Holding

The appointment was not regular; the appellants are not entitled to regularisation in Group ‘C’ posts.

Issues considered

Whether appointments of casual labourers in ex‑cadre posts for a temporary railway project can be regularised in Group ‘C’ services.
Whether such appointments complied with Articles 14, 16 of the Constitution and the recruitment rules framed under the proviso to Article 309.
Whether the Railway Board circular of 11 May 1973 can override mandatory statutory provisions.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

regularisationcasual labourGroup C serviceArticles 14,16Article 309recruitment rulesrailway electrification projectconstitutional lawservice law

Judgment

[2009] 5 S.C.R. 368
.
A PINAKI CHATTERJEE & ORS.
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 2053 of 2009)
MARCH 31, 2009
B ~

[S.S. SINHA AND DR.MUKUNDAKAM SHARMA, JJ.]

Service Law - Regularization - Of employees appointed
on a casual basis in ex-cadre post for a temporary project -
c Held: The appointment was not regular- It was for project work
in ex-cadre post and not in conformity with Articles 14 and 16
and recruitment rules framed under proviso to Article 309 of
Constitution - Employees not entitled to be regularized -
Constitution of India, 1950 - Articles 14, 16 and proviso to r
D Article 309 - Railway Board Circular dated 11.5.1973. ~

The appellants were directly appointed in Group 'C'
posts in Railway Electrification Project. The question for
consideration before this court was whether their
services could have been regularized in Group 'C' posts.
E
Dismissing the appeal, the Court

HELD:1.1. Appellants, indisputably, were appointed
as daily rated casual labourers for project work. The said
F project having been undertaken for electrification of \_ ...
Railways was a time bound one. It did not have its own
cadre. Engagement of any casual labour under the said
project, therefore, did not amount to any regular
recruitment. Appellants furthermore have not been
appointed upon compliance of the provisions of Articles
G
14 and 16 of the Constitution of India and/or the
recruitment rules framed under the proviso appended to
Article 309 of the Constitution of India. It may be that the
Railway Administration had committed serious illegalities
H 368
PINAKI CHATTERJEE & ORS. v. UNION OF INDIA & 369
ORS.

in making recruitment directly to the said posts, the same A
by itself would not confer any right upon the appellants
for being regularized in Group 'C' post. [Para 8) [372-G-
H; 373-A-B]

1.2. Furthermore, the appellants have not produced
8
their offers of appointment. If they were appointed only
for the project work and that too in ex-cadre posts, the
same would never mean that they had been appointed
on a regular basis. It has not been shown that temporary
status either had been or could be granted to the C
appellants. [Para 9) [376-C]

1.3. The Board Circular dated 11.5.1973 whereon
reliance had been placed by the appellants, had been
issued long back, however, did not take into
consideration the limitation of power of a State to make D
appointments in total disregard of mandatory provisions
of the recruitment rules and/or the constitutional
provision. [Paras 8 and 9] [373·E·F; 374-G)
Secretary, State of Kamataka v. Umadevi (3) (2006) 4 i;
sec 1, followed.
A. Umaranl v. Registrar, Cooperative Societies and Ors.
(2004) 7 SCC 112; Official Liquidator v. f)ayanand and Ors.
(2008) 10 SCC 1 and Union of India v. Moti Lal (1996) 7 SCC
481, relied on. F

Case Law Reference:
(2004) 7 sec 112 Rolied on. Para 9
(200&) 4 sec 1 Followed, Par11 9 G
(2oos) 1o sec 1 Relied on. P11ril 10
(1996) 1 sec 481 Relied on. P;na 11
CIVIL APPELLATE JURISDICTION ; Civil Appeal No,
H
370 SUPREME COURT REPORTS [2009] 5 S.C.R.

A 2053 of 2009.
From the Judgment & Order dated 1.04.2003 of the
Division Bench of the High Court of Jharkhand at Ranchi in W.P.
(C) No. 3377 of 2001.

B S.B. Sanyal and Ranjan Mukhorjee for the Appellant.
K. Amareswari, Shreekant N. Terdal (not present), Anjani
Aiyagari, B. Krishna Prasad, Lalit Kohli and Manoj Swarup &
Co., for the Respondents.
c The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.

