Karnataka High Court
Smt Sunanda M. D/O. Mariyappa vs The State Of Karnataka on 4 July, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 102486 OF 2025 (S-REG)
BETWEEN:
SMT. SUNANDA M. D/O. MARIYAPPA,
AGED 44 YEARS, OCC: STAFF NURSE/NURSING OFFICER,
KARNATAKA INSTITUTE OF MEDICAL SCIENCES,
VIDYANAGAR, HUBLI-590001.
...PETITIONER
(BY SRI. RAMACHANDRA A. MALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
(MEDICAL EDUCATION), M.S. BUILDING,
BANGALORE-01.
2. KARNATAKA INSTITUTE OF MEDICAL SCIENCES,
VIDYANAGAR, HUBLI,
DIST: DHARWAD-590001.
VIJAYALAKSHMI
M KANKUPPI
REPRESENTED BY ITS DIRECTOR.
Digitally signed by
VIJAYALAKSHMI M
...RESPONDENTS
KANKUPPI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.07.16 14:35:14
+0530
(BY SRI. P.N. HATTI, HCGP FOR R1;
SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO
i. ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR
ORDER QUASHING THE IMPUGNED ENDORSEMENT IN
NO.KIMS:ASPATRE:CV(2):05/2019-20 DATED 23.07.2019
ND
ISSUED BY THE 2 RESPONDENT HEREIN PRODUCED AT
ANNEXURE-H AS THE SAME BEING TOTALLY ARBITRARY,
ILLEGAL AND NOT SUSTAINABLE IN LAW IN THE INTEREST OF
JUSTICE AND EQUITY.
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ii. ISSUE A WRIT OF MANDAMUS OR ANY OTHER ORDER OR A
DIRECTION IN THE LIKE NATURE DIRECTING THE
RESPONDENTS HEREIN TO REGULARIZE/ABSORB THE
SERVICES OF THE PETITIONER HEREIN IN THE POST OF
STAFF NURSES/NURSING OFFICERS IN THE 2ND RESPONDENT
INSTITUTE FROM THE DATE OF HER INITIAL APPOINTMENT
WITH ALL CONSEQUENTIAL SERVICE AS WELL AS MONETARY
BENEFITS AS ADMISSIBLE TO HER UNDER THE LAW AS PER
THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF
SHRIPAL VS NAGAR NIGAM, GHAZIABAD REPORTED IN 2025
SSC ONLINE SC 221 IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR)
The petitioner is before this Court seeking the following
prayer:
i. Issue a writ of certiorari or any other writ or
order quashing the impugned endorsement in
No.kims:aspatre:cv(2): 05/2019-20 dated
23.07.2019 issued by the 2nd respondent herein
produced at Annexure-H as the same being
totally arbitrary, illegal and not sustainable in
law in the interest of justice and equity.
ii. Issue a writ of mandamus or any other order or
a direction in the like nature directing the
respondents herein to regularize/absorb the
services of the petitioner herein in the post of
staff nurses/nursing officers in the 2nd
respondent institute from the date of her initial
appointment with all consequential service as
well as monetary benefits as admissible to her
under the law as per the decision of Hon’ble
Supreme Court in the case of Shripal vs. Nagar
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Nigam, Ghaziabad reported in 2025 SSC OnLine
SC 221 in the interest of justice and equity and
etc.
2. Heard the learned counsel Sri. Ramachandra A. Mali
appearing for the petitioner, learned HCGP Sri P.N.Hatti
appearing for respondent No.1 and the learned counsel
Sri.Aravind D. Kulkarni appearing for respondent No.2.
3. The petitioner was engaged as Staff Nurses on ad-
hoc basis in the 2nd respondent- Karnataka Institute of Medical
Sciences (‘the KIMS’, for short). After rendering continuous
service, the petitioner and others approached this Court in Writ
Petition Nos.108405-108430 of 2018. This Court disposes the
writ petitions, directing the respondents to consider the
representations given by the Association in terms of the
judgment of Apex Court then in the case of State of
Jharkhand and others Vs. Kamal Prasad and others
reported in (2014) 7 SCC 223. The endorsement is issued to
all the persons who are members of the Association that
regularization could not be done, as a matter of course.
Therefore, the petitioner has individually presented the subject
petition.
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4. The learned counsel Sri.Ramchandra Mali appearing for
the petitioner submits that the petitioner has been in
continuous employment for more than 20 years and is entitled
to be considered for regularization. The earlier writ petition
comes to be disposed, directing consideration and endorsement
to that effect is issued, which is erroneous. The learned counsel
submits that the case of the petitioner should merit re-
consideration at the hands of the respondents owing to the law
prevailing today.
5. The learned counsel further submits that all the
proceedings and formalities of a regular recruitment were
followed at the time when the petitioner was appointed on ad-
hoc basis or contract basis as Staff Nurse as the case would be.
The submission is also placed on record.
6. Since the case of the petitioner has not met
appropriate consideration at the hands of the respondents,
despite the objection of the respondents, I deem it appropriate
to direct the respondents to re-consider the case of these
petitioners bearing in mind the law laid down by the Apex Court
in the case of Shripal vs. Nagar Nigam, 2025 SSC OnLine
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SC 221, and all other judgments, all of which are considered
by this Court in Writ Petition No.100556/2024 disposed on
20.02.2025. It reads as follows:
“11. The petitioners fulfill quad conditions that were
enunciated, in the judgment of the Apex Court, in the case
of UMADEVI (3) supra. The Apex Court in the case of
UMADEVI (3) has held as follows:
” …. …. ….
51. The argument that the right to life protected by
Article 21 of the Constitution would include the right to
employment cannot also be accepted at this juncture. The
law is dynamic and our Constitution is a living document.
May be at some future point of time, the right to
employment can also be brought in under the concept of
right to life or even included as a fundamental right. The
new statute is perhaps a beginning. As things now stand,
the acceptance of such a plea at the instance of the
employees before us would lead to the consequence of
depriving a large number of other aspirants of an
opportunity to compete for the post or employment. Their
right to employment, if it is a part of right to life, would
stand denuded by the preferring of those who have got in
casually or those who have come through the backdoor.
The obligation cast on the State under Article 39(a) of the
Constitution is to ensure that all citizens equally have the
right to adequate means of livelihood. It will be more
consistent with that policy if the courts recognise that an
appointment to a post in government service or in the
service of its instrumentalities, can only be by way of a
proper selection in the manner recognised by the relevant
legislation in the context of the relevant provisions of the
Constitution. In the name of individualising justice, it is
also not possible to shut our eyes to the constitutional
scheme and the right of the numerous as against the few
who are before the court. The directive principles of State
policy have also to be reconciled with the rights available
to the citizen under Part III of the Constitution and the
obligation of the State to one and all and not to a
particular group of citizens. We, therefore, overrule the
argument based on Article 21 of the Constitution.
…. …. ….
53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
[(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
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Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799]
and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC
(L&S) 4 : (1979) 3 SCR 937] and referred to in para
15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and
the employees have continued to work for ten years
or more but without the intervention of orders of the
courts or of tribunals. The question of regularisation
of the services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases abovereferred to
and in the light of this judgment. In that context, the
Union of India, the State Governments and their
instrumentalities should take steps to regularise as a
one-time measure, the services of such irregularly
appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders
of the 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 where temporary employees or
daily wagers are being now employed. The process
must be set in motion within six months from this date.
We also clarify that regularisation, if any already made,
but not sub judice, need not be reopened based on this
judgment, but there should be no further by passing of the
constitutional requirement and regularising or making
permanent, those not duly appointed as per the
constitutional scheme.”
