Holding

Ad‑hoc appointments for leave vacancies cannot be regularised as there were no regular vacancies and the selection process did not meet the constitutional and procedural standards laid down in Umadevi.

Summary

The Kendriya Vidyalaya Sangathan (KVS) appointed certain teachers on an ad‑hoc basis to fill leave vacancies, stipulating that such appointments did not confer any right to regularisation. The teachers continued in service after the High Court’s interim orders and sought regularisation, invoking the Supreme Court’s decision in Secretary, State of Karnataka v. Umadevi. The Supreme Court held that the advertisements were only for local leave vacancies, the selections were not made on an all‑India basis, and no regular vacancies existed; consequently the respondents did not satisfy the equality, reservation, or procedural tests laid down in Umadevi. The Court further noted that the teachers’ service of over ten years was due to the High Court’s intervention and could not be counted for regularisation. Accordingly, the direction to regularise the teachers’ services was set aside and the appeal was allowed.

Issues considered

Whether ad‑hoc appointments made for leave vacancies can be regularised under the principles laid down in Secretary, State of Karnataka v. Umadevi.
Whether the respondents satisfy the requirements of equality, reservation and the procedural safeguards under Articles 14 and 16 of the Constitution.
Whether the High Court’s order directing regularisation is valid in view of the nature of the appointments and the applicable service rules.
Whether the period of service, continued due to interim court orders, can be counted towards the ten‑year rule for regularisation.
Whether regularisation is permissible in the absence of a regular vacancy and without compliance with the selection procedure prescribed in the Rules.

Legislation cited

Subjects

service lawregularisationad‑hoc appointmentequalityArticles 14 and 16appointment rulesadministrative tribunalsKendriya Vidyalaya Sangathanemployment exchangeleave vacancy

Judgment

)
KENDRIY A VIDYALAYA SANGATIIAN & ORS. A
v.
L.V. SUBRAMANYESWARA & ANR.

MAY 10,2007

[S.B. SINHA AND C.K. THAKKER, JJ.] B

Service Law:

Regularisation-Claim of-Recruitment on adhoc basis against leave
vacancies-Services continued by reason of interim order-Grant of C
regularisation by High Court-Held: Services should not have been directed
to be regularised since the advertisement was issued for leave vacancies,
regular vacancies were not created and selections were held only at local
level-Services continued for a long time as ad hoc/part time/contractual
employees by reason of interim order by High Court-Appointment, Promotion, D
Security etc. Rules, 1971-Rule 7 and 9.

Respondents were registered with the local employment exchanges.
Appellants appointed the respondents intermittently, on adhoc basis against
leave vacancies. The appointment offer stipulated that the appointment would
not confer any right upon them to claim regular appointment, and that they E
were appointed as stop-gap arrangement for a particular period in the academic
year. They were selected, but not by a regular selection committee.
Respondents claimed regularization. By Interim orders they continued in
service. Tribunal dismissed the transfer applications. Aggrieved respondents
filed writ petitions. High Court held that the respondents have continued in F
the services intermittently and with artificial breaks, but till their services
were terminated, they have worked continuously and as such their se..Vices
would be regularized though it was not regular selection. Hence the present
appeals.

Appellant contended that the respondents were recruited by way of a G
temporary arrangement to meet the exigencies of work and have continued
as ad hoc/part time/contractual employees inter alia by reason of the interim
orders and as such their services should not have been directed to be
regularized; and that the respondent's case does not come within the purview
of the Constitution Bench decision of this Court in *Secretary, State of
TIS H
336 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Karnataka and Ors. v. Umade't'i (3) and Ors. 's, case.
Respondents-adhoc appointees contended that having worked for a long
period and having the requisite qualifications, their services could not have
been discontinued; that their names were sponsored by the employment
exchange and they have been selected by a selection committee; that the Rule
B of Equality in public employment and equal opportunity as emphasi7.ed by this
Court in Umadevi's case as also the rule of reservation and the rules framed
by the appellant having been satisfied, their appointment satisfies the test laid
down in Umadevi's case; and that in any event, the exceptions carved out in
Umadevi's case clearly apply in the instant case as their selection in terms ":\
C of Rule 9 of the Rules should be treated to be only irregular and not illegal.
Allo~ing the appeal, the Court

