Vinod Kumar And Ors vs Union Of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2024 (ARISING OUT OF SLP(C) Nos.22241-42 OF 2016)

VINOD KUMAR & ORS. ETC. …APPELLANT(S) VERSUS UNION OF INDIA & ORS. …RESPONDENT(S)

ORDER

VIKRAM NATH, J.

Leave granted.

2. These appeals arise out of the judgment dated

30.03.2016, passed by the High Court of

Judicature at Allahabad in Civil Misc. Writ

Petition No. 42688 of 2001 and Civil Misc. Writ

Petition No. 42692 of 2001, whereby the writ

petitions filed by the appellants challenging the Signature Not Verified Digitally signed by Neetu Khajuria Date: 2024.04.23 19:08:22 IST Reason: SLP(C) Nos.22241-42 OF 2016 Page 1 of 9 judgment of the Central Administrative Tribunal,

Allahabad Bench, dated 21.11.2001 were

dismissed. The Tribunal's judgment negated the

appellants' plea for regularization and absorption

into the posts of 'Accounts Clerk' against which

they were temporarily appointed. Despite being

appointed for what was termed a temporary or

scheme-based engagement, the appellants have

been continuously working in these positions

from 1992 till the present, spanning a period

exceeding 25 years.

3. Pursuant to a notification dated 21.02.1991, the

appellants were initially appointed to ex-cadre

posts of Accounts Clerks after a selection process

involving written tests and viva voce interviews.

After the rejection of their representation for

regularization to the Divisional Railway Manager

in 1999, the appellants approached the Central

SLP(C) Nos.22241-42 OF 2016 Page 2 of 9 Administrative Tribunal by way of Original

Applications. The Tribunal vide order dated

21.11.2001 dismissed the applications of the

appellants, concluding that their appointments

were temporary and for a specific scheme, thus

not entitling them to regularization or absorption

into permanent posts. Thereafter, the appellants

approached the High Court and the High Court

upheld the order of the Tribunal and dismissed

their Writ Petitions observing that the

appellants' employment under a temporary

scheme could not confer upon them the rights

akin to those held by permanent employees and

relied upon the judgement of this Court in

Secretary, State of Karnataka vs. Umadevi

reported in 2006 (4) SCC 1, which held that

temporary or casual employees do not have a

fundamental right to be absorbed into service. SLP(C) Nos.22241-42 OF 2016 Page 3 of 9

4. The appellants have approached this Court

arguing that the High Court erred in its judgment

by failing to recognize the substantive nature of

their duties, which align with regular

employment rather than the temporary or

scheme-based roles they were originally

appointed for. Furthermore, their promotion by a

regularly constituted Departmental Promotional

Committee, the selection process they

underwent, and the continuous nature of their

service for over a quarter of a century

underscored their argument for regularization

and that the High Court has incorrectly applied

the principles from the case of Uma Devi (supra)

to their situation.

5. Having heard the arguments of both the sides,

this Court believes that the essence of

employment and the rights thereof cannot be

SLP(C) Nos.22241-42 OF 2016 Page 4 of 9 merely determined by the initial terms of

appointment when the actual course of

employment has evolved significantly over time.

The continuous service of the appellants in the

capacities of regular employees, performing

duties indistinguishable from those in

permanent posts, and their selection through a

process that mirrors that of regular recruitment,

constitute a substantive departure from the

temporary and scheme-specific nature of their

initial engagement. Moreover, the appellants'

promotion process was conducted and overseen

by a Departmental Promotional Committee and

their sustained service for more than 25 years

without any indication of the temporary nature

of their roles being reaffirmed or the duration of

such temporary engagement being specified,

SLP(C) Nos.22241-42 OF 2016 Page 5 of 9 merits a reconsideration of their employment

status.

6. The application of the judgment in Uma Devi

(supra) by the High Court does not fit squarely

with the facts at hand, given the specific

circumstances under which the appellants were

employed and have continued their service. The

reliance on procedural formalities at the outset

cannot be used to perpetually deny substantive

rights that have accrued over a considerable

period through continuous service. Their

promotion was based on a specific notification for

vacancies and a subsequent circular, followed by

a selection process involving written tests and

interviews, which distinguishes their case from

the appointments through back door entry as

discussed in the case of Uma Devi (supra). SLP(C) Nos.22241-42 OF 2016 Page 6 of 9

7. The judgement in the case Uma Devi (supra) also

distinguished between “irregular” and “illegal”

appointments underscoring the importance of

considering certain appointments even if were

not made strictly in accordance with the

prescribed Rules and Procedure, cannot be said

to have been made illegally if they had followed

the procedures of regular appointments such as

conduct of written examinations or interviews as

in the present case. Paragraph 53 of the Uma

Devi (supra) case is reproduced hereunder:

“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 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :

(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] 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

SLP(C) Nos.22241-42 OF 2016 Page 7 of 9 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.”

8. In light of the reasons recorded above, this Court

finds merit in the appellants' arguments and

holds that their service conditions, as evolved

over time, warrant a reclassification from

temporary to regular status. The failure to

SLP(C) Nos.22241-42 OF 2016 Page 8 of 9 recognize the substantive nature of their roles

and their continuous service akin to permanent

employees runs counter to the principles of

equity, fairness, and the intent behind

employment regulations.

9. Accordingly, the appeals are allowed. The

judgment of the High Court is set aside, and the

appellants are entitled to be considered for

regularization in their respective posts. The

respondents are directed to complete the process

of regularization within 3 months from the date

of service of this judgment.

10. No order as to costs.

……………………………………J. (VIKRAM NATH)

……………………………………J. (K.V. VISWANATHAN) NEW DELHI JANUARY 30, 2024

SLP(C) Nos.22241-42 OF 2016 Page 9 of 9