Can contract employees not appointed against sanctioned posts be regularised by a direction of the High Court?
Service — Regularisation — Contract employees on consolidated pay — Multi Purpose Hospital Workers — G.O.(Ms) No.325 of 2012 — No sanctioned post — Backdoor regularisation — Uma Devi — Para 53 one time measure — Para 54 decisions denuded of status as precedent — Judicial review — Policy decision — Article 226 — Writ appeals —
Regularisation — Contract appointments not against sanctioned posts —
Held: Contractual appointments made under a policy and Government Order, and not against regular sanctioned posts, give no right to regularisation; a direction by the High Court to regularise such employees would prejudice the open competitive recruitment process, and it is for the Government to take a policy decision whether to regularise them. (¶5, 7, 11)
Uma Devi — Article 226 — Policy decision by Court —
Held further: A direction to regularise a few contract hospital workers, when thousands work across the State on contract basis, would amount to the Court framing a policy, which is impermissible and beyond the powers under Article 226; decisions running counter to Uma Devi lose their status as precedent, and Narendra Kumar Tiwari, decided under the Jharkhand regularisation rules, was distinguished. Writ appeals allowed and the writ order set aside. (¶8, 9, 11, 12)
Can contract employees not appointed against sanctioned posts be regularised by a direction of the High Court?
No. Contract employees not appointed against sanctioned posts cannot be regularised by a direction of the High Court. The hospital workers were engaged on contract on consolidated pay under a policy and Government Order, and not against regular sanctioned posts, so a Court direction to regularise them would prejudice the recruitment of regular vacancies through open competition. Whether to regularise them is a matter for a policy decision of the Government. [¶5, ¶7]
Is a direction to regularise a few contract employees, when thousands work across the State on contract basis, impermissible under Article 226?
Yes. A direction to regularise a few contract employees, when thousands work across the State on contract basis, is impermissible under Article 226. Such a direction would open a Pandora's box and amount to the Court making a policy decision by itself; permanent appointments in sanctioned posts must follow the constitutional scheme and the recruitment rules. Decisions running counter to the Constitution Bench in Uma Devi stand denuded of their status as precedent. [¶8, ¶11]
What did the High Court decide in the State's writ appeals on regularisation of contract hospital workers?
The writ appeals were allowed and the writ order to regularise the contract hospital workers was set aside. Narendra Kumar Tiwari was distinguished as a decision on the Jharkhand regularisation rules of 2015. There was no order as to costs. [¶9, ¶12]
Prepared by the LexStreak Editorial Desk — verify against the judgment.
“5. The order of appointment issued to the respondents herein would show that the contractual appointments are made in pursuance to the policy and the Government Order issued G.O.Ms.No.325, Health and Family Welfare Department dated 20.11.2012. Appointments are not made against the regular sanctioned post by the Government and therefore, any directions by the High Court to regularise the service would result in causing prejudice to the recruitment process to be undertaken to fill up the regular vacancies through open competitive process. However, it is for the Government to take a policy decision, if they have chosen to regularise the service of the contractual employees against the regularly sanctioned posts by following the recruitment rules in force or by conducting special qualifying examination, as the case may be.”
“7. The posts of Multi Purpose Hospital Workers are revived only with the permission to engage contract Multi Purpose Hospital Workers and there is no permanent sanctioned post made available to regularise the services of these contract employees. If at all the benefit of regularisation is to be extended to these employees, it is for the Government to take a policy decision, since it will have larger repercussion and involvement of financial burden.”
“8. The question arises whether the Court can issue a direction to regularise the services of these employees, large in number working across the State on contract basis on a consolidated pay and any such directions issued would fall beyond the realm of the powers of the judicial review. In this regard, the Constitution Bench of the Hon’ble Supreme Court of India in the case of State of Karnataka and others Vs. Uma Devi and others settled the principles. In para 54 of the judgment, the Constitution Bench in unequivocal terms clarified that those decisions which run counter to the principles settled in Umar Devi’s case or in which directions running counter to what the Constitution Bench held will stand denuded of its status as precedent. Therefore, all other judgments decided on its own facts and based on the policy or service rules applicable to a particular State employee are to be confined to the said order and cannot be followed as a precedent, since the judgment of the Constitution Bench of the Hon’ble Supreme Court is binding on all courts across the country and a law declared under Article 142 of the Constitution of India.”
