DINESH AND ANR. vs NORTH DELHI MUNICIPAL CORPORATION AND ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 12 March 2025
Pronounced on : 16 April 2025

+ W.P.(C) 11693/2019, CM APPL. 48068/2019, CM APPL. 3262/2021, CM APPL. 39848/2021 & CM APPL. 44788/2024

DEEN BANDHU GARG AND ORS. …..Petitioners
Through: Mr. Naresh Kaushik, Sr. Adv. with Mr. Shantanu Shukla, Adv.

versus

SOUTH DELHI MUNICIPAL CORPORATION AND
ORS. …..Respondents
Through: Ms. Shivangi Kumar, Mr. Gaurav Kumar Arya and Ms. Ismat Chughtai, Advs.

+ W.P.(C) 11694/2019 & CM APPL. 48071/2019

RISHI KAPOOR AND ORS. …..Petitioners
Through: Mr. Naresh Kaushik, Sr. Adv. with Mr. Shantanu Shukla, Adv.

versus

EAST DELHI MUNICIPAL CORPORATION AND
ORS. …..Respondents
Through: Ms. Namrata Mukim, Standing Counsel for MCD with Ms. Niharika Singh, Adv.

+ W.P.(C) 11695/2019, CM APPL. 48074/2019 & CM APPL. 3416/2021

DINESH AND ANR. …..Petitioners
Through: Mr. Naresh Kaushik, Sr. Adv. with Mr. Shantanu Shukla, Adv.

versus

NORTH DELHI MUNICIPAL CORPORATION AND
ORS. …..Respondents
Through: Ms. Namrata Mukim, Standing Counsel for MCD with Ms. Niharika Singh, Adv.

+ W.P.(C) 7915/2023

SURESH CHAND SHARMA …..Petitioner
Through: Mr. Naresh Kaushik, Sr. Adv. with Mr. Shantanu Shukla, Adv.

versus

MUNICIPAL CORPORATION OF DELHI AND
ORS. …..Respondents
Through: Ms. Sriparna Chatterjee, Standing Counsel with Mr. Ashwin Romy Chacko and Mr. Manish, Advs.

+ W.P.(C) 8501/2024

MUNICIPAL CORPORATION OF DELHI …..Petitioner
Through: Ms. Sriparna Chatterjee, Standing Counsel with Mr. Ashwin Romy Chacko, Mr. Soumitra Chatterjee and Mr. Manish, Advs.

versus

ANITA KUMARI AND ANR ….Respondents
Through: Mr. R.V. Sinha, Ms Nidhi Singh and Ms. Shriya Sharma, Advs. for R-1
Mr. Naresh Kaushik, Sr. Adv. with Mr. Shantanu Shukla, Adv.

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
HON’BLE MR. JUSTICE AJAY DIGPAUL
% JUDGMENT
16.04.2025

C. HARI SHANKAR, J.

1. These writ petitions emanate out of five judgments passed by the Principal Bench of the Central Administrative Tribunal1, of which three have been rendered on 30 September 2019.

2. The specifics may be provided thus:

Writ Petition No.
OA No.
Date of impugned judgment
11693/2019
2482/2019
30 September 2019
11694/2019
2387/2019
30 September 2019
11695/2019
2483/2019
30 September 2019
7915/2023
3540/2019
13 March 2021
8501/2024
2525/2023
4 April 2024

3. WP (C) 11693/2019, WP (C) 11694/2019, WP (C) 11695/2019 and WP (C) 7915/2023 are preferred by the original applicants before the Tribunal, whereas WP (C) 8501/2024 is preferred by the Municipal Corporation of Delhi2.

4. The issue in controversy in all these cases is the same. For the sake of convenience, the applicants before the Tribunal in all these cases would collectively be referred to hereinafter as “applicants”.

5. The applicants were all teachers who were appointed by the Municipal Corporation of Delhi/South Delhi Municipal Corporation/East Delhi Municipal Corporation/North Delhi Municipal Corporation on various dates between 2003 and 2008, following advertisements issued by the concerned Municipal Corporations and interview, against sanctioned posts. The appointments were, however, contractual in nature, continued from time to time by granting periodical extensions. All the applicants sought regularisation against the posts occupied by them, albeit on contract basis, and founded their claims on the long and uninterrupted service rendered by them. There is no doubt about the fact that the services rendered by the applicants were satisfactory and there has been no serious complaint against any of them regarding their performance at any point of time.

