Regularization of Daily Wagers in India

The Evolving Jurisprudence of Regularization for Daily Wagers in India: A Critical Analysis

Introduction

The engagement of daily wage workers in public services in India has been a persistent and complex issue, giving rise to extensive litigation and evolving judicial responses. While public employment is expected to adhere to constitutional principles of equality and fair opportunity, the widespread practice of employing individuals on a daily wage basis, often for extended periods, has necessitated judicial intervention to balance the rights of such workers against the imperatives of regular recruitment processes. This article critically analyzes the legal framework governing the regularization of daily wagers in India, drawing primarily upon landmark pronouncements of the Supreme Court and various High Courts, and examines the conditions under which such regularization may be permissible.

The Constitutional Mandate and Public Employment

Public employment in India is governed by the constitutional tenets enshrined in Articles 14 and 16 of the Constitution of India, which guarantee equality before the law and equality of opportunity in matters of public employment.[13] These provisions mandate that appointments to public posts should be made through a fair, open, and competitive process, ensuring that all eligible citizens have an equal chance to secure public employment. The Supreme Court in Secretary, State Of Karnataka And Others v. Umadevi (3) And Others emphasized that adherence to the rule of equality in public employment is a basic feature of the Constitution, and appointments must be in terms of relevant rules and after proper competition.[1] Any deviation from this principle, such as arbitrary or backdoor appointments, is generally impermissible. The judiciary has also taken cognizance of the Directive Principles of State Policy, such as those in Articles 38, 39, 41, and 43, which exhort the State to secure a social order for the promotion of welfare, ensure equal pay for equal work, and make effective provision for securing the right to work, in the context of daily-rated employees who have served for considerable lengths of time.[14]

The Landmark Dictum in Secretary, State of Karnataka v. Umadevi (3)

Core Principles of Umadevi (3)

The Constitution Bench judgment in Secretary, State Of Karnataka And Others v. Umadevi (3) And Others[1] (hereinafter Umadevi (3)) is a seminal authority on the regularization of temporary, contractual, casual, or daily wage employees. The Court unequivocally held that regularization cannot be a mode of appointment. It deprecated the practice of courts directing wholesale regularization of employees appointed without adhering to the constitutional scheme of public employment, i.e., Articles 14 and 16. The Court clarified that unless an appointment is made in terms of the relevant rules and after a proper competition among qualified persons, it would not confer any right on the appointee.[13] Contractual or daily wage appointments come to an end when the contract expires or the engagement is discontinued, and mere continuance for a period beyond the initial term does not entitle such employees to absorption or permanency if the original appointment was not through a due process.[1] The Court stressed that "litigious employment," where temporary employees secure court orders for their continuance and eventual regularization, undermines the established recruitment framework.[1] Consequently, regularization of casual workers appointed contrary to law is generally not permissible.[21, 22]

The One-Time Measure Exception

Despite the general bar against regularization, Umadevi (3) carved out a specific, one-time exception. The Court observed that as a one-time measure, the Union of India, the State Governments, and their instrumentalities should take steps to regularize the services of irregularly appointed (not illegally appointed) employees who had worked for ten years or more in duly sanctioned posts but without the cover of orders of courts or tribunals.[1] This was intended to be a one-time measure and not a continuing basis for future regularization claims. The Court emphasized that such regularization should be a one-time exercise and should not be used as a precedent for future claims. The State was to formulate a scheme for this purpose within six months from the date of the judgment (April 10, 2006).[2]

Post-Umadevi (3) Judicial Scrutiny and Elaboration

Clarifications in State of Karnataka v. M.L. Kesari

The Supreme Court in State Of Karnataka & Ors. v. M L Kesari & Ors.[2] further elaborated on the one-time measure enunciated in Umadevi (3). The Court clarified the conditions for eligibility under this exception:

