REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.   907-936              OF 2009 (Arising out of SLP (C) Nos. 22591-22620 of 2002)

RAGHAVENDRA RAO ETC.     … APPELLANTS

VERSUS

STATE OF KARNATAKA & ORS. ETC.   … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Appellants  are  before  us  aggrieved  by  and  dissatisfied  with  a

judgment and order dated 04.09.2002 passed by a Division Bench of the

High Court of Karnataka at Bangalore in WP Nos. 38797-38800/1998,

38803/1998,  38808/1998,  38810/1998,  38812-38816/1998,  38828-

38830/1998  & 38832/1998  and  judgment  and  order  dated  11.10.2002

passed  by the  said Court  in  RP Nos.  769-775/2002  and 776-782/2002

respectively  whereby  and  whereunder  the  writ  petitions  filed  by  the

respondents herein for quashing the order dated 26.03.1998 passed by the

Karnataka  Administrative  Tribunal  were  allowed  and  review  petitions

filed  by  the  appellants  herein  for  review of  the  order  dated  4.9.2002

passed by the said Court were rejected.  

3. Appellants were appointed as Patwaris/Village Accountants.  They

allegedly had been working for a long time in the Revenue Department.

Concededly,  they  were  appointed  by  the  Tahsildar/Assistant

Commissioner.  They prayed for regularization of their services.  As the

said prayer was not acceeded to, they filed Writ Applications before the

High Court  being  W.P.  Nos.  25695-696  of  1981  and  other  connected

matters seeking for direction upon the State of Karnataka to regularize

them in services in terms of the provisions of the Karnataka State Civil

Services  (Direct  Recruitment  to  Class-III  Posts)  (Special)  Rules,  1973

(for short, “the 1973 Rules”).   

4. Indisputably,  on  constitution  of  the  Karnataka  Administrative

Tribunal,  those  writ  petitions  were  transferred  to  the  Tribunal  and

renumbered as Application Nos. 2318-19/1986 and connected cases.  On

or  about  20.02.1987,  the  said  applications  were  dismissed  by  the

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Tribunal.  Special Leave Petitions filed thereagainst  in this Court were

also dismissed.   

5. Relying on or on the basis of the observations made by this Court

in SLP (C) Nos. 226-29 of 1988 and 5932-41 of 1987 that it would be

open for the appellants to represent before State of Karnataka or to avail

any other remedy available to them under law, inter alia, contending that

their  services  should  be  regularized  in  terms of  the  provisions  of  the

Karnataka  Civil  Services  (Special  Recruitment  of  Local  Candidates)

Rules, 1986 (for short, “the 1986 Rules”), which had come into force with

effect from 4.7.1986, the appellants requested the State to regularize their

services under the 1986 Rules.  The State rejected their prayer stating that

the  1986  Rules  were  not  applicable  to  their  cases  as  they  had  been

appointed by the Tahsildar/Assistant Commissioners whereas in terms of

the 1986 Rules, the appointing authority was the Deputy Commissioner.

6. Indisputably, relying on or on the basis of the observations made

by the  Karnataka  Administrative  Tribunal  in  Application  No.  5377  of

1986 that Patwaris do come within the purview of the definition of ‘local

candidates’ and therefore were entitled to be considered for regularization

in terms of the 1986 rules, appellants again approached the Tribunal by

filing  Application  No.  287  of  1997  and  connected  cases  praying  for

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regularization  under  the 1986 Rules.   The  Tribunal  by its  order  dated

26.3.1998 allowed the said applications, directing:

“(ii) Authorities are directed to regularize the services  of  the  applicants  who  have passed the SSLC Examinations before 5th July,  1983,  under  the  Karnataka  State Civil  Services  (Special  Recruitment  of Local  Candidates)  Rules,  1986  which came  into  force  on  4.7.1986  (wherein sub-rule  2  of  rule  3  envisages  the definition of Local Candidate) within six months  from the  date  of  receipt  of  the copy  of  this  order;  and  it  is  also  made clear  that  the  services  of  the  applicants who are in service not to be disturbed till the date of their regularization;

(iii) Benefit  of this order is not applicable to those  who  have  passed  the  prescribed SSLC  examination  on  or  after  5th July, 1983,  since  they  do  not  fulfill  the eligibility  criteria  under  the  Rules  in question,  for  purpose  of  appointment  as Village  Accountant  since  acquisition  of qualification  subsequently  does  not render them eligible.”

