New Delhi: The Supreme Court has held that regular vacancies in government jobs have to be filled by following the due process and recruitment rules. It cannot be a haphazard exercise or be done on patronage or other considerations.

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 a daily basis. But the regular process of recruitment or appointment has to be adopted while filling regular vacancies, said a five-judge Constitution Bench. The Bench, comprising Chief Justice Y.K. Sabharwal and Justices Arun Kumar, G.P. Mathur, C.K. Thakker and P.K. Balasubramanyan, was disposing of a batch of appeals arising out of a Karnataka High Court judgment. The issues related to regularisation of the services of temporary employees. As there were conflicting decisions by three-judge and two-judge benches of the apex court, the matter was referred to the Constitution Bench.

The Bench, in its unanimous verdict, noted that the Centre and the States had made irregular appointments, especially on the lower rungs of the service without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules, and permitted the irregular appointees on contract or on daily wages to continue year after year.

Courts also to blame

The Bench criticised the High Courts and to some extent even the apex court for giving directions to authorities that these illegal and irregular entrants be absorbed in service. When a court was approached for relief, it should ask itself whether the person before it had any legal right which should be enforced, the Bench said.

Writing the judgment, Justice Balasubramanyan said the concept of `equal pay for equal work' was different from the concept of conferring permanency on those who were appointed on an ad hoc or temporary basis or without following the process of selection as envisaged in rules.

Accepting the argument that because these temporary employees had worked for a considerable length of time, their services should be regularised would mean permitting the state to perpetuate an illegality in the matter of public employment. That would be a negation of the constitutional scheme, the Bench said.

It rejected the argument that in a country, where there was so much poverty and unemployment and no equality of bargaining power, the state not making employees permanent would be violative of Article 21 (right to life and liberty), the Bench said.

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