IN INDIA, PUBLIC EMPLOYMENT constitutes a huge share of litigation in courts. Service litigation is mainly centered around regularisation, back wages, gratuity, pension, inter alia.
The most important yardstick that the courts consider as a sine qua non in service law litigation is the ‘nature of employment’. Here, nature of employment means the ‘legality of employment’, which is the foremost criteria to ascertain locus standi of any petitioner in service litigation. This is because, only those lawfully employed after following due procedure are allowed to seek the recourse of law while those employed via back-door entry are proscribed from the same. In this regard, the courts refer to the judgement of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) or the Uma Devi Guidelines as they are popularly known.
The 58-page Constitution Bench decision is a super detailed enunciation on public employment and its converging facets with fundamental rights and basic structures of the Constitution of India, 1950. The judgement ventures into intricacies of service law and speaks about irregularity and illegality of employment as the yardstick in ascertaining regularisation. Although, the mainstay of the judgement is to prevent backdoor entries into public posts, the state has systematically used the judgement to prevent legitimate entries as well.
This piece attempts to analyse this use and abuse of a judgment delivered almost twenty years ago which is still extremely relevant.
Recently, various High Courts and the Supreme Court of India have remarked upon the systematic misuse of the Uma Devi guidelines. This misuse is owing to the multiple interpretations of the judgment which has become sacrosanct for ascertaining ‘legality’ of employment. The guidelines are a double-edged sword as they provide enough fodder for both the parties in service litigation to further their own case and oppose the others’. This piece attempts to delineate and demarcate the guidelines.
The various facets of Uma Devi judgement (the paragraphs mentioned below are from the uploaded judgment on SCC online) are:
Litigious employment
The Court speaks about the concept of litigious employment which is when an employee secures favorable directions protecting his employment from the courts. These protections are often in the form of orders or directions which are used to shield any adverse orders from the administration; mainly termination from service. The orders are later used to tweak and protect employment at the cost of public at large. This results in an abuse of process and the courts shall resist from such indulgences as it might result in the holding up of legitimate recruitment process to fulfil regular posts in the government. This litigious employment creates roadblocks and subverts the legitimate recruitment process. This would in turn violate established constitutional rights such as Article 14, 15, 16, 19(1)(g) and 21.
These observations are cautionary in nature and directed towards writ courts that might sometimes indulge petitioners on matters which seemingly have no impact in the short term but create a logjam in the longer run by means of litigation. Given, service litigation historically delays a lot of recruitment processes by the state, these observations are directed towards balancing the interest of the individual vis-à-vis the larger interest of society.
Article 14 and 16, of the Constitution
In Para 24, the Court states that albeit it is the executive’s prerogative to create posts and recruit qualifying candidates, it is the courts’ duty to ensure that Articles 14 and 16 are upheld while these processes are implemented by the executive. Following this, in Para 25, the Court states that all temporary and ad hoc recruitments which are usually a product of exigencies shall “always be replaced with regular employees.” Here, the Court introduces and delves with one of the mainstays of the judgement i.e. the recruitment of ad hoc or temporary employees. However, the Court says that its decision in State of Haryana v. Piara Singh (1992) is not a blanket ratio and all temporary or ad hoc employees are not entitled to permanent employment. This is to prevent unnecessary litigation and to establish that requisite criteria need to be fulfilled for regularisation. Thus, while ad hoc or temporary employees deserve consideration for regularisation; it is only upon fulfilling certain criteria.
These paragraphs are often used as defense by the state to refuse regularisation. However, the Court’s direction that the state shall endeavor to always recruit regular employees in the Group C and D cadres is often ignored by the state. This is because temporary employment is a hassle-free means to employ people without perquisites that are guaranteed to permanent employees. Such a convenient take on employment reeks of a corporatisation drive by the government wherein instead of providing stable employment, the State is depriving the citizens of social security.
