Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7351 OF 2008
[Arising out of SLP (C) No.3498 of 2004]
C. Balachandran & Ors. … Appellants
Versus
State of Kerala & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Appellants are before us aggrieved by and dissatisfied with the
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judgment and order dated 21 July 2003 passed by a Division Bench of the
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High Court of Kerala at Ernakulam affirming an order dated 07 November
2002 passed by a learned Single Judge of the said Court dismissing the writ
petition filed by them seeking a writ of or in the nature of mandamus
directing the Kerala Water Authority to reinstate and regularise them in
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service purported to be in terms of a judgment and order of this Court in the
case of Jacob M. Puthuparambil & Ors. etc. v. Kerala Water Authority &
Ors. etc. (1991) 1 SCC 28.
3. Appellants were said to have been appointed by the Kerala Water and
Sewerage Authority (for short, ‘the Authority’) on daily wages in
connection with carrying out of some projects. Their services were
terminated in the year 1987. A writ petition before the Kerala High Court
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was filed. The said writ petition was disposed of by an order dated 22
May 1987 directing :
“4. The petitioner shall make representations before the
Kerala Water Authority detailing their claims within two weeks
from this date. Such representations, if any, shall be
considered and disposed of by the Authority and the
Government after giving the petitioners opportunity of being
heard as expeditiously as possible, at any rate within a month
from the date of receipt of the representation. There shall be
further direction to allow the petitioners to continue in service
till such disposal of the representation.”
4. Indisputably, the question in regard to right of the employees of the
Authority for regularisation in service was considered by this Court in the
case of Jacob (supra). Upon taking into consideration the provisions of
Section 69 of Kerala Water Supply and Sewerage Act, 1986 (for short, ‘the
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1986 Act’) and Rule 9(a)(i) of Kerala State and Subordinate Service Rules
(for short, ‘the Rules’), it was opined :
“…. Therefore, if we interpret Rule 9(a)(i) consistently with the
spirit and philosophy of the Constitution, which it is
permissible to do without doing violence to the said rule, it
follows that employees who are serving on the establishment
for long spells and have the requisite qualifications for the job,
should not be thrown out but their services should be
regularised as far as possible. Since workers belonging to this
batch have worked on their posts for reasonably long spells
they are entitled to regularisation in service.”
5. Indisputably, the appellants were not parties in the said matter before
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this Court. The judgment of this Court was rendered on 19 September
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1990. Appellants made representations to the Authority on or about 19
November 1991 purporting to seek compliance of the judgment of this
Court in the case of Jacob (supra) in their favour. Some of the employees
who are said to be similarly situated filed a writ petition. Indisputably, the
said writ petition was allowed. Certain observations were made therein. An
intra-court appeal against the said judgment was filed by the Authority.
Before the Division Bench of the said Court, an undertaking was allegedly
given by the appellant-Authority that the said writ petitioners would be
appointed on regular basis considering their respective qualifications. In the
light of the said undertaking, the writ appeal was disposed of directing the
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writ petitioners to file representations in terms thereof. Pursuant thereto or
in furtherance of the said directions, seven persons were appointed in
‘regular posts as unskilled workers upon creation of supernumerary posts to
satisfy the judgment of the High Court’.
6. Appellants had also filed a writ petition which was disposed of by an
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order dated 14 July 1998 directing them to file representations, pursuant
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whereto they filed representations on 14 December 1998. However, their
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representations were rejected by an order dated 16 December 1998 by the
Authority.
7. Appellants challenged the order of rejection of their representations
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by filing a writ petition which was disposed of on 10 October 2001 by
directing :
“2. Therefore I dispose of the Original Petition directing the
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1 respondent to afford another opportunity to the petitioners to
present their case represented in Ext.P4. Final orders shall be
passed in accordance with law within a period of four months
from the date of production of copy of this judgment. Needless
to say Ext.P7 will be subject in the said decision.”
8. Pursuant to the aforementioned direction of the High Court,
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appellants filed another detailed representation on 08 December 2001. By
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an order dated 26 March 2002, their representation was rejected by the
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Principal Secretary (Power), In charge of Irrigation & Water Supply,
stating :
“The claims of the petitioners have been examined in
detail with reference to the records and the judgment of
Supreme Court. The Supreme Court Judgment in Jacob Vs.
