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Sunday, April 27, 2014

Service matter - more than 10 years of service entitled for permanent appointment - Show cause notice - termination of services of temporary appointed employees after completion of their service for 29 years continuously- who are not appointed with out recommendation of public service commission - in wake of Bifurcation of Jarkhand State from Bihar - challenged - single judge dismissed the writs - D.B. allowed the writs basing o Umadevi case - Apex court held that we are of the opinion that the High Court was correct in reinstating the respondent-employees into their services under the appellants by relying on the legal principles laid down by this Court in the Constitution Bench decision in Uma Devi’s case (supra). We accordingly direct the appellants to implement the orders of the Division Bench of the High Court thereby continuing the respondents in their services and extend all benefits as have been granted by it in the impugned judgment.=STATE OF JHARKHAND & ORS. ……APPELLANTS VS. KAMAL PRASAD & ORS. ………RESPONDENTS= 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41461

  Service matter - more than 10 years of service entitled for permanent appointment - Show cause notice - termination of services of temporary appointed employees after completion of their service for 29 years continuously- who are not appointed with out recommendation of public service commission - in wake of Bifurcation of Jarkhand State from Bihar - challenged - single judge dismissed the writs - D.B. allowed the writs basing o Umadevi case - Apex court held that   we are of the opinion that  the  High  Court was correct in reinstating  the  respondent-employees  into  their  services under the appellants by relying on the legal principles laid  down  by  this Court in the Constitution Bench decision in  Uma  Devi’s  case  (supra).  We accordingly direct the appellants to implement the orders  of  the  Division Bench of  the  High  Court  thereby  continuing  the  respondents  in  their services and extend all benefits as have been granted by it in the  impugned judgment.=

200  posts  have  been  created  by  the  erstwhile  State
Government of  Bihar  in  Rural  Engineering  Organization  of  the   Road
Construction Department and the said posts  have been  advertised  by  the
department in Advertisement No. 13 of 1985 and  against  those  posts  the
respondent-employees and other similarly placed employees  were  appointed
after selection to the posts of Assistant Engineers on ad hoc  basis  with
permission of the BPSC and they continued as such in the  said  posts.  
On
15.11.2000, the State of Jharkhand was created by bifurcation of the State
of Bihar by the Act of Bihar Reorganisation Act, 2000. 
It is the  case  of
the respondent-employees that as per Section 72 of the Act  of  2000,  the
persons who were working in the posts falling  in  the  territory  of  the
State of Bihar were to continue in the posts in the State of Jharkhand. 
It
is not in dispute that the said employees continued in the  employment  in
the State of Jharkhand after creation of new State. 
Thereafter,  an  order
was passed by the High Court on 22.3.2010, in the Writ Petition  No.  1001
of 2010 filed by Kamal Prasad &  Ors.  which  is  produced  on  record  as
Annexure-15 in the L.P.As. On the basis  of  the  said  order,  the  State
Government of Jharkhand unilaterally decided that the appointment  of  the
respondent-employees were not valid and accordingly it had  directed  that
they should go back to the State of Bihar. The said action of the State of
Jharkhand was found fault with by the High Court. The High Court,  in  the
case of Ram Swarath Prasad v. State of Jharkhand & Ors.[1] has  held  that
the said power was not available  with the State Government  of  Jharkhand
i.e. to pass unilateral order directing  the  respondent-employees  to  go
back to the State of Bihar, which action of it is not in  consonance  with
Section 72 of the Bihar Reorganisation Act, 2000.    =
     
The Division Bench of the High Court after referring
to the case of Secretary, State of Karnataka & Ors. v. Umadevi &  Ors.[2],
has clearly held that if a person has served for 10 years or more, then it
is  the  duty  of  the  State  Government  to  consider   his   case   for
regularization in the post.  The said conclusion came  to  be  reached  by
relying on Articles 309, 14, 16 of the Constitution of India. Relying upon
Umadevi & Ors. (supra),  the  High  Court  has  further  referred  to  the
judgment in the State of Karnataka & Ors. v. M.L. Kesari & Ors.[3]   which
is considered by this Court and this Court has clearly held that the  case
of Umadevi & Ors. (supra) cast a duty upon the State  Government  to  take
steps  to  regularize   the  services  of  those   irregularly   appointed
appointees, who had served for more than 10 years without the  benefit  or
protection of any interim order

