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Friday, February 21, 2014

Service matter - Constitutional validity of the Orissa Service of Engineers(Validation of Appointment) Act, 2002 - Orissia High court strucked it as unconstitutional - Apex court set aside the order high court and allowed the appeals = Amarendra Kumar Mohapatra & Ors. …Appellants Versus State of Orissa & Ors. …Respondents = 2014(Feb.Part)

   Service matter - Constitutional validity of the  Orissa  Service   of   Engineers(Validation of Appointment) Act, 2002 - Orissia High court strucked it as unconstitutional - Apex court set aside the order high court and allowed the appeals =
The primary issue that falls for determination  touches  the  Constitutional
validity  of  what  is  described  as  the  Orissa  Service   of   Engineers
(Validation of Appointment) Act, 2002 by which appointment  of  881  ad  hoc
Assistant  Engineers  belonging  to   Civil,   Mechanical   and   Electrical
Engineering Wings of the State Engineering Service have been  validated,  
no matter all such appointments  were  in  breach  of  the  Orissa  Service  of
Engineers’ Rules, 1941. =
The High Court of Orissa has  in  a  batch  of  writ
petitions filed before it  struck  down  the  impugned  Legislation  on  the
ground that the same violates the fundamental rights guaranteed to the  writ
petitioners  under  Articles  14  and  16  of  the  Constitution. =

(a)  the  validity  of  the  impugned
Validation Act.  
(b)  regularization  of  in-service  degree  holder  Junior
Engineers  who  have  been  working  for  considerable  length  of  time  as
Assistant Engineers on ad hoc basis and 
(c) the seniority position of  those
being regularized either under  the  Validation  Act  or  in  terms  of  the
directions being issued by us in  these  appeals.  
Other  issues  which  the
interveners seek to raise especially issues regarding  grant  or  denial  of
the benefit of reservation to SC and ST candidates, have  not  been  touched
by us in these proceedings for want of proper pleadings on the  subject  and
also for want of any pronouncement by the High Court on the said  questions.
In the circumstances, this order shall be taken to have  settled  only  what
we have specifically dealt with or what would  logically  follow  therefrom.
Any question 
whether the  same  relates  to  inter  se  seniority  of  those
regularized under the legislation or by reason of the  directions  which  we
propose to issue or issues relating to  the  benefit  of  seniority  on  the
basis of roster points if any prescribed for that purpose are left open  and
may be agitated by the  aggrieved  party  before  an  appropriate  forum  in
appropriate proceedings. 
To the extent any such questions  or  aspects  have
not been dealt with by us in this order, may  be  dealt  with  in  any  such
proceedings. Beyond that we do not consider it proper or  necessary  to  say
anything at this stage.

 In the result we pass the following order:

(1)   Civil Appeals No.8324-8331 of 2009 filed by the State  of  Orissa  and

      Civil Appeals No.8322-8323 of 2009 and  1940  of  2010  filed  by  the
      Stipendiary Engineers are allowed and the impugned judgment and  order
      dated 15th October, 2008 passed by the High Court of Orissa set aside.

(2)    Writ  Petitions  No.9514/2003,  12494/2005,  12495/2005,  12627/2005,

      12706/2006 and 8630/2006 filed by the degree holders Junior  Engineers
      working as Assistant Engineers on ad hoc basis are  also  allowed  but
      only to the limited extent that the services of  the  writ-petitioners
      and all those who are  similarly  situated  and  promoted  as  ad  hoc
      Assistant Engineers against the proposed 5%  quota  reserved  for  in-
      service Junior Engineers degree holder shall stand regularized  w.e.f.
      the date Orissa Service of Engineers (Validation of Appointment)  Act,
      2002 came into force. We further direct that  such  in-service  degree
      holder Junior Engineers promoted as  Assistant  Engineers  on  ad  hoc
      basis shall be placed below the promotees and  above  the  Stipendiary
      Engineers regularized in terms of the impugned legislation. The  inter
      se seniority of the Stipendiary  Engineers  regularized  as  Assistant
      Engineers under the impugned Legislation and  Junior  Engineer  degree
      holders regularized in terms of this order shall be determined on  the
      basis of their date of first appointment as Assistant Engineers on  ad
      hoc basis.

(3)   Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment  and
      order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of
      1999 disposed of in terms of the above direction.

(4)   Intervention applications filed in these appeals are also disposed  of
      in the light of observations made in Para 74 of this judgment.

(5)   Parties are left to bear their own costs.


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.8322 OF 2009

Amarendra Kumar Mohapatra & Ors.        …Appellants


State of Orissa & Ors.                       …Respondents


Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940 of 2010.

                               J U D G M E N T


1.    Common questions of law  arise  for  consideration  in  these  appeals
which were heard together and shall stand disposed of by this common  order.
The primary issue that falls for determination  touches  the  Constitutional
validity  of  what  is  described  as  
the  Orissa  Service   of   Engineers
(Validation of Appointment) Act, 2002 by which appointment  of  881  ad  hoc
Assistant  Engineers  belonging  to   Civil,   Mechanical   and   Electrical
Engineering Wings of the State Engineering Service have been  validated,  
no matter all such appointments  were  in  breach  of  the  Orissa  Service  of
Engineers’ Rules, 1941. 
The High Court of Orissa has  in  a  batch  of  writ
petitions filed before it  struck  down  the  impugned  Legislation  on  the
ground that the same violates the fundamental rights guaranteed to the  writ
petitioners  under  Articles  14  and  16  of  the  Constitution.
We  shall
presently  formulate  the  questions  that  arise  for  determination   more
specifically but before we do so, we consider it necessary to  set  out  the
factual matrix in which the entire controversy arises.

2.    In a note submitted to the State Cabinet on 15th May 1990 the  problem
of over 2000 unemployed degree-holders in various  branches  of  Engineering
who had passed out from several Engineering colleges  since  the  year  1984
was highlighted and a proposal for utilizing the manpower so  available  for
the benefit of the State economy mooted.
The proposal envisaged  a  twofold
action plan for absorbing the unemployed graduate Engineers.
The first  part
of the action plan  provided  for  withdrawal  of  127  posts  of  Assistant
Engineers that had been  referred  to  the  Public  Service  Commission  and
advertised by it to be filled up  by  appointing  unemployed  degree  holder
Engineers in a non-class II rank. 
The second part of the proposal  envisaged
creation of 614 posts  of  Junior  Engineers  in  different  Departments  to
accommodate the unemployed degree holders.
These  614  posts  comprised  314
new posts proposed  to  be  created,  one  for  each  block  in  the  State.
Similarly, 100 posts were to be created in  the  Irrigation  Department  for
survey and investigation to  accelerate  the  pace  of  investigation.   Yet
another 200 posts were to be created  for  initial  infrastructure  work  in
connection with Paradip Steel Plant.

3.    The  note  submitted  to  the  Cabinet  suggested  that  degree-holder
Engineers could  be  recruited  against  all  the  741  (127  +  614)  posts
mentioned  above  to  be  designated  as  Junior  Engineers  or  Stipendiary
Engineers in the first phase on a consolidated  stipend  of  Rs.2,000/-  per
month. The proposal further envisaged absorption of Engineers  so  appointed
on regular basis after two years, after assessing their performance.

4.    The Council of Ministers considered the proposal mooted before it  and
approved the same. Decision taken in the  2nd  Meeting  of  the  Council  of
Ministers held on 15th May, 1990 with regard  to  ‘Problems  of  Un-employed
Degree Engineers’ was forwarded to the  Secretaries  to  the  Government  in
terms of a memo dated 21st May 1990, the relevant portion whereof  reads  as

| “Item No.5:           |Problems of Un-employed Degree        |
|                       |Engineers.                            |
|                       |The problems were discussed at length |
|                       |and the following decisions were      |
|                       |taken.                                |
|                       |All posts of Assistant Engineers      |
|                       |referred to the Orissa Public Service |
|                       |Commission and advertised by them may |
|                       |be withdrawn.                         |
|                       |314 posts of Stipendiary Engineers may|
|                       |be created one in each Block.         |
|                       |100 posts of Stipendiary Engineers may|
|                       |be created in the Irrigation          |
|                       |Department for survey and             |
|                       |investigation.                        |
|                       |200 posts of Stipendiary Engineers may|
|                       |be created for the initial            |
|                       |infrastructure work of Paradip        |
|                       |Port-based Steel Plant.               |
|                       |In all, 741 posts of Stipendiary      |
|                       |Engineers will be available, for      |
|                       |recruiting from the unemployed Degree |
|                       |Engineers.  A Stipendiary Engineer may|
|                       |be paid a consolidated stipend of     |
|                       |Rs.2,000/- per month.  Absorption into|
|                       |regular posts may be considered after |
|                       |two years on the basis of their       |
|                       |performance.                          |
|                       |The criteria for selection are to be  |
|                       |worked out separately, so that        |
|                       |Stipendiary Engineers are recruited on|
|                       |merit basis batch by batch.           |
|                       |The rest of the unemployed Degree     |
|                       |Engineers are proposed to be engaged  |
|                       |in various construction works by      |
|                       |formation of Groups Companies and     |
|                       |Cooperatives, which will get          |
|                       |preference in award of work by the    |
|                       |Department/Corporations.”             |
|                       |                                      |

5.     As  a  sequel  to  the  above  decision,   the   Government   invited
applications from unemployed  graduate  Engineers  of  all  disciplines  for
empanelment as Stipendiary Engineers for placement in  different  Government
departments, projects, public sector  undertakings,  co-operative  societies
and industries etc.
By another resolution dated  22nd  September  1990,  the
Government stipulated  the  procedure  to  be  adopted  for  discipline-wise
empanelment  of  the  unemployed  graduate  Engineers  for  appointment   as
Stipendiary Engineers against the vacancies  in  different  departments  and
The procedure evolved was to the following effect :

           “2. Government have since decided that the  following  procedure
           should  be  adopted  for  discipline  wise  empanelment  of  the
           unemployed Graduate Engineers  for  appointment  as  Stipendiary
           Engineers  against  the  vacancies   in   different   government
           Department and undertakings:

              1) 25 percent of the posts shall be filled up on  merit  basis
                 and for this purpose equal number will be taken  from  each
                 batch starting from the batch of 1984 up to  the  batch  of

              2) A point system will be adopted  for  empanelment  on  merit
                 basis, for which out of a total 100 marks  the  performance
                 in HSC will be given 15 marks, the performance  in  I.  Sc.
                 and Diploma will be given 25 marks and the  performance  at
                 the final Engineering Degree Examination will be  given  60

              3) After the empanelment on merit basis is done for 25% of the
                 vacancies, empanelment will  be  done  batch-wise  starting
                 from  1984  for  the  remaining  vacancies.  The  Inter  se
                 position of candidates in the batch wise panel  will  again
                 be on the basis of merit computed as in (2) above.

              4) There shall also be separate empanelment on merit basis for
                 SC/ST, Physically handicapped  and  ex-servicemen  covering
                 all the  batches  to  facilitate  filling  up  of  reserved
                 vacancies.  The rules regarding  reservation  of  vacancies
                 will apply to these appointments.

              5) Applications received on or before 10.7.1990 will alone  be
                 considered for empanelment.  Similarly  graduate  Engineers
                 who have passed out before 1984 or those who have  obtained
                 degree after 1989 will not be eligible for empanelment.

              6) The following committee will undertake the work of scrutiny
                 and empanelment of the unemployed graduate Engineers.

|Secretary Steel & Mines          |Chairman of the  |
|                                 |Committee        |
|Engineer-in-Chief and Secretary, |Member           |
|Works                            |                 |
|Engineer-in-Chief (Irrigation)   |Member           |
|Chief Engineer Electricity and   |Member           |
|electrical Projects              |                 |
|Chief Engineer, PHD              |Member           |
|Chief Engineer, RLEGP            |Member           |
|Managing Director, IPICOL        |Convenor         |

              7) The panels from the Scrutiny Committee will  be  maintained
                 in the Department of Planning  and  Coordination  who  will
                 sponsor candidates to various  Government  Departments  and
                 Undertakings according to the requirement as  indicated  by
                 them.  The  undertakings  will  send  indents  through  the
                 concerned Administrative Departments.

