SATYA PRAKASH & ORS.versusSTATE OF BIHAR & ORS.

                         [2010] 3 S.C.R. 450


A                   SATYA PRAKASH & ORS.
                    -.            v.
                    '$TATE OF BIHAR & ORS.
                  (Ciyil Appeal No. 2440 of 2010)
                         MARCH 16, 2010
B
    [R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]

      Labour Law - Daily wage workers - Over 10 years service
  - Claim for regularization on the basis of judgment in *Uma
C Devi's case - Held: Since the workers not appointed on any
  sanctioned post, not entitled to benefit of regularization - *Uma
  Devi's case explained and distinguished.
      The appellants, who had worked for more than 10
  years on daily rated basis in Bihar Intermediate Education
D Council, filed writ petition before the High Court seeking
  regularization of their services. Single Judge of High
  Court directed the Council to consider the claim for
  regularization. Since there was no positive direction for
  regularization, appellants filed writ appeal, which came to
E be dismissed in limine.
      In appeal to this court appellants contended that in
  Para 53 of the judgment in *State of Karnataka vs. Uma
  Devi and Ors. 2006 (4) sec 1, the employees who had
  worked for 10 years or more were directed to be
F regularized as one time measure and the same relief
  should be extended to the appellants.
        Disposing of the appeal, the Court
      HELD: 1.1. The appellants are not entitled to get the
G benefit of regularization of their services since they were
  never appointed in any sanctioned posts. Appellants
  were only engaged on daily wages. In Umadevi's case
  supreme Court held that the courts are not expected to
  issue any direction for absorption/regularization or
H                              450
   SATYA PRAKASH & ORS. v. STATE OF BIHAR &             451
                    ORS.
  permanent continuance of temporary, contractual, casual, A
  daily-wage or ad hoc employees. Such directions issued
  could not be said to be in consistence with the
  constitutional scheme of public employment. The Court
  held that merely because a temporary employee or a
  casual wage worker is continued for a time beyond the B
  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 C
  of the law laid down by this Court, the directions sought
  for by the appellants cannot be granted. Paragraph 53 of
  the Umadevi's judgment deals with irregular appointments
  (not illegal appointments). [Paras 6 and 7] [455-G; 455-C- ·
  F]
                                                               D
       1.2. In Uma Devi's case the constitution bench has
. already drawn a distin(ftion between temporary
  employees, daily-wagers and those who were appointed
  irregularly in the sense that there was non-compliance of
  some procedure in the selection process which did not E
  go to the root of the selection process. Appellants will not
  fall in the category of the ~mployees mentioned in
  paragraph 53 read with paras' 15 and 16 of the Judgment
  in Uma Devi's case. Appellants' own case is that they
  were only engaged on daily wages basis and never F
  appointed in service either on a temporary basis or on
  ad-hoc basis. [Paras 9 and 13] [457-D-E; 459-C-D]
     State of Kamataka vs. Uma Devi and Ors. 2006 (4) -'3CC
 1, explained and distinguished.
    S. V, Narayanappa vs. State of Mysore (1967) 1 SCR        G
128; B.N. Nanjudappa vs. T. Thimmiah (1972)1 SCC 409,
relied on.
     Punjab Water Supply and Sewerage Board v. Ranjodh
 Singh and Ors, (2007) 2 SCC 491; State of Punjab v.          H
    452      SUPREME COURT REPORTS             [2010] 3 S.C.R.


A   Bahadur Singh and Ors. (2008) 15 SCC 737; C.
    Balachandran and Ors. v. State·of Kera/a and Ors. (2009) 3
    SCC 179; State of Kamataka and Ors. v. G. V. Chandrashekar
    (2009) 4 sec 342, referred to.

       2. Appellants stated that they had undergone a
B 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,
C if the Board proposes to undertake any regular selection
  process to fill up the pqsts, the applications, if any,
  submitted by the appellants may also be considered after
  giving them age relaxation. [Para 14) [459-D-F]
D        State of Kamataka vs. Uma Devi and Ors. 2006 (4) SCC
    1, referred to.
                         Case Law Reference:
     (2007) 2 sec 491        Referred to.      Para 2
E    (2oos) 15 sec 737       Referred to.       Para 2
     (2009) 3 sec 119        Referred to.       Para 2
     (2009) 4 sec 342        Referred to.      Para 2
     2006 (4) sec 1          Explained and      Paras 6 and 7
F
                             Distinguished.
                             Referred to.       Para 14
     (1967/ 1 SCR 128        Relied on.         Para 7
G    (1972) 1 sec 409        Relied on.         Para 7
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2440 of 2010.

