Sujit Narayan Prasad, J.
1. The present writ petition under Article 226 of the Constitution of India has been filed against the order dated 15.3.2024 passed by the Central Administrative Tribunal, Patna Bench, Circuit Bench, Ranchi in O.A./051/00624/2019, whereby and whereunder, the following orders have been passed:
“20. Considering the entirety of facts and legal aspects as discussed above, we are of considered view that applicant was liable to be considered for grant of Temporary Status and further for regularisation as Group 'D'. The order passed by Respondent No. 5 (Annexure 4) rejecting the case of applicant on the ground that he was a part-time casual worker was against the aforesaid directions of the Department of posts and the law laid down by Hon'ble Supreme Court. Further, the applicant was entrusted the responsibility of a vacant Group 'D' post at Ranchi GPO w.e.f. 05.05.2008 (Annexure-25) which means that vacancy was available.
21. We feel that Interest of justice would be served if the order dated 4.8.1993 (Annexure-4) passed by Superintendent of Post Offices is quashed and set aside and respondents are directed to consider the case of applicant for grant of 'Temporary Status to applicant in terms of the observation in above para.
22. Accordingly, the order dated 4.8.1993 (Annexure 4) passed by Superintendent of Post Offices is quashed and set aside. Respondents are directed to consider the case of applicant for grant of ‘Temporary Status’ from the day he became eligible, and further grant of Temporary Group ‘D” status after three years and also his regularistion as Group ‘D’/MTS keeping the fact in view that he was asked to function against vacant post of Group ‘D’ w.e.f. 5.5.2008.”
2. The brief facts of the case which require to be enumerated herein read as under:
(i) It is stated that the applicant was appointed to the sanctioned and vacant post of Contingent Paid Chowkidar Ranchi, H.O. Cycle Stand by the competent authority vide Memo No. B-1/dated 22.02.1982. He performed the duty of Chowkidar in the Cycle stand Ranchi G.P.O for 5.00 Hrs. from 22.02.1982 to 22.05.2007. He was brought on duty of Letter Box Poen at Ranchi G.P.O. for 8.00 Hrs from 23.05.2007 till his retirement i.e. 30.06.2019.
(ii) It is stated that the service of the applicant as contingent paid staff was for 5.00 hrs. duty and part time casual labourer was not entitled for conferring the temporary status as such Sri Mahto as not granted temporary status. Vide point 1.1 of clarification of OM No. 51016/2/90-Estt (C) dated 10.09.1993. The facility of temporary status was extended up to 01.09.1993 vide Dept. of Posts, letter No. 66-52/92-SPB. 1, dated the 1st November, 1995 as amended by letter, dated the 8th November, 1995.
(iii) It is further stated that as per instruction issued by the department of Posts vide letter No.45-14/92 SPB. 1, dated the 16th September, 1992 the services of part time casual laborer working for five hrs or more was to be examined and they were to be made full time casual laborer by readjustment or combination of duties. Accordingly Sri Mahto was employed for 8 hrs duty from 23.05.2007.
(iv) It is stated that in response to the application dated 03.05.2007 and Circle office letter No. Staff/Mice-ED/07 dated 09.10.2007 a reply had been submitted to circle Office, Ranchi vide this office letter of even No. dated 13.11.2007. In this letter as mentioned Sri Mahto was performing 7.21 hrs duty from 01.10.2004. In the mean time Sr. Postmaster Ranchi GPO informed vide his letter No. CPM/Misc/07-08 dated 23.05.2007 that Sri Mahto was performing duty for 8.00 hrs per day. Sri Mahto again applied for granting Temporary Status dated 30.12.2008 addressed to Chief Postmaster General, Jharkhand Circle, Ranchi. In this regards, Sr. Postmaster Ranchi G.P.O reported vide his letter No. Sr. PM/Misc/Ranchi GPO/2018- 19 dated 09.08.2018 that there is restriction of granting temporary status after 01.09.1993 vide the Dte. Letter No. 01-07/2016-SPB-1 dated 22 July, 2016.
