Holding

Appointments made in violation of the constitutional scheme of equality are illegal and cannot be regularised; the High Court's order is set aside and the matter remitted for fresh consideration.

Summary

The petitioners, work‑charge employees appointed in the early 1980s, sought regularisation of their services after more than a decade of continuous employment. The Punjab and Haryana High Court had earlier ordered their regularisation based on a prior judgment, but the State appealed to the Supreme Court. The key issue was whether the Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi (3) required the High Court to revisit the matter, given that the appointments were alleged to be merely irregular and not illegal. The Supreme Court clarified that while irregular appointments may be regularised, appointments that violate the constitutional scheme of equality are illegal and cannot be regularised. It held that the respondents' appointments were illegal, set aside the High Court order and remitted the matter to the High Court for fresh consideration in light of the parties' claim that the work‑charge appointments were permissible under law. The appeal was allowed and the case was sent back to the High Court for re‑examination.

Issues considered

The nature of the appointments: whether they were irregular or illegal under the constitutional scheme of equality.
Whether the Supreme Court's directions in Uma Devi (3) mandate remand of the case to the High Court for fresh consideration.
The entitlement of work‑charge employees who have served for ten or more years to regularisation.

Subjects

regularisationwork‑charge employeesirregular appointmentillegal appointmentconstitutional equalityArticle 14Article 16remandservice law

Judgment

[2008] 17 S.C.R. 1003
'
~~

STATE OF PUNJAB A
-. II.
-..J,
BAHADUR SINGH & ORS.
(Civil Appeal No. 7347 of 2008)
DECEMBER 17, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
..
Service Law -- Regularisation - Of irregular appointees
~
(not illegal appointees), working for more than ten years in
duly sanctioned vacant posts without intervention of orders of c
courts or of tribunals - Clarifications/directions given by
Constitution Bench of Supreme Court in Uma Devi (3) case
- Respondents working in work-charge establishment for
decades as work-charge employees - Fifed writ petition
seeking regularisation - Order passed by High Court -
D
Challenge to - Matter remitted to High Court for consideration
; afresh in view of directions passed in Uma Devi (3) case
. ...,, keeping in view the statement made by respondents that their
appointment was permissible and not illegal.
Respondent No.1 was appointed in 1982 on work
E
charge basis. He continued to be employed in the said
capacity without being regularized.
In 2004, Respondent No.1 filed writ petition seeking
regularization of his service. High Court disposed of the
petition in terms of its earlier judgment in a similar writ
F
petition filed in 2003 by some work-charge employees
like respondent no.1 wherein the High Court had directed
regularization of services of all the petitioners before it
with consequential reliefs.
A Constitution Bench of this Court in Umadevi (3)*
case, had inter alia, held that any appointment made in G
violation of the constitutional scheme of equality would
~ be wholly illegal and, thus a nullity. However, the Court
clarified that in cases where irregular appointments (not
illegal appointments) of duly qualified persons in duly
..., :I003 H

'
1004 SUPREME COURT REPORTS [2008] 17 S.C.R.
~

A sanctioned vacant posts might have been made and the I
employees have continued to work for ten years or more
but without the intervention of orders of courts or of
tribunals, the question· of regularization of the services
of such employees may have to be considered on merits
8 and passed consequential directions.
In appeal to this Court, a question arose as to
whether in view of the directions passed by this Court in
Uma Devi(3)* case, the present matter should be remitted
to the High Court. - 'y-
c Allowing the appeal and remitting the matter to High /
court, the Court
HELD: The Constitution Bench decision of this Court
in Uma Devi (3) had been read differently by different
Benches. lo that case the Constitution Bench deprecated
o appointment through side door/back door being contrary
to the constitutional scheme of equality. Whereas· any
irregularity can be regularized but an illegality cannot be.
The matter is remitted to the High Court for consideration
of the matter afresh keeping in view the statement made
E by the respondents that appointment in the work charge
establishment was permissible in law and the
recruitments had been made in accordance with law.
[Paras 8, 9 and 11] (1009-G-H; 1012-D-E] •,
*Secretary, State of Karnataka & Ors. v. Umadevi (3) &
F Ors. (2006) 4 SCC 1; State of Mysore & Anr. v. S. V.
Narayanappa (1967) 1 SCR 128; B.N. Nagarajan & Ors. v.
State of Karnataka & Ors. (1979) 4 SCC 507; State of M:P. & ) -
Ors._ v. La/it Kumar Verma (-2007) 1 SCC 575 and Post Master
General, Kolkata & Ors. v. Tutu Das (Dutta) (2007) 5 SCC 317,
referred to.
. G
Case Law Reference:
(2006) 4 sec 1 referred to Para 6
(1967) 1 SCR 128 referred to Para 8
(1979) 4 sec 507 referred to -Para 8
H (2007) 1 sec 575 referred to Para 9
STATE OF PUNJAB v. BAHADUR SINGH & ORS. 1005
....
.....f

