# SECRETARY, STATE OF KARNATAKA AND ORS v. UMADEVI AND ORS

- **Citation:** [2006] 3 S.C.R. 953
- **Court:** Supreme Court of India
- **Decided:** 2006-04-10
- **Bench:** Y .K. Sabharw Al, Arun Kumar, G .P. Ma Thur, C.K. Thakker, P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/secretary-state-of-karnataka-and-ors-v-umadevi-and-ors-21172
- **Pages:** 46

## Headnote

Service Law:
A
B
Constitution of India, 1950: Articles 14, 16, 21, 23, 226 and 309.
C
Public employment-Daily wage temporary employees-Right of
regularization or permanent absorption-Doctrine of legitimate expectation--
Applicability of-Temporary Government employees engaged on daily wages
Claim for regularization with all the benefits applicable to regular employees
lfn the basis that they worked for more than IO years-Such employees were D
engaged for the first time in the years 1985-86 inspite of orders not to make
such appointments issued in the year 1984-Administrative Tribunal dismissed
their claim for regularization-However High Court held that the said
employees were entitled to wages equal to the salary and allowances that
were being paid to the regular employees of their cadre in Government E
service with effect ji-0111 the dates ji-om which they were respectively appointedCorrectness of-Held: 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-Doctrine of legitimate
expectation is not applicable in such cases-Employment on daily wages did
not amount to forced labour-State action in not regularizing such employees
was not unfair within theji-amework of the rule of law-Hence, a mandamus
could not be issued in favour of the employees direr:ting the Government to
make them permanent since the employees could not show that they have an
enforceable legal right to be permanently absorbed or that the State has a
legal duty to make them permanent-Administrative Law.
Doctrines:
"Doctrine of Legiti1nate Expectation"-Explained
The respondents were temporarily engaged on daily wages in the
953
F
G
H
954
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A Commercial Taxes Department and claimed that they worked in the
department based on such engagement for more than lO years and hence they
were entitled to be made permanent employees of the department entitled to
all the benefits of regular employees. They were engaged for the first time in
the years 1985-86 inspite of orders not to make such appointments issued in
B the year 1984. The Administrative Tribunal dismissed their claim for
regularization. However, the High Court held that the respondents were
entitled to wages equal to the salary and allowances that were being paid to
the regular employees of their cadre in Government service with effect from
the dates from which they were respectively appointed. Hence the appeal.
C
On behalf of the respondents, it was contended that on the basis of the
doctrine of legitimate expectation, the respondents should be directed to be
regularized; that the rights of the respondents thus appointed under Articles
14 and 16 of the Constitution were violated; that employment on daily wages
amounted to forced labour; that a mandamus be issued in favour of such
persons; and that the State action in not regularizing the respondents was
D not fair within the framework of the rule of law.
Disposing of the appeal, the Court
HELD: 1. Public employment in a sovereign socialist secular democratic
republic has to be as set down by the Constitution and the laws made
E thereunder. Our constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a procedure established
in that behalf. Equality of opportunity is the hall mark and the Constitution
has provided also for affirmative action to ensure that unequals are not treated
equals. Thus, any public employment has to be in terms of the constitutional
F scheme. (967-A-BJ
2. A sovereign Government, considering the economic situation in the
country and the work to be got done, is not precluded from making temporary
appointments or engaging workers on daily wages. Going by a law newly
enacted i.e. The National Rural Employment Guarantee Act, 2005; the object
G is to give employment, to at least one member of a family for hundred days in
a year, on paying wages

## Text

_Characters 0–39,967 of 124,514. This is a partial read: ask again with offset=39967 for what follows._

SECRETARY, STATE OF KARNATAKA AND ORS.
v.
UMADEVI AND ORS.
APRIL 10, 2006
[Y .K. SABHARW AL, CJ., ARUN KUMAR, G .P. MA THUR, C.K. THAKKER
AND P.K. BALASUBRAMANYAN, JJ.]
Service Law:
A
B
Constitution of India, 1950: Articles 14, 16, 21, 23, 226 and 309.
