IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7351    OF 2008 [Arising out of SLP (C) No.3498 of 2004]

C. Balachandran & Ors. … Appellants

Versus

State of Kerala & Ors. … 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  the

judgment and order dated 21st July 2003 passed by a Division Bench of the

High Court of Kerala at Ernakulam affirming an order dated 07th November

2002 passed by a learned Single Judge of the said Court dismissing the writ

petition  filed  by  them seeking  a  writ  of  or  in  the  nature  of  mandamus

directing  the  Kerala  Water  Authority  to  reinstate  and  regularise  them in

service purported to be in terms of a judgment and order of this Court in the

case of  Jacob M. Puthuparambil & Ors. etc. v.  Kerala Water Authority &

Ors. etc. (1991) 1 SCC 28.

3. Appellants were said to have been appointed by the Kerala Water and

Sewerage  Authority  (for  short,  ‘the  Authority’)  on  daily  wages  in

connection  with  carrying  out  of  some  projects.  Their  services  were

terminated in the year 1987.  A writ petition before the Kerala High Court

was filed.  The said writ petition was disposed of by an order dated 22nd

May 1987 directing :

“4. The  petitioner  shall  make  representations  before  the Kerala Water Authority detailing their claims within two weeks from  this  date.   Such  representations,  if  any,  shall  be considered  and  disposed  of  by  the  Authority  and  the Government after  giving the  petitioners  opportunity of being heard as expeditiously as possible, at any rate within a month from the date of receipt of the representation.  There shall be further direction to allow the petitioners to continue in service till such disposal of the representation.”

4. Indisputably, the question in regard to right of the employees of the

Authority for regularisation in service was considered by this Court in the

case of  Jacob (supra).   Upon taking into  consideration  the provisions  of

Section 69 of Kerala Water Supply and Sewerage Act, 1986 (for short, ‘the

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1986 Act’) and Rule 9(a)(i) of Kerala State and Subordinate Service Rules

(for short, ‘the Rules’), it was opined :

“…. Therefore, if we interpret Rule 9(a)(i) consistently with the spirit  and  philosophy  of  the  Constitution,  which  it  is permissible  to  do  without  doing violence  to  the  said  rule,  it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job, should  not  be  thrown  out  but  their  services  should  be regularised as far as possible.  Since workers belonging to this batch  have  worked  on  their  posts  for  reasonably long spells they are entitled to regularisation in service.”

5. Indisputably, the appellants were not parties in the said matter before

this  Court.   The judgment of this  Court  was rendered on 19th September

1990.  Appellants made representations to the Authority on or about 19th

November  1991  purporting  to  seek  compliance  of  the  judgment  of  this

Court in the case of Jacob (supra) in their favour.  Some of the employees

who are said to be similarly situated filed a writ petition.  Indisputably, the

said writ petition was allowed.  Certain observations were made therein.  An

intra-court  appeal  against  the  said  judgment  was  filed  by the  Authority.

Before the Division Bench of the said Court, an undertaking was allegedly

given  by the  appellant-Authority  that  the  said  writ  petitioners  would  be

appointed on regular basis considering their respective qualifications.  In the

light of the said undertaking, the writ appeal was disposed of directing the

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writ petitioners to file representations in terms thereof.  Pursuant thereto or

in  furtherance  of  the  said  directions,  seven  persons  were  appointed  in

‘regular posts as unskilled workers upon creation of supernumerary posts to

satisfy the judgment of the High Court’.   

6. Appellants had also filed a writ petition which was disposed of by an

order dated 14th July 1998 directing them to file representations, pursuant

whereto they filed representations on 14th December 1998.  However, their

representations were rejected by an order dated 16th December 1998 by the

Authority.

7. Appellants challenged the order of rejection of their representations

by filing a writ  petition which was disposed of  on 10th October 2001 by

directing :

“2. Therefore I dispose of the Original Petition directing the 1st respondent to afford another opportunity to the petitioners to present their case represented in Ext.P4.  Final orders shall be passed in accordance with law within a period of four months from the date of production of copy of this judgment.  Needless to say Ext.P7 will be subject in the said decision.”

8. Pursuant  to  the  aforementioned  direction  of  the  High  Court,

appellants filed another detailed representation on 08th December 2001.  By

an order dated  26th March 2002,  their  representation  was rejected by the

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Principal  Secretary  (Power),  In  charge  of  Irrigation  &  Water  Supply,

stating :

“The claims  of  the  petitioners  have  been  examined  in detail  with  reference  to  the  records  and  the  judgment  of Supreme Court.   The Supreme Court  Judgment  in  Jacob Vs. K.W.A. is applicable only to the employees of the Kerala Water Authority who were recruited through Employment Exchange as per  Rule  9(a)(i)  and who were  continuing  on the  date  of judgment i.e. 19.9.1990.  From the records it may be noted that the petitioners have not been issued any order of appointment on provisional basis and they were also not appointed through Employment Exchanges.  It may also be noted that they were not in service on 19.9.1990.  The petitioners were only engaged in daily wages for doing some particular works and they were disengaged  on  completion  of  that  work.   They  were  not appointed to any sanctioned posts,  they were not treated on par with CLR workers in the matter of payment of salary etc.  As per the decision of the Hon’ble High Court Division Bench the HR workers are not entitled for regularisation re-instatement in service.  Hon’ble High Court has upheld the above decision in its  judgment  in  O.P.  No.15989/94  filed  by  one Chandrasekharan Nair and 46 others on a similar request.  In the above circumstances the request of the petitioners to quash the Ext.P7 seems no consideration.”