(Emphasis supplied)
Pursuant to the judgment of the Apex Court, a
government order comes about on 13-11-2006 which
directed consideration of those cases for regularization in
the event they would fulfill the four conditions. Those four
conditions are quoted supra. The petitioners fulfill all
the four conditions. The first condition is that they
should be appointed against a sanctioned vacant
post; they are. The second is that they should fulfill
the qualifications for the posts; they do. The third
condition is that they should have completed 10
years of service as on the date of judgment of the
Apex Court in the case of UMADEVI (3) supra which
was rendered on 10.04.2006. Both the petitioners
had completed 10 years of service by 10.04.2006
itself. In fact, the 1st petitioner had completed close
to 20 years of service by then and the 2nd petitioner,
13 years by 01.04.2006 itself. Therefore, they fulfill
that condition as well. The 4th condition is that, their
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continuance should not be litigious which would mean that
they should not be continued on the strength of any
interim order. The petitioners fulfill every condition. It is
un-understandable as to how the State would bring these
petitioners under the Act, rendering a temporary solace,
when they had a right to be regularized, in terms of the
judgment of the Apex Court, in the case of UMADEVI (3)
supra.
12. The State projects that the judgment of the Apex
Court in the case of UMADEVI (3) supra, in all such cases
and relies on the same judgment to become an
impediment for consideration of the cases of the
petitioners for regularization. The projection on the face of
it being untenable, is noted only to be rejected.
13. It thus becomes, germane to consider the
judgments rendered by the Apex Court in the aftermath of
the judgment rendered by the Apex Court in the case of
UMADEVI (3) supra. The judgment of the Apex Court in
the case of UMADEVI (3) supra is quoted hereinabove. The
directions are also found in the paragraphs that are
quoted. Much water has flown after the judgment of the
Apex Court in the case of UMADEVI (3).
14. As observed hereinabove, the Apex Court rendered
its judgment in the case of UMADEVI (3) on 10-04-2006.
Relevant paragraphs are already quoted hereinabove.
Subsequent to the judgment of the Apex Court in the case
of UMADEVI (3), considering the case of UMADEVI (3), the
Apex Court in several judgments held and affirmed the
right of several employees for regularization under several
circumstances. The Apex Court in the case of NARENDRA
KUMAR TIWARI v. STATE OF JHARKHAND11, holds as
follows:
“7. The purpose and intent of the decision in
Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] was therefore
twofold, 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) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] 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
1
(2018) 8 SCC 238
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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) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1: 2006 SCC (L&S) 753] and Kesari
[State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 :
(2010) 2 SCC (L&S) 826] sought to avoid.
8. If a strict and literal interpretation, forgetting
the spirit of the decision of the Constitution Bench in
Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753], 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
15-11-2000 and the cut-off date was fixed as 10-4-
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.
9. 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.
10. 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.
11. The impugned judgment and order [Anil
Kumar Sinha v. State of Jharkhand, 2016 SCC OnLine
Jhar 2904] 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. The
appeals are accordingly disposed of.”
(Emphasis supplied)
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15. Later, the Apex Court in the case of SHEO NARAIN
NAGAR v. STATE OF U.P.2, holds as follows:
“6. The learned counsel appearing on behalf of
the respondent has relied upon para 44 of the decision
in Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753], so as to
contend that it was not the case of irregular
appointment but of illegal appointment; there was no
post available on which the services of the appellants
could have been regularised and appointment were in
contravention of the reservation policy also; thus,
termination order was rightly issued and, in no case,
the appellants were entitled for regularisation of their
services.
7. When we consider the prevailing scenario, it is
painful to note that the decision in Umadevi (3) [State
of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] has not been properly understood and
rather wrongly applied by various State Governments.
We have called for the data in the instant case to
ensure as to how many employees were working on
contract basis or ad hoc basis or daily-wage basis in
different State departments. We can take judicial notice
that widely aforesaid practice is being continued.
Though this Court has emphasised that incumbents
should be appointed on regular basis as per rules but
new devise of making appointment on contract basis
has been adopted, employment is offered on daily-wage
basis, etc. in exploitative forms. This situation was not
envisaged by Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753].
The prime intendment of the decision was that the
employment process should be by fair means and not
by back door entry and in the available pay scale. That
spirit of the Umadevi (3) [State of Karnataka v.
Umadevi(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
has been ignored and conveniently overlooked by
various State Governments/authorities. We regretfully
make the observation that Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] has not been implemented in its true spirit
and has not been followed in its pith and substance. It
is being used only as a tool for not regularising the
services of incumbents. They are being continued in
service without payment of due salary for which they
2
(2018) 13 SCC 432
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are entitled on the basis of Articles 14, 16 read with
Article 34(1)(d) of the Constitution of India as if they
have no constitutional protection as envisaged in D.S.
Nakara v. Union of India [D.S. Nakara v. Union of India,
(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : AIR 1983 SC
130], from cradle to grave. In heydays of life they are
serving on exploitative terms with no guarantee of
livelihood to be continued and in old age they are going
to be destituted, there being no provision for pension,
retiral benefits, etc. There is clear contravention of
constitutional provisions and aspiration of downtrodden
class. They do have equal rights and to make them
equals they require protection and cannot be dealt with
arbitrarily. The kind of treatment meted out is not only
bad but equally unconstitutional and is denial of rights.
We have to strike a balance to really implement the
ideology of Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753].
Thus, the time has come to stop the situation where
Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] can be
permitted to be flouted, whereas, this Court has
interdicted such employment way back in the year
2006. The employment cannot be on exploitative terms,
whereas Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] laid down
that there should not be back door entry and every post
should be filled by regular employment, but a new
device has been adopted for making appointment on
payment of paltry system on contract/ad hoc basis or
otherwise. This kind of action is not permissible when
we consider the pith and substance of true spirit in
Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753].
8. Coming to the facts of the instant case, there
was a direction issued way back in the year 1999, to
consider the regularisation of the appellants. However,
regularisation was not done. The respondents chose to
give minimum of the pay scale, which was available to
the regular employees, way back in the year 2000 and
by passing an order, the appellants were also conferred
temporary status in the year 2006, with retrospective
effect on 2-10-2002. As the respondents have
themselves chosen to confer a temporary status to the
employees, as such there was requirement at work and
posts were also available at the particular point of time
when order was passed. Thus, the submission raised by
the learned counsel for the respondent that posts were
not available, is belied by their own action. Obviously,
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the order was passed considering the long period of
services rendered by the appellants, which were taken
on exploitative terms.
9. The High Court dismissed the writ application
relying on the decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC
(L&S) 753]. But the appellants were employed basically
in the year 1993; they had rendered service for three
years, when they were offered the service on contract
basis; it was not the case of back door entry; and there
were no Rules in place for offering such kind of
appointment. Thus, the appointment could not be said
to be illegal and in contravention of Rules, as there
were no such Rules available at the relevant point of
time, when their temporary status was conferred w.e.f.
2-10- 2002. The appellants were required to be
appointed on regular basis as a one-time measure, as
laid down in para 53 of Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753]. Since the appellants had completed 10
years of service and temporary status had been given
by the respondents with retrospective effect from 2-10-
2002, we direct that the services of the appellants be
regularised from the said date i.e. 2.10.2002,
consequential benefits and the arrears of pay also to be
paid to the appellants within a period of three months
from today.”
(Emphasis supplied)
16. The Apex Court in the case of CHANDER MOHAN
NEGI v. STATE OF H.P.3 , holds as follows:
“11. At the outset, it is to be noted that the
schemes in question were notified in the years 2001
and 2003 under which appointments were made with
regard to Primary Assistant Teachers and Teachers in
other categories. At the relevant point of time, nobody
has questioned either the schemes or the
appointments. It is the specific case of the respondent
State that such appointments have not affected the writ
petitioners and the Department was not in a position to
leave the schools, Teachers deficient for long since it
would have affected the studies of the students very
badly. Therefore, it was the case of the State that
Teachers had been appointed under various schemes at
that point of time and such appointments have been3
(2020) 5 SCC 732
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made up to the year 2007 and have no impact on the
appellants since they have completed their two-year
JBT training in the year 2011. As is evident from the
order [Pankaj Kumar v. State of H.P., 2014 SCC OnLine
HP 5944] under appeal passed by the Division Bench of
the High Court, the appellant-writ petitioners have not
even chosen to file rejoinder and the stand taken by the
State thus has remained uncontroverted. Further, it is
also to be noted that when such appointments were
made during the years 2001 and 2003 the writ petitions
came to be filed in the years 2012 and 2013. As the
writ petitioners have claimed interest for their
appointment, the Division Bench of the High Court has
rightly held [Pankaj Kumar v. State of H.P., 2014 SCC
OnLine HP 5944] that such petitions cannot be
considered as the public interest litigation. Such a writ
petition which was filed by the petitioners who came to
be qualified only in the year 2011 are not entitled for
any relief on the ground of unexplained laches and
inordinate delay of about more than 10 years in
approaching the court for questioning the
appointments. Though relief was sought against the
State to deny the benefit of regularisation to the
appointed Teachers, they were not even impleaded as
party respondents. An association was impleaded as
third respondent but without furnishing any material to
show that at least majority of appointees are members
of such association. So far as Primary Assistant
Teachers Scheme of 2003, which was the subject-
matter of letters patent appeal arising out of CWP No.