(2007) 5 SCC 317 referred to Para 10 A
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7347 of 2008.
From the Judgment and final Order dated 2.8.2005 of the
High Court of Punjab & Haryana at Chandigarh in C.W.P. No.
7389 of 2004. B
Ajay Pal for the Appellant.
,
Neeraj Kumar Jain, Bharat Singh, Sandeep Chaturvedi
and Ugra Shankar Prasad for the Respondent.
The Judgment of the Court was delivered by c
S.B. SINHA, J. 1. Leave granted.
2. This appeal is directed againsf a judgment and order
dated 2.8.2005 passed by the Division Bench of the High Court
of Punjab and Haryana disposing of the writ petition in terms
- of its earlier judgment dated 12.8.2003 in Civil Writ Petition D
No.1287 of 2003.
! 3. The basic fact of the matter is not in dispute.
-+-- The First Respondent was appointed on 9.5.1982 in the
post of a Driver on a work charge basis. He continued to be
employed in the said capacity without being regularized. E
Respondent No.1 filed C.W.A. No.7389 of 2004 in the Punjab
& Haryana High Court seeking regularization of his service. As
per the impugned order, the said writ petition was disposed of
in terms of judgment dated 12.8.2003 in C.W.P. No.1287 of
2003. F
4. Some Work charged employees like Respondent No.1
fried C. W.A. No.1287 of 2003 in the High Court of Punjab &
Haryana seeking regularization of their service. By an order
dated 12.8.2003 (Annexure P-3), a Division Bench of the High
Court in Writ Petition No.1287 of 2003 directed as under : G
"In the case in hand, the petitioners have rendered more
than 16 years of regular service with the SYL Canal
-4 Project. They are drawing running pay scale. Their service
books have been maintained by the Department and their
provident fund is being deducted. They all fulfill the requisite H
1006 SUPREME COURT REPORTS [2008] 17 S.C.R.
•1~

A qualifications for the post held by them. Thus, present one
is not even a case of relaxation of qualification for the ~
,. ;
absorption of the petitioners. The Government has issued
)o.~ -
instructions for absorption of the petitioners. The
Government has issued instructions for absorption of the
B workers who have rendered three years of regular service. .,__

, In spite of all this, the petitioners have·not been regularized 'I-
in the service. The action of the concerned authorities in
not regularizing the services of the petitioners is contrary
to the letter and spirit of the instructions issued by the
Government, which also runs counter to the dictum of their
c Lordships of the Supreme Court in the aforementioned "'"
Authorities. In CiviLWrit Petition No.16959 of 2000 ,...
(Girdhari Lal Vs. P.R. T.C. etc.), it was held by this Court
that even a part time employee, working for a few hours
every day, is entitled to regularization under the instructions
D issued by the State Government. ....
To sum up, it is the admitted position that the "'
authorities have adopted a pick and choose policy while
regularizing the services of the work-charge employees of _.... '
the SYL Canal Project. Even as per the instructions dated
E January 23, 2001 (Annexure P-11) the regularization is to
,..
be made on the basis of seniority. However, the principle >-
of seniority has been given goodbye. Keeping in view the
aforementioned decisions of Hon'ble the Supreme Court -r
as well as of this Court, we find lease justification in the
F conduct of the authorities in not regl;Jlarizing the services
of the petitioners despite their having rendered more than
16 years of service.
For the reasons recorded above, the petition is
allowed. The respondents are directed to regularize the
G services of the petitioners with all consequential reliefs
within two months from the date of receipt of ~ certified
copy of this order."
5. A Special Leave Petition was preferred thereagainst f-
which was marked as SLP (C) No.24325 of 2003. By an order
H dated 27.2.2004 notices were issued. It appears that similar
...

