Dr.
Ram ManoharLohia National Law University --- Admin Project ---
DR. RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY
PROJECT ON:
Double illegality Principle and Its
Contemporary Relevance: Based on Umadevi
Case and Subsequent Caselaws
SUBMITTED BY: UNDER THE GUIDANCE OF:
ANJANAY PANDEY Mr. SHASHANK SHEKHAR
ROLL NO: 29 FACULTY OF LAW
SECTION ‘A’ DR. RAM MANOHAR LOHIYA
B.A. LLB (Hons.) SEM III NATIONAL LAW UNIVERSITY
SIGNATURE OF STUDENT SIGNATURE OF PROFESSOR
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Introduction-
Regularization of Services is one of the emerging and contentious topics in the realm of
Admin law. Mainly because of the fact that despite having a landmark judgment on the case,
the Umadevi Judgement, there are still some apprehensions and confusion on the subject.
One of them being the subject of the Double illegality which were dealt with in the cases on
which Umadevi itself relied upon. The issue is regarding the double illegality ie.
Unsanctioned and irregular employment by the State. This article attempts to unravel the
same.
Irregular employment is supposed to be temporary fix, something which is not expressly
forbidden in the constitutional scheme but something which should not be practiced in the
long run. This is a tender act of balancing the interests of the workers and of the
constitutional scheme and it is something which has given us the concept of dual-illegality.
However the strict divide between Irregular and Illegal employment is gradually waning
away.
Irregular Employment
This broad head includes all those employed by the Central and state governments who do
not have permanent employment. This includes daily wage employees and contractual
employees. These constitute temporary employees employed by the state. Regular Employee
is generally considered as an employee who is hired directly by his/her employer without a
predetermined period of employment, and works for scheduled hours. In other words, it can
be summarized as open-ended, fulltime, direct employment. In addition, as long as these
conditions are met, and if no special circumstances are present, this person is covered under
public insurance systems including workers compensation, unemployment, health care and
retirement pension.
Consequently, a Non-regular Employee is an employee who does not meet one of the
conditions for regular employment. As the three conditions are open-ended, fulltime, and
direct employment, in principle, there can be seven different combinations of employment
patterns that qualify a worker as a non-regular employee, including open-ended, full-time,
indirect, open-ended, part-time, direct, open-ended, part-time, indirect, fixed-term, full-
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time, direct, fixed-term, full-time, indirect, fixed-term, part-time, direct, and fixed-term,
part-time, indirect.1
The Union, the States, their departments and instrumentalities have resorted to irregular
appointments, especially in 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 adopted and to permit these irregular appointees or those appointed on
contract or on daily wages, to continue year after year, thus, keeping out those who are
qualified to apply for the post concerned and depriving them of an opportunity to compete for
the post.2
At least 44% of government employees are temporary and the number of such workers is
rising, leaving them without access to social security benefits and in some cases depriving
them of minimum wages.3 The size of the government workforce is on the decline and so is
the share of permanent workers, said the report prepared by a federation of 40 staffing
agencies. The casual workers hardly have any job or income security. Even the short-term contract
holders primarily receive a consolidated wage with no additional contribution towards employees’
provident fund (EPF), Employees’ State Insurance (ESI), gratuity, new pension scheme (NPS). 4 At
least 6.9 million of the 12.3 million temporary workers in the government sector are working in
various government programmes such as Integrated Child Development Services (ICDS), National
Rural Health Mission (NRHM), National Rural Livelihood Mission (NRLM), National rural
Employment Guarantee Scheme (MGNREGA), etc. Technically, many of them are not even
recognised as government “employees,” though dependent on government for livelihood. Many of
them, for example the Anganwadi workers, do not even receive minimum wage and has limited to nil
social security cover.5 It can easily be concluded that the Contract workers do not get many employee
benefits that their permanent counterparts might enjoy and that the casual workers might not even get
the minimum wage.
1 Non-Regular Employment: Issues and Challenges Common to all Developed Countries
<http://www.jil.go.jp/english/reports/documents/jilpt-reports/no.10.pdf> accessed on 31 March 2017.
2 Understanding The Umadevi Judgment (Indian Law Watch) <http://indianlawwatch.com/practice/uma-devi-
judgment-on-contract-labour/> accessed on 31 March 2017.
3 Prashant Nanda, Number of temporary workers in Government Jobs rising (Livemint)
<http://www.livemint.com/Industry/R7Ybd31gDGZlrwi1LsFwPO/Number-of-temporary-workers-in-
government-jobs-seen-rising.html> accessed on 31 March 2017.
4 Ibid.
5 Flexi-Staffing in Government Sector <http://www.indianstaffingfederation.org/wp-
content/uploads/2015/05/Flexi-Staffing-in-Govt.-Public-Sector.pdf> accessed on 31 March 2017.