HELD: 1.1. Appellants would have been directed to be appointed on All
India Basis had such regular vacancies been created. Respondent did not get
D their names registered in the Central Employment Exchange. Keeping in view
the nature of the job and in particular that the posts are transferable
throughout the country, an opportunity within the meaning of Articles 14 and
16 of the Constitution would mean an opportunity to all who are eligible
therefor. Advertisement was issued for a limited purpose, namely, for leave y
vacancies, local employment exchanges were contacted only for filling of such
E posts and not regular posts. Selections were held only at the local level and
not on All India Level. (Paras 10 and 11) (342-C, D, E)

1.2. The respondents even did not complete the period of 10 years without
intervention by the Court, they would not have been in service for more than
10 years but for intervention of the High Court, they had been continued in
F service in terms of the interim order passed by the High Court. Therefore, it
is not correct to contend that in the aforementioned backdrop of events,
respondents satisfy the tests of equality, reservation or rule of law as
adumbrated in Umadevi's case. [Paras 13 and 14) (344-G, E)

G 1.3. Direction to regularize the services of the respondents in view of
the authority by Constitution Bench in Umadevi's case, therefore cannot be
said to be of any significance so as to deny the relief to the appellant.
[Para 16) (345-G)

*Secretary, State ofKarnataka and Ors. v. Umadevi (3) and Ors., (2006] >
H 4 sec 1, distinguished.
KENDRIYA VIDYALAYASANGATHAN1•.L.V.SUBRAMANYESWARA[S.B.SINHA,J.] 33 7
,..,.
)
Ashwani Kumar and Ors. v. State of Bihar and Ors.. (199712 SCC l; A
Punjab Water Supply and Sewerage Board v. Ranjodh Singh and Ors., (2006)
(13) SCALE 426; Punjab State Warehousing Corp., Chandigarh v. Manmohan
Singh and Anr., (2007) 3 SCALE 401 and A. Umadevi v. Registrar, Cooperative
Societies and Ors.. (20041 7 SCC 112, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8563 of2002. B
From the Final Judgment and Order dated 12.02.2002 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in Writ Petition No. 6454 of
2001.

WITH c
Civil Appeal Nos. 8559-8562 of2002.

S. Rajappa for the Appellants.

K. Ramakrishna Reddy, P.S. Narasirnha (for Mis. P.S.N. & Co.), A.V. Rao, D
Sateesh Galla, Prabhakar Pamam and Venkateswara Rao Anumolu for the
Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Appellant is an autonomous body. It is a society E
registered under the Societies Registration Act. Government of India, Ministry
of Human Resource Development, however, exercises control over it. The
recruitment of teachers and other staff is governed by rules known as
Appointment, Promotion, Security etc. Rules, 1971. Rules were framed by the
Board of Governors of the Appellant, the relevant provisions whereof are as F
under:-

4. Authorised permanent strength and temporary strength of the
Service :-

(i) The authorised permanent and temporary strength of the various
grades of the service on. the appointed day shall be as specified in G
Schedule I.

(ii) A~er the appointed day, the authorised permanent and temporary
strength of the various grades of the service shall be such as may,
from time to time, be determined by or under the authority of the
H
338 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Board.

Provided that the competent authority may make temporary
additions to any grade of the service as found necessary in the
interest of the work of the Sangathan.