~

..
,
STATE OF PUNJAB v. BAHADUR SINGH & ORS. 1007
[S.B. SINHA, J.]
--·~
matters came up before this Court and a Division Bench in its A
..... order dated 26.3.2007 directed as under :
"Leave granted .
.. ~

Counsel on both the sides submit that the case in hand is
squarely covered by a decision of this Court in State of
Punjab & Ors. v. Lakhwinder Singh & Ors., (2007) 2 SCC B
502. In view thereof, the appeals are allowed and the
judgment and orders under challenge are set aside. The
matters are remanded back to the High Court for fresh
consideration of the writ petitions. It is made clear that this
court is not expressing any opinion on the merits of the c
claim made by the concerned employees."
6. Indisputably, a Constitution Bench of this Court in
Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors.
[(2006) 4 sec 1], inter alia, held that any appointment made
in violation of the constitutional scheme of equality would be D
... wholly illegal and, thus a nullity, stating :
"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
Court would certainly be disabled from passing an order E
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
employment, this Court while laying down the law, has F
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, if
G
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
because a temporary employee or a casual wage worker H
1008 . SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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
B 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, do
not acquire any right. High Courts acting under Article 226
of the Constitution of India, should not ordinarily issue
c directions for absorption, regularization, or permanent
continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Merely
because, an employee had continued under cover of an
-
order of Court, which we have described as 'litigious
D 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
Court may not be justified in issuing interim directions,
since, after all, if ultimately the employee approaching it
E .is Page 1945 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 employee who is really not required.
F
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 mandates."
G However, it was furthermore opined :
"One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S. V. Narayanappa (supra), R.N. . f-
Nanjundappa (supra), and B.N. Nagarajan (supra), and
H
STATE OF PUNJAB v. BAHADUR SINGH & ORS. 1009
[S.B. SINHA, J.]

referred to in paragraph 15 above, of duly qualified A
-.. persons in duly sanctioned vacant posts might have been
,,... "'.,1,: made and the employees have continued to work for ten
years or more but without the intervention of orders of
courts or of tribunals. The question of regularization of the
services of such employees may have to be considered B
on merits in the light of the principles settled by this Co~rt
in the cases above referred to and in the light of this
judgment. In that context, the Union of India, the State 1

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 years br
c
...... more in duly sanctioned posts but not under cover of

... orders of 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
-., D
where temporary employees or d~ily wagers are being
now employed. The process must b~ set in motion within
j six months from this date. We also clarify that
~· regularization, if any already made, but not subjudice, need
not be reopened based on this judgment, but there should
be no further by-passing of the constitutional requirement E
and regularizing or making permanent, those not duly
appointed as per the constitutional scheme."
_,
7. Learned counsel appearing on behalf of the respondent
would submit that in view of the aforementioned directions of
this; Court in Uma Devi (3) (supra), the matter should be F
remitted to the High Court. It was furthermore contended that
\ appointment of the respondents on a work charge basis being
permissible in law, the decision of the Constitution Bench of this
Court would not be applicable.
8. We are aware of the fact that paragraph 53 of Uma G
Devi (3) (supra) had been read differently by different Benches:
We have, however, no doubt in our mind that the Constitution
Bench deprecated appointment through side door/back door
-'
..... being contrary to th& constitutional scheme of equality .
Par9graph 53 of the said decision by way of one time scheme
'
H
( '
1010 SUPREME COURT REPORTS [2008] 17 S.C.R.
........
A refers to those cases, inter alia, where orders of regularization .,,;'
had attained finality. The very fact that this Court therein referred
to the decisions of this Court in State of Mysore &Anr. v. S. V.
)-
),,,. ...'
Narayan_appa [(1967) 1 SCR 128 and B.N. Nagarajan & Ors.
v. State of Karnataka & Ors. [(1979) 4 SCC 507] clearly goes
B to show that the same has to be read in the context thereof and
not de hors the same. .
This Court in B.N. Nagarajan clearly stated that whereas
any irregularity can be regularized but an illegality cannot be. It
was furthermore stated that regularization would not mean \--
permanency. This aspect of the matter has been highlighted in
c
a number of decisions.
9. In State of M.P. & Ors. v. La/it Kumar Verma [(2007) 1
SCC 575], this Court stated :
-..
"12. The question which, thus, arises for consideration, ........
D would be : Is there any distinction between 'irregular
appointment' and 'illegal appointment'? The distinction
between the two terms is apparent. In the event the ~ ~

