L.P.A. No. 628 of 2018
1. The Letters Patent Appeal bearing L.P.A. No. 628 of 2018 is directed against the order dated 14.09.2018 passed in Contempt Case (Civil) No. 704 of 2017 wherein a direction has been passed and by way of one more indulgence four weeks further time was granted to the Chief Secretary to comply with the writ Court’s order in its letters and spirit.
2. The relevant extract of the order dated 14.09.2018 passed by the Learned Single Judge in Contempt Case (Civil) No. 704 of 2017 reads here-in- under:-
“8. By an order dated 27.04.2018 passed in I.A. No. 7525 of 2017 filed in L.P.A. No. 482 of 2017, the Hon'ble Division Bench after noticing status of the petitioners, in detail, and finding that they have rendered continuous service to the satisfaction of the employer and no proceeding on an allegation of misconduct was initiated against them, has declined the prayer seeking stay of operation of order dated 03.04.2017 passed in W.P.(S) No. 3973 of 2014. In the same breath, I.A. No. 1517 of 2018 which was filed seeking stay of proceeding in this contempt case has also been dismissed by the Hon'ble Division Bench.
9. Orders passed on different dates in the present proceeding record unconditional undertaking on behalf of the opposite party-Chief Secretary that now the writ Court's order shall be complied. Several affidavits to this effect have also been filed. It is also stated that approval of the Hon'ble Chief Minister has also been taken.
10. On the issue of educational qualification of the petitioners one more thing which needs to be indicated here is that in the proceeding of W.P.(S) No. 3973 of 2014 it was not pleaded by the respondent-State to which cadre the petitioners belong to. What is reflected in the proceeding of the High Level Committee, is contradicted by the appointment letters issued to six petitioners. If this issue has not been examined by the Controlling Department, how appointment letter to other six petitioners has been issued?
11. Records of W.P.(S) No. 3744 of 2016 has been summoned when this contempt case was heard in the pre-lunch session.
12. In W.P.(S) No. 3744 of 2016 an affidavit dated 09.01.2018 has been filed by the Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha stating that in different Departments under the Government of Jharkhand different qualifications for appointment on Class-III posts have been prescribed. The Principal Secretary has stated in her affidavit dated 09.01.2018 that the qualifications for appointment on Class-III posts may be, Matriculation, Intermediate, Diploma and Graduation. The same Principal Secretary has filed her affidavit in the proceeding of W.P.(S) No. 3973 of 2014, but, no objection to the qualification of the petitioners was taken.
13. The reason why I am recording the aforesaid facts and the proceedings is that, prima-facie, it appears that inspite of tendering unconditional undertakings (vide I.A.s) on 29.06.2018 and 10.08.2018 and several affidavits filed in this proceeding for complying with the writ Court's order, the opposite party-Chief Secretary does not appear to be moving in the right direction.
14. No doubt, compliance of the writ Court's order shall remain subject to the final decision in L.P.A. No. 482 of 2017, but then the writ Court's order cannot be modified by the opposite party.
15. Mr. Atanu Banerjee, the learned G.A., submits that a final decision in the matter has not been taken and what has been done is to seek a report from the Controlling Department.
16. Be that as it may, the Chief Secretary shall take note of the aforesaid facts.
17. By way of one more indulgence four weeks' further time is granted to the opposite party-Chief Secretary to comply with the writ Court's order in its letters and spirit.
18. Post the matter on 26.10.2018.
19. An affidavit on compliance of this order must be filed on or before 24.10.2018, failing which the opposite party-Chief Secretary shall remain physically present in the Court.
20. Let a copy of the order be given to the learned G.A.”
3. The Hon'ble Supreme Court in a judgment passed in the case of Deepak Kumar and Another versus Devina Tewari and Others reported in the 2024 SCC OnLine SC 3583 has held at paragraph-5:-
“5. This Court in the case of Midnapore Peoples' Coop. Bank Ltd. (supra) has observed thus:—
“11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus:
I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of ‘jurisdiction to punish for contempt’ and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal) or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).”
4. From perusal of the order passed by the Learned Single Judge, the intra-court appeal filed by the appellants-State of Jharkhand is not tenable mainly on the ground that the Ld. Single Judge did not enter into the merits of the case as no adjudication or direction was given on merits; rather a direction was only passed to the Chief Secretary to comply with the writ Court’s order in its letters and spirit.