          From the Judgment & Order dated 23.9.2008 of the High
H

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  SATYA PRAKASH & ORS. v. STATE OF BIHAR &                453
                   ORS.
Court of Judicature at Patna in LPA No. 563 of 2008.             A

    KV. Vishwanathan, Manoj Pandey, Gaurav Agrawal for the
Appellants.
     Gopal Singh, Manish Kumar for the Respondents.
                                                                 B
     The Judgment of the Court was delivered by
     K.S. RADHAKRISHNAN, J. 1. Leave granted.
     2. Appellants who had worked on daily wages for over ten
 years liave approached this Court claiming benefit of C
 paragraph 53 of the Constitution Bench judgment of this Court
 in Secretary, State of Kamataka And Others v. Umadevi (3)
 And Others (2006) 4 SCC 1. Some doubts were there with
 regard to the meaning and content of paragraph 53 read with
 paragraphs 15, 16 and paragraph 8 read with paragraph 55
 of the judgment in Umadevi's case (supra) which has been D
 subsequently explained by this Court in several judgments.
 Reference may be made to the judgment of this court in Punjab
 Water Supply & Sewerage Board v. Ranjodh Singh And
 Others (2007) 2 SCC 491, State of Punjab v. Bahadur Singh
 And Others (2008) 15 SCC 737, C. Balachandran And Others E
 v. State of Kera/a And Others (2009) 3 SCC 179, State of
 Kamataka And Others v. G. V. Chandrashekar, (2009) 4 SCC
342, etc. Almost identical situation arises for consideration in
this case as well.
                                                                  F
      3. The appellants who had worked for more than 10 years
on daily rated basis in the Bihar Intermediate Education Council
has approached the Patna High tourt for regularization of their
services and a learned Single Judge of the Patna High Court
directed the Council to consi~er their request for regularization G
treating them as a separate class after relaxing their age. Since
no positive direction was given to the Council for regularization
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 waged employees
with the Council would not confer any right for regularization as H
        454     SUPREME COURT REPORTS                [2010] 3 S.C.R.


    A no public appointment was permissible de hors the recruitment
      rules. 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.
           4. Mr. Gaurav Agrawal, learned counsel appearing for the
    8 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. Learned counsel submitted that the appellants
    C are entitled to get the benefit of the judgment in Umadevi's
      Case(3) (supra). Reference was made to paragraph 53 of the
      aforesaid judgment and submitted that this Court had directed
      the Union of India, the State Governments and their
      instrumentalities to take steps to regularize as a one-time
    D measure, the services of irregularly appointed persons who had
      worked for ten years or more in duly sanctioned posts. Learned
      counsel submitted that the same benefit be extended to
      persons who had worked on daily wage basis for over 10
      years.
    E      5. Learned counsel appearing for respondent Nos. 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 riot get the benefit
      of the directions contained in Umadevi's case (supra) which
    F are applicable only to those qualified employees who were
      appointed irregularly in sanctioned posts. Learned counsel
      submitted that the Council in the year 1995 had decided to fill
      up the posts of AssistanURoutine Clerk and 'Peon on regular
      basis and an advertisement to that effect was published on
    G 25.2.1995. 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 15.01.2000, it did not materialize
    H due to the creation of new State of Jharkhand by the Bihar Re-




•
   SATYA PRAKASH & ORS. v. STATE OF BIHAR &                   455
         ORS. [K.S. RADHAKRISHNAN, J.]
organisation Act, 2000. Further, the Bihar Education Council          A
itself was dissolved by the Biihar Intermediate Education
Council (Repeal) Act of 2007 and hence there was no question
of regularization 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          B
own recruitment rules. Under such circumstances, it was stated
that the directions sought for by the appellants for regularization
of their services in the Council cannot be granted.
       6. We are of the view that the appellants are not entitled
.to get the benefit of regularization of their services since they    C
  were never appointed in any sanctioned posts. Appellants were
  only engaged on daily wages in the Bihar Intermediate
 Education Council. In Umadevi's case (supra) this Court held
 that the Courts are not expected to issue any direction for
 absorption/regularization or permanent continuance of                D
  temporary, contractual, casual, -daily-wage or ad hoc
 employees. This Court held that such directions issued could
 not be said to be in consistent with the constitutional scheme
 of public employment. This Court held that merely because a
 temporary employee or a casual wage worker is continued for          E
 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     F
 laid down by this Court, the directions sought for by the
 appellants cannot be granted.
     7. Paragraph 53 of Umadevi's Judgment, deals with
irregular appointments (not illegal appointments). Constitution
Bench specifically referred to the judgment in S. V.                  G
Narayanappa vs. State of Mysore (1967) 1 SCR 128, B.N.
Nanjudappa vs. T. Thimmiah (1972)1 SCC 409, in paragraph
15 of Umadevi's judgment as well.
     8. Let us refer to paragraphs 15 and 16 of Umadevi's             H
    456       SUPREME COURT REPORTS                    [2010] 3 S.C.R.