(v) That it is stated that the services of Sri Ram Sevak Mahto was as contingent paid staff for 5.00 hrs duty less than 8.00 hrs duty and part time casual labourer was not entitled for conferring the temporary status as such Sri Mahto was not granted temporary status. Vide point of clarification to OM No. 51016/2/90-Estt(C) dated 10.09.1993.
(vi) That it is stated that as per instruction issued by the department of Posts vide letter No. 45-56/92, SPB. 1, dated the 16th September, 1992 the services of part time casual laborer working for five hrs or more was to be examined and they were to be made full time casual labourer by readjustment or combination of duties. Accordingly Sri Mahto was employed for 7.21 hrs. duty from 01.10.2004 and 8.00 hrs duty from 23.5.2007.”
3. The respondent-applicant before the Tribunal has raised the grievance for his regularization in service by seeking following relief(s):
“(i) That Hon'ble Tribunal may be pleased to direct the concerned Respondents to grant Temporary Status to Group 'D' (Now Multi Tasking Staff) since 03.03.1985 as per ratio laid down by Hon'ble Supreme Court Judgment dated 17.01.1986 in Surender Singh case and/or as per Government Rule and Instructions and/or if not practicable to in that case, Temporary Status should be granted from the date from which subsequently appointed (junior) casual labourer granted Temporary status to the Group 'D' (MTS) and the applicant should be regularized to Group 'D' / MTS from 10.09.1995, the date from which subsequently appointed (juniors) have been granted Temporary Status to Group 'D' /MTS to the Departmental post.
(ii) That the Hon'ble Tribunal may kindly be pleased to direct the concerned respondents to give all consequential service benefits to the applicant from date, subsequently appointed (junior) labourers have been granted and paid.
(iii) That the Hon'ble Tribunal may further be pleased to direct the concerned respondents to pay the due arrears of wages for the period 8 Hours worked against the sanctioned and vacant post Contingent Paid Chowkidar from 03.03.1982 to the date of regularization as the applicant has been appointed to the vacant post.
(iv) That the Hon'ble Tribunal may be pleased to direct to give other consequential relief(s) for which the applicant is legally entitled to in accordance with the Rule, Resolution, order, letter and instructions issued time to time by the appropriate Government for the benefits/welfare of its employees in accordance with law.”
4. The learned Tribunal has called upon the respondents who have contested the case on merits.
5. The learned Tribunal after hearing the parties has quashed the order dated 4.8.1993 passed by the Superintendent of Post Offices and directed the respondents to consider the case of applicant for grant of ‘Temporary Status’ from the day he became eligible, and further grant of Temporary Group ‘D” status after three years and also his regularization as Group ‘D’/MTS in view of the fact that he was asked to function against vacant post of Group ‘D’ w.e.f. 5.5.2008. which is under challenge in the present writ petition.
6. Mr. Prabhat Kumar Sinha, the learned counsel appearing on behalf of the petitioners, at the outset, has submitted that he is only challenging the issue of regularization and not assailing the decision of conferment of the temporary status to the respondent-applicant.
7. It has been argued by him that the order of regularization as has been directed by the learned Tribunal should not have been passed taking into consideration the non-availability of vacancies but that aspect of the matter has not been taken into consideration. It has been submitted that claim of the applicant has already been dealt with by rejecting the conferment of the temporary status vide order dated 4.8.1993 but without challenging the aforesaid decision, again prayer has been made before the learned Tribunal and based upon that the conferment of temporary status has been granted and subsequently order has been passed for his regularization. The argument, therefore, has been advanced that the claim of the respondent-applicant has already been rejected vide order dated 4.8.1993 then there was no occasion to regularize the respondent- applicant in service that too when the order dated 4.8.1993 has not been assailed. The learned counsel on the aforesaid grounds has submitted that the order passed by the learned Tribunal is not sustainable in the eye of law.
8. We have heard the learned counsel appearing on behalf of the petitioners. Before proceeding further, it needs to refer herein that the matter was heard yesterday, i.e., on 16.3.2026 when Mr. Prabhat Kumar Sinha, the learned counsel appearing on behalf of the writ- petitioners has submitted that he is not challenging the conferment of temporary status in view of the Policy Decision dated 9.8.1996 rather he is only contesting the direction of regularization of the respondent-applicant.