The impugned orders passed by the Tribunal

Impugned orders in WP (C) 11693/2019, WP (C) 11694/2019 and WP (C) 11695/2019

6. The impugned orders in WP (C) 11693/2019, WP (C) 11694/2019 and WP (C) 11695/2019 were all rendered by the Tribunal on 30 September 2019. The applicants in these OAs had applied to the concerned Municipal Corporations3 seeking absorption/regularisation of their services, pointing out that they had been appointed against duly sanctioned posts and had been continuing satisfactorily for over 10 years without a break. The MCD, however, submitted, before the Tribunal, that the contractual employment of the applicants had been last extended by a period of one month till 31 October 2019, by order dated 30 September 2019. It was further submitted that, against the posts occupied by the applicants in the said three OAs, offers of appointment had already been issued to regularly selected persons on 17 July 2019, and they were to join on or before 15 October 2019.

7. In these circumstances, the Tribunal disposed of the OAs 2482/2019, 2387/2019 and 2483/2019 by identical orders passed on 30 September 2019, para 4 of which read thus:

“4. In view of the aforesaid, the present OA is disposed of by directing the respondents that, in case, they are in need of services of contractual teachers, the applicants shall not be replaced by new set of contractual teachers and if, after appointing the persons selected on regular basis, there still remain some unfilled vacancies and the respondents are in need of the services of contractual teachers, the applicants shall be given preference, over the juniors and freshers.”

Impugned order dated 13 March 2021 passed in OA 3540/2019

8. Suresh Chand Sharma was the lone applicant in this OA. His claim was identical to the claim of the petitioners in WP (C) 11693/2019, WP (C) 11694/2019 and WP (C) 11695/2019. The Tribunal, accordingly, disposed of OA 3540/2019, by merely following its order dated 30 September 2019 supra in OA 2482/2019.

Impugned order dated 4 April 2024 passed in OA 2525/2023

9. The claim of Anita Kumari, the lone applicant in this OA was identical to the claim of the petitioners in WP (C) 11693/2019, WP (C) 11694/2019 and WP (C) 11695/2019. She, too, sought regularisation as Assistant Teacher (Primary) in the MCD, by dint of her long and uninterrupted service, following contractual appointment against a sanctioned post, after interview. By the time when the matter was decided by the Tribunal, the applicant Anita Kumari had already rendered service for the MCD for over 21 years, having been contractually appointed in 2003.

10. Before the Tribunal, the MCD sought to contend that the appointment of the applicant Anita Kumari was under the Samagra Shiksha Abhiyan4, which was a specific scheme under which teachers were appointed on contract for 10 months a year, excluding summer vacations. It was submitted that, owing to financial stringency being faced by the MCD, no further appointments were being made. As against this, the applicant Anita Kumari submitted that her appointment was by the MCD and had continued without interruption since 11 September 2003 against a regular post. It was submitted that the SSA had come into existence only in 2014 and that, therefore, it was erroneous on the part of the MCD to contend that the applicant had been appointed against the SSA. The SSA, it was further submitted, was managed by the MCD and funded from the Consolidated Fund of India.

11. Addressing the rival submissions, the Tribunal held that the public notice/advertisement, against which the applicant Anita Kumari had applied and following which she had been interviewed and selected, was issued by the MCD. It made no reference to the appointment being against a particular project or in a particular society. The orders extending the applicant’s appointment, too, did not state that it was being done in a society. Clearly, the appointment was by the Education Department of the MCD and had continued since 2003 by repeated orders of extension. The applicant, who was 33 years of age when she was appointed as a Primary Teacher, was 54 years of age by the time the OA was filed before the Tribunal. She had, therefore, in the process, been rendered over-age for appointment to any other government post. She was selected by a transparent, open and fair selection process, as per her merit. Technical/artificial breaks could not be regarded as interrupting the flow of service rendered by the applicant. The appointment of the applicant could not, therefore, be termed as “illegal” within the meaning of the expression as employed by the Constitution Bench of the Supreme Court in its judgment in State of Karnataka v Uma Devi5. Even if, after a particular point of time, the funds from which the applicant was paid were arranged from the funds allocated to the SSA, that did not detract from the relationship of employer and employee subsisting between the MCD and the applicants. For this finding, the Tribunal relied on the judgment of the Supreme Court in Nihal Singh v State of Punjab6.

