Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2440    OF 2010 [Arising out of SLP© No.5938 of 2009]

Satya Prakash & Ors.                             …   Appellants

Versus

State of  Bihar & Ors.        … Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1. Leave granted.

2. Appellants who had worked on daily wages for over ten years  

have  approached  this  Court  claiming  benefit  of  paragraph  53  of  the  

Constitution  Bench  judgment  of  this  Court  in  Secretary,  State  of  

Karnataka  And Others v.  Umadevi  (3)  And Others (2006)  4  SCC 1.  

Some  doubts  were  there  with  regard  to  the  meaning  and  content  of  

paragraph  53  read  with  paragraphs  15,  16  and  paragraph  8  read  with  

paragraph 55 of the judgment in Umadevi’s case (supra) which has been  

subsequently explained by this Court in several judgments. Reference may  

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be  made  to  the  judgment  of  this  court  in  Punjab  Water  Supply  &  

Sewerage  Board  v. Ranjodh  Singh  And  Others  (2007)  2  SCC  491,  

State of Punjab  v.  Bahadur Singh And Others  (2008) 15 SCC 737,  C.  

Balachandran And Others v.  State of Kerala And Others (2009) 3 SCC  

179,  State of Karnataka And Others  v. G.V. Chandrashekar,  (2009) 4  

SCC 342,  etc.   Almost identical  situation arises for consideration in this  

case as well.

3. The appellants who had worked for more than 10 years on daily rated  

basis  in  the  Bihar  Intermediate  Education  Council  has  approached  the  

Patna High Court for regularization of their services and a learned Single  

Judge  of  the  Patna  High  Court  directed  the  Council  to  consider  their  

request for regularization treating them as a separate class after relaxing  

their  age.   Since  no  positive  direction  was  given  to  the  Council  for  

regularization of their services, an appeal was preferred before the Division  

Bench  of  the  Patna  High  Court.   The Division  Bench  held  that  merely  

because  they  had  worked  as  daily  waged  employees  with  the  Council  

would not confer any right for regularization as no public appointment was  

permissible  de  hors  the  recruitment  rules.   Letters  Patent  Appeal  was,  

therefore, dismissed  in limine.    Aggrieved by the same this appeal has  

been preferred with a petition for special leave to appeal.

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4. Mr.  Gaurav Agrawal,  learned counsel  appearing for  the appellants  

submitted that the appellants belong to the reserved community and that  

they  had  worked  on  daily  wage  basis  in  sanctioned  posts  from  

February/July, 1995 to February, 2005 and that too not on the strength of  

any order passed by the Court or Tribunal.  Learned counsel submitted that  

the appellants are entitled to get the benefit of the judgment in Umadevi’s  

Case(3) (supra).  Reference was made to paragraph 53 of the aforesaid  

judgment and submitted that this Court had directed the Union of India, the  

State Governments and their instrumentalities to take steps to regularize as  

a one-time measure, the services of irregularly appointed persons who had  

worked for ten years or more in duly sanctioned posts.  Learned counsel  

submitted that the same benefit be extended to persons who had worked  

on daily wage basis for  over 10 years.   

5. Learned counsel appearing for respondent Nos. 3 to 5 submitted that  

the Council had engaged the appellants only on daily wage basis and they  

were never appointed in any sanctioned posts and, therefore, they would  

not get the benefit of the directions contained in  Umadevi’s case (supra)  

which are applicable only to those qualified employees who were appointed  

irregularly in sanctioned posts.  Learned counsel submitted that the Council  

in the year 1995 had decided to fill up the posts of Assistant/Routine Clerk  

and  Peon  on  regular  basis  and  an  advertisement  to  that  effect  was  

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published on 25.2.1995.   Appellants and several other persons applied but  

no  panel  or  merit  list  was  prepared  by  the  Council.   Accordingly,  no  

appointments  were  effected.   Council,  though  took  a  decision  on  

16.12.1999 to complete the selection process including preparation of merit  

list by 15.01.2000, it did not materialize due to the creation of new State of  

Jharkhand  by  the  Bihar  Re-organisation  Act,  2000.   Further,  the  Bihar  

Education Council itself was dissolved by the Biihar Intermediate Education  

Council  (Repeal)  Act  of  2007  and  hence  there  was  no  question  of  

regularization  of  any  employee  in  the  Council.   The  functions  of  the  

erstwhile  Intermediate  Council  are  now  being  performed  by  the  Bihar  

School  Examination  Board  which  is  following  its  own recruitment  rules.  