6. Recruitment
B
(i) The method of filling up of the posts in the various grades of the
Service, age limit and other qualifications relating thereto shall be as
specified in Schedule I (In case of posts not covered in Schedule I,
procedure, qualifications and similar matters shall be determined by
c the Commissioner). Provided that the upper age limit prescribed for
direct recruitment may be relaxed in the case of candidates belonging
to the Scheduled Castes/Scheduled Tribes and other specified
categories of persons in accordance with the orders issued in this
behalf from time to time by the Central Government.

D (ii) Appointments by direct recruitment or by promotion of departmental
candidates shall be made, except when there are special reasons to be
recorded in writing with the approval also of the Chairman, in the
order in which the names of eligible candidates are included in the
Select Panel of the appropriate grade prepared according to the
procedure laid down in Rule 7.
E
7. Preparation of Select Panels

(!) In the case of posts being filled up by direct recruitment the
appropriate selection authority shall, after test or interview or both,
as the case may be, place the candidates considered suitable for
F appointment to the particular grade/post in a select panel in the order
of their merit.

(2) in the case of posts being filled up by promotion on the principle
of seniority subject to the rejection of the unfit, the Departmental
Promotion Committee or other selecting authorities will first decide the
G field of choice i.e. the number of eligible employees who are to be
considered for inclusion in the Select Panel. From among such
employees those who are considered unfit for promotion are to be
excluded. The "Select Panel" will then be prepared by placing the
names of the remaining employees without disturbing the seniority
H interest.
KENDRIYA VIDYALAYASANGATilANI'. L.V. SUBRAMANYESWARA[S.B.S!NHA,r] 339

(3) In the case of promotion on the basis of the seniority-cum-merit A
) or on the principle of merit with due regard to seniority the field of
choice will first be decided and the employees considered unfit excluded
in the same way as in the sub-rule (2) above. The remaining employees
; are then to be classified as "outstanding" "very good" and "good"
on the basis of merit, as determined by their respective records of B
service and also test or interview if considered necessary. The "Select
Panel" will thereafter be prepared by placing the names in the order
of those categories, without disturbing the seniority interest within
each category.

(4) Where the posts are to be filled up partly by direct recruitment and C
partly by promotion, the select panel will be prepared as follows:-

The appropriate selecting authority will first prepare two separate
select panels for the two categori~s in accordance with the procedure
laid down above. The required panel will then be drawn up by
combining these two separate panels according to the quota of posts D
reserved for each category. That is to say, the names of direct recruits
will appear first, followed by the promotees, in proportion to the
respective quota reserved for them.

*** *** *** ***
9. Ad-hoc Appointment E
(I) Notwithstanding anything contained in rule 6 & 7 when an employee
included in the select panel is not available or where such a select
panel has not yet been prepared and the appointing authority considers
it necessary and expedient to do so, a vacancy in any grade of the
service may be filled on ad-hoc and temporary basis by the appointment F
of a person or persons otherwise eligible for appointment thereto :

(i) for a period not exceeding six months ; or

(ii) for the period for which a select panel in respect of the particular
post/grade is not prepared as per rule 7, whichever is less. G
(2) Every appointment under sub-rule (I) shall be made only as a
temporary arrangement and no such appointment shall be deemed to
confer on the appointee any right or claim to the respective grade/
~. post or to seniority in that grade.
H
340 SUPREME COURT REPORTS [2007] 6 S.C.R.

·· A 2. Teachers in terms of the said rules are appointed on All India basis. ..
To cater the need of the students and the schools run by appellant throughout
the country which are about 854 in number, the services of the regular
teachers are liable to transfer all over India. Advertisements were issued by
the appellant in some local newspapers inter alia for its Hyderabad Institution
for primary teachers on leave vacancies. Pursuant thereto or in furtherance
B thereof the names of the respondents were registered with the local employment
exchanges and not in the Central Employment Exchange. They had been
admitted intermittently. One of the terms of the offer of appointment issued
in their favour was that the same would not confer any right upon them to
claim regular appointment. It was furthermore categorically stipulated that
C they were appointed as stop-gap arrangeme11t for a particular period in the
academic year. They were selected, however, not by a regular selection
committee. Praying for the regularisation, they filed writ petitions before the
Andhra Pradesh High Court. Interim orders were passed in terms whereof
they continued in service. Appellant Society having been notified in terms of
sub-Section (2) of Section 14 of the Administrative Tribunals Act in terms of
D a notification dated 1.1.1999; all the writ petitions were transferred to the
Central Administrative Tribunal.

