REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1187 OF 2009 (Arising out of SLP(c) No.24124 of 2004)

STATE OF KARNATAKA & ORS. … APPELLANTS

VERSUS

SRI G.V. CHANDRASHEKAR … RESPONDENT

WITH  C.A. Nos.1190-1247/2009 @ SLP(C) No.24985-25042/2004 C.A. No.1265/2009 @ SLP(C) No.12223/2006 C.A. Nos.1266-1270/2009 @ SLP(C) Nos.15115-15119/2004 C.A. Nos1271-1274/2009 @ SLP(C) Nos.16273-16276/2004 C.A. Nos1275-1283/2009 @ SLP(C) Nos.17865-17873/2004 C.A. Nos1284-1291/2009 @ SLP(C) Nos. 16527-16534/2004 C.A. No1292/2009 @ SLP(C) No.11893/2006 C.A. No.1293/2009 @ SLP(C) No.11894/2006

J U D G M  E N T

S.B. Sinha, J.

1. Leave granted.

2. These appeals involving similar questions of law and facts were taken

up for hearing together and are being disposed of by this common judgment.

The short question which arises for consideration herein is as to whether the

respondents  herein  having  been  appointed  on  an  ad-hoc  basis  could  be

treated to have been regularized in their services.   

We may notice individual fact of the matters before us:-

Civil Appeal arising out of SLP(C) No.24124/2004

Respondent herein was appointed as a Typist on 5.9.1985 and worked

for  more  than  ten  years  without  break  in  service.   Under  these

circumstances, he sought direction from appellants herein to regularize his

services  with  all  consequential  benefits.   His  claim  was  denied  by  the

appellants.  Aggrieved by the same, respondent approached the Karnataka

Administrative Tribunal which by its order dated 22.9.2003 directed that the

question of regularization of the services of the respondent be examined by

the  appellants  with  reference  to  records  and  decision  thereon  be  taken

within 90 days thereafter.  Challenging the order of the tribunal, appellant-

State  approached  the  High  Court  which  by  its  order  dated  9.8.2004

dismissed the same and directed the appellant to consider the claim of the

respondent  in  terms  of  the  judgment  in  Premakala  Shetty  vs.  Common

Cadre Committee.

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Civil Appeals arising out of SLP(C) No.24985-25042/2006

Respondents  were  working  in  the  Forest  Department  for  over  ten

years  as  gate  watchman, driver,  wireless  operator  and computer  operator

and sought for regularization of their  services from the authorities of the

department with all consequential benefits.  Their claim was denied by the

appellants. Aggrieved by the same, respondents approached the Karnataka

Administrative Tribunal which by its order dated 24.9.2003 directed that the

question of regularization of the services of the respondent be examined by

the appellants with reference to records and decision thereof may be taken

within  90  days.   Challenging  the  order  of  the  Tribunal  appellant  State

approached the High Court which dismissed the writ petition by reason of

an order dated 21.7.04 and directed the appellant to consider the claim of

the respondents following the judgment in Premakala Shetty  vs.  Common

Cadre Committee.

Civil Appeal arising out of SLP(C) No.12223/2006

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Respondents were appointed as sweepers on 1.4.1980 and 29.4.1978

respectively  and  sought  for  regularization  of  their  services  with  all

consequential  benefits as  they had put  in more than ten years of service.

Their  claim  was  denied  by  the  appellants.  Aggrieved  by  the  same,

respondents approached the Karnataka Administrative Tribunal which by its

order  dated  10.1.2003  directed  that  regularization  of  the  respondents  be

made from the day they had completed 10 years of continuous service, as

against  the  posts  on  which  they  had  been  irregularly  recruited,  with  all

consequential  benefits.  Challenging  the  order  of  the  Tribunal,  appellant

State approached the High Court, by filing a writ petition which dismissed

the writ petition by reason of an order dated 5.1.2004 directing it to consider

the claim of the respondents following the judgment in State of Karnataka,

By Secretary Forest Department, Bagalore and Ors.  vs.  T.B. Manjunath

and Ors.  and Premakala Shetty  vs.  Common Cadre Committee.