Under such circumstances, it was stated that the directions sought for by  

the appellants for regularization of their services in the Council cannot be  

granted.  

6. We are of  the view that  the appellants  are not  entitled to  get  the  

benefit of regularization of their services since they were never appointed in  

any sanctioned posts.  Appellants were only engaged on daily wages in the  

Bihar  Intermediate  Education  Council.   In   Umadevi’s  case  (supra)  this  

Court  held  that  the  Courts  are  not  expected  to  issue  any  direction  for  

absorption/regularization  or  permanent  continuance  of  temporary,  

contractual, casual, daily-wage or ad hoc employees.  This Court held that  

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such  directions  issued  could  not  be  said  to  be  in  consistent  with  the  

constitutional scheme of public employment.  This Court held 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.   In view of the  

law laid down by this Court,  the directions sought  for  by the appellants  

cannot be granted.  

7. Paragraph  53  of  Umadevi’s Judgment,  deals  with  irregular  

appointments  (not  illegal  appointments).  Constitution  Bench  specifically  

referred to the judgment in S.V. Narayanappa vs. State of Mysore (1967)  

1 SCR 128,   B.N. Nanjudappa  vs.  T. Thimmiah (1972)1 SCC 409,  in  

paragraph 15 of Umadevi’s  judgment as well.

8. Let us refer to paragraphs 15 and 16 of  Umadevi’s judgment in this  

context.   Necessity  of  keeping  in  mind  the  distinction  between  

regularization and conferment of permanence in service jurisprudence has  

also been highlighted by this Court by referring to the following passages  

from R.N. Nanjundappa’s case, which reads as follows:-  

“ If the appointment itself is in infraction of the rules or if  it is in violation of the provisions  of  the Constitution illegality  cannot  be  regularized.   Ratification  or  regularization  is  possible of an act which is within the power and province of  

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the authority but there has been some non-compliance with  procedure or  manner  which does not  go to  the root  of  the  appointment. Regularization  cannot be said to be a mode of  recruitment.”

Further Constitution Bench referred to in  B.N. Nagarajan’s case  in  

para 16 of the judgment and stated as follows:-

“ We have, therefore, to  keep this distinction in mind and  proceed on the basis that only something that is irregular  for want of compliance with one of the elements in the  process of selection which does not go to the root of the  process,  can be  regularized and that  it   alone can be  regularized and granting permanence of employment is a  totally  different  concept  and  cannot  be  equated  with  regularization.”

Then,  in  Umadevi’s  case in  paragraph 53 the Court   is  stated as  

follows:-

“ 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 yeas or more but without  the  intervention of orders of the courts or of tribunals.  The  question  of  regularization  of  the  services  of  such  employees may have to be considered on merits in the  light  of  the  principles,  settled  by  this  Court  in  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  regularize 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 or  orders of  the courts or of tribunals and should further  

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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.”

9. Constitution  Bench  has,  therefore,  clearly  drawn  a  distinction  

between  temporary  employees,  daily-wagers  and  those  who  were  

appointed irregularly in the sense that there was non-compliance of some  

procedure  in  the  selection  process  which did  not  go to  the  root  of  the  

selection process. Appellants in our view will not fall in the category of the  

employees mentioned in paragraph 53 read with paras 15 and 16  of the  

Constitution Bench Judgment.