Further, the order passed by a Single Bench of the High Court declining to initiate proceeding for contempt, or initiating proceedings for contempt, or an order dropping the proceedings for contempt or an order acquitting or exonerating the contemnor, is appealable to the Division Bench under Section 19 of the Contempt of Courts Act, 1971.
No such directions as aforesaid have been passed by the Learned Single Judge; thus, in view of the judgment passed by the Hon'ble Supreme Court of India in the case of Deepak Kumar (supra), no interference is warranted with the order passed by the Learned Single Judge and hence, the L.P.A. No. 628 of 2018 preferred by the appellant-State of Jharkhand, is hereby, dismissed.
L.P.A. No. 482 of 2017
5. The Letters Patent Appeal bearing L.P.A. No. 482 of 2017 is directed against the order dated 03.04.2017 passed in W.P.(S) No. 3973 of 2014 wherein the writ petition filed by the Respondents has been allowed.
The Respondents who were 18 in numbers filed a writ petition bearing W.P.(S) No. 3973 of 2014, inter-alia praying therein to regularize the services of the Respondents in regular pay scale.
6. On creating of the State of Jharkhand on 15.11.2000, a Camp Office of the Chief Minister was established at New Delhi. Separate Offices for the Resident Commissioner and the Chief Executive Officer were also established at Jharkhand Bhawan, New Delhi, to facilitate liaison between the State Government and Central Government and to provide necessary infrastructure and facilities to the Governor, Chief Minister and other officers visiting Delhi for attending official meetings. By a Resolution dated 28.07.2001, fourteen posts for the office of the Resident Commissioner, twenty-nine posts for Chief Executive Officer’s Office and nine posts for the Camp Office of the Chief Minister were created. The Resolution was also published in the Extra-Ordinary Gazette. Except Two posts namely, Typist-cum- Computer Data Entry Operator and Driver for the staffs-Car of Additional Resident Commissioner, which were permanent on contract basis. Eight permanent posts were created for the office of the Resident Commissioner. For the office of the Chief Executive Officer, one permanent post each of Accountant, Assistant, Bill-Clerk, Cashier and Typist were created. There were Eight posts for staffs-Car Driver, Three Room Attendants, Four Peons, Two Sweepers and one Typist-cum-Computer Data Entry Operator; however, these posts were created for appointment on contract.
The petitioners/respondents were appointed on one of the vacant posts, but on contract. Some of them were appointed initially for six month and some of the petitioners/ respondents for one year and they all have continued to work on their respective posts. From perusal of the Appointment letters, it transpires that the petitioners/respondents were appointed on sanctioned vacant posts; however, not in the pay-scale sanctioned for their posts by the Resolution dated 28.07.2001. In the letter of appointment of some of the petitioners/respondents it was mentioned that they shall be given preference in the regular appointment. The petitioners/respondents were paid city allowance and they have been granted additional dearness allowance. They have also been provided travelling allowances and medical facilities, and some of the petitioners/ respondents were given uniform allowance also. Drivers and Protocol Assistants were paid monthly mobile phone bills to the admissible limit. A brief description of the petitioners/respondent’s employment are indicated in the chart here-in-below:-
| Sl. No. | Post | Nature of Post | Date of Appointment |
| Petitioner No.1/ Respondent No.1 | Bill Clerk-cum-Accountant Typist-cum-Computer Data Entry Operator | Permanent Post Permanent, on contract basis | 31.07.2024 22.11.2007 |
| Petitioner No.2/ Respondent No.2 | Protocol Assistant | Permanent Post | 26.06.2004 |
| Petitioner No.3/ | Driver | Permanent, on contract | 13.09.2003 |
| Respondent No.3 | Protocol Assistant | basis Permanent Post | 28.02.2006 |
| Petitioner No.4/ Respondent No.4 | Protocol Assistant | Permanent Post | 30.01.2008 |
| Petitioner No.5/ Respondent No.5 | Typist-cum-Data Entry Operator | Permanent, on contract basis | 07.06.2005 |
| Petitioner No.6/ Respondent No.6 | Typist | Permanent Post | 07.06.2005 |
| Petitioner No.7/ Respondent No.7 | Driver | Permanent, on contract basis | 25.06.2003 |
| Petitioner No.8/ Respondent No.8 | Driver | Permanent, on contract basis | 25.06.2004 |
| Petitioner No.9/ Respondent No.9 | Driver | Permanent, on contract basis | 01.12.2003 |
| Petitioner No.10/ Respondent No.10 | Driver | Permanent, on contract basis | 31.01.2008 |
