# Krishna Prasad and another v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 967
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-03
- **Case number:** Civil Misc. Writ Petition No. 43398 of 2011
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-prasad-and-another-v-state-of-u-p-and-others-42000
- **Pages:** 18

## Headnote

C.S.C.

U.P.
Regularization
of
Daily
Wags
Appointment on Group D Post Rules
2001-Rule
4(a)
(b)-regularization
of
Daily Wagers working prior to 1991considering Globalization and Economic
growth-engagement of Daily Wages,
contractual
employees-become
well
recognized system-there can not be any
prohibition-but should be in accordance
with law-0considering latest views of the
Apex
Court-guide
lines
given
for
Regularization.

Held: Para 12

In the present scenario of Globalisation
and Economic growth, the execution of
work
by
engaging
the
persons
on
contractual basis, daily basis and part
time basis has become well recognised
system
and
its
results
are
more
productive, efficient and economical.
Having regard to the financial aspects
the
Central
Government,
State
Government and their instrumentalities
have right to engage daily wagers on the
agreed wages, on contractual basis,
adhoc and temporary basis and there is
no prohibition in the Constitution or
under any law of the land. However,
their
appointment
should
be
in
accordance to law.
Case law discussed:
(2006) 4 SCC 44; JT 2009 (4) SC 577; 2006
(4) SCC-1

## Text

_Characters 0–39,690 of 57,166. This is a partial read: ask again with offset=39690 for what follows._

2 All] Krishna Prasad and another V. State of U.P. and others

967
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 43398 of 2011

Krishna Prasad and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Bijendra Kumar Mishra

Counsel for the Respondents:
C.S.C.

U.P.
Regularization
of
Daily
Wags
Appointment on Group D Post Rules
2001-Rule
4(a)
(b)-regularization
of
Daily Wagers working prior to 1991considering Globalization and Economic
growth-engagement of Daily Wages,
contractual
employees-become
well
recognized system-there can not be any
prohibition-but should be in accordance
with law-0considering latest views of the
Apex
Court-guide
lines
given
for
Regularization.

Held: Para 12

In the present scenario of Globalisation
and Economic growth, the execution of
work
by
engaging
the
persons
on
contractual basis, daily basis and part
time basis has become well recognised
system
and
its
results
are
more
productive, efficient and economical.
Having regard to the financial aspects
the
Central
Government,
State
Government and their instrumentalities
have right to engage daily wagers on the
agreed wages, on contractual basis,
adhoc and temporary basis and there is
no prohibition in the Constitution or
under any law of the land. However,
their
appointment
should
be
in
accordance to law.
Case law discussed:
(2006) 4 SCC 44; JT 2009 (4) SC 577; 2006
(4) SCC-1

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard learned counsel for the
petitioners and learned Standing Counsel.

2. The petitioners were working as
daily wagers prior to June, 1991. The
petitioners claim their regularization of
service under the U.P. Regularisation of
Daily Wages Appointment on Group D
Post Rules, 2001 (hereinafter referred to
as the 'Rules 2001').

3. The contention of the petitioners
is that they fulfill all the conditions of the
Rules 2001 and are eligible to be
regularized. The names of the petitioners
have
not
been
considered
for
regularization because they are getting the
minimum of pay scale as per order of this
Court, in view of the Circular dated
24.6.20011.

4. I have considered the circular
dated 24.06.2011. In my view, the
regularization of the petitioners, who are
working as daily wagers, can not be
denied merely on the ground that the
petitioners are getting minimum of pay
scale on the basis of the order passed by
this Court or otherwise, in case, if the
petitioners fulfil all the requirements of
the Rules 2001. There is nothing in the
Rules 2001 which debars those Daily
Wagers who are getting minimum of pay
scale. It is settled principle of law that the
circular cannot over-ride the rules. The
circular dated 24.06.2011 is clarified as
above. The claim of the petitioners for
regularisation is to be considered strictly
in accordance to rules. However, while
968 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

examining the case for regularisation, it
may be considered that after getting the
minimum of pay scale, the status of the
petitioners remain as Daily Wagers and
having regard to Rules 4 1(a) and (b) of
the
Rules
2001,
in
each
regularisation/appointment letter it is to
be
specifically
recorded
that
the
conditions of Rules 4 1(a) and (b) are
fulfilled.