9. Appellants thereafter filed another writ petition which was dismissed

by a learned Single Judge on 07th November 2002 holding :

“3. It  is  admitted  case  that  the  services  of  the  petitioners were  terminated  in  the  year  1987-88.   The  Supreme  Court pronounced the judgment in Jacob’s case on 19.9.1990.  Even assuming  that  the  petitioners  were  in  service  either  as  daily wage  workers  or  labourers  on  monthly  payment  basis  it  is disputable  that  they  were  not  in  service  on  19.9.1990.   The view taken by this Court, in giving effect to the judgment of the

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Supreme Court in Jacob’s is that regularisation of workers is possible only in those cases where the workers were in service on the  date  of  the  Supreme Court  Judgment,  i.e.,  19.9.1990. Since the petitioners were not in service on that date, the claim made by them that they are entitled to regularisation in view of Jacob’s  case cannot be sustained.   Though other  contentions also have been raised by the counsel for the petitioners, I do not think I should examine the merits of those contentions since in my view the petitioners are not  entitled to the benefit  of  the Judgment of the Supreme Court.  Unless the petitioners come within the purview of that judgment, which is the Magna carta of the workers of the Kerala Water Authority appointed prior to the  extension  of  the  provisions  of  the  Public  Service Commission  (Consultation)  Regulations  to  the  Kerala  Water Authority, any other contention will not be of any avail.  Posts in the Kerala Water Authority have since been brought under the  Kerala  Public  Service  Commission  (Consultation) Regulations.”

10. As indicated hereinbefore, an appeal preferred thereagainst has been

dismissed by the impugned order.

11. Dr.  K.P.K.  Pillay,  learned  counsel  appearing  on  behalf  of  the

appellants would submit that the learned Single Judge of the High Court

committed a serious error in passing the impugned judgment insofar as he

failed to take into consideration that in view of the fact that seven persons,

who were similarly situated were appointed, there was absolutely no reason

as to why the case of the appellants should not have been considered by the

Authority as also by the State Government having regard thereto.  Delay in

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filing the representation and/or writ petition by the appellants, if any, it was

urged,  should  be condoned by this  Court  in  exercise  of  its  power  under

Article 142 of the Constitution of India.   

Learned  counsel  would  furthermore  contend  that  out  of  the  four

categories  carved  out  by  this  Court  in  the  case  of  Jacob (supra),  the

appellants’  case  falls  in  category  (ii)  and/or  (iii)  and  thus  it  was  not

necessary for the appellants to be in service on the date of passing of the

said judgment.

12. Mr.  G.  Prakash,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would support the impugned judgment.

13. The Kerala Water and Waste Water Authority was constituted under

the Kerala Water and Waste Water Ordinance, 1984 which came into force

on 01st March 1984.  The said Ordinance was repealed and was replaced by

the 1986 Act.  The employees of the said Authority having regard to the

provisions  of  the  said Act  as  also  the  amendments  carried  out  thereafter

were divided into four distinct groups :

“(i) Those  who  were  in  the  employment  of  PHED before the constitution of the Authority and were transferred to the Authority;

(ii) Those  whom  the  Authority  employed  between April 1, 1984 and August 4, 1986;

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(iii) Those  who  were  appointed  between  August 4,1986 and July 30, 1988; and  

(iv) Those who were appointed after July 30, 1988.”

14. In Jacob’s case (supra), the petitioners therein approached this Court

apprehending termination of their services.  They had been working in the

Authority as cleaners, pump operators, draftsmen, drivers etc. having been

appointed through the Employment Exchange between 1981 and 1988. It

was  contended  that  for  the  purpose  of  their  appointment  it  was  not

necessary to consult  Public Service Commission.  This Court  noticed the

provisions of the 1986 Act and the Rules framed thereunder to consider the

question of regularisation of the petitioners therein who were continuing in

service  wherefor  historical  as  also  constitutional  perspectives  were taken

into consideration.   In terms of Rule 9(a)(i)  of  the Rules,  the appointing

authority could appoint a person temporarily otherwise than in accordance

with the rule, if (i)  it  was necessary in public interest;  and (ii)  where an

emergency had arisen to fill  any particular  post  which has fallen vacant,

immediately.  Clause (iii)  of Rule 9 of the Rules,  however,  stated that  a

person appointed under clause (i) shall, as soon as possible, be replaced by a

member of the service or an approved candidate qualified to hold the post.