3303 of 2012-A filed by Chander Mohan Negi and
others, is concerned, the appellants in Civil Appeal No.
2813 of 2017 except Appellants 1, 2 and 4 have
withdrawn [Chander Mohan Negi v. State of H.P., 2020
SCC OnLine SC 459] the appeal and Appellants 1 and 4
are already appointed as JBTs. Insofar as the only
appellant viz. Appellant 2, Rajiv Chauhan is concerned,
it is stated that he is qualified and there are vacant
posts and he can be considered if he applies to any of
the existing vacancies. So far as the Primary Assistant
Teacher Scheme is concerned, same was notified as
early as on 27-8-2003. As is evident from the Scheme
itself, the object of the Scheme appears to be to
compulsorily enrol children in schools for elementary
and primary education in the remote areas to achieve
the goals as set by the Government enacting the
Himachal Pradesh Compulsory Primary Education Act,
1997 with a view to achieve the target of 100%
enrolment to children. As per the Scheme, the eligibility
was 10+2 from a recognised Board/University and the
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candidates with higher qualifications were also eligible
and candidates with professional qualifications were to
be preferred. As per the regular Recruitment Rules the
requisite qualification for the post of JBT Teacher during
the relevant time was 10+2 with 50% marks and JBT
certificate. As submitted by the learned Senior Counsel
appearing for the State that initially though 3500 odd
Teachers were appointed, as of now there are only a
total of 3294 Teachers working in this category and out
of this about 1866 had the qualification of 10+2 with
more than 50% marks at the relevant point of
engagement. Out of the balance, 1015 had 10+2 with
less than 50% marks, but they had higher qualification
such as BA/MA/M Sc or B Ed, etc. Further, it is also
brought to our notice that out of all the candidates,
3294 candidates who are presently working have
acquired the professional qualification of diploma in
elementary education or have undergone Professional
Development Programme for Elementary Teachers. In
that view of the matter, we are of the view that when
the appointees appointed under the scheme have
completed more than almost 15 years of service now
and also have acquired the professional qualifications,
they cannot be denied regularisation at this point of
time. As the appointments were made as per the
schemes notified by the Government such
appointments cannot be treated as illegal, if at all they
can be considered irregular. When it is the plea of the
State that in view of the hard topography/tribal areas in
the State, large number of vacancies were there even
in single teacher schools and to achieve the object of
the Himachal Pradesh Primary Education Act, 1997 such
steps were taken, there is no reason to disbelieve the
same, more so, in absence of any affidavit by way of
rejoinder by the writ petitioners before the High Court
controverting the allegations in the reply filed on behalf
of the State.
12. Even with regard to the Para Teachers Policy
under which various category of Teachers were
appointed in the year 2003 pursuant to policy notified
on 17-9-2003 it is clear from the record placed before
this Court that all the persons who were recruited as
Para Teachers were fully qualified as per the
Recruitment and Promotion Rules i.e. the Himachal
Pradesh Education Department Class III (School and
Inspection Cadre) Service Rules, 1973. In view of the
stand of the State that such policy was necessitated
due to large number of vacant posts which have arisen
year after year and which could not be filled since the
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State Selection Subordinate Board, Hamirpur, which
was responsible for the selection of Teachers had come
under a cloud and the selection process had come to a
halt, such appointments cannot be rendered as illegal.
Such aspect is also evident from the policy itself. Even
in other category of the Grant-in-Aid to Parent Teacher
Association Rules, all Teachers appointed under the
Scheme fulfil the educational qualifications prescribed in
the Rules. For such kind of Teachers, the Cabinet has
taken decision to take over the Teachers on contract
basis after completion of eight years of service which
period was later reduced to seven years. It is also
brought to our notice during the course of arguments
that out of the total 6799 Teachers, 5017 Teachers
were already taken over on contract basis by the State
Government and only 1782 could not be taken over in
view of the interim orders passed by this Court.
13. It is true that in the initial schemes notified by
the Government, there was a condition that such
appointees should not seek regularisation/ absorption
but at the same time for no fault of them, they cannot
be denied regularisation/absorption. It is in view of the
requirement of the State, their services were extended
from time to time and now all the appointees have
completed more than 15 years of service. For majority
of the appointed Teachers under the various schemes,
benefit was already extended and some left over
candidates were denied on account of interim orders
passed by this Court. With regard to Primary Assistant
Teachers, it is stated that all the candidates have
completed Special Teacher Training Qualifying
Condensed Course and also had obtained special JBT
certificate after 5 years’ continuous service in terms of
the Himachal Pradesh Education Code, 1985. The
judgments relied on by learned counsel Shri Prashant
Bhushan also would not render any assistance to the
case of the appellants herein for the reason that there
was unexplained and inordinate delay on the part of the
appellants in approaching the High Court and further
having regard to explanation offered by the State about
the need of framing such policies to meet the
immediate requirement to fill up single teacher schools
which were vacant for a very long time having regard to
topographical conditions, which is not even
controverted by way of any rejoinder before the High
Court. In such view of the matter, taking the totality of
peculiar circumstances of these cases, we are of the
view that the view expressed by this Court in the
judgments relied on cannot be applied to the facts of
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the case on hand. All the appointed candidates are
working for the meagre salaries pursuant to schemes
notified by the Government. Except the vague
submission that such schemes were framed only to
make backdoor entries, there is no material placed on
record to buttress such submission. Further it is also to
be noted that though such schemes were notified as
early as in 2003, nobody has questioned such policies
and appointments up to 2012 and 2013. The writ
petition i.e. CWP No. 3303 of 2012-A was filed in the
year 2012 without even impleading the appointees as
party respondents. In the writ petition, there was no
rejoinder filed by the writ petitioners disputing the
averments of the State as stated in the reply-affidavit.
Having regard to the nature of such appointments,
appointments made as per policies cannot be termed as
illegal. Having regard to material placed before this
Court and having regard to reasons recorded in the
impugned order [Pankaj Kumar v. State of H.P., 2014
SCC OnLine HP 5944] by the High Court, we are of the
view that no case is made out to interfere with the
impugned judgment [Pankaj Kumar v. State of H.P.,
2014 SCC OnLine HP 5944] of the High Court.”
(Emphasis supplied)
17. Earlier to the judgment rendered by the Apex Court
in the afore-quoted judgment, the Apex Court in the case of
AMARENDRA KUMAR MOHAPATRA v. STATE OF ORISSA4, had
held as follows:
“42. The decision in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753], as noticed earlier, permitted regularisation
of regular appointments and not illegal appointments.
Question, however, is whether the appointments in the
instant case could be described as illegal and if they
were not, whether the State could be directed to
regularise the services of the degree-holder Junior
Engineers who have worked as ad hoc Assistant 4
(2014) 4 SCC 583 Engineers for such a long period, not
only on the analogy of the legislative enactment for
regularisation but also on the principle underlying para
53 of the decision in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753].
4
(2014) 4 SCC 583
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43. As to what would constitute an irregular
appointment is no longer res integra. The decision
of this Court in State of Karnataka v. M.L. Kesari
[(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826], has
examined that question and explained the
principle regarding regularisation as enunciated
in Umadevi (3) case [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)
753]. The decision in that case summed up the
following three essentials for regularisation : (1)
the employees have worked for ten years or
more, (2) that they have so worked in a duly
sanctioned post without the benefit or protection
of the interim order of any court or tribunal, and
(3) they should have possessed the minimum
qualification stipulated for the appointment.