K.W.A. is applicable only to the employees of the Kerala Water
Authority who were recruited through Employment Exchange
as per Rule 9(a)(i) and who were continuing on the date of
judgment i.e. 19.9.1990. From the records it may be noted that
the petitioners have not been issued any order of appointment
on provisional basis and they were also not appointed through
Employment Exchanges. It may also be noted that they were
not in service on 19.9.1990. The petitioners were only engaged
in daily wages for doing some particular works and they were
disengaged on completion of that work. They were not
appointed to any sanctioned posts, they were not treated on par
with CLR workers in the matter of payment of salary etc. As
per the decision of the Hon’ble High Court Division Bench the
HR workers are not entitled for regularisation re-instatement in
service. Hon’ble High Court has upheld the above decision in
its judgment in O.P. No.15989/94 filed by one
Chandrasekharan Nair and 46 others on a similar request. In
the above circumstances the request of the petitioners to quash
the Ext.P7 seems no consideration.”
9. Appellants thereafter filed another writ petition which was dismissed
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by a learned Single Judge on 07 November 2002 holding :
“3. It is admitted case that the services of the petitioners
were terminated in the year 1987-88. The Supreme Court
pronounced the judgment in Jacob’s case on 19.9.1990. Even
assuming that the petitioners were in service either as daily
wage workers or labourers on monthly payment basis it is
disputable that they were not in service on 19.9.1990. The
view taken by this Court, in giving effect to the judgment of the
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Supreme Court in Jacob’s is that regularisation of workers is
possible only in those cases where the workers were in service
on the date of the Supreme Court Judgment, i.e., 19.9.1990.
Since the petitioners were not in service on that date, the claim
made by them that they are entitled to regularisation in view of
Jacob’s case cannot be sustained. Though other contentions
also have been raised by the counsel for the petitioners, I do not
think I should examine the merits of those contentions since in
my view the petitioners are not entitled to the benefit of the
Judgment of the Supreme Court. Unless the petitioners come
within the purview of that judgment, which is the Magna carta
of the workers of the Kerala Water Authority appointed prior to
the extension of the provisions of the Public Service
Commission (Consultation) Regulations to the Kerala Water
Authority, any other contention will not be of any avail. Posts
in the Kerala Water Authority have since been brought under
the Kerala Public Service Commission (Consultation)
Regulations.”
10. As indicated hereinbefore, an appeal preferred thereagainst has been
dismissed by the impugned order.
11. Dr. K.P.K. Pillay, learned counsel appearing on behalf of the
appellants would submit that the learned Single Judge of the High Court
committed a serious error in passing the impugned judgment insofar as he
failed to take into consideration that in view of the fact that seven persons,
who were similarly situated were appointed, there was absolutely no reason
as to why the case of the appellants should not have been considered by the
Authority as also by the State Government having regard thereto. Delay in
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filing the representation and/or writ petition by the appellants, if any, it was
urged, should be condoned by this Court in exercise of its power under
Article 142 of the Constitution of India.
Learned counsel would furthermore contend that out of the four
categories carved out by this Court in the case of Jacob (supra), the
appellants’ case falls in category (ii) and/or (iii) and thus it was not
necessary for the appellants to be in service on the date of passing of the
said judgment.
12. Mr. G. Prakash, learned counsel appearing on behalf of the
respondents, on the other hand, would support the impugned judgment.
13. The Kerala Water and Waste Water Authority was constituted under
the Kerala Water and Waste Water Ordinance, 1984 which came into force
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on 01 March 1984. The said Ordinance was repealed and was replaced by
the 1986 Act. The employees of the said Authority having regard to the
provisions of the said Act as also the amendments carried out thereafter
were divided into four distinct groups :
“(i) Those who were in the employment of PHED
before the constitution of the Authority and were transferred to
the Authority;
(ii) Those whom the Authority employed between
April 1, 1984 and August 4, 1986;
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(iii) Those who were appointed between August
4,1986 and July 30, 1988; and
(iv) Those who were appointed after July 30, 1988.”
14. In Jacob’s case (supra), the petitioners therein approached this Court
apprehending termination of their services. They had been working in the
Authority as cleaners, pump operators, draftsmen, drivers etc. having been
appointed through the Employment Exchange between 1981 and 1988. It
was contended that for the purpose of their appointment it was not
necessary to consult Public Service Commission. This Court noticed the
provisions of the 1986 Act and the Rules framed thereunder to consider the
question of regularisation of the petitioners therein who were continuing in
service wherefor historical as also constitutional perspectives were taken
into consideration. In terms of Rule 9(a)(i) of the Rules, the appointing
authority could appoint a person temporarily otherwise than in accordance
with the rule, if (i) it was necessary in public interest; and (ii) where an
emergency had arisen to fill any particular post which has fallen vacant,
immediately. Clause (iii) of Rule 9 of the Rules, however, stated that a
person appointed under clause (i) shall, as soon as possible, be replaced by a
member of the service or an approved candidate qualified to hold the post.
