1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.175-176 OF 2019

(@SLP(C) NOS.37798-37799 OF 2013)

UNION OF INDIA & ORS. APPELLANT(S)

VERSUS

SANT LAL & ORS.ETC.ETC. RESPONDENT(S)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J.

The Union of India has moved these proceedings aggrieved by a judgment of a

Division Bench of the Allahabad High Court dated 19 July, 2013.

The issue pertains to a direction for regularizing the services of eighteen

respondents in Group ‘D’ posts at the Regional Training Institute at Allahabad 1. The

organization falls under the administrative control of the Comptroller and Auditor
Signature Not Verified

General of India.
Digitally signed by
SANJAY KUMAR
Date: 2019.09.02
16:42:38 IST
Reason:

1 ‘The Institute’
 2

The first round of proceedings was initiated on behalf of persons who had been

engaged as Group ‘D’ workers on a casual basis at the Institute. The grievance before

the Central Administrative Tribunal was that since 1986, the Institute had engaged

casual workers and, despite long years of service, they had not been regularized. By

the time the Tribunal delivered its judgment on 6 January, 2006, many of them had put

in well over twelve years of service. While disposing of the Original Application 2, the

Tribunal issued directions (i)mandating the preparation of a seniority list in accordance

with the number of days worked; and (ii) for working out the possibility of regularizing

the services of these casual workers against vacant Group ‘D’ posts then existing or as

may be created in the near future.

The Tribunal directed that in the meanwhile the workers shall be accommodated

in batches of twenty in accordance with the exigencies of work in the Institute. The

directions contained in the judgment of the Tribunal are extracted below:

“6...The possible solution, therefore, would be that the

respondents carry out an exercise of preparing a seniority list
in the descending order of the number of days these casual
labourers worked as on 01.04.2005 (irrespective of whether
the casual labourers were on duty on this day) and on the
basis of their seniority, they shall work out the possibility of
regularizing the services of such casual labourers against any
vacant post of Group D post or any new post created in the
near future. In so far as day to day work is concerned, the
respondents shall accommodate the first 20 and in case of
their unavailability for any span of time, according to the
seniority they may engage other casual labourers on need
basis. Those who are tailenders, may be suitably informed of
their bleak prospects of being engaged in view of the fact that
there are adequate number of casual labourers to be engaged
for day to day work who are senior to such persons. Out of
the seniors as on date, if any of them are not being engaged,
the respondents shall accommodate them as well.”

2 OA No 1191 of 2004
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The judgment of the Tribunal was assailed before and considered by a Division

Bench of the Allahabad High Court in writ proceedings 3 initiated by the Comptroller and

Auditor General of India. The High Court by its judgment dated 23 March 2006

observed that “it was not in dispute” that there was no positive direction as such for

regularization of the service of the casual workmen and that there was only a direction

for considering the possibility of regularization. Hence, while disposing of the petition,

the High Court observed thus:

“It is not disputed by … learned counsel for the respondents

that the Tribunal had not issued any positive direction for
regularization of service of such casual labourers but had
merely observed that the petitioners should consider the
possibility of regularizing the services against any vacant
group ‘D’ post or any new post that was likely to be created in
near future. In this view of the matter, the contention
advanced by Sri Amit Sthalekar, learned counsel for the
petitioners that a positive direction for regularization could not
have been issued by the Tribunal, is misconceived.
We are also of the considered opinion that the direction by the
Tribunal to accommodate the first 20 casual labourers from
the list prepared on the basis of the seniority is also in
consonance with the provisions of Rule 77 of the Industrial
Dispute (Central) Rules, 1957 and as such it calls for no
interference from this Court.”

After the judgment of the High Court, the casual workmen moved the Tribunal in

another Original Application in 20084. The specific grievance with which the application

was moved was that despite the specific directions contained in the order of the

Tribunal to observe seniority, persons who had been regularized and given permanent

status were below the applicants in the order of seniority. Specific examples were

furnished of the manner in which the seniority list was breached.