Rules 4 1(a) and (b) are being
referred hereinbelow:-

"4.Regularisation of daily wages
appointments on Group 'D' Posts.-(1) Any
person who-

(a)was directly appointed on daily
wage basis on a Group 'D' post in the
Government service before June 29, 1991
and is continuing in service as such on the
date of commencement of these rules; and

(b)possessed requisite qualification
prescribed for regular appointment for
that post at the time of such appointment
on daily wage basis under the relevant
service rules, shall be considered for
regular appointment in permanent or
temporary vacancy, as may be available
in Group 'D' post, on the date of
commencement of these rules on the basis
of his record and suitability before any
regular appointment is made in such
vacancy in accordance with the relevant
service rules or orders."

5. In my view the Rules 2001 or any
other Rules relating to the services of a
Daily Wager, adhoc/temporary employee
etc. are subject to the doctrine of equality
enshrined under Articles 14 and 16 of the
Constitution of India, which read as
follows:

"14. The State shall not deny to any
person equality before the law or the
equal protection of the laws within the
territory of India."

"16. Equality of opportunity in
matters of public employment. -

(1) There shall be equality of
opportunity for all citizens in matters
relating to employment or appointment to
any office under the State.

(2) No citizen shall, on grounds only
of religion, race, caste, sex,descent, place
of birth, residence or any of them, be
ineligible for, or discriminated against in
respect of, any employment or office
under the State.

(3) Nothing in this article shall
prevent Parliament from making any law
prescribing, in regard to a class or classes
of employment or appointment to an
office under the Government of, or any
local or other authority within, a State or
Union territory, any requirement as to
residence within that State or Union
territory prior to such employment or
appointment.

(4) Nothing in this article shall
prevent the State from making any
provision
for
the
reservation
of
appointments or posts in favour of any
backward class of citizens which, in the
opinion of the State, is not adequately
represented in the services under the
State.

(4A) Nothing in this article shall
prevent the State from making any
provision for reservation in matters of
promotion, with consequential seniority,
to any class or classes of posts in the
2 All] Krishna Prasad and another V. State of U.P. and others

969
services under the State in favour of the
Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State,
are not adequately represented in the
services under the State.

(4B) Nothing in this article shall
prevent the State from considering any
unfilled vacancies of a year which are
reserved for being filled up in that year in
accordance
with
any
provision
for
reservation made under clause (4) or (4A)
as a separate class of vacancies to be
filled up in any succeeding year or years
and such class of vacancies shall not be
considered together with the vacancies of
the year in which they are being filled up
for determining the ceiling of fifty per
cent reservation on total number of that
year.

(5) Nothing in this article shall affect
the operation of any law which provides
that the incumbent of an office in
connection with the affairs of any
religious or denominational institution or
any member of the governing body
thereof shall be a person professing a
particular religion or belonging to a
particular denomination."

6. Articles 14 and 16 of the
Constitution
of
India
have
been
considered by the Constitution Bench of
the Apex Court in the case of Secretary,
State of Karnataka and others vs. Uma
Devi and others, reported in (2006) 4
SCC 44 and subsequently in the case of
State of Bihar vs. Upendra Narayan
Singh and others, reported in JT 2009
(4) SC 577, in detail, with reference to the
appointment of the Daily Wager, adhoc
and temporary appointment.

7. The Apex Court in the case of
State of Bihar vs. Upendra Narayan
Singh and others (Supra) held that the
equality clause enshrined in Article 16 of
the Constitution mandates that every
appointment to a public post or office
should be made by way of open
advertisement so as to enable all eligible
persons to compete for selection on
merits. It further held that for ensuring
that equality of opportunity in the matters
relating to the employment becomes a
reality for all, Parliament enacted the
Employment
Exchanges
(Compulsory
Notification of Vacancies) Act, 1959 (for
short) 'the 1959 Act'). Section 4 of the Act
casts a duty on the employer in every
establishment in public sector in the State
or a part thereof to notify every vacancy
to the employment exchange before
filling up the same.

