SRI S. G. NANDOOR, ADVOCATES) v. (BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R4)

4. SMT. PUSHPA YOHANAPPA OLAGUNDI, AGE: 53 YEARS OCC: PRIMARY HEALTH WORKER, R/O: C/O RAJAMMA YAHONAPPA OLAGUNDI, B M COMPOUND HOSA ONI HUBBALLI, DIST: DHARWAD- 580029.

5. SMT. LALITHA NIDANAPPA ADIN, AGE: 54 YEARS, OCC: JUNIOR HEALTH ASSISTANT, R/O: C/O S P HIREMATH PLOT NO. 19 SWARNGIRI LAYOUT NEAR RAJIVA NAGAR, POLICE QUARTERS, UNKAL, HUBBALLI, DIST: DHARWAD- 580030.

6. SMT. SHOBA SUNDAR AJAGARANI, AGE: 52 YEARS, OCC: JUNIOR HEALTH ASSISTANT, R/O: C/O SUNDAR JAN AJAGARANI KRICHEN COLONY, 2ND CROSS GHATAKERI, HUBBALLI, DIST: DHARWAD- 580029.

7. SMT. MERIBAI SAMSON CHANDANAVAR, AGE: 57 YEARS, OCC: PRIMARY HEALTH WORKER, R/O: BASSAL MISSION COMPOUND HOSA ONI KARWAR ROAD HUBBALLI- 580029, DIST: DHARWAD.

8. SMT. SUNITA SHRIPADAPPA HONNAYAKAR, AGE: 54 YEARS, OCC: JUNIOR HEALTH ASSISTANT, R/O: BASEL MISSION COMPOUND PASTER ONI KARWAR ROAD HUBBALLI, DIST: DHARWAD- 580029. …PETITIONERS (BY SRI S. B. DODDAGOUDAR, AND SRI S. G. NANDOOR, ADVOCATES) AND:

THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT KARNATAKA VIKAS SOUDA, BENGALURU- 560001. - 4 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023

THE DIRECTOR, HEALTH AND FAMILY WELFARE DEPARTMENT R/O: ANAND RAO CIRCLE, SESHADRI ROAD, BENGALURU- 06.

THE DEPUTY COMMISSIONER, DHARWAD, DIST: DHARWAD- 580008.

THE HEALTH AND FAMILY WELFARE DEPARTMENT, DHARWAD, DIST: DHARWAD -580008. (BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R4) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA IS PRAYING TO A) ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER ENDORSEMENT DATED 15-02-2023 ISSUED BY THE RESPONDENT NO.2 BEARING NO. KI.MA.A.S(1)369/2012-13 (ANNEXURE-A TO A7). B) ISSUE A WRIT OF MANDAMUS TO THE RESPONDENT NO.1 TO CONSIDER AT ANNEXURE F TO F7 DATED 14-12-2022 FOR THE PURPOSE OF REGULARIZATION OF PETITIONERS SERVICES. C) THE HON’BLE COURT MAY ALSO BE PLEASED TO PASS ANY OTHER WRIT, ORDER, DIRECTION ETC. IN THE ABOVE CASE TO SERVE THE ENDS OF JUSTICE. IN WP.NO. 106724/2023 BETWEEN: REPRESENTATIONS PETITIONER’S THE

1. SMT K. SHOBHA W/O. D. KENCHAPPA, AGE: 51 YEARS, OCC: PRIMARY HEALTH WORKER, R/O: 2ND CROSS SHASTRI NAGAR, BALLARI, NOW AT WARD NO. 35 SHIRAGUPPA ROAD, NEAR DISH BASHAKAR HOUSE, KURAHATTI, BALLARI, DIST: BALLARI- 583101.

