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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 292   OF 2009

[Arising out of SLP(C) No. 7803/2006]

BHARAT SANCHAR NIGAM LIMITED, JAMMU ... APPELLANT(S) :VERSUS:

TEJA SINGH ... RESPONDENT(S)

O R D E R

Leave granted.

The respondent was employed with the appellant company as a daily-rated

Mazdoor. He was recruited in the year 1973. He was appointed on regular basis with

effect from 11.8.1986. He attained the age of superannuation on 30th August, 1989.

Thereafter, again while working on daily-wages, his services were terminated in 1993.

He filed a representation for payment of gratuity as also other retiral benefits. He

having been denied the retiral benefits on the premise that he had not completed 10

years' qualifying service as required in terms of the Service Rules, he filed an original

application before the Central Administrative Tribunal.  

The said application was allowed inter alia on the premise that the appellant

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had  formulated  a  regularisation  scheme  in  the  year  1989  in  terms  whereof  the

respondent should have been given a permanent status. The High Court has upheld

the said view.

A Constitution Bench of this  Court in Secretary,  State of  Karnataka and

Ors. vs. Umadevi (3) and Ors. [2006 (4) SCC 1], has categorically held that keeping in

view the constitutional scheme of equality, as contained in Articles 14 and 16 of the

Constitution  of  India,  regularisation  or  permanent  continuance  of  temporary,

contractual, casual, daily-wage or ad hoc employees in public employment dehors the

constitutional scheme is impermissible in law.   

By  way  of  one  time concession  the  Constitution  Bench,  however,  held  as

under:    

“53.  One aspect  needs  to  be  clarified.  There  may be   cases  where

regular  appointments  (not  illegal  appoints)  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 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

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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.”   

We  may  notice  that  the  law  in  this  behalf  has  been  laid  down  by  the

Constitution Bench of this Court, stating:  

“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 and the end of the contract, if it were an

engagement or appointment on daily wags 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

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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 entitle 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.”         

In view of the said decision of the Constitution Bench, there cannot be any

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doubt whatsoever that the 1989 regularisation scheme having not been enforced in the

case of the respondent, it did not come within the purview of the exception carved out

by  the  Court  in  paragraph  53,  of  Umadevi  as  quoted  above.  The  view  of  the

Constitution Bench in Umadevi (supra) has been reiterated by a three-Judge Bench of

this Court in Official  Liquidator vs. Dayanand and Ors. [2008 (10) SCC 1], stating

that the High Courts shall give effect thereto, opining:

“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

the 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  the  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 roots 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

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administering  the  system and operating  various  constituents  of  the

State an who take oath to act in accordance with the Constitution and

uphold  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-Judge

Bench  in  U.P.  SEB  v.  Pooran  Chandra  Pandey (2007  11  SCC 92)

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.”       

For the reasons aforementioned, we are of the opinion that the view of the

learned Tribunal as also the High Court cannot be sustained. The impugned judgment

is, therefore, set aside and the appeal is allowed accordingly. No costs.

..........................J (S.B. SINHA)

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..........................J   (Dr. MUKUNDAKAM SHARMA)    NEW DELHI, JANUARY 16, 2009.