10. Above view is further reinforced when we read paragraphs 8 and 55  

in Umadevi’s case, wherein similar arguments were raised but rejected by  

the Constitution  Bench.  Paragraphs 8  of the Constitution Bench judgment  

refers  to  CA  No.3595-612  of  1999  filed  by  the  Commercial  Taxes  

Department.  Respondents therein were engaged on daily wages in some  

of the districts in the State of Karnataka and they claimed that they had  

worked  in  that  department  for  more  than  10  years,  hence,  claimed  

regularization. They approached the Tribunal without success.  They took  

up the matter before the High Court of Karnataka.  The Karnataka High  

Court  ordered that  they are entitled to wages  and allowances equal to  

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regular employees and also gave a direction to the State Government to  

consider their case for regularization within four months.   

11. Aggrieved  by  the  judgment  of  the  Karnataka  High  Court  the  

Commercial  Taxes  Department  approached  this  Court.   Allowing  the  

appeal  preferred  by the Commercial  Taxes Department,  this  Court  set  

aside the directions given by the High Court for regularization of services of  

those daily wage employees who had more than 10 years of service.  The  

Court held as follows:-  

“  We are,  therefore,  of  the  view that,   at  best,  the  Division  Bench  of  the  High  Court  should  have  directed   that  wages  equal to the salary that is being paid to regular employees be  paid  to these daily wage employees with effect from the date of  its judgment.  Hence, that part  of the direction of the Division  Bench  is  modified  and  it  is  directed  that  these  daily-wage  earners be paid wages equal to the salary at the lowest grade  of  employees  of  their  cadre  in  the  Commercial  Taxes  Department  in  Government  service,  from  the  date  of  the  judgment of the Division Bench of the High Court.  Since,  they  are only daily wage earners, there  would  be  no question of  other allowances being paid to them. In view of our conclusion,  that  the  Courts  are  not   expected  to  issue    directions   for  making  such persons  permanent  in service, we set aside that  part of the  direction of the High Court directing the Government  to consider their cases for regularization.  We also notice  that  the  High Court has not adverted to the aspect as to whether it  was regularization or it was giving permanency  that was being  directed by the High Court. In such a  situation,  the  direction in  that regard will stand deleted and  the appeals filed by the State  would  stand allowed to  that  extent.  If  sanctioned posts  are  vacant(they are said to be vacant) the State will take immediate  steps for filling those posts by a regular process of selection.  But when regular recruitment is undertaken, the respondents in  Civil  Appeal  No.  3595-612  and  those  in  Commercial  Tax  Departments  similarly  situated   will  be  allowed  to  compete,  

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waiving   the age restriction  imposed for  the  recruitment and  giving some weightage for their having been engaged for work  in the Department for a significant period of time.

12. In our view, the appellants herein would fall  under the category of  

persons mentioned in paragraphs 8 and 55 of  the judgment and not  in  

paragraph 53 of judgment of Umadevi’s.

13. Appellants in their reply affidavit filed on 14.10.2004 before the High  

Court  has specifically stated in paragraph 5 that they were only engaged  

as  Assistant  Routine  Clerks  and  Peons  on  daily  wages.   Further  in  

paragraph 20 of the affidavit it was stated that they were discharging their  

duties on daily wages basis since 1995 and had entertained a legitimate  

expectation for regularization of their services.  Appellants’ own case is that  

they  were  only  engaged  on  daily  wages  basis  and  never  appointed  in  

service either on a temporary basis or on ad-hoc basis.

14. Appellants stated that they had undergone a selection process held  

fourteen years back, following an advertisement published in the year 1995  

but the merit list was neither prepared nor published.  Selection process,  

though had undertaken by the Council  was not completed and now the  

Council is no more in existence.  However, if Board proposes to undertake  

any regular selection process to fill up the posts, the applications, if any,  

submitted  by  the  appellants  may  also  be  considered  after  giving  age  

relaxation.   In  Umadevi’s  case  in  paragraph  55  of  the  judgment,  the  

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Constitution  Bench  has  also  permitted  such  persons  to  participate  in  

selection process waiving the age relaxation and giving the weightage for  

having been engaged or worked in the department for a significant period  

of time.

15. The appeal, therefore, lacks merits and the same is disposed of as  

above.

……………………………J.     (R.V. Raveendran)

……………………………J.     (K.S. Radhakrishnan)

New Delhi; March 16, 2010.

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