2006 (4) TMI 456 - SC - Indian Laws

A sovereign government considering the economic situation in the country and the work to be got done is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted The National Rural Employment Guarantee Act 2005 the object is to give employment to at least one member of a family for hundred days in an year on paying wages as fixed under that Act.

Issues Involved:
1. Constitutional scheme of public employment.
2. Temporary appointments and daily wage workers.
3. Irregular appointments and their impact on regular recruitment.
4. Role of courts in regularizing or making temporary employees permanent.
5. Equity and equal opportunity in public employment.
6. Financial implications of court orders on regularization.
7. Doctrine of legitimate expectation.
8. Application of Articles 14, 16, and 21 of the Constitution.
9. Issuance of writ of mandamus for regularization.
10. Distinction between regularization and permanence in service.

Detailed Analysis:

1. Constitutional Scheme of Public Employment:
Public employment in India must adhere to the constitutional scheme which emphasizes equality of opportunity. The Constitution allows for affirmative action to ensure that unequals are not treated as equals. Temporary appointments can be made by the government, but regular vacancies must be filled through a proper recruitment process.

2. Temporary Appointments and Daily Wage Workers:
The government can make temporary appointments or engage workers on daily wages considering the economic situation and work requirements. However, regular recruitment must follow a structured process. Temporary appointments should not bypass the constitutional scheme of public employment.

3. Irregular Appointments and Their Impact on Regular Recruitment:
Irregular appointments, especially in lower rungs, bypass the duty to ensure proper appointment procedures. Courts have sometimes directed the absorption of such irregular appointees, leading to a class of 'litigious employment' that impairs the constitutional scheme. Such orders should be critically evaluated to avoid perpetuating illegalities.

4. Role of Courts in Regularizing or Making Temporary Employees Permanent:
Courts should not issue orders preventing regular selection or recruitment at the instance of irregular appointees. The wide powers under Article 226 of the Constitution should not be used to perpetuate illegalities or scuttle the scheme of public employment. Courts must adhere to the law as laid down by the Constitution.

5. Equity and Equal Opportunity in Public Employment:
Equity considerations must balance the interests of those seeking regularization and the teeming millions seeking fair employment opportunities. Courts should focus on the constitutional scheme and not dilute constitutional requirements based on individual cases.

6. Financial Implications of Court Orders on Regularization:
Regularization of temporary employees can impose a significant financial burden on the state, potentially leading to the collapse of public sector undertakings. Courts should be cautious in imposing such financial burdens, considering the economic viability of the departments or projects involved.

7. Doctrine of Legitimate Expectation:
The doctrine of legitimate expectation cannot be invoked to claim regularization if the initial appointment was not made following due process. The expectation must be based on a promise or assurance from the decision-maker, which is absent in cases of irregular appointments.

8. Application of Articles 14, 16, and 21 of the Constitution:
The right to equality under Articles 14 and 16 mandates that public employment must follow a fair and competitive process. Temporary or casual workers cannot claim equal treatment with regularly recruited employees. The argument that non-regularization violates Article 21 (right to life) is not tenable as it would negate the rights of other aspirants.

9. Issuance of Writ of Mandamus for Regularization:
A writ of mandamus can only be issued if the statute imposes a legal duty on the authority and the aggrieved party has a legal right to enforce it. Temporary employees cannot show an enforceable legal right to be made permanent, and thus, mandamus cannot be issued for their regularization.

10. Distinction Between Regularization and Permanence in Service:
Regularization does not imply permanence. It can only cure procedural irregularities in appointments that do not go to the root of the process. Permanence in employment requires adherence to the constitutional scheme and regular recruitment processes.

Judgment:
The Supreme Court emphasized that public employment must adhere to the constitutional scheme, and temporary or irregular appointments should not bypass regular recruitment procedures. The Court directed that temporary employees engaged for ten years or more in sanctioned posts should be considered for regularization as a one-time measure, but no further regularization should bypass constitutional requirements. The appeals were allowed or dismissed based on these principles, with specific directions for the state to fill vacant posts through regular recruitment processes.

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