C
Public employment-Daily wage temporary employees-Right of
regularization or permanent absorption-Doctrine of legitimate expectation--
Applicability of-Temporary Government employees engaged on daily wages
Claim for regularization with all the benefits applicable to regular employees
lfn the basis that they worked for more than IO years-Such employees were D
engaged for the first time in the years 1985-86 inspite of orders not to make
such appointments issued in the year 1984-Administrative Tribunal dismissed
their claim for regularization-However High Court held that the said
employees were entitled to wages equal to the salary and allowances that
were being paid to the regular employees of their cadre in Government E
service with effect ji-0111 the dates ji-om which they were respectively appointedCorrectness of-Held: 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-Doctrine of legitimate
expectation is not applicable in such cases-Employment on daily wages did
not amount to forced labour-State action in not regularizing such employees
was not unfair within theji-amework of the rule of law-Hence, a mandamus
could not be issued in favour of the employees direr:ting the Government to
make them permanent since the employees could not show that they have an
enforceable legal right to be permanently absorbed or that the State has a
legal duty to make them permanent-Administrative Law.
Doctrines:
"Doctrine of Legiti1nate Expectation"-Explained
The respondents were temporarily engaged on daily wages in the
953
F
G
H
954
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A Commercial Taxes Department and claimed that they worked in the
department based on such engagement for more than lO years and hence they
were entitled to be made permanent employees of the department entitled to
all the benefits of regular employees. They were engaged for the first time in
the years 1985-86 inspite of orders not to make such appointments issued in
B the year 1984. The Administrative Tribunal dismissed their claim for
regularization. However, the High Court held that the respondents were
entitled to wages equal to the salary and allowances that were being paid to
the regular employees of their cadre in Government service with effect from
the dates from which they were respectively appointed. Hence the appeal.
C
On behalf of the respondents, it was contended that on the basis of the
doctrine of legitimate expectation, the respondents should be directed to be
regularized; that the rights of the respondents thus appointed under Articles
14 and 16 of the Constitution were violated; that employment on daily wages
amounted to forced labour; that a mandamus be issued in favour of such
persons; and that the State action in not regularizing the respondents was
D not fair within the framework of the rule of law.
Disposing of the appeal, the Court
HELD: 1. Public employment in a sovereign socialist secular democratic
republic has to be as set down by the Constitution and the laws made
E thereunder. Our constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a procedure established
in that behalf. Equality of opportunity is the hall mark and the Constitution
has provided also for affirmative action to ensure that unequals are not treated
equals. Thus, any public employment has to be in terms of the constitutional
F scheme. (967-A-BJ
2. A sovereign Government, considering the economic situation in the
country and the work to be got done, is not precluded from making temporary
appointments or engaging workers on daily wages. Going by a law newly
enacted i.e. The National Rural Employment Guarantee Act, 2005; the object
G is to give employment, to at least one member of a family for hundred days in
a year, on paying wages as fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to, when regular vacancies in
posts, at a particular point of time, are to be filled up and the filling up of
those vacancies cannot be done in a manner or based on patronage or other
considerations. Regular appointment must be the rule. (967-C-Dl
H
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SECRET ARY, STATE OF KARNATAKA v. UMADEVI
955
3. But, sometimes this process is not adhered to and the Constitutional A
scheme of public employment is by-passed. 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
Commission or otherwise as per the rules adopted and to permit these B
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 following a
regular procedure or even through the backdoor or on daily wages,
approaching Courts, seeking directions to make them permanent in their posts C
and to prevent regular recruitment to the concerned posts. 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' D
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 oflndia. Whether the wide powers under Article 226
of the Constitution is 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 1·ecognized.by our Constitution, E
has to be seriously pondered over. lt is time that 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 emphasized that this is not the role envisaged for.
High Courts in the scheme of things and their wide powers under Article
F
226 of the Constitution of India 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
guudian of equal rights protection should not be forgotten.
G
[967-E-H; 968-A-C]
4. 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 individualization of justice. The question arises, equity to whom? Equity H
956
Sl1PREME COURT REPORTS
[2006) 3 S.C.R.