| Petitioner No.11/ Respondent No.11 | Driver | Permanent, on contract basis | 20.07.2004 |
| Petitioner No.12/ Respondent No.12 | Driver | Permanent, on contract basis | 31.01.2008 |
| Petitioner No.13/ Respondent No.13 | Driver | Permanent, on contract basis | 01.08.2003 |
| Petitioner No.14/ Respondent No.14 | Driver | Permanent, on contract basis | 31.01.2008 |
| Petitioner No.15/ Respondent No.15 | Driver | Permanent, on contract basis | 26.06.2002 |
| Petitioner No.16/ Respondent No.16 | Driver | Permanent, on contract basis | 31.01.2007 |
| Petitioner No.17/ Respondent No.17 | Peon | Permanent Post | 05.01.2001 |
| Petitioner No.18/ Respondent No.18 | Bill Clerk | Permanent Post | 22.11.2007 |
a. The claim of the petitioners/respondents for regularization was declined on the ground that the petitioners/respondents were not eligible in terms of the Regularization Rules, 2015 framed by the State Government.
b. There was a clause in the appointment letter that the petitioners/ respondents would not claim regular appointment on the basis of their contractual appointment.
c. Against some of the petitioners/respondents there were complaints.
d. A decision not to regularize the services of the contractual employees appointed at Jharkhand Bhawan was taken in the year 2018
8. The Learned Single Judge after considering the pleadings on record has allowed the writ petition bearing W.P.(S) No. 3973 of 2014 by an order dated 03.04.2017 in the following terms:-
“10. From the affidavits filed by the respondents, it does not appear how and why claim of the petitioners for regularisation was examined in the light of Regularisation Rules, 2015. This is not a prayer in the writ petition, nor this Court vide order dated 30.09.2016 directed the respondents to take a decision on the claim for regularisation of the petitioners under 2015 Rules. On the contrary, the specific stand of the petitioners, as would (appear from the writ petition and reiterated in paragraph no. 12 of the rejoinder affidavit dated 27.01.2017, is that the petitioners are regularly appointed contractual employees and, this appears to be the admitted position in the various letters and other documents produced by the parties in the present proceeding. In none of the affidavits filed on behalf of the respondents, I find even a remote suggestion that the petitioners are "irregularly appointed contractual employees". There is no whisper of a denial by the respondents of the stand of the petitioners that they were regularly appointed following the due processes, in support whereof, the petitioners have produced one of the advertisements which was issued on 02.02.2005 in the daily newspaper Hindustan Times. In fact, order dated 30.09.2016, which takes note of various official communications, is a pointer to the petitioners' specific stand. In the aforesaid facts, petitioners' case for regularisation of their services could not have been examined under 2015 Rules. Besides the above, it needs to be recorded that Regularisation Rules, 2015 is not the only scheme by the Government of Jharkhand for regularisation. Rules were framed for regularisation/appointment of the contractual employees, such as, for regularisation of doctors who were appointed on contract basis, with a condition of five years of continuous service. There are other instances also, some of the Resolutions find mention in the judgment in WP(S) No. 4019 of 2015 (Anil Kumar Sinha Vs. State of Bihar and Others) and batch cases, still, petitioners' claim has been dealt with under 2015 Rules. In fact, it was not necessary to frame a scheme for the petitioners' regularisation in service. Why is that so, I shall discuss now.
11. The minutes of meeting held on 30.07.2008 has been brought on record. In the said meeting, a decision was taken for regularisation of such employees who had completed satisfactory service of 5 years. Material portion of the said minutes of meeting is extracted below:
English Translation:
"Advice of the Finance Department with respect to the employees appointed on contract in Jharkhand Bhawan is that as per decision of Supreme Court no appointment should be made on contract, daily wages, casual or ad-hoc basis and those who were appointed illegally without sanctioned post and without vacancy, should not be absorbed in the service. It is ordered by the Chief Secretary that after examining the verdict of Supreme Court at departmental level, fresh proposal shall be moved. Also, those working in Jharkhand Bhawan, whose services have been satisfactory in the last 5 years, and whose appointment has been made following the prescribed procedure, action be taken for their regularisation, after verifying their service records".