Subject to these three requirements being
satisfied, even if the appointment process did not
involve open competitive selection, the
appointment would be treated irregular and not
illegal and thereby qualify for regularisation. Para
7 in this regard is apposite and may be extracted
at this stage: (M.L. Kesari case [(2010) 9 SCC 247
: (2010) 2 SCC (L&S) 826], SCC p. 250)
“7. It is evident from the above that there is an
exception to the general principles against
‘regularisation’ enunciated in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753], if the following conditions are fulfilled:
(i) The employee concerned should have worked
for 10 years or more in a duly sanctioned post without
the benefit or protection of the interim order of any
court or tribunal. In other words, the State Government
or its instrumentality should have employed the
employee and continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should not
be illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or
where the persons appointed do not possess the
prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person
employed possessed the prescribed qualifications and
was working against sanctioned posts, but had been
selected without undergoing the process of open
competitive selection, such appointments are
considered to be irregular.”
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44. It is nobody’s case that the degree-
holder Junior Engineers were not qualified for
appointment as Assistant Engineers as even they
possess degrees from recognised institutions. It
is also nobody’s case that they were not
appointed against the sanctioned post. There was
some debate as to the actual number of vacancies
available from time to time but we have no
hesitation in holding that the appointments made
were at all relevant points of time against
sanctioned posts. The information provided by Mr.
Nageswara Rao, learned Additional Solicitor
General, appearing for the State of Orissa, in fact,
suggests that the number of vacancies was at all
points of time more than the number of
appointments made on ad hoc basis. It is also
clear that each one of the degree-holders has
worked for more than 10 years ever since his
appointment as ad hoc Assistant Engineer. It is in
that view difficult to describe these appointments
of the Stipendiary Engineers on ad hoc basis to be
illegal so as to fall beyond the purview of the
scheme envisaged in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753].
45. The upshot of the above discussion is that not
only because in Umadevi (3) case [State of Karnataka
v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
this Court did not disturb the appointments already
made or regularisation granted, but also because the
decision itself permitted regularisation in case of
irregular appointments, the legislative enactment
granting such regularisation does not call for
interference at this late stage when those appointed or
regularised have already started retiring having served
their respective departments, in some cases for as long
as 22 years.”
(Emphasis supplied)
18. A three Judges bench of the Apex Court considering
the case of UMADEVI (3) supra and subsequent judgments, in
the case of PREM SINGH v. STATE OF U.P.5, holds as follows:
“36. There are some of the employees who have
not been regularised in spite of having rendered the5
(2019) 10 SCC 516
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services for 30-40 or more years whereas they have
been superannuated. As they have worked in the
work charged establishment, not against any
particular project, their services ought to have been
regularised under the Government instructions and
even as per the decision of this Court in State of
Karnataka v. Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753].
This Court in the said decision has laid down that
in case services have been rendered for more
than ten years without the cover of the Court’s
order, as one-time measure, the services be
regularised of such employees. In the facts of the
case, those employees who have worked for ten
years or more should have been regularised. It
would not be proper to regulate them for
consideration of regularisation as others have
been regularised, we direct that their services be
treated as a regular one. However, it is made
clear that they shall not be entitled to claiming
any dues of difference in wages had they been
continued in service regularly before attaining the
age of superannuation. They shall be entitled to
receive the pension as if they have retired from
the regular establishment and the services
rendered by them right from the day they entered
the work-charged establishment shall be counted
as qualifying service for purpose of pension.
37. In view of reading down Rule 3(8) of the U.P.
Retirement Benefits Rules, 1961, we hold that services
rendered in the work-charged establishment shall be
treated as qualifying service under the aforesaid rule for
grant of pension. The arrears of pension shall be
confined to three years only before the date of the
order. Let the admissible benefits be paid accordingly
within three months. Resultantly, the appeals filed by
the employees are allowed and filed by the State are
dismissed.”
(Emphasis supplied)
19. The Apex Court later, in the case of JAGGO v.
UNION OF INDIA6 has held as follows:
“7. They urged the High Court to recognize
their long and continuous service, the nature of6
2024 SCC OnLine SC 3826
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their work, and the lack of any backdoor or illegal
entry. They highlighted that they had functioned
without any break, performed tasks equivalent to
regular employees, and had been assigned duties
essential to the regular upkeep, cleanliness, and
maintenance of the respondent’s offices. The High
Court, after examining the Tribunal’s decision and
the submissions advanced, concluded that the
petitioners before it were part-time workers who
had not been appointed against sanctioned posts,
nor had they performed a sufficient duration of
full-time service to satisfy the criteria for
regularization. It relied on the principle laid down in
Secretary, State of Karnataka v. Uma Devi3 holding
that the petitioners could not claim a vested right to be
absorbed or regularized without fulfilling the requisite
conditions. The High Court further observed that the
petitioners did not possess the minimum educational
qualifications ordinarily required for regular
appointments, and additionally noted that the employer
had subsequently outsourced the relevant
housekeeping and maintenance activities. Concluding
that there was no legal basis to grant the reliefs sought,
the High Court dismissed the writ petition. Aggrieved by
this rejection, the appellants have approached this
Court by way of these appeals.
8. On behalf of the appellants, the following
arguments have been advanced before us:
(i). Continuous and Substantive
Engagement: The appellants emphasize their long,
uninterrupted service spanning well over a decade–and
in some instances, exceeding two decades. They argue
that their duties were neither sporadic nor project-
based but permanent and integral to the daily
functioning of the respondent’s offices.
(ii). Nature of Duties: Their responsibilities–
such as cleaning, dusting, gardening, and other
maintenance tasks–were not casual or peripheral.
Instead, they were central to ensuring a clean, orderly,
and functional work environment, effectively aligning
with roles typically associated with regular posts.
(iii). Absence of Performance Issues:
Throughout their tenure, the appellants were never
issued any warning or adverse remarks. They highlight
that their work was consistently satisfactory, and there
was no indication from the respondents that their
performance was not satisfactory or required
improvement.
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(iv). Compliance with ‘Uma Devi’ Guidelines:
The appellants assert that their appointments were not
“illegal” but at most “irregular.” Drawing on the
principles laid down in Secretary, State of Karnataka v.
Uma Devi4 , they submit that long serving employees
in irregular appointments–who fulfil essential,
sanctioned functions–are entitled to consideration for
regularization.
(v). Discrimination in Regularization: The
appellants point out that individuals with fewer years of
service or similar engagements have been regularized.
They contend that denying them the same benefit,
despite their longer service and crucial role, constitutes
arbitrary and discriminatory treatment.
(vi). Irrelevance of Educational
Qualifications: The appellants reject the respondents’
reliance on formal educational requirements, noting
that such criteria were never enforced earlier and that
the nature of their work does not inherently demand
formal schooling. They argue that retrospectively
imposing such qualifications is unjustified given their
proven capability over many years.
(vii). Equity and Fairness: Ultimately, the
appellants submit that the High Court erred by focusing
too rigidly on their initial terms of engagement and
ignoring the substantive reality of their long, integral
service. They maintain that fairness, equity, and
established judicial principles call for their regularization
rather than abrupt termination.
9. On the other hand, the following primary
arguments have been advanced before us on behalf of
the Respondents:
(i). Nature of Engagement: The respondents
maintain that the appellants were engaged purely on a
part-time, contractual basis, limited to a few hours a
day, and that their work was never intended to be
permanent or full-time.
(ii). Absence of Sanctioned Posts: They assert
that the appellants were not appointed against any
sanctioned posts. According to the respondents, without
sanctioned vacancies, there can be no question of
regularization or absorption into the permanent
workforce.
(iii). Non-Compliance with ‘Uma Devi’
Criteria: Relying heavily on Secretary, State of
Karnataka v. Uma Devi (supra), the respondents argue
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that the appellants do not meet the conditions
necessary for regularization. They emphasize that
merely serving a long period on a part-time or ad-hoc
basis does not create a right to be regularized.