2. M. B. DANAKUMARI, AGE: 50 YEARS,OCC: PRIMARY HEALTH WORKER, R/O: SURYA NAGAR BALLARI, DIST: BALLARI- 583101. (BY SRI S. B. DODDAGOUDAR, AND SRI S. G. NANDOOR, ADVOCATES) …PETITIONERS - 5 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 AND:

1. THE PRINCIAPL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT KARNATAKA, VIKAS SOUDA, BENGALURU- 560001.

2. THE DIRECTORATE, HEALTH AND FAMILY WELFARE DEPARTMENT, R/O: ANAND RAO CIRCLE, SESHADRI ROAD, BENGALURU- 560009.

3. THE DEPUTY COMMISSIONER BALLARI DIST: BALLARI- 583101.

4. THE HEALTH AND FAMILY WELFARE DEPARTMENT BALLARI, DIST: BALLARI- 583101. (BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R4) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA IS PRAYING TO, A. ISSUE WRIT OF CERTIORARI QUASHING THE ORDER ENDORSEMENT DATED. 15/02/2023 ISSUED BY THE RESPONDENT NO.2 BEARING NO. KI.MA.A.S(1)369/2012-13 (ANNEXURE-A TO A1). B. TO ISSUE A WRIT OF MANDAMUS TO THE RESPONDENT NO. 2 TO CONSIDER THE PETITIONERS REPRESENTATIONS AT ANNEXURE-E TO E1 DATED 14/12/2022 FOR THE PURPOSE OF REGULARIZATION PETITIONERS SERVICES. C. THE HON’BLE COURT MAY ALSO BE PLEASED TO PASS ANY OTHER WRIT, ORDER, DIRECTION ETC IN THE ABOVE CASE TO SERVE THE ENDS OF JUSTICE. THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 6 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

1. Batch of these petitions have a grievance in common that their services are not regularized. Therefore, they are at the doors of this Court seeking a direction to regularize the services by setting aside the endorsement issued rejecting the claim of the petitioners regularization.

2. Heard learned counsel Shri S.B. Doddagoudar and Shri S.G. Nandoor appearing for the petitioners and the learned HCGP Smt. Kirtilata R.Patil appearing for respondent Nos.1 to 4.

3. In W.P. No.103618/2023, the petitioner pursuant to a notification calling for an application for appointment of Junior Health Worker applies to the said post on 04.02.2001. After the selection process on

06.10.2001, the second respondent appoints the petitioner as Junior Health Worker under a particular Scheme of - 7 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 Population control. The petitioner then after working about 21 years submitted a representation to consider their cases for regularization. This was not considered and the petitioner was before this Court in W.P. No.104195/2022. The Coordinate Bench of this Court disposes the petition directing consideration of the cases for regularization on

02.11.2022. The result of the said direction is the impugned endorsement dated 15.02.2023 rejecting the claim of the petitioner and only observing that rupees six thousand that was paid for the last 22 years would be enhanced to rupees fifteen thousand, barring this there is no other reason to deny the case of the petitioner for regularization. The companion petitions bear the same facts. Therefore, the facts in case need not be reiterated.

4. Learned counsel appearing for the petitioner submits that the petitioners have put in close 24 years of service today and are left without regularization of their services. They are not working under the scheme, but they are staff nurses working at different places in Shivamogga - 8 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 District at the Primary Health Centers or otherwise. Learned counsel would further submit that the petitioners are paid rupees six thousand for the last 22 years and have now by the impugned endorsement have agreed that the salary of the petitioners would be increased to rupees fifteen thousand and the claim of regularization is rejected. He would seek to place reliance upon plethora of judgments rendered by the Apex Court.

Per contra, learned HCGP would submit that the petitioners have been appointed not against the sanctioned vacant posts, but were under the Scheme. He would submit that the petitioners have continued in employment for last 24 years and the claim for regularization has been appropriately denied.