12. The aforesaid decision taken in the meeting held on 30.07.2008 reflects that the decision in Umadevi case was discussed and, as a consequence thereof, a decision was taken not to regularise those employees in service who were illegally appointed on the posts which were neither sanctioned nor vacant at the time of their appointment. The decision taken in the meeting held on 30.07.2008 reflects a conscious decision to initiate a process for regularisation of those appointees who had completed five years at Jharkhand Bhawan. The respondents have not-dis-owned this decision. More importantly, can they decide to over-look a decision taken in a meeting of the Secretaries and the Chief Secretary to the Government. This decision contained a positive direction to take steps for regularisation. It was not the decision, to "consider" the claim of the appointees for regularisation. This was followed by letter dated 06.08.2008 which, in no uncertain terms, records that appointment of the petitioners was on sanctioned vacant posts; it was made in the exigency of work and the appointments were made following due processes. There is a reference of other two letters by the Cabinet Secretariat and Co-ordination Department by which approval for pay-revision of the contractual employees at Jharkhand Bhawan was accorded. The Resident Commissioner in its letter dated 06.08.2008 has categorically reiterated that the State Government was informed about all these appointments from time to time.
13. In the counter-affidavit, the respondents have not challenged the correctness of the facts pleaded by the petitioners in the writ petition. It is admitted that there are permanent staff, sanctioned contract posts and sanctioned regular posts at Jharkhand Bhawan, and the petitioners are working on these posts. At the cost of repetition, it is recorded that the petitioners are paid city allowance which is calculated @ 50% of (Basic-pay + Grade-pay). The respondents have asserted that this allowance is not paid to the regular employees of Jharkhand Bhawan. For contractual employees, by orders of the Finance Department, dearness allowance is paid and it is revised from time to time. Presently, it is paid @ 72% for which an order was issued by the Cabinet Secretariat and Coordination Department, Government of Jharkhand. Drivers and peons get annual dress allowance @Rs.2500/- per month and all the petitioners are entitled for traveling allowances and medical benefits. The Protocol Assistants are reimbursed Rs.5,000/- for purchase of a mobile phone and they get Rs.1,000/- per month for their mobile bills. It is stated that the drivers and Protocol Assistants are also entitled for conveyance.
14. The original record which was produced in the Court revealed that a proposal was prepared by a "Section Officer", for regularisation of the petitioners under 2015 Rules, on which the Finance Secretary and others gave their opinion. None of the issues, which I have referred to, were incorporated in the said proposal. Perhaps, no one even cared to read the records. It appears that on an assumption that all contractual employees are irregularly appointed, a proposal for regularisation of the petitioners under the Regularisation Rules, 2015 was prepared. This fatal mistake has resulted in exclusion of relevant materials from consideration and finally, a decision was taken which is based on irrelevant consideration, that is, continuous ten years' service as on 01.04.2006 as irregularly appointed employee. The entire decision making process was vitiated on account of the aforesaid error. As a consequence thereof, the decision reflected in letter dated 18.01.2017 is liable to be quashed.
17. The petitioners have established facts, which put them on a better footing than the SPOs in Nihal Singh case. In the present case, various correspondences between the Resident Commissioner and the Cabinet Secretariat and the Coordination Department reveal that on account of disinclination of the aspirants seeking appointment to accept assignments at Delhi, which involves a very high cost of living, a decision was taken to make appointments on contract basis. There were permanent posts and permanent posts on contract against which these appointments were made. Due processes in making appointments were observed, is the stand of the petitioners who have produced one of the advertisements issued in daily newspapers at Delhi, and this stand of the petitioners is not disputed by the respondents. The Resident Commissioner in its letter dated 06.08.2008 has recorded that the State Government was informed of these appointments from time to time and these appointments were made following due processes. It is not the case pleaded by the respondents that these appointments were in breach of the recruitment rules or, that the petitioners do not fulfill the minimum eligibility criteria under the rules, which, of course, were not produced by the respondents. The petitioners have been paid various allowances and the State exercises its administrative and disciplinary control over them in terms of instructions issued by the Finance Department dated 05.07.2002. This is the specific stand of the State through the affidavits filed in the present proceeding. In fact, appointment of the petitioners is not under challenge or doubted by the respondents. There is no allegation of any favoritism, nepotism or violation of Article 14 and 16 of the Constitution. In the aforesaid facts, I am inclined to hold that the petitioners were appointed through a fair process and they do not fall under the category of irregular appointment.
