Casual Labour Regularisation – Supreme Court Judgement
Applicable to those Appointed after 1993 & 2006 who completed 10
years service
Narendra Kumar Tiwari vs The State Of Jharkhand
on 1 August 2018
Author: M B Lokur
REPORTABLEon 1 August 2018
Author: M B Lokur
IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL 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.
………..RespondentsThe State of Jharkhand & Ors. Etc.
JUDGMENT
J U D G M E N TMadan 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).
(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.
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.
, 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 morethan 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.”
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 morethan 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 alright 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)
New Delhi; .……………………..J.
August 01, 2018 (Deepak Gupta)
New Delhi;August 01, 2018 (Deepak Gupta)
August 01, 2018
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