Civil Appeals arising out of SLP(C) Nos.15115-15119/2004

Respondents herein have been working as Forest Watchers for more

than 10 years, having been inducted as daily wagers.  As their applications

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for  regularization  was  rejected  by  the  appellants,  they  approached  the

Karnataka  Administrative  Tribunal  which  by  its  order  dated  19.12.2002

directed  that  in  the  event  of  respondents  filing  fresh  application  with

supportive  evidence,  their  claim for  regularization  may be  taken  up  and

appropriate orders thereon may be passed within three months from the date

of representation.    Challenging the order of the Tribunal, appellant State

approached the High Court by filing a writ petition which rejected the writ

petition by reason of an order dated 28.1.04  and directing it to consider the

claim of the respondents following the judgment in State of Karnataka, By

Secretary Forest Department, Bangalore and Ors.  vs.  T.B. Manjunath and

Ors.  and Premakala Shetty  vs.  Common Cadre Committee.

Civil Appeals arising out of SLP(C) Nos.16273-16276/2004

Respondents  have  been  working  as  mazdoors  and  sought  for

regularization  of  their  services  having  completed  more  than  10  years  of

service.  As  their  applications  for  regularization  was  denied  by  the

appellants,  they approached the Karnataka Administrative Tribunal which

by its order dated 24.7.2003 directed that the claim of the respondents be

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examined and decided within 90 days from the date of receipt of the order

and in the event of having completed 10 years of service, on any subsequent

date, on any day prior to or after the date of filing of the application, the

appellants  shall  consider  the claim for  regularization.     Challenging  the

order of the Tribunal, appellant State approached the High Court, by way of

writ which was rejected by reason of order dated 28.1.2004 and directing it

to consider the claim of the respondents following the judgment in State of

Karnataka, By Secretary Forest Department, Bangalore and Ors.  vs.  T.B.

Manjunath and Ors.  and Premakala Shetty  vs.  Common Cadre Committee.

Civil Appeals arising out of SLP(C) Nos.17865-17873/2004

Respondents were appointed as forest watcher, literate Assistant and

Board  Driver  and  sought  for  regularization  of  their  services  with  all

consequential benefits. As their applications for regularization was denied

by the appellants, they approached the Karnataka Administrative Tribunal

which ordered on 11.11.2002 that the appellants shall consider the claim of

the  respondents  but  subject  to  verification  of  the  claim of  their  having

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completed ten years of continuous service be examined and decided within

90 days from the date of receipt of the order. Challenging the order of the

Tribunal,  appellant  State  approached  the  High  Court  by  way  of  a  writ

petition  which  was  rejected  by  reason  of  order  dated  12.1.2004  and

directing it to consider the claim of the respondents in terms of judgment in

State of Karnataka, By Secretary Forest Department, Bangalore and Ors.  vs.

T.B.  Manjunath  and  Ors.   and  Premakala  Shetty   vs.   Common  Cadre

Committee and directed to comply with the order within two months.

Civil Appeals arising out of SLP(C) Nos. 16527-16534/2004

Respondents  herein  were  appointed  as  first  division  assistant,

stenographer,  watchman  and  have  approached  the  KAT  for  their

regularization of their services. The Tribunal by way of order dated 23.9.03

allowed the application of the respondents herein and directed compliance

within 90 days from the date of receipt of the order. Challenging the order

of the Tribunal, appellant State approached the High Court by way of a writ

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petition  which  was  rejected  by  reason  of  order  dated  17.3.2004  and

directing it to consider the claim of the respondents.  

Civil Appeal arising out of SLP(C) No.11893/2006

Respondent’s husband was appointed a Driver on 30.5.1980 and he

died on 15.8.92. Respondent sought for regularization of his services with

all  consequential  benefits.   The  Tribunal  on  10.7.2003  relying  upon  the

decision on Bidu  vs.  State of Karnataka (ILR 2000 KAR 2405) directed to

pass appropriate orders within 90 days, including consideration of claim for

compassionate  appointment.    Challenging  the  order  of  the  Tribunal  the

appellants came up with a writ petition before the High Court which was

dismissed by reason of order dated 9.11.2004, placing reliance on State of

Karnataka vs. Karnataka Casual and Daily rated workers’ Union (ILR 2001

KAR 1178), Himachal Pradesh vs. Suresh Kumar [(AIR 1986 SC 1565] and

Randhir Singh, D.S. Nakara, Dharwad etc.