(iv). Educational Qualifications: The
respondents contend that even if the appellants were to
be considered for regular appointments, they do not
possess the minimum educational qualifications
mandated for regular recruitment. This, in their view,
disqualifies the appellants from being absorbed into
regular service.
(v). Outsourcing as a Legitimate Policy
Decision: The respondents point out that they have
chosen to outsource the relevant housekeeping and
maintenance work to a private agency. This, they
argue, is a legitimate administrative policy decision
aimed at improving efficiency and cannot be interfered
with by the courts.
(vi). No Fundamental Right to
Regularization: Finally, the respondents underscore
that no employee, merely by virtue of long-standing
temporary or part-time engagement, acquires a vested
right to be regularized. They maintain that the
appellants’ claims are devoid of any legal entitlement
and that the High Court was correct in dismissing their
petition.
10. Having given careful consideration to the
submissions advanced and the material on record,
we find that the appellants’ long and
uninterrupted service, for periods extending well
beyond ten years, cannot be brushed aside merely
by labelling their initial appointments as part-
time or contractual. The essence of their
employment must be considered in the light of
their sustained contribution, the integral nature
of their work, and the fact that no evidence
suggests their entry was through any illegal or
surreptitious route.
11. The appellants, throughout their tenure, were
engaged in performing essential duties that were
indispensable to the day-to-day functioning of the
offices of the Central Water Commission (CWC).
Applicant Nos. 1, 2, and 3, as Safaiwalis, were
responsible for maintaining hygiene, cleanliness, and a
conducive working environment within the office
premises. Their duties involved sweeping, dusting, and
cleaning of floors, workstations, and common areas–a
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set of responsibilities that directly contributed to the
basic operational functionality of the CWC. Applicant
No. 5, in the role of a Khallasi (with additional functions
akin to those of a Mali), was entrusted with critical
maintenance tasks, including gardening, upkeep of
outdoor premises, and ensuring orderly surroundings.
12. Despite being labelled as “part-time
workers,” the appellants performed these
essential tasks on a daily and continuous basis
over extensive periods, ranging from over a
decade to nearly two decades. Their engagement
was not sporadic or temporary in nature; instead,
it was recurrent, regular, and akin to the
responsibilities typically associated with
sanctioned posts. Moreover, the respondents did
not engage any other personnel for these tasks
during the appellants’ tenure, underscoring the
indispensable nature of their work.
13. The claim by the respondents that these
were not regular posts lacks merit, as the nature
of the work performed by the appellants was
perennial and fundamental to the functioning of
the offices. The recurring nature of these duties
necessitates their classification as regular posts,
irrespective of how their initial engagements
were labelled. It is also noteworthy that
subsequent outsourcing of these same tasks to
private agencies after the appellants’ termination
demonstrates the inherent need for these
services. This act of outsourcing, which effectively
replaced one set of workers with another, further
underscores that the work in question was
neither temporary nor occasional.
14. xxx
15. xxx
16. The appellants’ consistent performance
over their long tenures further solidifies their
claim for regularization. At no point during their
engagement did the respondents raise any issues
regarding their competence or performance. On
the contrary, their services were extended
repeatedly over the years, and their
remuneration, though minimal, was incrementally
increased which was an implicit acknowledgment
of their satisfactory performance. The
respondents’ belated plea of alleged
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unsatisfactory service appears to be an
afterthought and lacks credibility.
17. As for the argument relating to educational
qualifications, we find it untenable in the present
context. The nature of duties the appellants
performed– cleaning, sweeping, dusting, and
gardening–does not inherently mandate formal
educational prerequisites. It would be unjust to rely on
educational criteria that were never central to their
engagement or the performance of their duties for
decades. Moreover, the respondents themselves have,
by their conduct, shown that such criteria were not
strictly enforced in other cases of regularization. The
appellants’ long-standing satisfactory performance itself
attests to their capability to discharge these functions,
making rigid insistence on formal educational
requirements an unreasonable hurdle.
18. xxx
19. It is evident from the foregoing that the
appellants’ roles were not only essential but also
indistinguishable from those of regular employees.
Their sustained contributions over extended periods,
coupled with absence of any adverse record, warrant
equitable treatment and regularization of their services.
Denial of this benefit, followed by their arbitrary
termination, amounts to manifest injustice and must be
rectified.
20. It is well established that the decision in Uma
Devi (supra) does not intend to penalize employees
who have rendered long years of service fulfilling
ongoing and necessary functions of the State or its
instrumentalities. The said judgment sought to prevent
backdoor entries and illegal appointments that
circumvent constitutional requirements. However,
where appointments were not illegal but possibly
“irregular,” and where employees had served
continuously against the backdrop of sanctioned
functions for a considerable period, the need for a fair
and humane resolution becomes paramount. Prolonged,
continuous, and unblemished service performing tasks
inherently required on a regular basis can, over the
time, transform what was initially ad-hoc or temporary
into a scenario demanding fair regularization. In a
recent judgment of this Court in Vinod Kumar v. Union
of India5 , it was held that held that procedural
formalities cannot be used to deny regularization of
service to an employee whose appointment was termed
“temporary” but has performed the same duties as
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performed by the regular employee over a considerable
period in the capacity of the regular employee. The
relevant paras of this judgment have been reproduced
below:
“6. The application of the judgment in Uma
Devi (supra) by the High Court does not fit squarely
with the facts at hand, given the specific
circumstances under which the appellants were
employed and have continued their service. The
reliance on procedural formalities at the outset
cannot be used to perpetually deny substantive
rights that have accrued over a considerable period
through continuous service. Their promotion was
based on a specific notification for vacancies and a
subsequent circular, followed by a selection process
involving written tests and interviews, which
distinguishes their case from the appointments
through back door entry as discussed in the case of
Uma Devi (supra).
7. The judgment in the case Uma Devi (supra)
also distinguished between “irregular” and “illegal”
appointments underscoring the importance of
considering certain appointments even if were not
made strictly in accordance with the prescribed
Rules and Procedure, cannot be said to have been
made illegally if they had followed the procedures of
regular appointments such as conduct of written
examinations or interviews as in the present case…”
21. The High Court placed undue emphasis
on the initial label of the appellants’ engagements
and the outsourcing decision taken after their
dismissal. Courts must look beyond the surface
labels and consider the realities of employment :
continuous, long-term service, indispensable
duties, and absence of any mala fide or illegalities
in their appointments. In that light, refusing
regularization simply because their original terms
did not explicitly state so, or because an
outsourcing policy was belatedly introduced,
would be contrary to principles of fairness and
equity.
22. The pervasive misuse of temporary
employment contracts, as exemplified in this case,
reflects a broader systemic issue that adversely affects
workers’ rights and job security. In the private sector,
the rise of the gig economy has led to an increase in
precarious employment arrangements, often
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characterized by lack of benefits, job security, and fair
treatment. Such practices have been criticized for
exploiting workers and undermining labour standards.
Government institutions, entrusted with upholding the
principles of fairness and justice, bear an even greater
responsibility to avoid such exploitative employment
practices. When public sector entities engage in misuse
of temporary contracts, it not only mirrors the
detrimental trends observed in the gig economy but
also sets a concerning precedent that can erode public
trust in governmental operations.
23. The International Labour Organization (ILO),
of which India is a founding member, has consistently
advocated for employment stability and the fair
treatment of workers. The ILO’s Multinational
Enterprises Declaration6 encourages companies to
provide stable employment and to observe obligations
concerning employment stability and social security. It
emphasizes that enterprises should assume a leading
role in promoting employment security, particularly in
contexts where job discontinuation could exacerbate
long-term unemployment.
24. The landmark judgment of the United State in
the case of Vizcaino v. Microsoft Corporation7 serves as
a pertinent example from the private sector, illustrating
the consequences of misclassifying employees to
circumvent providing benefits. In this case, Microsoft
classified certain workers as independent contractors,
thereby denying them employee benefits. The U.S.