19. The respondents' affidavits have completely exposed emptiness of their stand. In its affidavit dated 01.03.2017, the respondent no.2 (who is none else but, the Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, who primarily is responsible for framing of the Rules and initiating all recruitments) has pleaded that total sanctioned post of P.As. in the State is 254, out of which 250 posts are vacant. For regular appointment of Stenographers, advertisements were issued in the year, 2012 and 2015, however, against 487 advertised vacancies; only two posts could be filled-up. For the clerical posts i.e. Bill Clerk, Cashier, Typist etc. which are now known as UDC/LDC, in the recruitment exercises held in the year, 2012 and 2015 for appointment on 344 posts, only 22 candidates were found eligible. In respect of the drivers, peons and Protocol Assistants, the affidavit filed by respondent no.2 is completely silent. The respondents do not disclose a road map, how these appointees appointed on contract would be dealt with in future. Suitable candidates for appointment at Jharkhand Bhawan are hard to find. Previous recruitment exercises for few posts did not yield any result and for other posts no exercise was undertaken in the past 10 years. Definitely, this would not be the policy of the Government of Jharkhand to continue the contractual employees, irrespective of the fact that specific posts were sanctioned and created, till they attain the age of superannuation, and thereby deny them the benefits of regular service. Eligibility and suitability of the petitioners are not in dispute. Proposal for their regularisation forwarded by the Resident Commissioner is testimonial to their satisfactory service. At one point, the learned State counsel indicated that the original record reveals that a 3-Member Committee for regularisation of the contractual appointees at Jharkhand Bhawan is proposed. Be that as it may, I am not inclined to send the matter back for re-consideration) A remand to an authority, which sits with a closed mind, would be a futility. Proposal for constitution of a committee to take a decision on regularisation, after a decision has already been taken, does not appeal to reason.
20. The next issue is, can this Court issue a direction for "regularisation in regular pay-scale"? Strictly speaking regularisation in service is an issue which falls predominately within the domain of the executives and legislature, however, there is no dearth of instances where the Courts have stepped in and passed an order for regularisation. The mandamus is a very wide remedy which must be easily available "to reach injustice wherever it is found" [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V. R. Rudani and Others" (1989) 2 SCC 691]. The present is a case of such a nature.
21. In the peculiar facts of the case, following the discussions in the above paragraphs, a direction is issued to the Chief Secretary, Government of Jharkhand-respondent no.1 to issue appropriate directions to the concerned department(s) to initiate a process for verification of the certificates, medical examination etc. of all the petitioners, for regularising their services on the "posts" and in the "pay-scale" which were sanctioned under Resolution dated 28.07.2001. The process must be completed on or before 31.05.2017, where-after the petitioners shall be paid regular pay-scale and allowances, as admissible. The petitioners who have been appointed against permanent posts shall remain on probation, if required under the extant rules and they shall be treated as permanent employees only on confirmation of their services, In so far as, the petitioners who were appointed against permanent posts on contract" such as, driver, cook, peon etc. the respondents shall take a decision on the conditions for their permanent absorption in service as regular employees, within six months.”
9. The Appellant-State of Jharkhand has challenged the order dated 03.04.2017 passed in W.P.(S) No. 3973 of 2014 mainly on the following grounds:-
a. The Hon'ble Single Judge has not considered the fact that the petitioners/respondents were not regular employees, rather they were working on contract basis.
b. The appointment of the petitioners/respondents have not been made after following due process of law i.e. without publication of advertisement and interview.
c. The petitioners/respondents were not eligible in terms of the Regularization Rules, 2015.
d. The Regularization Rules, 2015 framed by the State Government was in terms of the judgment passed by the Hon'ble Supreme Court of India in the case of State of Karnataka Versus Uma Devi reported in (2006) 4 SCC 1 and the cut-off date has been fixed for completion of 10 years of service as on 10.04.2006 and the petitioners/ respondents do not come under the purview of the said guidelines.
e. The Hon'ble Single Judge has not considered the fact that in the appointment letter there was a condition that the petitioners/ respondents shall not claim for regularization.
f. The Hon'ble Single Judge has not considered the fact that the regular appointment has been made by open advertisement in which the petitioners/ respondents have not applied.
