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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NOS.175-176 OF 2019 (@SLP(C) NOS.37798-37799 OF 2013)

UNION OF INDIA & ORS.                                                 APPELLANT(S)

VERSUS

SANT LAL & ORS.ETC.ETC.      RESPONDENT(S)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.   

The Union of India has moved these proceedings aggrieved by a judgment of a

Division Bench of the Allahabad High Court dated 19 July, 2013.

The  issue  pertains  to  a  direction  for  regularizing  the  services  of  eighteen

respondents in Group ‘D’ posts at the Regional Training Institute at Allahabad1.  The

organization  falls  under  the  administrative  control  of  the  Comptroller  and  Auditor

General of India.

1 ‘The Institute’

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The first round of proceedings was initiated on behalf of persons who had been

engaged as Group ‘D’ workers on a casual basis at the Institute. The grievance before

the  Central  Administrative  Tribunal  was  that  since 1986,  the Institute  had engaged

casual workers and, despite long years of service, they had not been regularized. By

the time the Tribunal delivered its judgment on 6 January, 2006, many of them had put

in well over twelve years of service.  While disposing of the Original Application2, the

Tribunal issued directions (i)mandating the preparation of a seniority list in accordance

with the number of  days worked; and (ii) for working out the possibility of regularizing

the services of these casual workers against vacant Group ‘D’ posts then existing or as

may be created in the near future.

The Tribunal directed that in the meanwhile the workers shall be accommodated

in batches of twenty in accordance with the exigencies of work in the Institute.  The

directions contained in the judgment of the Tribunal are extracted below:

“6...The  possible  solution,  therefore,  would  be  that  the respondents carry out an exercise of preparing a seniority list in the descending order of the number of days these casual labourers worked as on 01.04.2005 (irrespective of whether the casual labourers were on duty on this day) and on the basis of their seniority, they shall work out the possibility of regularizing the services of such casual labourers against any vacant post of Group D post or any new post created in the near future.  In so far as day to day work is concerned, the respondents shall  accommodate the first  20 and in case of their  unavailability  for  any  span  of  time,  according  to  the seniority  they  may engage other  casual  labourers  on need basis.  Those who are tailenders, may be suitably informed of their bleak prospects of being engaged in view of the fact that there are adequate number of casual labourers to be engaged for day to day work who are senior to such persons. Out of the seniors as on date, if any of them are not being engaged, the respondents shall accommodate them as well.”

2 OA No 1191 of 2004

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The judgment of the Tribunal was assailed before and considered by a Division

Bench of the Allahabad High Court in writ proceedings3 initiated by the Comptroller and

Auditor  General  of  India.  The  High  Court  by  its  judgment  dated  23  March  2006

observed that “it was not in dispute” that there was no positive direction as such for

regularization of the service of the casual workmen and that there was only a direction

for considering the possibility of regularization.  Hence, while disposing of the petition,

the High Court observed thus:

“It is not disputed by … learned counsel for the respondents that  the  Tribunal  had  not  issued  any  positive  direction  for regularization  of  service  of  such  casual  labourers  but  had merely  observed  that  the  petitioners  should  consider  the possibility  of  regularizing  the  services  against  any  vacant group ‘D’ post or any new post that was likely to be created in near  future.  In  this  view  of  the  matter,  the  contention advanced  by  Sri  Amit  Sthalekar,  learned  counsel  for  the petitioners that a positive direction for regularization could not have been issued by the Tribunal, is misconceived. We are also of the considered opinion that the direction by the Tribunal to accommodate the first  20 casual labourers from the  list  prepared  on  the  basis  of  the  seniority  is  also  in consonance with the provisions of Rule 77 of the Industrial Dispute  (Central)  Rules,  1957  and  as  such  it  calls  for  no interference from this Court.”

After the judgment of the High Court, the casual workmen moved the Tribunal in

another Original Application in 20084. The specific grievance with which the application

was  moved  was  that  despite  the  specific  directions  contained  in  the  order  of  the

Tribunal to observe seniority, persons who had been regularized and given permanent

status  were  below the  applicants  in  the  order  of  seniority.  Specific  examples  were

furnished of the manner in which the seniority list was breached.