Conclusion
we
are of the opinion that the decision of the High  Court  does  not  fall  in
either of the categories mentioned above which calls for  our  interference.
The Division Bench of the High Court having  regard  to  the  glaring  facts
that the respondent-employees have continuously worked in  their  posts  for
more than 29 years discharging permanent nature  of  duties  and  they  have
been paid their salaries and  other  service  benefits  out  of  the  budget
allocation,  no  objection  was  raised  by  the  CAG  in  this  regard  and
therefore, it is not open for the appellants to contend that  the  law  laid
down in  Uma Devi’s case (supra)  has no application to the fact  situation.
The action of the appellants in terminating the services of the  respondent-
employees who  have  rendered  continuous  service  in  their  posts  during
pendency of the Letters Patent Appeals was quashed by the High  Court  after
it has felt that the action is not only arbitrary but shocks  its  conscious
and therefore it has rightly exercised its discretionary power  and  granted
the  reliefs  to  the  respondent-employees  which  do  not  call  for   our
interference. 
Therefore, we are of the opinion  that  this  Court  will  not
interfere with the opinion of the High Court and on the  contrary,  we  will
uphold the decision of the High Court both on factual and legal  aspects  as
the same is legally correct and it  has  done  justice  to  the  respondent-
employees.

Answer to Point No. 4

24. As already mentioned above, we are of the opinion that  the  High  Court
was correct in reinstating  the  respondent-employees  into  their  services
under the appellants by relying on the legal principles laid  down  by  this
Court in the Constitution Bench decision in  Uma  Devi’s  case  (supra).  We
accordingly direct the appellants to implement the orders  of  the  Division
Bench of  the  High  Court  thereby  continuing  the  respondents  in  their
services and extend all benefits as have been granted by it in the  impugned
judgment.

25. The Civil Appeals are dismissed accordingly.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41461
GYAN SUDHA MISRA, V. GOPALA GOWDA
      REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.4809 OF 2014
                     (ARISING OUT OF SLP(C) 266 OF 2012)




STATE OF JHARKHAND & ORS.                  ……APPELLANTS

                                     VS.

KAMAL PRASAD & ORS.                             ………RESPONDENTS


                                    With


                        CIVIL APPEAL NO.4837 OF 2014
                  (ARISING OUT OF SLP(C) NO. 21936 of 2013)

                        CIVIL APPEAL NO.4810 OF 2014
                  (ARISING OUT OF SLP(C) NO. 34437 of 2012)

                        CIVIL APPEAL NO.4811 OF 2014
                  (ARISING OUT OF SLP(C) NO. 36515 of 2012)

                        CIVIL APPEAL NO.4812 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37628 of 2012)

                        CIVIL APPEAL NO.4813 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37701 of 2012)

                        CIVIL APPEAL NO.4814 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37702 of 2012)

                        CIVIL APPEAL NO.4815 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37740 of 2012)

                        CIVIL APPEAL NO.4816 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37819 of 2012)
                        CIVIL APPEAL NO.4817 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37834 of 2012)

                        CIVIL APPEAL NO.4818 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37850 of 2012)

                        CIVIL APPEAL NO.4819 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37864 of 2012)

                        CIVIL APPEAL NO.4820 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37930 of 2012)

                        CIVIL APPEAL NO.4821 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37952 of 2012)

                        CIVIL APPEAL NO.4822 OF 2014
                  (ARISING OUT OF SLP(C) NO. 37981 of 2012)

                        CIVIL APPEAL NO.4823 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38012 of 2012)

                        CIVIL APPEAL NO.4824 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38039 of 2012)

