Holding

A daily‑wage worker not appointed through the regular recruitment process cannot be regularised as a clerk, and the High Court’s direction for such regularisation is set aside, though the worker may accept the offer of regularisation as Chowkidar.

Summary

The respondent, a daily‑wage worker in the Himachal Pradesh Horticulture Department, sought regularisation as a clerk after ten years of service. The State offered him regularisation as a "Chowkidar," which he refused, leading to termination of his daily‑wage engagement and an industrial dispute. The Labour Court dismissed his claim, holding that daily‑wage workers cannot be treated on par with regular employees and that the recruitment procedures for regularisation were not complied with. The High Court erroneously directed his regularisation as a clerk, a direction the Supreme Court set aside, emphasizing that regularisation cannot be granted where the original appointment was a back‑door entry without following the constitutional scheme. The Court allowed the appeal in part, directing the respondent to accept the earlier offer of regularisation as Chowkidar within six weeks, and dismissed the High Court’s order for clerk regularisation.

Issues considered

Whether a daily‑wage worker appointed without following the regular recruitment process is entitled to regularisation as a clerk under the government scheme.
Whether the High Court can direct regularisation in violation of the constitutional scheme of appointment and the principles of Articles 14 and 16 of the Constitution.
Whether the Labour Court’s dismissal of the claim for regularisation was maintainable.

Legislation cited

Industrial Disputes Act, 1947s. 33

Subjects

regularisationdaily‑wage workerindustrial disputelabour lawconstitutional lawArticle 14Article 16appointment procedureback‑door entryhigh court writ

Judgment

(2008] 5 S.C.R. 579

'-i· STATE OF HIMACHAL PRADESH AND ANR. A
v.
RAVINDER SINGH
(Civil Appeal No. 2224 of 2008)
MARCH 28, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Labour Laws:
Regularisation - Daily-wager - Seeking regularization
as Clerk - Employer offering regularisation as 'Chowkidar' - c
Offer refused by worker - Termination - Industrial dispute -
Tribunal upheld termination - High Court directing
regularisation as Clerk - Challenge to - Held: Worker
concerned was not selected in the manner as applicable to
regular employees - He was a mere back-door entrant - D
Hence, directions given by High Court for regularization in the
_.....
post of Clerk set aside - However, time granted to worker to
accept offer for regularisation as 'Chowkidar'.
Respondent had been appointed on daily-wage
basis in the State Horticulture Department. He sought E
regularization as Clerk. Appellants offered Respondent
regularisation as 'Chowkidar' which he refused. Thereafter
· the engagement of Respondent as daily wager was
terminated. Industrial dispute was raised. The stand of the
State was that the Respondent was engaged as daily-paid F
. ,.:,;_
labourer for carrying out horticulture operations such as
spraying of plants, cleaning the floors etc. and therefore,
the question of discharging the duties of clerk/supervision
did not arise .. Tribunal upheld the termination. High Court
directed regularisation of Respondent as Clerk under a G
Government scheme.. Hence the present appeal.
Partly allowing the appeal, the Court
I .
'"r HELD: The High Court proceeded on erroneous
579 H
580 SUPREME COURT REPORTS [2008] 5 S.C.R.