“11. High Court by issuing a direction in respect of one or few contractual employees appointed on contract basis on consolidated pay to regularise their services would result in opening of a Pandora's box and thousands of such hospital workers working on contract basis throughout the State will claim the benefit of regularisation. Such directions would result in constituting a policy decision by the Court by itself is impermissible and would fall beyond the scope of the powers conferred under Article 226 of the Constitution of India. All permanent appointments in a sanctioned post are to be made strictly under the constitutional scheme of appointment and in accordance with the recruitment rules in force. Admittedly, these contract employees are not appointed in accordance with the recruitment rules in force. Therefore, their initial appointments are either illegal or irregular and not against the sanctioned post. The ill effects of Court directions to regularise the services of few contractual employees would not only affect the recruitment system and the rules framed for recruitment of permanent employees for government service, but would cause financial burden contrary to the policy of the Government to engage hospital workers on contract basis. It is made clear that regular appointment in the sanctioned posts are to be made in accordance with the Service Rules.”
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The State preferred the present Writ Appeals, challenging the writ order dated 25.09.2023 passed in W.P.No. W.P.Nos.1110, 98, 76, 1093, 83, 102, 73, 79 & 1112 of 2021 of 2021.
The uncontroverted facts between the parties would show that the respondents/writ petitioners were appointed as Multi Purpose Hospital Worker as per the terms and conditions of the Government Order in G.O. (Ms) No.325, Public Health and Family Welfare (F2) Department dated 20.11.2012. The respondents state that they served for long years on consolidated salary on contract basis and therefore, their services ought to be regularised.
The learned Additional Government Pleader would submit that the appointments were made on contract basis and for a period of one year. The tenure was extended on humanitarian grounds and as per the request of the Multi Purpose Hospital Worker and therefore, they cannot turn around and claim regularisation in violation of the terms and conditions of their services made pursuant to the policy decision of the Government in G.O. (Ms) No.325, Public Health and Family Welfare (F2) Department dated 20.11.2012.
The learned counsel for the respondents would rely on the judgment of the Hon’ble Supreme Court of India in the case of Narendra Kumar Tiwari and others Vs. State of Jharkhand and others (2018) 8 SCC 2381 and Jaggo Vs. Union of India and Others 2024 SCC Online SC 38262.
The order of appointment issued to the respondents herein would show that the contractual appointments are made in pursuance to the policy and the Government Order issued G.O.Ms.No.325, Health and Family Welfare Department dated 20.11.2012. Appointments are not made against the regular sanctioned post by the Government and therefore, any directions by the High Court to regularise the service would result in causing prejudice to the recruitment process to be undertaken to fill up the regular vacancies through open competitive process. However, it is for the Government to take a policy decision, if they have chosen to regularise the service of the contractual employees against the regularly sanctioned posts by following the recruitment rules in force or by conducting special qualifying examination, as the case may be.
The effect of issuing a direction by the High Court to regularise the services of contract employees on consolidated pay is to be considered, since such backdoor regularisation would result in infringement of the rights of the meritorious and eligible candidates longing to secure a public employment through open competitive process. In the present case, there is no sanctioned post of Multi Purpose Hospital Worker. By forming a new policy for recruitment of hospital workers in Government Medical Institutions across the State, the Government issued G.O. (Ms) No.325, Public Health and Family Welfare (F2) Department dated 20.11.2012. The terms and conditions of the contract Multi Purpose Hospital Worker on consolidated pay are as under:
“(iv) The unified category of Hospital Worker, Sanitary Worker and Nursing Assistant Grade-ll be named as Multipurpose Hospital Worker. The job description of the post of Multipurpose Hospital Worker is indicated in the Annexure II to this order. (v) The services of Sanitary Worker / Hospital Worker in all Medical College Hospitals, District Headquarters Hospitals, Major Taluk Hospitals, Accreditation Hospitals and other hospitals having more than 200 beds shall be outsourced. The outsourcing of services shall be done for that much of the area of the hospital covered by vacant staff only as and when future vacancy arises due to retirement of the above staff, those areas shall also be covered by outsourcing. No additional staff shall be sanctioned to these hospitals. (vi) The outsourcing shall be done, subject to being done on a common template (Bid Document / MoUs) by a single agency and the signing of MoUs and payment is entrusted to the individual hospital authorities. (vii) The shift/change in the policy of recruitment shall be implemented for the post of Hospital Worker, Sanitary Worker and Nursing Assistant Grade II in the sanctioned strength comprising the Directorates of Medical and Rural Health Services, Medical Education and Public Health and Preventive Medicine.”
