REPORTABLE

 IN THE SUPREME COURT OF INDIA   

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7423-7429  OF 2018 (Arising out of S.L.P. (Civil) Nos. 19832-19838 OF 2017)

      Narendra Kumar Tiwari & Ors. Etc.                   ....Appellants

versus

      The State of Jharkhand & Ors. Etc.                   ....Respondents  

J U D G M E N T

Madan B. Lokur, J.

1. Leave granted.

2. These appeals arise out of the common judgment and order dated

17th November, 2016 passed by a Division Bench of the High Court of

Jharkhand in a batch of  writ  petitions relating to  the regularisation of

daily wage or contract workers on different posts.  The writ petitioners

(now appellants) were denied the benefit of regularisation in view of the

provisions of the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt

Ewam  Karyarat  Karmiyo  ki  Sewa  Niyamitikaran  Niyamawali,  2015

(hereinafter referred to as the Regularisation Rules).

3. The  admitted  position  is  that  the  appellants  are  irregularly

appointed  employees  of  the  State  Government.   They  sought

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regularisation of their status on the ground that they had put in more than

10 years of service and were therefore entitled to be regularised.  The

High Court took the view that the decision of the Constitution Bench of

this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and

Ors.1 did not permit their regularisation since they had not worked for 10

years on the cut-off date of 10th April, 2006 when the Constitution Bench

rendered its decision.  According to the High Court, the Regularisation

Rules provided a one-time measure of regularisation of the services of

irregularly appointed employees based on the cut-off date of 10th April,

2006 in terms of  the judgment of  the Constitution Bench.  Therefore,

since the appellants had not put in 10 years of service they could not be

regularised.

4. The appellants had contended before the High Court that the State

of Jharkhand was created only on 15th November, 2000 and therefore no

one could have completed 10 years of service with the State of Jharkhand

on the cut-off date of 10th April, 2006.  Therefore, no one could get the

benefit  of  the  Regularisation  Rules  which  made  the  entire  legislative

exercise totally meaningless.   The appellants had pointed out in the High

Court that the State had issued Resolutions on 18th July, 2009 and 19th

July, 2009 permitting the regularisation of some employees of the State,

who  had  obviously  not  put  in  10  years  of  service  with  the  State.

1(2006) 4 SCC 1   

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Consequently,  it  was  submitted  that  the  appellants  were  discriminated

against for no fault of theirs and in an irrational manner.

5. Having heard learned counsel for the parties and having considered

the decision of  the Constitution Bench in  Umadevi  (3) as  well  as  the

subsequent  decision of  this  Court  explaining  Umadevi (3)  in  State  of

Karnataka and Ors. v.  M.L. Kesari and Ors.2, we are of the view that

the High Court has erred in taking an impractical view of the directions in

Umadevi (3) as well as its consideration in Kesari.

6. The decision in Umadevi (3) was intended to put a full stop to the

somewhat pernicious practice of irregularly or illegally appointing daily

wage  workers  and  continuing  with  them  indefinitely.   In  fact,  in

paragraph  49  of  the  Report,  it  was  pointed  out  that  the  rule  of  law

requires appointments to be made in a constitutional manner and the State

cannot be permitted to perpetuate an irregularity in the matter of public

employment which would adversely affect those who could be employed

in terms of the constitutional scheme.  It is for this reason that the concept

of a one-time measure and a cut-off date was introduced in the hope and

expectation that the State would cease and desist from making irregular

or illegal appointments and instead make appointments on a regular basis.

7. The concept of a one-time measure was further explained in Kesari

in paragraphs 9, 10 and 11 of the Report which read as follows:

2 (2010) 9 SCC 247

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“9. The  term  “one-time  measure”  has  to  be  understood  in  its proper  perspective.  This  would  normally  mean  that  after  the decision in Umadevi (3), 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  (3),  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  (3),  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 (3) has expired. The  one-time  exercise  should  consider  all  daily-wage/ad hoc/casual  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 (3), but did not consider the cases of some employees who were entitled to the benefit  of  para  53  of Umadevi  (3),  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 (3), are so considered.

11. The object behind the said direction in para 53 of Umadevi (3) is twofold. 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 (3) 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

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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 (3)] 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  (3)  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 (3) as a one-time measure.”

8. The  purpose  and  intent  of  the  decision  in  Umadevi (3)  was

therefore two-fold, namely, to prevent irregular or illegal appointments in

the  future  and  secondly,  to  confer  a  benefit  on  those  who  had  been

irregularly appointed in  the past.  The fact  that  the State  of  Jharkhand

continued with the irregular appointments for almost a decade after the

decision in Umadevi (3) is a clear indication that it believes that it was all

right  to  continue  with  irregular  appointments,  and  whenever  required,

terminate  the  services  of  the  irregularly  appointed  employees  on  the

ground that they were irregularly appointed. This is nothing but a form of

exploitation  of  the  employees  by  not  giving  them  the  benefits  of

regularisation and by placing the sword of Damocles over their head. This

is precisely what Umadevi (3) and Kesari sought to avoid.

9. If  a  strict  and  literal  interpretation,  forgetting  the  spirit  of  the

decision of the Constitution Bench in  Umadevi  (3),  is to be taken into

consideration  then  no  irregularly  appointed  employee  of  the  State  of

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Jharkhand could ever be regularised since that State came into existence

only on 15th November, 2000 and the cut-off date was fixed as 10th April,

2006.  In  other  words,  in  this  manner  the  pernicious  practice  of

indefinitely  continuing  irregularly  appointed  employees  would  be

perpetuated contrary to the intent of the Constitution Bench.

10. The High Court as well as the State of Jharkhand ought to have

considered the entire issue in a contextual perspective and not only from

the point of view of the interest of the State, financial or otherwise – the

interest of the employees is also required to be kept in mind. What has

eventually been achieved by the State of Jharkhand is to short circuit the

process of regular appointments and instead make appointments on an

irregular basis. This is hardly good governance.

11. Under the circumstances, we are of the view that the Regularisation

Rules must be given a pragmatic interpretation and the appellants, if they

have completed 10 years of service on the date of promulgation of the

Regularisation  Rules,  ought  to  be  given  the  benefit  of  the  service

rendered by them. If they have completed 10 years of service they should

be regularised unless there is some valid objection to their regularisation

like misconduct etc.

12. The impugned judgment and order passed by the High Court is set

aside in view of our conclusions. The State should take a decision within

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four months from today on regularisation of the status of the appellants.   

13. The appeals are accordingly disposed of.

14. We  may  add  that  that  it  would  be  worthwhile  for  the  State  of

Jharkhand to henceforth consider making regular appointments only and

dropping the idea of making irregular appointments so as to short circuit

the process of regular appointments.

                                                         ………………………J.          (Madan B. Lokur)  

          New Delhi;                                                            .……………………..J.            August 01, 2018                       (Deepak Gupta)

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