State of
Karnataka & Ors. Vs. Ganapathi Chaya Naik & Ors. [2010] INSC 68 (22
January 2010)
Judgment
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]
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.
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