              8) As regards Civil &  Mechanical  Engineers,  the  Government
                 Departments will intimate  the  requirement  to  Irrigation
                 Department who will the panel names from P &  C  Department
                 to fill up the vacancies. In case of these  Engineers,  the
                 appointment orders will be  issued  by  the  Department  of
                 Irrigation  and  when  required  they  will  be   sent   on
                 deputation to the other Departments.

              9) If there is no candidate to be recommended against  reserve
                 vacancies for the reason that the panels of such candidates
                 are exhausted, the Department of P & C  will  give  a  non-
                 availability certificate to the indenting organizations  so
                 that they can take steps to de-reserve  the  vacancies  and
                 give appointment to general candidates in their place.

             10) The normal requirement for new appointment under Government
                 viz.   production   of   original   certificates,   Medical
                 Certificate,  Schedule  Caste/Scheduled  Tribe  Certificate
                 etc. shall be applicable  to  these  appointments  and  the
                 verification of these documents shall be the responsibility
                 of the Employing Departments/Undertakings.

             11) In some cases  relaxation  of  age  limit  for  entry  into
                 Government service may have to be done  and  this  will  be
                 attended to by the Employing Departments/Undertakings as  a
                 matter of course.


                 Ordered that the Resolution be  published  in  the  Orissa
           Gazette for general information.

                 Ordered also that copies of the Resolution be forwarded to
           all Departments of Government, Member,  Board  of  Revenue,  All
           Heads of Departments,  All  District  Collectors,  Secretary  to
           Governor,  Registrar,  Orissa  High   Court   Secretary,   OPSC,
           Principal Secretary  to  the  Chief  Minister  and  Director  of
           Printing, Stationary and  Publication,  Orissa  Cuttack  and  50
           copies of Planning & Coordination Department.

                                                    BY ORDER OF THE GOVERNOR
                                         ADDITIONAL DEVELOPMENT COMMISSIONER
                                                    SECRETARY TO GOVERNMENT”

6.     Applications  received  from  unemployed   graduate   Engineers   for
appointment as Stipendiary Engineers were in terms of the  above  resolution
and considered by the Committee constituted for the purpose and  appointment
of eligible candidates found suitable for  such  appointments  made  between
1991 to 1994.  Appointment orders issued to the  candidates  made  it  clear
that degree holder Engineers were being engaged as Stipendiary Engineers  in
the concerned Department  and  shall  be  paid  a  consolidated  stipend  of
Rs.2000/- only. It further stated that the engagement was  purely  temporary
and terminable at any time and without any notice.

7.    In August 1992, Minister for Irrigation, Government of  Orissa  mooted
a further proposal to the following effect:

              a) The promotion quota may continue at 33% of annual vacancy.

              b) In addition, there should be a selection quota of 30%. This
                 quota will have two components – 5%  for  Junior  Engineers
                 who have  acquired  an  Engineering  Degree  or  equivalent
                 qualification and 25% which will be  earmarked  exclusively
                 for Stipendiary Engineers.

              c) Direct recruitment quota will be 37%. Stipendiary Engineers
                 can also compete against this quota.  They may  be  allowed
                 age relaxation up to five years.   This  will  ensure  that
                 Stipendiary Engineers have  the  facility  of  recruitment,
                 both against the selection  quota  and  direct  recruitment

              d) Departments may not  fill  up  vacancies  in  the  post  of
                 Stipendiary  Engineers  caused  by   appointment   of   the
                 incumbents as Assistant Engineers, if they want to  do  so,
                 they may obtain candidates from the panel  of  the  P  &  C

              e) This will be a transitional provision  because  appointment
                 of Stipendiary Engineers may not be  a  permanent  feature.
                 After such time  as,  Government  may  decide  the  present
                 quotas of recruitment will be restored.

              f)  Public  Sector  Undertakings  should   frame   their   own
                 recruitment  rules  which  should  broadly  correspond   to
                 Government’s policy of promotion of  Junior  Engineers  and
                 appointment of Stipendiary Engineers through selection.  If
                 there are no Stipendiary Engineers or Junior Engineers with
                 Degree  or  equivalent  qualification  quotas   for   these
                 categories will be added to direct recruitment quota.”

8.    It is evident from  the  above  that  while  the  Government  did  not
propose to  reduce  the  33%  quota  reserved  for  promotees,  out  of  the
remaining 67% meant for direct recruitment, it proposed to  carve  out  what
was described as selection quota of 30% for absorption  of  the  Stipendiary
Engineers to the extent of 25% of the vacancies  and  degree  holder  Junior
Engineers against the remaining 5% of the vacancies. The balance of  37%  of
the vacancies was, however, left to be filled up by direct recruitment  from
the open market.

9.    Based on the above, the Government appears to have  made  a  reference
to the Orissa Public Service Commission on 5th June  1996  for  approval  of
the draft Orissa Engineering Service (Recruitment &  Condition  of  Service)
Rules, 1994 which were already approved by the State  Council  of  Ministers
on 3rd December 1994. 
The Orissa Public Service Commission, however,  struck
a discordant note.
In its opinion, since the Stipendiary Engineers did  not
constitute a cadre in the formal sense it was not desirable to treat  it  as
a feeder grade for Assistant Engineers. So also the proposal to  reserve  5%
of the vacancies in the grade of Assistant Engineers to be filled by  degree
holder Junior Engineers from the Subordinate Service was also considered  to
be inadvisable.  The  Commission  opined  that  since  persons  with  higher
qualifications serve practically in all fields of  administration  including
technical  services  such  as  Medical  and  Engineering,  it  was   neither
necessary nor desirable to provide for them a route  for  promotion  to  the
higher level except the one available to all those  serving  in  the  feeder
grade.  In the opinion of the  Commission,  the  correct  way  of  rewarding
those with higher qualification was to give them advance increments  at  the
time of entry.  The Commission also suggested that if in the opinion of  the
Government the quota for promotion of  Junior  Engineers  to  the  level  of
Assistant Engineers required to be higher than 33% in consideration  of  the
larger body of Junior Engineers some of whom were degree holders,  it  could
increase the same to 40%, but the  fragmentation  of  the  Junior  Engineers
into  degree  holders  and  non-degree  holders  was  not  advisable.    The
Commission suggested that the remainder of  the  60%  vacancies  for  direct
recruitment could be utilized by recruiting  degree  holder  Engineers  from
the open market including Stipendiary Engineers and  that  candidates  could
be given suitable weightage while judging their inter se relevant merit.

10.   The Government had, in the  meantime,  passed  a  resolution  on  12th
March, 1996 stating that the Stipendiary Engineers  could  be  appointed  as
Assistant Engineers on ad hoc basis in the pay scale  of  Rs.2000-3500/-  or
any similar post  on  ad  hoc  basis  against  regular  vacancies.  It  also
resolved to regularize the  service  of  such  ad  hoc  Assistant  Engineers
through a Validation Act. Some Stipendiary Engineers  who  were  working  in
different State Governments and statutory bodies were also  proposed  to  be
appointed to the post of Assistant Engineer  or  equivalent  posts  carrying
the same scale, subject to their suitability and  satisfactory  performance.
The relevant portion reads as under:

           “In consideration of the above decision of the  Government,  the
           appointing authority of Departments of Government  will  appoint
           the Stipendiary Engineers of different disciplines as  Assistant
           Engineers against existing vacancies of Assistant  Engineers  on
           ad  hoc  basis  for  a  period  of  one  year,  except  Civil  &
           Mechanical, to be appointed on ad hoc basis by the Department of
           Water Resources.

                 XXX              XXX              XXX

           Stipendiary Engineers who are already working in different State
           Government    Undertakings,    Corporations,,    Semi-Government
           Organizations &  Statutory  Boards  may  also  be  appointed  as
           Assistant Engineers or in equivalent  posts  carrying  the  same
           scale,   subject   to   their   suitability   and   satisfactory

11.   The resolution notwithstanding, the  Government  does  not  appear  to
have appointed any Stipendiary Engineers as Assistant Engineers  on  ad  hoc
basis. Aggrieved, the Stipendiary Engineers filed  O.J.C.  Case  No.8373  of
1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for  a  writ  of
mandamus directing the Government to comply  with  the  resolution  and  the
order issued by it.  This petition was allowed by the Division Bench of  the
High Court of Orissa at Cuttack by an order dated 18th  December  1996.  The
High Court directed the Government to take expeditious  steps  to  implement
resolution dated 12th  March  1996,  preferably  within  a  period  of  four
months.  It further directed the State  Government  to  appoint  Stipendiary
Engineers as Assistant Engineers in the scale  of  Rs.2000-3500  on  ad  hoc
basis. In compliance with the  directions  aforementioned,  the  Stipendiary
Engineers were appointed as Assistant Engineers on ad hoc basis between  the
years 1997 and 2001. What is important  is  that  pursuant  to  its  initial
proposal of allocating 5% vacancies  for  those  working  as  degree  holder
Junior Engineers in different departments, the Government had  between  1996
and 1997 promoted 86 degree holder Junior Engineers on an ad  hoc  basis  as
Assistant Engineers.

12.   Five Stipendiary Engineers working in the Water  Resources  Department
whose names had been  recommended  along  with  others  for  appointment  as
Assistant Engineers on ad hoc basis by the Screening Committee  set  up  for
the purpose in the meantime filed O.J.C. No.1563 of 1998 before  the  Orissa
High Court making a grievance  that  despite  the  recommendations  made  in
their favour, the Government had not appointed them as Assistant  Engineers.
That petition was allowed and disposed of by an order dated  6th  May,  1998
directing the State Government to consider the case of the  writ-petitioners
in the light of its earlier order passed in  Jayant  Kumar’s  case  (supra).
Since the said directions were not carried out by  the  Government,  two  of
the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of  1999  in  which
they complained about the non-implementation of  the  directions  issued  by
the High Court earlier and prayed for their  regularisation.  This  petition
was disposed of by the High Court by a common order dated 2nd July, 2002  in
which the High Court noted  that  the  petitioners  had  been  appointed  as
Assistant Engineers on ad hoc basis in the pay scale  of  Rs.2000-3500/-  by
the Water Resources Department Notification dated 11th December,  1998.  The
High  Court  further  held  that  since  the  Government  was  on  principle
committed to regularising the appointments of  Stipendiary  Engineers  there
was no reason why the Government should not treat them  as  direct  recruits
since the year 1991,  in  which  they  were  appointed,  and  compute  their
service from that year for the purpose of in-service promotion, pension  and
other service benefits except financial  benefits  and  to  absorb  them  on
regular basis according to law.

13.   It was in the above backdrop that the Government finally came up  with
a proposal for validation of the appointment  of  Stipendiary  Engineers  as
Assistant Engineers.  Memorandum  dated  28th  November,  2002  referred  to
appointment of 846 Stipendiary Engineers in Civil, 61 Stipendiary  Engineers
in Mechanical and 25 Engineers in Electrical wings making  a  total  of  932
Stipendiary Engineers in different Departments.
We are informed at  the  Bar
that the present number of such Stipendiary  Engineers  is  limited  to  881
only as the rest have either resigned, retired or died.
The  proposal  made
in the Memorandum also took note of the  information  given  by  the  Orissa
Public Service Commission and the  repeated  demands  of  ad  hoc  Assistant
Engineers  engaged  from  Stipendiary  Engineers  for  regularization.   
proposal stated that no regular appointments were made by the Orissa  Public
Service Commission and that the validation of  appointments  of  Stipendiary
Engineers as  Assistant  Engineers  will  immensely  benefit  the  State  in
execution of  several  ongoing  development  works.  
The  proposal  further
stated  that  having  rendered  more  than  10  years  of   service,   these
Stipendiary Engineers currently working as Assistant  Engineers  on  ad  hoc
basis will have no avenues for employment as they had  already  gone  beyond
the upper age limit prescribed for direct recruitment.

