K.S.P Radhakrishnan, J.— Leave granted. The appellants who had worked on daily wages for over ten years have approached this Court claiming benefit of para 53 of the Constitution Bench judgment of this Court in State of Karnataka v. Umadevi (3) (2006) 4 SCC 1. Some doubts were there with regard to the meaning and content of para 53 read with paras 15, 16 and para 8 read with para 55 of the judgment in Umadevi (3) case (2006) 4 SCC 1 which has been subsequently explained by this Court in several judgments. Reference may be made to the judgments of this Court in Punjab Water Supply & Sewerage Board v. Ranjodh Singh (2007) 2 SCC 491, State of Punjab v. Bahadur Singh (2008) 15 SCC 737, C. Balachandran v. State of Kerala (2009) 3 SCC 179 and State of Karnataka v. G.V Chandrashekar (2009) 4 SCC 342, etc. Almost identical situation arises for consideration in this case as well.
2. The appellants who had worked for more than 10 years on daily-rated basis in the Bihar Intermediate Education Council had approached the Patna High Court for regularisation of their services and a learned Single Judge of the Patna High Court directed the Council to consider their request for regularisation treating them as a separate class after relaxing their age. Since no positive direction was given to the Council for regularisation of their services, an appeal was preferred before the Division Bench of the Patna High Court. The Division Bench held that merely because they had worked as daily-wage employees with the Council would not confer any right for regularisation as no public appointment was permissible dehors the recruitment rules. The letters patent appeal was, therefore, dismissed in limine. Aggrieved by the same this appeal has been preferred with a petition for special leave to appeal.
3. Mr Gaurav Agrawal, learned counsel appearing for the appellants submitted that the appellants belong to the reserved community and that they had worked on daily-wage basis in sanctioned posts from February/July 1995 to February 2005 and that too not on the strength of any order passed by the court or tribunal.
4. The learned counsel submitted that the appellants are entitled to get the benefit of the judgment in Umadevi (3) case (2006) 4 SCC 1. Reference was made to para 53 of the aforesaid judgment and it was submitted that this Court had directed the Union of India, the State Governments and their instrumentalities to take steps to regularise as a one-time measure, the services of irregularly appointed persons who had worked for ten years or more in duly sanctioned posts. The learned counsel submitted that the same benefit be extended to persons who had worked on daily-wage basis for over 10 years.
5. The learned counsel appearing for Respondents 3 to 5 submitted that the Council had engaged the appellants only on daily-wage basis and they were never appointed in any sanctioned posts and, therefore, they would not get the benefit of the directions contained in Umadevi (3) case (2006) 4 SCC 1 which are applicable only to those qualified employees who were appointed irregularly in sanctioned posts.
6. The learned counsel submitted that the Council in the year 1995 had decided to fill up the posts of assistant/routine clerk and peon on regular basis and an advertisement to that effect was published on 25-2-1995. The appellants and several other persons applied but no panel or merit list was prepared by the Council. Accordingly, no appointments were effected. Council, though took a decision on 16-12-1999 to complete the selection process including preparation of merit list by 15-1-2000, it did not materialise due to the creation of the new State of Jharkhand by the Bihar Reorganisation Act, 2000. Further, the Bihar Education Council itself was dissolved by the Bihar Intermediate Education Council (Repeal) Act of 2007 and hence there was no question of regularisation of any employee in the Council. The functions of the erstwhile Intermediate Council are now being performed by the Bihar School Examination Board which is following its own recruitment rules. Under such circumstances, it was stated that the directions sought for by the appellants for regularisation of their services in the Council cannot be granted.
7. We are of the view that the appellants are not entitled to get the benefit of regularisation of their services since they were never appointed in any sanctioned posts. The appellants were only engaged on daily wages in the Bihar Intermediate Education Council.
