It is not uncommon to find scores of employees, usually at the lower grades, employed on casual, temporary, or contractual basis in various government departments. Such employees are often paid less, and also do not receive any perks or benefits, as compared to employees in regular position within the same government department, even though the type of work of both the classes of employees is same or similar. You will observe the plight and grievance of such employees if you stay at a government guest house, or visit a national park, or are aware of the classification of the employees in any given government department. Several such employees have spent several decades working for the government as contractual or casual, ad-hoc appointees/employees.
Do employees working for the government or governmental instrumentalities have a right to be regularized and absorbed as regular permanent employees?
The position was confusing for an average casual, contractual and ad-hoc employee who was seeking regularization prior to the Judgment of the Constitutional Bench in Secretary, State of Karnataka and Others v. Umadevi and Others. The Supreme Court itself had taken divergent views while dealing with such matters, and the High Courts were also taking different positions from case to case. The Constitutional Bench in Secretary, State of Karnataka and Others v. Umadevi and Others was constituted to set down the law in view of the differing judgments in such matters over a period of time by the Supreme Court. Prior to Umadevi, in certain cases the courts were giving consideration to the so called equity principle on account of continuous engagement as temporary employee or engagement on daily wages, and the continuance of such persons in the engaged work for a certain length of time, and had ordered regularization of employees whereas in certain other cases, the courts were going by the Constitutional scheme which envisages that employment by the Government and its instrumentalities has to be on the basis of procedure established in that behalf, and any temporary or casual employee who has been employed without following the procedure has no right to be regularized.
The Constitution Bench in Umadevi observed that, “the very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid.”
While laying down the law, the Constitution Bench also held that regularization and conferment of permanence in service jurisprudence are distinct. Regularization is not the same as permanency. Regularization connotes an act to condone any procedural irregularity, and is meant to cure only such defects as are attributable to methodology followed in making the appointments. Regularization cannot be construed so as to convey an idea of the nature of tenure of appointments. The Constitution Bench also clarified that right to equal pay for identical work is different from a plea for regularization.
The Constitution Bench held that embargo on such casual or temporary employment is not possible, given the exigencies of administration, and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. It is in that context that one has to proceed on the basis that the employment was accepted by a casual or temporary employee fully knowing the nature of it, and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment, and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
The Court held that the executive, and for that matter the Court, in appropriate cases, would only have the right to regularize an appointment made after following due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of executive or court would not extend to the executive or court being in a position to direct that an appointment made in clear violation of the constitutional scheme (which envisages equality and equal opportunity under Article 14 and 16), and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
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