3 Civil Miscellaneous Writ Petition No 15825 of 2006

4 OA No 1052 of 2008
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The Union of India responded to the averments contained in the Original

Application and sought to contend that it had engaged such of the casual workers who

had reported for work.

The Tribunal by its decision dated 2 April, 2013 held that in pursuance of its

earlier order, which was confirmed by the Allahabad High Court, the Union of India was

obliged to prepare a seniority list based on the number of days worked and to consider

the possibility of regularization against existing or future vacancies. The Tribunal

observed that despite its earlier directions, the authorities at the Institute had proceeded

to regularize persons junior to them and with a lesser length of service.

In the meantime, in 2011, new recruitment rules titled “the Indian Audit and

Accounts Department Multi- Tasking Staff Recruitment Rules, 2011” 5 came into force in

pursuance of which advertisements were issued for filling up several posts of Multi-

Tasking Staff.

The Tribunal observed that though the applicants before it had admittedly worked

for a longer period of time than the private respondents (Respondents 6 to 9) who had

been regularized, the benefit of regularization had not been granted to seniors in the

seniority list. The Tribunal has rejected the defence that those who are not regularized,

though senior, had not reported for work. In this view of the matter, the Tribunal noted

that the Union of India had committed a breach of its assurance furnished in the course

of earlier contempt proceedings that those who would report for duty would be accepted

on work. Moreover, while failing to regularize persons who had put in more than 12

years of service as casual workers, the benefit of regularization had been granted to

juniors despite the earlier orders which had attained finality. The Tribunal accordingly

5 ‘Multi-Tasking Rules’
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issued the following directions:

“21. In view of the above discussion, it is directed that the

respondents shall accord the same benefit of regularisation to
the applicants as has been admittedly accorded to their
juniors Respondent Nos. 6 to 9. While according the said
benefit to the applicants, the respondents would follow the
order of seniority in the seniority list admittedly prepared in
pursuance to the orders of this Tribunal in OA No.1191 of
2004 as upheld by the Hon’ble Allahabad High Court in Civil
Misc. W.P. No.15825/06. The said benefit shall be accorded to
the applicants from the same date as that of their admitted
juniors. The said regularisation would be accorded in the
available vacancies in various categories like unreserved, SC,
ST and OBC by maintaining the category of the respective
applicants and subject to availability of vacancies in the
respective categories. However, the applicants will not be
entitled to any back wages for the period they have not
actually worked but they will be entitled to notional fixation of
pay and allowances from the date of joining of their admitted
juniors and on that basis actual pay and allowances from their
actual date of joining. The applicants will also be entitled to all
other consequential benefits.”

It was the above direction of the Tribunal which the Union of India questioned in

the proceedings before the High Court and which culminated in the impugned order.

The High Court has, while confirming the order of the Tribunal, held that in regularizing

the juniors of the private respondents against vacant Group ‘D’ posts, the appellants

have frustrated the orders passed by the Court in the earlier proceedings. Hence, it has

been directed that even if posts in the Institute are not available, the applicants who

claimed regularization could be considered in other places where Group ‘D’ posts are

available.

At the outset, Mr Vikramjit Banerjee, learned Additional Solicitor General has

urged that the Division Bench was not justified in issuing a direction for considering the

case for regularization in other places where Group ‘D’ posts are available. The learned

ASG urges that no posts are available at the Institute for regularization. The Multi-
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Tasking Rules have come into force in 2011 and at the highest, the workmen may be

allowed an age relaxation if any posts are freshly advertised.

We find merit in the contention that the direction to consider the casual workers

for regularization in other establishments was not justified. The issue essentially is

whether regularization in the establishment of the Regional Training Institute was

required to be carried out, consistent with the earlier directions which had attained

finality.

We must, at the outset, note that the earlier decision of the Tribunal was

rendered on 6 January, 2006 while the decision of the High Court was rendered on 23

March, 2006. The judgment of the Constitution Bench of this Court in Secretary, State

of Karnataka v. Uma Devi (3)6 was delivered on 10 April, 2006.

