This article is written by Sudhakar Singh. The article deals with the case of State of Karnataka vs Umadevi along with the facts, issues and Judgement. This article provides an in-depth analysis of laws related to equality of opportunity in public employment and the power of the State to make rules and regulations regarding public services, with reference to directions given by the Supreme Court on regularisation of employees. 

Equality is a simple yet powerful idea that everyone should be treated fairly and receive the same opportunities. It means that no one should be favoured or discriminated against because of factors like their race, gender, religion, or background. Imagine a world where everyone has the same chance to succeed, regardless of where they come from or who they are. That’s what equality is all about.

The concept of equality refers to creating a level playing field for every person. It is not about treating all individuals the same way, since different people have different needs and circumstances. Instead, it is about ensuring that everyone has access to what they require to thrive and reach their full potential. This might mean providing extra support to those who need it or removing barriers that restrict certain groups.

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Equality is important because it promotes fairness and justice in society. When everyone is treated equally, it helps to build trust and harmony among people. It also ensures that everyone has the chance to contribute to their community and make a positive impact. In short, equality is about creating a world where everyone has the opportunity to succeed and live a fulfilling life, regardless of who they are.

Equality before law is ensured by our constitution of India, under Article 14. The Indian Constitution ensures equality in every possible aspect of life. Article 16 is a facet of Article 14. Both provisions are closely interconnected. Article 14 talks about equality in a general sense and Article 16 is more detailed and identifies equality of opportunity with respect to employment. 

In State of Karnataka v. Umadevi (2006), the Supreme Court has laid down a law which is to be considered while dealing with a question of integration, absorption or permanent employment of any daily-wage, casual or temporary employee. 

Case name: Secretary, State of Karnataka and others vs. Umadevi and others 

Appellant: Secretary, State of Karnataka and others

Respondent: Umadevi and others

Case type: Civil Appeal  

Court: Supreme Court

Bench: Y.K. Sabharwal Chief Justice, Arun Kumar, G.P. Mathur, C.K. Thakkar and P.K. Balasubramanyan JJ. 

Date of judgement: 10th April, 2006

Citation: (2006) 4 SCC 1

Laws discussed in the case: Article 14, Article 16 and Article 309 of Indian Constitution

In Civil Appeals Nos, 3595-3612 of 1999, the respondents claimed that they were employed as temporary wage workers for more than 10 years by the Commercial Tax Department in the State of Karnataka and hence were entitled to be made permanent employees of the department. The Director of the Commercial Tax Department was in favour of absorption of such workers. However, the Government rejected such a recommendation. Therefore, the respondent appealed before the Administrative Tribunal, which rejected such appeal by stating that the respondent possessed no right to receive wages equal to that of regular employees, and had no right to get regularised. The respondent approached the High Court against the order of the Administrative Tribunal. The High Court ordered that the employees are entitled to get wages equal to the salary and allowances of regular employees of their cadre in government services, with effect from the dates of their respective appointment. It was also ordered to consider the regularisation of these employees within four months of the order. It was noticed that the High Court judgement has had a retrospective effect by more than 12 years. The High Court order was based on the precedent of Dharwad Distt. P.W.D Literate Daily Wages Employees v. State of Karnataka, (1990), and on the ground that since the employees had worked under the department for more than 10 years they were entitled to equal pay for equal work since the inception of their engagement and also to be regularised in their respective employment.  

In Civil Appeal Nos. 1861-2063 of 2001, the appellant’s association appealed to the High Court, by way of a writ petition under Article 226 of the Constitution, challenging the Government’s order to cancel all appointments of casual workers and daily wage workers made after July 1, 1984. They also sought the regularisation of all daily-wage workers employed by the Karnataka Government and its local bodies. The appeal was allowed and the judge ordered that they be paid wages at par with that of a regular employee and also their employer’s to consider regularisation. The State of Karnataka went on to appeal this decision. The Division Bench of the High Court allowed the appeal, and decided that daily wage workers who were employed in government agencies or other statutory bodies, after 7th July, 1984 were not eligible to receive benefits under the provision established by the Supreme Court in the case of Dharwad Distt. P.W.D Literate Daily Wages Employees v. State of Karnataka, (1990).