A premises. The Labour Court had rightly dismissed the -·...-~

claim of the Respondent by holding that he and others,
being daily wagers, cannot be treated at par with the
regular employees. It also noted that the conditions for
regularization under the policy of the Government have
B not been noticed. In addition, the Labour Court had
observed that the name of the Respondent was not
+
sponsored by the employment exchange; there was no
appointment order; the requirements relating to
procedure to be followed at the time of recruitment were
also not fulfilled. There was a mere back-door entry. It was
c further noted that they were not selected in the manner
as applicable to regular employees who are liable to be
transferred and are subject to disciplinary proceedings
to which daily-rated workers are not subjected to. In the
background of what has been stated above, the directions
D given for regularization in the post of clerk being
indefensible are set aside. However, the appellants had ..I-.
regularized the services of the respondent as a 'Chowkidar'
in July, 1997 which the respondent had refused. If the
respondent is so advised, he may accept the order in that
E regard by submitting the req~isite documents within six
weeks from today. If not so done, the respondent shall
not be entitled to any relief in terms of the High Court's
impugned order which has been set aside by this Court.
[Paras 7,8, 9] [582-E, F, G; 587-C, D, ~. F, G]
F Secretary, State of Karnataka & Ors. v. Uma Devi & Ors.
(2006) 4 sec 1 - referred to. _.. .
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2224 of 2008.
G From the final Judgment and Order dated 26.09.2005 of
the High Court of Himachal Pradesh at Shimla at Shimla in
C.W.P. No. 354 of 2000.
Naresh K. Sharma and J.S. Attri for the Appellants. T'
H S.C. Rana and Balraj Dewan for the Respondent.
STATE OF HIMACHAL PRADESH AND ANR. v. 581
RAVINDER SINGH [DR. ARIJIT PASAYAT, J.]

The Judgment of the Court was delivered by A
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Himachal Pradesh High Court by which two
Writ Petitions filed by the respondent were disposed of. The B
controversy lies within a very narrow compass.
3. The present dispute relates to Civil Writ Petition No.354
of 2000. Before dealing with the rival contentions the factual
background needs to be noted.
· Respondent was appointed on 3.9.1980 as a daily-rated ·
c
worker in the Horticulture Department of the State. In the Writ
Petition the prayer was for regularization as a clerk on
completion of ten years of service on daily wages basis. It is to
be noted that the union of the ernployees had moved the Labour
D
Court for regularization of all daily wagers. The same was
... adjudicated by the Industrial Disputes Tribunal. A reference was
made to the Labour Court and the State filed its response
questioning maintainability of the reference. Initially the Labour
Court had decided in favour of the workers but on a Writ Petition
being filed, the High Court held in favour of the State holding E
that the claim for regularization was not maintainable. It was
noted that no appointment order was issued and the. case of
the respondent was not sponsored by the employment
exchange. It was also noted that the claim for equal work for
equal pay was not maintainable as daily-rated persons were F
~
not required to perform duties at par with those in regular service
'.-J._
and they did not also fulfil the procedure at the. time of
recruitment. Two Writ Petitions were filed; in one the challenge
was to the order of the Industrial Disputes Tribunal while the
Writ Petition to which this Appeal relates to the Award by the G
Labour Court. It is to be noted that the Labour Court had
observed that the employer had regularized the respondent as
I a Chowkidar with effect from 5. 7.1997 which was refused by
'-f· him. Thereafter the engagement as daily wager was terminated.
This order was challenged before the Industrial Disputes H
582 SUPREME COURT REPORTS [2008] 5 S.C.R.

A Tribunal, under Section 33 which was dismissed. However, as +·
noted above the High Court has remanded the matter to the
Tribunal.

4. The High Court in the impugned order held that the
approach of the Labour Court was wrong as it has introduced
8 concepts which are unnecessary. It was noted by the High Court
that there was no dispute that the respondent was employed as +
a clerk.

5. Learned counsel for the respondents submitted that the
c question whether the appointment was as a clerk has been con-
cluded by an earlier order of the High Court which has become
final and, therefore, the present appeal is misconceived.
6. The High Court had rightly observed that the Labour
Court embarked upon an uncalled enquiry upon the status of
D daily-wage workers vis.a.vis regular workers, therefore, the
direction was given that the respondent was entitled to be
regularized as clerk under the scheme of the Government with
effect from 11th July, 1995.