Therefore, the issue now is as to whether the petitioners would be entitled to consideration of their cases for regularization. In somewhat similar circumstances, this Court analyzing the entire spectrum of the law laid down by the Apex Court in the case of SECRETARY, STATEOF - 9 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 KARNATAKA VS. UMADEVI (3)1 and its aftermath has held as follows: “10. When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in Secy., State of Karnataka v. Umadevi (1) [(2004) 7 SCC 132 : 2004 SCC (L&S) 935 : (2003) 9 Scale 187] . This Court noticed that in the matter of regularisation of ad hoc employees, there were conflicting decisions by three-Judge Benches of this Court and by two-Judge Benches and hence to be considered by a larger Bench.

2. On the other hand, Mr M.C. Bhandare, learned Senior Counsel, appearing for the employees urged that such a scheme for regularisation is consistent with the provisions of Articles 14 and 21 of Constitution.

3. Mr V. Lakshmi Narayan, learned counsel appearing in CCs Nos. 109-498 of 2003, has filed the GO dated 19-7-2002 and submitted that the orders have already been implemented.

4. After having found that there is conflict of opinion between the three-Judge Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges.

5. Let these matters be placed before the Hon'ble the Chief Justice for appropriate orders.” We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should. fundamental

In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure - 11 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 functions of for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and the Public Service Commissions for the States. Article 320 deals with the Public Service Commissions and mandates consultation with Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognised by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the Scheduled Castes and Scheduled Tribes for employment. The States have made Acts, rules or regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.

In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognised and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who - 12 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 have been engaged without following a due process of selection as envisaged by the constitutional scheme.

What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh [(1964) 4 SCR 964 : AIR 1964 SC 521] . It was held therein : (SCR pp. 971-72)

In our opinion where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status.

During the course of the arguments, various orders of the courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to the legal principles and it is time that this Court settled the law once and for all so that in case the Court finds that such orders should not be made, the courts, especially, - 13 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 such orders on the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of the Court also highlights the need for settling the law by this Court.

Even at the threshold, it is necessary to keep in regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] this Court stated that it was a misconception to consider that regularisation meant permanence. Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409 : (1972) 2 SCR 799] this Court dealt with an argument that regularisation would In R.N. - 14 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 mean conferring the quality of permanence on the appointment. This Court stated : (SCC pp. 416-17, para 26)

Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.

in making the words

In B.N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] this Court clearly held “regular” or “regularisation” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a force, no regularisation - 15 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 totally different concept and cannot be equated with regularisation.

We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent. this Court frame a scheme

Without keeping the above distinction in mind and without discussion of the law on the question or the effect of the directions on the constitutional scheme of appointment, in Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228 : (1988) 1 SCR 598] directed the Government to absorption of daily-rated casual labourers continuously working in the Posts and Telegraphs Department for more than one year. This Court seems to have been swayed by the idea that India is a socialist republic and that implied the existence of certain important obligations which the State had to discharge. While it might be one thing to say that the daily-rated workers, doing the identical work, had to be paid the wages that were being paid to those who are regularly appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the Constitution and the laws made thereunder concerning public employment. The same approach was made in Bhagwati Prasad v. Delhi State Mineral Development Corpn. [(1990) 1 SCC 361 : 1990 SCC (L&S) 174 : 1989 Supp this Court directed regularisation of daily-rated workers in phases and in accordance with seniority. (2) SCR 513] where - 16 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023

One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularisation or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive.

The decision in Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] dealt with a scheme framed by the State of Karnataka, though at the instance of the Court. The scheme was essentially relating to the application of the concept of equal pay for equal work but it also provided for making permanent, or what it called regularisation, without keeping the distinction in mind, of employees who had been appointed ad hoc, casually, temporarily or on daily-wage basis. In other words, employees who had been appointed without following the procedure established by law for such appointments. This Court, at the threshold, stated that it should individualise justice to suit a given situation. With respect, it is not possible to accept the statement, unqualified as it appears to be. This Court is not only the constitutional court, it is also the highest court in the country, the final court of appeal. By virtue of Article 141 of the Constitution, what this Court lays down is the law of the land. Its decisions are binding on all the courts. Its main role is to interpret the constitutional and other statutory provisions bearing in mind the fundamental philosophy of the Constitution. We have given unto ourselves a system of governance by rule of law. The role of the Supreme Court is to render justice according to law. As one jurist put it, the Supreme - 17 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 Court is expected to decide questions of law for the country and not to decide individual cases without reference to such principles of law. Consistency is a virtue. Passing orders not consistent with its own decisions on law, is bound to send out confusing signals and usher in judicial chaos. Its role, therefore, is really to interpret the law and decide cases coming before it, according to law. Orders which are inconsistent with the legal conclusions arrived at by the court in the selfsame judgment not only create confusion but also tend to usher in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor's foot.