Legitimacy of appointment
In Para 38, the Court enunciates that the ‘legitimacy of appointment’ is an important aspect while considering regularisation. Legitimacy here means following due procedure during appointments. Due procedure is a broad and sweeping term covering everything from open advertisement of posts, conducting transparent examinations, selection process, issuance of appointment letter from concerned authorities, et al. However, at the center of this lies the compliance with due procedure. The Court recalls its decision in B.S. Minhas v. Indian Statistical Institute (1983), which states that a lack of proper advertisement or selection process patently violates fundamental rights enshrined under Article 16, of eligible candidates who possess an inherent right to apply and secure such positions.
These observations negate any illegitimate claim towards service by putting forth the conception of irregularity and illegality of appointment. For illegal appointments, the Court has made it abundantly clear that there can arise no legitimate claim from the petitioners as illegality is a direct violation of fundamental rights of legitimate candidates at large. However, for irregular appointment the court left a window open for entries that satisfy certain criteria which was clarified later in Jaggo (2024) (almost 20 years later), wherein all irregular (not illegal) appointments were held to be liable for regularization upon passing of 10 years of time.
Illegal employment: A fait accompli
In Paras 43 to 45, the Court sheds light onto the core jurisprudence of this judgement wherein transparent and proper employment for public roles is equated with meeting the requirements of Articles 14 and 16 of the Constitution,. The Court explains that mere passage of a long time does not guarantee regular employment to anybody who was not recruited in pursuance of proper advertisement and selection process. There is an explicit bar on the Court acting under Article 226 to issue directions for regularisation of service of those who were recruited in a temporary capacity without proper recruitment as they possess no legitimate rights. Further, it is held that, accepting a temporary employment is akin to a fait accompli situation wherein employees know that there is a definitive end to the employment and that merely guaranteeing employment to people based on the lapse of time strikes at the heart of the Article 14 of the Constitution.
This proactively proscribes the writ courts from indulging petitions that invoke the writ jurisdiction and entangle public employment opportunities into endless litigation. The fait accompli observation now stands tweaked after Jaggo where passage of long time is in fact considered to be legitimate ground for regularisation, provided the appointment is ‘legitimate’.
Legitimate expectation: The bar of Uma Devi
In Para 47, the Court states that there can be no legitimate expectation on the part of employees who have been employed on posts sans proper advertisement or recruitment. This paragraph is also the essence of the bar of the Uma Devi guideline which essentially holds that there arises no locus for any employee of the state to lay a legitimate claim towards regularisation of service if the recruitment was not in pursuance of due process.
In Paras 49 and 50, the Court invokes the Rule of Law and shifts the entire burden of public employment onto the shoulders of the state. The Court equates regularisation and the gamut of issues around it is a result of the persistent failure of the state to follow the mandates envisaged in the Constitution, especially those in Parts III and IV. It is held that rule of law shall be the cornerstone in public appointments which would automatically eradicate the concept of illegitimate employments. Further, in a poverty ridden country like India, denial of regularisation also violates the Right to Life guaranteed to citizens under Article 21.
These paragraphs castigate the actions of the State. Ironically, the State and the courts seem to have conflicting views about their proper roles. In this judgment, the Court placed the full responsibility for public employment on the State. But now, the State is using that very judgment as a convenient excuse to shirk off its responsibilities.
In Para 53, perhaps, the crux of the judgement is laid out as the Court exhorts the government and its instrumentalities to undertake necessary steps to regularise service of irregularly appointed employees who have worked for more than ten years in duly sanctioned posts. However, the same shall not fall prey to the category of litigious employment as mentioned in Paragraph A of this piece.
Uma Devi guidelines are a carefully constructed commentary on the state of public employment in a country. A judgement that is viewed as an active shield against regularisation of employees is in fact a vivid commentary on the gaping holes of public employment and the wanting areas of amelioration. Instead of blindly using the judgement to defend petitioners in service law litigation, the need of the hour is to delve deeper and implement the ideas of equity and justice laid out by the court. To sum up, the Uma Devi guidelines are not merely guidelines for the employees of the state, it is also an exhaustive directive for the State to uphold fairness in public employment.