The submission which has been urged on behalf of the respondents by Ms.

Preetika Dwivedi is that the applicability of Uma Devi has been considered in two

decisions of this Court in Malathi Das v. Suresh7 and in Prem Ram v. Managing

Director Uttarakhand Pey Jal and Nirman Nigam Dehradun8.

Learned counsel submitted that in pursuance of the judgment of this Court in

Uma Devi, the Union of India was required to adhere to a seniority list. There was a

clear breach on the part of the Union of India in doing so inasmuch as juniors to those

who were senior in the seniority list were admittedly regularized. Ms Dwivedi has ably

assisted this Court in pursuing her client’s cause for justice.

6 (2006) 4 SCC 1
7 (2014) 13 SCC 249
8 (2015) 11 SCC 255
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From the record before this Court, it has emerged that as a matter of fact, four

persons were regularized after the judgment of the High Court in the earlier round of

proceedings. The Tribunal has entered a finding of fact that the persons who were

regularized were junior to those who ranked above them in the seniority list. The

applicability of Uma Devi to a situation such as present, has been dealt with in several

judgments of this Court, including the decisions in Malathi Das and Prem Ram,

referred to earlier.

In Malathi Das, this Court noted that, as a matter of fact, the authorities had

granted regularization to various other individuals who were similarly placed. Among

them were persons who were regularized even after the decision in Uma Devi.

Similarly, in Prem Ram, this Court observed that persons who were appointed on a

date subsequent to the appellant were regularized. A distinction was sought to be made

in the case of the appellant on the specious plea that they were brought on to a work-

charge establishment. This Court observed that what was important was that the

appellant had been appointed as early as in the year 1988 and, by the time the decision

in Uma Devi was rendered, he had completed more than ten years of service. The

Government had formulated Rules for regularization. This Court noted that neither the

State Government nor the Jal Nigam had resented the idea of regularizing those who

had served for over a decade. In this background, the Court came to the conclusion

that there was no impediment in directing regularization of the services of the appellant

and for the release of retiral dues on that basis.

In the present case, the original order passed by the Tribunal did not contain a

mandamus for regularization. The order mandated that a seniority list should be

maintained by the Union of India and that the possibility of regularizing the casual
 8

workmen at the Regional Training Institute should be considered against existing and

future vacancies in Group ‘D’ posts. Acting on the basis of the decision of the Tribunal,

which was affirmed by the High Court, the Union of India proceeded to formulate a

seniority list and, in fact, regularized at least four individuals. The judgment of the High

Court attained finality. Even before the decision in Uma Devi, as the Tribunal noted, the

workmen had put in over twelve years of service. The Tribunal, in our view, justifiably

held that the action of selecting juniors for regularization, by-passing in the process,

persons who had put in longer years of service was manifestly unfair and arbitrary. This

direction of the Tribunal has been affirmed by the High Court in its impugned decision.

The arbitrariness in the conduct of the authorities at the Institute is writ large in the facts

of this case. Picking up individuals for regularization, while ignoring seniors shows that

a favoured few have been rewarded. This is arbitrary.

Following the logic of the two decisions of this Court which have been noted

earlier, we are of the view that the decision in Uma Devi cannot be used as a charter to

discriminate between similarly placed employees, once the Union of India in fact takes

a decision to regularize the individuals borne on a seniority list. This decision, as we

have already noted earlier, was taken in pursuance of the judgment of the Tribunal and

of the High Court both of which were rendered before the decision in Uma Devi.

It is of relevance to consider the directions rendered by a Constitution Bench of

this Court in Uma Devi. Justice P K Balasubramanyan, speaking for the Court, held

thus:

“53…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
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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.”