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Moreover, all forms of government organizations see temporary employment as a permanent
phenomenon. There are no adequate norms governing temporary employment, leading to a
range of practices being followed that are not necessarily overseen or regulated by any
process. Consequently, often the practices followed even in the public sector do not match
what should be the minimum acceptable standards.6
Art. 14 and Legitimate Expectations
The doctrine of legitimate expectation belongs to the domain of public law and is intended to
give relief to the people when they are not able to justify their claims on the basis of law in
the strict sense of the term though they had suffered a civil consequence because their
legitimate expectation had been violated. The term ‘legitimate expectation’ was first used by
Lord Denning in 1969 and since then, it has assumed the position of a significant doctrine of
public law in almost all jurisdictions. The term ‘legitimate expectation’ means the act or state
of expecting; that which is or may fairly be expected; that which should happen according to
general norms or custom or behavior. The doctrine of legitimate expectation operates as a
control over the exercise of discretionary powers conferred upon a public authority. It is fair
to say that the doctrine is certainly not as established and simple as a person having an
enforceable right requiring a public body in all circumstances to act in a particular way. The
law is still developing on a case-by-case basis both in the context of reasonableness and in
that of natural justice. In this section, we will focus on explaining the doctrine, its scope and
its practice in Administrative law.
A person may have a legitimate expectation of being treated in a particular way or of
receiving any substantive benefit by an administrative authority even though he has no legal
right in private law to receive such treatment or benefit. The right to a hearing or to be
consulted, or generally to put in one’s case may arise out of the action of the authority. Thus a
promise made in the shape of a statement of policy or a procedure regularly adopted by the
authority may give rise to what is called legitimate expectation. 7 That is, expectation of a kind
which the court now enforces.
6 Flexi-Staffing in Government Sector <http://www.indianstaffingfederation.org/wp-
content/uploads/2015/05/Flexi-Staffing-in-Govt.-Public-Sector.pdf> accessed on 31 March 2017.
7 Meher Nigar, Doctrine of Legitimate Expectation in Bangladesh <file:///C:/Users/Anjanay
%20Pandey/Downloads/fulltext_stamped.pdf> accessed on 31 March 2017.
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The doctrine of legitimate expectation cannot be invoked by temporary employees to claim
that they be made permanent and the fact that in certain cases the court had directed that the
employees be made permanent cannot be used to found a claim based on legitimate
expectation.8 When a person enters a temporary employment or gets engagement as a
contractual or casual worker and the engagement is not based on a proper selection as
recognized by the relevant rules or procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in nature. Such a person cannot invoke
the theory of legitimate expectation for being confirmed in the post when an appointment to
the post could be made only by following a proper procedure for selection and in cases
concerned, in consultation with the Public Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully advanced by temporary, contractual or casual
employees. It cannot also be held that the State has held out any promise while engaging
these persons either to continue them where they are or to make them permanent. The State
cannot constitutionally make such a promise. It is also obvious that the theory cannot be
invoked to seek a positive relief of being made permanent in the post.9
Uma Devi Case
An important case in this regard is that of State of Karnataka vs. Umadevi 10. The Supreme
Court was dealing with the issue of regularization of ad hoc employees. The court had some
very pertinent observations on this matter.
“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. Therefore, consistent with the scheme for public employment,
this Court while laying down the law, has necessarily to hold that unless the appointment is
in terms of the relevant rules and after a proper competition among qualified persons, the
same would not confer any right on the appointee. If it is a contractual appointment, the
8 Apex Court on the Rights of Temporary Employees to Claim Regularisation and other Reliefs: An Anthology
<http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=22063>
accessed on 31 March 2017.
9 (2006) 4 SCC 1.
10 (2006) 4 SCC 1.
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appointment comes to an end at the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not claim to be made permanent on the
expiry of his term of appointment. It has also to be clarified that merely because a temporary
employee or a casual wage worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original appointment was not made by
following a due process of selection as envisaged by the relevant rules. It is not open to the
court to prevent regular recruitment at the instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right.”
Observing upon the phenomenon of courts regularizing the irregular appointments, the court
remarked that-
“While directing that appointments, temporary or casual, be regularised or made permanent,
the courts are swayed by the fact that the person concerned has worked for some time and in
some cases for a considerable length of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not aware of the nature of his
employment. He accepts the employment with open eyes. It may be true that he is not in a
position to bargain—not at arm's length—since he might have been searching for some
employment so as to eke out his livelihood and accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the constitutional scheme of appointment and to
take the view that a person who has temporarily or casually got employed should be directed
to be continued permanently. By doing so, it will be creating another mode of public
appointment which is not permissible. If the court were to void a contractual employment of
this nature on the ground that the parties were not having equal bargaining power, that too
would not enable the court to grant any relief to that employee.”
In summary the court opined that regularization cannot be made a mode of recruitment and
The regular recruitment should be insisted upon, only in a contingency, an Adhoc
appointment can be made in a permanent vacancy, but the same should soon be followed by a
regular recruitment and that appointment to non-available posts should not be taken note of
for regularisation.
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Another important direction which came from the court is covered in the paragraph 53
wherein the Court issued one time directions for regularization of the irregular employees.
The one-time exercise should consider all daily-wage/ad-hoc/those employees who had put in
10 years of continuous service as on 10.4.2006 without availing the protection of any interim
orders of courts or tribunals.
