REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 795-798__ OF 2010 [Arising out of SLP (C) Nos. 9785-9788 of 2004]

State of Karnataka & Ors.    …. Appellants

Versus

Ganapathi Chaya Nayak & Ors. ….Respondents

with

CIVIL APPEAL NOS. 799-805___ OF 2010 [Arising out of SLP (C) Nos. 10208-10214 of 2004]

with  

CIVIL APPEAL NOS. 806-810__ OF 2010 [Arising out of SLP (C) Nos. 10249-10253 of 2004]

with

CIVIL APPEAL NOS. 811-813__OF 2010 [Arising out of SLP (C) Nos. 10307-10309 of 2004]

with

CIVIL APPEAL NOS. _814-817__ OF 2010 [Arising out of SLP (C) Nos. 10375-10378 of 2004]

with

CIVIL APPEAL NO. 818__ OF 2010

[Arising out of SLP (C) Nos. 10626 of 2004]

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave Granted in all the Special Leave Petitions.

2. The  common question  which  arises  for  consideration  in  all  these  

appeals is whether the orders passed by the Division Bench of the  

High Court of Karnataka, Bangalore in different Writ Petitions filed  

before it by the appellants herein dismissing the said Writ Petitions  

and upholding the directions given by the Karnataka Administrative  

Tribunal, Bangalore (“KAT” for short”) to the appellants to consider  

the cases  of  the respondents  for regularization of  their  service  on  

merits are sustainable.  

3. The facts which are necessary to answer the aforesaid question are  

being  culled  out  here.  The  respondents  in  all  these  appeals  were  

working on daily wages either as plantation watchmen or wireless  

operators or helpers. The respondents in all these appeals claimed  

regularization of their service in light of the fact that they had been  

in continuous service for more than ten years since the day of their  

initial appointment. The appellants, however, refuted their claim on  

the ground that the scheme of regularization pertained to only those

persons who had been working prior to 01.07.1984.   

4. The learned counsel appearing on behalf of the respondents, on  

the other hand, supported the decision of the High Court of Karnataka.

5. We have heard all the learned counsel appearing for the parties. In  

light of the submissions made by the counsel appearing for the parties, we  

have carefully  perused the documents available on record.  The learned  

counsel  appearing for the appellants submitted that the High Court as  

also  the  KAT  had  erred  in  allowing  the  claim  of  the  respondents  for  

regularization of their services as the respondents had failed to establish  

their rights for regularization. The counsel  appearing for the appellants  

further  submitted  before  us  that  the  claim  of  the  respondents  for  

regularization was not sustainable in view of the fact that they had not  

been  recruited  as  per  the  Recruitment  Rules  and  also  because  the  

respondents had been recruited after 01.07.1984 whereas the scheme of  

regularization pertained to only those who had been working prior to the  

aforesaid date.  It  was also contended before  us by the learned counsel  

appearing  for  the  appellants  that  the  respondents  not  being  recruited  

through the proper procedure were back-door entrants into government  

service, and therefore, regularization of their services would be in violation  

of Articles 14 and 16 of the Constitution of India.

6. At this juncture,  we intend to refer to a few recent decisions of this

Court on the issue involved herein. In Civil Appeal No. 2090 of 2007  

which  was  pronounced  on  15.01.2010,  one  of  us  (Mukundakam  

Sharma  J.)  had  the  opportunity  to  deal  with  a  similar  question  

concerning  regularization  of  the  casual  workers.  This  Court,  while  

allowing  the  petition  dismissed  the  claim  of  the  casual  workers  for  

regularization or absorption. In coming to the aforesaid conclusion, this  

Court  placed  reliance  on two recent  and landmark decisions  of  this  

Court. In Secretary, State of Karnataka and Others v. Umadevi (3)  