14.   It is in the above backdrop  that  the  State  Legislature  eventually
enacted Orissa Service of Engineers (Validation of  Appointment)  Act,  2002
which comprises no more than three sections.  Section 3 of  the  legislation
reads as under:

           “3(1) Notwithstanding  anything  contained  in  the  Recruitment
           Rules, seven hundred ninety-nine Assistant  Engineers  belonging
           to the discipline  of  Civil,  fifty-seven  Assistant  Engineers
           belonging  to  the  discipline  of  Mechanical  and  twenty-five
           Assistant Engineers belonging to the discipline of Electrical as
           specified in the Schedule with  their  names,  dates  of  birth,
           dates of appointment and the  names  of  the  Departments  under
           which they are working on ad hoc basis since the  date  of  such
           appointment  shall  be  deemed  to  be  validly  and   regularly
           appointed under their respective Department  of  the  Government
           against the direct recruitment quota of the service with  effect
           from the date of commencement of this Act and,  accordingly,  no
           such appointment shall be challenged in any court of law  merely
           on the ground that such appointments were made otherwise than in
           accordance with the  procedure  laid  down  in  the  Recruitment

           (2) The inter-se-seniority  of  the  Assistant  Engineers  whose
           appointments are so validated shall be determined  according  to
           their dates of appointment on ad hoc basis as mentioned  in  the
           Schedule and they shall  be  enblock  junior  to  the  Assistant
           Engineers  of  that  year  appointed  to  the  service  in   the
           respective discipline in their  cadre  in  accordance  with  the
           provisions of the Recruitment Rules.

           (3) The services  rendered  by  the  Assistant  Engineers  whose
           appointments are so validated, prior to the commencement of this
           Act shall, subject to the provisions in sub-section  (2),  count
           for the purpose of their pension, leave and increment and for no
           other purpose.”

15.   A batch of writ petitions being Writ Petitions No.9514 of 2003,  12495
of 2005, 12495 of 2005, 12627 of 2005, 12706 of 2006 and 8630 of 2006,  were
then filed by the Degree holder  Junior  Engineers  appointed  as  Assistant
Engineers on ad hoc basis between 1996 and 1997 challenging the validity  of
the above legislation, inter alia, on the  ground  that  the  same  suffered
from  the  vice  of  discrimination  inasmuch  as  while  ad  hoc  Assistant
Engineers, who  were  earlier  appointed  on  stipendiary  basis,  had  been
regularised under the Validation  Act,  those  appointed  against  5%  quota
reserved for Junior Engineers holding a degree qualification were left  out.

16.    Writ  Petition  No.11093  of  2006  was  similarly  filed  by  Junior
Engineers who had not been appointed as Assistant Engineers claiming  parity
with  Degree  holder  Junior  Engineers  already  appointed   as   Assistant
Engineers on ad hoc  basis  against  5%  quota  disapproved  by  the  Public
Service Commission for such Engineers.

17.   Writ Petition No.16742 of 2006 was filed by Junior Engineers  promoted
as Assistant Engineers against 33% quota reserved for such  Engineers  whose
grievance primarily was that regularisation/validation of  the  appointments
of Stipendiary Engineers in the cadre of  Assistant  Engineers  was  illegal
and  unconstitutional  and  adversely  affected  them  in  terms  of   their

18.   The above writ petitions were heard by a Division Bench  of  the  High
Court of Orissa who allowed the same by its order dated 15th  October,  2008
striking down the impugned Legislation primarily  on  the  ground  that  the
same brought about  discrimination  between  Assistant  Engineers  similarly
situate  and,  therefore,  fell  foul  of  Articles  14  and   16   of   the
The High Court observed:

           “There is no reason as to why  appointments  of  a  few  persons
           working as  Assistant  Engineers  on  ad  hoc  basis  have  been
           validated ignoring the other similarly situated persons  working
           on ad  hoc  basis  as  Assistant  Engineers.   There  cannot  be
           discrimination or classification amongst the persons working  on
           ad hoc basis or the post of Assistant Engineers.   Once  unequal
           became equal, the State has no authority  to  discriminate  them
           and make equals as unequal.”

19.   The present appeals assail the correctness of the above  judgment  and
order of the High Court.  While Civil Appeals No.8324 to 8331 of  2009  have
been filed by the State of Orissa, Civil Appeals No.8322, 8323 of  2009  and
1940 of 2010 have been preferred by Stipendiary Engineers who are  adversely
affected by the judgment of the High Court on account of  striking  down  of
the  Validation  Act  under  which  they  were  regularized   as   Assistant
Engineers. Civil Appeal No.1768 of 2006 has,  however,  been  filed  by  the
Degree holder Junior Engineers who have already been promoted  as  Assistant
Engineers against 33% quota reserved for them to challenge the  judgment  of
the High Court in  OJC  Nos.6354  and  6355  of  1999  directing  the  State
Government to regularise the  services  of  the  writ-petitioners  in  those
petitions as Assistant Engineers from  the  date  of  their  appointment  as
Stipendiary Engineers  with  all  consequential  benefits  except  financial

20.   Several intervention applications have been  filed  in  these  appeals
including intervention application filed by the SC/ST  candidates  who  were
directly recruited as Assistant Engineers in the year 2004 onwards.

21.   We have heard learned counsel for the parties as also those  appearing
for the  interveners.  The  following  three  questions  of  law  arise  for

 1.   What is the true nature and purport of the impugned legislation?  More
      particularly is the impugned legislation a validation enactment or  is
      it an enactment that grants regularisation to those  appointed  on  ad
      hoc basis?

 2.   If the impugned enactment simply grants regularisation, does it suffer
      from any constitutional infirmity?

 3.   Does  Section  3(2)  of  the  impugned  legislation  suffer  from  any
      unconstitutionality, insofar as the same purports to grant Stipendiary
      Assistant Engineers seniority with effect  from  the  date  they  were
      appointed on ad hoc basis?

Re. Question No.1

22.    Black’s  Law  Dictionary  (9th  Edition,  Page  No.1545)  defines   a
Validation Act as “a law that is amended either to remove errors or  to  add
provisions to conform to constitutional requirements”.  To the  same  effect
is the view expressed by this Court in Hari Singh & Others v.  The  Military
Estate Officer and Anr. (1972)  2  SCC  239,  where  this  Court  said  “The
meaning of a Validating Act is to remove the causes for  ineffectiveness  or
invalidating  of  actions  or  proceedings,  which  are   validated   by   a
legislative measure”. In ITW Signode India  Ltd.  v.  Collector  of  Central
Excise (2004) 3 SCC 48, this Court described Validation Act  to  be  an  Act
that “removes actual or possible voidness, disability  or  other  defect  by
confirming the validity of anything which is or may be invalid”.

23.   The pre-requisite of a piece of legislation that purports to  validate
any act, rule, action or proceedings were considered by this Court  in  Shri
Prithvi Cotton Mills Ltd. and Ann v. Broach Borough  Municipality  and  Ors.
(1969) 2 SCC 283.  Two essentials were identified  by  this  Court  for  any
such legislation to be valid.  These are:

(a)  The legislature enacting the Validation  Act  should  be  competent  to
      enact the law and;

(b)  the  cause  for  ineffectiveness  or  invalidity  of  the  Act  or  the
      proceedings needs to be removed.

24.   The Court went on to enumerate certain ways  in  which  the  objective
referred to in (b) above could be achieved by the legislation  and  observed

           "…….. Sometimes this is done by providing for jurisdiction where
           jurisdiction had not been properly  invested  before.  Sometimes
           this is done by re-enacting retrospectively a  valid  and  legal
           taxing provision and then by  fiction  making  the  tax  already
           collected to stand  under  the  re-enacted  law.  Sometimes  the
           Legislature gives its own meaning and interpretation of the  law
           under which the tax was collected and by legislative fiat  makes
           the new meaning binding upon courts. The Legislature may  follow
           any one method or all of them  and  while  it  does  so  it  may
           neutralise the effect of the earlier decision of the court which
           becomes ineffective after  the  change  of  the  law.  Whichever
           method is adopted it  must  be  within  the  competence  of  the
           legislature and legal and  adequate  to  attain  the  object  of
           validation. If the Legislature has the power over  the  subject-
           matter and competence to make a valid law, it can  at  any  time
           make such a valid law and make it retrospectively so as to  bind
           even past  transactions.  The  validity  of  a  Validating  Law,
           therefore, depends upon whether the  Legislature  possesses  the
           competence which it claims over the subject-matter  and  whether
           in making the validation it removes the defect which the  courts
           had found in the existing law and makes adequate  provisions  in
           the Validating Law for a valid imposition of the tax."

                                                         (emphasis supplied)

25.   Judicial pronouncements regarding validation laws generally deal  with
situations in which an act, rule, action  or proceedings has been  found  by
a Court of competent jurisdiction to be  invalid  and  the  legislature  has
stepped in to validate the same. Decisions of this Court which are a  legion
take the view that while adjudication of rights is  essentially  a  judicial
function, the power to validate an invalid law or  to  legalise  an  illegal
action is within the exclusive province  of  the  legislature.  Exercise  of
that power by the legislature is not,  therefore,  an  encroachment  on  the
judicial power of the Court. But, when the validity of any  such  Validation
Act is called in question, the Court would have  to  carefully  examine  the
law and determine whether (i) the vice of invalidity that rendered the  act,
rule, proceedings or  action  invalid  has  been  cured  by  the  validating
legislation (ii) whether the legislature was competent to validate the  act,
action, proceedings or rule declared invalid in the previous  judgments  and
(iii) whether such validation is consistent with the  rights  guaranteed  by
Part III of the Constitution. It is only when the answer to all these  three
questions is in the affirmative that the Validation Act can be  held  to  be
effective and the consequences flowing from  the  adverse  pronouncement  of
the Court held to have been neutralised. Decisions of  this  Court  in  Shri
Prithvi Cotton Mills Ltd. and Anr. V. Broach Borough Municipality  and  Ors.
(1969) 2 SCC 283, Hari Singh v. Military Estate Officer (1972)  2  SCC  239,
Madan Mohan Pathak v. Union of India (1978) 2 SCC 50, Indian  Aluminium  Co.
etc. v. State of Kerala and  Ors.  (1996)  7  SCC  637,  Meerut  Development
Authority etc. v. Satbir Singh and Ors. etc. (1996)  11  SCC  462,  and  ITW
Signode India Ltd. v. Collector of Central Excise (2004) 3 SCC  48  fall  in
that category.  Even in the realm  of  service  law,  validation  enactments
have  subsequent  to  the  pronouncement  of  competent  Courts  come  about
validating the existing  legislation.   Decisions  of  this  Court  in  I.N.
Saksena v. State of Madhya Pradesh (1976) 4 SCC 750,  Virender  Singh  Hooda
and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588 and State  of  Bihar
and Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 deal with  that  category
of cases.

26.   In the case at hand, the State of Orissa had not suffered any  adverse
judicial pronouncement to necessitate a Validation  Act,  as  has  been  the
position in the generality of the cases dealt with by this Court. The  title
of the impugned Legislation all the same  describes  the  legislation  as  a
Validation Act. The title of a statute is no doubt an important part  of  an
enactment and can be referred to for determining the general  scope  of  the
legislation. But the true nature of any such  enactment  has  always  to  be
determined not on the basis of the label given to it but  on  the  basis  of
its substance.

27.   In M.P.V. Sundararamier & Co. v. State of A.P. & Anr. AIR 1958 SC  468
this Court was considering whether the impugned enactment was  a  Validation
Act in the true sense.
This Court held that  although  the  short  title  as
also the marginal note described  the  Act  to  be  a  Validation  Act,  the
substance of the legislation did not answer  that  description.
This  Court observed:

           “It is argued that to validate is to confirm or ratify, and that
           can be only in respect of acts  which  one  could  have  himself
           performed, and that if Parliament cannot enact a law relating to
           sales tax, it cannot validate such a law either, and that such a
           law is accordingly unauthorised and void.  The  only  basis  for
           this contention in the Act is its description in the Short Title
           as the "Sales Tax Laws Validation Act" and the marginal note  to
           s. 2, which is similarly worded. But the true nature  of  a  law
           has to be determined not on the label given to it in the statute
           but on its substance. Section 2 of the impugned Act which is the
           only substantive enactment  therein  makes  no  mention  of  any
           validation. It only provides that no law of a State imposing tax
           on sales shall be deemed to be invalid merely because such sales
           are in the course of inter-State trade or commerce.  The  effect
           of this provision is merely to liberate the State laws from  the
           fetter placed on them by Art. 286(2) and to enable such laws  to
           operate on their own terms.” 

