Temporary Employees Cannot Be Regularised In Violation Of Supreme Court Directives In Uma Devi Case : Kerala High Court

The Bench comprising of Justices AK Jayasankaran Nambiar and Gopinath P found that orders regularising employees were being issued contrary to the law declared by the Supreme Court in State of Karnataka and Others v. Uma Devi and Others. Declaring these 'illegal' and 'against the law declared by the Supreme Court', the Bench on its own motion impleaded the Chief Secretary and directed that a declaration to this effect be communicated to all government bodies.

Interestingly, the Court's directives came while dismissing an appeal filed by two temporary employees of the Institute of Human Resource Development (IHRD) who sought regularisation on the same terms as others in their organisation.

The appellants asserted that an earlier judgment of the High Court had urged the IHRD to take a decision on regularisation by "applying the same yardstick that had been adopted in the case of other similarly placed employees…..."

Claiming that the appellants were, in fact, not treated in the same manner as those similarly placed, their counsel buttressed this submission with regularisation orders issued by the IHRD to certain of its temporary employees.

The Judgment records the Counsel as stating,

"… even after finalization of the Special Rules, certain employees who are similarly placed like his clients, have also been regularized."

The IHRD's counsel on the other hand submitted to the Court that IHRD had not taken any decision vis-à-vis regularising provisional employees, and that the regularisation orders produced in Court were made in the peculiar facts and circumstances of the situation.

The Bench proceeded to propound the law relating to regularisation and referred a host of Supreme Court rulings.

The following principles may be culled from the rulings referred by the Bench

1. It is settled law that an employee cannot claim regularization merely because he has been working in a post for some time. A. Umarani v. Coop. Societies; (2004) 7 SCC 112
2. contractual, casual or daily wage ad hoc employees appointed dehors the constitutional scheme to public employment have no legitimate expectation to be absorbed or, regularised or granted permanent continuation in service on the ground that they have continued for a long time in service Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.; (2007) 1 SCC 408
3. There may be cases where irregular appointments (not illegal appointments) 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 courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits. In that context, the State and their instrumentalities should take steps to regularize 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 there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. Constitution Bench in Secretary, State of Karnataka and Others v. Uma Devi and Others; (2006) 4 SCC 1 9

Holding that any regularisation in contravention of the Supreme Court's dictum in Uma Devi was only to be deprecated, the Bench expressed that it was only refraining from declaring regularisations made by the IHRD as illegal because the regularised persons were not party to the proceedings.

On the facts of the case, the Court agreed with the Single Judge Bench decision appealed from, which had required the appellants to agitate their claims (if any) backed by facts before a labour court/other fora under various labour legislations.

With the directions to the Chief Secretary, which the Court enjoined to be communicated to the government organisations within 3 weeks, the appeal was dismissed.

Pertinently, a Bench of Justice Devan Ramachandran of the High Court last week issued an interim order staying all orders regularising temporary and on-contract employees in various government organisations, institutions, and corporations.

Allegations of 'backdoor appointments' has kicked up a political storm in the poll-bound state over the last month or so, which witnessed intense protests by rank-listed persons seeking public employment.