3 Civil Miscellaneous Writ Petition No 15825 of 2006 4 OA No 1052 of 2008

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The  Union  of  India  responded  to  the  averments  contained  in  the  Original

Application and sought to contend that it had engaged such of the casual workers who

had reported for work.

The Tribunal  by its decision dated 2 April,  2013 held that  in pursuance of its

earlier order, which was confirmed by the Allahabad High Court, the Union of India was

obliged to prepare a seniority list based on the number of days worked and to consider

the  possibility  of  regularization  against  existing  or  future  vacancies.   The  Tribunal

observed that despite its earlier directions, the authorities at the Institute had proceeded

to regularize persons junior to them and with a lesser length of service.

In  the  meantime,  in  2011,  new recruitment  rules  titled  “the  Indian  Audit  and

Accounts Department Multi- Tasking Staff Recruitment Rules, 2011”5 came into force in

pursuance of which advertisements were issued for filling up several posts of Multi-

Tasking Staff.

The Tribunal observed that though the applicants before it had admittedly worked

for a longer period of time than the private respondents (Respondents 6 to 9) who had

been regularized, the benefit of regularization had not been granted to seniors in the

seniority list.  The Tribunal has rejected the defence that those who are not regularized,

though senior, had not reported for work. In this view of the matter, the Tribunal noted

that the Union of India had committed a breach of its assurance furnished in the course

of earlier contempt proceedings that those who would report for duty would be accepted

on work. Moreover, while failing to regularize persons who had put in more than 12

years of service as casual workers, the benefit of regularization had been granted to

juniors despite the earlier orders which had attained finality.  The Tribunal accordingly

5 ‘Multi-Tasking Rules’

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issued the following directions:

“21.  In view of the above discussion,  it  is  directed that  the respondents shall accord the same benefit of regularisation to the  applicants  as  has  been  admittedly  accorded  to  their juniors  Respondent  Nos.  6  to  9.  While  according  the  said benefit  to  the applicants,  the respondents  would follow the order of seniority in the seniority list admittedly prepared in pursuance to  the orders  of  this  Tribunal  in  OA No.1191 of 2004 as upheld by the Hon’ble Allahabad High Court in Civil Misc. W.P. No.15825/06. The said benefit shall be accorded to the applicants from the same date as that of their  admitted juniors.  The  said  regularisation  would  be  accorded  in  the available vacancies in various categories like unreserved, SC, ST and OBC by maintaining the category of  the respective applicants  and  subject  to  availability  of  vacancies  in  the respective  categories.  However,  the  applicants  will  not  be entitled  to  any  back  wages  for  the  period  they  have  not actually worked but they will be entitled to notional fixation of pay and allowances from the date of joining of their admitted juniors and on that basis actual pay and allowances from their actual date of joining. The applicants will also be entitled to all other consequential benefits.”

It was the above direction of the Tribunal which the Union of India questioned in

the proceedings before the High Court and which culminated in the impugned order.

The High Court has, while confirming the order of the Tribunal, held that in regularizing

the juniors of the private respondents against vacant Group ‘D’ posts, the appellants

have frustrated the orders passed by the Court in the earlier proceedings. Hence, it has

been directed that even if posts in the Institute are not available, the applicants who

claimed regularization could be considered in other places where Group ‘D’ posts are

available.

At  the outset,  Mr  Vikramjit  Banerjee,  learned Additional  Solicitor  General  has

urged that the Division Bench was not justified in issuing a direction for considering the

case for regularization in other places where Group ‘D’ posts are available.  The learned

ASG urges that no posts are available at the Institute for regularization.  The Multi-

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Tasking Rules have come into force in 2011 and at the highest, the workmen may be

allowed an age relaxation if any posts are freshly advertised.  

We find merit in the contention that the direction to consider the casual workers

for regularization in other establishments was not justified.  The issue essentially is

whether  regularization  in  the  establishment  of  the  Regional  Training  Institute  was

required to  be carried out,  consistent  with  the earlier  directions which had attained

finality.

We  must,  at  the  outset,  note  that  the  earlier  decision  of  the  Tribunal  was

rendered on 6 January, 2006 while the decision of the High Court was rendered on 23

March, 2006. The judgment of the Constitution Bench of this Court in Secretary, State

of Karnataka v. Uma Devi (3)6 was delivered on 10 April, 2006.