A 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 ~oin, 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
B counter to the Constitutional scheme, certainly tend to water down the
Constitutional requirements. 1968-D-FI
5. The power of a State as an employer is more limited than that of a
private employer inasmuch as it is subjected to constitutional limitations and
C cannot be exercised arbitrarily. Article 309 of the Constitution gives the
Government the power to frame rules for the purpose of laying down the
conditions of service and recruitment of persons to be appointed to public
services and posts in connection with the affairs of the Union or any of the
States. That Article contemplates the drawing up of it procedure and rules to
regulate the recruitment and regulate the service conditions of appointees
D appointed to public posts. It is well acknowledged that because of this, the
entire process of recruitment for services is controlled by detailed procedure
which specifies the necessary qualifications, the mode of appointment etc. If
rules have been made under Article 309 of the Constitution, then the
Government can make appointments only in accordance with the rules. The
E State is meant to be a model employer. The Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal
opportunity for employment seekers. Though this Act may not oblige an
employer to employ only those persons who have been sponsored by
employment exchanges, it places an obligation on the employer to notify the
vacancies that may arise in the various departments and for filling up of those
F vacancies based on a procedure. Normally, statutory rules are framed under
the authority of law governing employment. It is recognized that no
Government order, notification or circular can be substituted for the statutory
rules framed under the authority of law. This is because following any other
course could be disastrous inasmuch as it will deprive the security of tenure
G and the right of equality conferred on civil servants under the Constitutional
scheme. It may even amount to negating the accepted service jurisprudence.
Therefore, when statutory rules are framed under Article 309 of the
Constitution which are exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed. [968-F-H; 969-A-DI
H
Basu: "Shorter Constitution of India", referred to.
),_
I
7
SECRETARY, STATEOFKARNATAKAv. UMADEVI
957
6. In addition to the equality clause represented by Article 14 of the A
Constitution, Article 16 has specifically provided for equality of opportunity
in matters of public employment. Buttressing these fundamental rights, Article
309 provides that subject to the provisions of the Constitution Acts of the
legislature may regulate the recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the B
Union or of a State. In view of the interpretation placed on Article 12 of the
Constitution by this Court, obviously, these principles also govern the
instrumentalities that come within the purview of Article 12 of the
Constitution. With a view to make the procedure for selection fair the
Constitution by Article 315 has also created a Public Service Commission
for the Union and Public Service Commissions for the States. Article 320 C
deals with the functions of Public Service Commissions and mandates
consultation with the Commission on all matters relating to methods of
recruitment to civil services and for civil posts and other related matters. As
a part of the affirmative action recognized by Article 16 of the Constitution,
Article 335 provides for special consideration in the matter of claims of the
' members of the scheduled castes and scheduled tribes for employment. The
States have made Acts, Rules or Regulations for implementing the above
constitutional guarantees and any recruitment to the service in the State or
in the Union is governed by such Acts, Rules and Regulations. The
Constitution does not envisage any employment outside this constitutional
D
scheme and without following the requirements set down therein.
E
1972-F-H; 973-A-BJ
7. Inspite 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 dutil\s in respect of the F
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
post or projects that are not needed permanently. This right of the Union or
of the State Government cannot but be recognized and there is nothing in the
Constitution which prohibits such engaging of persons temporarily or on daily G
wages to meet the needs of the situation. Bufthe 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 p:irticular project is completed. Once this right of the Government is
recognized and the mandate of the constitutional requirement for public H
958
SUPREME COURT REPORTS
[2006) 3 S.C.R.
A employment is respected, there cannot be much difficulty in coming to the
conclusion that it is ordinarily not proper for 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
B scheme. [973-C-Fl
8. 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 lime. Such considerations can have only a limited role to play when
C 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 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
D of public employment while adopting the Constitution. The approving of such
acts also results in depriving many of their opportunity to compete for public
employment. The question, therefore, has to be considered objectively and
based on the constitutional and statutory provisions. [973-G-H; 974-AJ
E
F
State of Punjab v. Jagdip Singh, [ 1964 J 4 SCR 964, relied on.