  1. The employee must have worked for 10 years or more in a duly sanctioned post without the benefit or protection of an interim order of any court or tribunal.
  2. The appointment should be 'irregular' and not 'illegal'. An appointment made without following the due process for selection (e.g., without open competition) but against a sanctioned post by a competent authority is an 'irregular' appointment, whereas an appointment made against no sanctioned post or by an authority not competent to appoint, or if the appointee lacked prescribed qualifications, would be an 'illegal' appointment.
M.L. Kesari emphasized that it is the responsibility of governmental bodies to undertake this one-time regularization exercise and that employees whose cases were pending should not be excluded solely on that ground.[2]

The Imperative of Sanctioned Posts

A crucial prerequisite for regularization, even under the Umadevi (3) exception, is the availability of duly sanctioned posts. In Gujarat Agricultural University v. Rathod Labhu Bechar[7] and subsequently in Vice Chancellor Anand Agriculture University (S) v. Kanubhai Nanubhai Vaghela And Another (S),[8] schemes for regularization stipulated that daily wagers would be regularized against available regular sanctioned posts/vacancies, provided they had completed 10 years of continuous service with a minimum of 240 days each year and possessed the prescribed qualifications. However, in Nihal Singh And Others v. State Of Punjab And Others,[6] where Special Police Officers (SPOs) had been employed for a long period, the Supreme Court directed their regularization, reasoning that the State could not deny regularization on the ground of non-availability of sanctioned posts when it had continued to avail their services for tasks of a regular nature. The Court held that the State’s failure to create necessary positions after benefiting from their services constituted arbitrary inaction.[6]

Distinguishing "Illegal" from "Irregular" Appointments

The distinction between 'illegal' and 'irregular' appointments is central to the applicability of the Umadevi (3) exception. An illegal appointment is void ab initio and cannot be regularized. An irregular appointment, however, refers to one made by a competent authority to a sanctioned post, but without strictly adhering to the prescribed procedure for selection (e.g., lack of advertisement or full competitive process). In Amarendra Kumar Mohapatra And Others v. State Of Orissa And Others,[4] the Supreme Court upheld the Orissa Service of Engineers (Validation of Appointment) Act, 2002, which regularized ad hoc Assistant Engineers whose appointments were in breach of rules. The Court treated this not as a pure validation act but as a legislative measure for regularizing services, finding the classification reasonable under Article 14.[4] The Karnataka High Court in SHIVABASAPPA v. THE PRINCIPAL SECRETARY[15] observed that where appointments were not illegal but possibly "irregular," and employees had served continuously against sanctioned functions for a considerable period, a fair and humane resolution towards regularization becomes paramount, distinguishing such cases from backdoor entries.[15]

Continuous Service and its Interpretation

The requirement of continuous service, typically defined as 10 years with a minimum of 240 days in each calendar year, is a common feature in regularization policies and judicial considerations.[7, 8] Various state policies have adopted similar or slightly modified criteria. For instance, policies in Himachal Pradesh considered 8 years of continuous service (with 240 days per year) as of a certain cut-off date for eligibility.[10, 11] In Union Of India And Others v. Dharma Pal And Others,[9] daily-wage employees who completed 10 years' service as on a specific date were to be considered for regularization subject to post availability. The consistent theme is that prolonged, uninterrupted service in a capacity that fulfills ongoing needs of the employer strengthens the claim for regularization, provided other conditions are met.

State-Specific Policies and Judicial Review

Judicial Intervention in Policy Implementation

Many states have formulated their own policies for the regularization of daily wagers, often in response to judicial directives or to address long-standing employee grievances. Courts have frequently been called upon to interpret and enforce these policies. In State Of Gujarat And Others v. Pwd Employees Union And Others,[5] the Supreme Court upheld the applicability of a 1988 Gujarat government resolution for regularizing daily-wage workers in the Forest Department, emphasizing that the resolution was intended for all daily-wage workers across departments. Similarly, High Courts have adjudicated on the implementation of state-specific policies, such as those in Himachal Pradesh,[10, 11, 17] and Jharkhand (Regularization Rules, 2015).[19] The Madhya Pradesh High Court, in The Managing Director v. Rajesh Kumar Mistri,[23] noted a state government circular for regularization of daily wagers. These cases illustrate the judiciary's role in ensuring that regularization policies are applied fairly and consistently with the principles laid down in Umadevi (3) and subsequent judgments.