Unhappy with these decisions, the members of the associations filed an appeal before the Supreme Court. Since it was observed that there were contradicting opinions from various benches, the matter was referred to a three-judge bench, who eventually referred the matter to a Constitution Bench.

  • Whether the respondents working under different services as a temporary, daily wages worker, are entitled for regularisation?
  • Whether the daily wage or temporary workers are entitled to get equal pay for equal work ?
  • Whether under Article 309 of the Indian Constitution, the State can make any laws regarding employment ? 
  • Whether the Supreme Court should provide justice on the basis of each situation or should take the interests of the population as a whole into consideration? 

Appellant 

  • There exist several court orders allowing the absorption of employees without taking the relevant legal principles into consideration. The counsel for the appellant, Mr. Lakshmi Narayan submitted that this has led to confusion and hence, the Court must establish clear legal standards regarding the matter at hand.

Respondent

  • It was submitted by the counsel, Mr M.C. Bhandare, that the scheme for regularisation is consistent with the provision of Article 14 and Article 21 of the Constitution. It was contended that state action of not regularising the employees would be violative of the rule of law.
  • The counsel argued that in the Dharwad case, Piara Singh case, Gujarat Agricultural University case, etc., regularisation of employees temporarily employed at any point of time, was ordered. Denying the regularisation of employees would mean the discrimination against employees similarly situated. Therefore, all the employees appointed on daily wages, contractual or temporary basis, should be directed to be regularised. 
  • It was also stated that since some person has been appointed in the post for a long time, if they are discontinued from their employment, it would be unfair to them. Even if they were aware of the nature of their employment. The bargaining power between employers and employees are unequal therefore the action of the government of not making employees permanent would be violative of Article 21. 

Provisions under the Constitution of India

Article 14: Equality before law 

The underlying object of Article 14 is to secure to all persons (both citizens and non-citizens), the equality of status and opportunity referred to in the Preamble to our Constitution. The meaning of the term ‘person’  is gender neutral and also covers transgenders. They are entitled to legal protection of civil and citizenship rights, as enjoyed by every person in India.

Article 14 embodies the principle of non-discrimination. However, it is not a free standing provision. It has to be read in conjunction with rights conferred by other articles, such Article 21 of the Constitution, which guarantees the right to life and embodies several aspects of leading a dignified life. It includes “opportunity”. Articles 14 and 21 are the heart of the fundamental rights.

The underlying purpose of Article 14 is to treat all persons similarly circumstanced alike, both in privileges conferred and liabilities imposed. Classification must not be arbitrary but must be rational, that is to say it must not only be based on some qualities or characteristics which are found in all persons grouped together and not in others who are left out, but those qualities and characteristics must have reasonable relation to the object of legislation.

Equality before law and equal protection of laws is the quintessence of Right to Equality, a Fundamental Right guaranteed under the Constitution of India. Equals cannot be treated unequally. Right to such equality cannot be arbitrarily denied to the equals in the absence of a valid classification.

Article 16: Equality of opportunity in matters of public employment

Article 16 of the Indian Constitution envisions public employment as a component of the right to equality. The appointment to posts must be made while providing equal opportunity to duly qualified citizens to get selected. Article 16(2) prohibits the discrimination of citizens or disqualifies any citizens from holding any public position under the state on the basis of their race, religion, caste, sex, descent, place of birth, place of residence, etc. However, appropriate personnel categorization and reasonable selection procedures are not prohibited. The Parliament may enact legislation specifying residency requirements in a State or Union in accordance with Article 16(3). Article 16(4) states that the State can prioritise backward classes of citizens in appointments or postings which, in the opinion of the State, are not adequately represented in the public services. The court is not obligated to assess the soundness of a State’s reservation policy, since various States may employ different approaches.

