Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover
of some interim orders of the court, would not confer upon him any right to be absorbed into
service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage
service for a long number of years, let alone service for one or two years, will not entitle such
employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and
sentiment cannot be grounds for passing any order of regularisation in the absence of a legal
right.
Secretary to Government, School Education Department, Chennai Vs. Thiru R. Govindaswamy & Ors.
SUPREME COURT OF INDIA
(DR. B.S. CHAUHAN AND A.K. SIKRI, JJ.)
SECRETARY TO GOVERNMENT, SCHOOL EDUCATION DEPARTMENT, CHENNAI
Appellant
VERSUS
THIRU R. GOVINDASWAMY & ORS.
Decided on 21-2-2014.
Service Law – Regularization of part time employee
Dr. B.S. Chauhan, J.:- These appeals have been preferred against the impugned judgments and orders
dated 21.11.2012 and 16.11.2012 in Writ Appeal Nos. 2402, 2403 2404, 2405 of 2012 and 2555, 2556 of
2012 passed by the High Court of Madras, by which the High Court has regularised the services of part-
time sweepers (respondents herein).
2. Facts and circumstances giving rise to these appeals are that: The respondents had been appointed as
part-time sweepers by appellant from 1987 till 1993 as their initial appointments had been issued to the
respondents and others on 1.12.1987, 2.5.1991, 1.4.1993, 10.4.1993, 27.5.1999 and 19.1.2001. As the
respondents and others had been working for more than 10 years, they filed Writ Petition Nos. 17468,
17470, 17472, 17473, 17469 and 17471 of 2012 before the High Court of Madras for seeking
regularisation of their services. The said Writ Petitions were allowed by the common judgment and order
dated 23.7.2012 with the direction to regularise the services of the respondents on full time basis based on
the individual representation after verifying their service particulars from the date of completion of 10
years of service with time scale of pay. Aggrieved, the appellant preferred the writ appeals which were
dismissed. Hence, these appeals.
3. Shri P.P. Rao, learned senior counsel appearing for the appellant has submitted that a direction to
regularise the part-time employees itself is contrary to law and the said direction could not have been
issued. It has further been submitted that as the impugned judgments and orders had been complied with
and the appellant is not going to disturb any of the respondents and others, the law should be clarified on
the issue so that in future the High Court may not use the impugned judgment as a precedent.
4. Per contra, Shri P.R. Kovilan P, learned counsel appearing for the respondents has submitted that as the
respondents had been working as part-time sweepers for a very long time and not regularising their
services would tantamount to exploitation. Therefore, no interference is called for in these appeals.
5. The issue involved here remains restricted as to whether the services of the part-time sweepers could
have been directed by the High Court to be regularized. The issue is no more res integra. In State of
Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, this Court held as under:
“There is no fundamental right in those who have been employed on daily wages or temporarily
or on contractual basis, to claim that they have a right to be absorbed in service. As has been held
by this Court, they cannot be said to be holders of a post, since, a regular appointment could be
made only by making appointments consistent with the requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally with the other employees employed on daily wages,
cannot be extended to a claim for equal treatment with those who were regularly employed. That
would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in
service even though they have never been selected in terms of the relevant recruitment rules.”
6. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC 448, this Court dealt with the issue of
regularisation of part-time employees and the court refused the relief on the ground that part- timers are
free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they
are not working for the authority/employer. Being the part-time employees, they are not subject to service
rules or other regulations which govern and control the regularly appointed staff of the department.
Therefore, the question of giving them equal pay for equal work or considering their case for
regularisation would not arise.
7. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the
scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down
well-settled principles relating to regularisation and parity in pay relevant in the context of the issues
involved therein. The same are as under:
“8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue
directions for regularisation, absorption or permanent continuance, unless the employees claiming
regularisation had been appointed in pursuance of a regular recruitment in accordance with
relevant rules in an open competitive process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not
issue a direction for regularisation of services of an employee which would be violative of the
constitutional scheme. While something that is irregular for want of compliance with one of the
elements in the process of selection which does not go to the root of the process, can be
regularised, back door entries, appointments contrary to the constitutional scheme and/or
appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover
of some interim orders of the court, would not confer upon him any right to be absorbed into
service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage
service for a long number of years, let alone service for one or two years, will not entitle such
employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and
sentiment cannot be grounds for passing any order of regularisation in the absence of a legal
right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme
providing that persons who had put in a specified number of years of service and continuing in
employment as on the cut-off date), it is not possible to others who were appointed subsequent to
the cut-off date, to claim or contend that the scheme should be applied to them by extending the
cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off
dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against
any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent
continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary
with regular employees of the Government on the principle of equal pay for equal work. Nor can
employees in private employment, even if serving full time, seek parity in salary with government
employees. The right to claim a particular salary against the State must arise under a contract or
under a statute.”
(Emphasis added)
8. The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment.
Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri
P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned
judgments and does not want to disturb the services of the respondents, the services of the respondents
which stood regularised should not be affected. With the aforesaid observations, the appeals stand
disposed of accordingly. No order as to costs.
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