12. Following these findings, the Tribunal allowed OA 2525/2023 filed by Anita Kumari.

13. It is thus that the dispute has percolated upwards to us.

14. We have heard Mr. Naresh Kaushik, learned Senior Counsel appearing for the petitioners in WP(C) 11693/2019, WP(C) 11694/2019, WP (C) 11695/2019 and WP(C) 7915/2023 and Mr. R.V. Sinha, learned Counsel for the respondent in WP(C) 8501/2024. Ms. Sriparna Chatterjee has represented the MCD in all these petitions.

Rival Contentions and Analysis

15. Two decisions of the Supreme Court essentially form the basis of controversy in the present case; the judgment of the Constitution Bench in Uma Devi and the judgment of a two Judge Bench in Jaggo v UOI7. Jaggo has subsequently been followed in Shripal v Nagar Nigam, Ghaziabad8 to which, too, we would refer at the appropriate stage.

16. Uma Devi is a judgment which has often been regarded as an authority for the proposition that continued contractual employment would not assume regular character by distance of time, and the mere fact that the employee, initially appointed on contract/ad hoc/casual basis has continued uninterruptedly would not vest, in such an employee, a right to seek regularisation. This position, however, has been revisited by the Supreme Court in Jaggo, which exposits the view that Uma Devi has, since long, been misinterpreted. Jaggo holds that Uma Devi was a judgment intended to curb the evil of backdoor appointments, and was never meant to be a vehicle for the executive to make appointments on temporary, ad hoc, casual or contract basis and continue them indefinitely for years on end, thereby rendering the ultimate fate of such employees completely nebulous. It is only, therefore, where the appointment was illegal ab initio that, according to Jaggo, no right to regularisation would emerge from continued service following such appointment.

17. As such, at the very outset, the Court queried of Ms. Chatterjee, who appeared for the Municipal Corporation in these petitions, as to whether the applicants were not entitled to succeed, given the revisitation of the law by the Supreme Court in Jaggo.

18. To be fair to her, Ms. Chatterjee did not, at any point of time, dispute the applicability, to the facts of the applicants before us, of the decision in Jaggo. Her initial submission was, however, that the decision in Jaggo was per incuriam, as it was contrary to earlier decisions rendered by the Supreme Court, of Larger Benches. Subsequently, on her attention being drawn to the fact that the Supreme Court had held that in South Central Railway Employees Co-op Credit Society Employees Union v B. Yashodabai9 that the High Court could not declare a judgment of the Supreme Court to be per incuriam, Ms. Chatterjee slightly modified her stand to state that, as earlier judgments of the Supreme Court, which were binding precedents, had elucidated the law contrary to the elucidation which is to be found in Jaggo, those earlier decisions would have to be followed. There can be no doubt about the fact that Ms. Chatterjee was clearly entitled to raise the said contention. We would, however, proceed to address its merits, by and by.

19. During the course of arguments, Ms. Chatterjee referred to certain decisions of the Supreme Court which preceded Jaggo and have not been noticed in it. Some of them were rendered by Benches of numerically greater strength than the Bench which rendered Jaggo.

20. For the sake of convenience, this judgment would refer to Benches consisting of a lesser, and greater, number of Judges of the Supreme Court as “smaller” and “larger” Benches respectively.

21. We are clear in our view that if the High Court is faced with conflicting decisions of Benches of the Supreme Court of varying strengths, the High Court has no option but to follow the decision rendered by the larger Bench, irrespective of the point of time at which the decisions were rendered.