9. The aforesaid submission has been taken note by this Court in the order dated 16.03.2026 which is being refereed herein under:
“Order No.07/Dated 16th March, 2026
1. Mr. Prabhat Kr. Sinha, learned counsel for the petitioners, in course of argument, has submitted that the learned Tribunal has passed the direction in two folds:-
(i) The conferment of temporary status in favour of the one or other applicants, who is respondent herein.
(ii) In consequence upon the grant of conferment of temporary status, to consider his case for regularization.
2. The part of the order by which the temporary status has been conferred upon the respondent is not under challenge. Only part, which is being questioned herein, is the issue of regularization of the concerned respondent, who has been conferred with the temporary status.
3. For further argument, list this matter tomorrow i.e., on 17.03.2026.”
10. The question of regularization is only being argued said to be not a proper direction by the learned Tribunal. Therefore, this Court is to decide the issue of regularization only as to whether the direction passed by the learned Tribunal after conferment of the temporary status of the respondent-applicant as also the arrears of salary in view of the order passed by the Labour Court and by virtue of that 8 hours wages to the applicant have been provided, can it be said that in such pretext the order of regularization which has been passed by the learned Tribunal suffers from any error.
11. This court proceeding in premise of the fact that the conferment of temporary status of the applicant has not been assailed by the applicant and although the same has been prayed before the Tribunal. But as has been argued by the learned counsel appearing for the writ petitioner putting reliance upon the decision dated 9.8.1996 that the respondent-applicant herein has been found to be in employment on 10.9.1993 and, as such, he is entitled for conferment of temporary status which has already been granted w.e.f. 23.5.2007. The applicant has also been allowed to carry out the work for 8 hours and from the date of passing of an Award by the Labour Court the arrears of differences of salary, on account of the enhanced hours of working, has also been paid w.e.f. 23.5.2007, the date when the applicant has been conferred with a temporary status. The conferment of temporary status is on the basis of the Policy Decision dated 9.8.1996.
12. In OA/051/00624/2019, the learned counsel for the applicant, in support of his averment, has annexed an order of Dept. of Posts, Ministry of Communication dated 09.08.1996 which is reproduced herein under:
"Govt. of India
Ministry of Communication Deptt. of Post
Dak Bhavan, Sansad Marg New Delhi-110001
No.66-52/72SPB 1Dated 9.8.96
To,
All the Chief Postmaster General All the Postmaster General
All Principal, Postal Training Centre Controller Foreign Mails, Bombay Director, Postal Staff College, Ghaziabad
Sub: Casual labourers (Grant of Temporary Status and Regularisation) Scheme.
Sir,
I am directed to refer to the scheme on the above Subject issued this office vide letter No. 45-95/97 SPB I, dated 12.04.91 and no. 66-9/81 SPB I dated 30.1.1.92 as per which part time full time casual labourers who were in employment as on 10.9.93 were liable to be conferred “Temporary Status" on satisfying other eligibility conditions.
The question of extending the benefits to the scheme to those part time & full time casual labourers who were engaged/recruited after 10.9.93 has been considered in this office in the light of Judgement of CAT Ernakulam Bench Ernakulam delivered on 15.4.96 in OA No.750/94.
It has been decided that part time &full time casual Labourers recruited after 10.9.93 and upto 12.11.95 may also be considered for grant of benefits under the scheme.
This issues with the approval of the TA and Dy. No.2455.96 dt 10.6.96.
Yours faithfully
Sd/-A.K.Kaushal Assts. Director General
SPBI
Copy to:
1) The Officer-incharge A.P. record office camptee
2) SPB II/ADMN/VIG-I, II, II/MCOY/TAP/PAT/PENSIC/ PE/1-11/PSOT, AR/STN.
3) Civil Wing (Postal) Lucknow
4) All recognised Union
Sd. A.K. Kaushal
Assts. Director General (SPB I)”
13. The only question remains to be considered by this Court is that after conferment of the temporary status, the order of regularization can be said to suffer from any error.
14. Before appreciating the aforesaid issue, the law relating to regularization which is prevailing as of now requires to refer herein.