                        CIVIL APPEAL NO.4825 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38044 of 2012)

                        CIVIL APPEAL NO.4826 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38053 of 2012)

                        CIVIL APPEAL NO.4827 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38224 of 2012)

                        CIVIL APPEAL NO.4828 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38237 of 2012)



                        CIVIL APPEAL NO.4829 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38242 of 2012)



                        CIVIL APPEAL NO.4830 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38267 of 2012)

                        CIVIL APPEAL NO.4831 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38323 of 2012)

                        CIVIL APPEAL NO.4832 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38341 of 2012)

                        CIVIL APPEAL NO.4833 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38404 of 2012)

                        CIVIL APPEAL NO.4834 OF 2014
                  (ARISING OUT OF SLP(C) NO. 38408 of 2012)

                        CIVIL APPEAL NO.4835 OF 2014
                  (ARISING OUT OF SLP(C) NO. 39206 of 2012)

                                     AND

               CIVIL APPEAL NO.4836 OF 2014
           (ARISING OUT OF SLP(C) NO. 93 of 2013)


                               J U D G M E N T


V. GOPALA GOWDA, J.




      Leave granted in all the Special Leave Petitions.

2.    These Civil Appeals are filed  by  the  appellant-State  of  Jharkhand
questioning  the  legality  of  the  impugned  judgment  and   order   dated
08.11.2011 passed by the High Court of Jharkhand in  Letters  Patent  Appeal
No. 256 of 2011 and  connected  cases  which  allowed  the  appeals  of  the
respondent-writ petitioners by setting aside the judgment  dated  25.07.2011
passed by the learned  single  Judge  whereby  the  writ  petitions  of  the
respondent-employees were dismissed and the  Interlocutory  Application  No.
3223 of 2011 was allowed after quashing the show cause  notices  issued  and
orders of termination of services of the respondent-employees. The  Division
Bench of the High Court by framing certain substantial questions of law  has
held that the respondents herein shall be entitled to all the  consequential
benefits. The appellants  being  aggrieved  of  the  impugned  judgment  and
orders have filed these Civil Appeals by  urging  various  facts  and  legal
grounds in support of  the  same  and  prayed  to  set  aside  the  impugned
judgment and orders by allowing the Civil Appeals.

3.    Certain relevant facts are stated for the purpose of appreciating  the
rival legal contentions urged on behalf  of  the  parties  with  a  view  to
examine the  correctness  of  the  findings  and  reasons  recorded  by  the
Division Bench of the High Court in the impugned  judgment  and  further  to
find  out  as  to  whether  the  impugned  judgment   and   orders   warrant
interference by this Court in exercise  of  its  appellate  jurisdiction  in
these Civil Appeals.

4.     The  respondent-employees  (the  writ  petitioners  before  the  High
Court), were initially appointed in the year 1981 in  the  posts  of  Junior
Engineers in the Rural Development Department  in  the  erstwhile  State  of
Bihar in respect of which the recommendation of  the  Bihar  Public  Service
Commission (for short “the BPSC”) was not required. It is the  case  of  the
respondent-employees that they have continuously discharged their duties  in
the above posts  honestly  and  diligently  to  the  satisfaction  of  their
employer. They were subsequently appointed  on  ad-hoc  temporary  basis  as
Assistant Engineers in the pay-scales of  [pic]1000-50-1700  P.Ro-10-1820/-,
with certain conditions on the basis of  recommendation  made  by  the  BPSC
against temporary posts from the date of  notification.  Their  services  as
Assistant Engineers on ad-hoc basis were  entrusted  to  work  in  the  Road
Construction Department where they were required to  contribute  their  work
within the stipulated period. The relevant  condition  No.  2  in  the  said
notification No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is  extracted
hereunder:-