Paragraph nos. 12, 14 and 15 of the
judgment of the Apex Court in the case of
State of Bihar vs. Upendra Narayan Singh
and others (Supra) are reproduced below:-

12. In E.P. Royappa v. State of
Tamil Nadu and others [(1974) 4 SCC
3], the Constitution Bench negatived
the appellant's challenge to his transfer
from the post of Chief Secretary of the
State to that of Officer on Special Duty.
P.N. Bhagwati, J. (as His Lordship then
was)
speaking
for
himself,
Y.V.
Chandrachud and V.R. Krishna Iyer,
JJ. considered the ambit and reach of
Articles 14 and 16 and observed :

"Article 14 is the genus while
Article 16 is one of its species. Article
14 declares that the State shall not deny
any person equality before the law or
equal protection of the laws within the
territory of India. Article 16 gives effect
970 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

to the doctrine of equality in all matters
relating to public employment. Article
16
embodies
the
fundamental
guarantee that there shall be equality of
opportunity for all citizens in matters
relating to employment or appointment
to any office under the State. No citizen
shall be ineligible for or discriminated
against irrespective of any employment
or office under the State on the grounds
only of religion, race, caste, sex,
descent, place of birth, residence or any
of them. Though, enacted as a distinct
and independent fundamental right
because of its great importance as a
principle
ensuring
equality
of
opportunity in public employment
which is so vital to the building up of
the new classless egalitarian society
envisaged in the Constitution. The basic
principle which, therefore, informs
both Articles 14 and 16 is equality and
inhibition against discrimination. Now,
what is the content and reach of this
great equalising principle? It is a
founding faith, to use the words of
Bose. J., "a way of life", and it must not
be subjected to a narrow pedantic or
lexicographic approach. We cannot
countenance any attempt to truncate its
all-embracing scope and meaning, for
to do so would be to violate its activist
magnitude. Equality is a dynamic
concept
with
many
aspects
and
dimensions and it cannot be "cribbed,
cabined
and
confined"
within
traditional and doctrinaire limits. From
a positivistic point of view, equality is
antithetic to arbitrariness. In fact
equality and arbitrariness are sworn
enemies; one belongs to the rule of law
in a republic while the other, to the
whim and caprice of an absolute
monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both
according
to
political
logic
and
constitutional law and is therefore
violative of Article 14, and if it effects
any
matter
relating
to
public
employment, it is also violative of
Article 16. Articles 14 and 16 strike at
arbitrariness in State action and ensure
fairness and equality of treatment."

14. In Girish Jayanti Lal Vaghela's
case, this Court, while reversing an
order
passed
by
the
Central
Administrative Tribunal which had
directed the Union Public Service
Commission
to
relax
the
age
requirement in the respondent's case,
elucidated
the
meaning
of
the
expression "equality of opportunity for
all citizens in matters elating to public
employment" in the following words:

"Article 16 which finds place in
Part III of the Constitution relating to
fundamental rights provides that there
shall be equality of opportunity for all
citizens
in
matters
relating
to
employment or appointment to any
office under the State. The main object
of Article 16 is to create a constitutional
right to equality of opportunity and
employment in public offices. The
words `employment' or `appointment'
cover
not
merely
the
initial
appointment but also other attributes
of service like promotion and age of
superannuation, etc. The appointment
to any post under the State can only be
made after a proper advertisement has
been made inviting applications from
eligible candidates and holding of
selection by a body of experts or a
specially constituted committee whose
members
are
fair
and
impartial
through a written examination or
interview
or
some
other
rational
2 All] Krishna Prasad and another V. State of U.P. and others

971
criteria for judging the inter se merit of
candidates
who
have
applied
in
response to the advertisement made. A
regular appointment to a post under
the State or Union cannot be made
without issuing advertisement in the
prescribed manner which may in some
cases include inviting applications from
the
employment
exchange
where
eligible candidates get their names
registered. Any regular appointment
made on a post under the State or
Union without issuing advertisement
inviting
applications
from
eligible
candidates and without holding a
proper selection where all eligible
candidates get a fair chance to compete
would violate the guarantee enshrined
under Article 16 of the Constitution."

