Supreme Court: While addressing the issue concerning denial of rights to persons engaged as ad-hoc/daily wage employees in public institutions, the Division Bench of Vikram Nath* and Sandeep Mehta, JJ., said that State (Union and State Governments) is not a mere market participant but a constitutional employer. Taking note of the Appellants, who were hired as daily wagers by the U.P. Higher Education Services Commission between 1989 and 1992, and whose nature of service was found to be perennial, the Court thus issued elaborate directions to grant them the relief of fully regularising their posts and financial benefits.
The Court emphasised that State cannot balance budgets on the backs of those who perform the most basic and recurring public functions and pointed out that the long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection.
“Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines”.
The Court clarified that it has issued elaborate directions to grant relief to the Appellants because more than often, Court’s orders in such matters have been met with fresh technicalities, which further prolongs the insecurity for those who have already laboured for years on daily wages. “Therefore, we have learned that Justice in such cases cannot rest on simpliciter directions, but it demands imposition of clear duties, fixed timelines, and verifiable compliance”. As a constitutional employer, the State is held to a higher standard and therefore it must organise its perennial workers on a sanctioned footing, create a budget for lawful engagement, and implement judicial directions in letter and spirit.
Background and Legal Trajectory:
The Appellants were engaged by the U.P. Higher Education Services Commission (the Commission) between 1989 and 1992. Appellants 1 to 5 served as Class-IV employees (Peon/attendant duties), and Appellant 6 served as Driver (Class-III). They were paid as daily wagers and, with effect from 08-04-1997, received consolidated monthly amounts, while discharging ministerial and support functions during regular office hours.
On 24-10-1991, the Commission resolved to create 14 posts in Class-III and Class-IV and sought sanction from the State Government. On 27-12-1997, the State sought particulars of daily-wage hands and their service details. On 11-02-1998, the Commission furnished a list of 14 daily wagers which included the Appellants. On 16-10-1999, the Commission reiterated its request, seeking sanction of two posts of Driver and ten posts for Peon/Mali/Chowkidar, adverted to administrative exigencies, and referred to earlier correspondence. However, via letter dated 11-11-1999, the State rejected the proposal citing financial constraints.
Aggrieved, the Appellants filed a writ petition before Allahabad High Court seeking quashment of order/letter dated 11-11-1999; a mandamus to the State to sanction/create fourteen posts in Class-III/IV for the Commission in terms of the Commission’s resolution and proposals and, thereafter, to regularise the Appellants against those posts with regular pay.
On 24-4-2002, the High Court directed the Commission to send a fresh recommendation for sanction of appropriate Group-C/Group-D posts and directed the State to take a fresh decision thereon. In the meantime, taking note of the Appellants’ long engagement, the Commission was directed to pay them the minimum of the applicable pay scale. However, by a communication dated 25-11-2003, the State once again declined sanction citing financial strains and a ban on creation of new posts.
On 19-5-2009, the Single Judge Bench of the High Court dismissed the Appellants petition holding that regularisation was impermissible in view of the law declared in Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1; no rules for regularisation in the Commission had been shown and there were no vacancies for the Appellants.
The Division Bench of the High Court confirmed the Single Judge Bench decision observing that the Appellants were daily wagers, that there were no rules for regularisation in the Commission and that no vacancy existed for considering them.
Therefore, the present appeal was filed challenging the decision of Division Bench whereby it had dismissed the Appellants’ writ petition.
Court’s Assessment:
Perusing the case, the Court had to consider whether the High Court was right in dismissing the Appellants’ petition.
The Court noted that the original writ petition before the High Court expressly challenged the State’s refusal dated 11-11-1999 to sanction posts for the Commission and sought a mandamus for creation of posts with consequential consideration for the appellants.
The Court pointed out that the Single Judge Bench and Division Bench of the High Court, treated the matter as a bare plea for regularisation and answered it only on the touchstone of absence of rules and vacancy, and rested principally on Umadevi (supra). In doing so, the High Court failed to adjudicate the principal challenge to the State’s refusal and the legality of its reasons. “In our opinion, such non-consideration amounts to a misdirection and, in effect, a failure to exercise jurisdiction”.
Taking note of State’s refusal dated 11-11-1999, the Court observed that it cited ‘financial constraints’, and its subsequent refusal dated 25-11-2003, the State cited finances and a ban on creation of posts. “Neither decision engages with relevant considerations placed on record, namely, the Commission’s 1991 resolution and repeated proposals, the acknowledged administrative exigencies of a recruiting body handling large cycles, the continuous deployment of these very hands for years, and the existence of attendant work that is primarily perennial rather than sporadic”.
The Court stated that while creation of posts is primarily an executive function, the refusal to sanction posts cannot be immune from judicial scrutiny for arbitrariness. A non-speaking rejection on a generic plea of “financial constraints”, ignoring functional necessity and the employer’s own longstanding reliance on daily wagers to discharge regular duties, does not meet the standard of reasonableness expected of a model public institution.
The Court further pointed out that the nature of work performed by the Appellants, i.e. sorting and scrutiny of applications, dispatch and office support, and driving, has been continuous and integral to the Commission’s functioning since their engagement between 1989 and 1992. The Commission further moved for sanction of 14 posts and furnished a list of 14 daily wagers including the Appellants. “That consistent internal demand, coupled with uninterrupted utilisation of the Appellants’ labour on regular office hours, fortifies the conclusion that the duties are perennial. To continue extracting such work for decades while pleading want of sanctioned strength is a position that cannot be sustained”.
