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CASE NO.: Appeal (civil)  3595-3612 of 1999

PETITIONER: Secretary, State of Karnataka and others

RESPONDENT: Umadevi and others

DATE OF JUDGMENT: 10/04/2006

BENCH: Y.K. SABHARWAL ARUN KUMAR G.P. MATHUR, C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

WITH CIVIL APPEAL NO.1861-2063/2001, 3849/2001,   3520-3524/2002 and CIVIL APPEAL NO. 1968 of 2006 arising out of SLP(C)9103-9105 OF 2001  

P.K. BALASUBRAMANYAN, J.

               Leave granted in SLP(C) Nos.9103-9105 of 2001

1.              Public employment in a sovereign socialist secular democratic  republic, has to be as set down by the Constitution and the laws made  thereunder.  Our constitutional scheme envisages employment by the  Government and its instrumentalities on the basis of a procedure established  in that behalf.  Equality of opportunity is the hallmark, and the Constitution  has provided also for affirmative action to ensure that unequals are not  treated equals.   Thus, any public employment has to be in terms of the  constitutional scheme.

2.              A sovereign government, considering the economic situation in  the country and the work to be got done, is not precluded from making  temporary appointments or engaging workers on daily wages.  Going by a  law newly enacted, The National Rural Employment Guarantee Act, 2005,  the object is to give employment to at least one member of a family for  hundred days in an year, on paying wages as fixed under that Act.   But, a  regular process of recruitment or appointment has to be resorted to, when  regular vacancies in posts, at a particular point of time, are to be filled up  and the filling up of those vacancies cannot be done in a haphazard manner  or based on patronage or other considerations.  Regular appointment must be  the rule.   

3.              But, sometimes this process is not adhered to and the  Constitutional scheme of public employment is by-passed.   The Union, the  States, their departments and instrumentalities have resorted to irregular  appointments, especially in the lower rungs of the service, without reference  to the duty to ensure a proper appointment procedure through the Public  Service Commission or otherwise as per the rules adopted and to permit  these irregular appointees or those appointed on contract or on daily wages,  to continue year after year,   thus, keeping out those who are qualified to  apply for the post concerned and depriving them of an opportunity to  compete for the post.   It has also led to persons who get employed, without  the following of a regular procedure or even through the backdoor or on  daily wages, approaching Courts, seeking directions to make them  permanent in their posts and to prevent regular recruitment to the concerned  posts.   Courts have not always kept the legal aspects in mind and have

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occasionally even stayed the regular process of employment being set in  motion and in some cases, even directed that these illegal, irregular or  improper entrants be absorbed into service.   A class of employment which  can only be called ’litigious employment’, has risen like a phoenix seriously  impairing the constitutional scheme.   Such orders are passed apparently in  exercise of the wide powers under Article 226 of the Constitution of India.    Whether the wide powers under Article 226 of the Constitution is intended  to be used for a purpose certain to defeat the concept of social justice and  equal opportunity for all, subject to affirmative action in the matter of public  employment as recognized by our Constitution, has to be seriously pondered  over.    It is time, that Courts desist from issuing orders preventing regular  selection or recruitment at the instance of such persons and from issuing  directions for continuance of those who have not secured regular  appointments as per procedure established.   The passing of orders for  continuance, tends to defeat the very Constitutional scheme of public  employment.   It has to be emphasized that this is not the role envisaged for  High Courts in the scheme of things and their wide powers under Article 226  of the Constitution of India are not intended to be used for the purpose of  perpetuating illegalities, irregularities or improprieties or for scuttling the  whole scheme of public employment.  Its role as the sentinel and as the  guardian of equal rights protection should not be forgotten.

4.              This Court has also on occasions issued directions which could  not be said to be consistent with the Constitutional scheme of public  employment.   Such directions are issued presumably on the basis of  equitable considerations or individualization of justice.   The question arises,  equity to whom?  Equity for the handful of people who have approached the  Court with a claim, or equity for the teeming millions of this country seeking  employment and seeking a fair opportunity for competing for employment?    When one side of the coin is considered, the other side of the coin, has also  to be considered and the way open to any court of law or justice, is to adhere  to the law as laid down by the Constitution and not to make directions,  which at times, even if do not run counter to the Constitutional scheme,  certainly tend to water down the Constitutional requirements.   It is this  conflict that is reflected in these cases referred to the Constitution Bench.

5.              The power of a State as an employer is more limited than that  of a private employer inasmuch as it is subjected to constitutional limitations   and cannot be exercised arbitrarily (See Basu’s Shorter Constitution of  India).   Article 309 of the Constitution gives the Government the power to  frame rules for the purpose of laying down the conditions of service and  recruitment of persons to be appointed to public services and posts in  connection with the affairs of the Union or any of the States.   That Article  contemplates the drawing up of a procedure and rules to regulate the  recruitment and regulate the service conditions of appointees appointed to  public posts.   It is well acknowledged that because of this, the entire process  of recruitment for services is controlled by detailed procedure which specify  the necessary qualifications, the mode of appointment etc.    If rules have  been made under Article 309 of the Constitution, then the Government can  make appointments only in accordance with the rules.    The State is meant  to be a model employer.   The Employment Exchanges (Compulsory  Notification of Vacancies) Act, 1959 was enacted to ensure equal  opportunity for employment seekers.  Though this Act may not oblige an  employer to employ only those persons who have been sponsored by  employment exchanges, it places an obligation on the employer to notify the  vacancies that may arise in the various departments and for filling up of  those vacancies, based on a procedure.  Normally, statutory rules are framed  under the authority of law governing employment.  It is recognized that no  government order, notification or circular can be substituted for the statutory  rules framed under the authority of law.   This is because, following any  other course could be disastrous inasmuch as it will deprive the security of  tenure and the right of equality conferred on civil servants under the  Constitutional scheme.   It may even amount to negating the accepted  service jurisprudence.   Therefore, when statutory rules are framed under  Article 309 of the Constitution which are exhaustive, the only fair means to

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adopt is to make appointments based on the rules so framed.

6.              These two sets of appeals reflect the cleavage of opinion in the  High Court of Karnataka based on the difference in approach in two sets of  decisions of this Court leading to a reference of these appeals to the  Constitution Bench for decision.   The conflict relates to the right, if any, of  employees appointed by the State or by its instrumentalities on a temporary  basis or on daily wages or casually, to approach the High Court for the issue  of a writ of mandamus directing that they be made permanent in appropriate  posts, the work of which they were otherwise doing.   The claim is  essentially based on the fact that they having continued in employment or  engaged in the work for a significant length of time, they are entitled to be  absorbed in the posts in which they had worked in the department concerned  or the authority concerned.   There are also more ambitious claims that even  if they were not working against a sanctioned post, even if they do not  possess the requisite qualification, even if they were not appointed in terms  of the procedure prescribed for appointment, and had only recently been  engaged, they are entitled to continue and should be directed to be absorbed.