"15.....In Excise Superintendent,
Malkapatnam, Krishna District, A.P. v.
K.B.N. Visweshwara Rao and others
[(1996) 6 SCC 216], a three-Judge
Bench
while
reiterating
that
the
requisitioning authority/establishment
must
send
intimation
to
the
employment exchange and the latter
should
sponsor
the
names
of
candidates, observed:

".... It is common knowledge that
many a candidate is unable to have the
names sponsored, though their names
are either registered or are waiting to
be
registered
in
the
employment
exchange, with the result that the
choice of selection is restricted to only
such of the candidates whose names
come
to
be
sponsored
by
the
employment exchange. Under these
circumstances,
many
a
deserving
candidate is deprived of the right to be
considered for appointment to a post
under the State. Better view appears to
be that it should be mandatory for the
equisitioning authority/establishment to
intimate the employment exchange, and
employment exchange should sponsor
the names of the candidates to the
requisitioning
departments
for
selection strictly according to seniority
and reservation, as per requisition. In
addition, the appropriate department
or undertaking or establishment should
call for the names by publication in the
newspapers having wider circulation
and also display on their office notice
boards or announce on radio, television
and employment news bulletins; and
then consider the cases of all the
candidates who have applied. If this
procedure is adopted, fair play would
be
subserved.
The
equality
of
opportunity
in
the
matter
of
employment would be available to all
eligible candidates."

The same principle was reiterated
in Arun Kumar Nayak v. Union of
India and others [(2006) 8 SCC 111] in
the following words:

"This Court in Visweshwara Rao,
therefore, held that intimation to the
employment
exchange
about
the
vacancy and candidates sponsored
from the employment exchange is
mandatory. This Court also held that in
addition
and
consistent
with
the
principle of fair play, justice and equal
opportunity,
the
appropriate
department or establishment should
also call for the names by publication in
the
newspapers
having
wider
circulation, announcement on radio,
television
and
employment
news
bulletins
and
consider
all
the
candidates who have applied. This view
was taken to afford equal opportunity
972 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

to all the eligible candidates in the
matter of employment. The rationale
behind such direction is also consistent
with the sound public policy that wider
the opportunity of the notice of vacancy
by wider publication in the newspapers,
radio, television and employment news
bulletin, the better candidates with
better qualifications are attracted, so
that
adequate
choices
are
made
available and the best candidates would
be selected and appointed to subserve
the public interest better."

8. On consideration of the various
decisions of the Apex Court, referred to
herein
above,
the
Apex
Court
in
Paragraphs 16, 17, 20, 21, 22, 24, 26, 27
and 30 of the said judgment has further
held as follows:-

"16. The ratio of the above noted
three judgments is that in terms of
Section 4 of the 1959 Act, every public
employer is duty bound to notify the
vacancies to the concerned employment
exchange so as to enable it to sponsor
the names of eligible candidates and
also
advertise
the
same
in
the
newspapers having wider circulation,
employment
news
bulletins,
get
announcement made on radio and
television and consider all eligible
candidates
whose
names
may
be
forwarded
by
the
concerned
employment exchange and/or who may
apply pursuant to the advertisement
published
in
the
newspapers
or
announcements
made
on
radio/television.

17.
Notwithstanding
the
basic
mandate of Article 16 that there shall
be equality of opportunity for all
citizens
in
matters
relating
to
employment for appointment to any
office under the State, the spoil system
which prevailed in America in 17th and
18th centuries has spread its tentacles
in
various
segments
of
public
employment apparatus and a huge
illegal
employment
market
has
developed in the country adversely
affecting the legal and constitutional
rights of lakhs of meritorious members
of younger generation of the country
who are forced to seek intervention of
the court and wait for justice for years
together.