                                                         (emphasis supplied)

28.   We may also refer to  Maxwell  on  Interpretation  of  Statutes  (12th
Edn., page 6), where on the basis  of  authorities  on  the  subject,  short
title of the Act  has  been  held  to  be  irrelevant  for  the  purpose  of
interpretation of statutes.
Lord Moulton in Vacher and Sons Ltd.  v.  London Society of Compositors [1913] AC 107 described the short title of an Act  as

           “A title given to the act is solely for the purpose of  facility
           of reference. If I  may  use  the  phrase,  it  is  a  statutory
           nickname to obviate the necessity of always referring to the Act
           under  its  full  and   descriptive   title....Its   object   is
           identification and not description.”
                                                         (emphasis supplied)

29.   Dr. Dhawan,  learned  senior  counsel  appearing  for  the  appellants
fairly conceded that the impugned legislation could not be  described  as  a
simple Validation Act.
According to him, the Act achieved  a  dual  purpose
of (a) validating the invalid ad hoc appointments  and  (b)  appointing  the
Stipendiary  Engineers  working  as  ad  hoc  Assistant   Engineers   on   a
substantive basis by regularising their  appointments.
While  we  have  no
difficulty in agreeing with the latter part of the contention urged  by  Dr.
Dhawan and holding that  the  legislation  regularises  the  appointment  of
Stipendiary Engineers as Assistant Engineers,  we  have  not  been  able  to
appreciate the rationale behind the Legislature considering it necessary  to
validate the ad hoc appointments,  especially  when  such  appointments  had
been made by the Government pursuant to the directions issued  by  the  High
Court in the writ petitions filed by the Stipendiary Engineers.   Validation
of the ad  hoc  appointments  of  the  Stipendiary  Engineers  as  Assistant
Engineers would even otherwise have  served  no  purpose.  That  is  because
whether the appointments were officiating/ad hoc/temporary or  described  by
any other expression, the fact that the  Stipendiary  Engineers  had  worked
for  a  long  period  of  time  as  Assistant  Engineers   in   temporary/ad
hoc/officiating capacity would have in itself been a ground  for  the  State
to regularise them, subject  of  course  to  such  regularisation  otherwise
meeting  constitutional  requirements.
It  was  not   as   if   any   such
regularisation was legally impermissible unless the  “ad  hoc  appointments”
granted to Stipendiary Engineers were themselves  validated.   It  is  quite
evident that the legislation with which we are concerned  was  in  substance
aimed at regularising the services of such persons  as  had  worked  in  the
capacity of Assistant Engineers.  If  that  was  the  true  purport  of  the
legislation, it would be inaccurate to describe the  same  as  a  validation

30.   The matter can be viewed from yet another angle.  The  enactment  came
de hors any compulsion arising from a judicial pronouncement  regarding  the
invalidity attached to the appointment of  Assistant  Engineers  on  ad  hoc
basis and  only  because  of  the  State’s  anxiety  to  appoint/absorb  the
Stipendiary Engineers, subsequently appointed as ad hoc Assistant  Engineers
on a substantive/regular basis without following the route mandated  by  the
Service Rules of 1941 applicable for making any such  appointments.   Having
said that, we must  hasten  to  add  that  a  prior  judicial  pronouncement
declaring an act, proceedings or rule to  be  invalid  is  not  a  condition
precedent  for  the  enactment  of  a  Validation  Act.   Such  a  piece  of
legislation may be enacted to remove even a perceived invalidity, which  the
Court  has  had  no  opportunity  to  adjudge.   Absence   of   a   judicial
pronouncement is  not,  therefore,  of  much  significance  for  determining
whether or not the legislation is a validating law.

31.   There was in the above context some debate at the Bar whether  or  not
the impugned enactment is a validating enactment as it purports  to  be.  As
seen above, Dr. Rajiv Dhawan and  even  Shri  Narasimha,  did  not  see  the
impugned enactment as a validating  legislation,  no  matter  it  carries  a
label to  that  effect.  Mr.  Patwalia  &  Mr.  Sisodia,  senior  advocates,
appearing  for  the  opposite  parties  were  also  not  supportive  of  the
legislation being a validating enactment and  in  our  opinion  rightly  so.
That is because the essence of a  validating  enactment  is  a  pre-existing
act, proceeding or rule, being found to be void or illegal with  or  without
a judicial pronouncement of the Court. It is only when an act  committed  or
a rule in existence or a proceeding taken is found  to  be  invalid  that  a
validating act may validate the same by removing the  defect  or  illegality
which is the basis of such invalidity. There is no  question  of  validating
something that has not been done or that has yet to come  in  existence.  No
one can say that an illegality which has  not  yet  been  committed  can  or
ought  to  be  validated  by  legislation.  Existence  of  an  illegal  act,
proceedings or rule or legislation is the sine qua non  for  any  validating
legislation to validate the same. There can be no  validation  of  what  has
yet to be done, suffered or enacted.

32.   Applying the above to the case at hand a Validation Act may have  been
necessary if the Government had appointed the ad hoc Assistant Engineers  on
a substantive basis in violation of the relevant recruitment Rules.  For  in
that case, the Government would have done an act which was  legally  invalid
requiring validation by a legislative measure.  But a legislation  that  did
not validate any such non-existent act, but  simply  appointed  the  ad  hoc
Assistant Engineers as substantive employees of the State  by  resort  to  a
fiction, could not be described as a validating law.

33.   The legislation under challenge was in that view not a Validation  Act
as it purported to be but an enactment that regularised the  appointment  of
graduate Stipendiary Engineers working as  ad  hoc  Assistant  Engineers  as
Assistant  Engineers.
Reliance  upon  the  decision  of   this   Court   in
Satchidananda Mishra v. State of Orissa and Ors. (2004) 8  SCC  599  is,  in
our opinion, of no assistance to the  respondents.  In  Satchdinanda’s  case
(supra) the High Court had struck down the validation act  which  order  was
confirmed by this Court in appeal. What is  significant,  however,  is  that
while affirming the view taken by the High Court  that  the  validation  law
was not constitutionally sound, this Court proceeded on the assumption  that
the legislation with which it was dealing with was a validation act  in  the
true sense. It was on that  assumption  that  this  Court  looked  into  the
invalidity and held that the validation act did  nothing  except  validating
the appointments without removing  the  basis  on  which  such  appointments
could be invalidated. We have not proceeded on any such  assumption  in  the
instant case especially because learned counsel  for  some  of  the  parties
have argued that  the  legislation  under  challenge  is  not  a  Validation
Enactment.  The Enactment in the case at hand deals with  the  law  relating
to  regularisation  of  incumbents  holding  public  office  on  ad  hoc  or
temporary basis, much in the same way as regularisation  of  such  temporary
appointments is ordered in terms of a scheme  for  that  purpose.  The  only
difference is that while a  regularisation  scheme  can  be  framed  by  the
Government in exercise of its executive power,  the  regularisation  ordered
in the case at hand is by way of a  legislation.   It  is  trite  that  what
could be achieved by the Government  by  exercise  of  its  executive  power
could certainly be achieved by legislation, as indeed it has  been  achieved
in the case at hand. Question No.1 is answered accordingly.

Re. Question No.2

34.   A Constitution Bench of this Court in Secretary,  State  of  Karnataka
and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1  ruled  that  regularisation
of illegal or irregularly appointed persons could never  be  an  alternative
mode of recruitment to public  service.   Such  recruitments  were,  in  the
opinion of this Court, in complete negation of the guarantees  contained  in
Articles 14 and 16 of the Constitution.  Having said so, this Court did  not
upset the regularisations  that  had  already  taken  place,  regardless  of
whether such regularisations related to illegal or  irregular  appointments.
The ratio of the decision in that sense was prospective in its  application,
leaving untouched that which had already happened before  the  pronouncement
of that decision. This is evident from the following  passage  appearing  in
the decision:

           “We also clarify that regularization, if any already  made,  but
           not subjudice, need not be reopened based on this judgment,  but
           there should be no  further  by-passing  of  the  constitutional
           requirement and regularizing or making permanent, those not duly
           appointed as per the constitutional scheme.”

35.   The above is a significant feature of the pronouncement of this  Court
in Umadevi’s case (supra). The second and  equally  significant  feature  is
the exception which this Court made in para 53 of the decision permitting  a
one-time exception for regularising services of such employees as  had  been
irregularly appointed and had served  for  ten  years  or  more.
The  State
Government and its instrumentalities  were  required  to  formulate  schemes
within  a  period  of  six  months  from  the  date  of  the  decision   for
regularisation of such employees.
This is evident from a  reading  of  para
53 of the decision which is reproduced in extenso:
           “One aspect needs to be clarified.  There  may  be  cases  where
           irregular appointments (not illegal appointments)  as  explained
           in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and  B.N.
           Nagarajan (supra), and referred to in  paragraph  15  above,  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  courts
           or of tribunals.
The question of regularization 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 above
           referred 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 regularize 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  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...”

                                                         (emphasis supplied)