2. The right of the appellants herein, if any, to be
regularized in Class 'C' Services of the Railways is the question
D involved in this appeal which arises out of a judgment and order
of the High Court of Jharkhand at Ranchi whereby and
whereunder the writ petition filed by the appellants against the
orc!er of the Central Administrative Tribunal, Patna Bench,
Circuit Ranchi passed in OA No.604 of 1997 and OA No.398
E of 1998, was dismissed.
3. Appellants were directly appointed in Group 'C' posts
except serial No.5 in the Electrical Department of the Railway
Electrification Project. As despite working for a long time, their
services were not regularized, they filed two original
F applications before the Central Administrative Tribunal, Patna,
Circuit Bench, Ranchi, praying, inter alia, for a direction upon
the respondents to finalise their regular absorption in the
services in grade 'C' posts against the sanctioned strength
which were marked as OA Nos.604 of 1997 and OA No.398
G of 1998. By reason of a judgment and order dated 5.7.2001,
the said original applications were allowed, in part, directing :
"In the result, the applicants' claim to be regularized in
Group 'C' post as asserted in the OAs in hand is not
acceptable, instead they were required to be regularized
H
PINAKI CHATIERJEE & ORS. v. UNION OF INDIA & 371
ORS. [S.S. SINHA, J.]
"' f
in feeder cadre in Group-'D' post by providing pay A
protection of 'C' post."

4. Appellants aggrieved thereby filed a writ petition in the
High Court of Jharkhand ;:it Ranchi. The said writ petition has
-' been dismissed by reason of the impugned judgment, stating
~t 8

"No doubt, the petitioners were casually employed in
Grade-C initially and thereafter they acquired temporary
status, but the fact remains, and the finding of the fact by
the Tribunal is, that the selections of the petitioners were c
not regular selections. It is, no doubt, true that they had
taken a trade test when they were recruited, though casually
in Grade-C. But that would not make their selection regular
selection. In our view, the ratio of the decision of the
Supreme Court that in such promotional posts, there should D
not be regularization and the regularization could only be
in the lower grade, is clearly applicable to the case on
hand. We are satisfied that the Tribunal has correctly come
to the conclusion that the petitioners in the case on hand
could be regularized only in Group-D posts, though E
protecting their pay and not in Grade-C posts. On going
through the order of the Tribunal, we are not satisfied that
it suffers from any error apparent on the face of the record
justifying our interference. Nor can we accept the argument
that the decision is unjust since the pay of the petitioners F
stood protected, notwithstanding the fact that they are
sought to be regularized in a lower post. In this situation,
we see no reason to interfere.''

5. Mr. Sanyal, learned senior counsel in appearing support
of the appeal, would contend that keeping in view the facts and . G
circumstances of the case the services of the appellants should
have been directed to be regularized in Group 'C' posts as they
were appointed directly thereto. It was urged that the Tribunal
and consequently, the High Court committed a serious error in
opining that the posts in Group 'C' in the Central Government H
372 SUPREME COURT REPORTS (2009) 5 S.C.R.
,..

A were required to be filled up only through promotion and not
through direct recruitment. The learned counsel would also
contend that from a letter dated 25.8.1997, which was issued
by way of a representation made by the appellants to the
General Manager, Central Organisation, Railway Electrification,
B Allahabad, it would appear that they had, except one, were
directly appointed in the posts of T.C.M. Electrician Fitter, WI
..
~

Driver. Grade 'C' posts.

Learned counsel would contend that it is also not a case
where the appellants do not possess the requisite qualification.
•C They had also passed the trade test. It was furthermore urged
that the Patna High Court in a similar situation having granted
relief, the Jharkhand High Court committed a serious error in
refusing to grant the same.

) 6. Mrs. K. Amareswarl, learned senior counsel appearing ~
on behalf of the respondents, on the other hand, supported the
impugned judgment.