7. It is to be noted that the High Court proceeded on
E erroneous premises. It has observed that there was no dispute
that respondent was employed as daily wage worker as clerk
with effect from 3rd September, 1980. The High Court itself has
observed that the stand of the State was specific that the
respondent was engaged as daily-paid labpurer for carrying
F out horticulture operations sucl:l as spraying of plants, cleaning
the floors etc. and therefore, the question of discharging the
duties of clerk/supervision does not arise. It was also to be noted
that the Labour Court had rightly dismissed the claim of the
respondent by holding that he and others, being daily wagers,
G cannot be treated at par with the regular employees. It also noted
that the conditions for regularizations under the policy of the
Government have not been noticed. The parameters of
regularization have been examined by this Court in Secretary,
State ofKarnataka & Ors. v. Uma Devi & Ors. (2006(4) SCC1).
H Paras 22, 27, 36, 39, 42 and 43 of the decision read as follows:
STATE OF HIMACHAL PRADESH AND ANR. v. 583
RAVINDER SINGH [DR. ARIJIT PASAYAT, J.]
·-t "22. With respect, it appears to us that the question whether A
the jettisoning of the constitutional scheme of appointment
can be approved, was not considered or decided. The
distinction emphasised in R.N. Nanjundappa v. T
Thimmiah (1972 (1) sec 409) was also not kept in mind.
The Court appears to have been dealing with a scheme B
...+ for "equal pay for equal work" and in the process, without
an actual discussion of the question, had approved a
scheme put forward by the State, prepared obviously at
~~
the direction of the Court, to order permanent absorption
of such daily-rated workers. With respect to the learned c
judges, the decision cannot be said to lay down any law,
that all those engaged on daily wages, casually, temporarily,
or when no sanctioned post or vacancy existed and without
following the rules of selection, should be absorbed or
made permanent though not at a stretch, but gradually. If
D
that were the ratio, with respect, we have to disagree with
+ it.
27. We shall now refer to the other decisions. In State of
Punjab v. Surinder Kumar (AIR 1992 SC 1593) a three-
•,, Judge Bench of this Court held that the High Courts had E
no power, like the power available to the Supreme Court
under Article 142 of the Constitution, and merely because
the Supreme Court granted certain reliefs in exercise of
its power under Article 142 of the Constitution, similar
orders could not be issued by the High Courts. The Bench F
,
. ~,
pointed out that a decision is available as a precedent
only if it decides a question of law. The temporary
employees would not be entitled to rely in a writ petition
they filed before the High Court upon an order of the
Supreme Court which directs a temporary employee to
G
be regularised in his service without assigning reasons
and ask the High Court to pass an order of a similar nature.
This Court noticed that the jurisdiction of the High Court
''-f while dealing with a writ petition was circumscribed by the
limitations discussed and declared by judicial decisions
H
584 SUPREME COURT REPORTS [2008] 5 S.C.R.

A and the High Court cannot transgress the limits on the +· '
basis of the whims or subjective sense of justice varying
from judge to judge. Though the High Court is entitled to
exercise its judicial discretion in deciding writ petitions or
civil revision applications coming before it, the discretion
B had to be confined in declining to entertain petitions and
refusing to grant reliefs asked for by the petitioners on
adequate considerations and it did not permit the High +
Court to grant relief on such a consideration alone. This
Court set aside the directions given by the High Court for
regularisation of persons appointed temporarily to the post
c of lecturers. The Court also emphasised that specific terms
on which appointments were made should be normally
...
enforced. Of course, this decision is more on the absence
of power in the High Court to pass orders against the
constitutional scheme of appointment.
D
36. This Court also quoted with approval (at SCC p. 131,
para 69) the observations of this Court in Teri Oat Estates _...
(P) Ltd. v. U. T, Chandigarh (2004(2) SCC 130) to the

E
effect: (SCC p. 144, para 36)
"36. We have no doubt in our mind that sympathy or
,
sentiment by itself cannot be a ground for passing
. an order in relation whereto the appellants miserably
fail to establish a legal right. It is further trite that
despite an extraordinary constitutional jurisdiction
F contained in Article 142 of the Constitution, this Court
ordinarily would not pass an order which wou Id be in
contravention of a statutory provision." ."- ..
This decision kept in mind the distinction between "regulari-
sation" and "permanency" and laid down that regularisation
G is not and cannot be the mode of recruitment by any State.
It also held that regularisation cannot give permanence to
an employee whose services are ad hoc in nature.
39. There have been decisions which have taken the cue
from Dharwad case1 and given directions for
H
STATE OF HIMACHAL PRADESH AND ANR. v. 585
RAVINDER SINGH [DR. ARIJIT PASAYAT, J.]