The submission  which  has been urged on behalf  of  the  respondents  by  Ms.

Preetika  Dwivedi  is  that  the applicability  of  Uma Devi has been considered in  two

decisions of this Court in  Malathi Das v.  Suresh7  and in  Prem Ram  v.  Managing

Director Uttarakhand Pey Jal and Nirman Nigam Dehradun8.

Learned counsel submitted that in pursuance of the judgment of this Court in

Uma Devi, the Union of India was required to adhere to a seniority list.  There was a

clear breach on the part of the Union of India in doing so inasmuch as juniors to those

who were senior in the seniority list were admittedly regularized. Ms Dwivedi has ably

assisted this Court in pursuing her client’s cause for justice.

6 (2006) 4 SCC 1 7 (2014) 13 SCC 249 8 (2015) 11 SCC 255

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From the record before this Court, it has emerged that as a matter of fact, four

persons were regularized after the judgment of the High Court in the earlier round of

proceedings.  The Tribunal has entered a finding of fact that the persons who were

regularized  were  junior  to  those  who  ranked  above  them in  the  seniority  list.  The

applicability of Uma Devi to a situation such as present, has been dealt with in several

judgments of  this  Court,  including the decisions in   Malathi  Das   and  Prem Ram,

referred to earlier.

In  Malathi Das,  this Court noted that, as a matter of fact, the authorities had

granted regularization to various other individuals who were similarly placed. Among

them  were  persons  who  were  regularized  even  after  the  decision  in  Uma  Devi.

Similarly, in  Prem Ram, this Court observed that persons who were appointed on a

date subsequent to the appellant were regularized. A distinction was sought to be made

in the case of the appellant on the specious plea that they were brought on to a work-

charge  establishment.   This  Court  observed  that  what  was  important  was  that  the

appellant had been appointed as early as in the year 1988 and, by the time the decision

in  Uma Devi was rendered, he had completed more than ten years of service.  The

Government had formulated Rules for regularization.  This Court noted that neither the

State Government nor the Jal Nigam had resented the idea of regularizing those who

had served for over a decade.  In this background, the Court came to the conclusion

that there was no impediment in directing regularization of the services of the appellant

and for the release of retiral dues on that basis.

In the present case, the original order passed by the Tribunal did not contain a

mandamus  for  regularization.   The  order  mandated  that  a  seniority  list  should  be

maintained by the Union of  India  and that  the possibility  of  regularizing the casual

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workmen at the Regional Training Institute should be considered against existing and

future vacancies in Group ‘D’ posts.  Acting on the basis of the decision of the Tribunal,

which was affirmed by the High Court,  the Union of India proceeded to formulate a

seniority list and, in fact, regularized at least four individuals. The judgment of the High

Court attained finality. Even before the decision in Uma Devi, as the Tribunal noted, the

workmen had put in over twelve years of service. The Tribunal, in our view, justifiably

held that the action of selecting juniors for regularization, by-passing in the process,

persons who had put in longer years of service was manifestly unfair and arbitrary.  This

direction of the Tribunal has been affirmed by the High Court in its impugned decision.

The arbitrariness in the conduct of the authorities at the Institute is writ large in the facts

of this case. Picking up individuals for regularization, while ignoring seniors shows that

a favoured few have been rewarded. This is arbitrary.  

Following the logic of  the two decisions of this Court  which have been noted

earlier, we are of the view that the decision in Uma Devi cannot be used as a charter to

discriminate between similarly placed employees, once the Union of India in fact takes

a decision to regularize the individuals borne on a seniority list. This decision, as we

have already noted earlier, was taken in pursuance of the judgment of the Tribunal and

of the High Court both of which were rendered before the decision in Uma Devi.   

   It is of relevance to consider the directions rendered by a Constitution Bench of

this Court in  Uma Devi. Justice P K Balasubramanyan, speaking for the Court, held

thus:  

“53…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

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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 directions issued in  Uma Devi  have been considered by subsequent benches of

this Court. In State of Karnataka v. M L Kesari9, a two-judge bench of this Court held

that the “one-time measure” prescribed in Uma Devi must be considered as concluded

only when all  employees who were entitled for regularisation under Uma Devi,  had

been considered. Justice R V Raveendran, who wrote the opinion of the Court, held:  

“9. 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, regularise their services.