In Dharwad case [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] this Court was actually dealing with the question of “equal pay for equal work” and had directed the State of Karnataka to frame a scheme in that behalf. In para 17 of the judgment (in SCC), this Court stated that the precedents obliged the State of Karnataka to regularise the services of the casual or daily/monthly-rated employees and to make them the same payment as regular employees were getting. Actually, this Court took note of the argument of counsel for the State that in reality and as a matter of statecraft, implementation of such a direction was an economic impossibility and at best only a scheme could be framed. Thus a scheme for absorption of casual/daily- rated employees appointed on or before 1-7-1984 was framed and accepted. The economic consequences of its direction were taken note of by this Court in the following words : (SCC pp.

With respect, it appears to us that the question whether the jettisoning of the constitutional scheme of appointment can be approved, was not considered or decided. in R.N. Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409 : (1972) 2 SCR 799] was also not kept in mind. The Court appears to have been dealing with a scheme for “equal pay for equal work” and in the process, without an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily- rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.

We may now consider State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] . There, the Court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily-wagers or casual labour. This Court started by saying : (SCC p. 134, para 21)

21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the executive. It is the executive again that lays down the conditions of - 19 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The court comes into the picture only to ensure statutory observance provisions, rules and other if any, governing the conditions of service.

rights, instructions, fundamental

This Court then referred to some of the earlier decisions of this Court while stating : (SCC p. 134, para 21)

The main concern of the court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above.

This Court then concluded in paras 45 to 49 : (SCC p. 152) through “45. The normal rule, of course, is regular the prescribed agency but recruitment exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected - 20 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 regular selection/appointment. employee as early as possible. Such a temporary employee may also compete along with others for If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.

46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not the employment exchange, some sponsored by appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.”

With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its - 21 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent—the distinction between regularisation and making permanent, was not emphasised here—can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

We shall now refer to the other decisions. In State of Punjab v. Surinder Kumar [(1992) 1 SCC 489 : 1992 SCC (L&S) 345 : (1992) 19 ATC 500 : AIR 1992 SC 1593 : 1991 Supp (3) SCR 553] a three-Judge Bench of this Court held that the High Courts had no power, like the power available to the Supreme Court under Article 142 of the Constitution, and merely because the Supreme Court granted certain reliefs in exercise of its power under Article 142 of the Constitution, similar orders could not be issued by the High Courts. The Bench pointed out that a decision is available as a precedent only if it decides a question of law. The temporary employees would not be entitled to rely in a writ petition they filed before the High Court upon an order of the Supreme Court which directs a temporary employee to be regularised in his service without assigning reasons and ask the High Court to pass an order of a similar nature. This Court noticed that the jurisdiction of the High Court while dealing with a writ petition was circumscribed by the limitations discussed and declared by judicial decisions and the High Court cannot transgress the limits on the basis of the whims or subjective sense of justice varying from judge to judge. Though the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications coming before it, the discretion had to be confined in declining to entertain petitions and refusing to grant reliefs asked for by the petitioners on adequate - 22 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 considerations and it did not permit the High Court to grant relief on such a consideration alone. This Court set aside the directions given by the High Court for regularisation of persons appointed temporarily to the post of lecturers. The Court also emphasised that specific terms on which appointments were made should be normally enforced. Of course, this decision is more on the absence of power in the High Court to pass orders against the constitutional scheme of appointment.