22. A more subtle, and therefore more interesting, issue, however, also arose during the course of arguments, again relating to the principle of precedent. Ms. Chatterjee sought to contend that there were certain observations and findings in Uma Devi which had not been noticed in Jaggo, and were contrary to the observations and findings contained in Jaggo. This gave rise to the issue of whether, if a smaller Bench of the Supreme Court has considered the judgment of a larger Bench of the Supreme Court and laid down the law, it is open to the High Court to hold that the law laid down by the latter, smaller Bench, could not be followed as it conflicted with certain observations contained in the earlier larger Bench, which had not been noticed by the smaller Bench. We had our serious doubts as to whether the High Court could adopt such a view, as it would amount to holding that the smaller Bench of the Supreme Court had not considered the decision of the larger Bench in its entirety, and had, therefore, read it only in part. To our mind, it would be extremely questionable as to whether the High Court can so opine. Ms. Chatterjee, however, submits that the High Court can do so and relies, for the purpose, on the judgment of a Full Bench of this Court in Deepak Kumar v District and Sessions Judge Delhi10.

23. We would address this issue at the appropriate stage.

24. The judgments cited by Ms. Chatterjee as enunciating the law differently from Jaggo are, apart from Uma Devi itself, chronologically,
(i) Registrar General of India v V. Thippa Setty11,
(ii) UOI v Sheela Rani12
(iii) State of Rajasthan v Daya Lal13,
(iv) Secretary to Govt School Education Department v R. Govindaswamy14
(v) Official Liquidator v Dayanand15
(vi) University of Delhi v Delhi University Contract Employees Union16,
(vii) UOI v Ilmo Devi17, and
(viii) Malook Singh v State of Punjab18.

25. We intend to proceed, in this judgment, by first examining the law laid down in Uma Devi, Jaggo and Shripal, secondly analyzing the entitlement of the applicants to regularization and other reliefs sought by them on the basis of these decisions and, thirdly, examining whether this entitlement, if it exists, is in any way affected by the other judgments cited by Ms Chatterjee. In this context, we would also be noting the decision in UOI v K Velajagan19 which, albeit briefly, echoes the same view.

A. The judgments in Uma Devi, Jaggo, Shripal and Velajagan

26. We commence our precedential excursion from Uma Devi, rendered by a Constitution Bench of five Hon’ble Judges of the Supreme Court, and around which, essentially, the submissions revolved.

27. Uma Devi

27.1 The decision in Uma Devi was rendered by a Constitution Bench of five Hon’ble Judges of the Supreme Court, arising from a difference of opinion between Benches of the High Court of Karnataka and, resultantly, Benches of the Supreme Court before which appeals from the said decisions were listed. In para 7 of the report, the Supreme Court identified the issue arising for consideration before it, thus:

“The conflict relates to the right, if any, of employees appointed by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be made permanent in appropriate posts, the work of which they were otherwise doing. The claim is essentially based on the fact that they having continued in employment or engaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned.”

27.2 In paras 12 and 13 of the report, the Supreme Court observed thus:
“12.  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 the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.

13.  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.”

Thus, in the above paragraphs, the Supreme Court noted the entitlement of the state to employ persons on temporary or daily wages, even in respect of sanctioned posts. However, if such persons were recruited without a selection process, the Supreme Court observed that it would not be proper for courts to direct their regularization. Considerations of equity would not apply, as regularization of such persons would be at the cost of qualified citizens having a right to apply for appointment against the said posts.

27.3 Paras 15 and 16 of the report distinguished regularization from conferment of permanence, relying on the earlier decisions in State of Mysore v S V Narayanappa20, R N Nanjundappa v T Thimmiah21 and B N Nagarajan v State of Karnataka22.

27.4 Thereafter, the legal position was crisply stated thus, in para 17 of the report:

“17.  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.”

27.5 Para 18 went on to observe that, while daily rated workers, doing work identical to those who are regularly appointed, may be entitled to equality of pay, it would be quite different to say that the state was bound to accord permanence to all persons employed as casual labourers or temporary hands, without a process of selection and contrary to the laws governing public employment. The Supreme Court, thereafter, referred to its earlier decision in State of Haryana v Piara Singh23. Paragraphs 23 to 26 of the report, which deal with the said decision, may be reproduced thus:

“23.  We may now consider State of Haryana v Piara Singh. 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:

“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 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 observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service.”