8. In Umadevi (3) case (2006) 4 SCC 1 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.
9. Para 53 of Umadevi (3) (2006) 4 SCC 1 judgment deals with irregular appointments (not illegal appointments). The Constitution Bench specifically referred to the judgments in State Of Mysore v. S.V Narayanappa AIR 1967 SC 1071, (1967) 1 SCR 128 and R.N Nanjundappa v. T. Thimmiah (1972) 1 SCC 409 in para 15 of Umadevi (3) (2006) 4 SCC 1 judgment as well. Let us refer to paras 15 and 16 of Umadevi (3) (2006) 4 SCC 1 judgment in this context.
10. Necessity of keeping in mind the distinction between regularisation and conferment of permanence in service jurisprudence has also been highlighted by this Court by referring to the following passage from R.N Nanjundappa case (1972) 1 SCC 409 which reads as follows: (Nanjundappa case (1972) 1 SCC 409)“26
. … If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment.”
(emphasis supplied)
11. Further, the Constitution Bench referred to B.N Nagarajan case (1979) 4 SCC 507 in para 16 of the judgment and stated as follows: (Umadevi (3) case (2006) 4 SCC 1)
“16. … We have, therefore, to keep this distinction in mind and proceed on the basis that only 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 and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.”
(emphasis supplied)
12. Then, in Umadevi (3) case (2006) 4 SCC 1 in para 53 the Court stated as follows:
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V Narayanappa AIR 1967 SC 1071, (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.”
(emphasis supplied)
The Constitution Bench has, therefore, clearly drawn a distinction between temporary employees, daily wagers and those who were appointed irregularly in the sense that there was non-compliance with some procedure in the selection process which did not go to the root of the selection process. The appellants in our view will not fall in the category of the employees mentioned in para 53 read with paras 15 and 16 of the Constitution Bench judgment.
13. The above view is further reinforced when we read paras 8 and 55 in Umadevi (3) case (2006) 4 SCC 1, wherein similar arguments were raised but rejected by the Constitution Bench. Para 8 of the Constitution Bench judgment refers to CAs Nos. 3595-612 of 1999 filed by the Commercial Taxes Department. The respondents therein were engaged on daily wages in some of the districts in the State of Karnataka and they claimed that they had worked in that Department for more than 10 years, hence, claimed regularisation. They approached the Tribunal without success. They took up the matter before the High Court of Karnataka. The Karnataka High Court ordered that they are entitled to wages and allowances equal to regular employees and also gave a direction to the State Government to consider their case for regularisation within four months. Aggrieved by the judgment of the Karnataka High Court the Commercial Taxes Department approached this Court.
14. Allowing the appeal preferred by the Commercial Taxes Department, this Court set aside the directions given by the High Court for regularisation of services of those daily-wage employees who had more than 10 years of service. The Court held as follows: [Umadevi (3) case (2006) 4 SCC 1]
“55. … 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 is 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 the 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 regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularisation 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 CAs Nos. 3595-612 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.”
(emphasis supplied)
15. In our view, the appellants herein would fall under the category of persons mentioned in paras 8 and 55 of the judgment and not in para 53 of the judgment in Umadevi (3) (2006) 4 SCC 1.
16. The appellants in their reply-affidavit filed on 14-10-2004 before the High Court have specifically stated in para 5 that they were only engaged as assistant routine clerks and peons on daily wages. Further in Para 20 of the affidavit it was stated that they were discharging their duties on daily-wage basis since 1995 and had entertained a legitimate expectation for regularisation of their services. The appellants' own case is that they were only engaged on daily-wage basis and never appointed in service either on a temporary basis or on an ad hoc basis.
17. The appellants stated that they had undergone a selection process held fourteen years back, following an advertisement published in the year 1995 but the merit list was neither prepared nor published. Selection process, though undertaken by the Council was not completed and now the Council is no more in existence. However, if the Board proposes to undertake any regular selection process to fill up the posts, the applications, if any, submitted by the appellants may also be considered after giving age relaxation.
18. In Umadevi (3) case (2006) 4 SCC 1 in para 55 of the judgment, the Constitution Bench has also permitted such persons to participate in selection process waiving the age relaxation and giving the weightage for having been engaged or worked in the Department for a significant period of time.
19. The appeal, therefore, lacks merits and the same is disposed of as above.
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