- (1.) All the aforesaid writ petitions are being disposed of by this common judgment as issues involved in these cases are the same. For the sake of convenience, reference is made to the facts of W.P.(C) No.9371/2014.
(2.) At the outset, I would like to state that I fail to understand why in spite of the binding ratio of the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi & Ors., 2006 4 SCC 1 certain litigants file writ petitions effectively to seek directions which will amount to flouting the ratio of the Constitution Bench judgment in the case of Umadevi & Ors. The Constitution Bench of the Supreme Court in the case of Umadevi & Ors. has specifically laid down the ratio that the appointments which have to be made by the government or any authority which is a State under Article 12 of the Constitution of India can only be if four aspects are satisfied viz. firstly there must exist sanctioned posts, secondly there must exist vacancies in sanctioned posts, thirdly the appointments must be by means of open competition after insertion of advertisement in the newspaper and/or by calling candidates from employment exchange and lastly/fourthly the persons employed have to be qualified in terms of the recruitment rules. The following is the ratio of the Constitution Bench judgment of the Supreme Court in the case of Umadevi & Ors.:- "(I) The questions to be asked before regularization are:- (a) (i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates (b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter. (II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc. is violated. (III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization. (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process. (V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure. (VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization. (VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution".
(3.) There are three exceptions to the ratio of the judgment in the case of Umadevi & Ors. The first exception is that as per para 53 of the judgment in the case of Umadevi & Ors. and which provided that those employees who had worked for ten years prior to passing of the judgment in the case of Umadevi & Ors. if they were selected by regular recruitment process and qualified persons were appointed against vacancies in sanctioned posts, government will prepare a scheme for regularizing such employees who have worked in such posts for 10 years without having benefit of any stay order from any Court or Tribunal. The second exception with respect to the judgment in the case of Umadevi & Ors. is that a contractual employee or project employee cannot be terminated from service for being replaced by another contractual employee or a project employee. This was so held by the Supreme Court in the case of State of Haryana and Ors. etc. etc. v. Piara Singh and Ors. etc. etc, 1992 4 SCC 118 and whose ratio that one contractual employee cannot be replaced by another contractual employee was approved by the Constitution Bench in the case of Umadevi & Ors. . The third exception is an exception which is carved out in view of the judgment of the Supreme Court in the case of Mohd. Abdul Kadir and Anr. v. Director General of Police, Assam and Ors., 2009 6 SCC 611 and which exception is that where persons have already worked for decades in the posts which were not sanctioned posts, since the work is perennial in nature because of which the employment has continued for decades, government has been ordered to consider creation of appropriate posts and regularization of the persons who have been working for decades in the posts in contractual/project posts.;