7.              In Civil Appeal Nos.3595-3612 of 1999 the respondents therein  who were temporarily engaged on daily wages in the Commercial Taxes  Department in some of the districts of the State of Karnataka claim that they  worked in the department based on such engagement for more than 10 years  and hence they are entitled to be made permanent employees of the  department, entitled to all the benefits of regular employees.  They were  engaged for the first time in the years 1985-86 and in the teeth of orders not  to make such appointments issued on 3.7.1984. Though the Director of  Commercial Taxes recommended that they be absorbed, the Government did  not accede to that recommendation.  These respondents thereupon  approached the Administrative Tribunal in the year 1997 with their claim.    The Administrative Tribunal rejected their claim finding that they have not  made out a right either to get wages equal to that of others regularly  employed or for regularization.   Thus, the applications filed were dismissed.    The respondents approached the High Court of Karnataka challenging the  decision of the Administrative Tribunal.   It is seen that the High Court  without really coming to grips with the question falling for decision in the  light of the findings of the Administrative Tribunal and the decisions of this  Court, proceeded to order that they are entitled to wages equal to the salary  and allowances that are being paid to the regular employees of their cadre in  government service with effect from the dates from which they were  respectively appointed.  It may be noted that this gave retrospective effect to  the judgment of the High Court by more than 12 years.   The High Court  also issued a command to the State to consider their cases for regularization  within a period of four months from the date of receipt of that order.  The  High Court seems to have proceeded on the basis that, whether they were  appointed before 01.07.1984, a situation covered by the decision of this  Court in Dharwad District Public Works Department vs. State of  Karnataka (1990  (1) SCR 544)  and the scheme framed pursuant to the  direction thereunder,  or subsequently, since they have worked for a period  of 10 years, they were entitled to equal pay for equal work from the very  inception of their engagement on daily wages and were also entitled to be  considered for regularization in their posts.

8.              Civil Appeal Nos.1861-2063 of 2001 reflects the other side of  the coin.   The appellant association with indefinite number of members  approached the High Court with a writ petition under Article 226 of the  Constitution of India challenging the order of the government directing  cancellation of appointments of all casual workers/daily rated workers made  after 01.07.1984 and further seeking a direction for the regularization of all  the daily wagers engaged by the government of Karnataka and its local  bodies.   A learned Single Judge of the High Court disposed of  the writ

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petition by granting permission to the petitioners before him, to approach   their employers for absorption and regularization of their services and also  for payment of their salaries on par with the regular workers, by making  appropriate representations within the time fixed therein and directing the  employers to consider the cases of the claimants for absorption and  regularization in accordance with the observations made by the Supreme  Court in similar cases.   The State of Karnataka  filed appeals against the  decision of the learned Single Judge.   A Division Bench of the High Court  allowed the appeals.   It held that the daily wage employees, employed or  engaged either in government departments or other statutory bodies after  01.07.1984, were not entitled to the benefit of the scheme framed by this  Court in Dharwad District Public Works Department case, referred to  earlier.   The High Court considered various orders and directions issued by  the government interdicting such engagements or employment and the  manner of entry of the various employees.   Feeling aggrieved by the  dismissal of their claim, the members of the associations have filed these  appeals.

9.              When these matters came up before a Bench of two Judges, the  learned Judges referred the cases to a Bench of three Judges.  The order of  reference is reported in 2003 (9) SCALE 187.   This Court noticed that in the  matter of regularization of ad hoc employees, there were conflicting  decisions by three Judge Benches of this Court and by two Judge Benches  and hence the question required to be considered by a larger Bench.   When  the matters came up before a three Judge Bench, the Bench in turn felt that  the matter required consideration by a Constitution Bench in view of the  conflict and in the light of the arguments raised by the Additional Solicitor  General.  The order of reference is reported in 2003 (10) SCALE 388.    It  appears to be proper to quote that order of reference at this stage.  It reads:

1.      "Apart from the conflicting opinions  between the three Judges’ Bench decisions  in Ashwani Kumar and Ors. Vs. State of  Bihar and Ors., reported in 1997 (2) SCC  1, State of Haryana and Ors vs., Piara  Singh and Ors. Reported in 1992 (4) SCC  118 and Dharwad Distt. P.W.D. Literate  Daily Wage Employees Association and  Ors. Vs. State of Karnataka and Ors.  Reported in 1990 (2) SCC 396, on the one  hand and State of Himachal Pradesh vs.  Suresh Kumar Verma and Anr., reported  in AIR 1996 SC 1565, State of  Punjab vs.  Surinder Kumar and Ors. Reported in  AIR 1992 SC 1593, and  B.N. Nagarajan  and Ors. Vs. State of Karnataka and Ors.,  reported in 1979 (4) SCC 507 on the other,  which has been brought out in one of the  judgments under appeal of Karnataka High  Court in State of Karnataka vs. H. Ganesh  Rao, decided on 1.6.2000, reported in 2001  (4) Karnataka Law Journal 466, learned  Additional Solicitor General urged that the  scheme for regularization is repugnant to  Articles 16(4), 309, 320 and 335 of the  Constitution of India and, therefore, these  cases are required to be heard by a Bench of  Five learned Judges (Constitution Bench).

2.      On the other hand, Mr. M.C. Bhandare,  learned senior counsel, appearing for the  employees urged that such a scheme for  regularization is consistent with the  provision of Articles 14 and 21 of the  Constitution.

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3.      Mr. V. Lakshmi Narayan, learned counsel,  appearing in CC Nos.109-498 of 2003, has  filed the G.O. dated 19.7.2002 and  submitted that orders have already been  implemented.

4.      After having found that there is conflict of  opinion between three Judges Bench  decisions of this Court, we are of the view  that these cases are required to be heard by a   Bench of five learned Judges.

5.      Let these matters be placed before Hon’ble  the Chief Justice for appropriate orders."

               We are, therefore, called upon to resolve this issue here.   We  have to lay down the law. We have to approach the question as a  constitutional court should.

10.             In addition to the equality clause represented by Article 14 of  the Constitution, Article 16 has specifically provided for equality of  opportunity in matters of public employment.  Buttressing these fundamental  rights, Article 309 provides that subject to the provisions of the Constitution,  Acts of the legislature may regulate the recruitment and conditions of service  of persons appointed to public services and posts in connection with the  affairs of the Union or of a State.  In view of the interpretation placed on  Article 12 of the Constitution by this Court, obviously, these principles also  govern the instrumentalities that come within the purview of Article 12 of  the Constitution.  With a view to make the procedure for selection fair, the  Constitution by Article 315 has also created a Public Service Commission  for the Union and Public Service Commissions for the States.  Article 320  deals with the functions of Public Service Commissions and mandates  consultation with the Commission on all matters relating to methods of  recruitment to civil services and for civil posts and other related matters.  As  a part of the affirmative action recognized by Article 16 of the Constitution,  Article 335 provides for special consideration in the matter of claims of the  members of the scheduled castes and scheduled tribes for employment.  The  States have made Acts, Rules or Regulations for implementing the above  constitutional guarantees and any recruitment to the service in the State or in  the Union is governed by such Acts, Rules and Regulations.  The  Constitution does not envisage any employment outside this constitutional  scheme and without following the requirements set down therein.   

11.             In spite of this scheme, there may be occasions when the  sovereign State or its instrumentalities will have to employ persons, in posts  which are temporary, on daily wages, as additional hands or taking them in  without following the required procedure, to discharge the duties in respect  of the posts that are sanctioned and that are required to be filled in terms of  the relevant procedure established by the Constitution or for work in  temporary posts or projects that are not needed permanently.  This right of  the Union or of the State Government cannot but be recognized and there is  nothing in the Constitution which prohibits such engaging of persons  temporarily or on daily wages, to meet the needs of the situation.  But the  fact that such engagements are resorted to, cannot be used to defeat the very  scheme of public employment.  Nor can a court say that the Union or the  State Governments do not have the right to engage persons in various  capacities for a duration or until the work in a particular project is  completed.  Once this right of the Government is recognized and the  mandate of the constitutional requirement for public employment is  respected, there cannot be much difficulty in coming to the conclusion that it  is ordinarily not proper for courts whether acting under Article 226 of the  Constitution or under Article 32 of the Constitution, to direct absorption in

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permanent employment of those who have been engaged without following  a due process of selection as envisaged by the constitutional scheme.  