A judgment in this context. Necessity of keeping in mind the
  distinction between regularization and conferment of
  permanence in service jurisprudence has also been highlighted
  by this·Court by referring to the following passages from R.N.
  Nanjundappa's case, which reads as follows:-
B           " 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 regularized. Ratification or
          regularization is possible of an act which is within the
          power and province of the authority but there has been
c         some non-compliance with procedure or manner which
          does not go to the root of the appointment. Regularization
          cannot be said to be a mode of recruitment."
        Further Constitution Bench referred to in B.N. Nagarajan's
    case in para 16 of the judgment and stated as follows:-
0
         " We have, therefore, to keep this distinctipn in mind and
        ,proceed on the basis that only something that is irregular
         for want of compliance with one of tf)e elements in the
         process of selection which does not go to the root of the
E        process, can be regularized and that it alone can be
         regularized and granting permanence of employment is a
         totally different concept and cannot be equated with
         regularization."
         Then, in Umadevi's case in paragraph 53 the Court is ,
F   stated as follows:-
          " One aspect needs to be clarified. There may be cases .
          where irregular appointments (not illegal appointments) as
          explained in S. V. Narayanappa R.N. Nanjundappa and
G
          B.N. Nagarajan and referred to in para 15 above of duly
          qualified persons in duly ,sanctioned vacant posts might
          have been made and the employees h?ve continued to
          work for ten yeas or more but without the intervention of
          orders of the courts or of tribunals. The question of
          regularization of the services of such employees may have
H
  SATYA PRAKASH & ORS. v. STATE OF BIHAR &                       457
        ORS. [K.S. RADHAKRISHNAN, J.]
     to be considered on merits in the light of the principles,           A
     settled by this Court in cases above-referred to and in the
     light of this judgment. In that context, the Uniori of India, the
     State Governments and their instrumentalities should take
     steps to regularize as a one-time measure, the services
     of such irregularly appointed, who have worked for ten               B
     years or more in duly sanctioned posts but not under cover
     or 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 wh.ere temporary employees or daily wagers are                 c
     being now employed. The process must be set in motion
     within six months from this date."
     9. 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          D
non-compliance of some procedure in the selection process
which did not go to the root of the selection process. Appellants
in our view will not fall in the category of the employees
mentioned in paragraph 53 read with paras 15 and 16 of the
Constitution Bench Judgment.                                              E
      10. Above view is further reinforced when we. read
 paragraphs 8 and 55 in Umadevi's case, wherein similar
 arguments were raised but rejected by the Constitution Bench.
 Paragraphs 8 of the Constitution Bench judgment refers to CA
 No.3595-612 of 1999 filed by the Commercial Taxes F
 Department. 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 regularization. They approached·
the Tribunal without success. They took up the matter before G
the High Court of Karnataka. The Karnataka High Court
ordered that they are entitled to wages and allowances equal
to regµlar employees and also gave a direction to the State
Government to consider thefr case for regularization within four
months.                                                          H




                                                                     ·"
        458     SUPREME
                   '    COURT REPORTS
                                  .                    [2010] 3 f1.C.R.

    A       11. Aggrieved by the judgment of the Karnataka High Court
       the Commercial Taxes Department approached this Court.
       Allowing the appeal preferred by the Commercial Taxes
       Department, this Court set aside the directions given by the
      ·High Court for regularization of services of those daily wage
. . B employees who hactmore than 10 years of service. The Court
       held as follows:-
              " We are, therefore, of the view that, at best, the Division
              Bench of the High Court should have directed that wages
              equal-Jo the salary that is being paid to regular employees
    c         be paid to these daily wage emptoyees with effect from
              the date of its judgment. Hence, t11at part of the direction
             ·of the Division Bench is modified anc:\ 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
    D         the Commercial Taxes Departmer:it 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
    E      . 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
              t~ High Court has not adverted to the aspect as to '
    F         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 w.ould stand allowed
              to that extent. If sanctioned posts are vacant(they are said
              to be vacant) the State will take immediate steps for filling
    G
              those posts by a regular process of selection. But when
              reguiar recruitment is undertaken, the respondents- in
              Civil Appeal No. 3595-612 and those in Commercial Tax
              Departments similarly situated will be allowed to compete,
              waiving .the age restriction imposed for the recruitment
    H                                                            .' .
                                                                   .
    SATYA PRAKASH & ORS. v. STATE OF BIHAR &                 459
          ORS. [K.S. RADHAKRISHNAN, J.]
     and giving some weightage for their having been engaged        A
     for work in the Department for a significant period of time.
    12. In our view, the appellants herein would fall under the
category of persons mentioned in paragraphs 8 and 55 of the
judgment and not in paragraph 53 of judgment of Umadevi's.
                                                                    B
   . 13. Appellants in their reply affidavit filed on 14.10.2004
before the High Court has specifically stated in paragraph 5
that they were only engaged as Assistant Routine Clerks and
Peons on daily wages. Further in paragraph 20 of the affidavit
it was stated that they were discharging their duties on daily      c
wages basis since 1995 and had entertained a legitimate
expectation for regularization of their services. Appellants' own
case is that they were only engaged on daily wages basis and
never appointed in service either on a temporary basis or on
ad-hoc basis.            -
                                                                    D
     14. Appellants stated th~t they had uridergone 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          E
more in existence. However, if 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. In Umadevi's case iri
paragraph 55 of the judgment, the Constitution Bench has also       F
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.
     15. The appeal, therefore, lacks merits and the same is        G
disposed of as above.

K.K.T.                                    Appeal disposed of.


I




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