Court of Appeals for the Ninth Circuit determined that
these workers were, in fact, common-law employees
and were entitled to the same benefits as regular
employees. The Court noted that large Corporations
have increasingly adopted the practice of hiring
temporary employees or independent contractors as a
means of avoiding payment of employee benefits,
thereby increasing their profits. This judgment
underscores the principle that the nature of the work
performed, rather than the label assigned to the
worker, should determine employment status and the
corresponding rights and benefits. It highlights the
judiciary’s role in rectifying such misclassifications and
ensuring that workers receive fair treatment.
25. It is a disconcerting reality that temporary
employees, particularly in government institutions,
often face multifaceted forms of exploitation. While the
foundational purpose of temporary contracts may have
been to address short-term or seasonal needs, they
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have increasingly become a mechanism to evade long-
term obligations owed to employees. These practices
manifest in several ways:
• Misuse of “Temporary” Labels: Employees
engaged for work that is essential, recurring, and
integral to the functioning of an institution are
often labeled as “temporary” or “contractual,”
even when their roles mirror those of regular
employees. Such misclassification deprives
workers of the dignity, security, and benefits that
regular employees are entitled to, despite
performing identical tasks.
• Arbitrary Termination: Temporary employees
are frequently dismissed without cause or notice, as
seen in the present case. This practice undermines the
principles of natural justice and subjects workers to a
state of constant insecurity, regardless of the quality or
duration of their service.
• Lack of Career Progression: Temporary
employees often find themselves excluded from
opportunities for skill development, promotions, or
incremental pay raises. They remain stagnant in their
roles, creating a systemic disparity between them and
their regular counterparts, despite their contributions
being equally significant.
• Using Outsourcing as a Shield: Institutions
increasingly resort to outsourcing roles performed
by temporary employees, effectively replacing
one set of exploited workers with another. This
practice not only perpetuates exploitation but
also demonstrates a deliberate effort to bypass
the obligation to offer regular employment.
• Denial of Basic Rights and Benefits:
Temporary employees are often denied fundamental
benefits such as pension, provident fund, health
insurance, and paid leave, even when their tenure
spans decades. This lack of social security subjects
them and their families to undue hardship, especially in
cases of illness, retirement, or unforeseen
circumstances.
26. While the judgment in Uma Devi (supra)
sought to curtail the practice of backdoor entries
and ensure appointments adhered to
constitutional principles, it is regrettable that its
principles are often misinterpreted or misapplied
to deny legitimate claims of long-serving
employees. This judgment aimed to distinguish
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between “illegal” and “irregular” appointments. It
categorically held that employees in irregular
appointments, who were engaged in duly
sanctioned posts and had served continuously for
more than ten years, should be considered for
regularization as a one time measure. However,
the laudable intent of the judgment is being
subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees,
even in cases where their appointments are not
illegal, but merely lack adherence to procedural
formalities. Government departments often cite
the judgment in Uma Devi (supra) to argue that
no vested right to regularization exists for
temporary employees, overlooking the judgment’s
explicit acknowledgment of cases where
regularization is appropriate. This selective
application distorts the judgment’s spirit and
purpose, effectively weaponizing it against
employees who have rendered indispensable
services over decades.
27. In light of these considerations, in our
opinion, it is imperative for government departments to
lead by example in providing fair and stable
employment. Engaging workers on a temporary basis
for extended periods, especially when their roles are
integral to the organization’s functioning, not only
contravenes international labour standards but also
exposes the organization to legal challenges and
undermines employee morale. By ensuring fair
employment practices, government institutions can
reduce the burden of unnecessary litigation, promote
job security, and uphold the principles of justice and
fairness that they are meant to embody. This approach
aligns with international standards and sets a positive
precedent for the private sector to follow, thereby
contributing to the overall betterment of labour
practices in the country.”
(Emphasis supplied)
Again, the Apex Court in the case of SHRIPAL v. NAGAR
NIGAM7, has held as follows:
“3. The factual matrix leading up to the appeal
before us is as follows:
7
2025 SCC OnLine SC 221
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3.1. The Appellant Workmen claim to have been
engaged as Gardeners (Malis) in the Horticulture
Department of the Respondent Employer, Ghaziabad
Nagar Nigam, since the year 1998 (in some instances,
since 1999). According to them, they continuously
discharged horticultural and maintenance duties– such
as planting trees, maintaining parks, and beautifying
public spaces–under the direct supervision of the
Respondent Employer. They further allege that no
formal appointment letters were ever issued to them,
and that they were persistently denied minimum
wages, weekly offs, national holidays, and other
statutory benefits.
3.2. In 2004, the Appellant Workmen, along with
many other similarly situated employees, raised an
industrial dispute (C.B. Case No. 6 of 2004) before the
Conciliation Officer at Ghaziabad, seeking regularization
of their services and the requisite statutory benefits.
They contend that, upon learning of this demand, the
Respondent Employer began delaying their salaries and
subjected them to adverse working conditions.
Eventually, around mid-July 2005, the services of
numerous workmen were allegedly terminated orally,
without any notice, written orders, or retrenchment
compensation.
3.3. Since the above termination took place
during the pendency of the conciliation proceedings, the
Appellant Workmen argue it violated Section 6E of the
U.P. Industrial Disputes Act, 1947. Consequently, the
State Government referred the disputes concerning
both (i) regularization and (ii) legality of the alleged 7
2025 SCC OnLine SC 221 termination, to the Labour
Court, Ghaziabad for adjudication.
3.4. The Labour Court proceeded to decide the
references vide two orders:
(i) Order dated 03.06.2011 : In numerous
adjudication cases (e.g., Adjudication Case Nos. 448,
451, 467 of 2006, etc.), the Labour Court passed
awards holding the terminations illegal for want of
compliance with Section 6N of the U.P. Industrial
Disputes Act, 1947, and directed reinstatement with
30% back wages.
(ii) Order dated 11.10.2011 : However, in about
41 other adjudication cases (e.g., Adjudication Case
Nos. 269, 270, 272, etc.), the Labour Court arrived at a
contrary conclusion, dismissing the claims on the
finding that the concerned workmen had not been
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engaged directly by the Nagar Nigam but rather
through a contractor, and hence had no enforceable
right to reinstatement or regularization against the
Respondent Employer.
3.5. Aggrieved by the adverse portion of the
awards (i.e., those granting reinstatement), the
Respondent Employer, Ghaziabad Nagar Nigam, filed
several writ petitions before the High Court of
Judicature at Allahabad, challenging the Labour Court’s
findings. On the other hand, the workmen whose claims
were dismissed by the other set of awards also
approached the High Court by filing their own writ
petitions. All these writ petitions were heard together,
culminating in the common judgment dated
01.03.2019, which partly modified the Labour Court’s
conclusions.
3.6. Through the impugned judgment, the
High Court held that while the Labour Court was
correct in exercising jurisdiction under the U.P.
Industrial Disputes Act (since municipalities could
be treated as “industry”), there remained factual
complexities as to whether the workmen were
genuinely on the rolls of the Nagar Nigam or were
provided by contractors. The High Court also
noted that the State Government had, by
notifications/orders, placed a ban on fresh
recruitments in Municipal Corporations, thereby
restricting direct appointments to any post.
Ultimately, the High Court partially modified the
relief granted, directing re-engagement of the
workmen on daily wages, with pay equivalent to
the minimum in the regular pay scale of
Gardeners, while allowing future consideration of
their regularization if permissible by law.
4. Both the Appellant Workmen and the
Respondent Employer have now approached this Court
by way of Special Leave Petitions. The workmen
primarily seek full reinstatement with back wages and a
direction to secure their regularization, whereas the
Respondent Employer seeks to quash the modifications
ordered by the High Court on the ground that the High
Court exceeded its jurisdiction by granting partial relief
akin to regular employees, contrary to constitutional
provisions and the State’s ban on recruitment.
5. Learned counsel for the Appellant Workmen
made the following submissions:
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I. Continuous Service & Comparable Duties :
The Appellant Workmen had continuously discharged
horticultural and maintenance duties– like planting
trees, upkeep of public parks, and general
beautification–under the direct supervision and control
of the Respondent Employer for periods often exceeding
a decade. They insist such longstanding, continuous
work parallels that of permanent Gardeners.