9. Even at the threshold, it is necessary to keep in mind the distinction
between regularization and conferment of permanence in service
jurisprudence. [975-B]
B.N Nagarajan v. State of Karnataka, [1979] 3 SCR 937, relied on.
Dharwad District Public Works Department v. State of Karnataka,
[1990) l SCR 544, State of Mysore v. S. V Narayanappa, [1967] I SCR 128
and R.N. Nanjundappa v. T. Thimmiah. [197212 SCR 799, referred to.
10. The executive, or for that matter the Court, in appropriate cases,
G would have only the right to regularize 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 appointm~nt made in clear violation of the constitutional scheme
H and the statutory rules made in that behalf, can be treated as permanent or
' -
•
>
' ,
SECRETARY, STATE OF KARNATAKA v. UMADEVI
959
can be directed to be treated as permanent. [976-B-CJ
Daily Rated Casual Labour v. Union of India, [19881 1 SCR 598 and
Bhagwati Prasad v. Delhi State Mineral Development Corporation, [1989)
Supp. (2) SCR 513, overruled.
A
11. One aspect arises. Obviously, the State is also controlled by B
economic considerations and financial implications of any public employment.
The viability of the department or the instrumentality or of the project is also
of equal concern for the State. The State works out the scheme taking into
consideration the financial implications and the economic.aspects. The court
cannot impose on the State a financial burden of this nature by insisting on C
regularization or permanence in employment, when those employed
temporarily are not needed permanently or regularly. As an example a
direction to give permanent employment to all those who are being temporarily
or casually employed in a public sector undertaking can be envisaged. The
burden may become so heavy by such a direction that the undertaking itself
may collapse under its own weight. It is not as if this had not happened. So, D
the court ought not to impose a financial burden on the State by such
directions as such directions may turn counter-productive.
(976-H; 977-A-BJ
12. Regular recruitment should be insisted upon; only in a contingency
an ad hoc appointment can be made in a permanent vacancy, but the same E
should soon be followed by a regular recruitment and that appointments to
non-available posts should not be taken note of for regularization. The cases
directing regularization have mainly proceeded on the basis that having
permitted the employee to work for some period, he should be absorbed, without
really laying down any law to that effect, after discussing the constitutional
scheme for public employment. [948-F-G)
F
State of Punjab v. Surinder Kumar, (19911 Supp. 3 SCR 553, Director,
Institute of Management v. Pushpa Srivastava (Smt.), [19921 3 SCR 712,
Madhyamik Shiksha Parishad v. Anil Kumar Mishra, AIR (1994) SC 1638,
State of Himachal Pradesh v. Suresh Kumar Verma, (199611SCR972 and
Ashwani Kumar v. State of Bihar, ( 1996) Supp. 10 SCR 120, relied on.
G
Dharwad District Public Works Department v. State of Karna/aka,
(1990( I SCR 544 and R.N. Nanjundappa v. T Thimmiah, (1972) 2 SCR 799,
referred to.
State of Haryana v. Piara Singh, (1992) 3 SCR 826, overruled.
H
960
SUPREME COURT REPORTS
(2006) 3 S.C.R.
A
13. 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
B 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
C 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
D 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. High Courts acting under
E Article 226 of the Constitution of Jndia should not ordinarily issue directions
for absorption, regularization, 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 Court, which has been described as 'litigious employment' in the earlier
F
part of the judgment, he would not be entitled to any right to be absorbed or
made permanent in the service. rn fact, in such case, 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
G 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. 1989-C-H; 990-A-BI
H
\
•
SECRETARY, STATEOFKARNATAKAv. UMADEVI
961
A. Umarani v. Registrar, Cooperative Societies, (2004] 7 SCC 112, State A
of UP. v. Niraj Awasthi, (2006] 1 SCC 667, State of Karnataka v. KGSD
Canteen Employees' Welfare Association, JT (2006) 1 SC 84 and Union Public
Service Commission v. Girish Jayanti Lal Vaghela, (2006) 2 SCALE 115,
relied on.