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Clause (e) of Rule 9, however, provided that services of any person
appointed under clause (i) of sub-rule (a) be regularised if he had completed
continuous service of two years as on December 22, 1973, notwithstanding
anything contained in the rules.
15. On the aforementioned premise, this Court held :
“(2) The services of workers employed by the Authority
between April 1, 1984 and August 4, 1986 will be regularised
with immediate effect if they possess the requisite
qualifications for the post prescribed on the date of
appointment of the concerned worker.
(3) The services of workers appointed after August 4, 1984
and possessing the requisite qualifications should be regulated
in accordance with Act 19 of 1970 provided they have put in
continuous service of not less than one year, artificial breaks, if
any, to be ignored. The Kerala Public Service Commission
will take immediate steps to regularise their services as a
separate block. In so doing the Kerala Public Service
Commission will take the age bar as waived.”
16. The judgment rendered by this Court must be read in its entirety. It
should not be read as a provision of a Statute. This Court took into
consideration the constitutional scheme to opine that those who are in job
should not be thrown out. The aforementioned observations, therefore,
must be borne in mind while construing clauses (2) and (3) of the operative
part of the judgment of this Court. Jacob (supra) did not and in fact had no
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occasion to take into consideration the cases of the daily wagers appointed
against a particular project and whose services had been terminated after the
project had come to an end.
17. Appellants herein in their writ petition before the High Court as also
before us did not state as to how they had been appointed and for how many
days or months they had worked. They did not disclose as to whether
before their appointment any selection process was resorted to or that they
were registered with the Employment Exchange. There is nothing on record
to show that before their recruitment, the constitutional scheme of equality
as envisaged under Articles 14 and 16 of the Constitution of India was
complied with.
18. A Constitution Bench of this Court in the case of Secretary, State of
Karnataka & Ors. v. Umadevi (3) & Ors. (2006) 4 SCC 1 opined as under :
“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
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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.
….”
29. Dr. Pillay, however, strongly relied upon the observations made in
para 53 in the case of Umadevi (supra) which reads as under :
“53. One aspect needs to be clarified. There may be cases
where regular appointments (not illegal appointments) as
explained in State of Mysore v. S.V. Narayanappa (1967) 1
SCR 128, R.N. Nanjundappa v. T. Thimmiah (1972) 1 SCC 409
and B.N. Nagarajan v. State of Karnataka (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 regularisation 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 regularise 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.
We also clarify that regularisation, if any already made, but not
sub judice, need not be reopened based on this judgment, but
there should be no further bypassing of the constitutional
requirement and regularising or making permanent, those not
duly appointed as per the constitutional scheme.”
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20. A case of regularisation which thus attained finality and was not sub
judice would not come within the purview of exception to the rule contained
in para 53 of the said judgment. Appellants’ case, thus, does not come
within the purview thereof. Only those cases where regularisations had
already been made were not to be re-opened. It is not in dispute that
services of the appellants were terminated as far back as in 1987 and they
did not question the legality or validity of the said order. It is only after the
decision of this Court in Jacob’s case (supra) representations were filed.
Such representations were rejected both by Kerala Water Authority as also
the State of Kerala.
21. Appellants, in our opinion, thus, neither in law nor in equity were
entitled to be reinstated in service. The decision of this Court in Jacob’s
case (supra) being not applicable to the case of the appellants, we are bound
by the ratio laid down in the case of Umadevi (supra). So far as paragraph
53 of the judgment of the Constitution Bench in the said case is concerned,
the same has been considered by this Court in a large number of decisions.
In the case of Punjab Water Supply & Sewerage Board vs. Ranjodh Singh &
Ors., [(2007) 2 SCC 491, it was held :
“ 15. The question came up for consideration before a
Constitution Bench of this Court in Secy., State of Karnataka v.
Umadevi (3) (2006) 4 SCC 1 wherein it was held that no person
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who was temporarily or casually been employed could be
directed to be continued permanently. It was opined that by
doing so it would be creating another mode of public
employment which is not permissible.”
[See Mineral Exploration Corpn. Employees’ Union vs. Mineral
Exploration Corpn. Ltd. [(2006) 6 SCC 310]; State of M.P. & Ors. vs. Lalit
Kumar Verma [(2007) 1 SCC 575]; and Postmaster General, Kolkata &
Others vs. Tutu Das (Dutta) [(2007) 5 SCC 317].
22. For the reasons aforementioned, there is no merit in this appeal and
the same is dismissed accordingly. However, in the facts and circumstances
of this case, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi.
December 17, 2008