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Clause  (e)  of  Rule  9,  however,  provided  that  services  of  any  person

appointed under clause (i) of sub-rule (a) be regularised if he had completed

continuous service of two years as on December 22, 1973, notwithstanding

anything contained in the rules.   

15. On the aforementioned premise, this Court held :

“(2) The  services  of  workers  employed  by  the  Authority between April 1, 1984 and August 4, 1986 will be regularised with  immediate  effect  if  they  possess  the  requisite qualifications  for  the  post  prescribed  on  the  date  of appointment of the concerned worker.

(3) The services of workers appointed after August 4, 1984 and possessing the requisite qualifications should be regulated in accordance with Act 19 of 1970 provided they have put in continuous service of not less than one year, artificial breaks, if any,  to  be  ignored.   The Kerala  Public  Service  Commission will  take  immediate  steps  to  regularise  their  services  as  a separate  block.   In  so  doing  the  Kerala  Public  Service Commission will take the age bar as waived.”

16. The judgment rendered by this Court must be read in its entirety.  It

should  not  be  read  as  a  provision  of  a  Statute.   This  Court  took  into

consideration the constitutional scheme to opine that those who are in job

should  not  be  thrown  out.   The  aforementioned  observations,  therefore,

must be borne in mind while construing clauses (2) and (3) of the operative

part of the judgment of this Court.  Jacob (supra) did not and in fact had no

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occasion to take into consideration the cases of the daily wagers appointed

against a particular project and whose services had been terminated after the

project had come to an end.   

17. Appellants herein in their writ petition before the High Court as also

before us did not state as to how they had been appointed and for how many

days  or  months  they  had  worked.   They did  not  disclose  as  to  whether

before their appointment any selection process was resorted to or that they

were registered with the Employment Exchange.  There is nothing on record

to show that before their recruitment, the constitutional scheme of equality

as envisaged  under  Articles  14  and  16  of  the  Constitution  of  India  was

complied with.   

18. A Constitution Bench of this Court in the case of Secretary, State of

Karnataka & Ors. v. Umadevi (3) & Ors. (2006) 4 SCC 1 opined as under :

“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

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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. ….”

29. Dr. Pillay, however,  strongly relied upon the observations made in

para 53 in the case of Umadevi (supra) which reads as under :

“53. One aspect needs  to be clarified.   There may be cases where  regular  appointments  (not  illegal  appointments)  as explained  in  State  of  Mysore  v.  S.V.  Narayanappa (1967)  1 SCR 128, R.N. Nanjundappa v. T. Thimmiah (1972) 1 SCC 409 and  B.N. Nagarajan v.  State of Karnataka (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 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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20. A case of regularisation which thus attained finality and was not sub

judice would not come within the purview of exception to the rule contained

in  para  53  of  the said  judgment.   Appellants’  case,  thus,  does  not  come

within  the  purview thereof.   Only those  cases  where  regularisations  had

already  been  made  were  not  to  be  re-opened.   It  is  not  in  dispute  that

services of the appellants were terminated as far back as in 1987 and they

did not question the legality or validity of the said order.  It is only after the

decision  of  this  Court  in  Jacob’s case (supra)  representations  were filed.

Such representations were rejected both by Kerala Water Authority as also

the State of Kerala.   

21. Appellants,  in  our opinion,  thus,  neither  in law nor in equity were

entitled to be reinstated in service.  The decision of this Court in  Jacob’s

case (supra) being not applicable to the case of the appellants, we are bound

by the ratio laid down in the case of Umadevi (supra).  So far as paragraph

53 of the judgment of the Constitution Bench in the said case is concerned,

the same has been considered by this Court in a large number of decisions.

In the case of Punjab Water Supply & Sewerage Board vs. Ranjodh Singh &

Ors., [(2007) 2 SCC 491, it was held :

“15. The  question  came  up  for  consideration  before  a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 wherein it was held that no person

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who  was  temporarily  or  casually  been  employed  could  be directed to be continued permanently.  It was opined that by doing  so  it  would  be  creating  another  mode  of  public employment which is not permissible.”

[See  Mineral  Exploration  Corpn.  Employees’  Union  vs.  Mineral

Exploration Corpn. Ltd. [(2006) 6 SCC 310]; State of M.P. & Ors. vs. Lalit

Kumar Verma [(2007)  1  SCC 575];  and  Postmaster  General,  Kolkata  &

Others  vs.  Tutu Das (Dutta) [(2007) 5 SCC 317].

22. For the reasons aforementioned, there is no merit in this appeal and

the same is dismissed accordingly.  However, in the facts and circumstances

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

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi. December 17, 2008

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