Civil Appeal arising out of SLP(C) No.11894/2006

Respondents herein were appointed as literate assistant,  hand-pump

helper,  typist  and  sought  for  regularization  of  services  with  all

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consequential benefits from their authorities.  The High Court dismissed the

writ petition filed by the State, which challenged the Tribunal’s order dated

09.06.2003  and  directed  the  appellant  to  consider  the  claim  of  the

respondents.  

3. Indisputably, a Constitution Bench of this Court in Secretary. State of

Karnataka & ors.     vs. Umadevi (3) & ors. [(2006) 4 SCC 1] having regard to

the provisions contained in Articles 14 and 16 of the Constitution of India

opined that any appointment made in contravention of any recruitment rules

framed in terms of the  proviso appended to Article 309 of the Constitution

of India would be wholly illegal and without jurisdiction, holding:

“26. With  respect,  why  should  the  State  be allowed to depart from the normal rule and indulge in  temporary  employment  in  permanent  posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent  transgression  of  the  rules  of  regular recruitment.  The  direction  to  make  permanent— the distinction between regularisation and making permanent,  was  not  emphasised  here—can  only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh [(1992) 4 SCC 118] is to some extent inconsistent  with  the  conclusion  in  para  45  (of

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SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to  the  constitutional  scheme  of  employment recognised  in  the  earlier  part  of  the  decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

33. It is not necessary to notice all the decisions of  this  Court  on  this  aspect.  By and  large  what emerges  is  that  regular  recruitment  should  be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the  same should  soon  be  followed  by a  regular recruitment and that appointments to non-available posts  should  not  be  taken  note  of  for regularisation.  The  cases  directing  regularisation have  mainly  proceeded  on  the  basis  that  having permitted the employee to work for some period, he should be absorbed, without really laying down any  law  to  that  effect,  after  discussing  the constitutional scheme for public employment.

43. 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, 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

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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. The High Courts acting under Article 226 of the  Constitution,  should  not  ordinarily  issue directions  for  absorption,  regularisation,  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 the 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  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.”

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While saying so, however, the Constitution Bench with a view to give

some  relief  to  those  employees  in  respect  of   whom  the  process  of

regularization had been completed and by way of one time measure, held as

under :-

“53. One aspect needs to be clarified. There may be cases  where  irregular  appointments  (not  illegal appointments)  as  explained  in  S.V.  Narayanappa, R.N. Nanjundappa and  B.N. Nagarajan 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 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 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 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.”

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4. The question which arises for consideration herein is as to whether

having regard to the aforementioned law as laid down by the Constitution

Bench the respondents herein are entitled to any relief or not.   

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

appellants  and  Mr.  Girish  Ananthamurthy,  learned  counsel  appearing  on

behalf of the respondents, on the other hand, relied upon two orders passed

by this Court;  one dated 17.11.2006 in Civil  Appeal No. 3956 of 2001 -

Madanbi  vs. Director of Horticulture & Ors., wherein all appeals have been

allowed following  Umadevi (supra),  whereas in order  dated 19.2.2007 in

Civil Appeal No.838 of 2007 - State of Karnataka & Anr.  vs.  S.K. Halappa

& Ors. another Division Bench of this Court directed as under::-

“We have perused the  order  passed by the  High Court  dated  29.3.2004  whereby  the  Division Bench has directed that Government will consider each case independently in accordance with law, within  ten  weeks  from today  for  regularization. Suffice  it  to  say  that  Respondent  No.1  (herein) was appointed on a daily wages and he continued for  quite  some time  and  thereafter  he  filed  writ petition  before  the  High Court  for  regularization on permanent basis with all consequential benefits. The High Court directed the State to consider the case of Respondent No.1 in accordance with law