7. Indisputably, the vaoant posts In the Railway Services
are required to be filled up in terms of the Recruitment Rules.
== Respondents in their counter affidavit, stated :
"In reply to this para, it Is submitted that the 50% Direct
Recruitment quota meant for the post of permanent way
Mistry 25% vacancies has been earmarked to be filled up
-. through limited departmental Competitive Examination
from amongst Gang Man/Key Man and Mates with the
qualification of 10+2 with science & maths and having put
minimum of 3 years regular service shortfall of any be
made good from amongst Gangman/Keyman/Mates
-:J ' having the qualification of matrioulatlon/HSLC with three
years regular servic.t, Further, ahortfa.11, If any. to be added
uptg the dlreet recruitment."
8. Appellant3. indisputably, were appointed as dally rated
casual labourers for project work. The said project having been
ti
... PINAKI CHATIERJEE & ORS. v. UNION OF INDIA & 373
f ORS. [S.B. SINHA, J.]
undertaken for electrification of Railways at Ranchi was a time A
bound one. It did not have its own cadre. Engagement of any
casual labour under the said project, therefore, did not amount
to any regular recruitment. It may be that the Railway
Administration had committed serious illegalities in making
1- recruitment directly to the said posts, the same by itself would B
not confer any right upon the appellants for being regularized
in Group 'C' post.

The question, however, which arises for consideration is
as to whether in the peculiar facts and circumstances of this
case, the High Court should have directed regularization of the
c
services of the appellants.

It has not been denied or disputed that Railway
Electrification was a temporary project. As noticed
+
hereinbefore, the posts held by the appellants, indisputably, D
were purely on a casual basis and not against any cadre post.

Appellants furthermore have not been appointed upon
compliance of the provisions of Articles 14 and 16 of the
Constitution of India and/or the recruitment rules framed under E
the proviso appended to Article 309 of the Constitution of India.

Our attention has been drawn to a Board circular dated
11.5.1973 wherein, inter a/ia, it was laid down :
-~ "(2) When casual labour are engaged in skilled categories, F
the relevant scale for the purpose of determining their ages
(as per orders regulating wages of Casual labour) will be
.:: that applicable to skilled artisans. On attaining temporary
status they shall be paid in that scale. Similarly for Project
Casual Labour is skilled categories with 180 days G
continuous service, consolidated wage shall be at the
minimum of the scale of pay applicable to artisans plus DA
payment on this basis will be admissible, however, from
the date of passing prescribed trade test if the same is
later than the date of attaining temporary status or date of H
374 SUPREME COURT REPORTS (2009] 5 S.C.R.

A completion of 180 days, as the case may be from
whichever date is later. No casual labour in skilled
category can be engaged without the approval of an
authority lower than a Divisional Engineer.

(Board's No.E(NG)ll/84/CL 58 of 20.12.85)
B
Note:- Past cases decided otherwise than in term of the
letters dated 20.12.1985 cited above or in terms of final
orders of a court of competent jurisdiction, shall not be re-
opened. Where, however, a person was continuing as a
C casual labour in a skilled category on 20.12.1985 (date of
issue of the said letter) his case will be regulated
prospectively in terms of the provisions of the said letter
(dated 20.12.1985).

D (3). Casual labour engaged in work charged establishment
of certain Departments who get promoted to semi-skilled,
skilled and highly skilled categories due to non-availability
of regular departmental candidates and continue to work
as casual employees for a long period, can straightway be
absorbed in regular vacancies in skilled grades provided
E
they have passed the requisite trade test, to the extent of
25% of the vacancies reserved for departmental promotion
from the unskilled and semi-skilled categories. These
orders also apply to the casual labour when are recruited
directly in the skilled categories in work charged
F establishments after qualifying in the trade test."

9. The said circular letter of the Railway Board which had
been issued long back, however, did not take into consideration
the limitation of power of a State to make appointments in total
G disregard of mandatory provisions of the recruitment rules and/
o,· the constitutional provision.

