Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO                     OF 2010 [Arising out of SLP (C) No.15774/2006]

State of Karnataka & Ors. … Appellants

Vs.

M L Kesari & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Delay condoned. Leave granted.

2. Respondents 1 to 3 were appointed on daily wage basis by the Zila  

Panchayat, Gadag, between 1985 and 1987. Their services were utilized as  

Typist,  Literate Assistant  and Watchman respectively in the office of the  

Executive Engineer, Zila Panchayat Engineering Sub-Division, Ron, Gadag  

District.  They  were  continued  as  daily  wagers  for  more  than  15  years

without  the  intervention  of  any  court  and  without  the  protection  of  any  

interim orders  of  any court  or  tribunal.  In the year  2002 they filed Writ  

Petitions  (Nos.31687-31689/2002)  seeking  regularization.  The  said  writ  

petitions were allowed by a learned Single Judge of Karnataka High Court  

by order dated 27.9.2002 with a direction to consider their representations in  

accordance with the judgment dated 24.1.2001 in W.A. Nos.5697/2000 and  

6677-7351/2000. The writ appeals filed by the appellants against the said  

order  were  dismissed  by a  Division Bench by the  impugned order  dated  

28.7.2004 holding  that  the  respondents  will  be  entitled  to  regularization,  

depending  upon the  terms  and conditions  of  appointment,  availability  of  

existing  substantive  vacancies,  eligibility,  qualifications,  continuity  of  

service, seniority and the prevailing rules. The Division Bench directed that  

the case of each of the appellants shall be considered independently on its  

own  facts,  within  four  months.  The  said  judgment  is  challenged  in  this  

appeal by special leave.

3. When the matter came up for hearing on 10.3.2006, the matter was  

adjourned to await the decision of the Constitution Bench in CA Nos. 3595-

3612/1999 – State of Karnataka v. Umadevi. However, subsequently notice  

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was directed to be issued both on the application for condonation of delay  

for 361 days’ in filing the SLP as also on the special leave petition.  

4. The  decision  in  State  of  Karnataka  v.  Umadevi  was  rendered  on  

10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench  

of this Court held that appointments made without following the due process  

or  the  rules  relating  to  appointment  did  not  confer  any  right  on  the  

appointees  and courts  cannot  direct  their  absorption,  regularization or  re-

engagement  nor  make  their  service  permanent,  and  the  High  Court  in  

exercise  of  jurisdiction  under  Article  226 of  the  Constitution  should  not  

ordinarily  issue  directions  for  absorption,  regularization,  or  permanent  

continuance unless the recruitment had been done in a regular manner, in  

terms of the constitutional scheme; and that 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,  nor lend themselves to be  

instruments  to  facilitate  the  bypassing  of  the  constitutional  and statutory  

mandates. This Court further held that a temporary, contractual, casual or a  

daily-wage  employee  does  not  have  a  legal  right  to  be  made  permanent  

unless he had been appointed in terms of the relevant rules or in adherence  

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of Articles 14 and 16 of the Constitution. This Court however made one  

exception to the above position and the same is extracted below :

“53. One  aspect  needs  to  be  clarified.  There  may  be  cases  where  irregular  appointments  (not  illegal  appointments)  as  explained  in  S.V.   Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409]  and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above,  of duly qualified persons in duly sanctioned vacant posts might have been  made and the employees have continued to work for ten years or more but  without  the  intervention  of  orders  of  the  courts  or  of  tribunals.  The  question of 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 abovereferred to and in the light  of this judgment.  In that  context,  the  Union  of  India,  the  State  Governments  and  their  instrumentalities should take steps to 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 the courts  or  of  tribunals  and  should  further  ensure  that  regular  recruitments  are  undertaken to fill those vacant sanctioned posts that require to be filled up,  in  cases  where  temporary  employees  or  daily  wagers  are  being  now  employed. The process must be set in motion within six months from this  date. ….”

5. It is evident from the above that there is an exception to the general  

principles against ‘regularization’ enunciated in  Umadevi, if the following  

conditions are fulfilled :  

(i) The employee concerned should have worked for 10 years or more in  

duly sanctioned post without the benefit or protection of the interim order of  

any  court  or  tribunal.  In  other  words,  the  State  Government  or  its  

instrumentality should have employed the employee and continued him in  

service voluntarily and continuously for more than ten years.

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(ii)  The  appointment  of  such  employee  should  not  be  illegal,  even  if  

irregular.  Where  the  appointments  are  not  made  or  continued  against  

sanctioned  posts  or  where  the  persons  appointed  do  not  possess  the  

prescribed minimum qualifications, the appointments will be considered to  

be  illegal.  But  where  the  person  employed  possessed  the  prescribed  

qualifications  and  was  working  against  sanctioned  posts,  but  had  been  

selected without undergoing the process of open competitive selection, such  

appointments are considered to be irregular.  