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and  within  10  weeks.   Aggrieved  against  this order,  the  State  is  in  appeal  by  way  of  special leave petition.  We have heard learned counsel for the parties and perused the record.  In our view, the point involved in this appeal has been decided by this  Court  in  the  case  of  Secretary,  State  of Karnataka  and  Others  vs.   Uma  Devi(3)   and Others,  (2006) 4 SCC 1.  The regularization has now  been  held  to  be  bad  in  law.   But  certain observations  have  been  made  in  the  aforesaid judgment.  Therefore, in the fitness of things, we set aside the order of the High Court and remit the matter  back  to  the  High  Court  for  fresh consideration in light of the law laid down in Uma Devi’s case (supra)”

5. Our attention has also been drawn to the order dated 9.6.2003 passed

by the learned single judge of the High Court of Karnataka, Bangalore in

Writ Petition Nos. 10332-10342 of 2003 (S-Reg) by Mr. Anatha Murthy,

which reads as under:-

“1. The respondents are directed to consider the cases  of  the petitioners  who have  completed  ten years  of  continuous  service  for  regularization subject  to  the  petitioners  fulfilling  the  eligibility criteria  for  the  posts  to  which  they  seek regularization.

2. In the event of any of the petitioners being found  not  to  have  the  qualification  for regularization  to  the  post  in  which  they  are

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presently  working,  they  may  be  considered  for regularization  to  the  next  lower  post  for  which they have qualification or they should be given a reasonable  time  for  acquiring  the  qualification. The respondents  may not  dispense  their  services merely  on  the  ground  that  they  do  not  have necessary qualification.  

3. The  respondents  may  also  consider  the request of the petitioners for extension of regular pay  scales  applicable  to  regular  employees discharging the same functions, wherever such pay scales are not extended already.

4. The  respondents  are  given  three  months time  from  today  to  comply  with  the  direction given above.”

6. Interpretation of Para 53 in Umadevi’s case (supra) had come up for

consideration before this Court in a large number of decisions.   

In  Mineral  Exploration  Corpn.  Employees’  Union  vs.  Mineral

Exploration  Corpn.  Ltd.  [(2006)  6  SCC  310]  wherein  this  Court,  while

following  Umadevi  (3)  (supra),  invoked  para  53  of  the  said  decision  to

opine:

“39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in

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accordance  with  and  in  compliance  with  all  the directions  given  in  the  judgment  by  the Constitution Bench in Secy., State of Karnataka v. Umadevi  (3)  (supra)  and  in  particular,  paras  53 and 12  relied  on  by the  learned  Senior  Counsel appearing for the Union.  The Tribunal is directed to  dispose  of  the matter  afresh  within  9  months from the date of receipt of this judgment without being influenced by any of the observations made by us  in  this  judgment.   Both  the  parties  are  at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to  time  and  the  transfers  of  the  workmen  made from time to time, from place to place and other necessary and requisite details.  The above details shall  be  submitted  within  two  months  from  the date  of  the  receipt  of  this  judgment  before  the Tribunal.”

However, in National Fertilizers Ltd. & ors. vs.  Somvir Singh (2006)

5 SCC 493, this Court held:-

“23. The  contention  of  the  learned  counsel appearing  on  behalf  of  the  respondents  that  the appointments were irregular and not illegal, cannot be accepted for more than one reason.  They were appointed only on the basis of their applications. The Recruitment Rules were not followed.  Even the  Selection  Committee  had  not  been  properly constituted.  In view of the ban on employment, no recruitment  was  permissible  in  law.  The reservation  policy  adopted  by  the  appellant  had

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not been maintained.  Even cases of minorities had not been given due consideration.

xxx xxx xxx 25. Judged by the standards laid  down by this Court  in  the  aforementioned  decisions,  the appointments of the respondents are illegal.  They do not,  thus,  have any legal  right  to continue in service.