36.   Dr. Dhawan, learned senior counsel, appearing for  the  appellants  in
some of these appeals argued, and in our opinion rightly so, that  both  the
aspects referred to above bear considerable  significance  to  the  case  at
hand. He  submitted  that  regularisations  granted  by  the  State  or  its
instrumentalities  given  in  regard  to  appointments  that  were  strictly
speaking illegal had  not  been  upset  by  this  Court  in  Umadevi’s  case
(supra). That being so, the impugned Enactment by which the  appointment  of
the  appellants-  Stipendiary  Engineers  were  regularised   as   Assistant
Engineers must also be treated to have been saved from  the  rigour  of  the
view taken in Umadevi’s case (supra).  There is merit  in  that  contention.
The decision in Umadevi’s case (supra) stated the  true  legal  position  on
the subject but having regard to the fact that several earlier decisions  of
this Court had sanctioned regularisation of those not  regularly  appointed,
this Court was of the view that upsetting  such  regularisations  would  not
only unsettle what stood settled but also gravely prejudice  those  who  are
benefitted from such orders of regularisation. There is no  gainsaying  that
most of such persons who entered the public service initially without  going
through any open competitive selection process would have  lost  by  passage
of time their prospects of entering public service by legal course  even  if
vacancies were available for such appointments. In  some  of  the  decisions
the continuance of employees on ad hoc, temporary or  daily-wage  basis  for
an indefinite period was seen by this Court also to be a  violation  of  the
fundamental right to life apart from being discriminatory.  Considering  the
magnitude of the problem that would arise if all such appointments  were  to
be unsettled, this Court in Umadevi’s case (supra) left such  regularisation
alone and declared that in the future such  orders  of  appointments  dehors
rules  would  not  qualify  for  the  grant  of  regularisation  in   public
37.   Equally important is the fact  that  even  after  declaring  the  true
legal position on the subject and even after  deprecating  the  practice  of
appointing people by means other  than  legitimate,  this  Court  felt  that
those who had served for ten years or so may be put to extreme  hardship  if
they were to  be  discharged  from  service  and,  therefore,  directed  the
formulation of a scheme for their regularisation.  This was no doubt a  one-
time measure, but so long as the appointment sought to  be  regularised  was
not illegal, the scheme  envisaged  by  para  53  of  the  decision  (supra)
extracted above permitted  the  State  to  regularise  such  employees.  Dr.
Dhawan argued that the appellants- Stipendiary Engineers had,  by  the  time
the decision in Umadevi’s case (supra) was  pronounced,  qualified  for  the
benefit of a scheme of regularisation having put in  ten  years  as  ad  hoc
Assistant Engineers and fifteen years if their  tenure  was  to  be  counted
from the date of their employment as  Stipendiary  Engineers.  He  contended
that even  in  the  absence  of  a  Validation  Act,  Stipendiary  Engineers
appointed on ad hoc basis as Assistant Engineers, who had worked for  nearly
ten years to the full satisfaction of the State Government would  have  been
entitled to regularisation of their services in terms of any such scheme.
38.   On behalf of the diploma holder Junior Engineers, it was contended  by
Mr. Sisodia that the appointment of Stipendiary degree  holders  as  ad  hoc
Assistant Engineers was not irregular but illegal.  It  was  contended  that
Stipendiary Engineers were appointed on ad hoc basis without  following  the
procedure permitted under the rules which, inter alia, entitled  the  degree
holder Junior Engineers also to compete. He submitted that although  diploma
holder Junior Engineers were not entitled to compete against  the  vacancies
on the direct recruitment quota in the cadre  of  Assistant  Engineers,  yet
they were entitled to argue that any appointment to the cadre  ought  to  be
made in accordance with the rules especially when regularisation  of  degree
holder Stipendiary Engineers would give them advantage in seniority  to  the
prejudice of the diploma holder Junior Engineers who may at their  own  turn
be promoted in the cadre of Assistant Engineers. We have  no  hesitation  in
rejecting  that  contention.  Diploma  holder  Junior  Engineers  were  not,
admittedly, eligible to be appointed as Assistant Engineers  in  the  direct
recruitment quota.  They could not make a grievance  against  regularisation
simply because of the fact that those regularised may figure above  them  in
seniority. Seniority is an incident of appointment to the cadre  which  must
be regulated by the  relevant  rules.  Any  possible  prejudice  to  diploma
holders in terms of seniority would not, therefore, make the  regularisation
unconstitutional or illegal and hence beyond  the  purview  of  para  53  in
Umadevi’s case (supra).
39.   Mr. Patwalia, learned senior counsel appearing for the  degree  holder
Junior Engineers who were also  appointed  on  ad  hoc  basis  as  Assistant
Engineers against 5% quota which  the  Government  resolution  had  provided
for, argued that although degree holder Junior Engineers  are  eligible  for
appointment  against  the  vacancies  in   direct   recruits   quota,   that
opportunity was not available to his clients when the degree  holder  Junior
Engineers were appointed as Assistant Engineers. He  contended  that  Junior
Engineer degree holders who were appointed as  ad  hoc  Assistant  Engineers
against 5% quota reserved for them under  the  Government  resolution  would
have no objection to the regularisation being upheld provided degree  holder
Junior Engineers who had served for a relatively longer period as  Assistant
Engineers on ad hoc basis were also given a similar treatment. He  submitted
that the exclusion of degree holder Junior Engineers  from  the  legislative
measure aimed at regularising the Stipendiary  degree  holders  was  clearly
discriminatory and that the High  Court  was  on  that  count  justified  in
holding that the Validation Act itself was ultra vires. It was contended  by
Mr. Patwalia that even if the legislature  had  restricted  the  benefit  of
regularisation to the Stipendiary Engineers later appointed on ad hoc  basis
as Assistant Engineers, there was no reason why this Court could not  extend
the very same benefit to degree holder engineers who  had  similarly  worked
for over 15 years.
40.   The decision in Umadevi’s case (supra), as noticed earlier,  permitted
regularisation  of  regular  appointments  and  not  illegal   appointments.
Question, however, is whether the appointments in the instant case could  be
described as illegal and if they  were  not,  whether  the  State  could  be
directed to regularise the services of the degree  holder  Junior  Engineers
who have worked as ad hoc Assistant Engineers for such a  long  period,  not
only on the analogy of the  legislative  enactment  for  regularisation  but
also on the principle underlying para 53 of the decision in  Umadevi’s  case
41.   As to what would constitute an irregular appointment is no longer  res
integra. The decision of this Court in State of  Karnataka  v.  M.L.  Kesari
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.”

42.   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. 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).
43.   The upshot of the  above  discussion  is  that  not  only  because  in
Umadevi’s case (supra) this Court did not disturb the  appointments  already
made or  regularisation  granted,  but  also  because  the  decision  itself
permitted regularisation in case of irregular appointments, the  legislative
enactment granting such regularisation does not  call  for  interference  at
this late stage when those appointed or  regularised  have  already  started
retiring having served their respective departments, in some  cases  for  as
long as 22 years.
44.   We need to advert to one other aspect which  bears  relevance  to  the
issue whether regularisation under the impugned Enactment is legally  valid.
The appointment process of unemployed degree holders,  as  noticed  earlier,
started with the resolution passed by the State Government  which  envisaged
appointments of such unemployed Graduate Engineers  as  Stipendiaries  on  a
consolidated stipend of Rs.2,000/- p.m.  The  resolution  further  envisaged
their absorption in service after a period of two  years.   Not  only  that,
appointments as Stipendiary Engineers were made on the basis of a  selection
process and on the basis of merit no matter determined de hors the  relevant
rules which provided for appointments to the cadre to be made  only  through
the Public Service Commission. A reference to the Public Service  Commission
was no doubt considered unnecessary but the fact  remains  that  appointment
of unemployed degree holders as Stipendiary Engineers were made pursuant  to
a notification by which everyone who was unemployed and held an  Engineering
degree in any discipline was free to make an application. A large number  of
unemployed engineers responded to  the  notification  inviting  applications
out of whom nearly 932 were selected by a  Selection  Committee  constituted
for the purpose.  What  is  significant  is  that  the  empanelment  of  the
unemployed degree holders for appointment as Stipendiaries  did  not  invite
any criticism from any quarter either as to the  method  of  appointment  or
the fairness of the selection process. The process of appointment was at  no
stage questioned before the Court, a feature which  is  notable  keeping  in
view the number of people appointed/empanelled and a larger number who  were
left out and who could have possibly made a grievance if there was any.   It
is not, therefore, wholly correct to suggest that the entry  of  the  degree
holder Junior Engineers as Stipendiary  Engineers  and  later  as  Assistant
Engineers was through “the backdoor”,  an  expression  very  often  used  in
service matters where appointments are made de hors the rules.  The  process
of selection and appointments may not have been as per  the  relevant  rules
as the same ought to have been, but it is far from  saying  that  there  was
complete arbitrariness in the manner of such appointments so as  to  violate
Articles 14 and 16 of the Constitution of India.
45.   That apart the appointment of Stipendiary Engineers was at  the  level
of Junior Engineers although it was argued on their behalf  that  they  were
discharging the functions of Assistant Engineers from  the  date  they  were
employed. In the absence of any finding from the High Court on  the  subject
and in the absence of any cogent material before us to support  that  claim,
we find it difficult  to  hold  that  the  appointment  of  the  Stipendiary
Engineers was from the beginning itself as  Assistant  Engineers.  The  fact
that the resolution of the State Government itself envisaged appointment  of
Stipendiary Engineers  as  ad  hoc  Assistant  Engineers  on  the  basis  of
performance makes it amply clear that the  Stipendiary  Engineers  were  not
treated as Assistant Engineers  for  otherwise  there  would  have  been  no
question of appointing them as Assistant Engineers on ad hoc  or  any  other
basis.  It is also  noteworthy  that  the  appointment  of  the  Stipendiary
Engineers on ad hoc basis came pursuant  to  the  direction  from  the  High
Court which is yet another reason why it is  not  open  to  the  Stipendiary
Engineers to claim  that  they  were  at  all  points  of  time  working  as
Assistant Engineers. Having said that we cannot lose sight of the fact  that
the appointment of graduate  engineers  as  Stipendiaries  was  on  a  clear
representation  that  they  would  be  eventually  absorbed  in  service  as
Assistant Engineers. That representation is evident from the  resolution  of
the State Government where it stated:

                 “In  all,  therefore,  741  posts  will  be  available  for
           recruiting these Degree Engineers in the first  instance.   They
           may be designed as Junior Engineers or Stipendiary Engineers  in
           the first phase. They may be paid salary in the scale of  Junior
           Engineers or in a consolidated stipend of Rs.2,000/- per  month.
           Absorption into regular posts may be done after two years on the
           basis of their performance.”

46.   In the counter-affidavit filed by  the  State  Government  before  the
High Court the State  re-affirmed  its  commitment  to  the  appointment  of
Stipendiary Engineers as Assistant Engineers on ad hoc basis.
47.   In the circumstances and taking a holistic  view  of  the  matter,  it
cannot be said that the appointment  of  Stipendiary  Engineers  on  ad  hoc
basis and their subsequent  regularisation  came  as  a  side  wind  or  was
inspired by  any  political  or  other  consideration.  The  Government,  it
appears, was from the very  beginning,  keen  to  utilise  the  services  of
unemployed Graduate Engineers selected  on  their  merit  by  the  Selection
Committee and, therefore, remained steadfast in its  efforts  for  achieving
that purpose and in the process going even to the  extent  of  getting  them
regularised by a legislative measure. Suffice it to say  that  the  question
whether regularisation was  justified  cannot  be  viewed  in  isolation  or
divorced from the context in which the same arises.
48.   We may now turn to the contention urged  by  Mr.  Patwalia,  that  the
impugned  Legislation  was  discriminatory  in  as  much   as   it   granted
regularisation to persons similarly situated while denying such  benefit  to
his client who not only held a degree  qualification  like  the  Stipendiary
Engineers but were in terms of the Government resolution promoted as Ad  hoc
Assistant Engineers against 5% quota reserved for them.  It was argued  that
State could not have classified ad hoc Assistant  Engineers  who  came  from
the Stipendiary Engineers stream, on one hand, and  those  appointed  as  ad
hoc Assistant Engineers on account of  their  being  in  service  as  Junior
Engineers  holding  a  degree  qualification.   The  degree  holder   Junior
Engineers,  it  was  contended,  were  in  comparison  better  entitled   to
regularisation as they had not only the requisite qualification but had  put
in longer service as ad hoc Assistant Engineers vis-a-vis their  Stipendiary
counterparts. Alternatively, it was contended that the degree holder  Junior
Engineers who too had put in more than 15 years service, were entitled to  a
direction for their  regularisation  as  Assistant  Engineers  not  only  on
account of the length of service rendered by them but also  on  the  analogy
of the legislative benefit  extended  to  their  counterpart  Stipendiaries.

49.   The approach to be  adopted  and  the  principles  applicable  to  any
forensic exercise aimed at examining the validity of a  legislation  on  the
touchstone of Article 14 of the Constitution have been  long  since  settled
by several decisions of this Court.   Restatement  or  repetition  of  those
principles was, therefore, considered platitudinous. The real difficulty  as
often acknowledged  by  this  Court  lies  not  in  stating  the  principles
applicable but in applying them to varying fact situations that come up  for
consideration. Trite it is to say at the outset that a piece of  legislation
carries with it a presumption of constitutional validity.  Also  settled  by
now  is  the  principle  that  Article  14  does   not   forbid   reasonable
classification.  A classification is valid on the anvil of  Article  14,  if
the same is reasonable that is it is based  on  a  reasonable  and  rational
differentia and has a nexus with the object  sought  to  be  achieved.  (See
State of West Bengal v. Anwar Ali Sarkar AIR 1952  SC  75  and  Ram  Krishna
Dalmia v. Shri  Justice  S.R.  Tendolkar  and  Ors.  AIR  1958  SC  538).  A
comprehensive review of the law is, in  our  opinion,  unnecessary  at  this
stage in view of the Constitution Bench decision of this Court  in  Re:  The
Special Courts Bill, 1978 (1979) 1 SCC 380 where this Court  undertook  that
exercise and noticed as many as thirteen propositions  that  bear  relevance
to any forensic determination of the validity of a law by reference  to  the
equality clause enshrined in Article 14 of the Constitution. Some  of  those
principles were stated by this Court in the following words:

           “xxx              xxx                         xxx

           (2) The State, in the exercise of its governmental power, has of
           necessity to make laws operating differently on different groups
           or classes of persons within its territory to attain  particular
           ends in giving effect to its policies, and it must  possess  for
           that purpose large  powers  of  distinguishing  and  classifying
           persons or things to be subjected to such laws.