12.             What is sought to be pitted against this approach, is the so  called equity arising out of giving of temporary employment or engagement  on daily wages and the continuance of such persons in the engaged work for  a certain length of time.   Such considerations can have only a limited role to  play, when every qualified citizen has a right to apply for appointment, the  adoption of the concept of rule of law and the scheme of the Constitution for  appointment to posts.   It cannot also be forgotten that it is not the role of  courts to ignore, encourage or approve appointments made or engagements  given outside the constitutional scheme.   In effect, orders based on such  sentiments or approach would result in perpetuating illegalities and in the  jettisoning of the scheme of public employment adopted by us while  adopting the Constitution.   The approving of such acts also results in  depriving many of their opportunity to compete for public employment.  We  have, therefore, to consider the question objectively and based on the  constitutional and statutory provisions.  In this context, we have also to bear  in mind the exposition of law by a Constitution Bench in State of Punjab  Vs. Jagdip Singh & Ors. (1964 (4) SCR 964).  It was held therein, "In our  opinion, where a Government servant has no right to a post or to a particular  status, though an authority under the Government acting beyond its  competence had purported to give that person a status which it was not  entitled to give, he will not in law be deemed to have been validly appointed  to the post or given the particular status."

13.             During the course of the arguments, various orders of courts  either interim or final were brought to our notice.  The purport of those  orders more or less was the issue of directions for continuation or absorption  without referring to the legal position obtaining.  Learned counsel for the  State of Karnataka submitted that chaos has been created by such orders  without reference to legal principles and it is time that this Court settled the  law once for all so that in case the court finds that such orders should not be  made, the courts, especially, the High Courts would be precluded from  issuing such directions or passing such orders.  The submission of learned  counsel for the respondents based on the various orders passed by the High  Court or by the Government pursuant to the directions of Court also  highlights the need for settling the law by this Court.  The bypassing of the  constitutional scheme cannot be perpetuated by the passing of orders without  dealing with and deciding the validity of such orders on the touchstone of  constitutionality.  While approaching the questions falling for our decision,  it is necessary to bear this in mind and to bring about certainty in the matter  of public employment.   The argument on behalf of some of the respondents  is that this Court having once directed regularization in the Dharwad case  (supra), all those appointed temporarily at any point of time would be  entitled to be regularized since otherwise it would be discrimination between  those similarly situated and in that view, all appointments made on daily  wages, temporarily or contractually, must be directed to be regularized.  Acceptance of this argument would mean that appointments made otherwise  than by a regular process of selection would become the order of the day  completely jettisoning the constitutional scheme of appointment.  This  argument also highlights the need for this Court to formally lay down the  law on the question and ensure certainty in dealings relating to public  employment.  The very divergence in approach in this Court, the so-called  equitable approach made in some, as against those decisions which have  insisted on the rules being followed, also justifies a firm decision by this  Court one way or the other.  It is necessary to put an end to uncertainty and  clarify the legal position emerging from the constitutional scheme, leaving  the High Courts to follow necessarily, the law thus laid down.

14.             Even at the threshold, it is necessary to keep in mind the  distinction between regularization and conferment of permanence in service  jurisprudence.   In STATE OF MYSORE Vs. S.V. NARAYANAPPA  [1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to

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consider that regularization meant permanence.  In R.N. NANJUNDAPPA  Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an  argument that regularization would mean conferring the quality of  permanence on the appointment.  This Court stated:- "Counsel on behalf of the respondent contended  that regularization would mean conferring the quality of  permanence on the appointment, whereas counsel on  behalf of the State contended that regularization did not  mean permanence but that it was a case of regularization  of the rules under Article 309.  Both the contentions are  fallacious.  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 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.  To accede to such a proposition would be to  introduce a new head of appointment in defiance of rules  or it may have the effect of setting at naught the rules."

In  B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR  937], this court clearly held that the words "regular" or "regularization" 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.  This  court emphasized that when rules framed under Article 309 of the  Constitution of India are in force, no regularization is permissible in exercise  of the executive powers of the Government under Article 162 of the  Constitution in contravention of the rules.  These decisions and the  principles recognized therein have not been dissented to by this Court and on  principle, we see no reason not to accept the proposition as enunciated in the  above decisions.  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.

15.             We have already indicated the constitutional scheme of public  employment in this country, and the executive, or for that matter the Court,  in appropriate cases, would have only the right to regularize an appointment  made after following the due procedure, even though a non-fundamental  element of that process or procedure has not been followed.  This right of the  executive and that of the court, would not extend to the executive or the  court being in a position to direct that an appointment made in clear  violation of the constitutional scheme, and the statutory rules made in that  behalf, can be treated as permanent or can be directed to be treated as  permanent.

16.             Without keeping the above distinction in mind and without  discussion of the law on the question or the effect of the directions on the  constitutional scheme of appointment, this Court in Daily Rated Casual  Labour Vs. Union of India & Ors. (1988 (1) SCR 598) directed the  Government to frame a scheme for absorption of daily rated casual labourers  continuously working in the Posts and Telegraphs Department for more than  one year.  This Court seems to have been swayed by the idea that India is a  socialist republic and that implied the existence of certain important  obligations which the State had to discharge.  While it might be one thing to  say that the daily rated workers, doing the identical work, had to be paid the  wages that were being paid to those who are regularly appointed and are  doing the same work, it would be quite a different thing to say that a

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socialist republic and its Executive, is bound to give permanence to all those  who are employed as casual labourers or temporary hands and that too  without a process of selection or without following the mandate of the  Constitution and the laws made thereunder concerning public employment.   The same approach was made in Bhagwati Prasad Vs. Delhi State Mineral  Development Corporation (1989 Suppl. (2) SCR 513) where this Court  directed regularization of daily rated workers in phases and in accordance  with seniority.   

17.             One aspect arises.  Obviously, the State is also controlled by  economic considerations and financial implications of any public  employment.  The viability of the department or the instrumentality or of the  project is also of equal concern for the State.  The State works out the  scheme taking into consideration the financial implications and the  economic aspects.  Can the court impose on the State a financial burden of  this nature by insisting on regularization or permanence in employment,  when those employed temporarily are not needed permanently or regularly?   As an example, we can envisage a direction to give permanent employment  to all those who are being temporarily or casually employed in a public  sector undertaking.  The burden may become so heavy by such a direction  that the undertaking itself may collapse under its own weight.  It is not as if  this had not happened.  So, the court ought not to impose a financial burden  on the State by such directions, as such directions may turn counter- productive.   

18.             The Decision in Dharwad Distt. P.W.D. Literate Daily Wage  Employees Association & ors. Vs. State of Karnataka & Ors. (1990 (1)  SCR 544) dealt with a scheme framed by the State of Karnataka, though at  the instance of the court.  The scheme was essentially relating to the  application of the concept of equal pay for equal work but it also provided  for making permanent, or what it called regularization, without keeping the  distinction in mind, of employees who had been appointed ad hoc, casually,  temporarily or on daily wage basis.  In other words, employees who had  been appointed without following the procedure established by law for such  appointments.  This Court, at the threshold, stated that it should  individualize justice to suit a given situation.  With respect, it is not possible  to accept the statement, unqualified as it appears to be.  This Court is not  only the constitutional court, it is also the highest court in the country, the  final court of appeal.  By virtue of Article 141 of the Constitution of India,  what this Court lays down is the law of the land.  Its decisions are binding on  all the courts.  Its main role is to interpret the constitutional and other  statutory provisions bearing in mind the fundamental philosophy of the  Constitution.   We have given unto ourselves a system of governance by rule  of law.  The role of the Supreme Court is to render justice according to law.   As one jurist put it, the Supreme Court is expected to decide questions of  law for the country and not to decide individual cases without reference to  such principles of law.  Consistency is a virtue.  Passing orders not  consistent with its own decisions on law, is bound to send out confusing  signals and usher in judicial chaos.   Its role, therefore, is really to interpret  the law and decide cases coming before it, according to law.  Orders which  are inconsistent with the legal conclusions arrived at by the court in the self  same judgment not only create confusion but also tend to usher in  arbitrariness highlighting the statement, that equity tends to vary with the  Chancellor’s foot.