10. The counsel for the respondents/ petitioners has submitted that the petitioners / respondents were appointed through advertisement and the same has been considered by the Learned Single Judge. Reliance has been placed upon the judgment passed by the Hon'ble Supreme Court of India in the case of State of Jammu and Kashmir and Others Versus District Bar Association Bandipora reported in 2017 (3) SCC 410. The counsel for the respondents/petitioners draws attention to the Regularization Rules, 2015 as amended in the year 2019 which provides that the respondents/petitioners should have in continuous service for more than 10 years as on 20.06.2019.
11. Upon hearing learned counsel for the parties, this Court finds that the issue raised by the appellants with respect to non-publication of advertisement has been dealt by the Learned Single Judge at paragraph-10 of the impugned order wherein it has been categorically held that the petitioners/respondents have produced the advertisement for employment. The Hon'ble Supreme Court of India in judgment rendered in the case of State of Jammu and Kashmir (supra) has held-
19. The judgment in Renu³ does not preclude, as a principle of law, the framing of an appropriate scheme of regularisation in appropriate situations meeting the norms spelt out in Umadevi (3) and the decisions which have followed. Dealing with a scheme framed for regularisation, this Court in Amarendra Kumar Mohapatra v. State of Orissa held as follows: (Amarendra Kumar case12, SCC pp. 607, 609 & 610, paras 38, 43 & 45)
"38. Equally important is the fact that even after declaring the true legal position on the subject and even after deprecating the practice of appointing people by means other than legitimate, this Court felt that those who had served for ten years or so may be put to extreme hardship if they were to be discharged from service and, therefore, directed the formulation of a scheme for their regularisation. This was no doubt a one-time measure, but so long as the appointment sought to be regularised was not illegal, the scheme envisaged by para 53 of the decision extracted above permitted the State to regularise such employees. Dr Dhavan argued that the appellant Stipendiary Engineers had, by the time the decision in Umadevi (3) case was pronounced, qualified for the benefit of a scheme of regularisation having put in ten years as ad hoc Assistant Engineers and fifteen years if their tenure was to be counted from the date of their employment as Stipendiary Engineers. He contended that even in the absence of a Validation Act, Stipendiary Engineers appointed on ad hoc basis as Assistant Engineers, who had worked for nearly ten years to the full satisfaction of the State Government would have been entitled to regularisation of their services in terms of any such scheme.
43. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L.. Kesari 13, has examined that question and explained the principle regarding regularisation as enunciated in Umadevi (3) case. The decision in that case summed up the following three essentials for regularisation: (1) the employees have worked for ten years or more. (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal, and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage: (M.L. Kesari case 13, SCC p. 250)
'7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3). if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
45. The upshot of the above discussion is that not only because in Umadevi (3) case this Court did not disturb the appointments already made or regularisation granted, but also because the decision itself permitted regularisation in case of irregular appointments, the legislative enactment granting such regularisation does not call for interference at this late stage when those appointed or regularised have already started retiring having served their respective departments, in some cases for as long as 22 years."
12. Even assuming that the advertisement was not published, the said appointment would be treated as irregular and not illegal. Irregular appointment can be regularized. However, it is made clear that in the instant case the advertisement was duly published for appointment of the petitioners / respondents.
13. The issue with respect to the fact that in the appointment letter there was a condition that the petitioners/ respondents would not claim for regular appointment has been dealt by the Learned Single Judge at paragraph-5 of the impugned judgment by relying upon the judgment passed by the Hon'ble Supreme Court of India in the case of Secretary-cum-Chief Engineer, Chandigarh Versus Hari Om Sharma and Others reported in (1998) 5 SCC 87 and the said issue do not needs interference by this Court.