           (3) The constitutional command to  the  State  to  afford  equal
           protection of its  laws  sets  a  goal  not  attainable  by  the
           invention and  application  of  a  precise  formula.  Therefore,
           classification need not be constituted by an exact or scientific
           exclusion or inclusion of persons or things. The  courts  should
           not insist on delusive exactness or apply doctrinaire tests  for
           determining the validity of classification in  any  given  case.
           Classification is justified if it is not palpably arbitrary.

           (4) The principle underlying the guarantee of Article 14 is  not
           that the same rules of law should be applicable to  all  persons
           within the Indian territory or that the same remedies should  be
           made  available  to  them   irrespective   of   differences   of
           circumstances.  It  only  means  that  all   persons   similarly
           circumstanced  shall  be  treated  alike  both   in   privileges
           conferred and liabilities imposed. Equal laws would have  to  be
           applied to all in the same situation, and  there  should  be  no
           discrimination between one person and another if as regards  the
           subject-matter   of   the   legislation   their   position    is
           substantially the same.

           (5) By the process of classification, the State has the power of
           determining who should be regarded as a class  for  purposes  of
           legislation and in relation to a law  enacted  on  a  particular
           subject. This power, no doubt,  in  some  degree  is  likely  to
           produce some inequality; but if a law deals with  the  liberties
           of a number of well defined classes,  it  is  not  open  to  the
           charge of denial of equal protection on the ground that  it  has
           no application  to  other  persons.  Classification  thus  means
           segregation in classes which have a systematic relation, usually
           found in common properties and characteristics. It postulates  a
           rational basis and does not mean  herding  together  of  certain
           persons and classes arbitrarily.

           (6) The law can make and set apart the classes according to  the
           needs  and  exigencies  of  the  society  and  as  suggested  by
           experience. It can  recognise  even  degree  of  evil,  but  the
           classification should never be arbitrary, artificial or evasive.

           (7) The  classification  must  not  be  arbitrary  but  must  be
           rational, that is to say, it must not  only  be  based  on  some
           qualities or characteristics which are to be found  in  all  the
           persons grouped together and not in others who are left out  but
           those  qualities  or  characteristics  must  have  a  reasonable
           relation to the object of the legislation. In order to pass  the
           test, two conditions must be fulfilled,  namely,  (1)  that  the
           classification must be founded on  an  intelligible  differentia
           which distinguishes those that are grouped together from  others
           and (2) that that differentia must have a rational  relation  to
           the object sought to be achieved by the Act.

           (8) The differentia which is the basis of the classification and
           the object of the Act are distinct things and what is  necessary
           is that there must be a nexus  between  them.  In  short,  while
           Article 14 forbids class discrimination by conferring privileges
           or imposing liabilities upon persons arbitrarily selected out of
           a large number of other persons similarly situated  in  relation
           to the privileges sought to  be  conferred  or  the  liabilities
           proposed to be imposed, it does not  forbid  classification  for
           the purpose of legislation, provided such classification is  not
           arbitrary in the sense abovementioned.

                 xxx              xxx              xxx

           (11)  Classification  necessarily  implies  the  making   of   a
           distinction or discrimination  between  persons  classified  and
           those who are not members of that class. It is the essence of  a
           classification that upon the class are cast duties  and  burdens
           different from those resting upon the  general  public.  Indeed,
           the very idea of classification is that of inequality,  so  that
           it goes without saying that the mere fact of  inequality  in  no
           manner determines the matter of constitutionality.
                  xxx             xxx              xxx”

50.   Applying the above to  the  case  at  hand,  the  first  and  foremost
question would be whether the classification of ad hoc  Assistant  Engineers
is reasonable, that there is a  reasonable  differentia  that  distinguishes
those grouped together for the grant of the benefit from those left out  and
if there is such a differentia, whether the classification has a  reasonable
nexus with the object underlying the legislation.

51.   The second and by no means less important is the question whether  the
impugned  legislation  is  ultra  vires  of  Article  14  because  of  under
inclusion.  That  is  because  the  argument  of  the  writ  petitioners  in
substance is that the legislation ought to  have  included  even  in-service
Junior Engineers degree holders working as Ad hoc  Assistant  Engineers  for
the benefit of regularisation.

52.   There is no difficulty in answering the first  question.   We  say  so
because the beneficiaries of the impugned legislation constitute a class  by
themselves inasmuch as they were un-employed  degree  holders  appointed  as
Stipendiary Engineers on a consolidated pay. The method of their  employment
was also different inasmuch as although they were selected on the  basis  of
inter-se merit, the process of selection itself was  not  conducted  by  the
Public Service Commission.  Their appointment as ad hoc Assistant  Engineers
also came pursuant to a direction issued by the High  Court  no  matter  the
direction itself was based on a resolution passed by  the  State  Government
that provided for such appointments upon proof of satisfactory  performance.
The object underlying the legislation evidently being  to  ensure  continued
utilisation of the services of such Stipendaries appointed on ad  hoc  basis
as  Assistant  Engineers,  there  was  a  reasonable   nexus   between   the
classification and the object sought to be achieved. It is not the  case  of
writ petitioners that Stipendiary Engineers appointed as  ad  hoc  Assistant
Engineers were left out of the group for a hostile treatment by  refusal  of
the  benefit  extended  to  others  similarly  situated.   What   the   writ
petitioners contend in support of their challenge to  the  validity  of  the
legislation is that since they were also appointed on ad  hoc  basis  though
in a different way, the legislation was bad for under inclusion.   We  shall
presently deal with the test applicable to cases where the challenge to  the
legislation is founded on under inclusion but before we do so,  we  need  to
dispel the impression that the writ petitioners were similarly  situated  as
the Stipendiaries only because they were also working as  ad  hoc  Assistant
Engineers. There is no gainsaying that  the  legislation  does  not  aim  at
regularising all ad hoc Assistant Engineers regardless of the  circumstances
in  which  such  appointments  came  about.   If  that  were  so,  the  writ
petitioners could well argue that since the object underlying the  enactment
is to regularise all ad hoc Assistant Engineers, they could not be left  out
without  violating  their  fundamental  rights  under  Article  14  of   the
Constitution.   The  impugned  legislation,   however,   has   limited   its
beneficence to ad  hoc  Assistant  Engineers  who  came  in  as  Stipendiary
Engineers pursuant to a policy decision of the State Government  that  aimed
at utilising their services and dealing with  the  unemployment  problem  in
the State. That being the object, ad hoc Assistant  Engineers  appointed  by
other modes or in circumstances other  than  those  in  which  Stipendiaries
entered the service, cannot cry foul or invite the wrath of Article 14  upon
the legislation. As a matter of fact,  the  State  Government’s  resolve  to
give 5% vacancies to  in  service  degree  holder  Junior  Engineers  itself
brought about a classification between Stipendiaries on one hand and the in-
service Junior Engineers on the other. The proposed reservation  having  run
into rough waters because of the opposition of  the  Orissa  Public  Service
Commission, the in-service Junior Engineer writ petitioners before the  High
Court lost their fight  for  a  share  in  the  higher  cadre  of  Assistant
Engineers based on their  higher  qualification.  Suffice  it  to  say  that
Stipendiary Engineers later appointed as ad hoc Assistant Engineers  were  a
class by themselves and any benefit to them  under  the  impugned  Enactment
could not be grudged by in-service Junior Engineers  no  matter  the  latter
had in anticipation of the amendment  to  the  recruitment  rules  also  got
appointed as ad hoc Assistant Engineers.

53.   Coming then to the question of “under inclusion” we need  to  keep  in
mind that a challenge based on “under inclusion” is not readily accepted  by
Courts. Constitution Bench’s decision of this Court in State of Gujarat  and
Anr. v. Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974) 4 SCC  656,  dealt
with the  question  of  a  classification  which  was  under  inclusive  and
declared  that  having  regard  to  the  real   difficulties   under   which
legislatures operate, the Courts have refused to  strike  down  legislations
on the ground that they are under inclusive. The Court observed:

           “55. A  classification  is  under-inclusive  when  all  who  are
           included in the class are tainted with the  mischief  but  there
           are  others  also  tainted  whom  the  classification  does  not
           include. In other words,  a  classification  is  bad  as  under-
           inclusive when a State benefits or burdens persons in  a  manner
           that furthers a legitimate purpose but does not confer the  same
           benefit or place the same burden on  others  who  are  similarly
           situated. A classification is over-inclusive  when  it  includes
           not only those who are similarly situated with  respect  to  the
           purpose but others who are not so situated  as  well.  In  other
           words, this type of classification imposes a burden upon a wider
           range of individuals than are included in  the  class  of  those
           attended with mischief at which the law aims. Herod ordering the
           death of all male children born on a particular day because  one
           of them would some day bring about his downfall employed such  a

           56. The first question, therefore, is, whether the exclusion  of
           establishments carrying on business or trade and employing  less
           than 50 persons makes the classification  under-inclusive,  when
           it is seen that all factories employing 10 or 20 persons, as the
           case may be, have been included and that the purpose of the  law
           is to get in unpaid accumulations for the welfare of the labour.
           Since the classification does not include all who are  similarly
           situated  with  respect  to  the  purpose  of   the   law,   the
           classification might appear, at first blush, to be unreasonable.
           But the Court has recognised the very  real  difficulties  under
           which legislatures operate - difficulties arising  out  of  both
           the nature of the legislative process and of the  society  which
           legislation attempts  perennially  to  re-shape  -  and  it  has
           refused  to  strike  down   indiscriminately   all   legislation
           embodying classificatory inequality  here  under  consideration.
           Mr. Justice Holmes, in  urging  tolerance  of  under-  inclusive
           classifications, stated that  such  legislation  should  not  be
           disturbed by the Court unless it can clearly see that  there  is
           no fair reason for the law which would not  require  with  equal
           force its extension to those whom it leaves untouched.”

                                            (emphasis supplied)

54.   The above was  followed  by  this  Court  in  The  Superintendent  and
Remembrancer of Legal Affairs, West Bengal v.  Girish  Kumar  Navalakha  and
Ors. (1975) 4 SCC 754 where this Court held that some sacrifice of  absolute
equality may be required  in  order  that  legal  system  may  preserve  the
flexibility to evolve new solutions to social and  economic  problems.  This
Court said:

           “8. Often times the courts  hold  that under-inclusion does  not
           deny the equal protection of laws under  Article 14.  In  strict
           theory, this involves  an  abandonment  of  the  principle  that
           classification must include all who are similarly situated  with
           respect to the purpose. This under-inclusion is often  explained
           by saying that the legislature is free  to  remedy  parts  of  a
           mischief or to recognize degrees of evil and strike at the  harm
           where it thinks it most acute.


           10. There are two  main  considerations  to  justify  an  under-
           inclusive  classification.  First,   administrative   necessity.
           Second, the legislature might not be fully  convinced  that  the
           particular policy which it adopts will be  fully  successful  or
           wise. Thus to demand application of the policy to  all  whom  it
           might logically encompass would restrict the  opportunity  of  a
           State to make experiment. These techniques would show that  some
           sacrifice of absolute equality may be required in order that the
           legal  system  may  preserve  the  flexibility  to  evolve   new
           solutions to social  and  economic  problems.  The  gradual  and
           piecemeal change is often regarded as desirable  and  legitimate
           though in principle it is achieved at the cost of some equality.
           It would seem that in fiscal and regulatory  matters  the  court
           not only entertains a greater presumption  of  constitutionality
           but also places the burden on the party challenging its validity
           to  show  that  it  has  no  reasonable  basis  for  making  the

55.   The above decisions were followed in Ajoy Kumar Banerjee and  Ors.  v.
Union of India and Ors. (1984) 3 SCC 127 where this Court observed:

           “...Article 14 does not prevent legislature from  introducing  a
           reform i.e. by applying the legislation to some institutions  or
           objects or areas only according to the exigency of the situation
           and further classification of  selection  can  be  sustained  on
           historical reasons or  reasons  of  administrative  exigency  or
           piecemeal method of introducing reforms. The law need not  apply
           to  all  the  persons  in  the  sense  of  having  a   universal
           application to all persons. A law can be sustained if  it  deals
           equally with  the  people  of  well-defined  class-employees  of
           insurance companies as such and such a law is not  open  to  the
           charge of denial of equal protection on the ground that  it  had
           no application to other persons.”