26. It  is  true  that  the  respondents  had  been working for a long time.  It may also be true that they had not been paid wages on a regular scale of pay.  But, they did not hold any post.  They were, therefore,  not  entitled  to  be  paid  salary  on  a regular scale of  pay.  Furthermore, only because the respondents  have  worked for  some time,  the same by itself would not be a ground for directing regularization  of  their  services  in  view  of  the decision of this Court in Umadevi(3)”

In State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575],

this Court held:-

“20. The  decision  to  implement  the  judgment was evidently subject to the decision of this Court. But,  the  Special  Leave  Petition  is  barred  by limitation.  The  question,  inter  alia,  which  arises for  consideration  before  us  is  as  to  whether  we should condone the delay or allow the respondent to continue to occupy the permanent post.

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21. The legal position somehow was uncertain before the  decision  rendered by the  Constitution Bench of  this  Court  in  Uma Devi  (3) (supra).  It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the  case  of  the  respondent.  Even  otherwise,  it would be unconstitutional being hit by Article 16 of the Constitution of India.”

In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & ors.,

[(2007) 2 SCC 491], this Court held:-

“19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their  claim   for  regularization,  which  it  was obligated  to  do.   It  proceeded  to  issue  the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as  noticed  hereinbefore,  even  a  policy  decision adopted in terms of Article 162 of the Constitution of  India  in  that  behalf  would  be  void.   Any departmental letter or executive instruction cannot prevail  over  statutory  rule  and  constitutional provisions.  Any appointment, thus, made without following the procedure would be ultravires.”

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In  Postmaster  General,  Kolkata  &  Others  vs.   Tutu  Das  (Dutta)

[(2007) 5 SCC 317], this Court held as under:-

“20. The statement of law contained in para 53 of Umadevi  (3)cannot  also be invoked in  this  case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them. 21. In Punjab Water Supply & Sewerage Board v. Ranjodh Singh referring to paras 15, 16 and 53 of Umadevi  (3)  this  Court:  (SCC pp. 500-01 paras 17-18)

“17.  A  combined  reading  of  the aforementioned  paragraphs  would  clearly indicate  that  what  the  Constitution  Bench had in mind in directing regularisation was in  relation  to  such  appointments,  which were irregular in nature and not illegal ones. 18.  Distinction  between  irregularity  and illegality is explicit. It has been so pointed out  in  National  Fertilizers  Ltd. v.  Somvir Singh in the following terms: (SCC pp. 500- 01, paras 23-25)

‘23.  The  contention  of  the  learned counsel  appearing  on  behalf  of  the respondents  that  the  appointments were irregular and not illegal, cannot be accepted for more than one reason. They  were  appointed  only  on  the basis  of  their  applications.  The Recruitment Rules were not followed. Even  the  Selection  Committee  had not been properly constituted. In view of  the  ban  on  employment,  no recruitment  was  permissible  in  law. The reservation policy adopted by the appellant  had  not  been  maintained.

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Even cases of minorities had not been given due consideration. 24.  The  Constitution  Bench  thought of  directing  regularisation  of  the services  only  of  those  employees whose appointments were irregular as explained in  State of  Mysore v.  S.V. Narayanappa,  R.N.  Nanjundappa v. T. Thimmiah and  B.N. Nagarajan v. State of Karnataka wherein this Court observed:  [Umadevi  (3)  case,  SCC p. 24, para 16]

“16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words ‘regular’ or ‘regularisation’ do not connote permanence  and  cannot  be construed  so  as  to  convey  an idea of the nature of tenure of appointments.  They  are  terms calculated  to  condone  any procedural  irregularities  and are  meant  to  cure  only  such defects  as  are  attributable  to methodology  followed  in making the appointments.”

25. Judged by the standards laid down by this  Court  in  the  aforementioned decisions,  the  appointments  of  the respondents  are illegal.  They do not, thus, have any legal right to continue in service.’ ” (See  also  State  of  M.P. v.  Yogesh Chandra Dubey and  State of M.P. v. Lalit Kumar Verma.)

20

The controversy, if any, in our opinion, has been given a quietus by a

three Judge Bench of this Court in Official Liquidator vs. Dayanand & ors.