The directions issued in Uma Devi have been considered by subsequent benches of

this Court. In State of Karnataka v. M L Kesari9, a two-judge bench of this Court held

that the “one-time measure” prescribed in Uma Devi must be considered as concluded

only when all employees who were entitled for regularisation under Uma Devi, had

been considered. Justice R V Raveendran, who wrote the opinion of the Court, held:

“9. The term “one-time measure” has to be understood in its

proper perspective. This would normally mean that after the
decision in Umadevi, 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, 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,
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 has expired. The one-time
exercise should consider all daily-wage/ad hoc/casual

9 (2010) 9 SCC 247

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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, but did not consider the cases of some
employees who were entitled to the benefit of para 53
of Umadevi, 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, are so considered.

11. The object behind the said direction in para 53

of Umadevi is two-fold. 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 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] 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 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 as a one-time
measure.”
(Emphasis supplied)

The judgement of this Court in Uma Devi does not preclude the claims of

employees who seek regularization after the exercise has been undertaken with respect

to some employees, provided that the said employees have completed the years of

service as mandated by Uma Devi. The ruling casts an obligation on the State and its

instrumentalities to grant a fair opportunity of regularization to all such employees which

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are entitled according to the mandate under Uma Devi and ensure that the benefit is

not conferred on a limited few. The subsequent regularization of employees who have

completed the requisite period of service is to be considered as a continuation of the

one-time exercise.

The decisions of this Court in Uma Devi and ML Kesari were considered by a

two-judge bench of this Court in Narendra Kumar Tiwari v. State of Jharkhand10.

Justice Madan Lokur construed the decision in Uma Devi in the following terms:

“7. The purpose and intent of the decision in Umadevi was

therefore twofold, namely, to prevent irregular or illegal
appointments in the future and secondly, to confer a benefit on
those irregularly appointed in the past…”

The Court noted in the above judgment that if a strict and literal interpretation

was given to the decision in Uma Devi, no employee from the State of Jharkhand

appointed on an irregular basis could ever be regularized as the State was formed on

15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of

the Court was to grant similarly-placed employees who had put the requisite years of

service as mandated by Uma Devi, the benefit of regularization. The Court thus held

that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat

Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (“the Regularsation Rules”) must be

interpreted in a pragmatic manner and employees of the State who had completed 10

years of service on the date of promulgation of the rules, ought to be regularized. In

doing so, the Court ensured that employees in the State of Jharkhand who had

completed the same years of service as employees from other States, are granted

parity in terms of regularization. The spirit of non-discrimination and equity runs through

the decisions in Uma Devi, ML Kesari and Narendra Kumar Tiwari.

10 (2018) 8 SCC 238
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In this background, the issue which now arises before this Court is in regard to

the effective direction which would govern the present case. The High Court has

directed the Union of India to absorb the casual workmen, if it is not possible at the

Institute in question, then in any other establishment. The latter part of the direction, as

we have already noted, cannot be sustained. Equally, in our opinion, the authorities

cannot be heard to throw their hands in despair by submitting that there are no

vacancies and that it had already regularized such of the persons in the seniority list,

who reported for work. The Tribunal has entered a finding of fact that this defence is

clearly not borne out of the record. Accordingly, we are of the view that having decided

to implement the decision of the Tribunal, which was affirmed by the High Court, the

Union of India must follow a rational principle and abide strictly by the seniority list in

proceeding to regularize the workmen concerned. Accordingly, we direct that the case

for regularization shall be considered strictly in accordance with the seniority list in

pursuance of the directions which were issued by the Tribunal and confirmed by the

High Court and such of the persons, who are available for regularization on the basis of

vacancies existing at present, shall be considered in accordance with law. The Tribunal

has denied back-wages but has ordered a notional fixation of pay and allowances.

While affirming that direction, we also direct that persons who have crossed the age of

superannuation will be entitled to the computation and payment of their retiral dues on

that basis. This exercise shall be carried out within a period of three months from the

receipt of a copy of the judgment. If it becomes necessary to grant age relaxation to the

concerned workmen, the appellants shall do so.

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The appeals stand disposed of in the above terms. There shall be no order as to

costs.

…….………….…………………...........................J.
(DR. DHANANJAYA Y. CHANDRACHUD)

…….…………………………...............................J.
(HEMANT GUPTA)

NEW DELHI
JANUARY 08, 2019