regularisation, absorption or making permanent, A
employees engaged or appointed without following the
due process or the rules for appointment. The philosophy
behind this approach is seen set out in the recent decision
in Workmen v. Bhurkunda Colliery of Central Coalfields
Ltd. (1983 (4) SCC 582) though the legality or validity of B
such an approach has not been independently examined.
But on a survey of authorities, the predominant view is
seen to be that such appointments did not confer any right
on the appointees and that the Court cannot direct their
absorption or regularisation or re-engagement or making c
them permanent.
42. While answering an objection to the locus standi of the
writ petitioners in challenging the repeated issue of an
ordinance by the Governor of Bihar, the exalted position
of rule of law in the scheme of things was emphasised, D
Bhagwati, C.J., speaking on behalf of the Constitution
Bench in D.C. Wadhwa (Dr.) v. State of Bihar (1987 (1)
SCC 378) stated: (SCC p. 384, para 3)
"The rule of law constitutes the core of our
Constitution and it is the essence of the rule of law E
that the exercise of the power by the State whether
it be the legislature or the executive or any other
authority should be within the constitutional limitations
and if any practice is adopted by the executive which
is in flagrant and systematic violation of its F
constitutional limitations, Petitioner 1 as a member
'....( of the public would have sufficient interest to
challenge such practice by filing a writ petition and it
would be the constitutional duty of this Court to
entertain the writ petition and adjudicate upon the G
validity of such practice."
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
H
586 SUPREME COURT REPORTS [2008] 5 S.C.R.

A 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.
Therefore, consistent with the scheme for public
B 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
appointment comes to an end at the end of the contract,
c 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 appointment. It has also to be clarified that merely
D
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
E 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 employment has come to an end or of ad hoc
employees who by the very nature of their appointment,
.
i:
do not acquire any right. The High Courts acting under
Article 226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent ,). _.
continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Merely
G because an employee had continued under cover of an
order of the court, which we have described as "litigious
employment" in the earlier part of the judgment, he would
not be entitled to any right to be absorbed or made
permanent in the service. In fact, in such cases, the High
H Court may not be justified in issuing interim directions,
STATE OF HIMACHAL PRADESH AND ANR. v. 587
RAVINDER SINGH [DR. ARIJIT PASAYAT, J.]

since, after all, if ultimately the employee approaching it is A
found entitled to relief, it may be possible for it to mould
the relief in such a manner that ultimately no prejudice will
be caused to him, whereas an interim direction to continue
his employment would hold up the regular procedure for
selection or impose on the State the burden of paying an 8
employee who is really notrequired. The courts must be
careful in ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory c
mandates."
8. In addition it has to be noted that the Labour Court had
observed that the name of the respondent claimant was not
sponsored by the employment exchange; there was no
appointment order; the requirements relating to procedure to D
~ be followed at the time of recruitment were also notfulfilled. There
was a mere back- door entry. It was further noted that they were
not selected in the manner as applicable to regular employees
who are liable to be transferred and are subject to disciplinary
proceedings to which daily-rated workers are not subjected to. E
9. In the background of what has been stated above the
directions given for regularization in the post of clerk being
indefensible are set aside. However, undisputedly the appellants
had regularized the services of the respondent as a Chowk}dar
in July, 1997which the respondent had refused. If the respondent F
',;._ is so advised, he may accept the order in that regard by
submitting the requisite documents within six weeks from today.
If not so done, the respondent shall not be entitled to any relief
in terms of the High Court's impugned order which as noted
above we have set aside. G
10. The appeal is allowed to the aforesaid extent, but

r without any order as to costs.
8.8.8. Appeal partly allowed.
H