.”

16. This would be again evident from the following observations made by

the Court in Surendra Kumar v. Greater Noida Industrial Development

Authority6, wherein it was held :

6

(2015) 14 SCC 382

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“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.”

17. 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

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to in State of Karnataka v. G.V. Chandrashekar7. In Employees' Union  

v. Mineral Exploration Corpn. Ltd8. 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 Singh9 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

7

(2009) 4 SCC 342 8

(2006) 6 SCC 310 9

 (2006) 5 SCC 493

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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 Verma10:  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 :  

10

(2007) 1 SCC 575 11

(2007) 5 SCC 317

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“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.”

18. A  three-Judge  Bench  of  this  Court  in  Official  Liquidator  v.

Dayanand12, 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

12

(2008) 10 SCC 1

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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].”

19. 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

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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.  

20. 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.

21. 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 :

(i) In  a Public Interest  Litigation seeking the construction of  a district

court  complex in  Bandipora District  the High Court  proceeded to  issue

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directions for the regularization of services of daily rated workers.  These

directions were totally unconnected to the reliefs which were sought in the

PIL; (ii) 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;

(iii) 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;

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(iv) 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

(v) 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.

22. 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

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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.

23. 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

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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.  

24. 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.