7. Writ Petitions preferred against the said order by the respondents

have  been  allowed  by  the  High  Court  by  reason  of  the  impugned

judgment. Review petitions preferred by the appellants have been rejected

by the High Court.  

8. Appellants are, thus, before us.

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9. Mr. S.B. Sanyal, learned Senior Counsel appearing on behalf of the

appellants would contend:-

i. Appellants having been appointed as local candidates within

the meaning of 1986 Rules, the earlier decision of this Court

would not operate as res judicata.

ii. This Court in the earlier round of litigation having proceeded

on the basis that they were appointed as hereditary candidate

and  not  as  directly  appointed  candidate,  the  impugned

judgment is not sustainable.  

iii. Rights having been conferred upon the appellants in terms of

the 1986 Rules, the High Court Committed a serious error in

passing the impugned judgment.   

10. Mr. Sanjay R. Hedge, learned counsel appearing on behalf of the

respondents, on the other hand, would urge:

i. Appellants’  case does not  come within  the purview of the

1986 Rules.  

ii. They having claimed themselves to be entitled to hold the

post of Patwaris/Village Accountant on hereditary basis are

now estopped and precluded from contending that they were

‘local  candidates’  within the  meaning of the  provisions  of

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1986  Rules  as  the  Deputy  Commissioner  and  not  the

Tahsildar was the Appointing Authority, thus, even the 1986

Rules were not applicable.  

iii. In view of the decision of this Court in  Secretary, State of

Karnataka & ors. vs.  Umadevi (3) & ors. [(2006) 4 SCC 1],

regularization of the employees is impermissible in law.  

11. Indisputably,  the  post  of  Patwari/Village  Accountant  could  be

filled up on hereditary basis.  Appellants indisputably claimed their right

to be appointed on those pots on that basis.  This Court in its judgment

and order dated 24.2.1994 rejected the said contention of the appellants,

stating:

“Sri Sridharan maintained that even before the later  Rules  came  into  force  the  right  under proviso  to  rule-10  of  the  earlier  rules  had accrued to the appellants – petitioners and that therefore  the  coming  into  force  of  the  later Rules did not take away such right.  Assuming for  the  sake  of  arguments  that  the  above contention of Sri Sridharan is well-founded, the appellants  –  petitioners  did  not  approach  this Court within a reasonable time after their claim under  the  proviso  to  rule-10  had  not  been conceded.  On account of such delay, the right of party respondents who have been appointed to  the  posts  of  Village  Accountants,  have intervened.  Hence, we do not see any ground to dissent from the decision of the learned Single Judge.  In the result, we dismiss these appeals without admitting it.”

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12. The purported leave to avail any other remedy was granted only to

the petitioners in SLP (C) Nos. 226-29 of  1988 and 5932-41 of 1987,

which is in the following terms:

“S.L.P.  (C)  Nos.  226-29/1988  and  5932- 41/1987

Mr.  Ranjit  Kumar,  learned  counsel  for  the petitioners states that his clients have not been paid  the  salary  for  the  period  for  which  they actually worked as Accountants.  It will be open to  the  petitioners  to  represent  before  State  of Karnataka to avail any other remedy available to them under  law.   Special  Leave  Petitions  are dismissed.”

It is,  therefore,  not  correct  to  contend that  in terms of  the leave

granted  by  this  Court  appellants  were  entitled  to  institute  a  separate

application relying on or on the basis of the provisions contained in the

1986  Rules  or  otherwise.   As  noticed  hereinbefore,  leave  had  been

granted to avail any other remedy available only to those petitioners who

had not been paid their salary for the period during which they worked as

Accountants.  

13. The claim of the appellants is, thus, barred under the principles of

res judicata/constructive res judicata, the earlier judgment having attained

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finality.  It is now a well settled principle of law that the principle of res

judicata applies also to the writ proceedings.  

This Court in State of Karnataka & ors. vs. P.M. Bhaskara Gowda

& ors.  [(2004) 1 SCC 106] relying on  Gazula Dasaratha Rama Rao  vs.

State of A.P.[AIR 1961 SC 564] held that any claim in a public service on

the basis of a hereditary claim is unconstitutional.   