appointment is made in total~disregard of the constitutional ........
scheme as alsq the recruitment rules framed by the
E employer, which is 'State', within the meaning of Article 12
of the Constitution of India, the recruitment would be an
illegal one; whereas there may be cases where, although,
substantial compliance with the constitutional scheme as ~

also the rules have been made, the appointment may be
irregular in the sense that some provisions of some rules
F might not have been strictly adhered to."
10. In relation to almost similar orders, it was noticed in I
Post Master General, Kolkata & Ors. v. Tutu Das (Dutta)
[(2007) 5 sec 317], it was noticed :
"20. The statement of law contained in para 53· of Uma
G
Devi (supra) cannot also be invoked in this case. The
question has been considered by this Court in a large
number of decisions. We would, however, refer to only a ;...
few of them. .....
H 21. In Punjab Water Supply and Sewerage -Board v.
\
>

'
STATE OF PUNJAB v. BAHADUR SINGH & ORS. 1011
[S.B. SINHA, J.]

Ranjodh Singh and Ors. [(2007) 2 SCC 491} referring to A
paragraphs 15, 16 and 53 of Uma Devi (supra), this Court

'A combined reading of the aforementioned
paragraphs would clearly indicate that what the
Constitution Bench had in mind in directing B
regularization was in relation to such appointments,
which were irregular in nature and not illegal ones.'
Distinction between irregularity and illegality is explicit. It
has been so pointed out in National Fetilizers Ltd. and Ors.
v. Somvir Singh [(2006) 5 SCC 493) in the following terms: ~ C
'The contention of the learned Counsel appearing
on behalf of the respondents that the appointments
were irregular and not illegal, cannot be accepted
for more than one reason. They were appointed only
on the basis of their applications. The Recruitment O
Rules were not followed. Even the Selection ,
Committee had not been properly constituted. In
view of the Page 241 ~ ban on employment, no
1

recruitment was permissible in law. The reservation
policy adopted by the appellant had not been . E
maintained. Even cases of minorities had not been
given due consideration.'
The Constitution Bench thought of directing regularization
of the services only of those employees whose
appointments were irregular as explained in State of F
Mysore v. S. V. Narayanappa, R.N. Nanjundappa v. T.
Thimmiah and B.N. Nagarajan v. State of Karnataka
wherein this Court observed:
'16. In B.N. Nagarajan v. State of Kamataka this
Court clearly held that the words 'regular' or G .
'regularization' do not connote permanence and
cannot be construed so as to convey an idea of the
nature of tenure of appointments. They are terms
calculated to condone any procedural irregularities
and are meant to cure only such defects as are
H
1012 SUPREME COURT REPORTS [2008] 17 S.C.R.

A attributable to methodology followed in making the
appointments.'
Judged by the standards laid down by this Court in the
aforemer:itioned decisions, the appointments of the
respondents are illegal. They do not, thus, have any legal
B right to continue in service.
{See also State of Madhya Pradesh and Ors. v. Yogesh
Chandra Dubey and Ors. [(2006) 8 SCC 67] and State
of M.P. and Ors. v. La/it Kumar Verma[(2007) 1 SCC
575]}
C 22. The same principle has been reiterated recently in
Punjab State Warehousing Corp., Chandigarh v.
Manmohan Singh and Anr. [2007 (3) SCALE 401]."
11. In this view of the matter, we are of the opinion that the
impugned judgment of the High Court cannot be sustained. It
D is set aside accordingly and the matter is remitted to the High
Court for consideration of the matter afresh in the light of the
observations made hereinbefore keeping in view the statement
made by Mr. Jain that the appointment in the work charge
establishment was permissible in law and the. recruitments had
·E been made in accordance with law.
12. The appeal is allowed with the aforementioned
direction. In the facts and circumstance of the case, there shall
be no order as to costs.
B.B.B. Appeal allowed.

i