3. The Tribunal dismissed the said transfer applications. Noticing that
there had been no regular vacancies, it was held:-
E "13. Admittedly, all the applicants were appointed on adhoc basis for
short spells by the Assistant Commissioner, clearly stipulating that
such appointment would not confer upon them any right to the post,
considering candidates sponsored by the local employment exchange.
It is also brought out that the various orders passed by the High
F Court by which applicants were paid same salary as is paid to the
regular employees and were also directed to continue. In view of
those orders, the applicants were sought to be continued. It is
however not in dispute that the applicants were not regularly appointed
by the Selection Committee after considering candidates sponsored
by the Central Employment Exchange as per the appointment procedure
G contained in the rules."

4. Aggrieved by and dissatisfied thereagainst, the respondents filed
writ petitions.

5. The High Court, however, in its impugned judgment opined that
H
-...... KENDRIYA VIDYALA YASANGAlllANv. L.V SUBRAMANYESWARA [S B.SINHA,J.] 34 J

)
although the respondents have continued in the services intermittently and A
with artificial breaks, but till their services were terminated, they have worked
continuously and as such their services would be regularized in view of the
decision of this Court in Ashwani Kumar and Ors. v. State of Bihar and Ors.,
[1997] 2 sec 1.

6. The High Court noticed that the selection of the respondents were B
not regular selection within the meaning of Rule 7 of Appointment Rules.
Despite the same, it thought fit to rely upon a Division Bench decision of the
Jammu and Kashmir High Court in LPA(SW) No. 199of1995. It was directed:-

" .. The petitioners are accordingly declared to be in service of the
respondents herein notwithstanding the impugned proceedings dated c
10.12.2001 under which they were replaced on the ostensible ground
of regular incumbents joining the service of the respondent school.
In the circumstances the impugned proceedings dated 10.12.2001 are
set aside. The second respondent Assistant Commissioner, Kendriya
Vidyalaya Sangathan Secunderabad is directed to give appropriate D
posting orders to the petitioners herein within four weeks from the
• date of receipt of a copy of this order."
y
7. Mr. S. Rajappa, learned counsel appearing on behalf of the appellant
in support of this appeal would contend:-
E
(i) That respondents having recruited in terms of Rule 9 of Rules by
way of a temporary arrangement to meet the exigencies of work and
they have continued as ad hoc/part time /contractual employees inter
a/ia by reason of the interim orders passed by the Court.

(ii) Their services should not have been directed to be regularized. F
~ (iii) The respondent's case do not come within the purview of the
Constitution Bench decision of this Court in Secretary, State of
Karnataka and Ors. v. Umadevi (3) and Ors., [2006] 4 SCC !.

8. Mr. K. Ramakrishna Reddy, learned senior counsel, Mr. P.S. Narasimha,
learned counsel on the other hand would submit that the respondents have
G
worked for a long perioC: and having the requisite qualifications, the services
of the respondents could not have been discontinued by the appellant. The
..., entry of the respondents in the services being not a back door one and as
prior thereto, their names were sponsored by the employment exchange and
they have been selected by a selection committee. The Rule of Equality in H
342 SUPREME COURT REPORTS [2007) 6 S.C.R.