19.             In Dharwad case, this Court was actually dealing with the  question of ’equal pay for equal work’ and had directed the State of  Karnataka to frame a scheme in that behalf.   In paragraph 17 of the  judgment, this Court stated that the precedents obliged the State of  Karnataka to regularize the services of the casual or daily/monthly rated  employees and to make them the same payment as regular employees were  getting.  Actually, this Court took note of the argument of counsel for the  State that in reality and as a matter of statecraft, implementation of such a  direction was an economic impossibility and at best only a scheme could be

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framed.  Thus a scheme for absorption of casual/daily rated employees  appointed on or before 1.7.1984 was framed and accepted.  The economic  consequences of its direction were taken note of by this Court in the  following words.   "We are alive to the position that the scheme which we  have finalized is not the ideal one but as we have already  stated, it is the obligation of the court to individualize  justice to suit a given situation in a set of facts that are  placed before it.  Under the scheme of the Constitution,  the purse remains in the hands of the executive.  The  legislature of the State controls the Consolidated Fund  out of which the expenditure to be incurred, in giving  effect to the scheme, will have to be met.  The flow into  the Consolidated Fund depends upon the policy of  taxation depending perhaps on the capacity of the payer.   Therefore, unduly burdening the State for implementing  the constitutional obligation forthwith would create  problems which the State may not be able to stand.  We  have, therefore, made our directions with judicious  restraint with the hope and trust that both parties would  appreciate and understand the situation.  The  instrumentality of the State must realize that it is charged  with a big trust.  The money that flows into the  Consolidated Fund and constitutes the resources of the  State comes from the people and the welfare expenditure  that is meted out goes from the same Fund back to the  people.  May be that in every situation the same tax payer  is not the beneficiary.  That is an incident of taxation and  a necessary concomitant of living within a welfare  society."

With respect, it appears to us that the question whether the jettisoning of the  constitutional scheme of appointment can be approved, was not considered  or decided.  The distinction emphasized in R.N. NANJUNDAPPA Vs T.  THIMMIAH & ANR. (supra), was also not kept in mind.  The Court  appears to have been dealing with a scheme for ’equal pay for equal work’  and in the process, without an actual discussion of the question, had  approved a scheme put forward by the State, prepared obviously at the  direction of the Court, to order permanent absorption of such daily rated  workers.  With respect to the learned judges, the decision cannot be said to  lay down  any law, that all those engaged on daily wages, casually,  temporarily, or when no sanctioned post or vacancy existed and without  following the rules of selection, should be absorbed or made permanent  though not at a stretch, but gradually.  If that were the ratio, with respect, we  have to disagree with it.  

20.             We may now consider, State of Haryana Vs. Piara Singh and  Others [1992) 3 SCR 826].  There, the court was considering the  sustainability of certain directions issued by the High Court in the light of  various orders passed by the State for the absorption of its ad hoc or  temporary employees and daily wagers or casual labour.  This Court started  by saying: "Ordinarily speaking, the creation and abolition of a post  is the prerogative of the Executive.  It is the Executive  again that lays down the conditions of service subject, of  course, to a law made by the appropriate legislature.   This power to prescribe the conditions of service can be  exercised either by making rules under the proviso to  Article 309 of the Constitution or (in the absence of such  rules) by issued rules/instructions in exercise of its  executive power.  The court comes into the picture only  to ensure observance of fundamental rights, statutory  provisions, rules and other instructions, if any governing  the conditions of service"

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This Court then referred to some of the earlier decisions of this Court while  stating: "The main concern of the court in such matters is to  ensure the rule of law and to see that the Executive acts  fairly and gives a fair deal to its employees consistent  with the requirements of Articles 14 and 16.  It also  means that the State should not exploit its employees nor  should it seek to take advantage of the helplessness and  misery of either the unemployed persons or the  employees, as the case may be.  As is often said, the State  must be a model employer.  It is for this reason, it is held  that equal pay must be given for equal work, which is  indeed one of the directive principles of the Constitution.   it is for this very reason it is held that a person should not  be kept in a temporary or ad hoc status for long.  Where a  temporary or ad hoc appointment is continued for long  the court presumes that there is need and warrant for a  regular post and accordingly directs regularization.   While all the situations in which the court may act to  ensure fairness cannot be detailed here, it is sufficient to  indicate that the guiding principles are the ones stated  above."

This Court then concluded in paragraphs 45 to 50: "The normal rule, of course, is regular recruitment  through the prescribed agency but exigencies of  administration may sometimes call for an ad hoc or  temporary appointment to be made.  In such a situation,  effort should always be to replace such an ad  hoc/temporary employee by a regularly selected  employee as early as possible.  Such a temporary  employee may also compete along with others for such  regular selection/appointment.  If he gets selected, well  and good, but if he does not, he must give way to the  regularly selected candidate.  The appointment of the  regularly selected candidate cannot be withheld or kept in  abeyance for the sake of such an ad hoc/temporary  employee.

Secondly, an ad hoc or temporary employee should  not be replaced by another ad hoc or temporary  employee; he must be replaced only by a regularly  selected employee.  This is necessary to avoid arbitrary  action on the part of the appointing authority.

Thirdly, even where an ad hoc or temporary  employment is necessitated on account of the exigencies  of administration, he should ordinarily be drawn from the  employment exchange unless it cannot brook delay in  which case the pressing cause must be stated on the file.   If no candidate is available or is not sponsored by the  employment exchange, some appropriate method  consistent with the requirements of Article 16 should be  followed.  In other words, there must be a notice  published in the appropriate manner calling for  applications and all those who apply in response thereto  should be considered fairly.

An unqualified person ought to be appointed only  when qualified persons are not available through the  above processes.

If for any reason, an ad hoc or temporary employee  is continued for a fairly long spell, the authorities must  consider his case for regularization provided he is

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eligible and qualified according to the rules and his  service record is satisfactory and his appointment does  not run counter to the reservation policy of the State "

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 regularization and making permanent,  was not emphasized 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  paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the  conclusion in paragraph 45 therein.   With great respect, it appears to us that  the last of the directions clearly runs counter to the constitutional scheme of  employment recognized 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.  

