The Supreme Court and shadow recruitment to public employment

Undeniably, the Indian dream has long been tethered to public employment. For generations, government jobs have been the shared aspiration, guaranteeing recognition, dignity and fiscal stability.

In a society where access to industry was constrained by colonial self-interest and entrenched caste hierarchies, the framers of the Constitution recognised the need to “make fair” the opportunity to work. This led to the incorporation of Article 16 of the Constitution, guaranteeing equality of opportunity in matters of public employment. The framers of the Constitution did not envisage this as a mere negative obligation to not discriminate. Instead, the Constitution called for a rules-based regime of recruitment under Article 309.  The Constitution is clear on this - access to public posts must be through a fair, transparent and truly competitive system.

In derogation of this mandate, a parallel regime of recruitment - temporary, ad-hoc and contractual - emerged and continues to persist. Recruitment under Article 309 demands institutional effort and is neither swift nor inexpensive. If the procedure is followed, the State is required to sanction posts, notify its recruitment and objectively assess candidates on merit. Resultantly, the State has often preferred an easier route of engaging temporary workers through executive fiat, bypassing the process in the name of legitimate policy interests.

The difficulty arises when what is ostensibly temporary becomes enduring. Temporary contracts are renewed year after year, until the distinction between ‘permanent’ and ‘temporary’ begins to dissolve.

In the 1990s, temporary workers began approaching courts, seeking absorption for years of long service given. The temporary workers rightfully argued that they spent years of their productive life doing jobs that are essentially permanent in nature, but in name. The Court accepted this contention and would routinely, by mandamus, direct permanence, holding that it would be wholly unfair to render such employment temporary solely on the basis of contractual fine print.

What, then, is the core tension? It lies between the claim of temporary employees who entered positions without a proper competitive process, seeking to convert to permanent posts on the basis of long service rendered and the rights of those outside the system to have an equal opportunity to compete for those very posts. Each direction for regularisation addresses the former, but does so by closing the door on the latter.

The difficulty in reconciling this approach with the Constitution was crystallised in Secretary, State of Karnataka v. Uma Devi (2006). The Constitution Bench held that judicial directions for regularisation were legitimising entry into public employment outside the constitutional scheme for competition.

On this reasoning, the Court held that mere longevity does not translate into a right to regularisation. To hold otherwise would validate “backdoor entry” at the cost of equal opportunity. The conflict, therefore, is between the equitable claim of the individual worker and the structural guarantee owed to the wider public.

Crucially, Uma Devi distinguishes between illegal and irregular appointments. An appointment is illegal where it is made in complete disregard of the constitutional scheme - without advertisement, without competition, often not even against a sanctioned post. It is this kind of entry that the Court looks askance at most, and for that reason, no claim to regularisation can arise from such a foundation.

Irregular appointments in the eyes of the Court stood differently. Here, the candidate is qualified and the post exists, but the process falls short. In this limited space, the Court recognised that where such employees have continued for long years, a one-time exercise of regularisation may be justified and was so ordered. For irregular employees, what the Court protected was not a right to absorption, but at best a right to be considered when the State finally undertook its process.

For a time, Uma Devi appeared to settle this tension, until the pendulum began to swing again.

Vinod Kumar v. Union of India: A doctrinal shift

The first decision in this line is Vinod Kumar & Ors v. Union of India & Ors (2024). The petitioners, who had served as ‘accounts clerks’ for over 25 years, sought regularisation on the footing that their appointments were preceded by written tests and interviews and that they had subsequently been promoted through a structured process. The Court was persuaded that long and continuous service, coupled with a demonstrably objective mode of selection, had given rise to substantive rights. The functional indistinguishability between the petitioners and regular employees weighed heavily in favour of granting relief.

The difficulty, however, lies in the Court’s treatment of Uma Devi. While the decision is formally distinguished on the basis that the present case did not involve “backdoor entries”, that distinction is not entirely sustainable. The Constitution Bench in Uma Devi was not confined to clandestine appointments; it also addressed irregular appointments - those made outside the constitutional scheme but not necessarily tainted by fraud. On its own reasoning, the facts of Vinod Kumar fall within that category.

More significantly, the Constitution Bench had permitted regularisation of such irregular appointees only as a one-time measure, coupled with a clear caveat that there should be no further bypassing of constitutional requirements. The Court in Vinod Kumar, despite extracting this very clarification, effectively reopens that window nearly two decades later.

Jaggo and Dharam Singh

The movement away from Uma Devi becomes more pronounced in Jaggo v. Union of India (2024). The petitioners- engaged as safaiwalas and malis -had been denied regularisation by the Central Administrative Tribunal (CAT) and the High Court on familiar grounds: absence of sanctioned posts, failure to satisfy the 240-day threshold and lack of requisite qualifications. The Supreme Court declined to treat these considerations as determinative. Instead, it shifted the inquiry toward the sustained and integral nature of the work performed and whether the initial engagement was tainted by illegality or surreptitious entry.