24.  This Court then referred to some of the earlier decisions of this Court while stating:

“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.”

25.  This Court then concluded in paras 45 to 49:

“45. The normal rule, of course, is regular recruitment through the prescribed agency but 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 employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. 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 sponsored by the employment exchange, some 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.”

26.  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 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 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.”

27.6 The Supreme Court, thus, noted, the observations, in Piara Singh, that (i) a person should not be kept on temporary or ad hoc status for long, as such extended continuance would give rise to a presumption that there was need and warrant for a regular post and a claim for regularization, (ii) where ad hoc appointments had to be made in exigencies of administration, the effort should be to replace such ad hoc appointees with regularly selected employees as early as possible, also affording the ad hoc employees the right to compete with others for regular selection, (iii) an ad hoc or temporary employee could not be replaced by another ad hoc or temporary employee, (iv) even while making ad hoc or temporary appointments, candidates had ordinarily to be recruited through the employment exchange or, if that was not possible, by following a method consistent with Article 16 of the Constitution of India, by publishing a notice and calling for applications and considering all who applied and (v) if an ad hoc or temporary employee was continued for a long spell, the authorities were required to consider his case for regularization if he was eligible and qualified for the post and his service record was satisfactory, subject to considerations of reservation.

27.7 Of all these observations contained in Piara Singh, the Constitution Bench only took exception to the last direction, to regularize ad hoc or temporary employees merely on the ground that they had continued working for long periods of time. The Supreme Court confirmed that “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”.

27.8 After referring to further decisions, the Constitution Bench concluded thus:

“43.  Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

44.  The concept of “equal pay for equal work” is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm’s length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

46.  Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad24,Piara Singh, Jacob25  and Gujarat Agricultural University26 and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v Minister of Civil Service27, National Buildings Construction Corpn. v S Raghunathan28 and Chanchal Goyal (Dr.) v State of Rajasthan29. There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.

47.  When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

48.  It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.

49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

50.  It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.

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.

52.  Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v Governing Body of the Nalanda College30. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in SV Narayanappa, RN Nanjundappa and BN Nagarajan 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 above referred 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 bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

27.9 From the above passages, the following propositions emerge:

(i) Unless the appointment of candidates was in terms of the relevant rules and after proper competition amongst qualified persons, no right would be conferred on the appointee.

(ii) A contractual appointment came to an end with the expiry of the contract.

(iii) An appointment on daily wages or casual basis came to an end when it was discontinued.

(iv) Mere long continuance in service after temporary or casual appointment would not confer, on the appointee, a right to regularization.

(v) Unless the recruitment was made regularly and in terms of the constitutional scheme, High Courts, under Article 226 of the Constitution of India were ordinarily not to issue directions for absorption, regularization or grant of permanence.

(vi) Accepting the submission that long continuance in service would itself confer a right to regularization would amount to permitting the State to perpetuate illegality in the matter of public employment, which would be a negation of the constitutional scheme adopted by the people of India. It could not be said that the employees had been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution of India.

(vii) In this context, one had to distinguish between illegal appointments and irregular appointments, in the manner set out in para 53 of the report.

27.10 Thus, the decision in Uma Devi, holistically read, was obviously intended to do away with the evil of illegal appointment in violation of the constitutional scheme or the applicable rules, without any proper selection and consideration of all persons similarly situated.

27.11 It does not appear either possible or proper to read Uma Devi as laying down an absolute proposition, that long continuance in service after temporary, ad hoc or casual employment would not give rise to a regularization even if the initial appointment was made after a proper selection process and comparative consideration of the merits of rival candidates to the post. Expressed otherwise, if the post was a sanctioned post, and selection to the post took place after inviting applications and consideration of the rival merits of the applicant candidates, it would not be proper to deny such candidates, after having served for long period of time, a right to regularization merely on the ground that their initial appointment was not “regular” in nomenclature.

27.12 One may view this concept differently as well. If vacancies against sanctioned posts are available, and applications are invited for persons who desired to be appointed against such posts, and a comparative consideration of the rival merits of the applicants was undertaken, the State could not, by merely calling the appointment ad hoc, temporary, casual or contractual, deny such appointees the right to regularization against the posts, especially where their appointments were continued for extended periods of time.

