Prakash & Ors. Vs. State of Bihar & Ors.  INSC 209 (16 March
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
2440 OF 2010 [Arising out of SLP) No.5938 of 2009] Satya Prakash & Ors. ...
Appellants Versus State of Bihar & Ors. ... Respondents
Appellants who had worked on daily wages for over ten years have
approached this Court claiming benefit of paragraph 53 of the Constitution Bench
judgment of this Court in Secretary, State of Karnataka And Others v. Umadevi
(3) And Others (2006) 4 SCC 1.
doubts were there with regard to the meaning and content of paragraph 53 read
with paragraphs 15, 16 and paragraph 8 read with paragraph 55 of the judgment
in Umadevi's case (supra) which has been subsequently explained by this Court
in several judgments. Reference may 2 be made to the judgment of this court in
Punjab Water Supply & Sewerage Board v. Ranjodh Singh And Others (2007) 2
SCC 491, State of Punjab v. Bahadur Singh And Others (2008) 15 SCC 737, C.
And Others v. State of Kerala And Others (2009) 3 SCC 179, State of Karnataka
And Others v. G.V. Chandrashekar, (2009) 4 SCC 342, etc. Almost identical
situation arises for consideration in this case as well.
The appellants who had worked for more than 10 years on daily
rated basis in the Bihar Intermediate Education Council has approached the
Patna High Court for regularization of their services and a learned Single Judge
of the Patna High Court directed the Council to consider their request for
regularization treating them as a separate class after relaxing their age.
Since no positive direction was given to the Council for regularization of
their services, an appeal was preferred before the Division Bench of the Patna
High Court. The Division Bench held that merely because they had worked as
daily waged employees with the Council would not confer any right for
regularization as no public appointment was permissible de hors the recruitment
rules. Letters Patent Appeal was, therefore, dismissed in limine. Aggrieved by
the same this appeal has been preferred with a petition for special leave to
Mr. Gaurav Agrawal, learned counsel appearing for the appellants submitted
that the appellants belong to the reserved community and that they had worked
on daily wage basis in sanctioned posts from February/July, 1995 to February,
2005 and that too not on the strength of any order passed by the Court or
Tribunal. Learned counsel submitted that the appellants are entitled to get the
benefit of the judgment in Umadevi's Case(3) (supra). Reference was made to
paragraph 53 of the aforesaid judgment and submitted that this Court had
directed the Union of India, the State Governments and their instrumentalities
to take steps to regularize as a one-time measure, the services of irregularly
appointed persons who had worked for ten years or more in duly sanctioned
posts. Learned counsel submitted that the same benefit be extended to persons
who had worked on daily wage basis for over 10 years.
Learned counsel appearing for respondent Nos. 3 to 5 submitted
that the Council had engaged the appellants only on daily wage basis and they
were never appointed in any sanctioned posts and, therefore, they would not get
the benefit of the directions contained in Umadevi's case (supra) which are
applicable only to those qualified employees who were appointed irregularly in
sanctioned posts. Learned counsel submitted that the Council in the year 1995
had decided to fill up the posts of Assistant/Routine Clerk and Peon on regular
basis and an advertisement to that effect was 4 published on 25.2.1995.
Appellants and several other persons applied but no panel or merit list was
prepared by the Council. Accordingly, no appointments were affected. Council,
though took a decision on 16.12.1999 to complete the selection process
including preparation of merit list by 15.01.2000, it did not materialize due
to the creation of new State of Jharkhand by the Bihar Re-organisation Act, 2000. Further, the Bihar Education Council itself was dissolved
by the Biihar Intermediate Education Council (Repeal) Act of 2007 and hence
there was no question of regularization of any employee in the Council. The
functions of the erstwhile Intermediate Council are now being performed by the
Bihar School Examination Board which is following its own recruitment rules.
such circumstances, it was stated that the directions sought for by the
appellants for regularization of their services in the Council cannot be
We are of the view that the appellants are not entitled to get the
benefit of regularization of their services since they were never appointed in
any sanctioned posts. Appellants were only engaged on daily wages in the Bihar
Intermediate Education Council. In Umadevi's case (supra) this Court held that
the Courts are not expected to issue any direction for
absorption/regularization or permanent continuance of temporary, contractual,
casual, daily-wage or ad hoc employees. This Court held that 5 such directions
issued could not be said to be in consistent with the constitutional scheme of
public employment. This Court held 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. In view of the law laid down by this Court, the directions
sought for by the appellants cannot be granted.