21.             We shall now refer to the other decisions.  In State of Punjab  and others Vs. Surinder Kumar and others (1991 Suppl. (3) SCR 553),  a  three judge bench of this Court held that High Courts had no power, like the  power available to the Supreme Court under Article 142 of the Constitution  of India, and merely because the Supreme Court granted certain reliefs in  exercise of its power under Article 142 of the Constitution of India, similar  orders could not be issued by the High Courts.  The bench pointed out that a  decision is available as a precedent only if it decides a question of law. The  temporary employees would not be entitled to rely in a Writ Petition they  filed before the High Court upon an order of the Supreme Court which  directs a temporary employee to be regularized in his service without  assigning reasons and ask the High Court to pass an order of a similar  nature.  This Court noticed that the jurisdiction of the High Court while  dealing with a Writ Petition was circumscribed by  the   limitations  discussed and declared by judicial decisions and the High Court cannot    transgress the limits on the basis of the whims or subjective sense of justice  varying from judge to judge.  Though the High Court is entitled to exercise  its judicial discretion in deciding Writ Petitions or Civil Revision  Applications coming before it, the discretion had to be confined in declining  to entertain petitions and refusing to grant reliefs asked for by the petitioners  on adequate considerations and it did not permit the High Court to grant  relief on such a consideration alone.   This Court set aside the directions  given by the High Court for regularization of persons appointed temporarily  to the post of lecturers.  The Court also emphasized that specific terms on  which appointments were made should be normally enforced.  Of course,  this decision is more on the absence of power in the High Court to pass  orders against the constitutional scheme of appointment.   

22.             In  Director, Institute of Management Development, U.P.  Vs. Pushpa Srivastava (Smt.) (1992 (3) SCR 712), this Court held that  since the appointment was on purely contractual and ad hoc basis on  consolidated pay for a fixed period and terminable without notice, when the  appointment came to an end by efflux of time, the appointee had no right to  continue in the post and to claim regularization in service in the absence of  any rule providing for regularization after the period of service.  A limited  relief of directing that the appointee be permitted on sympathetic  consideration to be continued in service till the end of the concerned  calendar year was issued.  This Court noticed that when the appointment was  purely on ad hoc and contractual basis for a limited period, on the expiry of  the period, the right to remain in the post came to an end.   This Court stated  that the view they were taking was the only view possible and set aside the  judgment of the High Court which had given relief to the appointee.  

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23.             In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar  Mishra and Others [AIR 1994 SC 1638], a three judge bench of this Court  held that ad hoc appointees/temporary employees engaged on ad hoc basis  and paid on piece-rate basis for certain clerical work and discontinued on  completion of their task, were not entitled to reinstatement or regularization  of their services even if their working period ranged from one to two years.   This decision indicates that if the engagement was made in a particular work  or in connection with particular project, on completion of that work or of  that project, those who were temporarily engaged or employed in that work  or project could not claim any right to continue in service and the High  Court cannot direct that they be continued or absorbed elsewhere.  

24.             In State of Himachal Pradesh Vs. Suresh Kumar Verma   (1996 (1) SCR 972), a three Judge Bench of this Court held that a person  appointed on daily wage basis was not an appointee to a post according to  Rules.  On his termination, on the project employing him coming to an end,  the Court could not issue a direction to re-engage him in any other work or  appoint him against existing vacancies.  This Court said:  "It is settled law that having made rules of recruitment to  various services under the State or to a class of posts  under the State, the State is bound to follow the same and  to have the selection of the candidates made as per  recruitment rules and appointments shall be made  accordingly.  From the date of discharging the duties  attached to the post the incumbent becomes a member of  the services.  Appointment on daily wage basis is not an  appointment to a post according to the Rules."   

Their Lordships cautioned that if directions are given to re-engage such  persons in any other work or appoint them against existing vacancies, "the  judicial process would become another mode of recruitment dehors the  rules." 25.             In Ashwani Kumar and others Vs.  State of Bihar and  others (1996 Supp. (10) SCR 120), this Court was considering the validity  of confirmation of the irregularly employed.  It was stated: "So far as the question of confirmation of these  employees whose entry was illegal and void, is  concerned, it is to be noted that question of confirmation  or regularization of an irregularly appointed candidate  would arise if the candidate concerned is appointed in an  irregular manner or on ad hoc basis against an available  vacancy which is already sanctioned.  But if the initial  entry itself is unauthorized and is not against any  sanctioned vacancy, question of regularizing the  incumbent on such a non-existing vacancy would never  survive for consideration and even if such purported  regularization or confirmation is given it would be an  exercise in futility."

This Court further stated : "In this connection it is pertinent to note that  question of regularization in any service including any  government service may arise in two contingencies.   Firstly, if on any available clear vacancies which are of a  long duration appointments are made on ad hoc basis or  daily-wage basis by a competent authority and are  continued from time to time and if it is found that the  incumbents concerned have continued to be employed for  a long period of time with or without any artificial  breaks, and their services are otherwise required by the  institution which employs them, a time may come in the  service career of such employees who are continued on  ad hoc basis for a given substantial length of time to  regularize them so that the employees concerned can give  their best by being assured security of tenure.  But this

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would require one precondition that the initial entry of  such an employee must be made against an available  sanctioned vacancy by following the rules and  regulations governing such entry.  The second type of  situation in which the question of regularization may  arise would be when the initial entry of the employee  against an available vacancy is found to have suffered  from some flaw in the procedural exercise though the  person appointing is competent to effect such initial  recruitment and has otherwise followed due procedure  for such recruitment.  A need may then arise in the light  of the exigency of administrative requirement for  waiving such irregularity in the initial appointment by a  competent authority and the irregular initial appointment  may be regularized and security of tenure may be made  available to the incumbent concerned. But even in such a  case the initial entry must not be found to be totally  illegal or in blatant disregard of all the established rules  and regulations governing such recruitment."

The Court noticed that in that case all constitutional requirements were  thrown to the wind while making the appointments.  It was stated,  "On the contrary all efforts were made to bypass the  recruitment procedure known to law which resulted in  clear violation of Articles 14 and 16(1) of the   Constitution of India, both at the initial stage as well as at  the stage of confirmation of these illegal entrants.  The so  called regularizations and confirmations could not be  relied on as shields to cover up initial illegal and void  actions or to perpetuate the corrupt methods by which  these 6000 initial entrants were drafted in the scheme."

26.             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 an ad hoc appointment can 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 regularization.   The cases directing regularization 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.  

27.             In A. Umarani Vs. Registrar, Cooperative Societies and  Others (2004 (7) SCC 112), a three judge bench made a survey of the  authorities and held that when appointments were made in contravention of  mandatory provisions of the Act and statutory rules framed thereunder and  by ignoring essential qualifications, the appointments would be illegal and  cannot be regularized by the State.  The State could not invoke its power  under Article 162 of the Constitution to regularize such appointments. This  Court also held that regularization is not and cannot be a mode of  recruitment by any State within the meaning of Article 12 of the  Constitution of India or any body or authority governed by a statutory Act or  the Rules framed thereunder.  Regularization furthermore cannot give  permanence to an employee whose services are ad hoc in nature.  It was also  held that the fact that some persons had been working for a long time would  not mean that they had acquired a right for regularization.  

28.             Incidentally, the Bench also referred to the nature of the orders  to be passed in exercise of this Court’s jurisdiction under Article 142 of the  Constitution.  This Court stated that jurisdiction under Article 142 of the  Constitution could not be exercised on misplaced sympathy.  This Court  quoted with approval the observations of Farewell, L.J. in Latham vs.  Richard Johnson & Nephew Ltd. (1913 (1) KB 398)" "We must be very careful not to allow our  sympathy with the infant plaintiff to affect our judgment.  

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Sentiment is a dangerous will o’ the wisp to take as a  guide in the search for legal principles."

This Court also quoted with approval the observations of this Court in Teri  Oat Estates (P) Ltd. Vs. U.T., Chandigarh (2004 (2) SCC 130) to the  effect: "We have no doubt in our mind that sympathy or  sentiment by itself cannot be a ground for passing an  order in relation whereto the appellants miserably fail to  establish a legal right.  It is further trite that despite an  extraordinary constitutional jurisdiction contained in  Article 142 of the Constitution of India, this Court  ordinarily would not pass an order which would be in  contravention of a statutory provision."