27.13 Uma Devi, at any rate, in our view, cannot be said to be sanctioning such a course of action.

28. Jaggo

28.1 Before adverting to the other decisions cited at the Bar, one may refer to the judgment in Jaggo, as that represents, in a sense of speaking, the latest exposition of law by the Supreme Court in the matter of right of casual, contractual, temporary or ad hoc employees to regularization.

28.2 The appellants31 before the Supreme Court were engaged by the Central Water Commission32 as part-time ad hoc safaiwalas/khalasis, on various dates between 1993 and 2004. They performed essential housekeeping and support functions at establishment of CWC, thereby contributing to smooth functioning of the CWC’s administrative operations.

28.3 Jaggo etc. moved the Central Administrative Tribunal by way of OA 2211/2015, seeking regularization. By order dated 17 April 2018, the OA was dismissed, holding that Jaggo etc. had not been appointed against “regular vacancies” and had not completed “sufficient full time service”, so that their cases did not attract the principles governing regularization.

28.4 This view was upheld by this Court, which was approached by Jaggo etc. by way of WP (C) 6822/2018. This Court, in dismissing the writ petition, followed the decision in Uma Devi. It was also held that, Jaggo etc. did not possess the minimum educational qualifications ordinarily required for regular appointments and that the CWC had subsequently outsourced the maintenance activities which were being carried out by Jaggo etc.

28.5 Aggrieved by the decision of this High Court, Jaggo etc. approached the Supreme Court.

28.6 We deem it appropriate to reproduce the following paragraphs from the judgment of the Supreme Court:

“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 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.  The abrupt termination of the appellants’ services, following dismissal of their Original Application before the Tribunal, was arbitrary and devoid of any justification. The termination letters, issued without prior notice or explanation, violated fundamental principles of natural justice. It is a settled principle of law that even contractual employees are entitled to a fair hearing before any adverse action is taken against them, particularly when their service records are unblemished. In this case, the appellants were given no opportunity to be heard, nor were they provided any reasons for their dismissal, which followed nearly two decades of dedicated service.
15.  Furthermore, the respondents’ conduct in issuing tenders for outsourcing the same tasks during the pendency of judicial proceedings, despite a stay order from the Tribunal directing maintenance of status quo, reveals lack of bona fide intentions. Such actions not only contravened judicial directives but also underscored the respondents’ unwillingness to acknowledge the appellants’ rightful claims to regularization.
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 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.  The appellants have also established that individuals with lesser tenure or comparable roles were regularized by the respondents. The counsel for the appellants had submitted a seniority list for employees working as the Multi-Tasking Staff published by the Respondent Department on 04.03.2024 wherein the following employees were a part of the staff without the required educational qualification:

S. No.
Name
Educational Qualification
Category
Date of Continuous CWC Service
Temporary or Permanent posts
1.
Krishna s/o Lt. Khajan Singh
Illiterate
26.07.1988
Permanent
SC
2.
Naresh Devi w/o Ld. Surendra Kumar
Illiterate
29.10.1991
Permanent
Gen
3.
Shiv Kumar s/o Lt. Pratap Singh
Illiterate
08.09.1994
Permanent
SC
4.
Radhe Shyam s/o Lt. Sadhu Ram Maurya
Illiterate
30.05.2012
Permanent
OBC
5.
Raju s/o Shri Banshi Lal
Illiterate
12.07.1994
Permanent
SC
6.
Shahjad Ali s/o Naushad Ali
Illiterate
01.07.2010
Permanent
Gen
7.
Punam w/o Lt. Raj Kumar
Illiterate
21.09.2015
Permanent
SC
8.
Nirmala w/o Lt. Raju
Illiterate
02.02.2022
Temporary
SC
A bare perusal of the aforementioned list shows the preferential treatment accorded to these individuals, despite their shorter service durations and no educational qualification. This exemplifies discriminatory behaviour and lack of uniformity in the respondent department’s approach. Such disparity violates the principles of equality enshrined in Articles 14 and 16 of the Constitution of India and cannot be sustained in law.
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 India33, 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 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 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