2006 Supreme(SC) 335

2006(3) Supreme 415
SUPREME COURT OF INDIA
(From Karnataka High Court)
Y.K. Sabharwal, CJI., Arun Kumar, G.P. Mathur, C.K. Thakker and P.K. Balasubramanyan, JJ.
Secretary, State of Karnataka & Ors.—Appellants
versus
Umadevi & Ors.—Respondents
Civil Appeal Nos. 3595-3612/1999
With
C.A. Nos. 1861-2063/2001, 3849/2001, 3520-3524/2002 and 1968/2006
(Arising out of SLP (C) 9103-9105 of 2001)
All decided on 10-4-2006
Counsel for the Parties :
For the Appearing Parties : Mukul Rohtagi, M.C. Bhandare, Raju Ramachandran, Sr. Advocates, Sanjay R. Hegde, Saurabh Kirpal, Anil K. Mishra, A. Rohen Singh, Mohan V. Katarki, M.A. Limbikai, Ashok Kumar Sharma, Naveen R. Nath, Ranganath Jois, Ms. Anitha Shenoy, Ms. Lalit Mohini Bhat, Ms. Pooja Dhar, Saurabh Sinha, Joseph Pookkatt, Arvind Kamath, Ms. Simanti Chakrabarti, Basava Prabhu S. Patil, A.S. Bhasme, B. Subrahmanya Prasad, V. Laxminarayana, Kashi Vishweshwar, Nikhil

Majithia, Prashant Kumar, Rajesh Mahale and S. Manjunath, Advocates.
VERY IMPORTANT POINTS
1. Any public employment has to be in terms of the constitutional scheme. Regular appointment must be the rule though a sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages.
2. It is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
3. Merely because, an employee had continued under cover of an order of Court, called ‘litigious employment’, he would not be entitled to any right to be absorbed or made permanent in the service.
4. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, such a person cannot invoke the theory of legitimate expectation for being confirmed in the post.
5. Where irregular appointments, not illegal appointments of duly qualified persons in duly sanctioned vacant posts have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals, the question of regularization of the services of such employees may have to be considered on merits.

Headnote:(i) SERVICE LAW—Constitution of India—Article 309—National Rural Employment Guarantee Act, 2005—Public employment—Constitutional scheme—Equality of opportunity is the hallmark—Constitution has provided also for affirmative action to ensure that unequals are not treated equals—Any public employment has to be in terms of the constitutional scheme—A regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up.

       Held : A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted. The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.(Para 2)

       (ii) SERVICE LAW—Appointments —Public employment—Irregular appointments made especially in lower rungs of service—Appointments made on contract or on daily wages, to continue year after year—Litigious employment—Courts have occasionally even stayed the regular process of employment being set in motion—In some cases, courts have even directed that these illegal, irregular or improper entrants be absorbed into service—Such orders are passed apparently in exercise of wide powers under Article 226 of the Constitution—Whether invocation of doctrine of legitimate expectation can enable the employees to claim that they must be made permanent or must be regularized in the service though they had not been selected in terms of rules for appointment—(No).

       Held : When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.(Para 38)

       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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, 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 Court, which we have described as ‘litigious employment’ in the earlier part of the judgment, he would not be entitled 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 by passing of the constitutional and statutory mandates.(Para 34)

       (iii) SERVICE LAW—Constitution of India—Arts. 14 and 16—Employees engaged on daily wages—No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate and made permanent in employment—There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis to claim that they have a right to be absorbed in service—They cannot be said to be holders of a post.

       Held : The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.(Para 39)

       (iv) SERVICE LAW—Constitution of India—Articles 32 and 226—Appointments made on daily wages or on contract basis—Claim of regularization or permanence in employment—Can the Court impose on the state a financial burden of this nature by insisting on regularization or permanence in employment—(No).

       Held : Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter-productive.(Para 17)

       (v) SERVICE LAW—Temporary Employment on daily wages—Claim of regularization—Respondents were engaged for the first time in years 1985-86— Though the Director of Commercial Taxes, the concerned Department recommended that they be absorbed, the Government did not accede to that recommendation—Administrative Tribunal rejected their claim holding that they have no right either to get wages equal to that of others regularly employed or for regularization—High Court held that claimants were entitled to wages equal to the salary and allowances that were being paid to regular employees of their cadre in government service with effect from the dates from which they were respectively appointed —High Court also issued a command to the State to consider their case for regularization within a period of four months—Whether judgment of the High Court is sustainable—(No).

       Held : In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that those employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to an other benefit. They had also been engaged in the teeth of directions not to do so. 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 are 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 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. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, 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. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.(Para 46)

       (vi) SERVICE LAW—Constitution of India—Article 226—Order of government directing cancellation of appointments of all casual workers/daily rated workers made after 1-7-1984—Appellant association with indefinite number of members filed writ petition challenging order of the government—Prayer made for a direction for regularization of all daily wagers engaged by State Government and its local bodies—High Court held that daily wage employees, employed or engaged either in government departments or other statutory bodies after 1.7.1984, were not entitled to the benefit of the scheme framed by the Supreme Court in Dharwad case—Whether claimant employees are entitled to any relief—(No).

       Held : These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief.(Para 47)

       (vii) Constitution of India—Article 21—Right to life—Whether would include right to employment—(No)—Appointments made on daily wages or on contract basis—Rejection of claim for regularisation—Whether action of State in not making the employees permanent, would be violative of Article 21 of the Constitution—(No).

       Held : It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. (Para 41)

       The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize 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 recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing 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.(Para 42)

       (viii) Constitution of India—Article 23—Employment on daily wages—Whether amounts to forced labour—(No).

       Held : The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.(Para 41)

       (ix) Constitution of India—Articles 32, 226—Writ Petition—Temporary employees—Whether a mandamus could be issued in favour of such persons for directing the employer, the State or its instrumentalities to absorb them in permanent service or to allow them to continue—(No).

       Held : This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not 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.(Para 43)