Himachal Pradesh & ANR Vs. Ravinder Singh  INSC 533 (28 March 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM REPORTABLE CIVIL APPEAL NO 2224 OF 2008 (Arising out of SLP (C) No.
3347/2006) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of
the Himachal Pradesh High Court by which two Writ Petitions filed by the
respondent were disposed of.
The controversy lies within a very narrow compass.
3. The present dispute relates to Civil Writ Petition No.354 of 2000. Before
dealing with the rival contentions the factual background needs to be noted.
Respondent was appointed on 3.9.1980 as a daily-rated worker in the
Horticulture Department of the State. In the Writ Petition the prayer was for regularization
as a clerk on completion of ten years of service on daily wages basis. It is to
be noted that the union of the employees had moved the Labour Court for
regularization of all daily wagers. The same was adjudicated by the Industrial
Disputes Tribunal. A reference was made to the Labour Court and the State filed
its response questioning maintainability of the reference. Initially the Labour
Court had decided in favour of the workers but on a Writ Petition being filed,
the High Court held in favour of the State holding that the claim for
regularization was not maintainable. It was noted that no appointment order was
issued and the case of the respondent was not sponsored by the employment
exchange. It was also noted that the claim for equal work for equal pay was not
maintainable as daily-rated persons were not required to perform duties at par
with those in regular service and they did not also fulfil the procedure at the
time of recruitment. Two Writ Petitions were filed; in one the challenge was to
the order of the Industrial Disputes Tribunal while the Writ Petition to which
this Appeal relates to the Award by the Labour Court. It is to be noted that
the Labour Court had observed that the employer had regularized the respondent
as a Chowkidar with effect from 5.7.1997 which was refused by him. Thereafter
the engagement as daily wager was terminated. This order was challenged before
the Industrial Disputes Tribunal, under Section 33 which was dismissed.
However, as noted above the High Court has remanded the matter to the Tribunal.
4. The High Court in the impugned order held that the approach of the Labour
Court was wrong as it has introduced concepts which are unnecessary. It was
noted by the High Court that there was no dispute that the respondent was
employed as a clerk.
5. Learned counsel for the respondents submitted that the question whether
the appointment was as a clerk has been concluded by an earlier order of the
High Court which has become final and, therefore, the present appeal is misconceived.
6. The High Court had rightly observed that the Labour Court embarked upon
an uncalled enquiry upon the status of daily-wage workers vis.a.vis regular
workers, therefore, the direction was given that the respondent was entitled to
be regularized as clerk under the scheme of the Government with effect from
11th July, 1995.
7. It is to be noted that the High Court proceeded on erroneous premises. It
has observed that there was no dispute that respondent was employed as daily
wage worker as clerk with effect from 3rd September, 1980. The High Court
itself has observed that the stand of the State was specific that the
respondent was engaged as daily-paid labourer for carrying out horticulture
operations such as spraying of plants, cleaning the floors etc. and therefore,
the question of discharging the duties of clerk/supervision does not arise. It
was also to be noted that the Labour Court had rightly dismissed the claim of
the respondent by holding that he and others, being daily wagers, cannot be treated
at par with the regular employees. It also noted that the conditions for
regularizations under the policy of the Government have not been noticed. The
parameters of regularization have been examined by this Court in Secretary,
State of Karnataka &
Ors. v. Uma Devi & Ors. (2006(4) SCC 1). Paras 22, 27, 36, 39, 42 and 43
of the decision read as follows:
"22. 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 emphasised in R.N. Nanjundappa v. T.
Thimmiah (1972 (1) SCC 409) 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.
27. We shall now refer to the other decisions. In State of Punjab v.
Surinder Kumar (AIR 1992 SC 1593) a three-Judge Bench of this Court held that
the High Courts had no power, like the power available to the Supreme Court
under Article 142 of the Constitution, and merely because the Supreme Court
granted certain reliefs in exercise of its power under Article 142 of the
Constitution, 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 regularised in his service
without assigning reasons and ask the High Court to pass an order of a similar
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 regularisation
of persons appointed temporarily to the post of lecturers.
The Court also emphasised 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.
36. This Court also quoted with approval (at SCC p. 131, para 69) the
observations of this Court in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh
(2004(2) SCC 130) to the effect: (SCC p. 144, para 36) "36. 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, this Court
ordinarily would not pass an order which would be in contravention of a
This decision kept in mind the distinction between
"regularisation" and "permanency"
and laid down that regularisation is not and cannot be the mode of
recruitment by any State. It also held that regularisation cannot give permanence
to an employee whose services are ad hoc in nature.
39. There have been decisions which have taken the cue from Dharwad case1
and given directions for regularisation, 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 Workmen v. Bhurkunda Colliery of Central Coalfields Ltd.
(1983 (4) SCC 582) 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 regularisation
or re- engagement or making them permanent.
42. 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 emphasised, Bhagwati,
C.J., speaking on behalf of the Constitution Bench in D.C.
Wadhwa (Dr.) v. State of Bihar (1987 (1) SCC 378) stated: (SCC p. 384, para
3) "The rule of law constitutes the core of our Constitution 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 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."
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. The High Courts acting under Article 226
of the Constitution, should not ordinarily issue directions for absorption,
regularisation, 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 the 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."
8. In addition it has to be noted that the Labour Court had observed that
the name of the respondent claimant was not sponsored by the employment
exchange; there was no appointment order; the requirements relating to
procedure to be followed at the time of recruitment were also not fulfilled.
There was a mere back- door entry. It was further noted that they were not
selected in the manner as applicable to regular employees who are liable to be
transferred and are subject to disciplinary proceedings to which daily-rated
workers are not subjected to.
9. In the background of what has been stated above the directions given for
regularization in the post of clerk being indefensible are set aside. However,
undisputedly the appellants had regularized the services of the respondent as a
Chowkidar in July, 1997 which the respondent had refused. If the respondent is
so advised, he may accept the order in that regard by submitting the requisite
documents within six weeks from today. If not so done, the respondent shall not
be entitled to any relief in terms of the High Court's impugned order which as
noted above we have set aside.
10. The appeal is allowed to the aforesaid extent, but without any order as