Article 309: Recruitment and conditions of service of persons serving the Union or a State

Article 309 of the Indian Constitution governs the recruitment and working conditions of Union and State employees. The article empowers the President or Governor of a state to control the recruitment and terms of service of people appointed to public services.

Article 309 is crucial since it provides for the maintenance of administrative control as well as the systematic control of government employee recruitment and service conditions. The article provides a framework within which civil services function, ensuring that there are clear and uniform standards controlling the terms of employment for government employees.

By establishing a legal foundation for service standards, this provision contributes to the integrity of the public service system, which is important to the administration and execution of government plans and programs.

The judgement of the Supreme Court regarding the various appeals is as follows- 

  • With respect to the Commercial Taxes Department, the High Court had directed that those who are employed on daily wages, should be paid wages equal to that of  regular employees employed in the same cadre in government service. It was also directed that the order will take effect from the dates from which they were appointed to their employees. This Court held that the High Court should have directed the daily wage workers to be paid salaries equal to that of the lowest grade of government employees in their cadre, working in the Commercial Taxes Department from the date of its judgement and not from the date of their appointment. Court waived the age restriction imposed for the recruitment in Tax Department similarly situated, and also significant weightage to that applicant who has been working in department for a significant period of time. 
  • With regard to Civil appeal Nos. 1861-2063 of 2001, the Supreme Court decided that since the appointments or engagements were made against the directions of the Government, such appointments or engagement would be impermissible. Therefore, no relief can be granted to the appellants.

Rationale behind the judgement

The Supreme Court laid down various reasons to conclude on such a judgement. 

Public employment

In a sovereign socialist secular democratic republic country, public employment must comply with the rules laid down in the Constitution and the laws enacted under it. According to our constitutional scheme, employment by the government and its agencies will take place in accordance with a method expressly given for that purpose. The core principle is equality of opportunity. It ensures that un-equals are not treated equally. Therefore, the public sector is not in contravention of the constitutional framework.

The Central/State Governments can appoint temporary employees or hire people on a daily wages basis, after taking into consideration the economic stability of the country/state. According to the National Rural Employment Guarantee Act, 2005, which was passed into the law, the objective is to provide employment to at least one family member for 100 days a year, with salaries specified under the Act. When there are regular vacancies in posts, at specific periods of time, such vacancies cannot be filled up in an irregular manner. Regular appointments must be the rule.

With regard to equality under Article 14, various acts, rules, regulations for recruitment of employees in state or in union, have been enacted. Under Article 315 (public service commissions for the Union and for the States), and Article 320 (functions of public service commissions) of the Constitution, a public service commission has been established for all matters related to recruitment in civil services, civil post and other related matters. 

There arise occasions when the State has to employ a person on temporary or daily wage basis to discharge certain duties or to urgently fill a post, which is otherwise mandated to be filled by regular appointment procedures. The Constitution does not prohibit such engagements by the State or the Union. However this must not go against the fair recruitment process set up for permanent public employment. Courts acting under Article 226 and Article 32, should not intervene in such temporary employment, unless proper procedure was followed for the same.

It was argued that temporary employees who have worked for a long period should be engaged as permanent employees. However, this would not be in line with the rule law, since they would not have to go through the established procedure. Every qualified citizen has a right to apply for appointment, but temporary employees would get an unfair advantage if regularisation is applied to them. Any order of regularisation to such appointments would perpetuate the illegalities and defeat the constitutional provision regarding public employment. In State of Punjab v. Jagdip Singh and Ors. (1964), it was stated that when any government authority acting beyond its capacity, gives a person a status to which he is not legally entitled, it will not be accepted as valid under the law.