            “1.  XXX              XXX              XXX

              2. This ad-hoc appointment shall be dependent on  approval  of
                 Bihar Public Service Commission.

           3.   XXX               XXX              XXX  ……”

It is their further case that they have been working in the said  posts  for
more than 29 years from the date of first appointment  as  Junior  Engineers
and 23 years from the appointment in the posts of Assistant Engineers on ad-
hoc basis. Neither the BPSC nor Bihar State Government nor  Jharkhand  State
Government had intention to dispense with the services of  these  employees.
Therefore, they did not take steps to  dispense  with  their  services  from
their posts. The employees approached the High Court when they  were  issued
the show cause notices dated 20.4.2010 by the appellant No.3.  After  taking
substantial work from the respondent-employees they have  been  harassed  by
issuing show cause notices asking  them  to  show  cause  as  to  why  their
services should not be terminated on the ground of their appointment to  the
posts as illegal/invalid. Their appointments were, however, not held  to  be
invalid either by the orders of the High Court or Supreme Court in spite  of
the fact that 199 posts filled up by  advertisement  No.128/1996  issued  by
the BPSC dated 2.9.1996  as  the  same  would  not  affect  the  respondent-
employees who otherwise have been in continuous service  for  more  than  23
years in the substantial posts of Road Construction Department  and  not  of
Rural Engineering/Rural Works Department. Therefore, it was pleaded by  them
that the impugned notices  issued  to  them  was  an  empty  formality  with
preconceived decision and the same is also not only discriminatory but  also
suffers from legal malafides,  arbitrariness,  unreasonableness  and  is  in
utter transgression of the interim order dated 22.3.2010 passed in W.P.  (S)
No. 1001 of 2010 amounting to overreaching  the majesty of the High Court.

5.    They further sought for declaration that since  the  services  of  the
respondent-employees fortuitously fall in the territory of  Jharkhand  State
with effect from 15.11.2000 and no final cadre division  of  their  services
has been made till date after tentative allocations  were  made  vide  order
dated 20.12.2006 by the Central Advisory Committee  within  the  meaning  of
Section 72 read with Section 73 of the Bihar Re-organization Act,  2000,  it
is pleaded that the appellant-State of Jharkhand and  its  instrumentalities
have no unilateral power and jurisdiction  to  take  any  such  decision  to
their disadvantage as they were appointed before the date  of  establishment
of Jharkhand State. Therefore, the impugned notices issued  unilaterally  by
the appellant-State to the respondent-employees declaring their services  as
illegal is not only a colourable exercise of its power but  also  whimsical,
discriminatory  and thereby its action is  in violation of Articles 14,  16,
19(1)(g) and 21 of the Constitution of India.

6.    Further, direction was sought by  the  respondent-employees  from  the
High Court in  the  Writ  Petitions  to  treat  them  equally  at  par  with
similarly situated 120 persons appointed along with  them  who  fortuitously
remained working in the territory of successor State of Bihar namely,  after
the Jharkhand State was formed w.e.f.  15.11.2000  without  any  disturbance
and consider their claim for regularization along with them  in  terms  with
the conscious Policy decision taken by it  vide  notification  No.  10113(s)
dated 11.09.2009 by the Cadre Controlling State of Bihar  and  in  pursuance
thereof the respondent-employees have also applied for the  same  and  which
is in active consideration of  the  State  of  Jharkhand  and  further  they
sought for issuance of a writ  of  prohibition  restraining  the  appellants
from termination of their services from their  posts  in  pursuance  of  the
impugned show cause notices as they had seriously apprehended  in the  light
of pre-decisive  and  prejudicial  findings  and  reasons  recorded  in  the
impugned notices in the garb of order dated 22.3.2010 passed in W.P.(S)  No.
1001 of 2010, that their services might be  terminated.  However,  the  fact
remains that they are discharging their regular service  to  the  appellants
(although their posts are termed as ad-hoc in nomenclature)  for  more  than
29 years from the initial appointment as Junior  Engineers  since  the  year
1981 after following due procedure of Advertisement etc. and their  services
have been upgraded to the posts of Assistant  Engineer  again  on  temporary
basis in 1987 pursuant to Cabinet decision of the erstwhile State  of  Bihar
Government  with  the  permission  of  BPSC  who    had   recognized   their
qualification of degree and experience. Therefore, their appointment to  the
posts is legal and valid from their date  of  inception  of  their  original
appointment as Junior Engineers in the erstwhile State Government of Bihar.