[(2008) 10 SCC 1], holding:

“75. By virtue of Article 141 of the Constitution, the  judgment  of  the  Constitution  Bench  in Secretary, State of Karnataka v.  Uma Devi (3) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of  the  Constitution  Bench  judgment  has  been followed  by  different  two-Judges  Benches  for declining to entertain the claim of regularization of service  made  by  ad  hoc/temporary/  daily wage/casual employees or for reversing the orders of  the  High  Court  granting  relief  to  such employees – Indian Drugs and Pharamaceuticals Ltd. v. Workmen [(2007) 1 SCC 408], Gangadhar Pillai  v.  Siemens  Ltd. [(2007)  1  SCC  533], Kendriya  Vidyalaya  Sangathan  v.  L.V. Subramanyeswara [(2007) 5 SCC 326], Hindustan Aeronautics Ltd. v. Dan Bahadur Singh [(2007) 6 SCC  207].  However,  in  U.P.  SEB  v.  Pooran Chand  Pandey (2007)  11  SCC  92  on  which reliance  has  been  placed  by Shri  Gupta,  a  two- Judges  Bench  has  attempted  to  dilute  the Constitution  Bench  judgment  by  suggesting  that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi v. Union of India[(1978) 1 SCC 248].”

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The  Court  noticed  that  in  U.P.  SEB v.  Pooran  Chandra  Pandey

(supra), this Court held:

“18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of  India has held  that  reasonableness  and non-arbitrariness  is  part  of  Article  14  of  the Constitution. It follows that the Government must act  in  a  reasonable  and  non-arbitrary  manner otherwise Article 14 of the Constitution would be violated.  Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt,  Maneka Gandhi case does not specifically deal  with  the  question  of  regularisation  of government  employees,  but  the  principle  of reasonableness  in  executive  action  and  the  law which  it  has  laid  down,  in  our  opinion,  is  of general application.”

(Emphasis supplied)

However, the said observations were not called for.   

The  Bench  noticed  several  judgments/orders  of  different  Benches

taking a view contrary to  Uma Devi (3) (supra) to opine that those cases

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were illustrative of non-adherence to the rule of judicial discipline which is

sine qua non for sustaining the system.  It was opined:

“90. We  are  distressed  to  note  that  despite several  pronouncements  on  the  subject,  there  is substantial  increase  in  the  number  of  cases involving  violation  of  the  basics  of  judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger  Benches  by citing  minor  difference  in  the facts as the ground for doing so. Therefore, it has become  necessary  to  reiterate  that  disrespect  to constitutional ethos and breach of discipline have grave  impact  on  the  credibility  of  judicial institution  and  encourages  chance  litigation.  It must  be  remembered  that  predictability  and certainty  is  an  important  hallmark  of  judicial jurisprudence developed in this country in last six decades  and  increase  in  the  frequency  of conflicting  judgments  of  the  superior  judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.  

91. We may add that in our constitutional set up every  citizen  is  under  a  duty  to  abide  by  the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering  the  system  and  operating  various constituents of the State and who take oath to act in  accordance  with  the  Constitution  and  uphold

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the  same,  have  to  set  an  example  by  exhibiting total commitment to the Constitutional ideals. This principle  is  required to be observed with greater rigour by the members of judicial  fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient  functioning of the judicial system.  If  the  Courts  command  others  to  act  in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation  of  the constitutional  principle  by those who are required to lay down the law.

92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations  made  by  the  two-Judges  Bench  in U.P. State Electricity  Board v.  Pooran Chandra Pandey (supra)  should  be read as  obiter  and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they  should  be  relied  upon  or  made  basis  for bypassing  the  principles  laid  down  by  the Constitution Bench.”

We feel bound by the observations made therein.  Initial recruitment

of the respondents  being wholly illegal  and contrary to the constitutional

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scheme of this country, the impugned judgment of the High Court cannot be

upheld.  It is set aside accordingly.   

7. In  the  light  of  the  decision  in  Uma  Devi  (3) (supra)  and  the

interpretation given to Para 53 therein by this Court in the abovementioned

judgments,  the  appeals  are  allowed.   However,  in  the  facts  and

circumstances of the case, there shall be no order as to costs.

……………..…………J. [S.B. Sinha]

               .………………….……J.                                                                         [Cyriac Joseph]

NEW DELHI FEBRUARY 25, 2009

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