This decision kept in mind the distinction between ’regularization’ and  ’permanency’ and laid down that regularization is not and cannot be the  mode of recruitment by any State.  It also held that regularization cannot  give permanence to an employee whose services are ad hoc in nature.   

29.             It is not necessary to multiply authorities on this aspect.  It is  only necessary to refer to one or two of the recent decisions in this context.    In State of U.P. vs. Niraj Awasthi and others  (2006 (1) SCC  667) this  Court after referring to a number of prior decisions held that there was no  power in the State under Art. 162 of the Constitution of India to make  appointments and even if there was any such power, no appointment could  be made in contravention of statutory rules.   This Court also held that past  alleged regularisation or appointment does not connote entitlement to further  regularization or appointment.   It was further held that the High Court has  no jurisdiction to frame a scheme by itself or direct the framing of a scheme  for regularization.   This view was reiterated in State of Karnataka vs.  KGSD Canteen Employees Welfare Association (JT 2006 (1) SC 84).

30.             In Union Public Service Commission Vs. Girish Jayanti Lal  Vaghela & Others [2006 (2) SCALE 115], this Court answered the  question, who was a Government servant and stated:-  

"Article 16 which finds place in Part III of the  Constitution relating to fundamental rights provides that  there shall be equality of opportunity for all citizens in  matters relating to employment or appointment to any  office under the State.  The main object of Article 16 is to  create a constitutional right to equality of opportunity and  employment in public offices.  The words "employment"  or "appointment" cover not merely the initial  appointment but also other attributes of service like  promotion and age of superannuation etc.  The  appointment to any post under the State can only be  made after a proper advertisement has been made  inviting applications from eligible candidates and holding  of selection by a body of experts or a specially  constituted committee whose members are fair and  impartial through a written examination or interview or  some other rational criteria for judging the inter se merit  of candidates who have applied in response to the  advertisement made.  A regular appointment to a post  under the State or Union cannot be made without issuing  advertisement in the prescribed manner which may in  some cases include inviting applications from the  employment exchange where eligible candidates get their  names registered.  Any regular appointment made on a  post under the State or Union without issuing  advertisement inviting applications from eligible  candidates and without holding a proper selection where

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all eligible candidates get a fair chance to compete would  violate the guarantee enshrined under Article 16 of the  Constitution (See B.S. Minhas Vs. Indian Statistical  Institute and others AIR 1984 SC 363)."

31.             There have been decisions which have taken the cue from the  Dharwad (supra) case and given directions for regularization, absorption or  making permanent, employees engaged or appointed without following the  due process or the rules for appointment.   The philosophy behind this  approach is seen set out in the recent decision in The Workmen of  Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The  Management of  Bhurkunda  Colliery  of M/s Central Coalfields Ltd.  (JT 2006 (2) SC 1), though the legality or validity of such an approach has  not been independently examined.  But on a survey of authorities, the  predominant view is seen to be that such appointments did not confer any  right on the appointees and that the Court cannot direct their absorption or  regularization or re-engagement or making them permanent.  

32.             At this stage, it is relevant to notice two aspects.  In  Kesavananda Bharati Vs. State of Kerala (1973 Supp. S.C.R. 1), this  Court held that Article 14, and Article 16, which was described as a facet of  Article 14, is part of the basic structure of the Constitution of India.  The  position emerging from Kesavananada Bharati (supra) was summed up by  Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney  Vs. Union of India (1999 Suppl. (5) S.C.R. 229).  That decision also  reiterated how neither the Parliament nor the Legislature could transgress the  basic feature of the Constitution, namely, the principle of equality enshrined  in Article 14 of which Article 16 (1) is a facet.  This Court stated, " The preamble to the Constitution of India  emphasises the principle of equality as basic to our  constitution. In Keshavananda Bharati v. State of Kerala,  it was ruled that even constitutional amendments which  offended the basic structure of the Constitution would be  ultra vires the basic structure. Sikri, CJ. laid stress on the  basic features enumerated in the preamble to the  Constitution and said that there were other basic features  too which could be gathered from the Constitutional  scheme (para 506 A of SCC). Equality was one of the  basic features referred to in the Preamble to our  Constitution. Shelat and Grover, JJ. also referred to the  basic rights referred to in the Preamble. They specifically  referred to equality (paras 520 and 535A of SCC). Hegde  & Shelat, JJ. also referred to the Preamble (paras 648,  652). Ray, J. (as he then was) also did so (para 886).  Jaganmohan Reddy, J. too referred to the Preamble and  the equality doctrine (para 1159). Khanna, J. accepted  this position (para 1471). Mathew, J. referred to equality  as a basic feature(para 1621). Dwivedi, J. (paras 1882,  1883) and Chandrachud, J.(as he then was) (see para  2086) accepted this position. What we mean to say is that Parliament and the  legislatures in this Country cannot transgress the basic  feature of the Constitution, namely, the principle of  equality enshrined in Article 14 of which Article 16(1) is  a facet."

33.             In the earlier decision in Indra Sawhney Vs. Union of India  [1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the  majority, while acknowledging that equality and equal opportunity is a basic  feature of our Constitution, has explained the exultant  position of Articles  14 and 16 of the Constitution of India in the scheme of things.  His Lordship  stated:-  

"6. The significance attached by the founding fathers to  the right to equality is evident not only from the fact that

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they employed both the expressions ’equality before the  law’ and ’equal protection of the laws’ in Article 14 but  proceeded further to state the same rule in positive and  affirmative terms in Articles 15 to  18\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

7. Inasmuch as public employment always gave a certain  status and power --- it has always been the repository of  State power ---besides the means of livelihood, special  care was taken to declare equality of opportunity in the  matter of public employment by Article 16. Clause (1),  expressly declares that in the matter of public  employment or appointment to any office under the state,  citizens of this country shall have equal opportunity  while clause (2) declares that no citizen shall be  discriminated in the said matter on the grounds only of  religion, race, caste, sex, descent, place of birth,  residence or any of them. At the same time, care was  taken to, declare in clause (4) that nothing in the said  Article shall prevent the state from making any provision  for reservation of appointments or posts in favour of any  backward class of citizen which in the opinion of the  state, is not adequately represented in the services under  the state\005\005\005\005\005\005.." (See paragraphs 6 and 7 at pages 544 and 545)

These binding decisions are clear imperatives that adherence to  Articles 14 and 16 of the Constitution is a must in the process of  public employment.  34.             While answering an objection to the locus standi of the  Writ Petitioners in challenging the repeated issue of an ordinance by  the Governor of Bihar, the exalted position of rule of law in the  scheme of things was emphasized, Chief Justice Bhagwati, speaking  on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs.  State of Bihar & Ors. (1987 (1) S.C.R. 798) stated: "The rule of law constitutes the core of our Constitution  of India and it is the essence of the rule of law that the  exercise of the power by the State whether it be the  Legislature or the Executive or any other authority  should be within the constitutional limitations and if any  practice is adopted by the Executive which is in flagrant  and systematic violation of its constitutional limitations,  petitioner No. 1 as a member of the public would have  sufficient interest to challenge such practice by filing a  writ petition and it would be the constitutional duty of  this Court to entertain the writ petition and adjudicate  upon the validity of such practice."

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 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

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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 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.

