High Court dismissed writ petitions seeking regularization of daily-wage employees engaged prior to 1990. Court held that court cannot direct regularization for those not working after the cut-off date and emphasized distinction between irregular and illegal appointments per Uma Devi precedent.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18023 of 2019
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Versus
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with
Civil Writ Jurisdiction Case No. 18539 of 2019
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Post Office Asarhi, Police Station Rajpur District Rohtas at Sasaram.
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| ===================== | ... ... Respondents ================================= |
|---|---|
| Appearance : | |
| (In Civil Writ Jurisdiction Case | No. 18023 of 2019) |
| For the Petitioners : |
Mr.Jitendra Kumar Roy, Advocate |
| For the Respondents : (In Civil Writ Jurisdiction Case |
Mr.Md. N.H. Khan, SC-1 Mr.Fazle Karim, AC to SC-1 No. 18539 of 2019) |
| For the Petitioners : |
Mr.Ravindra Nath Dubey, Advocate |
| For the Respondents : ===================== |
Mr.Anant Prasad Singh, SC-15 ================================= |
| CORAM: HONOURABLE SINGH ORAL JUDGMENT |
MR. JUSTICE CHAKRADHARI SHARAN |
Date : 14-10-2019
More than four decades ago, the Supreme Court, in case of B. Nagrajan vs. State of Karnataka , reported in (1979) 4 SCC 507 , in clear terms, decided the distinction between irregular and illegal appointments. This has been consistent judicial approach that something, which is illegal, cannot be regularized or validated in the matter of public employment, though an irregularity can be
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regularized. Since, in both the writ applications, common question has arisen, as to whether this Court, exercising writ jurisdiction under Article 226 of the Constitution of India, may direct regularization of services of the petitioners on the ground that they had worked as daily-wage employees under the Departments of the State Government for a long period of time, they have been heard together and are being disposed of by present common judgment and order.
2. Facts of the two cases need to be briefly taken note of before addressing the relief, which the petitioners are seeking, in the background of various judicial pronouncements.
3. There are seven petitioners in C.W.J.C. No. 18023 of 2019, who claim that they were engaged on daily-wage basis in the office of the Executive Engineer, Irrigation Division, Saharsa, discharging their duties as Gauge Reader and Canal Chowkidar prior to 1990. According to them, there was a policy decision of the State Government, contained in Resolution No. 5940 dated 18.06.1993, which stipulated that such daily-wage employees, who were engaged prior to 01.08.1985, would be given the benefit of regularization. Subsequently, the State Government came out with another resolution, issued by Memo No. 489 dated 10.05.5005, whereby the cut off date was extended from 01.08.1985 to
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11.12.1990. By yet another resolution, issued by Memo No.369 on 16.03.2006, the State of Bihar decided to allow the benefit of regularization to all such daily-wagers, who had worked for a minimum period of 240 days prior to 11.12.1990. Claim of the petitioners for regularization is apparently based on the said Resolution dated 16.03.2006, which has been brought on record by way of Annexure-2.
4. It is significant to note that the pleadings do not indicate the specific periods during which the petitioners had worked as daily-wage employees. There is no statement that they ever worked after 1990. They have a grievance that the District Magistrate, Supaul, is not taking a final decision to regularize their services after preparation of a panel of such daily-wage employees, who deserve regularization in terms of the decision of the State Government as contained in Resolution dated 16.03.2006. There is no averment in the writ application that any selection process was ever undertaken in conformity with Articles 14 and 16 of the Constitution of India at the time of their engagement on daily-wage basis prior to 1990.
5. There are 84 petitioners in C.W.J.C. No. 18539 of 2019. It has been stated in paragraph 12 of the writ application that they had been working under Shahabad Forest Division (Rohtas
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Forest Division) till 1990 and according to them, the respondents are not not taking required steps for regularization of their services. The petitioners have not brought on record any engagement/appointment letter.
6. On the basis of above stated facts, the petitioners of C.W.J.C. No. 18023 of 2019 are seeking the following relief : -
“That this is an application for issuance of an appropriate writ order or direction to the respondent authorities specially the respondent no.3 to complete the process of regularization of the petitioners who were earlier working on daily wages in the office of respondent no. 6 pursuant to a Govt. policy decision issued under the signature of respondent no.1 vide letter no.639 dated 16.3.2006 and the subsequent direction but inspite of submission of the list prepared by the respondent no.6 dated 6.1.2009 of 48 daily wages employees who worked prior to 11.12.1990 at least 240 days that includes the name of petitioners, but only the meetings are being held and no final decision has been taken as it appears from the meeting held on 10.7.2018 under the Chairmanship of District Magistrate, Supaul, issued vide memo no.9-1 dated 10.7.2018 specially the resolution no.5 that discuss the case of petitioners entering their name in the said resolution but matter was sent back to the respondent no. 5, 6 and 7 for providing the certain information and matter is kept pending and further be pleased to direct the respondents to provide the complete information so that regularization of the petitioners be made in pursuant to govt. policy decision dated 16.3.2006 considering the list of daily wages employee prepared on 6.1.2009 and also find place in resolution no.5 as one time major.”
