- (1.) Petitioners claim that admittedly, they were employed on ad hoc daily wage basis on 4.8.1999, as stated in para 2 of the of writ petition. Learned Counsel for the petitioners could not place any statutory provision under which they have any right to seek regularization despite the fact that their initial engagement was not made after advertisement of vacancies and complying with the Constitutional requirement of equal opportunity of consideration to all eligible candidates as mandated under Article 16 of the Constitution.
(2.) It is said that authorities have made recommendation for regularization of petitioners. Obviously, when the authorities have engaged petitioners on daily wage basis without undergoing process of recruitment consistent with Article 16, they have shown their favour to petitioners and their recommendation is also the outcome of such favour. But the fact remains that under the law, neither the statute provide or confer any right upon the petitioners to claim regularization nor otherwise a person who has entered a Government service without compliance of procedure prescribed under rules and consistent with Article 16, he cannot claim regularization. It is contended that petitioners have continued for more than ten years and, therefore, in view of observations made by Apex Court in Secretary, State of Karnataka v. Uma Devi, 2006 4 SCC 1 , the petitioners are entitled for regularization. Regularization has never been held to be a valid mode of recruitment. In past, sometimes on account of large scale engagements continuing for long period, it has been taken a relevant consideration by the authorities for enacting statutory provisions for regularization of the persons engaged without following statutory procedure for recruitment. Besides, sometimes the Courts have also issued directions to the authorities to regularize such appointees depending upon the facts and circumstances of the individual cases. However, time and again on judicial review, the Courts have largely deprecated practice of engagement of some persons without following the recruitment procedure and, thereafter, continue them for considerable length of time and then confer permanence upon them by way of regularization since it has generated a different kind of litigation and a regular channel of such appointees. Fortunately, the diversion expressed in various judicial pronouncements drew attention of the Apex Court and the issue came to be considered before a Constitution Bench in Uma Devi . The Court reviewed the entire law on this aspect and after discussing the issue at great length, overruling all the earlier judgments taking a different view, has held that a sovereign Government or its instrumentality, considering economic situation in the Country and the work got to be done is not precluded from making temporary appointments or engaging workers on daily wages, but whenever a regular vacancy occur, it has to be filled in as per Constitutional scheme by giving equal opportunity of employment to all concerned persons. The Court has rejected the approach of taking a lenient view and termed it as a misplaced equity against teeming millions of the country seeking employment and a fair opportunity for competing for employment. The Court categorically held that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment and also stressed that adherence to the rule of equality in public employment is a basic feature of our constitution. It held : "43. Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution............"
(3.) It further held that the High Courts, acting under Article 226 of the Constitution should not ordinarily issue directions for absorption/ regularization or permanence unless the recruitment itself was made in a regular manner consistent with the Constitutional scheme. The Apex Court in Uma Devi very categorically held : "The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme." The Apex Court also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves an instrument to facilitate the by passing of the constitutional and statutory mandates.;