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