15. At this juncture, the reference of the judgment passed by Hon’ble Apex Court in the case of Secretary, State of Karnataka v. Umadevi (3) and Others, (2006)4 SCC 1 needs to be referred herein along with its background as to why such proposition has been laid down by Hon’ble Apex Court, as would be evident from paragraph Nos. 7 to 10 and paragraph Nos. 33, 34 and 45 are being referred herein.
“7. These two sets of appeals reflect the cleavage of opinion in the High Court of Karnataka based on the difference in approach in two sets of decisions of this Court leading to a reference of these appeals to the Constitution Bench for decision. The conflict relates to the right, if any, of employees appointed by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be made permanent in appropriate posts, the work of which they were otherwise doing. The claim is essentially based on the fact that they having continued in employment orengaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned. There are also more ambitious claims that even if they were not working against a sanctioned post, even if they do not possess the requisite qualification, even if they were not appointed in terms of the procedure prescribed for appointment, and had only recently been engaged, they are entitled to continue and should be directed to be absorbed.
8. In Civil Appeals Nos. 3595-612 of 1999 the respondents therein who were temporarily engaged on daily wages in the Commercial Taxes Department in some of the districts of the State of Karnataka claim that they worked in the Department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the Department, entitled to all the benefits of regular employees. They were engaged for the first time in the years 1985-86 and in the teeth of orders not to make such appointments issued on 3-7-1984. Though the Director of Commercial Taxes recommended that they be absorbed, the Government did not accede to that recommendation. These respondents thereupon approached the Administrative Tribunal in the year 1997 with their claim. The Administrative Tribunal rejected their claim finding that they had not made out a right either to get wages equal to that of others regularly employed or for regularisation. Thus, the applications filed were dismissed. The respondents approached the High Court of Karnataka challenging the decision of the Administrative Tribunal. It is seen that the High Court without really coming to grips with the question falling for decision in the light of the findings of the Administrative Tribunal and the decisions of this Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the High Court by more than 12 years. The High Court also issued a command to the State to consider their cases for regularisation within a period of four months from the date of receipt of that order. The High Court seems to have proceeded on the basis that, whether they were appointed before 1-7-1984, a situation covered by the decision of this Court in Dharwad District PWD Literate Daily Wage Employees Assn. v. State of Karnataka [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] and the scheme framed pursuant to the direction thereunder, or subsequently, since they have worked for a period of 10 years, they were entitled to equal pay for equal work from the very inception of their engagement on daily wages and were also entitled to be considered for regularisation in their posts.
9. Civil Appeals Nos. 1861-2063 of 2001 reflect the other side of the coin. The appellant association with indefinite number of members approached the High Court with a writ petition under Article 226 of the Constitution challenging the order of the Government directing cancellation of appointments of all casual workers/daily-rated workers made after 1-7-1984 and further seeking a direction for the regularisation of all the daily-wagers engaged by the Government of Karnataka and its local bodies. A learned Single Judge of the High Court disposed of the writ petition by granting permission to the petitioners before him, to approach their employers for absorption and regularisation of their services and also for payment of their salaries on a par with the regular workers, by making appropriate representations within the time fixed therein and directing the employers to consider the cases of the claimants for absorption and regularisation in accordance with the observations made by the Supreme Court in similar cases. The State of Karnataka filed appeals against the decision of the learned Single Judge. A Division Bench of the High Court allowed the appeals. It held that the daily-wage employees, employed or engaged either in government departments or other statutory bodies after 1-7-1984, were not entitled to the benefit of the scheme framed by this Court in Dharwad District PWD case [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] referred to earlier. The High Court considered various orders and directions issued by the Government interdicting such engagements or employment and the manner of entry of the various employees. Feeling aggrieved by the dismissal of their claim, the members of the associations have filed these.
10. When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in Secy., State of Karnataka v. Umadevi (1) [(2004) 7 SCC 132 : 2004 SCC (L&S) 935 : (2003) 9 Scale 187] .