20.
However,
the
hope
and
expectation of the framers of the
Constitution that after independence
every citizen will get equal opportunity
in the matter of employment or
appointment to any office under the
State and members of civil services
would
remain
committed
to
the
Constitution and honestly serve the
people of this country have been belied
by what has actually happened in last
four decades. The Public Service
Commissions which have been given
the status of Constitutional Authorities
and which are supposed to be totally
independent
and
impartial
while
discharging their function in terms of
Article 320 have become victims of
spoil system. In the beginning, people
with the distinction in different fields of
administration and social life were
appointed as Chairman and members
of the Public Service Commissions but
with the passage of time appointment to
these high offices became personal
prerogatives of the political head of the
Government
and
men
with
questionable background have been
appointed to these coveted positions.
Such
appointees
have,
instead of
2 All] Krishna Prasad and another V. State of U.P. and others

973
making selections for appointment to
higher echelons of services on merit,
indulged in exhibition of faithfulness to
their mentors totally unmindful of their
Constitutional responsibility. This is
one of several reasons why most
meritorious in the academics opt for
private employment and ventures. The
scenario is worst when it comes to
appointment to lower strata of the civil
services.
Those
who
have
been
bestowed with the power to make
appointment on Class III and Class IV
posts have by and large misused and
abused the same by violating relevant
rules
and
instructions
and
have
indulged in favouritism and nepotism
with
impunity
resulting
in
total
negation
of
the
equality
clause
enshrined
in
Article
16
of
the
Constitution. Thousands of cases have
been filed in the Courts by aggrieved
persons with the complaints that
appointment to Class III and Class IV
posts have been made without issuing
any
advertisement
or
sending
requisition to the employment exchange
as per the requirement of the 1959 Act
and those who have links with the party
in power or political leaders or who
could
pull
strings in
the
power
corridors get the cake of employment.
Cases have also been filed with the
complaints that recruitment to the
higher strata of civil services made by
the Public Service Commissions have
been affected by the virus of spoil
system in different dimensions and
selections
have
been
made
for
considerations other than merit.

21. Unfortunately, some orders
passed by the Courts have also
contributed to the spread of spoil
system in this country. The judgments
of 1980s and early 1990s show that this
Court gave expanded meaning to the
equality clause enshrined in Articles 14
and 16 and issued directions for
treating temporary/ad hoc/daily wage
employees
at
par
with
regular
employees in the matter of payment of
salaries etc. The schemes framed by the
Governments and public bodies for
regularization of illegally appointed
temporary/ad
hoc/daily
wage/casual
employees got approval of the Courts.
In some cases, the Courts also directed
the
State
and
its
instrumentalities/agencies
to
frame
schemes for regularization of the
services of such employees. In State of
Haryana v. Piara Singh [(1992) 4 SCC
118],
this
Court
reiterated
that
appointment to the public posts should
ordinarily
be
made
by
regular
recruitment through the prescribed
agency and that even where ad hoc or
temporary employment is necessitated
on
account
of
the
exigencies
of
administration, the candidate should be
drawn from the employment exchange
and that if no candidate is available or
sponsored
by
the
employment
exchange, some method consistent with
the requirements of Article 14 of the
Constitution should be followed by
publishing
notice
in
appropriate
manner calling for applications and all
those who apply in response thereto
should
be
considered
fairly,
but
proceeded to observe that if an ad hoc
or temporary employee is continued for
a fairly long spell, the authorities are
duty bound to consider his case for
regularization subject to his fulfilling
the conditions of eligibility and the
requirement of satisfactory service. The
propositions laid down in Piara Singh's
case (supra) were followed by almost all
974 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

High
Courts
for
directing
the
concerned State Governments and
public authorities to regularize the
services of adhoc/temporary/daily wage
employees only on the ground that they
have continued for a particular length
of time. In some cases, the schemes
framed
for
regularization
of
the
services of the backdoor entrants were
also approved. As a result of this,
beneficiaries
of
spoil
system
and
corruption garnered substantial share
of Class III and Class IV posts and
thereby caused irreparable damage to
the service structure at the lower levels.
Those appointed by backdoor methods
or as a result of favoritism, nepotism or
corruption
do
not
show
any
commitment to their duty as public
servant. Not only this, majority of them
are found to be totally incompetent or
inefficient.