Paragraph 53 of Umadevi's Judgment, deals with irregular
appointments (not illegal appointments). Constitution Bench specifically
referred to the judgment in S.V. Narayanappa vs. State of Mysore (1967) 1 SCR
128, B.N. Nanjudappa vs. T. Thimmiah (1972)1 SCC 409, in paragraph 15 of
Umadevi's judgment as well.
Let us refer to paragraphs 15 and 16 of Umadevi's judgment in this
context. Necessity of keeping in mind the distinction between regularization
and conferment of permanence in service jurisprudence has also been highlighted
by this Court by referring to the following passages from R.N. Nanjundappa's
case, which reads as follows:- " 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 6 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
Constitution Bench referred to in B.N. Nagarajan's case in para 16 of the
judgment and stated as follows:- " 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."
Umadevi's case in paragraph 53 the Court is stated as follows:- " One
aspect needs to be clarified. There may be cases where irregular appointments
(not illegal appointments) as explained in S.V. Narayanappa R.N. Nanjundappa and
B.N. Nagarajan 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 yeas 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 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 or orders of the courts
or of tribunals and should further 7 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."
Constitution Bench has, therefore, clearly drawn a distinction
between temporary employees, daily-wagers and those who were appointed
irregularly in the sense that there was non-compliance of some procedure in the
selection process which did not go to the root of the selection process.
Appellants in our view will not fall in the category of the employees mentioned
in paragraph 53 read with paras 15 and 16 of the Constitution Bench Judgment.
Above view is further reinforced when we read paragraphs 8 and 55
in Umadevi's case, wherein similar arguments were raised but rejected by the
Constitution Bench. Paragraphs 8 of the Constitution Bench judgment refers to
CA No.3595-612 of 1999 filed by the Commercial Taxes Department. Respondents
therein were engaged on daily wages in some of the districts in the State of
Karnataka and they claimed that they had worked in that department for more
than 10 years, hence, claimed regularization. They approached the Tribunal
without success. They took up the matter before the High Court of Karnataka.
The Karnataka High Court ordered that they are entitled to wages and allowances
equal to 8 regular employees and also gave a direction to the State Government
to consider their case for regularization within four months.
Aggrieved by the judgment of the Karnataka High Court the
Commercial Taxes Department approached this Court. Allowing the appeal
preferred by the Commercial Taxes Department, this Court set aside the directions
given by the High Court for regularization of services of those daily wage
employees who had more than 10 years of service. The Court held as follows:-
" 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 is 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 the 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 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.
regular recruitment is undertaken, the respondents in Civil Appeal No. 3595-612
and those in Commercial Tax Departments similarly situated will be allowed to
compete, 9 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.
In our view, the appellants herein would fall under the category
of persons mentioned in paragraphs 8 and 55 of the judgment and not in
paragraph 53 of judgment of Umadevi's.
Appellants in their reply affidavit filed on 14.10.2004 before the
High Court has specifically stated in paragraph 5 that they were only engaged
as Assistant Routine Clerks and Peons on daily wages. Further in paragraph 20
of the affidavit it was stated that they were discharging their duties on daily
wages basis since 1995 and had entertained a legitimate expectation for
regularization of their services. Appellants' own case is that they were only engaged
on daily wages basis and never appointed in service either on a temporary basis
or on ad-hoc basis.
Appellants stated that they had undergone a selection process held
fourteen years back, following an advertisement published in the year 1995 but
the merit list was neither prepared nor published. Selection process, though
had undertaken by the Council was not completed and now the Council is no more
in existence. However, if Board proposes to undertake any regular selection
process to fill up the posts, the applications, if any, submitted by the
appellants may also be considered after giving age relaxation. In Umadevi's
case in paragraph 55 of the judgment, the 1 Constitution Bench has also
permitted such persons to participate in selection process waiving the age
relaxation and giving the weightage for having been engaged or worked in the
department for a significant period of time.
The appeal, therefore, lacks merits and the same is disposed of as
.................................J. (R.V. Raveendran
.................................J. (K.S. Radhakrishnan)
March 16, 2010.