14. Rule 2(b) of the 1986 Rules reads as under:

“2(b) “Local  Candidate” means  a  local candidate as defined in clause (27-A) of Rule 8 of the Karnataka Civil Services Rules;

Rule  8(27A)  of  the  Karnataka  Civil  Services  Rules  referred  to

therein reads as under:

“8(27-A)  Local  Candidate.-  A  “Local Candidate”  in  service  means  a  temporary Government servant not appointed regularly as per rules of recruitment to that service.”

15. As  indicated  hereinbefore,  appellants  claimed  their  right  to  be

appointed and/or consequential regularization in the services on the basis

of  the  hereditary right.   They had rightly  been held  to  be not  entitled

thereto.  Before us, an endeavour had been made to show that appellants

were  appointed  by  Tahsildar.   It  has,  however,  not  been  denied  or

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disputed that the Tahsildar had no jurisdiction to appoint in terms of the

Civil Services Rules.  They, thus, having been appointed by a person who

had no authority, the offers of appointment made in their favour must be

held to be nullities. Such illegal appointments cannot be brought within

the  purview  of  Rule  3(2)  of  the  1986  Rules.  In  terms  thereof  only

appointment not made in accordance with the Rules would attract Rule 3

(2). The same would not mean that any appointment made by any other

authority would also come within the purview thereof.

16. It  is  now a well-settled  principle  of  law that  merely because an

employee had continued under cover of an order of Court, he would not

be entitled to any right to be absorbed or made permanent in the service.

This Court in Uma Devi (3) (supra), held as under:

“Thus,  it  is  clear  that  adherence to the  rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the  core  of  our  Constitution,  a  Court  would certainly  be  disabled  from  passing  an  order upholding  a  violation  of  Article  14  or  in ordering the overlooking of the need to comply with  the  requirements  of  Article  14  read  with Article  16  of  the  Constitution.  Therefore, consistent  with  the  scheme  for  public employment, this Court while laying down the law,  has  necessarily  to  hold  that  unless  the appointment is in terms of the relevant rules and after  a  proper  competition  among  qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment,

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the appointment comes to an end at the end of the  contract,  if  it  were  an  engagement  or appointment on daily wages or casual basis, the same  would  come  to  an  end  when  it  is discontinued.  Similarly,  a  temporary employee could  not  claim to  be made permanent  on  the expiry of his term of appointment. It has also to be  clarified  that  merely  because  a  temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he  would  not  be  entitled  to  be  absorbed  in regular  service or  made permanent,  merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.  It  is  not  open  to  the  court  to  prevent regular recruitment at the instance of temporary employees  whose  period  of  employment  has come to an end or of ad hoc employees who by the  very  nature  of  their  appointment,  do  not acquire  any  right.  High  Courts  acting  under Article 226 of the Constitution of India, should not  ordinarily  issue  directions  for  absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms  of  the  constitutional  scheme.  Merely because,  an  employee  had  continued  under cover  of  an  order  of  Court,  which  we  have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the  service.  In  fact,  in  such  cases,  the  High Court  may  not  be  justified  in  issuing  interim directions,  since,  after  all,  if  ultimately  the employee  approaching  it  is  found  entitled  to relief,  it  may be  possible  for  it  to  mould  the relief  in  such  a  manner  that  ultimately  no prejudice  will  be  caused  to  him,  whereas  an interim  direction  to  continue  his  employment would  hold  up  the  regular  procedure  for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they

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do  not  interfere  unduly  with  the  economic arrangement  of  its  affairs  by  the  State  or  its instrumentalities  or  lend  themselves  the instruments  to  facilitate  the  bypassing  of  the constitutional and statutory mandates.”

Recently  in  Official  Liquidator  vs.  Dayanand  & ors. [(2008)  10

SCC 1], this Court has reiterated the same view.  

17. For the reasons aforementioned, there is no merit in the appeals.

They are dismissed accordingly.  We have been informed at the Bar that

the appellants pursuant to or in furtherance of interim orders passed by

the courts continued in service; and, thus, if any amount has been paid to

them, the same may not be recovered.  No costs.  

……………………………….J. [S.B. Sinha]

..…………………………..…J.     [Dr. Mukundakam Sharma]

New Delhi; FEBRUARY 12, 2009

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