A public employment and equal opportunity as emphasized by this Court in
Umadevi (supra) as also the rule of reservation and the rules framed by the
appellant having been satisfied, their appointment satisfies the test laid down
in Umadevi (supra). In any event, the exceptions carved out in Umadevi
(supra) clearly apply in the instant case as their selection in terms of Rule 9
B of the Rules should be treated to be oniy irregular and not illegal.
9. As in case of one of the respondents, the judgment of the High Court
directing the appellant to pay regular scale of pay having attained finality as
the special leave petition filed thereagainst has been dismissed. The impugned
judgment should not be interfered with. In any event, this Court taking into
C consideration the human element of the matter should not interfere with the
impugned judgment.

IO. Had such regular vacancies been created, appellants would have
been directed to be appointed on All India Basis. Respondents did not get
their names registered in the Central Employment Exchange. Keeping in view
D the nature of the job and in particular that the posts are transferable throughout
the country, an opportunity within the meaning of Articles 14 and 16 of the
Constitution of India would mean an opporrunity to all who are eligible
therefor. Advertisement was issued for a limited purpose, namely, for leave
vacancies, local employment exchanges were contacted only for filling of
such posts and not regular posts.
E
I l. Selections were held only at the local level and not on All !ndia
Level.

12. It is true that they had continued in service for such a long time,
but they have been thrust upon the appellant by reason of interim orders
F passed by the High Court. The Constitution Bench of this Court in Umadevi
(supra) held:-

15. Even at the threshold, it is necessary to keep in mind the distinction
between regularisation and conferment of permanence in service
jurisprudence. In State of Mysore v. S. V. Narayanappa, this Court
G stated that it was a misconception to consider that regularisation
meant permanence. In R.N. Nanjundappa v. T. Thimmiah. this Court
dealt with an argument that regularisation would mean conferring the
quality of permanence on the appointment. This Court stated: (SCC
pp. 416-17, para 26)
H
KENDRIYAVJDYALAYA SAN GA THAN l'. L.V SUBRAMANYESWARA [S.B SINHA,).) 343

.) "Counsel on behalf of the respondent contended that regularisation A
would mean conferring the quality of pennanence on the appointment
whereas counsel on behalf of the State contended that regularisation
did not mean pennanence but that it was a case of regularisation of
the rules under Article 309. Both the contentions are fallacious. ff the
appointment itself is in infraction of the rules or if it is in violation of B
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. To accede to such a proposition would be to introduce C
a new head of appointment in defiance of rules or it may have the
effect of setting at naught the rules."

16. In B.N. Nagarajan v. State of Karnataka this Court clearly held
that the words "regular" or "regularisation" do not connote permanence
and cannot be construed so as to convey an idea of the nature of D
tenure of appointments. They are terms calculated to condone any
procedural irregularities and are meant to cure only such defects as
are attributable to methodology followed in making the appointments.
This Court emphasised that when rules framed under Article 309 of
the Constitution are in force, no regularisation is permissible in exercise E
of the executive powers of the Government under Article 162 of the
Constitution in contravention of the rules. These decisions and the
principles recognised therein have not been dissented to by this
Court and on principle, we see no reason not to accept the proposition
as enunciated in the above decisions. We have, therefore, to keep this
distinction in mind and proceed on the basis that only something that F
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
pennanence of employment is a totally different concept and cannot
be equated with regularisation.
G
*** *** *** ***
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S. V.
Narayanappa, RN Nanjundappa and B.N. Nagarajan and referred
to in para 15 above, of duly qualified persons in duly sanctioned H
344 SUPREME COURT REPORTS [2007] 6 S. C.R.

A 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 coGrts 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
B 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
c 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
D constitutional requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme.

