JUDGMENT (Prayer in W.P.No.27667/2015: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the entire records connected with the impugned letter of the 1st respondent vide Letter No.36694/AP-1/2013 dated 13.03.2014 and quash the same and directing the respondents 1 to 3 to regularise the service of the petitioner as Driver w.e.f. 26.06.1980, with all monetary and service benefits and disburse terminal and pension benefits to the petitioner on account of his retirement on 31.03.2012. Prayer in W.P.No.27668/2015: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the entire records connected with the impugned letter of the 1st respondent vide Letter No.36694/AP-1/2013 dated 13.03.2014 and quash the same and directing the respondents 1 to 3 to regularise the service of the petitioner’s husband V.Manoharan as Driver w.e.f. 20.11.1989, with all monetary and service benefits and disburse death and pensionary benefits to the petitioner on account of death of her husband on 15.05.2010.) Common Order: The petitioner in both the writ petitions were appointed on consolidated basis as Drivers under the School Children Health Checkup Scheme under the control of Chief Educational Officers. Through the common impugned letter dated 13.03.2014, the first respondent herein had stated that the appointment of the petitioners under the aforesaid Scheme were irregular and hence, their services cannot be absorbed by the Health and Family Welfare Department. 2. Both these petitioners herein were appointed as Drivers under the Scheme as under: W.P.No.27667 of 2015 S.No NAME DATE OF APPOINMENT DESIGNATION 01 M.Joseph (Died) (Rep. by legal heirs) 17.06.1980 Retired on: 31.03.2012 Driver O /o. CEO, Tanjore W.P.No.27668 of 2015 S.No NAME DATE OF APPOINMENT DESIGNATION 01. Tmt.M.Prema W/o.(late) V.Manokaran 20.11.1989 (Through Employment Exchange) Died While in Service on: (Brain Tumor) 15.05.2010 Driver O/o. CEO, T.V.Malai Since the order impugned in both the writ petitions are common and the grounds raised by these petitioners are one and the same, a common order is passed. 3. It is not in dispute that both the petitioners herein were appointed on consolidated pay and that their appointments were irregular. When the Scheme of the Education Department, under which the petitioners were appointed was discontinued, their services under the School Education Department was proposed to be absorbed by the Health and Family Welfare Department. 3. It is not in dispute that both the petitioners herein were appointed on consolidated pay and that their appointments were irregular. When the Scheme of the Education Department, under which the petitioners were appointed was discontinued, their services under the School Education Department was proposed to be absorbed by the Health and Family Welfare Department. Accordingly, the respondents had called for their willingness for absorptions in the Health and Family Welfare Department, to which they had acceded. Thereafter, their request for absorption to the Health and Family Welfare Department has now been rejected on the ground that the appointments were irregular. 4. The Hon’ble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi and others reported in (2006) 4 SCC 1 had held that the High Court should not issue directions for absorptions or regularization of temporary, contractual, ad hoc employees, etc., who had continued for a long term in public employment, unless the recruitment itself was made regularly and in terms of the constitutional scheme. Presumably, the respondents have denied absorption / regularization of the services of the petitioners herein on the principles laid down by the Hon’ble Supreme Court in Umadevi’s case (supra). 5. Admittedly, the claims of these petitioners have been rejected only on the ground that their initial absorption into the scheme was irregular. It is not the case of the respondents that these appointments were “illegal” appointments. As a matter of fact, when the School Children Health Checkup scheme was floated by the School Education Department, the petitioners herein, who possess the minimum qualifications, were appointed to the post of Drivers. As a matter of fact, the petitioner in W.P.No.27668 of 2015 was also sponsored by the Employment Exchange. Their appointments was for the sole purpose of accommodating them to render the duties in the said post. The necessity to disengage their services under the School Education Department arose, when the scheme itself was discontinued. However, by this time, the petitioners herein had put in considerable years of service under consolidated basis. 6. In this background, the issue that arises for consideration is as to whether the services of these petitioners, who were appointed on consolidated pay basis, require to be disengaged without regularization of their services, in view of their appointments irregular? 7. However, by this time, the petitioners herein had put in considerable years of service under consolidated basis. 6. In this background, the issue that arises for consideration is as to whether the services of these petitioners, who were appointed on consolidated pay basis, require to be disengaged without regularization of their services, in view of their appointments irregular? 7. When the dictum in Umadevi’s case (supra) is straightaway applied, the stand taken by the respondents that the services of such irregular appointees cannot be regularised, may seem to be significant. However, in a later decision of the Hon’ble Supreme Court in the case of Nihal Singh and Others Vs. State of Punjab and Others reported in (2013) 14 SCC 65 the decision in Umadevi case was distinguished and held that, when the irregular appointments are not “illegal”, unreasonable or arbitrary, they would qualify for regularization. The relevant portion of the order reads as follows: 20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need. 21. The question is whether this court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this court in Umadevi’s case. To answer this question, the ratio decidendi of the Umadevi’s case is required to be examined. In that case, this Court was considering the legality of the action of the State in resorting to irregular appointments without reference to the duty to comply with the proper appointment procedure contemplated by the Constitution. 