56.   We have in the light of the above no hesitation in  holding  that  the
legislation  under  challenge  does  not  suffer  from  any   constitutional
infirmity and that the High Court was in error in having struck it down.

57.   Having said that we are of the opinion that even  when  the  challenge
to the constitutional validity of the impugned enactment fails,  the  degree
holder Junior Engineers currently working as ad hoc Assistant Engineers  are
entitled to the relief of regularisation in service, having  regard  to  the
fact that they have rendered long years of service  as  Assistant  Engineers
on ad hoc basis for 17 to 18 years in some cases.  While  it  is  true  that
those in service degree holders working as Junior  Engineers  were  not  the
beneficiaries of the legislation under challenge,  the  fact  remains,  that
they were eligible for appointment as  Assistant  Engineers  on  account  of
their being degree holders. It  is  also  not  in  dispute  that  they  were
appointed against substantive vacancies in the cadre of Assistant  Engineers
no matter by utilizing the  direct  recruit  quota.  Even  in  the  case  of
Stipendiary Engineers the vacancies were  utilized  out  of  the  67%  quota
meant for direct recruitment. What is,  however,  significant  is  that  the
utilization of the quota reserved  for  direct  recruitment  for  appointing
Stipendiary and  Junior  Engineers  as  Assistant  Engineers  has  not  been
assailed either before the High Court or before  us.  On  the  contrary  the
contention urged on behalf of Junior Engineers degree holders who are  still
working as Junior Engineers was that the remainder of  vacancies  comprising
5% of the cadre strength should be utilised to appoint the  eligible  degree
holder Junior Engineers. We  shall  presently  deal  with  that  contention.
Suffice it to say for the present that the appointments  granted  to  degree
holder Junior  Engineers  as  Assistant  Engineers  on  ad  hoc  basis  were
pursuant to a Government decision whereunder such  degree  holders  as  were
already in-service as Junior Engineers,  were  also  given  an  opening  for
upward movement. Appointment of such  degree  holders  was  not  grudged  by
their diploma holder colleagues as no challenge was mounted by them to  such
appointments ostensibly because degree holder Junior Engineers were  getting
appointed without in the least affecting the quota of 33% reserved  for  the
promotees.  In a way the upward movement of the degree holders as  Assistant
Engineers brightened the chances of the rest to get promoted at  their  turn
in the promotees quota.  All told, the  Junior  Engineers  have  served  for
almost a lifetime and held substantive vacancies no matter on ad hoc  basis.
To revert them at this distant point of time would work  hardship  to  them.
Besides, we cannot ignore the march  of  events  especially  the  fact  that
Stipendaries  appointed  at  a  later  point   of   time   with   the   same
qualifications and pursuant to the  very  same  Government  policy  as  took
shape for both the categories,  have  been  regularised  by  the  Government
through the medium of a legislation. That this Court can suitably mould  the
relief, was not in serious controversy before us. In the  circumstances,  we
hold the degree holder  Junior  Engineers  currently  working  as  Assistant
Engineers on ad hoc basis writ petitioners in the  High  Court  entitled  to
the relief  of  regularisation  with  effect  from  the  same  date  as  the
Validation Act granted such regularisation to the Stipendiary Engineers.

58.   We shall advert to the question of inter se seniority between the  two
categories while we take up question No.3.  But before we turn  to  question
No.3 we need to briefly deal with the contention urged on behalf of some  of
the  degree  holder  Junior  Engineers  represented  by  Mr.  Dholakia   who
contended that since the Government resolution had  provided  for  5%  quota
for degree holder Junior Engineers the Government was  duty  bound  to  make
appointments against that quota.  It was urged that the  cadre  strength  of
the Assistant Engineers had not been presently determined by the  Government
nor were the figures given by the State Government accurate.  The number  of
Junior Engineers who should have got appointed  against  5%  quota  reserved
for them would have been large,  agreed  Mr.  Dholakia.  To  the  extent  of
shortfall the  State  Government  was  bound  to  continue  the  process  of
appointment, contended the learned counsel.

59.   There is, in our opinion, no merit in the  submissions  urged  by  Mr.
Dholakia and by learned counsel for some  of  the  interveners.  We  say  so
because the quota which the Government  resolution  proposed  to  carve  out
never fructified by a corresponding amendment  of  the  Service  Rules.   As
noticed in the earlier  part  of  this  order,  the  Orissa  Public  Service
Commission was  not  agreeable  to  the  reservation  of  a  quota  for  the
subordinate engineering service members who held a degree qualification.  No
such  classification  was,  therefore,  made  or  could  be  made   by   the
Government, nor was the Government  resolution  translated  into  a  binding
rule that could be enforced by a Court of law.   Assuming,  therefore,  that
on a true and  proper  determination  of  the  posts  comprising  the  cadre
strength of Assistant Engineers, some more vacancies could fall  in  the  5%
quota proposed to be reserved for the degree holder Junior Engineers and  no
mandamus could be issued for filing up such  vacancies.  It  is  trite  that
existence of an enforceable  right  and  a  corresponding  obligation  is  a
condition precedent for the issue of a mandamus. We fail to locate any  such
right in favour of the writ petitioner degree holders who are still  holding
posts as Junior Engineers. They will have,  therefore,  to  wait  for  their
turn for promotion against the 33% quota reserved for them along with  their
diploma holder colleagues. We hardly need to emphasise that those  appointed
against 5% quota may also have had  no  such  right,  but  since  they  have
worked in the higher cadre for a long period and discharged duties  attached
to the posts of Assistant Engineers  with  the  benefits  attached  thereto,
their regularisation comes on a totally different juristic  basis  than  the
one sought to be urged on behalf of those who were  left  out.  Appointments
as Assistant Engineers were from  out  of  Junior  Engineers  made  strictly
according  to  seniority.  The  fortuitous  circumstance  under  which   the
appointments did not extend to the full quota of 5% would make  no  material
difference when it comes to finding out whether  the  Junior  Engineers  can
claim an enforceable legal right.

60.   Question No.2 is answered accordingly.

Re. Question No.3

61.   Section 3(2) of the  impugned  legislation  deals  entirely  with  the
inter  se  seniority  of  Assistant   Engineers   whose   appointments   are
validated/regularised by the said enactment and stipulates that  such  inter
se seniority shall be determined according to the dates  of  appointment  of
the officers concerned on ad hoc basis as  mentioned  in  the  schedule.  It
further stipulates that all those regularised under  the  legislation  shall
be enbloc junior to the Assistant Engineers of that year  appointed  to  the
service in their respective discipline in their  cadre  in  accordance  with
the provisions of the Recruitment Rules. Sub-section (3) of Section 3  makes
the ad hoc service rendered  by  such  Assistant  Engineers  count  for  the
purpose of their pension, leave and increments and for no other purpose.
62.   Appearing for the State of Orissa, Mr. Nageshwar  Rao  contended  that
grant of seniority to ad  hoc  Assistant  Engineers  regularised  under  the
legislation w.e.f. the date they were appointed on ad hoc basis was  legally
permissible especially when the ad hoc appointments  had  continued  without
any interruption till their regularisation.  Reliance in support was  placed
by Mr. Rao upon a Constitution  Bench  decision  of  this  Court  in  Direct
Recruit Class II Engineering Officers’ Association v. State  of  Maharashtra
and Ors. (1990) 2 SCC 715. The  case  at  hand,  according  to  the  learned
counsel, fell under proposition (B) formulated in the said  decision.  Grant
of seniority from the date  of  initial  appointments  did  not,  therefore,
suffer from any constitutional or other infirmity  to  warrant  interference
from this Court.
63.   Mr. Sisodia appearing for some of the  parties,  on  the  other  hand,
contended  that  seniority  could  be  granted  only  from   the   date   of
regularisation under the enactment and  not  earlier.  Learned  counsel  for
some of the interveners adopted that  contention,  including  Ms.  Aishwarya
appearing for some of the diploma holder Junior Engineers and urged that  ad
hoc  service  rendered  by  the  Engineers  appointed  otherwise   than   in
accordance with the rules could not count for the purposes of seniority  and
that even if Section 3(1) of the  Validation  Act  was  held  to  be  valid,
Section 3(2) which gave retrospective seniority  from  the  date  they  were
first appointed on ad hoc basis must go.
64.   In Direct Recruit’s case (supra) this Court  reviewed  and  summed  up
the law on the subject by formulating as many  as  11  propositions  out  of
which propositions A and B  stated  in  Para  47  of  the  decision  in  the
following words are relevant for our purposes:
           “47. To sum up, we hold that:

            (A)  Once an incumbent is appointed  to  a  post  according  to
           rule, his seniority has to be  counted  from  the  date  of  his
           appointment and not according to the date of his confirmation.
                 The corollary of the above rule is that where the  initial
           appointment is only ad hoc and not according to rules  and  made
           as a stop-gap arrangement, the officiation in such  post  cannot
           be taken into account for considering the seniority.
           (B)   If the initial appointment is not made  by  following  the
           procedure laid down by the rules but the appointee continues  in
           the post uninterruptedly till the regularisation of his  service
           in accordance with the rules, the period of officiating  service
           will be counted.”

65.   There was some debate at the bar whether the case at hand  is  covered
by corollary to proposition A or  by  proposition  B  (supra).   But  having
given our consideration to the submissions at the Bar  we  are  inclined  to
agree with Mr. Rao’s submission that the case at hand is more  appropriately
covered by proposition B extracted above.  We say  so  because  the  initial
appointment of ad hoc Assistant Engineers in the instant case was  not  made
by following the procedure laid down by the Rules.  Even so, the  appointees
had  continued  in  the  posts  uninterruptedly  till  the  Validation   Act
regularised their service. There is, in the light of those  two  significant
aspects, no room for holding that grant  of  seniority  and  other  benefits
referred to in Section 3(3) of the impugned Act were  legally  impermissible
or  violated  any  vested  right  of  the  in  service  Assistant  Engineers
appointed from any other source. Proposition A, in our opinion,  deals  with
a situation where an incumbent is appointed  to  a  post  according  to  the
rules but  the  question  that  arises  for  determination  is  whether  his
seniority should be counted from the date of his  appointment  or  from  the
date  of  his  confirmation  in  the  said  service.  The  corollary   under
proposition A, in our opinion, deals with an entirely  different  situation,
namely, where the appointment is ad hoc and made as  a  stop-gap-arrangement
in which case officiation in such post cannot be  taken  into  consideration
for seniority.  Be that as it may, as between proposition A and B  the  case
at hand falls more accurately under proposition B  which  permits  grant  of
seniority w.e.f. the date the appointees first started officiating  followed
by the regularisation of their service as in the case at hand.
66.   We may also refer to a three-Judge Bench of this  Court  in  Union  of
India and Anr. etc. etc. v. Lalita S. Rao and Ors. etc. etc.  (2001)  5  SCC
384 where doctors appointed by Railway Administration on ad  hoc  basis  had
been upon regularisation granted seniority from the date  of  their  ad  hoc
appointment. This Court held that proposition B stated  in  Direct  Recruits
case (supra) permitted such seniority being granted. This Court observed:

           “Obviously the Court had in mind the principle B evolved by  the
           Constitution Bench in the Direct  Recruit  Engineering  Officers
           Association case (supra). If the  initial  appointment  had  not
           been made in accordance with the prescribed procedure laid  down
           by  the  Recruitment  Rules,  and  yet  the  appointees  Medical
           Officers were allowed to continue in  the  post  uninterruptedly
           and then they appeared at the selection test  conducted  by  the
           Union Public Service Commission, and  on  being  selected  their
           services stood regularised then there would be no  justification
           in not applying the principle 'B' of the Direct Recruit Class II
           Engineering Officers Association case (supra)  and  denying  the
           period of officiating services for being counted for the purpose
           of seniority.”