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7. Petitioners of C.W.J.C. No. 18539 of 2019 have sought following relief : -
“That this writ application is being filed for issuance of appropriate writ/writs, order/orders, direction/directions to the respondents to consider the case of the petitioner for appointment on Class IV post as per government policy and further direct the respondents to send the name of the petitioners for preparation of penal for appointment on Class IV post because the petitioners are working on daily-wages from more than 20 years under the respondents but till date the petitioners were neither absorbed in service nor the name of the petitioners are empanelled in the daily-wages list and further for direction to the respondents to consider the petitioners’ case for giving work as per seniority and as per the agreement signed by the respondents and further direct the respondents to pay the wages to the petitioners regularly and also pay the dues of the petitioners like other similarly situated persons and further for any other relief/reliefs as the petitioners are found entitled to in the facts and circumstances of the case.”
8. The right of temporary/daily-wage employees to be regularized in service on the basis of long continuance, legitimate expectation, employment under the State has been elaborately dealt in the Constitution Bench decision of the Supreme Court, in case of State of Karnataka vs. Uma Devi(3) , reported in (2006) 4 SCC 1 . There was another significant question before the Supreme Court in Uma Devi (supra) as to whether the Courts would be justified in issuing directions for regularization based on the
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features like long spell of service. The Supreme Court, in case of Uma Devi (supra), discussed in detail the distinction between irregular and illegal appointment. The Court held that while answering the question as to whether an appointment is regular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of nonadherence to essential prerequisites or was liable to be faulted on account of the lack of a fair process of recruitment. The oft quoted paragraph 53 of the Supreme Court’s decision in case of Uma Devi (supra) has been dealt and applied in a series of subsequent Supreme Court’s decisions and in my view, since the enunciation of law in paragraph 53 of the said decision is of immense significance, the same is being reproduced hereinbelow : -
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] 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
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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.”
9. On the question, whether the Courts should issue a writ of mandamus directing the employer State or its instrumentalities to absorb them in permanent service or to allow them to continue, relying on a Constitution Bench decision of Supreme Court in case of Rai Shivendra Bahadur (Dr.) vs. Governing Body of Nalanda College (AIR 1962 SC 1210) , the Supreme Court held, in case of Uma Devi (supra), that the classical position that mandamus cannot be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. The Supreme Court further held that right of employment would stand denuded by preferring those who have got any casual or those who have come through the
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backdoor. An obligation is cast on the State under Article 39(a) of the Constitution of India to ensure that all citizens have equal right to adequate means of livelihood. The Apex Court made following significant observations in case of Uma Devi (supra) : in paragraph 51 : -
“…. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.”
10. The distinction between irregular appointment and illegal appointment has been clearly stated by Supreme Court in case of State of M.P. Vs. Lalit Kumar Verma , reported in (2007) 1 SCC 575 , paragraph 12 of which reads thus :-
“12. The question which, thus, arises for consideration, would be: Is there any distinction between “irregular appointment” and “illegal appointment”? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is “State” within the meaning of Article 12 of the
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Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.”
11. The law laid down in case of Uma Devi (supra) that Court’s should not issue writs directing regularization unless the employees are in a position to establish their constitutional or legal right and obligation of the employer, ‘State’ within the meaning of Article 12 of the Constitution of India, to absorb them, has been reiterated by the Supreme Court in case of Satya Prakash vs. State of Bihar , reported in (2010) 4 SCC 179 , in paragraph 8, which reads thus : -
“8. In Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] this Court held that the courts are not expected to issue any direction for absorption/regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that such directions issued could not be said to be inconsistent 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.”
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12. If the appointment itself is in breach of rules or in violation of the provisions of the Constitution, such illegality, in my opinion, cannot be regularized. Ratification or regularization is possible of an act, which is within the power and province of the authority but there has been some non-compliance with the procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment, the Supreme Court has observed in case of R.N. Nanjundappa v. T. Thimmiah , reported in (1972) 1 SCC 409 .
