Can a daily wage employee regularised by relaxing the service rules seek retrospective regularisation?

(Judgment of the Court was delivered by S.M.Subramaniam J.) Under assail is the writ order dated 12.01.2024 passed in WP.No.14825 or 2021.

State preferred the present Writ Appeal. The respondent filed a Writ Petition seeking retrospective regularisation with effect from 30.06.1998, the date on which he has completed three years of daily wage engagement. The respondent was engaged as NMR (Nominal Muster Roll) in the highways department. Subsequently, the service of the respondent was regularised with effect from 06.05.2013 in the post of Gang Mazdoor in the sanctioned post in the time scale of pay. The said order of grant of regularisation was issued by relaxing Special Rules 4(a), 51 and 22 for grant of regularisation. The order of regularisation remains unchallenged. Accepting the order of regularisation, the respondent continued in silence. He made a representation after a lapse of three years from the date of regularisation on 29.12.2016, claiming that his services should be regularised retrospectively with effect from 30.06.1998. The said representation was rejected by the respondents mainly on the ground that the order passed by the High Court in the year 2003 is of no avail to the respondent to seek retrospective regularisation. That apart, the case of the respondent was regularised by relaxing the necessary rules, since initially he was not engaged or appointed under the recruitment rules in force. Even no appointment order was issued to the respondent. He was engaged only as an NMR on a need basis. Thus, the regularisation itself is a concession extended by the Government and seeking retrospective regularisation is beyond the scope of the service rules applicable.

Regularisation and permanent absorption are to be granted strictly in accordance with the service rules. Irregular, illegal and backdoor appointments cannot be regularised, since such regularisation would result in infringement of the basic rights of the eligible meritorious candidates who are aspiring to secure public employment through open competitive process in accordance with the rules and through the rules of reservation. Constitutional schemes of appointment are to be made in order to preserve the constitutional mandate of equal opportunity in public employment. Large scale illegal appointments would result in affecting the rights of many eligible candidates.

The practice of appointing daily wage employees and granting regularisation was deprecated by the Constitution Bench of the Hon’ble Supreme Court of India in the case of Secretary, State of Karnataka and others Vs. Uma Devi and others 1. More specifically in the case of State of Rajasthan and Others Vs. Daya Lal 2, the Supreme Court in clear terms reiterated that the High Court in exercise of the powers of judicial review cannot issue a direction to regularise the services of temporary, contractual or illegal appointments. Relevant paragraph is extracted hereunder:

The Courts are expected to consider the ill effects of issuing a direction to regularise the illegal, irregular and backdoor appointments. All appointments are to be made only under the constitutional schemes. Even in paragraph 53, the Constitution Bench has reiterated that the proposals pending during the relevant point of time in the year 2006 are allowed to be considered as one time measure. However, even such one time measure regularisation is to be granted only if the appointments are made in accordance with the rules. However, regularisation of illegal, irregular or backdoor appointments at no circumstances been done. In paragraph 54 of the Constitution Bench in unequivocal terms has reiterated that those decisions which run counter to the principle settled in this decision or in which directions running counter to what the Constitution Bench held will not stand denuded of their status as precedents.

All such legal principles are settled by the Constitution Bench as well as by the High Courts across the country only with an idea to preserve the equal opportunity clause in public employment to all the citizens. It is not as if, any person having an acquaintance with an officer of a department or a prominent person in the society can secure a temporary appointment and thereafter, get regularisation and such practice is not only unconstitutional, but results in committing a constitutional sin by depriving the rightful and meritorious candidates to secure public employment through open competitive process.

The Government also subsequently realised that such temporary engagements ought to be made on a need basis and on terms and conditions. Mere temporary engagements/appointments per se would not confer any right to an employee to seek regularisation. Pertinently, these employees accepting the terms and conditions of temporary/contractual/casual employment joined the Department, and after serving for some time, they cannot turn around and claim regularisation in violation of the terms and conditions agreed by them to serve as contractual/temporary/casual employees. Once the terms and conditions are accepted, it is binding on the parties and therefore, the length of services per se would not constitute a ground to seek permanent absorption in the Department.

In the present case, the legal principles settled by the Constitution Bench of the Hon’ble Supreme Court has not been considered by the Writ Court, The very noble principle of equal opportunity in public employment is the mantra to be adopted by all Courts to ensure that every citizen from a remote, rural area of this country and the downtrodden are provided with an opportunity to secure public employment. Therefore, the colonial or patriarchal approach in engaging persons on temporary basis and grant regularisation must be dispensed with forthwith to uphold the constitutional mandates, values, philosophy and ethos.

In view of the facts and circumstances, the writ order dated 12.01.2024 made in WP No.14825 of 2021 is set aside and the Writ Appeal stands allowed. No costs. Consequently, connected Miscellaneous Petition stands closed. (S.M.S.,J.) (N.S.,J.) 28-07-2026