II. Direct Engagement & Wage Disbursement
: They aver that their wages, though inadequate, were
paid directly by the Horticulture Department of the
Respondent Employer, nullifying the Employer’s claim
of contractual hiring. Muster rolls and internal notes are
cited to show direct employer employee relations.
III. Illegal Termination : Alleging violation of
Sections 6E and 6N of the U.P. Industrial Disputes Act,
1947, the Appellant Workmen maintain their abrupt
termination in July 2005 (during pendency of
conciliation proceedings) was devoid of due process and
statutory payments, rendering it patently illegal.
IV. Entitlement to Reinstatement &
Regularization : Given their long service and the
principle of “equal pay for equal work,” the Appellant
Workmen submit they deserve full reinstatement with
back wages and a legitimate pathway to regularization,
as opposed to the partial relief of mere daily-wage
re engagement prescribed by the High Court.
6. On the other, the learned counsel for the
Respondent Employer, Ghaziabad Nagar Nigam made
the following submissions:
I. Compliance with Constitutional
Requirements : Emphasizing the constitutional
scheme of public employment, it is urged that there
was (and remains) a ban on fresh recruitment in
Municipal Corporations, and no proper selection process
was ever followed to appoint the Workmen on any
sanctioned posts.
II. No Direct Employer-Employee
Relationship : The Respondent Employer contends
that all horticulture work was carried out through
independent contractors appointed via tender
processes. It claims any partial wage documentation
cited by the Workmen fails to establish direct
engagement.
III. Inapplicability of Regularization : Relying
on Secretary, State of Karnataka v. Umadevi1 , it is
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asserted that no daily wager can claim permanent
absorption without adherence to constitutional
requirements and availability of duly sanctioned
vacancies.
IV. Inadequate Proof of 240 Days’ Service :
The Respondent Employer points out that the Workmen
did not convincingly demonstrate they completed 240
days of continuous work in any calendar year, thus
undermining the assertion that their cessation from
service was illegal.
V. Challenge to Modified Relief: Finally, it
argues that the High Court’s direction to pay
minimum scale wages and to consider the Workmen
for future regularization oversteps legal boundaries,
disregards the recruitment ban, and fosters an
impermissible avenue of public employment. The
Respondent Employer, therefore, seeks the quashing of
the impugned judgment.
7. Having heard the arguments and submissions
of the learned counsel for the parties and having
perused the record, this Court is of the considered
opinion that the nature of engagement of the Appellant
Workmen, the admitted shortage of Gardeners, and the
circumstances under which their services were brought
to an end, merit closer scrutiny.
8. It is undisputed that, while the Appellant
Workmen were pressing for regularization and proper
wages through pending conciliation proceedings, the
Respondent Employer proceeded to discontinue their
services, without issuing prior notice or granting
retrenchment compensation. At this juncture, it is to
have a look at the requirements of Section 6E of the
U.P. Industrial Disputes Act, 1947 which has been
reproduced hereunder:–
“6E. [Conditions of service, etc. to remain
unchanged in certain circumstances during the
pendency of proceedings. [Inserted by U.P. Act No. 1 of
1957.]
(1) During the pendency of any conciliation
proceeding before a Conciliation Officer or a Board or of
any proceeding before a Labour Court or Tribunal in
respect of an industrial dispute, no employer shall, –
(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of service
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applicable to them immediately before the
commencement of such proceeding, or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by dismissal or
otherwise any workman concerned in such dispute save
with the express permission in writing of the authority
before which the proceeding is pending.
(2) During the pendency of any such proceeding
in respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a
workman concerned in such dispute, –
(a) alter, in regard to any matter not connected
with the dispute, the conditions of service applicable to
that workman immediately before the commencement
of such proceeding, or
(b) for any misconduct not connected with the
dispute, discharge or punish, whether by dismissal or
otherwise:
Provided that no such workman shall be
discharged or dismissed, unless he has been paid
wages for one month and an application has been made
by the employer to the authority before which the
proceeding is pending for approval of the action taken
by the employer.
(3) Notwithstanding anything contained in sub-
section (2) no employer shall during the pendency of
any such proceeding in respect of an industrial dispute,
take any action against any protected workman
concerned in such dispute, –
(a) by altering, to the prejudice of such protected
workman, the conditions of service applicable to him
immediately before the commencement of such
proceeding, or
(b) by discharging or punishing, whether by
dismissal or otherwise, such protected workman, such
with the express permission in writing of the authority
before which the proceeding is pending. Explanation. –
For the purposes of this sub-section, a ‘protected
workman’ in relation to an establishment, means a
workman who, being an officer of a registered trade
union connected with the establishment, is recognized
as such in accordance with rules made in this behalf.
(4) In every establishment, the number of
workmen to be recognized as protected workmen for
the purposes of sub-section (3) shall not exceed one
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per cent of the total number of workmen employed
therein subject to a minimum number of five protected
workmen and a maximum number of one hundred
protected workmen and for the aforesaid purpose, the
State Government may make rules providing for the
distribution of such protected workmen among various
trade unions, if any, connected with the establishment
and the manner in which they may be chosen and
recognized as protected workmen.
(5) Where an employer makes an application to a
Board, Labour Court or Tribunal under the proviso to
sub-section (2) for approval of the action taken by him,
the authority concerned shall, without delay, hear such
application and pass, as expeditiously as possible, such
order in relation thereto as it deems fit.”
9. On a plain reading of this section, we can
deduce that any unilateral alteration in service
conditions, including termination, is
impermissible during the pendency of such
proceedings unless prior approval is obtained
from the appropriate authority. The record in the
present case does not indicate that the
Respondent Employer ever sought or was granted
the requisite approval. Prima facie, therefore, this
conduct reflects a deliberate attempt to
circumvent the lawful claims of the workmen,
particularly when their dispute over
regularization and wages remained sub judice.
10. The Respondent Employer consistently
labelled the Appellant Workmen as casual employees
(or workers engaged through an unnamed contractor),
yet there is no material proof of adherence to Section
6N of the U.P. Industrial Disputes Act, 1947, which
mandates a proper notice or wages in lieu thereof as
well as retrenchment compensation. In this context,
whether an individual is classified as regular or
temporary is irrelevant as retrenchment obligations
under the Act must be met in all cases attracting
Section 6N. Any termination thus effected without
statutory safeguards cannot be undertaken lightly.
11. xxxx
12. xxxx
13. xxxx
14. The Respondent Employer places
reliance on Umadevi (supra)2 to contend that
daily-wage or temporary employees cannot claim
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permanent absorption in the absence of statutory
rules providing such absorption. However, as
frequently reiterated, Uma Devi itself
distinguishes between appointments that are
“illegal” and those that are “irregular,” the latter
being eligible for regularization if they meet
certain conditions. More importantly, Uma Devi
cannot serve as a shield to justify exploitative
engagements persisting for years without the
Employer undertaking legitimate recruitment.
Given the record which shows no true contractor-
based arrangement and a consistent need for
permanent horticultural staff the alleged asserted
ban on fresh recruitment, though real, cannot
justify indefinite daily-wage status or continued
unfair practices.
15. It is manifest that the Appellant
Workmen continuously rendered their services
over several years, sometimes spanning more
than a decade. Even if certain muster rolls were
not produced in full, the Employer’s failure to
furnish such records–despite directions to do so–
allows an adverse inference under well-
established labour jurisprudence. Indian labour
law strongly disfavors perpetual daily-wage or
contractual engagements in circumstances where
the work is permanent in nature. Morally and
legally, workers who fulfil ongoing municipal
requirements year after year cannot be dismissed
summarily as dispensable, particularly in the
absence of a genuine contractor agreement. At
this juncture, it would be appropriate to recall the
broader critique of indefinite “temporary”
employment practices as done by a recent
judgment of this court in Jaggo v. Union of India3
in the following paragraphs:
“xxxxxxxxx”
16. xxx
17. xxx
18. The impugned order of the High Court, to the
extent they confine the Appellant Workmen to future
daily-wage engagement without continuity or
meaningful back wages, is hereby set aside with the
following directions:
I. The discontinuation of the Appellant Workmen’s
services, effected without compliance with Section 6E
and Section 6N of the U.P. Industrial Disputes Act,
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1947, is declared illegal. All orders or communications
terminating their services are quashed. In
consequence, the Appellant Workmen shall be treated
as continuing in service from the date of their
termination, for all purposes, including seniority and
continuity in service.