14. The ground raised by the appellant with respect to the fact that the petitioners/ respondents have not completed 10 years of continuous service as on 10.04.2006 requires no interference in view of the fact that the cut-off date for calculation of 10 years of continuous service for regularization was 20.06.2019 in view of the Regularization Rules, 2015 as amended in the year 2019 by the State Government. The Hon'ble Supreme Court of India in the case of Narendra Kumar Tiwari and Others versus State of Jharkhand and Others reported in (2018) 8 SCC 238 has held at paragraphs-4 to 10 as under:-
“4. Having heard the learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3)[State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] as well as the subsequent decision of this Court explaining Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] in State of Karnataka v. M.L. Kesari [State of Karnatakav. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] as well as its consideration in Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] .
5. The decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily- wage workers and continuing with them indefinitely. In fact, in para 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.
6. The concept of a one-time measure was further explained in Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] in paras 9, 10 and 11 of the Report which read as follows: (SCC pp. 250-51, paras 9-11)
“9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi
(3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi
(3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , are so considered.
11. The object behind the said direction in para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] as a one-time measure.”
7. The purpose and intent of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] and Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of Karnatakav. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise — the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc.”
15. All the petitioners/ respondents have completed 10 years of continuous service as on 10.06.2019. The ground raised by the appellants that the petitioners/ respondents have not participated for regular appointment needs no interference as the same was never raised before the Learned Single Judge.
16. The Hon'ble Supreme Court in a judgment rendered in the case of Dharam Singh & Others. versus State of U.P. and Another reported in 2025 SCC OnLine SC 1735 has held as under:-
11. Furthermore, it must be clarified that the reliance placed by the High Court on Umadevi (Supra) to non-suit the appellants is misplaced. Unlike Umadevi (Supra), the challenge before us is not an invitation to bypass the constitutional scheme of public employment. It is a challenge to the State's arbitrary refusals to sanction posts despite the employer's own acknowledgement of need and decades of continuous reliance on the very workforce. On the other hand, Umadevi (Supra) draws a distinction between illegal appointments and irregular engagements and does not endorse the perpetuation of precarious employment where the work itself is permanent and the State has failed, for years, to put its house in order. Recent decisions of this Court in Jaggo v. Union of India and in Shripal v. Nagar Nigam, Ghaziabad have emphatically cautioned that Umadevi (Supra) cannot be deployed as a shield to justify exploitation through long-term "ad hocism", the use of outsourcing as a proxy, or the denial of basic parity where identical duties are exacted over extended periods. The principles articulated therein apply with full force to the present case. The relevant paras from Shripal (supra) have been reproduced hereunder:
"14. The Respondent Employer places reliance on Umadevi (supra) to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are "illegal" and those that are "irregular," the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor-based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.
15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records- despite directions to do so-allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite "temporary" employment practices as done by a recent judgment of this court in Jaggo v. Union of India³ in the following paragraphs:
"22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.
….
25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long -term obligations owed to employees. These practices manifest in several ways:
• Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled as "temporary" or "contractual, even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
• Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.""
13. As we have observed in both Jaggo (Supra) and Shripal (Supra), outsourcing cannot become a convenient shield to perpetuate precariousness and to sidestep fair engagement practices where the work is inherently perennial. The Commission's further contention that the appellants are not "full-time" employees but continue only by virtue of interim orders also does not advance their case. That interim protection was granted precisely because of the long history of engagement and the pendency of the challenge to the State's refusals.
17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels administration and offends the promise of equal protection. Financial corrodes confidence in public stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.
18. Moreover, it must necessarily be noted that "ad-hocism" thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If "constraint" is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running.
19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions:
i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High recommendation by the Commission and a fresh decision by the Court directed a fresh State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard caveats or preconditions. On regularization, each appellant shall or equivalent) without any be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above.
ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization/ retirement/ death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment.
iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgment.
iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause (ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgment.
v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgment.
17. Having regard to the aforesaid facts and the judgment rendered by the Hon'ble Supreme Court of India, the order dated 03.04.2017 passed in W.P.(S) No. 3973 of 2014 requires no interference by us and even otherwise, the order passed by the Learned Single Judge has been implemented by the State Government; the impugned judgment requires no interference on the ground of equity.
18. Consequently, the L.P.A. No. 482 of 2017 is also dismissed. Pending Interlocutory Application, if any, also stands closed.