Leave granted.
The respondent was employed with the appellant company as a daily-rated
Mazdoor. He was recruited in the year 1973. He was appointed on regular basis with
effect from 11.8.1986. He attained the age of superannuation on 30th August, 1989.
Thereafter, again while working on daily-wages, his services were terminated in 1993.
He filed a representation for payment of gratuity as also other retiral benefits. He
having been denied the retiral benefits on the premise that he had not completed 10
years' qualifying service as required in terms of the Service Rules, he filed an original
application before the Central Administrative Tribunal.
The said application was allowed inter alia on the premise that the appellant
had formulated a regularisation scheme in the year 1989 in terms whereof the
respondent should have been given a permanent status. The High Court has upheld
the said view.
A Constitution Bench of this Court in Secretary, State of Karnataka and
Ors. vs. Umadevi (3) and Ors. [2006 (4) SCC 1], has categorically held that keeping in
view the constitutional scheme of equality, as contained in Articles 14 and 16 of the
Constitution of India, regularisation or permanent continuance of temporary,
contractual, casual, daily-wage or ad hoc employees in public employment dehors the
constitutional scheme is impermissible in law.
By way of one time concession the Constitution Bench, however, held as
under:
“53. One aspect needs to be clarified. There may be cases where
regular appointments (not illegal appoints) as explained in S.V.
Narayanappa (1967 1 SCR 128), R.N. Nanjundappa (1972 1 SCC 409)
and B.N. Nagarajan (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.”
We may notice that the law in this behalf has been laid down by the
Constitution Bench of this Court, stating:
“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 and the end of the contract, if it were an
engagement or appointment on daily wags 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 entitle 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.”
In view of the said decision of the Constitution Bench, there cannot be any
doubt whatsoever that the 1989 regularisation scheme having not been enforced in the
case of the respondent, it did not come within the purview of the exception carved out
by the Court in paragraph 53, of Umadevi as quoted above. The view of the
Constitution Bench in Umadevi (supra) has been reiterated by a three-Judge Bench of
this Court in Official Liquidator vs. Dayanand and Ors. [2008 (10) SCC 1], stating
that the High Courts shall give effect thereto, opining:
“90. We are distressed to note that despite several pronouncements on
the subject, there is substantial increase in the number of cases
involving violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to follow and
accept the verdict and law laid down by coordinate and even larger
Benches by citing minor difference in the facts as the ground for doing
so. Therefore, it has become necessary to reiterate that disrespect to
the constitutional ethos and breach of discipline have grave impact on
the credibility of judicial institution and encourages chance litigation.
It must be remembered that predictability and certainty is an
important hallmark of judicial jurisprudence developed in this
country in the last six decades and increase in the frequency of
conflicting judgments of the superior judiciary will do incalculable
harm to the system inasmuch as the courts at the grass roots will not
be able to decide as to which of the judgments lay down the correct
law and which one should be followed.
91. We may add that in our constitutional set-up every citizen is under
a duty to abide by the Constitution and respect its ideals and
institutions. Those who have been entrusted with the task of
administering the system and operating various constituents of the
State an who take oath to act in accordance with the Constitution and
uphold the same, have to set an example by exhibiting total
commitment to the constitutional ideals. This principle is required to
be observed with greater rigour by the members of judicial fraternity
who have been bestowed with the power to adjudicate upon important
constitutional and legal issues and protect and preserve rights of the
individuals and society as a whole. Discipline is sine qua non for
effective and efficient functioning of the judicial system. If the courts
command others to act in accordance with the provisions of the
Constitution and rule of law, it is not possible to countenance violation
of the constitutional principle by those who are required to lay down
the law.
92. In the light of what has been stated above, we deem it proper to
clarify that the comments and observations made by the two-Judge
Bench in U.P. SEB v. Pooran Chandra Pandey (2007 11 SCC 92)
should be read as obiter and the same should neither be treated as
binding by the High Courts, tribunals and other judicial foras nor
they should be relied upon or made basis for bypassing the principles
laid down by the Constitution Bench.”
For the reasons aforementioned, we are of the opinion that the view of the
learned Tribunal as also the High Court cannot be sustained. The impugned judgment
is, therefore, set aside and the appeal is allowed accordingly. No costs.
(S.B. SINHA)