It is important for courts to keep in mind the distinction between “regularisation” and conferment of “permanence” in employment. State of Mysore v. S. V. Narayanappa (1967) stated that regularisation does not refer to making a temporary employment permanent. In R.N. Nanjundappa v. T. Thimmiah (1972) as well, the same was reiterated. The court explained that regularisation means rectifying minor procedural errors while hiring, provided that the appointment was legal. If the appointment has been made by violation of constitutional scheme and it is inconsistent with the rules of appointment, then such illegality cannot be regularised. Regularisation cannot be ordered when the authority has not acted within its conferred power. The entire appointment procedure gets affected because of this. Regularisation cannot be set as another mode of recruitment. The case of B.N. Nagarajan v. State of Karnataka (1979) also stated that the terms “regular” and “regularisation” do not mean the same as “permanence”, and it does not convey an idea regarding the tenure of appointments. These terms basically condone any procedural irregularities and are helpful in removing such irregularities in making an appointment. This Court has emphasised several times that if there are any rules regarding the appointment of employees under Article 309, then the Government cannot exercise its executive power under Article 162 in a way that would violate these rules. Thus, in other words, courts and the Executive can regularise appointments only if the appointment is made after following due procedure. 

The Court observed that the financial impact of public employment must also be taken into consideration. Making temporary employment permanent could contribute to financial burden. For example, if all temporary workers in a public undertaking are made permanent workers, the financial stress of the same could shut down the entire undertaking. Such instances have taken place before.

The Dharwad District case dealt with the concept of equal pay for equal work and a scheme related to the regularisation of employees appointed without following the relevant rules of appointment was implemented by the State of Karnataka, as directed by the Supreme Court. Such directions were made without keeping in mind the distinction given in R.N Nanjundappa v. T. Thimmiah (1972), and any other constitutional requirements. The decision in the Dharwad District case cannot be said to lay down a law, as the directions were against the constitutional scheme and principle of equality. 

The decision in State of Haryana v. Piara Singh (1992), was also along the same lines and cannot be treated as law in the matter of public employment. Conferring permanence on ad hoc, temporary or casual employees goes against the constitutional scheme. This Court stated that while the government has the responsibility of making and scrapping jobs, it is the duty of the courts to ensure that legal rules and fundamental rights are kept in mind while doing so. The government must not exploit the employees and adhere to the principles of equality, which includes paying equal pay for equal work and not encouraging long-term temporary employment. There are times when temporary employment is required. However, such employees should be replaced by regularly selected candidates, at the earliest. Temporary employees can apply again through the prescribed process for permanent employment, and if not selected, must make way through those who are. This ensures fairness. An unqualified person must be considered only in a situation wherein no qualified person is available. Furthermore, if a temporary employee continues for a significant length of time and is qualified for regular recruitment, then he can be regularised. Such appointments must not violate the reservation policy of the state.  

The case of State of Punjab vs Surinder Kumar and ors (1991) was concerned with whether High Courts, like the Supreme Court under Article 142, is authorised to grant relief to temporary employees. It was held that High Courts lack such jurisdiction and cannot issue directions for regularisation of employees in public employment. A previous Supreme Court order cannot be used as a precedent. The decision was made against the constitutional scheme of appointment and was made in the absence of power of the High Court.

In Director, Institute of Management Development, U.P. v. Pushpa Srivastava (1992) it was held that if the appointment is contractual in nature, the employment ends when the contract expires and a temporary employee cannot continue to work on the basis of a claim that they should be promoted to permanent status. Furthermore, in the State of H.P. V. Suresh Kumar Verma (1996), the court explained that on such dismissal after the ending of the contract of employment, that person cannot be appointed to any other vacant post. It was stated that if orders were made to rehire such employees for other jobs or vacant posts, the legal system would become another method of appointment, which would not be valid since the process of recruitment would not be followed. Madhyamik Shiksha Parishad, U.P. V. Anil Kumar Kum Mishra (2005) emphasised that the concept of “equal pay for equal work” does not mean that an appointment which has been made through irregular procedure, that is, ad hoc or casual employment, should be made permanent. Ad hoc employees/temporary employees, even if their working period lasted for 1-2 years, are not entitled to reintegration or regularisation of their services. Similar observations were made in A. Umarani v. Registrar, Coop. Societies (2004).

