Supreme
Court Judgement - Casual Labour Regularisation: Applicable to those
Appointed after 1993 & 2006 who completed 10 years service
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7423-7429 OF 2018
(Arising out of S.L.P. (Civil) Nos. 19832-19838 OF 2017)
Narendra Kumar Tiwari & Ors. Etc. ….Appellants
versus
The State of Jharkhand & Ors. Etc. ….Respondents
JUDGMENT
Madan B. Lokur, J.
1. Leave granted
2.
These appeals arise out of the common judgment and order dated 17th
November, 2016 passed by a Division Bench of the High Court of Jharkhand
in a batch of writ petitions relating to the regularisation of daily
wage or contract workers on different posts. The writ petitioners (now
appellants) were denied the benefit of regularisation in view of the
provisions of the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt
Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015
(hereinafter referred to as the Regularisation Rules).
3. The
admitted position is that the appellants are irregularly appointed
employees of the State Government. They sought regularisation of their
status on the ground that they had put in more than 10 years of service
and were therefore entitled to be regularised. The High Court took the
view that the decision of the Constitution Bench of this Court in
Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors.1 did not
permit their regularisation since they had not worked for 10 years on
the cut-off date of 10th April, 2006 when the Constitution Bench
rendered its decision. According to the High Court, the Regularisation
Rules provided a one-time measure of regularisation of the services of
irregularly appointed employees based on the cut-off date of 10th
April,2006 in terms of the judgment of the Constitution Bench.
Therefore, since the appellants had not put in 10 years of service they
could not be regularised.
4. The appellants had contended before
the High Court that the State of Jharkhand was created only on 15th
November, 2000 and therefore no one could have completed 10 years of
service with the State of Jharkhand on the cut-off date of 10th April,
2006. Therefore, no one could get the benefit of the Regularisation
Rules which made the entire legislative exercise totally meaningless.
The appellants had pointed out in the High Court that the State had
issued Resolutions on 18th July, 2009 and 19th July, 2009 permitting the
regularisation of some employees of the State, who had obviously not
put in 10 years of service with the State.Consequently, it was submitted
that the appellants were discriminated against for no fault of theirs
and in an irrational manner.
5. Having heard learned counsel for
the parties and having considered the decision of the Constitution Bench
in Umadevi (3) as well as the subsequent decision of this Court
explaining Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and
Ors.2, we are of the view that the High Court has erred in taking an
impractical view of the directions in Umadevi (3) as well as its
consideration in Kesari.
6. The decision in Umadevi (3) was
intended to put a full stop to the somewhat pernicious practice of
irregularly or illegally appointing daily wage workers and continuing
with them indefinitely. In fact, in paragraph 49 of the Report, it was
pointed out that the rule of law requires appointments to be made in a
constitutional manner and the State cannot be permitted to perpetuate an
irregularity in the matter of public employment which would adversely
affect those who could be employed in terms of the constitutional
scheme. It is for this reason that the concept of a one-time measure and
a cut-off date was introduced in the hope and expectation that the
State would cease and desist from making irregular or illegal
appointments and instead make appointments on a regular basis.
7.
The concept of a one-time measure was further explained in Kesari in
paragraphs 9, 10 and 11 of the Report which read as follows:
9.
The term "one-time measure" has to be understood in its proper
perspective. This would normally mean that after the decision in Umadevi
(3), each department or each instrumentality should undertake a
one-time exercise and prepare a list of all casual, daily-wage or ad hoc
employees who have been working for more than ten years without the
intervention of courts and tribunals and subject them to a process
verification as to whether they are working against vacant posts and
possess the requisite qualification for the post and if so, regularise
their services.