The Challenge of Perpetual Ad Hoc Employment

Courts have expressed disapproval of the practice of engaging workers on a daily-wage or temporary basis for tasks that are perennial in nature. The Patna High Court in Manish Kumar v. The State of Bihar[12] observed that Indian labour law strongly disfavors perpetual daily-wage engagements where the work is permanent. It reiterated that Umadevi (3) cannot be used as a shield to justify exploitative engagements persisting for years without legitimate recruitment.[12] The Karnataka High Court in SHIVABASAPPA v. THE PRINCIPAL SECRETARY[15] echoed this, stating that prolonged, continuous service performing tasks inherently required on a regular basis can transform an initially ad-hoc scenario into one demanding fair regularization. The Gujarat High Court in Gujarat State Road Transport Corporation v. A.M Shaikh[18] also highlighted that when work is of a permanent nature, it is expected that the workman would continue permanently unless engaged to fill a temporary need.[18]

The Principle of Equal Pay for Equal Work

While regularization itself is governed by the stringent criteria post-Umadevi (3), the principle of 'equal pay for equal work' (often linked to Article 39(d) of the Constitution) has been invoked by daily wagers. In State Of Haryana And Others v. Piara Singh And Others,[3] the Supreme Court, while setting aside a High Court direction for unconditional regularization, acknowledged the concerns regarding ad hoc employment. The Court, however, cautioned that the principle of 'equal pay for equal work' is not an abstract one and requires a clear basis of equivalence.[16] In State of U.P. v. Putti Lal (cited in Ram Bhawan And Ors.[16]), the Supreme Court directed consideration for payment of minimum of the pay scale as applicable to counterparts in government. While Umadevi (3) clarified that temporary employees cannot claim parity with regular employees merely on the strength of continuance, the payment of minimum wages or minimum of the pay scale to daily wagers performing similar duties as regular employees has often been judicially supported, distinct from the claim of regularization.

Challenges and Considerations in Regularization

The process of regularization involves navigating several challenges:

  • Financial Implications: Regularizing a large number of daily wagers imposes significant financial burdens on the State exchequer, a factor courts often consider.[18]
  • Balancing Equities: There is a need to balance the legitimate expectations of long-serving daily wagers against the rights of other eligible citizens awaiting regular recruitment and the public interest in maintaining a transparent and merit-based employment system.
  • Avoiding Backdoor Entry: The primary concern highlighted in Umadevi (3) is to prevent regularization from becoming a means to bypass constitutional recruitment procedures, effectively legitimizing 'backdoor entries'.[1]
  • Adherence to Eligibility Criteria: Strict adherence to conditions like length of service, nature of appointment (irregular v. illegal), availability of sanctioned posts, and possession of requisite qualifications is essential.[7, 8]
  • Work-Charged Establishments: The status of employees in work-charged establishments often presents unique issues. While some daily wagers in such establishments might be retrenched upon project completion,[9] others performing continuous duties might have claims. The issue of counting past daily-wage service in work-charged establishments for pensionary benefits post-regularization has also been a subject of litigation.[20]

Conclusion

The jurisprudence on the regularization of daily wagers in India, spearheaded by the Constitution Bench decision in Umadevi (3), has sought to bring order and constitutional discipline to public employment practices. While firmly establishing that regularization cannot be a routine mode of appointment and must not subvert the principles of Articles 14 and 16, the Supreme Court did provide a narrow, one-time window for regularizing long-serving irregularly appointed employees. Subsequent judicial pronouncements have largely reinforced this framework, meticulously scrutinizing claims for regularization against the touchstones of sanctioned posts, the distinction between illegal and irregular appointments, and the duration of continuous service. State-specific policies, often formulated under judicial guidance, attempt to operationalize these principles. The overarching judicial endeavor remains to curb arbitrary employment practices and prevent the exploitation of daily wagers, while simultaneously upholding the sanctity of regular, merit-based recruitment in public services. The challenge lies in consistently applying these principles to ensure fairness to individuals who have rendered long years of service without undermining the constitutional scheme of public employment.

References