Umadevi casts a duty upon the concerned Government or instrumentality, to  

take steps to regularize the services of those irregularly appointed employees  

who had served for more than ten years without the benefit or protection of  

any interim orders of courts or tribunals, as a one-time measure.  Umadevi,   

directed that such one-time measure must be set in motion within six months  

from the date of its decision (rendered on 10.4.2006).

6. The  term  ‘one-time  measure’  has  to  be  understood  in  its  proper  

perspective. This would normally mean that after the decision in  Umadevi,  

each  department  or  each  instrumentality  should  undertake  a  one-time  

exercise and prepare a list of all casual,  daily-wage or ad hoc employees  

who have been working for more than ten years without the intervention of  

courts and tribunals and subject them to a process verification as to whether  

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they are working against vacant posts and possess the requisite qualification  

for the post and if so, regularize their services.

7. At the end of six months from the date of decision in Umadevi, cases  

of  several  daily-wage/ad-hoc/casual  employees  were  still  pending  before  

Courts.  Consequently,  several  departments  and  instrumentalities  did  not  

commence  the  one-time regularization  process.  On the  other  hand,  some  

Government  departments  or  instrumentalities  undertook  the  one-time  

exercise  excluding  several  employees  from  consideration  either  on  the  

ground that their cases were pending in courts or due to sheer oversight. In  

such circumstances,  the employees who were entitled to be considered in  

terms of Para 53 of the decision in Umadevi, will not lose their right to be  

considered  for  regularization,  merely  because  the  one-time  exercise  was  

completed without considering their cases, or because the six month period  

mentioned in para 53 of Umadevi has expired.  The one-time exercise should  

consider all daily-wage/adhoc/those employees who had put in 10 years of  

continuous service as on 10.4.2006 without availing the protection of any  

interim orders of courts or tribunals. If any employer had held the one-time  

exercise in terms of para 53 of  Umadevi, but did not consider the cases of  

some employees who were entitled to the benefit of para 53 of Umadevi, the  

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employer concerned should consider their cases also, as a continuation of the  

one-time exercise. The one time exercise will be concluded only when all  

the  employees  who are  entitled  to  be considered in  terms of  Para  53 of  

Umadevi, are so considered.  

8. The object behind the said direction in para 53 of  Umadevi is two-

fold. First is to ensure that those who have put in more than ten years of  

continuous service without the protection of any interim orders of courts or  

tribunals,  before  the  date  of  decision  in  Umadevi was  rendered,  are  

considered  for  regularization  in  view of  their  long  service.  Second is  to  

ensure that the departments/instrumentalities do not perpetuate the practice  

of employing persons on daily-wage/ad-hoc/casual for long periods and then  

periodically regularize them on the ground that they have served for more  

than ten years, thereby defeating the constitutional or statutory provisions  

relating to recruitment and appointment. The true effect of the direction is  

that all persons who have worked for more than ten years as on 10.4.2006  

(the date of decision in Umadevi) without the protection of any interim order  

of  any  court  or  tribunal,  in  vacant  posts,  possessing  the  requisite  

qualification, are entitled to be considered for regularization. The fact that  

the employer has not undertaken such exercise of regularization within six  

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months of the decision in  Umadevi or that such exercise was undertaken  

only in regard to a limited few, will not disentitle such employees, the right  

to  be  considered  for  regularization  in  terms  of  the  above  directions  in  

Umadevi as a one-time measure.  

9. These appeals have been pending for more than four years after the  

decision  in  Umadevi.  The  Appellant  (Zila  Panchayat,  Gadag)  has  not  

considered the cases of respondents of regularization within six months of  

the decision in Umadevi or thereafter.  

10. The Division Bench of the High Court has directed that the cases of  

respondents should be considered in accordance with law. The only further  

direction that needs be given, in view of Umadevi, is that the Zila Panchayat,  

Gadag should now undertake an exercise within six months, a general one-

time  regularization  exercise,  to  find  out  whether  there  are  any  daily  

wage/casual/ad-hoc employees serving the Zila Panchayat and if so whether  

such  employees  (including  the  respondents)  fulfill  the  requirements  

mentioned in para 53 of Umadevi. If they fulfill them, their services have to  

be regularized. If such an exercise has already been undertaken by ignoring  

or omitting the cases of respondents 1 to 3 because of the pendency of these  

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cases, then their cases shall have to be considered in continuation of the said  

one  time  exercise  within  three  months.  It  is  needless  to  say  that  if  the  

respondents  do not  fulfill  the  requirements  of  Para  53 of  Umadevi,  their  

services need not be regularised. If the employees who have completed ten  

years service do not possess the educational qualifications prescribed for the  

post,  at  the  time  of  their  appointment,  they  may  be  considered  for  

regularization  in  suitable  lower  posts.  This  appeal  is  disposed  of  

accordingly.

…………………………J. (R V Raveendran)

New Delhi; ………………………..J. August 3, 2010. (H L Gokhale)                    

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