35.             The concept of ’equal pay for equal work’ is different from the  concept of conferring permanency on those who have been appointed on ad  hoc basis, temporary basis, or based on no process of selection as envisaged  by the Rules.  This Court has in various decisions applied the principle of  equal pay for equal work and has laid down the parameters for the  application of that principle.  The decisions are rested on the concept of  equality enshrined in our Constitution in the light of the directive principles  in that behalf.  But the acceptance of that principle cannot lead to a position  where the court could direct that appointments made without following the  due procedure established by law, be deemed permanent or issue directions  to treat them as permanent.    Doing so, would be negation of the principle of  equality of opportunity.  The power to make an order as is necessary for  doing complete justice in any cause or matter pending before this Court,  would not normally be used for giving the go-by to the procedure  established by law in the matter of public employment.  Take the situation  arising in the cases before us from the State of Karnataka.  Therein, after the  Dharwad decision, the Government had issued repeated directions and  mandatory orders that no temporary or ad hoc employment or engagement  be given.  Some of the authorities and departments had ignored those  directions or defied those directions and had continued to give employment,  specifically interdicted by the orders issued by the executive.  Some of the  appointing officers have even been punished for their defiance.  It would not  be just or proper to pass an order in exercise of jurisdiction under Article  226 or 32 of the Constitution or in exercise of power under Article 142 of  the Constitution of India permitting those persons engaged, to be absorbed  or to be made permanent, based on their appointments or engagements.   Complete justice would be justice according to law and though it would be  open to this Court to mould the relief, this Court would not grant a relief  which would amount to perpetuating an illegality.  

36.             While directing that appointments, temporary or casual, be  regularized or made permanent, courts are swayed by the fact that the  concerned person has worked for some time and in some cases for a  considerable length of time.  It is not as if the person who accepts an  engagement either temporary or casual in nature, is not aware of the nature  of his employment.  He accepts the employment with eyes open.  It may be  true that he is not in a position to bargain -- not at arms length -- since he  might have been searching for some employment so as to eke out his  livelihood and accepts whatever he gets.  But on that ground alone, it would  not be appropriate to jettison the constitutional scheme of appointment and

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to take the view that a person who has temporarily or casually got employed  should be directed to be continued permanently.  By doing so, it will be  creating another mode of public appointment which is not permissible.  If  the court were to void a contractual employment of this nature on the ground  that the parties were not having equal bargaining power, that too would not  enable the court to grant any relief to that employee. A total embargo on  such casual or temporary employment is not possible, given the exigencies  of administration and if imposed, would only mean that some people who at  least get employment temporarily, contractually or casually, would not be  getting even that employment when securing of such employment brings at  least some succor to them.  After all, innumerable citizens of our vast  country are in search of employment and one is not compelled to accept a  casual or temporary employment if one is not inclined to go in for such an  employment.  It is in that context that one has to proceed on the basis that  the employment was accepted fully knowing the nature of it and the  consequences flowing from it.  In other words, even while accepting the  employment, the person concerned knows the nature of his employment.  It  is not an appointment to a post in the real sense of the term.  The claim  acquired by him in the post in which he is temporarily employed or the  interest in that post cannot be considered to be of such a magnitude as to  enable the giving up of the procedure established, for making regular  appointments to available posts in the services of the State.  The argument  that since one has been working for some time in the post, it will not be just  to discontinue him, even though he was aware of the nature of the  employment when he first took it up, is not one that would enable the  jettisoning of the procedure established by law for public employment and  would have to fail when tested on the touchstone of constitutionality and  equality of opportunity enshrined in Article 14 of the Constitution of India.   

37.             Learned Senior Counsel for some of the respondents argued  that on the basis of the doctrine of legitimate expectation, the employees,  especially of the Commercial Taxes Department, should be directed to be  regularized since the decisions in Dharwad (supra), Piara Singh (supra),  Jacob, and Gujarat Agricultural University and the like, have given rise  to an expectation in them that their services would also be regularized.   The  doctrine can be invoked if the decisions of the Administrative Authority  affect the person by depriving him of some benefit or advantage which  either (i) he had in the past been permitted by the decision-maker to enjoy  and which he can legitimately expect to be permitted to continue to do until  there have been communicated to him some rational grounds for  withdrawing it on which he has been given an opportunity to comment; or  (ii) he has received assurance from the decision-maker that they will not be  withdrawn without giving him first an opportunity of advancing reasons for  contending that they should not be withdrawn {See Lord Diplock in  Council of Civil Service Unions V. Minister for the Civil Service (1985  Appeal Cases 374), National Buildings Construction Corpn. Vs. S.  Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of  Rajasthan (2003 (3) SCC 485).  There is no case that any assurance was  given by the Government or the concerned department while making the  appointment on daily wages that the status conferred on him will not be  withdrawn until some rational reason comes into existence for withdrawing  it. The very engagement was against the constitutional scheme.  Though, the  Commissioner of the Commercial Taxes Department sought to get the  appointments made permanent, there is no case that at the time of  appointment any promise was held out.  No such promise could also have  been held out in view of the circulars and directives issued by the  Government after the Dharwad decision.  Though, there is a case that the  State had made regularizations in the past of similarly situated employees,  the fact remains that such regularizations were done only pursuant to judicial  directions, either of the Administrative Tribunal or of the High Court and in  some case by this Court.  Moreover, the invocation of the doctrine of  legitimate expectation cannot enable the employees to claim that they must  be made permanent or they must be regularized in the service though they  had not been selected in terms of the rules for appointment.  The fact that in

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certain cases the court had directed regularization of the employees involved  in those cases cannot be made use of to found a claim based on legitimate  expectation.  The argument if accepted would also run counter to the  constitutional mandate. The argument in that behalf has therefore to be  rejected.  

38.             When a person enters a temporary employment or gets  engagement as a contractual or casual worker and the engagement is not  based on a proper selection as recognized by the relevant rules or procedure,  he is aware of the consequences of the appointment being temporary, casual  or contractual in nature.  Such a person cannot invoke the theory of  legitimate expectation for being confirmed in the post when an appointment  to the post could be made only by following a proper procedure for selection  and in concerned cases, in consultation with the Public Service Commission.   Therefore, the theory of legitimate expectation cannot be successfully  advanced by temporary, contractual or casual employees.  It cannot also be  held that the State has held out any promise while engaging these persons  either to continue them where they are or to make them permanent.   The  State cannot constitutionally make such a promise.  It is also obvious that the  theory cannot be invoked to seek a positive relief of being made permanent  in the post.

39.             It was then contended that the rights of the employees thus  appointed, under Articles 14 and 16 of the Constitution, are violated.  It is  stated that the State has treated the employees unfairly by employing them  on less than minimum wages and extracting work from them for a pretty  long period in comparison with those directly recruited who are getting more  wages or salaries for doing similar work.  The employees before us were  engaged on daily wages in the concerned department on a wage that was  made known to them.  There is no case that the wage agreed upon was not  being paid.  Those who are working on daily wages formed a class by  themselves, they cannot claim that they are discriminated as against those  who have been regularly recruited on the basis of the relevant rules.  No  right can be founded on an employment on daily wages to claim that such  employee should be treated on a par with a regularly recruited candidate, and  made permanent in employment, even assuming that the principle could be  invoked for claiming equal wages for equal work.  There is no fundamental  right in those who have been employed on daily wages or temporarily or on  contractual basis, to claim that they have a right to be absorbed in service.   As has been held by this Court, they cannot be said to be holders of a post,  since, a regular appointment could be made only by making appointments  consistent with the requirements of Articles 14 and 16 of the Constitution.   The right to be treated equally with the other employees employed on daily  wages, cannot be extended to a claim for equal treatment with those who  were regularly employed.  That would be treating unequals as equals.   It  cannot also be relied on to claim a right to be absorbed in service even  though they have never been selected in terms of the relevant recruitment  rules.  The arguments based on Articles 14 and 16 of the Constitution are  therefore overruled.  