54. It is also clarified that those decisions which run counter to the
principle settled in this decision, or in which directions running counter
to what we have held herein, will stand denuded of their status as
E precedents~

13. It is therefore, not correct to contend that in the aforementioned
backdrop of events, respondents satisfy the tests of equality, reservation or
rule of law as adumberated in Umadevi (supra). Reliance placed on paragraph
53 of Umadevi (supra) is also mis-placed. What would be meant by the term
F irregularity must be understood in the context of the decision of this Court
in Punjab Water Supply and Sewerage Board v. Ranjodh Singh & Ors., [2006
13 SCALE 426. The said paragraph has been explained by this Court in
Punjab State Warehousing Corp., Chandigarh v. Manmohan Singh & Anr.,
(2007) 3 SCALE 40 I.
G
14. Furthermore, the respondents even did not complete the period of
I 0 years without intervention by the Court, they would not have been in
service for more than I 0 years but for intervention of the High Court, they
had been continued in service in terms of the interim order passed by the
High Court.
H
KENDRIYA VIDYALAYASANGATHANr. L.V.SUBRAMANYESWARA[S.B SINHA.I.] 345

- _,,
15. So far as the submission of the learned counsel that in the case of A
some of the respondents, the High Court had applied the principle of equal
pay for equal work. That aspect of the matter has also been considered by
a Constitution Bench in Umadevi (supra):-

"44. The concept of "equal pay for equal work·· is different from the
concept of conferring permanency on those who have been appointed B
on ad hoc basis, temporary basis, or based on no process of selection
as envisaged by the rules. This Court has in various decisions applied
the principle of equal pay for equal work and has laid down the
J parameters for the application of that principle. The decisions are
rested on the concept of equality enshrined in our Constitution in the
light of the directive principles in that behalf. But the acceptance of
c
that principle cannot lead to a position where the court could direct
that appointments made without following the due procedure established
by law, be deemed permanent or issue directions to treat them as
·<
permanent. Doing so, would be negation of the principle of equality
of opportunity. The power to make an order as is necessary for doing D
complete justice in any cause or matter pending before this Court,
would not normally be used for giving the go-by to the procedure
....,
; established by law in the matter of public employment. Take the
'r situation arising in the cases before us from the State of Kamataka.
Therein, after Dharwad decision the Government had issued repeated
directions and mandatory orders that no temporary or ad hoc
E
employment or engagement be given. Some of the authorities and
departments had ignored those directions or defied those directions
and had continued to give employment, specifically interdicted by the
orders issued by the executive. Some of the appointing officers have
even been punished for their defiance. It would not be just or proper F
to pass an order in exercise of jurisdiction under Article 226 or 32 of
the Constitution or in exercise of power under Article 142 of the
Constitution permitting those persons engaged, to be absorbed or to
be made permanent, based on their appointments or engagements.
Complete justice would be justice according to law and though it
would be open to this Court to mould the relief, this Court would not G
grant a relief which would amount to perpetuating an illegality."

16. Direction to regularize the services of the respondents in view of the
..... authority by Constitution Bench in Umadevi (supra), therefore cannot be said
to be of any significance so as to deny the relief to the appellant.
H
346 SUPREME COURT REPORTS (2007] 6 S.C.R.

A 17. Ashwani Kumar (supra) has also been noticed by the Constitution
Bench. A distinction furthennore must be noted in mind between regularisation
and pennancncy, the regularisation does not mean pennanency. In A. Umarani
v. Registrar, Cooperative Societies and Ors., (2004] 7 SCC 112,, this Court
had made the distinction, it was furthennore held:-

B "34. Sub-rule (25) of Rule 149 provides that the principle of reservation
of appointment for Scheduled Castes/Scheduled Tribes and Backward
Classes followed by the Government of Tamil Nadu for recruitment to
the State shall apply.

35. No appointment, therefore, can be made in deviation of or departure
c from the procedures laid down in the said statutory rules.

36. The tenns and conditions of services are also laid down in the said
rules."
~-
18. For the reasons aforementioned, we are of the opinion that the
D impugned judgment cannot be sustained. The Appeals are allowed. The
impugned judgment is set aside. In the facts and circumstances of this case,
there shall be no order as to costs.

N.J. Appeal allowed.

1