The posts of Multi Purpose Hospital Workers are revived only with the permission to engage contract Multi Purpose Hospital Workers and there is no permanent sanctioned post made available to regularise the services of these contract employees. If at all the benefit of regularisation is to be extended to these employees, it is for the Government to take a policy decision, since it will have larger repercussion and involvement of financial burden.
The question arises whether the Court can issue a direction to regularise the services of these employees, large in number working across the State on contract basis on a consolidated pay and any such directions issued would fall beyond the realm of the powers of the judicial review. In this regard, the Constitution Bench of the Hon’ble Supreme Court of India in the case of State of Karnataka and others Vs. Uma Devi and others settled the principles. In para 54 of the judgment, the Constitution Bench in unequivocal terms clarified that those decisions which run counter to the principles settled in Umar Devi’s case or in which directions running counter to what the Constitution Bench held will stand denuded of its status as precedent. Therefore, all other judgments decided on its own facts and based on the policy or service rules applicable to a particular State employee are to be confined to the said order and cannot be followed as a precedent, since the judgment of the Constitution Bench of the Hon’ble Supreme Court is binding on all courts across the country and a law declared under Article 142 of the Constitution of India.
As far as the case of Narendra Kumar Tiwari cited supra is concerned, the entitlement to regularisation of contracted employee was considered in the context of the 2015 regularisation rules framed by the State of Jharkhand. Therefore, the facts are distinguishable and are of no avail.
In respect of paragraph 53 of the Constitution Bench judgment made in Umar Devi's case, in certain cases High Courts issued directions to regularise, based on the observation in the said paragraph 53, which is a one time measure permitted by the Constitution Bench.
“18. High Courts are granting the relief of regularization and permanent absorption in certain cases, specifically, relying on the observations made by the Constitution Bench in para.53 of Uma Devi-s case. Let us consider the scope of para.53 of Uma Devi judgment, since the said para has been relied on by the writ courts to grant the relief of regularization to the daily wage and temporary employees. 19. Para.53 of the Judgment reads as under: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) S.V.Narayanappa as explained R.N.Nanjundappa in and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this Judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one~time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 20. Para 53 commences by stating that it is a clarificatory paragraph incorporated by the Constitution Bench. It proceeds by stating that there may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa reported in AIR 1967 SC 1071, R.N.Nanjundappa reported in (1972) 2 SCR 799 and B.N.Nagarajan reported in (1979) 4 SCC 507. 21. The Hon’ble Supreme Court of India in unequivocal terms reiterated that illegality in appointments cannot be cured. Para.53 deals only with the irregular appointments. Even in respect of irregular appointments, the person seeking regularization must be duly qualified in accordance with the Service Rules and his initial appointment must be made in duly sanctioned vacant posts. That apart, he must be served for a minimum period of 10 years or more but without the intervention of the Courts or of Tribunal. Therefore, three conditions are stipulated for regularizing the irregular appointments as one time measure in Uma Devi’s case. (i) WA No. 2093 of 2026 A person must be appointed in duly sanctioned post. (ii) He must be fully qualified in accordance with Service Rules. (iii) He must have completed 10 years of service or more, but without the intervention of the orders of the Court or of Tribunal. 22. With reference to the above principles, the Constitution Bench in Para 53 further proceeds by stating that Union of India, the State Governments and their instrumentalities should take cases to regularize such irregular appointees as a one~time measure, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. 