10. At the end of six months from the date of
decision in Umadevi (3), cases of several daily-wage/ad hoc/casual
employees were still pending before courts. Consequently, several
departments and instrumentalities did not commence the one-time
regularisation process. On the other hand, some government departments
or instrumentalities undertook the onetime exercise excluding several
employees from consideration either on the ground that their cases were
pending in courts or due to sheer oversight. In such circumstances, the
employees who were entitled to be considered in terms of para 53 of the
decision in Umadevi (3), will not lose their right to be considered for
regularisation, merely because the one-time exercise was completed
without considering their cases, or because the sixmonth period
mentioned in para 53 of Umadevi (3) has expired. The one-time exercise
should consider all daily-wage/ad hoc/casual employees who had put in 10
years of continuous service as on 10-4-2006 without availing the
protection of any interim orders of courts or tribunals. If any employer
had held the one-time exercise in terms of para 53 of Umadevi (3), but
did not consider the cases of some employees who were entitled to the
benefit of para 53 of Umadevi (3), the employer concerned should
consider their cases also, as a continuation of the one-time exercise.
The one-time exercise will be concluded only when all the employees who
are entitled to be considered in terms of para 53 of Umadevi (3), are so
considered.
11. The object behind the said direction in para 53
of Umadevi (3) is twofold. First is to ensure that those who have put in
more than ten years of continuous service without the protection of any
interim orders of courts or tribunals, before the date of decision in
Umadevi (3) was rendered, are considered for regularisation in view of
their long service. Second is to ensure that the
departments / instrumentalities do not perpetuate the practice of
employing persons on daily-wage/ad hoc/casual basis for long periods and
then periodically regularise them on the ground that they have served
for more than ten years, thereby defeating the constitutional or
statutory provisions relating to recruitment and appointment. The true
effect of the direction is that all persons who have worked for more
than ten years as on 10-4-2006 [the date of decision in Umadevi (3)]
without the protection of any interim order of any court or tribunal, in
vacant posts, possessing the requisite qualification, are entitled to
be considered for regularisation. The fact that the employer has not
undertaken such exercise of regularisation within six months of the
decision
in Umadevi (3) or that such exercise was undertaken only
in regard to a limited few, will not disentitle such employees, the
right to be considered for regularisation in terms of the above
directions in Umadevi (3) as a one-time measure.
8. The purpose
and intent of the decision in Umadevi (3) was therefore two-fold,
namely, to prevent irregular or illegal appointments in the future and
secondly, to confer a benefit on those who had been irregularly
appointed in the past. The fact that the State of Jharkhand continued
with the irregular appointments for almost a decade after the decision
in Umadevi (3) is a clear indication that it believes that it was all
right to continue with irregular appointments, and whenever required,
terminate the services of the irregularly appointed employees on the ground
that they were irregularly appointed. This is nothing but a form of
exploitation of the employees by not giving them the benefits of
regularisation and by placing the sword of Damocles over their head.
This is precisely what Umadevi (3) and Kesari sought to avoid.
9.
If a strict and literal interpretation, forgetting the spirit of the
decision of the Constitution Bench in Umadevi (3), is to be taken into
consideration then no irregularly appointed employee of the State of
Jharkhand could ever be regularised since that State came into existence
only on 15th November, 2000 and the cut-off date was fixed as 10th
April,2006. In other words, in this manner the pernicious practice of
indefinitely continuing irregularly appointed employees would be
perpetuated contrary to the intent of the Constitution Bench.
10.
The High Court as well as the State of Jharkhand ought to have
considered the entire issue in a contextual perspective and not only
from the point of view of the interest of the State, financial or
otherwise - the interest of the employees is also required to be kept in
mind. What has eventually been achieved by the State of Jharkhand is to
short circuit the process of regular appointments and instead make
appointments on an irregular basis. This is hardly good governance.
11.
Under the circumstances, we are of the view that the Regularisation
Rules must be given a pragmatic interpretation and the appellants, if
they have completed 10 years of service on the date of promulgation of
the Regularisation Rules, ought to be given the benefit of the service
rendered by them. If they have completed 10 years of service they should
be regularised unless there is some valid objection to their
regularisation like misconduct etc.
12. The impugned judgment
and order passed by the High Court is set aside in view of our
conclusions. The State should take a decision within four months from
today on regularisation of the status of the appellants.
13. The appeals are accordingly disposed of.
14.
We may add that that it would be worthwhile for the State of Jharkhand
to henceforth consider making regular appointments only and dropping the
idea of making irregular appointments so as to short circuit the
process of regular appointments.
………………………J.
(Madan B. Lokur)
.……………………..J.
(Deepak Gupta)
New Delhi: August 01, 2018