What underlies this shift is a recognition of the structural realities of public employment: the routine use of temporary labels for work that is, in substance, permanent; arbitrary termination; and the denial of benefits that would otherwise accrue under labour and social security regimes. Even so, the doctrinal move continues to rest on the same distinction from Uma Devi articulated in Vinod Kumar, without fully confronting the breadth of its ratio.

In Dharam Singh & Ors v. State of UP (2025), the Court encountered daily wagers working for years against posts that remained unsanctioned. The Court was unequivocal in holding that the State, as a constitutional employer, cannot extract regular labour under temporary designations. The direction to sanction posts is consistent with constitutional discipline. The difficulty arises in what follows: the regularisation of these very employees into the newly sanctioned posts. While normatively appealing, this step again stretches beyond the limits articulated in Uma Devi, particularly where the initial engagement did not conform to the constitutional scheme.

Bhola Nath: Consolidation and expansion

The most recent decision, Bhola Nath v. State of Jharkhand (2026), both consolidates and expands this line of reasoning. On facts, the case is more defensible even within the framework of Uma Devi: the employees were appointed pursuant to an advertisement, subjected to a selection process and worked against sanctioned posts over a prolonged period.

Its significance, however, lies in its articulation of principle. The Court rejects the idea that contractual nomenclature can operate as a constitutional shield. Where the State has, over time, taken the benefit of an employee’s services while deferring regular recruitment, it cannot rely on the temporary nature of the engagement to deny security of tenure.

Equally important is the rejection of the “open-eyes” argument. In relationships marked by inequality of bargaining power, formal consent cannot be treated as dispositive. The Court invokes the State’s obligation as a model employer - an obligation that carries expectations of fairness and non-arbitrariness. Over time, these factors coalesce into a form of legitimate expectation that long and continuous service will not be met with abrupt disengagement.

With each judgment, the Court has broadened the scope for regularisation and absorption.

First, through Vinod Kumar and Bhola Nath, the Court opened the door to regularisation of temporary employees against sanctioned posts, if the original appointment was merely irregular. It exercised the power to regularise the irregular, despite Uma Devi only having permitted such bypass of the constitutional scheme as a one-time measure.

Second, in Jaggo and Dharam Singh, the Court regularised temporary employees even when no sanctioned posts existed on grounds of long service, honest initial appointment, essential nature of work and protection from social inequities.

Across Vinod Kumar, Jaggo, Dharam Singh and Bhola Nath, the Court shows a clear awareness of the hardship faced by employees who, despite long service in roles indistinguishable from regular posts, remain in a state of precarity. The emphasis on the State as a model employer, the rejection of contractual formalism and the acknowledgment of unequal bargaining power reflect a conscious, humane shift.

This approach seeks to prevent the Constitution from being used to justify administrative arbitrariness. In that sense, the Court’s intervention is understandable, even necessary in individual cases.

What receives comparatively less attention in these decisions is the constitutional commitment to fair and open competition under Article 309. Each direction for regularisation effectively removes a post from the zone of competition, foreclosing the opportunity of others who were never afforded a chance to apply. If regularisation becomes the default response to irregular state practice, the cycle risks perpetuation.

Participation in an objective process for a temporary post cannot, by itself, substitute the constitutional requirement of open competition for a permanent post. Those who may have chosen not to compete for temporary engagements are nonetheless entitled to equal opportunity when permanent vacancies arise. Judicial intervention must remain mindful of this competing claim.

A more durable response lies in preventing such deviations at the outset. The Court’s mandamus jurisdiction is well-equipped to ensure timely and regular recruitment in accordance with Article 309. While the Court, as a court of equity, is justified in shielding temporary employees from evident unfairness, the long-term discipline must operate at the level of the State.

Judicial regularisation is at best a partial solution. Courts intervene after years of litigation, by which time uncertainty has hardened into hardship.

One option lies in mandatory lapsing of contractual positions after a fixed period. Where a temporary employee occupies a permanent post, continuation beyond a defined cap should trigger the end of that position, which cannot be renewed at any cost. A contemporaneous obligation is to be cast on the State to conduct regular recruitment in a time-bound manner.

Whilst the suggestion above would ensure that temporary employees occupying permanent posts are neither exploited nor are such positions occupied without competition, it is also necessary to address the prevalent practice of the State creating temporary posts, which it then continues to require for prolonged periods. Here, the Court must again draw a line that where a post itself remains temporary for significant periods, it should, upon crossing a threshold, be deemed permanent, with a corresponding obligation to fill it through formal recruitment.

The Court’s response reflects an effort to do justice in the case before it. The persistence of such cases, however, signals a failure elsewhere. Public employment cannot oscillate between irregular engagement and post-facto correction. The constitutional promise lies in open competition at the outset, and it is that obligation which the State must ultimately discharge.

Samrat Pasriccha and Rohini Narayanan are Delhi-based Advocates.