Teri Oat Estates (P) Ltd. v. U. T. Chandigarh, (2004) 2 SCC 130 and B
Latham v. Richard Johnson & Nephew Ltd., (1913) 1 KB 3988, referred to.
14. 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 C
'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 D
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. (990-C-EI
E
Kesavananda Bharati v. State of Kera/a, [ 1973] Supp. SCR I, Indra
Sawhney v. Union of India, [19921Supp.2 SCR 454 and Dr. D.C. Wadlnva v.
State of Bihar, [1987] I SCR 798, relied on.
The Workmen of Bhurkunda Colliery of Mis Central Coalfields Ltd. v.
The Management of Bhurkunda Colliery of Mis Central Coalfields Ltd., JT F
(2006) 2 SC 1 and Indira SawhnMy v. Union of India, [1999] Supp. 5 SCR
229, referred to.
15. While directing that appointments, temporary or casual, be
regularized or made permanent, courts are swayed by the fact that the G
concerned person has worked for some time and in some cases for a
considerable length of time. It is not as i( 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 eyes open . .It may be true
that he is not in a position to bargain - not at arms length - since he might
have been searching for some employment so as to eke out !iis livelihood and H
962
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A accept 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
B 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
C 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.
D 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
E for making regular appointments to available posts in the services of the State.
F
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 of India.
[991-A-GJ
16.1. The doctrine of legitimate expectation can be invoked if the
decisions of the Administrative Authority affect the person by depriving him
G 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 he is communicated 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
H contending that they should not be withdrawn. [992-A-CI
---
SECRETARY, STATE OF KARNA I AKA v. UMADEVI
963
National Buildings Construction Corpn. v. S. Raghunathan, [1998] 7 A
SCC 66 and Dr. Chanchal Goyal v. State of Rajasthan, (2003] 3 SCC 485,
relied on.
Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Services (1985) AC 374, referred to.
16.2. There is no case that any assurance was given by the Government
or the concerned department while making the appointment on daily wages
that the status conferred on him will not be withdrawn until some rational
B
reason comes into existence for withdrawing it. The very engagement was
against the constitutional scheme. Though, the Commissioner of the C
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 the Dharwad decision. Though,
there is a case that the State had made regularizations in the past of similarly
situated employees, the fact remains that such regularizations were done only D
pursuant to judicial directions, either of the Administrative Tribunal or of
the High Court and in some case 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 regularized in the service
though they had not been selected in terms of the roles for appointment. The
fact that in certain cases the court had directed regularization of the
employees involved in those cases cannot be made use ofto 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. (992-D-G)
Dharwad District Public Works Department v. State of Karnataka,
( 1990] 1 SCR 544, referred to.
E
F
16.3. 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 recognized by the relevant rules or procedure, G
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
concerned cases, in consultation with the Public Service Commission.
Therefore, the theory of legitimate expectation cannot be successfully advanced H
964
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A 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.
B
(992-H; 993-A-BJ
17. The employees were engaged on daily wages in the concerned
department 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
C 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 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
D 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
E be extended to a claim for equal treatment with those who were regularly
employed. That would be treating unequals as equals. lt 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.
(993-D-GJ
F
18. The rule of law compels the State to make appointments as envisaged
by the Constitution and in the manner that has been 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,
G 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.
H When the court is approached for relief by way of a writ, the court has
·-
---........
SECRETARY, STATE OF KARNATAKA v. UMADEVI
965
necessarily to ask itself whether the person before it had any legal rightto A
be enforced. Considered in the light of the very clear constitutional scheme,
it cannot be said that the employees have been able tf}'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.
(994-A-DJ B
19. 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 C
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 of India, a set of persons
cannot be preferred.over a vast majority of people waiting for an opportunity D
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 this Court is 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 E
Constitntion 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. Importing of these
theories to defeat the basic requirement of public employment would defeat F
the constitutional scheme and the constitutional goal of equality.