22.
In
Delhi
Development
Horticulture Employees Union v. Delhi
Administration,
Delhi
and
others
[(1992) 4 SCC 99], the Court took
cognizance of the illegal employment
market which has developed in the
country and observed:

"Apart from the fact that the
petitioners cannot be directed to be
regularised for the reasons given above,
we may take note of the pernicious
consequences to which the direction for
regularisation of workmen on the only
ground that they have put in work for
240 or more days, has been leading.
Although there is an Employment
Exchange
Act
which
requires
recruitment on the basis of registration
in the Employment Exchange, it has
become a common practice to ignore
the Employment Exchange and the
persons registered in the Employment
Exchanges, and to employ and get
employed directly those who are either
not registered with the Employment
Exchange or who though registered are
lower in the long waiting list in the
Employment Register. The courts can
take judicial notice of the fact that such
employment
is
sought
and
given
directly
for
various
illegal
considerations including money. The
employment
is
given
first
for
temporary
periods
with
technical
breaks to circumvent the relevant rules,
and is continued for 240 or more days
with a view to give the benefit of
regularization knowing the judicial
trend that those who have completed
240 or more days are directed to be
automatically regularized. A good deal
of illegal employment market has
developed resulting in a new source of
corruption and frustration of those who
are
waiting
at
the
Employment
Exchanges for years. Not all those who
gain such backdoor entry in the
employment
are
in
need
of
the
particular
jobs.
Though
already
employed elsewhere, they join the jobs
for better and secured prospects. That
is why most of the cases which come to
the courts are of employment in
government
departments,
public
undertakings or agencies. Ultimately it
is the people who bear the heavy
burden of the surplus labour. The other
equally
injurious
effect
of
indiscriminate regularization has been
that many of the agencies have stopped
undertaking
casual
or
temporary
works though they are urgent and
essential for fear that if those who are
employed on such works are required
to be continued for 240 or more days
they have to be absorbed as regular
2 All] Krishna Prasad and another V. State of U.P. and others

975
employees although the works are timebound and there is no need of the
workmen beyond the completion of the
works undertaken. The public interests
are thus jeopardised on both counts."

(emphasis added)

24. Notwithstanding the critical
observations
made
in
Delhi
Development Horticulture Employees
Union vs. Delhi Administration, Delhi
and others (supra) and State of U.P.
and others v. U.P. State Law Officers
Association and others (supra), illegal
employment market continued to grow
in the country and those entrusted with
the power of making appointment and
those who could pull strings in the
corridors of power manipulated the
system to ensure that their favourites
get employment in complete and
contemptuous disregard of the equality
clause enshrined in Article 16 of the
Constitution and Section 4 of the 1959
Act. However, the Courts gradually
realized that unwarranted sympathy
shown to the progenies of spoil system
has eaten into the vitals of service
structure of the State and public bodies
and this is the reason why relief of
reinstatement and/or regularization of
service has been denied to illegal
appointees/backdoor entrantsin large
number of cases - Director, Institute of
Management Development, U.P. v.
Pushpa Srivastava [(1992) 4 SCC 33],
Dr. M.A. Haque and others v. Union of
India and others [(1993) 2 SCC 213], J
& K Public Service Commission and
others v. Dr. Narinder Mohan and
others
[(1994)
2
SCC
630],
Dr.
Arundhati Ajit Pargaonkar v. State of
Maharashtra and others [1994 Suppl.
(3) SCC 380], Union of India and others
v. Kishan Gopal Vyas [(1996) 7 SCC
134], Union of India v. Moti Lal [(1996)
7 SCC 481], Hindustan Shipyard Ltd.
and others v. Dr. P. Sambasiva Rao and
others [(1996) 7 SCC 499], State of H.P.
v. Suresh Kumar Verma and another
[(1996) 7 SCC 562], Dr. Surinder Singh
Jamwal and another v. State of J&K
and others [(1996) 9 SCC 619], E.
Ramakrishnan and others v. State of
Kerala and others [(1996) 10 SCC 565],
Union
of
India
and
others
vs.
Bishambar Dutt [1996 (11) SCC 341],
Union of India and others v. Mahender
Singh and others [1997] (1) SCC 245],
P. Ravindran and others v. Union
Territory of Pondicherry and others
[1997 (1) SCC 350], Ashwani Kumar
and others v. State of Bihar and others
[1997 (2) SCC 1], Santosh Kumar
Verma and others v. State of Bihar and
others [(1997) 2 SCC 713], State of U.P.
and others vs. Ajay Kumar [(1997) 4
SCC 88], Patna University and another
v. Dr. Amita Tiwari [(1997) 7 SCC 198]
and Madhyamik Shiksha Parishad,
U.P. v. Anil Kumar Mishra and others
[(2005) 5 SCC 122].