13. The Supreme Court, in case of M.L.Kesari vs. State of Karnataka , reported in (2010) 9 SCC 247 , explained the decision in case of Uma Devi (supra) and held as follows in paragraph 7 thereof :-
7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) [(2006) 4 SCC 1] , if the following conditions are fulfilled:
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14. In subsequent decision in case of State of Rajasthan vs. Daya Lal , reported in (2011) 2 SCC 429 , the Supreme Court, considering the law laid down in case of Uma Devi (supra) and subsequent decisions, laid down in paragraph 12 as ‘well settled principles relating to regularization and parity in pay’, which reads as under : -
“12. We may at the outset refer to the following wellsettled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
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While 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 regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
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15. A question had arisen before this Court as to whether the decision in case of M.L.Kesari (supra) makes any distinction between ‘illegal and irregular appointments’ as enunciated in case of Uma Devi (supra), before a Full Bench of this Court on reference in case of Ram Sevak Yadav vs. State of Bihar , reported in 2013(1) PLJR 964 (F.B.) . After having referred to the decision in case of M.L.Kesari (supra), the Full Bench of this Court in case of Ram Sevak Yadav (supra) held in paragraph 33 as follows : -
“33. As we read the paragraph, in our humble opinion, and to the best of our appreciation and understanding, a person not appointed against a sanctioned post and not possessing the requisite qualification for the post is not entitled to regularisation even if he has worked for over ten years. But a person possessing the requisite qualifications appointed against a sanctioned post and who has continued over ten years without aid of Court orders is eligible for regularisation even if the appointment was made without the process of open competitive selection. The catena of decisions noticed by us of the Apex Court in no uncertain terms provide that if the appointment was in violation of Article 14 without advertisement and equal opportunity to all eligible for being
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considered, the question of regularisation does not arise. Only if some rudimentary compliance even by registration with and calling of names from the employment exchange was followed, could regularisation be considered if it was made against a sanctioned post. Mere appointment against a sanctioned post without furthermore shall not suffice. With all the humility at our command, again in our humble opinion a competitive selection even in such a case is the mandate of the Constitution bench at paragraph 43 extracted above.”
16. The Full Bench has summed up the law in paragraph
43 as follows : -
“43. We therefore sum up our conclusions and answer the reference as follows:-
A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;
B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances.
C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.”
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17. In view of the facts pleaded in the writ application and the law dealing with regularization of irregular and illegal appointments, as noted above, since I am of the considered view that the initial engagement of the petitioners itself cannot be said to have been made in a manner, which can be termed as constitutionally permissible. Further, question of regularization of the petitioners will even otherwise not arise since, according to their own case, they are not working after 1990 and, a fortiori , they cannot claim reinstatement and regularization, by way of right in a proceeding under Article 226 of the Constitution of India at this stage.
18. These writ applications are dismissed as meritless for the foregoing reasons.
19. There shall be no order as to costs.
(Chakradhari Sharan Singh, J)
Pawan/-
| AFR/NAFR | NAFR |
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| CAV DATE | N/A |
| Uploading Date | 17.10.2019. |
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3 issues framed by the court
Whether the High Court can direct regularization of daily-wage employees who worked prior to 1990 based on state government resolutions.
Whether petitioners who were not working after 1990 have a right to regularization.
Whether the principles laid down in Uma Devi case prohibit regularization of temporary daily-wagers without open competitive selection.
Colour shows how this judgement treated each authority
B. Nagrajan vs. State of KarnatakaRelied on¶129
B. Nagrajan vs. State of Karnataka (1979) 4 SCC 507 · Who else cites this
State of Karnataka vs. Uma Devi (3)Relied on¶145
State of Karnataka vs. Uma Devi (3) (2006) 4 SCC 1 · Who else cites this
State of M.P. Vs. Lalit Kumar VermaRelied on¶155
State of M.P. Vs. Lalit Kumar Verma (2007) 1 SCC 575 · Who else cites this
Satya Prakash vs. State of BiharRelied on¶159
Satya Prakash vs. State of Bihar (2010) 4 SCC 179 · Who else cites this
R.N. Nanjundappa v. T. ThimmiahRelied on¶162
R.N. Nanjundappa v. T. Thimmiah (1972) 1 SCC 409 · Who else cites this
M.L.Kesari vs. State of KarnatakaRelied on¶163
M.L.Kesari vs. State of Karnataka (2010) 9 SCC 247 · Who else cites this
State of Rajasthan vs. Daya LalRelied on¶168
State of Rajasthan vs. Daya Lal (2011) 2 SCC 429 · Who else cites this
Ram Sevak Yadav vs. State of BiharRelied on¶178
Ram Sevak Yadav vs. State of Bihar 2013(1) PLJR 964 (F.B.)
Md. Sairul and others
Vijay Prasad and others
The State of Bihar
Chakradhari Sharan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
