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Service matter – Regularization of temporary employees having service of 10 years – whether the High court can direct to regularize the same – For clarification the appeal was filed as the D.B. dismissed the regular appeal – Apex court held that the matter was already settled in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, this case falls under clauses of (ii), (vi) and (v) of judgement, High court can not direct to regularize the post and as such allowed the appeal giving clarification on law = Secretary to Government, School Education Department, Chennai …Appellant Versus Thiru R. Govindaswamy & Ors. …Respondents= 2014(Feb.Part) judis.nic.in/supremecourt/filename=41254

Service matter – Regularization of temporary employees having service of 10 years – whether the High court can direct to regularize the same – For clarification the appeal was filed as the D.B. dismissed the regular appeal – Apex court held that the matter was already settled  in State of Rajasthan & Ors. v. Daya Lal & Ors.,  AIR 2011 SC 1193, this case falls under clauses of (ii), (vi) and (v) of judgement, High court can not direct to regularize the post and as such allowed the appeal giving clarification on law  with out disturbing the postings already given under High court judgement =

 

The respondents had been  appointed  as  part-time  sweepers  by

      appellant from 1987 till 1993 as their initial appointments  had  been

      issued to the respondents and others on 1.12.1987, 2.5.1991, 1.4.1993,

      10.4.1993, 27.5.1999 and 19.1.2001.  As the respondents and others had

      been working for more than 10 years, they  filed  Writ  Petition  Nos.

      17468, 17470, 17472, 17473, 17469 and 17471 of 2012  before  the  High

      Court of Madras for seeking regularisation of their services. 

The said

      Writ Petitions were allowed by the common  judgment  and  order  dated

      23.7.2012 with  the  direction  to  regularise  the  services  of  the

      respondents on full time basis based on the individual  representation

      after verifying their service particulars from the date of  completion

      of 10 years of service with time scale of pay.=

Aggrieved, the appellant preferred the writ appeals  which  were

      dismissed.

            Hence, these appeals.

Shri  P.P.  Rao,  learned  senior  counsel  appearing  for  the

      appellant has submitted that a direction to regularise  the  part-time

      employees itself is contrary to law and the said direction  could  not

      have been issued. It has further been submitted that as  the  impugned

      judgments and orders had been complied with and the appellant  is  not

      going to disturb any of the respondents and others, the law should  be

      clarified on the issue so that in future the High Court  may  not  use

      the impugned judgment as a precedent.

Apex court conclusion :

   This Court 

in State of Rajasthan & Ors. v. Daya Lal & Ors.,  AIR  2011 SC 1193

has considered the scope of regularisation of  irregular

      or part-time appointments in all possible eventualities and  laid down

      well-settled principles relating to regularisation and parity  in  pay

      relevant in the context of the issues involved therein. The  same  are

      as under:

 

           “8(i) The High Courts, in exercising power under Article 226  of

           the Constitution will not issue directions  for  regularisation,

           absorption  or  permanent  continuance,  unless  the   employees

           claiming regularisation had been appointed  in  pursuance  of  a

           regular recruitment in accordance with relevant rules in an open

           competitive  process,  against  sanctioned  vacant  posts.   The

           equality clause contained  in  Articles  14  and  16  should  be

           scrupulously followed and Courts should not  issue  a  direction

           for regularisation of services of an  employee  which  would  be

           violative of the constitutional scheme. While 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,  back  door  entries,  appointments

           contrary to the  constitutional  scheme  and/or  appointment  of

           ineligible candidates cannot be regularised.

           (ii) Mere continuation of service by a temporary or  ad  hoc  or

           daily-wage employee, under cover of some interim orders  of  the

           court, would not confer upon him any right to be  absorbed  into

           service, as such service would be “litigious  employment”.  Even

           temporary, ad hoc or daily-wage service for  a  long  number  of

           years, let alone service for one or two years, will not  entitle

           such employee to claim regularisation,  if  he  is  not  working

           against a sanctioned post.  Sympathy  and  sentiment  cannot  be

           grounds for passing any order of regularisation in  the  absence

           of a legal right.

           (iii) Even where a scheme is formulated for regularisation  with

           a cut-off date (that is a scheme providing that persons who  had

           put in a specified number of years of service and continuing  in

           employment as on the cut-off date), it is not possible to others

           who were appointed subsequent to the cut-off date, to  claim  or

           contend that the scheme should be applied to them  by  extending

           the cut-off date or  seek  a  direction  for  framing  of  fresh

           schemes providing for successive cut-off dates.

           (iv) Part-time employees are not entitled to seek regularisation

           as they are not working  against  any  sanctioned  posts.  There

           cannot  be  a  direction  for  absorption,   regularisation   or

           permanent continuance of part-time temporary employees.

           (v) Part-time temporary employees in government-run institutions

           cannot claim parity in salary  with  regular  employees  of  the

           Government on the principle of equal pay for equal work. Nor can

           employees in private employment, even if serving full time, seek

           parity in salary with government employees. The right to claim a

           particular salary against the State must arise under a  contract

           or under a statute.” (Emphasis added)

 

 

      8.    The present appeals are squarely covered by clauses  (ii),  (iv)

      and (v) of the aforesaid judgment. Therefore, the appeals are allowed.

      However, in light of the facts and circumstances of the case  as  Shri

      P.P. Rao, learned senior counsel has submitted that the appellant  has

      already implemented the  impugned  judgments  and  does  not  want  to

      disturb  the  services  of  the  respondents,  the  services  of   the

      respondents which stood regularised should not be affected.