While dealing with the issue of confirming employees whose entry was illegal and void, the case of Ashwani Kumar v. State of Bihar (1997) noted that if a candidate is appointed irregularly or on an ad hoc basis to an available vacancy, the question of confirming or regularising the appointment will eventually arise. However, the question of regularising the person who holds such a vacant post, would never be considered if the initial entry itself is unauthorised and does not relate to any available vacancy. Even if such regularisation or permanence is granted, it would not be a useful action. 

Misplaced sympathy should not be used as grounds for exercising jurisdiction under Article 142 of the Constitution. When a person takes up a temporary or casual engagement, they are aware of the nature of their work. They accept the job with open eyes. It would not be appropriate to go against the constitutional system of appointments on the sole basis that someone who has worked on a temporary basis, for a considerable amount of time, should be allowed to stay in that position indefinitely. This will establish a kind of public appointment which is prohibited. Feelings of empathy cannot serve as justification for issuing an order for permanence if the concerned persons fail to establish a legal backing for their employment. While under Article 142, the Supreme Court has an exclusive jurisdictional power to lay down laws, the Court must not establish such laws which would violate any constitutional provision. This was laid down in the case of Teri Oat Estates (P) Ltd. v. U.T., Chandigarh, (2004)

The case of State of U.P. v. Neeraj Awasthi (2006) stressed on the fact that Article 162 of the Constitution does not authorise any State to make appointments, and even if it does, no appointments should be made in contravention of legal/statutory requirements. Even if such a power existed, an appointment made in contravention of such statutory rules, would be invalid anyways. Regularisation of appointment in the past, is not a guarantee of a right to regularisation of appointment in the future. Furthermore, High Courts are not competent to create employment through regularisation of ad hoc, daily wages or temporary employees. This was reiterated in State of Karnataka vs. KGSD canteen Employees welfare Association (2006).

Since the rule of law is the foundation of our Constitution, a court would certainly retrain itself from passing any order, violating Article 14 or in which the requirements of Article 14 read with Article 16 of the Constitution are not taken into account. Compliance with the rule of equality in hiring by the government is a fundamental feature of our Constitution.

Union Public Service Commission v. Girish Jayanti Lal Vaghela (2006) emphasised on the need to follow the recruitment procedure and discussed the same. 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” covers the initial appointment and other attributes of service like promotion and age of superannuation, etc. A committee of experts may select candidates for any post under the state only after a proper advertisement calling for applications from eligible candidates has been made. The committee must conduct an interview or written examination or other reasonable methods, to determine the candidate’s eligibility. This ensures fairness and transparency. If an appointment was made without completing an adequate hiring process as required by the relevant laws, then the temporary employee or casual wage worker would not be eligible to be made permanent or absorbed into regular service simply on the basis of continuation. 

The High Courts acting under Article 226 of the Constitution, should not 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 as a litigious employee, he would not be entitled to any right to be absorbed or made permanent in the service. 

Doctrine of legitimate expectations

Here, the doctrine of legitimate expectations means that employees, especially those in the Commercial Taxes Department, must be regularised because of the expectations created by past judgements in favour of the same. This doctrine can be invoked only if the decisions of the administrative authority affect the person by depriving him of: 

  • Some benefits which were permitted by the authorities were enjoyed by him in the past, and he was made to believe that he could enjoy such benefits unless there is a rational ground to withdraw it.  
  • He had received assurance from the decision-maker that such benefits would not be withdrawn without first giving him the opportunity to state the grounds for not doing so.

In the present case, no such assurance of future regularisation was given by the government or the concerned department. Even though the Commercial Taxes Department agreed to it, no promise was made. By invoking the doctrine of legitimate expectation, the employees do not get entitled to regularisation if they are not appointed through legitimate procedures. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement  is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Furthermore, In the present case, no such assurance of future regularisation was given by the government or the concerned department. Even though the Commercial Taxes Department agreed to it, no promise was made.

