Full Judgment Text
REPORTABLE
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]
JUDGMENT
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.