            With the aforesaid observations, the appeals stand  disposed  of

      accordingly. No order as to costs.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41254

B.S. CHAUHAN, A.K. SIKRI

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2726-2729 OF 2014
(Arising out of SLP (C) Nos. 5681-5684/2014)
@ CC. 19326-19329/2013)

 
Secretary to Government, School Education
Department, Chennai …Appellant

 
Versus

 
Thiru R. Govindaswamy & Ors. …Respondents

 
WITH
CIVIL APPEAL NOs. 2730-2731 OF 2014
(Arising out of SLP (C) Nos. 5686-5687/2014)
@ CC. 19982-19983/2013)

 

 

 
O R D E R

 
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgments
and orders dated 21.11.2012 and 16.11.2012 in Writ Appeal Nos. 2402,
2403 2404, 2405 of 2012 and 2555, 2556 of 2012 passed by the High
Court of Madras, by which the High Court has regularised the services
of part-time sweepers (respondents herein).
2. Facts and circumstances giving rise to these appeals are that:
The respondents had been appointed as part-time sweepers by
appellant from 1987 till 1993 as their initial appointments had been
issued to the respondents and others on 1.12.1987, 2.5.1991, 1.4.1993,
10.4.1993, 27.5.1999 and 19.1.2001. As the respondents and others had
been working for more than 10 years, they filed Writ Petition Nos.
17468, 17470, 17472, 17473, 17469 and 17471 of 2012 before the High
Court of Madras for seeking regularisation of their services. The said
Writ Petitions were allowed by the common judgment and order dated
23.7.2012 with the direction to regularise the services of the
respondents on full time basis based on the individual representation
after verifying their service particulars from the date of completion
of 10 years of service with time scale of pay.
Aggrieved, the appellant preferred the writ appeals which were
dismissed.
Hence, these appeals.
3. Shri P.P. Rao, learned senior counsel appearing for the
appellant has submitted that a direction to regularise the part-time
employees itself is contrary to law and the said direction could not
have been issued. It has further been submitted that as the impugned
judgments and orders had been complied with and the appellant is not
going to disturb any of the respondents and others, the law should be
clarified on the issue so that in future the High Court may not use
the impugned judgment as a precedent.
4. Per contra, Shri P.R. Kovilan P, learned counsel appearing for
the respondents has submitted that as the respondents had been working
as part-time sweepers for a very long time and not regularising their
services would tantamount to exploitation. Therefore, no interference
is called for in these appeals.
5. The issue involved here remains restricted as to whether the
services of the part-time sweepers could have been directed by the
High Court to be regularized. The issue is no more res integra.
In State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC
1806, this Court held as under:
“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.”
6. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC
448, this Court dealt with the issue of regularisation of part-time
employees and the court refused the relief on the ground that part-
timers are free to get themselves engaged elsewhere and they are not
restrained from working elsewhere when they are not working for the
authority/employer. Being the part-time employees, they are not
subject to service rules or other regulations which govern and control
the regularly appointed staff of the department. Therefore, the
question of giving them equal pay for equal work or considering their
case for regularisation would not arise.
7. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR
2011 SC 1193, has considered the scope of regularisation of irregular
or part-time appointments in all possible eventualities and laid down
well-settled principles relating to regularisation and parity in pay
relevant in the context of the issues involved therein. The same are
as under:

“8(i) The High Courts, in exercising power under Article 226 of
the Constitution will not issue directions for regularisation,
absorption or permanent continuance, unless the employees
claiming regularisation had been appointed in pursuance of a
regular recruitment in accordance with relevant rules in an open
competitive process, against sanctioned vacant posts. The
equality clause contained in Articles 14 and 16 should be
scrupulously followed and Courts should not issue a direction
for regularisation of services of an employee which would be
violative of the constitutional scheme. While 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, back door entries, appointments
contrary to the constitutional scheme and/or appointment of
ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or
daily-wage employee, under cover of some interim orders of the
court, would not confer upon him any right to be absorbed into
service, as such service would be “litigious employment”. Even
temporary, ad hoc or daily-wage service for a long number of
years, let alone service for one or two years, will not entitle
such employee to claim regularisation, if he is not working
against a sanctioned post. Sympathy and sentiment cannot be
grounds for passing any order of regularisation in the absence
of a legal right.
(iii) Even where a scheme is formulated for regularisation with
a cut-off date (that is a scheme providing that persons who had
put in a specified number of years of service and continuing in
employment as on the cut-off date), it is not possible to others
who were appointed subsequent to the cut-off date, to claim or
contend that the scheme should be applied to them by extending
the cut-off date or seek a direction for framing of fresh
schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation
as they are not working against any sanctioned posts. There
cannot be a direction for absorption, regularisation or
permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions
cannot claim parity in salary with regular employees of the
Government on the principle of equal pay for equal work. Nor can
employees in private employment, even if serving full time, seek
parity in salary with government employees. The right to claim a
particular salary against the State must arise under a contract
or under a statute.” (Emphasis added)
8. The present appeals are squarely covered by clauses (ii), (iv)
and (v) of the aforesaid judgment. Therefore, the appeals are allowed.
However, in light of the facts and circumstances of the case as Shri
P.P. Rao, learned senior counsel has submitted that the appellant has
already implemented the impugned judgments and does not want to
disturb the services of the respondents, the services of the
respondents which stood regularised should not be affected.
With the aforesaid observations, the appeals stand disposed of
accordingly. No order as to costs.
…………………………….J.
(Dr. B.S. CHAUHAN

 

 

…………………………………J.
(A.K. SIKRI)
New Delhi,
February 21, 2014

 

 

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