regularisation of daily wage or contract workers on different posts = 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.

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

J U D G M E N T

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

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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.

1(2006) 4 SCC 1

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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:

2 (2010) 9 SCC 247

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“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

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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

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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

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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)

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