II. The Respondent Employer shall reinstate the
Appellant Workmen in their respective posts (or posts
akin to the duties they previously performed) within
four weeks from the date of this judgment. Their entire
period of absence (from the date of termination until
actual reinstatement) shall be counted for continuity of
service and all consequential benefits, such as seniority
and eligibility for promotions, if any.
III. Considering the length of service, the
Appellant Workmen shall be entitled to 50% of
the back wages from the date of their
discontinuation until their actual reinstatement.
The Respondent Employer shall clear the
aforesaid dues within three months from the date
of their reinstatement.
IV. The Respondent Employer is directed to
initiate a fair and transparent process for
regularizing the Appellant Workmen within six
months from the date of reinstatement, duly
considering the fact that they have performed
perennial municipal duties akin to permanent
posts. In assessing regularization, the Employer
shall not impose educational or procedural
criteria retroactively if such requirements were
never applied to the Appellant Workmen or to
similarly situated regular employees in the past.
To the extent that sanctioned vacancies for such
duties exist or are required, the Respondent
Employer shall expedite all necessary
administrative processes to ensure these long-
time employees are not indefinitely retained on
daily wages contrary to statutory and equitable
norms.
19. In view of the above, the appeal(s) filed by
the workmen are allowed, whereas the appeal(s) filed
by the Nagar Nigam Ghaziabad are dismissed.”
(Emphasis supplied)
On a coalesce of the judgments rendered by the
Apex Court in the afore-quoted cases, which were in
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the aftermath of the judgment in the case of UMADEVI
(3) supra, would in unmistakable terms indicate that
regularization of employees is not a concept that is
obliterated, but could be considered on several
parameters laid down in the said judgments. One
unmistakable stream that runs through judicial thinking
of judgments of the Apex Court is that, regularization of
the services of the employees engaged to work for the
State for long years should be considered, failing which,
it would amount to violation of Article 14 of the
Constitution of India.
20. Therefore, on a blend of the judgments
rendered by the Apex Court as afore-quoted, what
would unequivocally mistakably emerge is, the State
practising exploitation of human labour, should by
judicial orders be curbed. The Apex Court terms the
engagements made in those cases, as exploitative
engagements. In the case at hand even, I deem it
appropriate to observe that the petitioners have in their
prime youth worked for the services of the State, as
daily wagers. They are continued to be in that position
even today, with certain benefits conferred from time to
time. They are in the last leg of their services. If their
services are not directed to be regularised today, it
would be putting a premium on the act of the State,
exploiting human labour, as these petitioners, if left in
the lurch will have to wander for their livelihood after
having served the State for 39 years and 32 years
respectively.
21. In the light of such exploitation which has to
be stopped and stopped forthwith, the subject case
becomes a classic illustration where mandamus is
required to be issued, not for considering the cases of
the petitioners, but to regularise their services, as any
direction, if issued only to consider the cases of the
petitioners, it will generate another round of litigation,
as the State would get a hand, to handle against the
petitioners. Therefore, positive mandamus ensues in
the case at hand only to save the petitioners from the
brunt of another litigation.
22. One more aspect that is required to be
noticed is that, there is no explanation from the hands
of the State as to why the cases of these petitioners are
deliberately left out while scores and scores of the
services of the daily wagers have been regularised
pursuant to circulars issued, in the aftermath of
UMADEVI(3). Therefore, the State has practised, pick
and choose procedure in considering the cases for
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regularization. This is what the Apex Court has
observed and deprecated in the case of STATE OF
MADHYA PRADESH v. SHYAM KUMAR YADAV8, wherein
it is held as under:
“2. The issue that arose for consideration before
the High Court in the second round of litigation
was whether respondent No.1 was entitled to be
absorbed as a regular employee, keeping in view
the Government policy/circular and the long
period of service rendered by him as a daily
wager. The High Court held that respondent
No.1 was entitled to regularisation of his
services as several persons junior to him
had already been absorbed. The intra-court
appeal preferred by the State has also been
turned down by a Division Bench of the High
Court vide the impugned order dated 16-03-
2018.
3. We have heard learned Additional
Advocate General for the petitioners as well as
learned counsel for respondent No.1 at a
considerable length and carefully perused the
material placed on record.
4. We are constrained to observe that the
affidavits or the documents filed on behalf of the
petitioner-State from time to time, particularly
the affidavit of the Commissioner, Technical
Education, Bhopal, in purported compliance of our
order dated 22- 04-2024, are vague, evasive, and
misleading.
5. It is true that an employee engaged
on daily wages has no legally vested right to
seek regularisation of his services. However,
if the competent authority takes a policy
decision within the permissible framework,
its benefit must be extended to all those
who fall within the parameters of such a
policy. Authorities cannot be permitted to
pick and choose in such circumstances.
6. The fact that respondent No.1 has
worked as a daily wager from 2005 to 2009 is not
in dispute. The eligibility for the post he holds has
also not been controverted. The fact that he
initially entered through the process in8
Special Leave to Appeal No.25609 of 2018 decided on 22.07.2024.
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conformity with Articles 14 and 16 of the
Constitution is also not a serious issue. That
being so, we see no reason to interfere with the
impugned order passed by the High Court
directing the petitioners to confer the status of a
regular employee on respondent No.1
7. The Special Leave Petition is,
accordingly, dismissed.
8. The petitioners are directed to do the
needful and grant all the benefits, including
arrears of pay and seniority, to respondent No.1
from the due date.”
(Emphasis supplied)
The Apex Court observed that practice of State of
Madhya Pradesh in pick and choose for regularisation
violates Articles 14 and 16 of the Constitution of India.
The said observation would become applicable to the
case at hand as well.
22. A parting observation in the case at hand
would not be inapt. The judgments rendered by the
Apex Court as quoted above would leave none in doubt
that the employees who have served for long years with
minimum threshold of 10 years and beyond, and if they
come within the parameters of what the Apex Court
noted as quoted hereinabove, the State itself should
consider regularisation of those cases, albeit, on case to
case basis, as a person who is working on daily wage,
would not be in a position to bear the brunt of litigation
and it is not the law that every person should be driven
to the Court seeking the very same relief that is
granted to similarly situated persons, if they are in fact,
similar.
23. It becomes apposite to refer to the
observations of the division bench in the case of
NAGAPPA VS STATE OF KARNATAKA9, where the
division bench observes as follows:
“2. We have perused the said decisions and also
the averments made in the Writ Petition. In our
opinion, it is not necessary for every person
to approach this Court for a relief similar to
the one already granted by this Court in the
aforesaid decisions. If a decision has been
rendered by this Court, it would be proper9
ILR 1986 Kar 3093
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for the authorities to follow and extend the
benefit of that decision in like cases coming
before them. That should be the guiding
principle to be borne in mind in the
administration. It is not proper to drive
every person to seek relief in this Court. It is
indeed the duty of the authorities to extend
the benefits of the concluded decision of this
Court to all other similar cases.
(Emphasis supplied)
Therefore, the State should take steps towards
the observations of the division bench, which would
result in avoiding mushrooming of litigations and save
docket explosion.”
7. For the aforesaid reasons, the following:
ORDER
i. Petition is allowed.
ii. The impugned endorsement dated 23.07.2019
issued by the 2nd respondent vide Annexure-H
stands quashed.
iii. The case of the petitioner shall now merit re-
consideration at the hands of the respondents
bearing in mind the observations made in the
course of the aforesaid order within 4 months
from the date of receipt of copy of the order.
Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
CKK
CT-MCK List No.: 1 Sl No.: 100
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