Considering the High Court’s observation that there was no vacancy for the Appellants, the Court took note of a RTI response in 22-01-2010 pointed towards existence of Class-IV vacancies. The Court also took note of Appellants’ application filed before the Supreme Court in 2020, wherein they specifically pointed to at least five vacant Class-IV/Guard posts and one vacant Driver post within the establishment and the names of similarly situated daily wagers who were regularised.
The Court pointed out that no rebuttal was filed to the 2020 Application. The Court said that the unrebutted assertion of vacancies and the comparison with those who received regularisation, materially undermined the High Court’s conclusion that there was no vacancy and revealed the unequal treatment vis-à-vis persons similarly placed. The Court thus opined that selective regularisation in the same establishment, while continuing the Appellants on daily wages despite comparable tenure and duties with those regularized, is a clear violation of equity.
The Court further explained that High Court’s reliance on Umadevi (supra) was misplaced as the challenge in the present case is to the State’s arbitrary refusals to sanction posts despite the employer’s own acknowledgement of need and decades of continuous reliance on the very workforce. Whereas in Umadevi (supra), drew a distinction between illegal appointments and irregular engagements and did not endorse the perpetuation of precarious employment where the work itself was permanent and the State has failed to put its house in order.
The Court further took note of affidavits filed by the Commission stating that certain Group-C posts were sanctioned while Class-IV/Driver requirements were proposed to be met through outsourcing. However, the Court pointed out that supervening structural change cannot extinguish accrued claims or pending proceedings. A later policy to outsource Class-IV/Driver functions cannot retrospectively validate earlier arbitrary refusals, nor can it be invoked to deny consideration to workers on whose continuous services has been relied on by the establishment for decades.
Further it was pointed out that Single Judge of the High Court also declined relief on the footing that the petitioners had not specifically assailed the subsequent decision dated 25-11-2003. However, that view overlooked that the writ petition challenged the 11-11-1999 refusal and the High Court itself directed a fresh decision during pendency, and the later rejection was placed on record by the Respondents. Therefore, the High Court was obliged to examine the legality of the State’s stance in refusing sanction, whether in 1999 or upon reconsideration in 2003, rather than dispose of the matter on a mere technicality. The Division Bench of the High Court compounded the error by affirming the dismissal without engaging with the principal challenge or the intervening material.
Thus, the approach of the High Court, in reducing the dispute to a mechanical enquiry about “rules” and “vacancy” while ignoring the core question of arbitrariness in the State’s refusal to sanction posts despite perennial need and long service, was held to be unsustainable by the Court.
Therefore, the Court found the State’s refusals dated 11-11-1999 and 25-11-2003, in so far as they concern the Commission’s proposals for sanction/creation of Class-III/Class-IV posts to address perennial ministerial/attendant work, as unsustainable and thus quashed them.
The Court sternly said that “ad-hocism” thrives where administration is opaque and that the State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial.
“If “constraint” is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running”.
Directions for Relief to the Appellants:
Therefore, keeping in mind the Appellants who were engaged as daily wagers by the Commission and taking note that their long service and perennial nature of their duties, and the material indicating vacancies and comparator regularisations, the Court issued the following directions:
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Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24-4-2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions.
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Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24-4-2002 until the date of regularization/retirement/death, as the case may be.
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Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24-04-2002 until the date of superannuation for pay fixation, arrears, and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months.
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Deceased appellants: In the case of Appellant 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears up to the date of death, together with all terminal/retiral dues recalculated consistently, within three months.
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Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before the Court within four months of this Judgement.
The Court clarified that the afore-stated operative scheme comprising of creation of supernumerary posts, full regularization, subsequent financial benefits, and a sworn affidavit of compliance, is therefore a pathway designed to convert rights into outcomes and to reaffirm that fairness in engagement and transparency in administration are obligations under Articles 14, 16 and 21 of the Constitution.
[Dharam Singh v. State of UP, 2025 SCC OnLine SC 1735, decided on 19-8-2025]
*Judgment authored by Justice Vikram Nath
Advocates who appeared in this case:
for Appellant(s): Mr. Anil K. Chopra, AOR Mr. Sriram P., AOR Mr. Rajesh Gulab Inamdar, AOR Mr. Shashwat Anand, Adv. Mr. Chintan Nirala, Adv. Ms. Saumitra Anand, Adv. Mr. Ankur Azad, Adv. Mr. Shashank Tiwari, Adv. Mr. Faiz Ahmad, Adv. Ms. Shrey Bhushan, Adv. Mr. P Ashok, Adv.
For Respondent(s): Mr. Samar Vijay Singh, AOR Mr. Amit Ojha, Adv. Ms. Sabarni Som, Adv. Mr. Aman Dev Sharma, Adv. Mr. Gaj Singh, Adv. Mr. S. D. Singh, Adv. Ms. Bharti Tyagi, AOR Ms. Shweta Sinha, Adv. Mr. Ram Kripal Singh, Adv. Ms. Meenu Singh, Adv. Mr. Siddharth Singh, Adv.
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