In Director, Management Institute Development, U.P. v. Pushpa Srivastava [(1992) 4 SCC 33 : 1992 SCC (L&S) 767 : (1992) 21 ATC 377 : (1992) 3 SCR 712] this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularisation in service in the absence of any rule providing for regularisation after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the calendar year concerned was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.

In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra [(2005) 5 SCC 122 : 2005 SCC (L&S) 628 : AIR 1994 SC 1638] a three-Judge Bench of this Court that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularisation of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular in connection with particular project, on work or completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service - 23 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 and the High Court cannot direct that they be continued or absorbed elsewhere.

In State of H.P. v. Suresh Kumar Verma [(1996) 7 SCC 562 : 1996 SCC (L&S) 645 : (1996) 33 ATC 336 : AIR 1996 SC 1565 : (1996) 1 SCR 972] a three-Judge Bench of this Court held that a person appointed on daily- wage basis was not an appointee to a post according to rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said : (SCC p. 563, para 2)

It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily-wage basis is not an appointment to a post according to the rules.

Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, “the judicial process would become another mode of recruitment dehors the rules”.

In Ashwani Kumar v. State of Bihar [(1997) 2 SCC 1 : 1997 SCC (L&S) 465 : 1996 Supp (10) SCR 120] this Court was considering the validity of confirmation of the irregularly employed. It was stated : (SCC p. 17, para 13) regularisation of an

13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, is to be noted that question of irregularly confirmation or appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for - 24 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility.

This Court further stated : (SCC pp.

The Court noticed that case all constitutional requirements were thrown to the wind while - 25 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 making the appointments. It was stated : (SCC pp. 19- 20, para 14)

On the contrary all efforts were made to bypass law which the recruitment procedure known to resulted in clear violation of Articles 14 and 16(1) of the Constitution both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so-called regularisations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme….

It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. ignoring

In A. thereunder Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004 SCC (L&S) 918] a three-Judge Bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed essential qualifications, the appointments would be illegal and cannot be regularised by the State. The State could not invoke its power under Article 162 of the Constitution to regularise such appointments. This Court also held that regularisation is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or any body or authority governed by a thereunder. statutory Act or Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been framed - 26 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 working for a long time would not mean that they had acquired a right for regularisation.

Incidentally, the Bench also referred to the nature of the orders to be passed in exercise of this Court's jurisdiction under Article 142 of the Constitution. This Court stated that jurisdiction under Article 142 of the Constitution could not be exercised on misplaced sympathy. This Court quoted with approval observations of Farwell, L.J. in Latham v. Richard Johnson & Nephew Ltd. [(1913) 1 KB 398 : (1911-13) All ER Rep 117 : 108 LT 4 (CA)] : (All ER p. 123 E) “We must be [very] careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles.”

This Court also quoted with approval (at SCC p. 131, para 69) the observations of this Court in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130] to the effect : (SCC p. 144, para 36)

36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.

This decision kept in mind the distinction between “regularisation” and “permanency” and laid down that regularisation is not and cannot be the mode of recruitment by any State. It also held that regularisation cannot give permanence to an employee whose services are ad hoc in nature.

It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] this Court after referring to a number of prior decisions held that there was no power in the State under Article 162 of the Constitution to make appointments and even if there - 27 - NC: 2025:KHC-D:3605 WP No. 103618 of 2023 C/W WP No. 106372 of 2023 WP No. 106724 of 2023 was any such power, no appointment could be made in contravention of statutory rules. This Court also held that past alleged regularisation or appointment does not connote entitlement regularisation or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularisation. This view was in State of Karnataka v. KGSD Canteen reiterated Employees' Welfare Assn. [(2006) 1 SCC 567 : 2006 SCC (L&S) 158 : JT (2006) 1 SC 84] further