This Court noticed that in the matter of regularisation of ad hoc employees, there were conflicting decisions by three-Judge Benches of this Court and by two-Judge Benches and hence the question required to be considered by a larger Bench. When the matters came up before a three-Judge Bench, the Bench in turn felt that the matter required consideration by a Constitution Bench in view of the conflict and in the light of the arguments raised by the Additional Solicitor General. ---
33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
34. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004 SCC (L&S) 918] a three-Judge Bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularised by the State. The State could not invoke its power under Article 162 of the Constitution to regularise such appointments. This Court also held that regularisation is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or any body or authority governed by a statutory Act or the rules framed thereunder. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularisation.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm's length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutionalscheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total 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. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted 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.
16. It is evident from the aforesaid paragraphs that the reason for rendering such judgment by the Hon’ble Apex Court is to put restriction upon the backdoor entry. However, after giving the consideration about illegal entry and bifurcating the recruitment/appointment in two categories i.e., irregular and illegal, parameter has been fixed at para-53, i.e., if the appointment is irregular, the same can be regularized depending upon the condition of more than ten years continuous service without any aid of the order of the court and the appointment being made against the sanctioned post. Such employees to be regularized by the State by taking one time exercise to be completed within six months from the date of judgment passed by the Hon’ble Apex Court in the said case, for ready reference Para-53 is being referred hereunder as :-
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] 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 regularisation 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 abovereferred 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 regularisation, 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.
17. The crux of the proposition laid down by the Hon’ble Apex Court in the case of Secretary, State of Karnataka v. Umadevi (3) (Supra) is that the restriction is to be put on the backdoor entry vis-à-vis the issue of exploitation and unfair level practice has also been taken of that is the reason the State has been directed to do the exercise by way of one time exercise to regularize the services of such employees who are working since last more than 10 years without any aid of an order passed by the court of law so that unfair level practice of exploitation by making payment of only minimum wages be taken care of.
18. In the case of Secretary, State of Karnataka v. Umadevi (3) (Supra) it has also been laid down as would be evident from para 53 that the reference of appointment made against the sanctioned post has also been taken care of. The appointment, if not made against the sanctioned post, then such appointment has been considered to be illegal appointment and the moment such appointment has been found to be illegal, such appointees are to be dispensed with from service immediately.
19. The Hon’ble Apex Court recently in the case of Jaggo v. Union of India and Others2024 SCC OnLine SC 3826, while dealing with the issue of regularization in a case where the issue of regularization relates to the part time worker who has not been appointed against the sanctioned post, the Hon’ble Apex Court, after taking note of the judgment passed in the case of Secretary, State of Karnataka v. Umadevi (3) (Supra), has been pleased to hold at paragraph 20 that the decision in Secretary, State of Karnataka v. Umadevi (3) (Supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly “irregular,” and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization.
20. The Hon’ble Apex Court, in the said judgment, has also referred the judgment rendered in the case of Vinod Kumar v. Union of India [(2024) 1 SCR 1230], wherein it was held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed “temporary” but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee.
1. Recently, in the case of Bhola Nath vs. State of Jharkhand and Others 2026 SCC Online SC 129, the Hon’ble Apex Court has held that Contractual stipulations purporting to bar claims for regularization cannot override constitutional guarantees. Acceptance of contractual terms does not amount to waiver of fundamental rights, and contractual stipulations cannot immunize arbitrary State action from constitutional scrutiny. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under:
“Legitimate Expectation of the employees: -
13. Another facet requiring consideration in the case of contractual employees, such as the present appellants, is the doctrine of legitimate expectation. Where employees have continued to discharge their duties on contractual posts for a considerable length of time, as in the present case, it is but natural that a legitimate expectation arises that the State would, at some stage, recognize their long and continuous service. It is in this belief, bolstered by repeated extensions granted by theExecutive, that such employees continue in service and refrain from seeking alternative employment, notwithstanding the contractual nature of their engagement. At this juncture, it is thus apposite to advert to the principles governing the doctrine of legitimate expectation as enunciated by this Court in Army Welfare Education Society v. Sunil Kumar Sharma, wherein it was held as follows:-
“63. A reading of the aforesaid decisions brings forth the following features regarding the doctrine of legitimate expectation:
63.1. First, legitimate expectation must be based on a right as opposed to a mere hope, wish or anticipation;
63.2. Secondly, legitimate expectation must arise either from an express or implied promise; or a consistent past practice or custom followed by an authority in its dealings; …
63.5. Fifthly, legitimate expectation operates in the realm of public law, that is, a plea of legitimate action can be taken only when a public authority breaches a promise or deviates from a consistent past practice, without any reasonable basis. ...