and Others reported in (2006) 4 SCC 1 , this Court, in paragraphs 43  

and 45 of the judgment, observed as follows: -

“43.  Thus,  it is  clear that adherence to  the rule  of  equality in  public employment is a basic feature of our Constitution and since  the rule  of  law is  the core  of  our  Constitution,  a court  would  certainly be disabled from passing an order upholding a violation  of Article 14 or in ordering the overlooking of the need to comply  with the requirements of  Article 14 read with Article 16 of  the  Constitution.  Therefore,  consistent  with the  scheme  for  public  employment,  this  Court  while  laying  down  the  law,  has  necessarily to hold that unless the appointment is in terms of the  relevant rules  and after  a  proper  competition  among qualified  persons, the same would not confer any right on the appointee. If   it is a contractual appointment, the appointment comes to an end  at  the  end  of  the  contract,  if  it  were  an  engagement  or  appointment on  daily  wages or  casual basis, the  same would  come to an end when it is discontinued. Similarly, a temporary  employee could not claim to be made permanent on the expiry of   his term of  appointment. It has also to be clarified that merely  because  a  temporary  employee  or  a  casual  wage  worker  is  continued for  a  time  beyond  the  term of  his  appointment, he  would not be entitled to be absorbed in regular service or made  permanent,  merely on  the  strength of  such continuance,  if  the  original appointment was not made by following a due process of   selection as envisaged by the relevant rules. It is not open to the  court to prevent regular recruitment at the instance of temporary  employees whose period of employment has come to an end or of  

ad hoc employees who by the very nature of their appointment,  do not acquire any right. ……………”

“45. While directing that appointments, temporary or casual, be  regularised or made permanent, the courts are swayed by the  fact that the person concerned 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 open eyes. It may be true that he is not in a   position  to  bargain—not  at arm’s 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 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. …………… ……………………………….  ……………………………………………… …………………..  …………………………………………….. 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.”

7. Subsequent  to  the  aforesaid  decision,  the  issue  again  arose  for  

consideration before the 3-Judges Bench of this Court in the  Official  

Liquidator v.   Dayanand and Others reported in  (2008) 10 SCC 1

wherein this Court, in paragraphs 68 and 116, observed as follows:-

“68.  The  abovenoted  judgments  and  orders  encouraged  the  political set-up and bureaucracy to violate the soul of Articles 14   and  16  as  also  the  provisions  contained in  the  Employment  Exchanges (Compulsory Notification of Vacancies) Act, 1959 with  impunity and the  spoils  system which  prevailed in  the United  States of America in the sixteenth and seventeenth centuries got a  firm  foothold  in  this  country.  Thousands  of  persons  were  employed/engaged  throughout  the  length  and  breadth  of  the  country by backdoor methods. Those who could pull strings in the  power corridors at the higher and lower levels managed to get the  cake of public employment by trampling over the rights of other  eligible  and  more  meritorious  persons  registered  with  the  employment  exchanges.  A  huge  illegal  employment  market  developed  in  different  parts  of  the  country  and  rampant  corruption afflicted the whole system.”

“116. In our opinion, any direction by the Court for absorption of   all company - paid staff would be detrimental to public interest in   more  than one  ways. Firstly,  it will  compel  the  Government to   abandon the policy decision of reducing the direct recruitment to  various services. Secondly, this will be virtual abrogation of  the  statutory rules which envisage appointment to different cadres by  direct recruitment.”

8. In view of the settled  position of  law in this regard which has been  

reiterated in a number of judgments of this Court, we hold that the  

claims of the respondents for regularization or absorption cannot be  

sustained. Accordingly, we allow the appeals and set aside the orders  

passed by the High Court as also the KAT. The respondents did not  

argue about their rights under the Industrial Disputes Act, 1947 at any  

stage till  the hearing of  the appeal  before  us.  A faint argument  was  

sought to be made by the counsel appearing for the respondents which,  

however,  was  not  permitted  to  be  raised  as  neither  there  was  any  

pleading in support of the same nor any argument in the Courts below

at any stage.  Further,  even  a case  of  the said  nature  has not been  

pleaded before us. Therefore, such a plea could not be raised before us  

by  the  respondents.  We  have,  therefore,  in  these  appeals  not  

adjudicated  upon the rights  of  the  respondents  under  the  said  Act.  

Liberty  is,  therefore,  granted  to  the  respondents  to  approach  the  

appropriate forum under the said Act, if  such a remedy and right is  

available to the respondents.

…………………J. [V.S. Sirpurkar]

………………….J. [Dr.  Mukundakam Sharma]

January 22, 2010 New Delhi.