67.   Reference may also be made to the decision of this Court in  State  of
Andhra Pradesh & Anr. V. K.S. Muralidhar & Ors. (1992) 2 SCC 241  where  the
Government of India gave weightage to service rendered  by  employees  prior
to their regularisation. The dispute in that case  was  regarding  inter  se
seniority between the Supervisors who were upgraded as Junior Engineers  and
the degree holders who were directly appointed  as  Junior  Engineers.  This
Court held that the State  Government  had  as  a  matter  of  policy  given
weightage to both the categories and that there was nothing unreasonable  in
giving a limited benefit or weightage to the  upgraded  Supervisors  in  the
light of their experience.  This Court said:
           “The question to be considered is from which date the  weightage
           of four years' service should be given to  the  upgraded  Junior
           Engineers namely the Supervisors. Is it the  date  of  acquiring
           the degree qualification  or  the  date  of  their  appointment?
           Having given our  earnest  consideration  and  for  the  reasons
           stated above we hold that the weightage can be given  only  from
           the date of their appointment.

           The Tribunal in the course of its order, however, observed  that
           in accordance with the existing rules the appointments of  these
           Junior Engineers from the notional date have to  be  cleared  by
           the Public Service Commission and  the  appointments  cannot  be
           held to be regular appointments as long as they are not approved
           by the Public Service Commission.

           Xx xx xx

           To sum up, our conclusions are as under:

           (i) The weightage of four years in respect  of  upgraded  Junior
           Engineers as provided in G.O. Ms. No. 559  has  to  be  reckoned
           from the date of appointment and not the date of their acquiring
           the degree qualification;

           (ii)  On  the  basis  of  that  notional  date,  their  inter-se
           seniority has to be fixed;

           (iii) The regularisation of the degree-holder  Junior  Engineers
           who passed the SQT by giving retrospective effect cannot be held
           to be illegal, and their seniority  among  themselves  shall  be
           subject to the order of ranking  given  by  the  Public  Service
           Commission on the basis of the SQT;

           (iv) The Government shall prepare a common seniority list of the
           degree-holders  Junior  Engineers  and   the   upgraded   Junior
           Engineers on the above lines and that list shall  be  the  basis
           for all the subsequent promotions. Promotions, if  any,  already
           given shall be reviewed and readjusted in  accordance  with  the
           said seniority list; and

           (v) The approval of the Public Service Commission in respect  of
           these appointments and their seniority thus fixed  need  not  be
           sought at this distance of time.”

                                            (emphasis supplied)
68.   In Narender Chadha & Ors. v. Union of India & Ors. (1986) 2  SCC  157,
this Court  was  dealing  with  a  somewhat  similar  fact  situation.   The
petitioners  in  that  case  were  not  promoted  by  following  the  actual
procedure  prescribed  by  the  relevant  Service  Rules  even  though   the
appointments were made in  the  name  of  the  President  by  the  competent
authority. They had based on such appointments, continuously held  the  post
to which they were appointed and received salary and allowances  payable  to
incumbent of such post. The incumbents were entered in the  direct  line  of
their promotion. The question, however, was whether it  would  be  just  and
proper to hold that such promotees had no right to the  post  held  by  them
for 15-20 years and could be reverted unceremoniously or treated as  persons
not belonging to the service at  all.   Repelling  the  argument  that  such
service would not count for the purposes of seniority, this Court observed:
           “ It would be unjust to hold at this distance of  time  that  on
           the facts and in the circumstances of this case the  petitioners
           are not holding the posts n Grade IV. The  above  contention  is
           therefore without sub-stance. But we,  however,  make  it  clear
           that it is not our view that whenever a person is appointed in a
           post without following the Rules prescribed for  appointment  to
           that post, he should be treated as a person regularly  appointed
           to that post. Such a person may be reversed from that post.  But
           in a case of the kind before us where persons have been  allowed
           to function in  higher  posts  for  15  to  20  years  with  due
           deliberation it would be certainly unjust to hold that they have
           no  sort  of  claim  to  such  posts  and  could   be   reverted
           unceremoniously or treated as  persons  not:  belonging  to  the
           Service at all, particularly where  the  Government  is  endowed
           with the power to relax the Rules to avoid  unjust  results.  In
           the instant case the  Government  has  also  not  expressed  its
           unwillingness to continue them in  the  said  posts.  The  other
           contesting respondents have also not urged that the  petitioners
           should be sent out of the said posts. The only question agitated
           before us relates to the seniority as  between  the  petitioners
           and the direct recruits and such a question can arise only where
           there is  no  dispute  regarding   the  entry  of  the  officers
           concerned into the same Grade. In the instant case there  is  no
           impediment even under the Rules to treat these  petitioners  and
           others who are similarly situated as persons duly  appointed  to
           the  posts  in  Grade  IV  because  of  the  enabling  provision
           contained in the Rule 16 thereof. Rule 16 as  it  stood  at  the
           relevant time read as follows :

                 16. The Government may relax the provisions of these  rules
                 to such extent as may be necessary to  ensure  satisfactory
                 working or remove in-equitable results.”

                                                         (emphasis supplied)

69.   The ratio of the decision in the above case was  not  faulted  by  the
Constitution Bench of this Court in Direct  Recruit’s  case  (supra).  As  a
matter of fact the Court approved the said decision holding that  there  was
force in the view taken by this Court in that case.  This Court observed:

           “In Narender Chadha v. Union of India
the officers were promoted
           although without following the procedure  prescribed  under  the
           rules, but they continuously worked for long periods  of  nearly
           15-20 years on the posts without being reverted.
The  period  of
           their continuous officiation was  directed  to  be  counted  for
           seniority as it was held that any other view would be  arbitrary
           and violative of Articles 14 and 16. There is considerable force
           in this view also.
We,  therefore,  confirm  the  principle  of
           counting towards seniority the period of continuous  officiation
           following an appointment  made  in  accordance  with  the  rules
           prescribed for regular substantive appointments in the service.”

70.   In the light of what we have said above, we do not see any  illegality
or constitutional infirmity in the provisions of Section  3(2)  or  3(3)  of
the impugned legislation.
71.   Having said so, there is no reason why a similar  direction  regarding
the writ-petitioners degree holder Junior Engineers who have  been  held  by
us to be entitled to  regularisation on account of their length  of  service
should also not be given a similar benefit.  We must mention to  the  credit
of Dr. Dhawan,  appearing  for  the  Stipendiary  Engineers  who  have  been
regularised under the provisions of the Legislation that  such  Stipendiary-
ad hoc Assistant Engineers cannot, according to the  learned  counsel,  have
any objection to the degree holder Junior  Engineers  currently  working  as
Assistant Engineers on ad hoc basis being regularised in  service  or  being
given seniority from the date  they  were  first  appointed.   It  was  also
conceded that Stipendiary Engineers all of whom  were  appointed  after  the
appointment of the Junior Engineers would enbloc rank junior to such ad  hoc
Assistant Engineers from out of degree holder  Junior  Engineers.   But  all
such regularised  Assistant  Engineers  from  Stipendiary  Stream  and  from
Junior Engineers category would together rank below the  promotee  Assistant

72.   Question No.3 is answered accordingly.

73.   Several intervention applications have been filed in these appeals  to
which we may briefly refer at this stage. In IA No.5 of 2012 filed in  Civil
Appeal No.8324 of 2009, the  interveners  have  sought  permission  for  the
State Government to complete the re-structuring process and to fill  up  the
vacancies subject to a final decision of this Court in these appeals. In  IA
Nos.6 and 7 of 2012  also  filed  in  Civil  Appeal  No.8324  of  2009,  the
interveners seek a direction to the State of Orissa to upgrade the  post  of
Assistant Engineers Class II  (Group  B)  to  Assistant  Executive  Engineer
Junior Class I (Group A) and to make such up-gradation retrospective  w.e.f.
28th February, 2009.  IA No.8 of 2012  has  been  filed  in  the  very  same
appeal in which the interveners have sought a direction  against  the  State
of Orissa to give effect to the up-gradation of posts considering  inter  se
seniority of in-service degree holder Junior  Engineers  who  are  otherwise
eligible  for  appointment  against  the  vacancies  reserved   for   direct
recruits. In IA No.3 of 2009 in SLP No.29765 of 2008, the  interveners  seek
permission to support the judgment of the High Court  whereby  the  impugned
legislation has been struck down as unconstitutional. Similarly,  IAs  filed
in some other appeals either seek to support  the  judgment  passed  by  the
High Court or pray for permission to argue the case on behalf of one or  the
other party.

74.   We have heard counsel for the interveners also  at  some  length.  We,
however, do not  consider  it  necessary  to  enlarge  the  scope  of  these
proceedings by examining  issues  that  are  not  directly  related  to  the
controversy at  hand.
Three  questions  that  have  primarily  engaged  our
attention in these petitions relate to
(a)  the  validity  of  the  impugned
Validation Act.  
(b)  regularization  of  in-service  degree  holder  Junior
Engineers  who  have  been  working  for  considerable  length  of  time  as
Assistant Engineers on ad hoc basis and 
(c) the seniority position of  those
being regularized either under  the  Validation  Act  or  in  terms  of  the
directions being issued by us in  these  appeals.  
Other  issues  which  the
interveners seek to raise especially issues regarding  grant  or  denial  of
the benefit of reservation to SC and ST candidates, have  not  been  touched
by us in these proceedings for want of proper pleadings on the  subject  and
also for want of any pronouncement by the High Court on the said  questions.
In the circumstances, this order shall be taken to have  settled  only  what
we have specifically dealt with or what would  logically  follow  therefrom.
Any question whether the  same  relates  to  inter  se  seniority  of  those
regularized under the legislation or by reason of the  directions  which  we
propose to issue or issues relating to  the  benefit  of  seniority  on  the
basis of roster points if any prescribed for that purpose are left open  and
may be agitated by the  aggrieved  party  before  an  appropriate  forum  in
appropriate proceedings. To the extent any such questions  or  aspects  have
not been dealt with by us in this order, may  be  dealt  with  in  any  such
proceedings. Beyond that we do not consider it proper or  necessary  to  say
anything at this stage.

75.   In the result we pass the following order:

(1)   Civil Appeals No.8324-8331 of 2009 filed b
y the State  of  Orissa  and
      Civil Appeals No.8322-8323 of 2009 and  1940  of  2010  filed  by  the
      Stipendiary Engineers are allowed and the impugned judgment and  order
      dated 15th October, 2008 passed by the High Court of Orissa set aside.

(2)    Writ  Petitions  No.9514/2003,  12494/2005,  12495/2005,  12627/2005,
      12706/2006 and 8630/2006 filed by the degree holders Junior  Engineers
      working as Assistant Engineers on ad hoc basis are  also  allowed  but
      only to the limited extent that the services of  the  writ-petitioners
      and all those who are  similarly  situated  and  promoted  as  ad  hoc
      Assistant Engineers against the proposed 5%  quota  reserved  for  in-
      service Junior Engineers degree holder shall stand regularized  w.e.f.
      the date Orissa Service of Engineers (Validation of Appointment)  Act,
      2002 came into force. We further direct that  such  in-service  degree
      holder Junior Engineers promoted as  Assistant  Engineers  on  ad  hoc
      basis shall be placed below the promotees and  above  the  Stipendiary
      Engineers regularized in terms of the impugned legislation. The  inter
      se seniority of the Stipendiary  Engineers  regularized  as  Assistant
      Engineers under the impugned Legislation and  Junior  Engineer  degree
      holders regularized in terms of this order shall be determined on  the
      basis of their date of first appointment as Assistant Engineers on  ad
      hoc basis.

(3)   Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment  and
      order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of
      1999 disposed of in terms of the above direction.

(4)   Intervention applications filed in these appeals are also disposed  of
      in the light of observations made in Para 74 of this judgment.

(5)   Parties are left to bear their own costs.

                                                               (T.S. THAKUR)

                                                            (VIKRAMAJIT SEN)

New Delhi
February 19, 2014

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