State Of Karnataka & Ors vs M.L. Kesari & Ors

State of Karnataka & Ors. ... Appellants

Vs.

M L Kesari & Ors. ... Respondents

JUDGMENT

R.V.RAVEENDRAN, J.

Delay condoned. Leave granted.

2. Respondents 1 to 3 were appointed on daily wage basis by the Zila

Panchayat, Gadag, between 1985 and 1987. Their services were utilized as

Typist, Literate Assistant and Watchman respectively in the office of the

Executive Engineer, Zila Panchayat Engineering Sub-Division, Ron, Gadag

District. They were continued as daily wagers for more than 15 years 2

without the intervention of any court and without the protection of any

interim orders of any court or tribunal. In the year 2002 they filed Writ

Petitions (Nos.31687-31689/2002) seeking regularization. The said writ

petitions were allowed by a learned Single Judge of Karnataka High Court

by order dated 27.9.2002 with a direction to consider their representations in

accordance with the judgment dated 24.1.2001 in W.A. Nos.5697/2000 and

6677-7351/2000. The writ appeals filed by the appellants against the said

order were dismissed by a Division Bench by the impugned order dated

28.7.2004 holding that the respondents will be entitled to regularization,

depending upon the terms and conditions of appointment, availability of

existing substantive vacancies, eligibility, qualifications, continuity of

service, seniority and the prevailing rules. The Division Bench directed that

the case of each of the appellants shall be considered independently on its

own facts, within four months. The said judgment is challenged in this

appeal by special leave.

3. When the matter came up for hearing on 10.3.2006, the matter was

adjourned to await the decision of the Constitution Bench in CA Nos. 3595-

3612/1999 - State of Karnataka v. Umadevi. However, subsequently notice 3

was directed to be issued both on the application for condonation of delay

for 361 days' in filing the SLP as also on the special leave petition.

4. The decision in State of Karnataka v. Umadevi was rendered on

10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench

of this Court held that appointments made without following the due process

or the rules relating to appointment did not confer any right on the

appointees and courts cannot direct their absorption, regularization or re-

engagement nor make their service permanent, and the High Court in

exercise of jurisdiction under Article 226 of the Constitution should not

ordinarily issue directions for absorption, regularization, or permanent

continuance unless the recruitment had been done in a regular manner, in

terms of the constitutional scheme; and that the courts must be careful in

ensuring that they do not interfere unduly with the economic arrangement of

its affairs by the State or its instrumentalities, nor lend themselves to be

instruments to facilitate the bypassing of the constitutional and statutory

mandates. This Court further held that a temporary, contractual, casual or a

daily-wage employee does not have a legal right to be made permanent

unless he had been appointed in terms of the relevant rules or in adherence 4

of Articles 14 and 16 of the Constitution. This Court however made one

exception to the above position and the same is extracted below :

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."

5. It is evident from the above that there is an exception to the general

principles against `regularization' enunciated in Umadevi, if the following

conditions are fulfilled :

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

5 (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

Umadevi casts a duty upon the concerned Government or instrumentality, to

take steps to regularize the services of those irregularly appointed employees

who had served for more than ten years without the benefit or protection of

any interim orders of courts or tribunals, as a one-time measure. Umadevi,

directed that such one-time measure must be set in motion within six months

from the date of its decision (rendered on 10.4.2006).

6. The term `one-time measure' has to be understood in its proper

perspective. This would normally mean that after the decision in Umadevi,

each department or each instrumentality should undertake a one-time

exercise and prepare a list of all casual, daily-wage or ad hoc employees

who have been working for more than ten years without the intervention of

courts and tribunals and subject them to a process verification as to whether 6

they are working against vacant posts and possess the requisite qualification

for the post and if so, regularize their services.

7. At the end of six months from the date of decision in Umadevi, cases

of several daily-wage/ad-hoc/casual employees were still pending before

Courts. Consequently, several departments and instrumentalities did not

commence the one-time regularization process. On the other hand, some

Government departments or instrumentalities undertook the one-time

exercise excluding several employees from consideration either on the

ground that their cases were pending in courts or due to sheer oversight. In

such circumstances, the employees who were entitled to be considered in

terms of Para 53 of the decision in Umadevi, will not lose their right to be

considered for regularization, merely because the one-time exercise was

completed without considering their cases, or because the six month period

mentioned in para 53 of Umadevi has expired. The one-time exercise should

consider all daily-wage/adhoc/those employees who had put in 10 years of

continuous service as on 10.4.2006 without availing the protection of any

interim orders of courts or tribunals. If any employer had held the one-time

exercise in terms of para 53 of Umadevi, but did not consider the cases of

some employees who were entitled to the benefit of para 53 of Umadevi, the 7

employer concerned should consider their cases also, as a continuation of the

one-time exercise. The one time exercise will be concluded only when all

the employees who are entitled to be considered in terms of Para 53 of

Umadevi, are so considered.

8. The object behind the said direction in para 53 of Umadevi is two-

fold. First is to ensure that those who have put in more than ten years of

continuous service without the protection of any interim orders of courts or

tribunals, before the date of decision in Umadevi was rendered, are

considered for regularization in view of their long service. Second is to

ensure that the departments/instrumentalities do not perpetuate the practice

of employing persons on daily-wage/ad-hoc/casual for long periods and then

periodically regularize them on the ground that they have served for more

than ten years, thereby defeating the constitutional or statutory provisions

relating to recruitment and appointment. The true effect of the direction is

that all persons who have worked for more than ten years as on 10.4.2006

(the date of decision in Umadevi) without the protection of any interim order

of any court or tribunal, in vacant posts, possessing the requisite

qualification, are entitled to be considered for regularization. The fact that

the employer has not undertaken such exercise of regularization within six 8

months of the decision in Umadevi or that such exercise was undertaken

only in regard to a limited few, will not disentitle such employees, the right

to be considered for regularization in terms of the above directions in

Umadevi as a one-time measure.

9. These appeals have been pending for more than four years after the

decision in Umadevi. The Appellant (Zila Panchayat, Gadag) has not

considered the cases of respondents of regularization within six months of

the decision in Umadevi or thereafter.

10. The Division Bench of the High Court has directed that the cases of

respondents should be considered in accordance with law. The only further

direction that needs be given, in view of Umadevi, is that the Zila Panchayat,

Gadag should now undertake an exercise within six months, a general one-

time regularization exercise, to find out whether there are any daily

wage/casual/ad-hoc employees serving the Zila Panchayat and if so whether

such employees (including the respondents) fulfill the requirements

mentioned in para 53 of Umadevi. If they fulfill them, their services have to

be regularized. If such an exercise has already been undertaken by ignoring

or omitting the cases of respondents 1 to 3 because of the pendency of these 9

cases, then their cases shall have to be considered in continuation of the said

one time exercise within three months. It is needless to say that if the

respondents do not fulfill the requirements of Para 53 of Umadevi, their

services need not be regularised. If the employees who have completed ten

years service do not possess the educational qualifications prescribed for the

post, at the time of their appointment, they may be considered for

regularization in suitable lower posts. This appeal is disposed of

accordingly.

..............................J. (R V Raveendran)

New Delhi; .............................J. August 3, 2010. (H L Gokhale)