Constitutional scheme

In Kesavananda Bharati v. State of Kerala (1973),  it was held that Article 14 and Article 16 are part of the basic structure of the Constitution. Any constitutional amendment made by the Parliament, affecting the basic structure of the Constitution would be ultra vires. 

Indira Sawhney v. Union of India (1992) emphasised on the concept of equality and reiterated the basic structure doctrine expressed in the Kesavananda Bharati case, with respect to public employment. It was observed that the expressions “equality before law” and “equal protection of law” shows the significance of equality enshrined by the founding fathers of the Constitution. Further, Article 15 to Article 18 express the affirmative position of equality. Public employment bestows a certain power and status and therefore, special cautions must be taken to ensure equality of opportunity in public employment. Article 16(1) provides the right of equal opportunity to citizens of this country, in matters of public employment or appointment to any office. Clause (2) prohibits the discrimination of citizens on the ground of religion, race, caste, sex,descent, place of birth, residence, etc., in matters of public employment or appointment to any office. clause (4) provides special discretionary power to the State. It says that the State can make any laws regarding the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, are not represented adequately in service. 

In D. C. Wadhwa & ors. v. State of Bihar (1987), it was held that rule of law is the core of the Indian Constitution. It puts constitutional limitations on the exercise of power by the Legislature, Executive or any other authority. Any person may challenge the actions of the State, violating the rule of law, by filing a writ petition and it is then the court’s duty to restrict such actions of the State. With respect to the present case, It is clear that the rule of equality must be practised in matters of public employment. Courts should refrain themselves from passing any order violating the principle of equality enshrined under Article 14 and Article 16. Appointees are not conferred with any right unless the appointment is made through the regular procedure. If a person is appointed on a contractual basis, his appointment comes to an end at the end of the contract. If the appointment is on the basis of daily wages, then employment comes to an end when such work is discontinued. Temporary appointment does not confer a right of permanence on the appointee. Such an employee cannot claim to be made permanent on the expiry of his term of appointment. If appointment is not made with due process of selection, permanence of employment cannot be conferred only because the employee has continued beyond the period of their appointment. Under Article 226, High Courts should not pass any direction for regularisation, absorption or permanent continuance unless regular appointment has been made. In case of litigious employment also, an employee is not entitled to any right of permanence in service. High courts should not pass any interim directions with regard to litigious employment. Courts should facilitate the state instrumentalities to ensure the constitutional and statutory requirements in matters of public employment, and should not interfere with the economic affairs of the State. 

In case of public employment, Articles 14, 16 and 309 ensure that fair and equitable opportunities must be given to all qualified candidates who seek employment. Temporarily employed, especially also unqualified persons should not be preferred over a vast majority of people waiting for an opportunity to get into government employment. As of now, under Article 21, right to life does not include right to employment. Accepting the right to employment as a part of right to life for a person appointed on a temporary or casual basis would deprive the majority of aspirants waiting for an opportunity to compete for government employment. The rights of citizens are to be read with the directive principle of state policy. 

With respect to whether the writ of mandamus can be issued to an employer, State or its instrumentalities, to make temporary employment permanent, the courts must ensure that the authorities have a legal duty to do so, and the aggrieved person must have a legal right to seek the same. This was held in the case of Dr. Rai Shivendra Bahadur vs The Governing Body of Nalanda College (1962). If employees cannot prove their enforceable legal right to be permanently absorbed and that the State has a duty to absorb them permanently, the writ of mandamus cannot be issued. 