23. Therefore, one time measure approved by the Constitution Bench must have been completed soon after the Judgment in Uma Devi’s case and within period of 6 months as specifically stipulated in para.53 of the Judgment. All such one time measure by the Union Government and State Governments must be completed.” … “25. Para 53 of Uma Devi-s case clarifies that regularization, if any already made, but not sub judiced, need not be reopened based on the Judgment. The Hon’ble Supreme Court reiterates that regularization of irregular appointments already made prior to Uma Devi-s case are protected. A clear distinction has been drawn by the Hon’ble Supreme Court that there should be no further bypassing of constitutional requirements for regularizing or making permanent, those not duly appointed under the constitutional scheme. Thus, there cannot be any further regularization of illegal or irregular appointments bypassing of the constitutional scheme of appointments or making permanent. Clarifications cannot be relied upon in perpetuity to grant the relief of regularization in violation of the legal principles settled in the judgment. The clarification is para.53 of Uma Devi-s case lost its significance on account of efflux of time, since it is an one time arrangement. Thus, relying on para.53, daily wage / casual / temporary / contract employees cannot be regularised or permanently absorbed in violation of the legal principles settled by the Constitution Bench in unequivocal terms. 26. Importantly, para.54 of the Judgment in Uma Devi-s case, indicates those decisions, which run counter to the principles settled in Uma Devi-s case or in which directions running counter to what the Hon-ble Supreme Court held in Uma Devi-s case will stand denuded of its status as precedent. Therefore, all judgments of the High Courts running counter to the legal principles settled by the Constitutional Bench denuded to loose its status as precedent and cannot be followed for the purpose of granting the relief of regularization and permanent absorption of irregular and illegal appointments. Full Bench judgment of High Court referred is to be confined to the facts of that case and it resulted in individualization of Justice. 27. Judgment in Uma Devi-s case was delivered on 10.04.2006. Two Judges Bench of the Hon-ble Supreme Court of India while considering the claim of regularization in the case of Secretary to Government, School Education Department, Chennai Vs. R.Govindasamy & Ors., reported in (2014) 4 SCC 769 relied on para.48 of Uma Devi-s case. Para.48 of Uma Devi-s case is as under: “48. ...There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.” 28. In Govindasamy’s case, in para.8, the Hon-ble Apex Court considered the principles laid down in the case of State of Rajasthan Vs. Daya Lal, reported in 2011 (2) SCC 429 wherein, clear directives are issued by the Hon ble Apex Court as under: “(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation of service by a temporary or ad hoc or daily wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be -litigious employment-. Even temporary, ad hoc or daily~wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.”
High Court by issuing a direction in respect of one or few contractual employees appointed on contract basis on consolidated pay to regularise their services would result in opening of a Pandora's box and thousands of such hospital workers working on contract basis throughout the State will claim the benefit of regularisation. Such directions would result in constituting a policy decision by the Court by itself is impermissible and would fall beyond the scope of the powers conferred under Article 226 of the Constitution of India. All permanent appointments in a sanctioned post are to be made strictly under the constitutional scheme of appointment and in accordance with the recruitment rules in force. Admittedly, these contract employees are not appointed in accordance with the recruitment rules in force. Therefore, their initial appointments are either illegal or irregular and not against the sanctioned post. The ill effects of Court directions to regularise the services of few contractual employees would not only affect the recruitment system and the rules framed for recruitment of permanent employees for government service, but would cause financial burden contrary to the policy of the Government to engage hospital workers on contract basis. It is made clear that regular appointment in the sanctioned posts are to be made in accordance with the Service Rules.
In view of the discussions made in the aforementioned paragraphs, this Court could able to arrive at an irresistible conclusion that the writ order is running counter to the settled principles in the matter of public appointments/regularisation/permanent absorption. Consequently, the writ order dated 25.09.2023 made in W.P.Nos.1110, 98, 76, 1093, 83, 102, 73, 79 & 1112 of 2021 are set aside. The Writ Appeals are allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. (S.M.S.,J.) (K.G.R.,J.) 20-08-2026
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