64.The aforesaid features, although not exhaustive in nature, are sufficient to help us in deciding the applicability of the doctrine of legitimate expectation to the facts of the case at hand. It is clear that legitimate expectation, jurisprudentially, was a device created in order to maintain a check on arbitrariness in State action. It does not extend to and cannot govern the operation of contracts between private parties, wherein the doctrine of promissory estoppel holds the field.” (emphasis laid)
It is, therefore, not difficult to comprehend the expectation with which such contractual employees continue in the service of the State. The repeated conduct of the employer-State in expressing confidence in their performance and consistently granting monetary upgrades & tenure extensions reasonably nurtures an expectation that their long and continuous service would receive further recognition.
13.1. Another Constitution Bench in State of Karnataka v. Umadevi, cautioned that the doctrine of legitimate expectation cannot ordinarily be extended to persons whose appointments are temporary, casual or contractual in nature. The relevant extract of the judgment reads as follows:
“47. 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 theconsequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” (emphasis laid)
However, this Court in Umadevi (supra) clarified that the bar against invocation of the doctrine of legitimate expectation applies only to those temporary, contractual or casual employees whose engagement was not preceded by a proper selection process in accordance with the extant rules. Consequently, where such engagement is made after following a due and lawful selection procedure, there is no absolute bar in law preventing such employees from invoking the doctrine of legitimate expectation.
FINAL CONCLUSION:
21. In light of our discussion, in the foregoing paragraphs, we summarize our conclusions as follows:
I. The respondent-State was not justified in continuing the appellants on sanctioned vacant posts for over a decade under the nomenclature of contractual engagement and thereafter denying them consideration for regularization.
II. Abrupt discontinuance of such long-standing engagement solely on the basis of contractual nomenclature, without either recording cogent reasons or passing a speaking order, is manifestly arbitrary and violative of Article 14 of the Constitution.
III. Contractual stipulations purporting to bar claims for regularization cannot override constitutional guarantees. Acceptance of contractual terms does not amount to waiver of fundamental rights, and contractual stipulations cannot immunize arbitrary State action from constitutional scrutiny.
IV. The State, as a model employer, cannot rely on contractual labels or mechanical application of Umadevi (supra) to justify prolonged ad- hocism or to discard long-serving employees in a manner inconsistent with fairness, dignity and constitutional governance.
V. In view of the foregoing discussion, we direct the respondent State to forthwith regularize the services of all the appellants against the sanctioned posts to which they were initially appointed. The appellants shall be entitled to all consequential service benefits accruing from the date of this judgment.
22. The reference of the judgment passed by the Coordinate Bench of this Court in L.P.A. No.529 of 2019 [The State of Jharkhand & Others v. Md. Ahsanullah Khan] also needs to be referred herein wherein also as per the decision made by the State in the said case, Md. Ahsanullah Khan was working for the last 26 years but not against the sanctioned post, rather, his appointment was said to be seasonal. This Court, after taking into consideration the long length of service of 26 years, has passed direction for his regularization in service on the consideration of the fact that the identically placed employees have already been regularized in service.
23. The said judgment passed by this Court has been challenged by filing Special Leave to Appeal (C) No.9318 of 2022 but the same was dismissed. The relevant paragraph of the judgment passed in L.P.A. No.529 of 2019 are being referred herein :-
“31. We have gone through the judgment rendered by the learned Single Judge and found therefrom that the consideration has been made with respect to the appointment of three persons out of which two persons, namely, Ram Sewak Mahto and Mithilesh Kumar Tiwary have been appointed on the basis of the order passed by this Court and one Sri Kamleshwar Rana has been appointed on the basis of the assurance of the Legislative Assembly of the State and further consideration has been made that the land of the writ petitioner has been acquired sometime in the year 1986 and his case has been considered but he has not been provided appointment on regular basis rather on temporary basis to which he is still continuing. Taking into consideration this aspect of the matter, if the order has been passed to come out with the advertisement for appointment of writ petitioner by giving priority in age and relaxation by granting weightage in marks the same cannot be said to suffer from any error. It cannot be said to be excess in jurisdiction by issuing a direction upon the State- appellant under Article 226 of the Constitution of India to come out with an advertisement rather according to our considered view, since the Writ Court under Article 226 of the Constitution of India is the Court of equity and if in exceptional circumstances a Writ Court considers it just and proper case by issuing a command upon the State to come out with an advertisement, the same cannot be said to be excess in jurisdiction.