With reference to State Of Mysore v. S.V Narayanappa (1967) , BN Nagarajan v. State of Mysore (1966) and R. N. Nanjundappa v. T. Thimmiah (1972), it is to be noted that irregular employment involves hiring people to vacant posts without following the established procedure. However, this does not completely fall under the scope of being illegal. There may be cases wherein duly qualified persons have been appointed irregularly to an available post and have worked for ten years or more. In such situations, the Government of India, a State Government or its instrumentalities can consider such appointees for regularisation, as a one time measure. Regular recruitment processes must be followed to fill up posts occupied  by temporary employees. The process of regularisation must begin within 6 months from the passing of this judgement. Furthermore, any previous regularisations which are not challenged, do not have to be reopened as a result of this judgement. 

On analysing the judgement of this case, it is clear that any employee who has not been appointed through legitimate means, has no right to claim benefits equal to that of regular recruited employees. Therefore, they cannot seek permanent employment by claiming the principle of equal wages for equal work.

Employees who have worked for a company on a contract, temporary, or daily salary basis do not have a fundamental right to claim that they must be absorbed into the service. They cannot be considered as holders of the post, since regular appointments can only be made in accordance with Article 14 and Article 16 of the Constitution.  It is not possible to demand treatment equal to that of individuals who are regularly employed. That would be considered as treating unequals as equals.

It was decided that in order to enforce the rule of law, the court must decide whether the person requesting relief had any legitimate right that could be enforced. Even though the employees were never appointed in accordance with the appropriate laws or in accordance with Articles 14 and 16 of the Constitution, it cannot be argued that they have established a legal right to be made permanent when taken into account in the context of the very clear constitutional scheme.

The Court held that In the guise of upholding rights under Article 14, Article 16, Article 21 and Article 309 of the Constitution, a group of individuals cannot be given preference over a vast majority waiting to receive an opportunity to get into government employment.  

The State should not be allowed to depart from the normal rule and indulge in temporary employment in permanent posts. Ad hoc appointments for permanent vacancies should only be made in emergency situations. Regular recruitment is the norm. Appointments to posts that are not available should not be considered for regularisation. The Supreme Court was of the view that appointments made without following the due process or the rules for appointment, do not confer any right on the appointees and that the courts cannot direct their absorption, regularisation, re-engagement or permanence. The Court concluded that an appointment to a position in the government or one of its agencies may only be made through a selection process that complies with applicable laws and relevant constitutional requirements. It is also impossible to ignore the constitutional framework and the rights of the many against the few who appear before the court in the name of individualising justice.

The argument that right to employment is covered under Article 21 does not stand at this point of time. The law is ever-changing, and our Constitution is still a work in progress. Hopefully, in the future, the right to employment will be incorporated as a fundamental right or within the idea of the right to life.

What is litigious employment ?

If any daily wage, casual or temporary employee continued his employment under the protection of a court’s order, such employment is known as litigious employment. 

Is it possible to issue writ of mandamus for the absorption, regularisation and permanence of employees ? 

In Rai Shivendra Bahadur (Dr.) v. Governing Body of the Natanda College (1962), the Supreme Court held that if it can be shown that the legislation imposes a legal obligation on the authorities and that the aggrieved person has a legal right under the statute or regulation to enforce it, a writ of mandamus can be issued to force the authorities to take action.

Whether the executive is authorised to make rules and regulations for employment ? 

Under the proviso of Article 309 President and Governor are competent authority to make rules and regulations regarding employment, if there are no rules regarding such employment. 

Whether reservation is available to SC/ST Category in public employment under Article 16 ? 

Article 16(4) of the Indian constitution provides for the reservation of services under the State in favour of the backward class of citizens. Backward class includes Schedule Castes and Scheduled Tribes. In Indra Sawhney v. Union of India (1992), the Supreme Court held that the cumulative reservation in employment, irrespective of the category, must not cross the ceiling limit of 50% of total vacancies. 

Whether Article 32 has limited scope as compared to Article 226 ? 

Power of the Supreme court under Article 32 has a narrow scope, as it is applicable only in case of violation of a fundamental right. Power of High Courts under Article 226 has a broader scope, as it is applicable not only in the case of violation of a fundamental right, but also of a legal right.

  • Constitutional law by MP Jain 
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