4. To answer this question, the ratio decidendi of the Umadevi’s case is required to be examined. In that case, this Court was considering the legality of the action of the State in resorting to irregular appointments without reference to the duty to comply with the proper appointment procedure contemplated by the Constitution. 4. … 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 Commissions 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. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called “litigious employment, has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over.” (emphasis supplied) It can be seen from the above that the entire issue pivoted around the fact that the State initially made appointments without following any rational procedure envisaged under the Scheme of the Constitution in the matters of public appointments. This court while recognising the authority of the State to make temporary appointments engaging workers on daily wages declared that the regularisation of the employment of such persons which was made without following the procedure conforming to the requirement of the Scheme of the Constitution in the matter of public appointments cannot become an alternate mode of recruitment to public appointment. 22. It was further declared in Umadevei case that the jurisdiction of the Constitutional Courts under Article 226 or Article 32 cannot be exercised to compel the State or to enable the State to perpetuate an illegality. This court held that compelling the State to absorb persons who were employed by the State as casual workers or daily-wage workers for a long period on the ground that such a practice would be an arbitrary practice and violative of Article 14 and would itself offend another aspect of Article 14 i.e. the State chose initially to appoint such persons without any rational procedure recognized by law thereby depriving vast number of other eligible candidates who were similarly situated to compete for such employment. 23. Even going by the principles laid down in Umadevi’s case, we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State. 24. In our opinion, the initial appointment of the appellants can never be categorized as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us.” 8. Likewise in another decision in the case of Amarendra Kumar Mohapatra and others Vs. State of Orissa and others reported in (2014) 4 SCC 583 , a similar view was taken by the Apex Court, while distinguishing Umadevi’s case, wherein it was held that when ad hoc appointments are not “illegal” but irregular, regularization is permissible. While holding so, the Apex Court had also distinguished Umadevi’s case (supra) in the following manner: 43.......The decision of this Court in State of Karnataka V. M.L.Kesair and Ors. While holding so, the Apex Court had also distinguished Umadevi’s case (supra) in the following manner: 43.......The decision of this Court in State of Karnataka V. M.L.Kesair and Ors. (2010) 9 SCC 247 , has examined that question and explained the principle regarding regularisation as enunciated in Umadevi’s case (supra). The decision in that case summed up the following three essentials for regularisation: (1) the employees worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage: 7. It is evident from the above that there is an exception to the general principles against regularisation” enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 44. It is nobody’s case that the degree holder Junior Engineers were not qualified for appointment as Assistant Engineers as even they possess degrees from recognised institutions. It is also nobody’s case that they were not appointed against the sanctioned post. There was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of time against sanctioned posts. It is also nobody’s case that they were not appointed against the sanctioned post. There was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of time against sanctioned posts. The information provided by Mr. Nageshwar Rao, learned Additional Solicitor General, appearing for the State of Orissa, in fact, suggests that the number of vacancies was at all points of time more than the number of appointments made on ad hoc basis. It is also clear that each one of the degree holders has worked for more than 10 years ever since his appointment as ad hoc Assistant Engineer. It is in that view difficult to describe these appointments of the Stipendiary Engineers on ad hoc basis to be illegal so as to fall beyond the purview of the scheme envisaged in Umadevi’s case (supra).” 9. On an appraisal of the aforesaid two decisions distinguishing Umadevi’s case supra, the ratio decidendi derived therein would be that even in cases where the appointments are irregular, such appointees would be entitled for regularization, so long as the appointment is not illegal. 10. In the instant case, these petitioners herein were engaged under a Scheme whereby, the posts of Drivers was created by the respondents for implementation of the Scheme to benefit the school children. The services of these petitioners, along with others were utilized, on consolidated basis, till their disengagement, owing to discontinuance of the Scheme itself. The petitioners herein have admittedly put in more than 10 years of service. It is not the case of the respondents that their appointments were illegal. While that being so, when the ratio laid down in Nihal Singh’s case and Amarendra Kumar’s case (supra) are applied, the petitioners may be entitled for regularization of their services. 11. In the light of the above findings, the impugned letters of the first respondent in Letter No.36694/AP-1/2013 in both the writ petitions dated 13.03.2014 are set aside. While that being so, when the ratio laid down in Nihal Singh’s case and Amarendra Kumar’s case (supra) are applied, the petitioners may be entitled for regularization of their services. 11. In the light of the above findings, the impugned letters of the first respondent in Letter No.36694/AP-1/2013 in both the writ petitions dated 13.03.2014 are set aside. Consequently, there shall be a direction to the respondents 1 and 2 herein to pass appropriate orders, in connection with the petitioners- claim for regularization of their services, in the light of the above findings, as well as the decisions of the Hon’ble Supreme Court relied upon in this order, within a period of three (3) months from the date of receipt of a copy of this order. 12. These writ petitions stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.