“One aspect needs to be clarified. 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 the courts or of tribunals. The question of regularisation of the
services of such employees may have to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their instrumentalities should take
steps to regularise 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 and should further ensure that regular recruitments are undertaken
to fill those vacant sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must be set in motion
within six months from this date. We also clarify that regularisation, if any already made, but
not sub judice, need not be reopened based on this judgment, but there should be no further
bypassing of the constitutional requirement and regularising or making permanent, those not
duly appointed as per the constitutional scheme.”
The Challenge of Dual Illegality
The challenge of Dual Illegality emerges from the aforementioned Paragraph 53 of the
Umadevi case itself. It makes provision for irregular employment only and not an illegal
employment.
If the appointment itself is in infraction of the rules or if it is in violation of the provisions of
the Constitution illegality cannot be regularized. Ratification or regularization is possible of
an act which is within the power and province of the authority but there has been some non-
compliance with procedure or manner which does not go to the root of the appointment. 11
11 B.N. Nanjudappa vs. T. Thimmiah (1972)1 SCC 409.
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"We have, therefore, to keep this distinction in mind and proceed on the basis that only
something that is irregular for want of compliance with one of the elements in the process of
selection which does not go to the root of the process, can be regularized and that it alone can
be regularized and granting permanence of employment is a totally different concept and
cannot be equated with regularization."12
Satya Prakash case13 and Daya Lal case14 state that there is a difference between irregularly
engaged and illegally engaged without a sanctioned post. These cases amend the operative
part of Uma Devi case. Read together, these maintain that an irregular employee given an
unsanctioned post cannot claim the benefits of the Uma Devi Case.
Possible Dilution of the Divide
The legal principles stated in Umadevi and the subsequent cases maintain a strict divide
between an irregular and an illegal appointment. Only irregular jobs can be regularized and
not illegal jobs that have been given out without any sanctioned posts. However this principle
has come into the danger of being diluted overtime.
The case in point being Jolly PG vs. Union of India 15. In this case the counsel from the side of
the government raised the contention that the services of a Mr. Jolly PG cannot be made
regular since he was not appointed against a sanctioned post and thus his employment is not
only irregular but also illegal. The court chose ignore the set legal principles and maintained
that the appointment be made regular.
For this the court relied upon some cases which came after the Umadevi judgment. Let us
observe those cases and try to defend the judgment.
Amarkant Rai v State of Bihar and others16, it is made clear by the court that the appellant
though initially employed against an unsanctioned post was later working continuously
against a sanctioned post since 3.1.2002. If it could be shown that the appellant was not hired
12 B N Nagarajan v State of Karnataka (1979) 4 SCC 507 as cited in Uma Devi Case.
13 Satya Prakash and others v State of Bihar and others (2010) 4 SCC 179.
14 State of Rajasthan v Daya Lal (2011) 2 SCC 429.
15 OP (CAT).No. 2301 of 2011 (Z), Kerela HC.
16 (2015) 8 SCC 265.
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or working against a sanctioned post, the case law cannot be applied to make him amenable
to the benefit of regularization.
In the case of Nihal Singh and Others v. State of Punjab and Others 17, the people claiming
regularization were appointed as Special Police Officers. In this case, the court states that the
employment of the offices cannot be said to be irregular. The need for the creation of the
sanctioned post was overshadowed by the necessity of the act and the failure of the state to do
the same. Thus, the court allowed the appeals. This is not good precedent to the given case as
there is a situation of an irregular and unsanctioned job created without any necessity.
And in State of Jharkhand and others v Kamal Prasad and others 18, the argument can be made
that they were appointed on temporary basis but the advertisements by the government show
that there were sanctioned posts available. However, in the present case, there is no evidence
of any sanctioned post available against which the appellant was working.
Conclusion
Despite the directions of the court in various instances, the practice of hiring Irregular
workers has not been curbed. The government should be an ideal employer, bound by
constitutional requirements apart from the ethical ones. This insistence of the government to
deliberately perpetuate a system in which workers with little bargaining power are forced to
choose jobs that are certainly not permanent and have no certainty element with them. What
makes this phenomenon worse is the fact that most of the irregular employment occurs within
the lower rungs of the services, amidst people who are responsible for the grassroots level
realization of the government welfare schemes. Immediate steps should be taken to undo this
resolve on the part of government to treat a temporary solution as a permanent fix.
The aspect of Dual illegality is one in which an employee is hired irregularly and also
illegally i.e. without any sanctioned posts given against the employment. The legal principle
was evolved to prevent the courts and the administration from legitimizing a temporary fix.
The Supreme Court has stated unequivocally that regularization should not be means of
recruitment, it will only create a system wherein the employee is being exploited in one of or
another. Thus, the one time measure given in Umadevi only applied to those who had
17 (2013) 14 SCC 65.
18 (2014) 7 SCC 223.
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irregular jobs and not illegal ones. This divide is central to the constitutional scheme which
the administrative law is forced to abide and must not be diluted.
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