10. 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 regularisation 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  regularisation, 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/ad  hoc/casual

9 (2010) 9 SCC 247

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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.

11. 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  regularisation  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  basis  for  long  periods  and  then periodically  regularise  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 regularisation. The fact that the employer  has  not  undertaken  such  exercise  of regularisation  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 regularisation in terms of the above directions in Umadevi as a one-time measure.”

                                             (Emphasis supplied)

     The  judgement  of  this  Court  in  Uma  Devi does  not  preclude  the  claims  of

employees who seek regularization after the exercise has been undertaken with respect

to some employees, provided that the said employees have completed the years of

service as mandated by Uma Devi. The ruling casts an obligation on the State and its

instrumentalities to grant a fair opportunity of regularization to all such employees which

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are entitled according to the mandate under Uma Devi and ensure that the benefit is

not conferred on a limited few. The subsequent regularization of employees who have

completed the requisite period of service is to be considered as a continuation of the

one-time exercise.

  The decisions of this Court in Uma Devi  and ML Kesari  were considered by a

two-judge bench of this Court in Narendra Kumar Tiwari  v. State of Jharkhand10.

Justice Madan Lokur construed the decision in Uma Devi in the following terms:

“7. The purpose and intent of the decision in Umadevi was therefore  twofold,  namely,  to  prevent  irregular  or  illegal appointments in the future and secondly, to confer a benefit on those irregularly appointed in the past…”

  The Court noted in the above judgment that if a strict and literal interpretation

was given to the decision in  Uma Devi,  no employee from the State of  Jharkhand

appointed on an irregular basis could ever be regularized as the State was formed on

15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of

the Court was to grant similarly-placed employees who had put the requisite years of

service as mandated by  Uma Devi, the benefit of regularization. The Court thus held

that  the  Jharkhand  Sarkar  ke  Adhinasth  Aniyamit  Rup  se  Niyukt  Ewam  Karyarat

Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (“the Regularsation Rules”) must be

interpreted in a pragmatic manner and employees of the State who had completed 10

years of service on the date of promulgation of the rules, ought to be regularized. In

doing  so,  the  Court  ensured  that  employees  in  the  State  of  Jharkhand  who  had

completed the same years of  service as employees from other  States,  are granted

parity in terms of regularization. The spirit of non-discrimination and equity runs through

the decisions in Uma Devi, ML Kesari and Narendra Kumar Tiwari.  

10 (2018) 8 SCC 238

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In this background, the issue which now arises before this Court is in regard to

the  effective  direction  which  would  govern  the  present  case.  The  High  Court  has

directed the Union of India to absorb the casual workmen, if it is not possible at the

Institute in question, then in any other establishment.  The latter part of the direction, as

we have already noted, cannot be sustained.  Equally, in our opinion, the authorities

cannot  be  heard  to  throw  their  hands  in  despair  by  submitting  that  there  are  no

vacancies and that it had already regularized such of the persons in the seniority list,

who reported for work.  The Tribunal has entered a finding of fact that this defence is

clearly not borne out of the record.  Accordingly, we are of the view that having decided

to implement the decision of the Tribunal, which was affirmed by the High Court, the

Union of India must follow a rational principle and abide strictly by the seniority list in

proceeding to regularize the workmen concerned.  Accordingly, we direct that the case

for  regularization shall  be considered strictly  in  accordance with the seniority  list  in

pursuance of the directions which were issued by the Tribunal and confirmed by the

High Court and such of the persons, who are available for regularization on the basis of

vacancies existing at present, shall be considered in accordance with law.  The Tribunal

has denied back-wages but has ordered a notional  fixation of  pay and allowances.

While affirming that direction, we also direct that persons who have crossed the age of

superannuation will be entitled to the computation and payment of their retiral dues on

that basis. This exercise shall be carried out within a period of three months from the

receipt of a copy of the judgment. If it becomes necessary to grant age relaxation to the

concerned workmen, the appellants shall do so.

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The appeals stand disposed of in the above terms. There shall be no order as to

costs.

…….………….…………………...........................J.                                    (DR. DHANANJAYA Y. CHANDRACHUD)

…….…………………………...............................J.             (HEMANT GUPTA)

NEW DELHI JANUARY 08, 2019