This aspect of the matter has been considered in A.
Uniarani v. Registrar, Cooperative Societies & Ors. [(2004) 7
H sec 1121, holding :
-, PINAKI CHATTERJEE & ORS. v. UNION OF INDIA &
ORS. [S.B. SINHA, J.]
375

_J ,, "No regularization is, thus, permissible in exercise of the A
statutory power conferredunder Article 162 of the
Constitution if the appointments have been made in
contravention of the statutory rules."
-1 Yet again in a Constitution Bench of this Court in Secretary, B
State of Kamataka v. Umadevi (3) [(2006) 4 SCC 1], laid down
the law in the following terms :

"43. Thus, it is clear that 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 c
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.
-f
Therefore, consistent with the scheme for public D
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 E
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 F
appointment. It has also to be clarified that merely
because a temporary employee or a casual wage worker
I is continued for a time beyond the term of his
.r 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
G
-( 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 emolovment has come to an
H
376 SUPREME COURT REPORTS [2009] 5 S.C.R. , N

'

A end or of ad hoc employees who by the very nature of their '•
appointment, do not acquire any right. The High Courts
acting under Article 226 of the Constitution, should not
ordinarily issue dimctions for absorption, regularisation,
or permanent continuance unless the recruitment itself
B was made regularly and in terms of the constitutional
·-
~

scheme."

(Emphasis supplied)

Furthermore, the appellants have not produced their offers
c of appointment. If they were appointed only for the project work
and that too in ex-cadre posts, the same would never mean that
they had appointed on a regular basis. It has not been shown
that temporary status either had been or could be granted to
the appellants.
+
D
10. We are not oblivious of the factthat some Benches
had taken a somewhat contrary view but recently in a Three
Judge Bench decision of this Court in Official Liquidator v.
Dayanand & Ors. [(2008) 10 SCC 1], stated the law, thus:
E "90. We are distrnssed to note that despite several
pronouncements on the subject, there is substantial
increase in the number of cases involving violation of the
basics of judicial discipline. The learned Single Judges
and Benches of the High Courts refuse to follow and
F accept the verdict and law laid down by coordinate and
even larger Benches by citing minor difference in the facts
as the ground for doing so. Therefore, it has become
necessary to reiterate that disrespect to constitutional ~
ethos and breach of discipline have grave impact on the
G credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and ..,.... )
certainty is an important hallmark of judicial jurisprudence
developed in this country in last six decades and increase
in the frequency of conflicting judgments of the superior
H judiciary will do incalculable harm to the system i~asmuch
PINAKI CHATIERJEE & ORS. v. UNION OF INDIA & 377
ORS. [S.B. SINHA, J.]
f
as the courts at the grass root will not be able to decide A
as to which of the judgment lay down the correct law and
which one should be followed.

91. We may add that in our constitutional set up every
citizen is under a duty to abide by the Constitution and
-i B
respect its ideals and institutions. Those who have been
entrusted with the task of administering the system and
operating various constituents of the State and who take
oath to act in accordance with the Constitution and uphold
the same, have to set an example by exhibiting total
commitment to the Constitutional ideals. This principle is c
required to be observed with greater rigour by the
members of judicial fraternity who have been bestowed
with the power to adjudicate upon important constitutional
and legal issues and protect and preserve rights of the
~
individuals and society as a whole. Discipline is sine qua D
non for effective and efficient functioning of the judicial
system. If the Courts command others to act in accordance
--<
I
with the provisions of the Constitution and rule of law, it is
not possible to countenance violation of the constitutional
principle by those who are required to lay down the law." E

11. In the facts and circumstances of this case, as noticed
hereinbefore, in our opinion, the decision of this Court in Union
of India v. Moti Lal [(1996) 7 SCC 481] would be applicable
wherein regularization on a promotable post has been held to
.A F
be impermissible in law, stating :

"9. So far as the first question is concerned, on examining
the relevant provisions of the rules as well as the
administrative instructions issued by the Railway
" authorities we are of the considered opinion that it is not G
permissible to appoint a person directly as a mate and it
is only a promotional post from Class IV post of gangman
and keyman. These gangmen and keymen can be
promoted to the post of mate in Class Ill subject to their
suitability and efficiency being tested through trade test. It H
378 SUPREME COURT REPORTS (2009] 5 S.C.R.

A is no doubt true that these respondents under certain
circumstances had been appointed directly as casual
mates and they continued as such and further by virtue of
their continuance they acquired temporary status but that
by itself does not entitle them to be regularised as mates
8 since that would be contrary to the rules in force. In our
considered opinion the respondents did not acquire a right
for regularisation as mates from mere fact of their
continuance as casual mates for a considerable period."

12. For the reasons aforementioned, there is no merit in
C the appeal. The same is dismissed accordingly. No costs.

K.K.T. Appeal dismissed.