32. Herein also, in the given facts as discusses hereinabove, it is a case of exception in which the land of the writ petitioner has been acquired way back in the year 1986 but he has been offered temporary appointment while other similarly situated persons like Ram Sewak Mahto and Mithilesh Kumar Tiwary have been appointed on the basis of the order passed by this Court by invoking the jurisdiction of this Court sitting under Article 226 of the Constitution of India and one Sri Kamleshwar Rana has been appointed on the basis of the assurance of Legislative Assembly of the State, this Court cannot be a mute expectator in exercising the power conferred under Article 226 of the Constitution of India.
33. If the writ petitioner has been subjected to hostile discrimination that too without any reason since time and again this Court has passed judicial orders but no reason has been explained for differentiating the case of Ram Sewak Mahto, Sri Kamleshwar Rana and Mithilesh Kumar Tiwary with the case of the writ petitioner.
34. In view thereof, this Court in the entirety of the facts and circumstances, is of the view that the order passed by the learned Single Judge suffers from no infirmity, accordingly, the instant appeal fails and is dismissed”
24. In the background of the aforesaid settled position of law, this Court is now re-adverting to the fact of the present case. The Applicant has been conferred with temporary status w.e.f. 23.5.2007 and such conferment has been granted on consideration of the admitted fact that the respondent-applicant has been found in employment as on 10.9.1993. As per Policy Decision dated 9.8.1996, the employee(s) found to be in employment on 10.9.1993 is/are to be conferred with the temporary status, meaning thereby, the fact about discharge of duty by the applicant at least from 10.9.1993 is not in dispute.
25. The applicant therefore, continuously discharging his duty from 10.9.1993 till the date of his superannuation, i.e., 30.06.2019. Hence, the applicant has been found in regular service from 10.9.1993 till the date of his retirement i.e. 30.06.2019, the period more than about 25 years.
26. Further in the present case, the ground which has been taken by the writ petitioner that the claim of the applicant has been rejected vide order dated 04.8.1993, even though, the same has not been challenged but it has been quashed, this Court with respect to such argument is of the view that even accepting claim of the applicant for conferment of temporary status has been rejected vide order dated 04.8.1993 but subsequent thereto the writ petitioner himself has come out with a Policy Decision dated 09.8.1996 to confer temporary status if employee(s) found to be in employment on 10.9.1993.
27. Admittedly, the applicant has been found to be in employment on 10.9.1993 and, as such, he has been conferred with the temporary status as per the Policy Decision dated9.8.1996 and for this specific reason conferment of temporary status has not been challenged as per the submission made on behalf of the writ petitioners, as stated herein above.
28. Therefore, this Court is of the view that even the order dated 04.8.1993 has not been challenged by the applicant and if it has been quashed and set-aside with a direction to grant temporary status to the applicant, the same is now available to the writ petitioners to challenge that part of the order once the submission has been advanced that the respondent-applicant has not challenged the issue of temporary status.
29. The issue of regularization since is under challenge and as such in view of the law down by the Hon’ble Apex Court as referred and discussed herein above, the applicant since has been found to be in regular service of the writ petitioner for long 25 years, hence, order of regularization cannot be said to be suffer from an error.
30. In view of above discussions, this court is of the view that the order passed by the learned Tribunal suffers from no infirmity, accordingly, the instant writ petition fails and is dismissed.
31. Pending interlocutory application (s), if any, also stands disposed of.
Sanjay Prasad, J.
I Agree.
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