26.
In
Secretary,
State
of
Karnataka vs. Uma Devi [2006 (4) SCC
1], the Constitution Bench considered
different facets of the issue relating to
regularization
of
services
of
ad
hoc/temporary/daily wage employees
and unequivocally ruled that such
appointees are not entitled to claim
regularization of service as of right.
After taking cognizance of large scale
irregularities
committed
in
appointment at the lower rungs of the
services and noticing several earlier
decisions,
the
Constitution
Bench
observed:
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"The Union, the States, their
departments and instrumentalities have
resorted to irregular appointments,
especially in the lower rungs of the
service, without reference to the duty to
ensure
a
proper
appointment
procedure through the Public Service
Commissions or otherwise as per the
rules adopted and to permit these
irregular appointees or those appointed
on contract or on daily wages, to
continue year after year, thus, keeping
out those who are qualified to apply for
the post concerned and depriving them
of an opportunity to compete for the
post. It has also led to persons who get
employed, without the following of a
regular procedure or even through the
backdoor
or
on
daily
wages,
approaching
the
courts,
seeking
directions to make them permanent in
their posts and to prevent regular
recruitment to the posts concerned. The
courts have not always kept the legal
aspects in mind and have occasionally
even stayed the regular process of
employment being set in motion and in
some cases, even directed that these
illegal, irregular or improper entrants
be absorbed into service. A class of
employment which can only be called
"litigious employment", has risen like a
phoenix
seriously
impairing
the
constitutional scheme. Such orders are
passed apparently in exercise of the
wide powers under Article 226 of the
Constitution. Whether the wide powers
under Article 226 of the Constitution
are intended to be used for a purpose
certain to defeat the concept of social
justice and equal opportunity for all,
subject to affirmative action in the
matter
of
public
employment
as
recognised by our Constitution, has to
be seriously pondered over. It is time
that the courts desist from issuing
orders preventing regular selection or
recruitment at the instance of such
persons and from issuing directions for
continuance of those who have not
secured regular appointments as per
procedure established. The passing of
orders for continuance tends to defeat
the very constitutional scheme of public
employment. It has to be emphasised
that this is not the role envisaged for
the High Courts in the scheme of things
and their wide powers under Article
226 of the Constitution are not intended
to
be
used for the
purpose
of
perpetuating illegalities, irregularities
or improprieties or for scuttling the
whole scheme of public employment. Its
role as the sentinel and as the guardian
of equal rights protection should not be
forgotten."

"This Court has also on occasions
issued directions which could not be
said
to
be
consistent
with
the
constitutional
scheme
of
public
employment. Such directions are issued
presumably on the basis of equitable
considerations or individualisation of
justice. The question arises, equity to
whom? Equity for the handful of
people who have approached the court
with a claim, or equity for the teeming
millions
of
this
country
seeking
employment
and
seeking
a
fair
opportunity
for
competing
for
employment? When one side of the coin
is considered, the other side of the coin
has also to be considered and the way
open to any court of law or justice, is to
adhere to the law as laid down by the
Constitution
and
not
to
make
directions, which at times, even if do
not run counter to the constitutional
scheme, certainly tend to water down
2 All] Krishna Prasad and another V. State of U.P. and others

977
the constitutional requirements. It is
this conflict that is reflected in these
cases referred to the Constitution
Bench."

While
repelling
the
argument
based on equity, the Constitution Bench
observed:

".....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.

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 in 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."

[emphasis added]

The
Constitution
Bench
then
considered whether in exercise of
power under Article 226 of the
Constitution, the High Court could
entertain
claim
for
regularization
and/or continuance in service made by
those appointed without following the
procedure prescribed in the rules or
who
are
beneficiaries
of
illegal
employment market and held:

"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
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

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. 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.
2 All] Krishna Prasad and another V. State of U.P. and others

979
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.

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.