40.             It is contended that the State action in not regularizing the  employees was not fair within the framework of the rule of law.  The rule of  law compels the State to make appointments as envisaged by the  Constitution and in the manner we have indicated earlier.  In most of these  cases, no doubt, the employees had worked for some length of time but this  has also been brought about by the pendency of proceedings in Tribunals  and courts initiated at the instance of the employees.  Moreover, accepting  an argument of this nature would mean that the State would be permitted to  perpetuate an illegality in the matter of public employment and that would  be a negation of the constitutional scheme adopted by us, the people of  India.  It is therefore not possible to accept the argument that there must be a  direction to make permanent all the persons employed on daily wages.   When the court is approached for relief by way of a writ, the court has  necessarily to ask itself whether the person before it had any legal right to be

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enforced.  Considered in the light of the very clear constitutional scheme, it  cannot be said that the employees have been able to establish a legal right to  be made permanent even though they have never been appointed in terms of  the relevant rules or in adherence of Articles 14 and 16 of the Constitution.   

41.             It is argued that in a country like India where there is so much  poverty and unemployment and there is no equality of bargaining power, the  action of the State in not making the employees permanent, would be  violative of Article 21 of the Constitution.  But the very argument indicates  that there are so many waiting for employment and an equal opportunity for  competing for employment and it is in that context that the Constitution as  one of its basic features, has included Articles 14, 16 and 309 so as to ensure  that public employment is given only in a fair and equitable manner by  giving all those who are qualified, an opportunity to seek employment.  In  the guise of upholding rights under Article 21 of the Constitution of India,    a set of persons cannot be preferred over a vast majority of people waiting  for an opportunity to compete for State employment. The acceptance of the  argument on behalf of the respondents would really negate the rights of the  others conferred by Article 21 of the Constitution, assuming that we are in a  position to hold that the right to employment is also a right coming within  the purview of Article 21 of the Constitution.  The argument that Article 23  of the Constitution is breached because the employment on daily wages  amounts to forced labour, cannot be accepted.  After all, the employees  accepted the employment at their own volition and with eyes open as to the  nature of their employment.  The Governments also revised the minimum  wages payable from time to time in the light of all relevant circumstances.  It  also appears to us that importing of these theories to defeat the basic  requirement of public employment would defeat the constitutional scheme  and the constitutional goal of equality.  

42.             The argument that the right to life protected by Article 21 of the  Constitution of India would include the right to employment cannot also be  accepted at this juncture.  The law is dynamic and our Constitution is a  living document.  May be at some future point of time, the right to  employment can also be brought in under the concept of right to life or even  included as a fundamental right.  The new statute is perhaps a beginning.  As  things now stand, the acceptance of such a plea at the instance of the  employees before us would lead to the consequence of depriving a large  number of other aspirants of an opportunity to compete for the post or  employment.  Their right to employment, if it is a part of right to life, would  stand denuded by the preferring of those who have got in casually or those  who have come through the back door.  The obligation cast on the State  under Article 39(a) of the Constitution of India is to ensure that all citizens  equally have the right to adequate means of livelihood.  It will be more  consistent with that policy if the courts recognize that an appointment to a  post in government service or in the service of its instrumentalities, can only  be by way of a proper selection in the manner recognized by the relevant  legislation in the context of the relevant provisions of the Constitution.  In  the name of individualizing justice, it is also not possible to shut our eyes to  the constitutional scheme and the right of the numerous as against the few  who are before the court.  The Directive Principles of State Policy have also  to be reconciled with the rights available to the citizen under Part III of the  Constitution and the obligation of the State to one and all and not to a  particular group of citizens.  We, therefore, overrule the argument based on  Article 21 of the Constitution.

43.             Normally, what is sought for by such temporary employees  when they approach the court, is the issue of a writ of mandamus directing  the employer, the State or its instrumentalities, to absorb them in permanent  service or to allow them to continue.  In this context, the question arises  whether a mandamus could be issued in favour of such persons.  At this  juncture, it will be proper to refer to the decision of the Constitution Bench  of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of  the Nalanda College [(1962) Supp. 2 SCR 144].  That case arose out of a  refusal to promote the writ petitioner therein as the Principal of a college.  

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This Court held that in order that a mandamus may issue to compel the  authorities to do something, it must be shown that the statute imposes a legal  duty on the authority and the aggrieved party had a legal right under the  statute or rule to enforce it.  This classical position continues and a  mandamus could not be issued in favour of the employees directing the  government to make them permanent since the employees cannot show that  they have an enforceable legal right to be permanently absorbed or that the  State has a legal duty to make them permanent.  

44.             One aspect needs to be clarified.  There may be cases where  irregular appointments (not illegal appointments) as explained in S.V.  NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N.  NAGARAJAN (supra), and referred to in paragraph 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 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 the 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 of orders of 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  regularization, if any already made, but not subjudice, need not be reopened  based on this judgment, but there should be no further by-passing of the  constitutional requirement and regularizing or making permanent, those not  duly appointed as per the constitutional scheme.    

45.             It is also clarified that those decisions which run counter to the  principle settled in this decision, or in which directions running counter to  what we have held herein, will stand denuded of their status as precedents.   

46.             In cases relating to service in the commercial taxes department,  the High Court has directed that those engaged on daily wages, be paid  wages equal to the salary and allowances that are being paid to the regular  employees of their cadre in government service, with effect from the dates  from which they were respectively appointed.  The objection taken was to  the direction for payment from the dates of engagement.  We find that the  High Court had clearly gone wrong in directing that these employees be paid  salary equal to the salary and allowances that are being paid to the regular  employees of their cadre in government service, with effect from the dates  from which they were respectively engaged or appointed.  It was not open to  the High Court to impose such an obligation on the State when the very  question before the High Court in the case was whether these employees  were entitled to have equal pay for equal work so called and were entitled to  any other benefit.  They had also been engaged in the teeth of directions not  to do so.  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 are  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 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

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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 C.A. No. 3595-3612 and those  in the Commercial Taxes Department similarly situated, will be allowed to  compete, 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.  That would be the extent of the exercise of  power by this Court under Article 142 of the Constitution to do justice to  them.

47.             Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of  our conclusion on the questions referred to, no relief can be granted, that too  to an indeterminate number of members of the association.  These  appointments or engagements were also made in the teeth of directions of  the Government not to make such appointments and it is impermissible to  recognize such appointments made in the teeth of directions issued by the  Government in that regard.  We have also held that they are not legally  entitled to any such relief.  Granting of the relief claimed would mean  paying a premium for defiance and insubordination by those concerned who  engaged these persons against the interdict in that behalf.   Thus, on the  whole, the appellants in these appeals are found to be not entitled to any  relief.  These appeals have, therefore, to be dismissed.  

48.             C.A. Nos. 3520-24 of 2002 have also to be allowed since the  decision of the Zilla Parishads to make permanent the employees cannot be  accepted as legal.  Nor can the employees be directed to be treated as  employees of the Government, in the circumstances.  The direction of the  High Court is found unsustainable.   

49.             In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil  Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil  appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001  are allowed subject to the direction issued under Article 142 of the  Constitution in paragraph 46 and the general directions contained in  paragraph 44 of the judgment and Civil Appeal Nos. 1861-2063 of 2001 are  dismissed.  There will be no order as to costs.