[994-E-H; 995-A]
20. The argument that the right to life protected by Article 21 of the
Constitution of India would include the right to employment cannot also be
accepted at this juncture. The law is dynamic and our Constitution is a living G
document. Maybe 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
this Court would lead to the consequence of depriving a large number of other H
966
SUPREME COURT REPORTS
(2006] 3 S.C.R.
A 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 back door. The obligation cast l){I the State under Article 39(a) of the
Constitution of India is to ensure thatoft;ll citizens equally have the right to
B adequate means of livelihood. It will be more consistent with that policy if the
courts recognize 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 recognized by the relevant legislation in the context of the relevant
provisions of the Constitution. In the name of individualizing justice, it is also
not possible to shut one's eyes to the constitutional scheme and the right of
C 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 citizens under Part Ill of the Constitution and the obligation of the State
to one and all and not to a particular group of citizens. The argument based
on Article 21 of the Constitution is overruled. (995-B-El
D
21. 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. (996-AI
Dr. Rai Shivendra Bahadur v. The Governing Body of the Na/anda
E Co!fege, 119621Supp.2 SCR 144, relied on.
F
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3595-3612/1999.
From the Judgment and Order dated 11.9.1998 of the High Court of
Karnataka at Bangalore in W.P. Nos. 3190-320711998.
WITH
C.A. Nos. 1861-2063/2001, 3849/2001, 3520-3524/2002 and 1968/2006.
Mukul Rohtagi, M.C. Bhandare, Raju Ramachandran, Sanjay R. Hegde,
Saurabh Kirpal, Anil K. Mishra, A. Rohen Singh, Mohan V. Katarki, M.A.
Limbikai, Ashok Kumar Sharma, Naveen R. Nath, Ranganath Jois, M. Anitha
G Shenoy, Ms. Lalit Mohini Bhat, Pooja Dhar, Saurabh Sinha, Joseph Pookkatt,
Arvind Karnath, Simanti Chakrabarti, Basava Prabhu S. Patil, A.S. Bhasme, B.
Subrahmanya Prasad, V. Laxminarayana, Kashi Vishweshwar, Nikhil Majithia,
Prashant Kumar, Rajesh Mahale and S. Manjunath for the appearing parties.
The Judgment of the Court was delivered by
II
P.K. BALASUBRAMANYAN, J. Leave granted in SLP(C) Nos.9103I
(
.J
SECRETARY, ST ATE OF KARNATAKA v. UMADEVI [BALASUBRAMANYAN,J.] 967
9105 of2001
A
1. Public employment in a sovereign socialist secular democratic republic,
has to be as set down by the Constitution and the laws made thereunder. Our
constitutional scheme envisages employment by the Government and its
instrumentalities on the basis of a procedure established in that behalf.
Equality of opportunity is the hallmark, and the Constitution has provided B
also for affirmative action to ensure that unequals are not treated equals.
Thus, any public employment has to be in terms of the constitutional scheme.
2. A sovereign government, qmsidering the economic situation in the
country and the work to be got done, is not precluded from making temporary
appointments or engaging workers on daily wages. Going by a law newly C
enacted, The National Rural Employment Guarantee Act, 2005, the object is
to give employment to at least one member of a family for hundred days in
an year, on paying wages as fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to, when regular vacancies in
posts, at. a particular point of time, are to be filled up and the filling up of D
those vacancies cannot be done in a haphazard manner or based on patronage
or other considerations. Regular appointment must be the rule.
3. But, sometimes th is process is not adhered to and the Constitutional
scheme of public employment is by-passed. The Union, the States, their
departments and instrumentalities have resorted to irregular appointments, E
especially in the lower rungs of the service, without reference to the duty to
ensure a proper appointment procedure through the Public Service Commission
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 F
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 Courts, seeking
directions to make them permanent in their posts and to prevent regular
recruitment to the concerned posts. Courts have not always kept the legal
aspects in mind and have occasionally even stayed the regular process of G
employment being set in motion and in some cases, even directed that these
illegal, irregular or .improper entrants be absorbed into service.