7.    The said writ petitions were opposed by the appellants  herein  urging
various facts and legal contentions in justification of their claim and  the
reasons assigned in the show cause notices and opposed the  prayers  of  the
respondent-employees, which case of them is  not  accepted  by  the  learned
single Judge and consequently dismissed their  writ  petitions  by  judgment
dated 25.7.2011. Aggrieved by the  said  judgment  and  orders,  they  filed
Letters Patent Appeals before the Division Bench of the  High  Court  urging
various grounds.

8.    The correctness of the same was challenged by the appellants  before
the Division Bench in the Letter Patent Appeal No. 256 of 2011  and  other
connected LPAs. The learned senior counsel for the parties were  heard  at
length. After considering the rival legal  contentions  and  noticing  the
relevant facts of these cases it was held by the  Division  Bench  of  the
High Court that 200  posts  have  been  created  by  the  erstwhile  State
Government of  Bihar  in  Rural  Engineering  Organization  of  the   Road
Construction Department and the said posts  have been  advertised  by  the
department in Advertisement No. 13 of 1985 and  against  those  posts  the
respondent-employees and other similarly placed employees  were  appointed
after selection to the posts of Assistant Engineers on ad hoc  basis  with
permission of the BPSC and they continued as such in the  said  posts.  On
15.11.2000, the State of Jharkhand was created by bifurcation of the State
of Bihar by the Act of Bihar Reorganisation Act, 2000. It is the  case  of
the respondent-employees that as per Section 72 of the Act  of  2000,  the
persons who were working in the posts falling  in  the  territory  of  the
State of Bihar were to continue in the posts in the State of Jharkhand. It
is not in dispute that the said employees continued in the  employment  in
the State of Jharkhand after creation of new State. Thereafter,  an  order
was passed by the High Court on 22.3.2010, in the Writ Petition  No.  1001
of 2010 filed by Kamal Prasad &  Ors.  which  is  produced  on  record  as
Annexure-15 in the L.P.As. On the basis  of  the  said  order,  the  State
Government of Jharkhand unilaterally decided that the appointment  of  the
respondent-employees were not valid and accordingly it had  directed  that
they should go back to the State of Bihar. The said action of the State of
Jharkhand was found fault with by the High Court. The High Court,  in  the
case of Ram Swarath Prasad v. State of Jharkhand & Ors.[1] has  held  that
the said power was not available  with the State Government  of  Jharkhand
i.e. to pass unilateral order directing  the  respondent-employees  to  go
back to the State of Bihar, which action of it is not in  consonance  with
Section 72 of the Bihar Reorganisation Act, 2000.  This  aspect  was  also
observed by the learned single Judge in his judgment impugned in the  LPAs
filed by the respondent employees. However, it was  observed  that  it  is
open to the  appropriate  authorities  having  power  to  take  reasonable
decision after issuing show-cause notices to the employees with regard  to
the final allocation of the cadre to the State of Jharkhand in  accordance
with law. The State Government of  Jharkhand  had  interpreted  the  order
dated 22.3.2010 as a direction to it and it had proceeded to terminate the
services of these employees. The  State  Government  took  a  decision  to
terminate the services of all such  engineers  including  the  respondent-
employees in these appeals and notices were issued to them  and  the  same
were stayed in the interlocutory application   filed  by  the  respondent-
employees and status-quo order dated 9.9.2010 was passed as per Ann.-18 in
the Writ Petition(S)No.2087 of 2010. Finding the  said          situation,
the State  Government  submitted  that  they  are  keeping  the  order  of
termination of services of the respondent-employees and similarly situated
employees in abeyance. The State Government rejected  the  representations
of the respondent-employees and terminated their  services  vide  separate
but similar  orders  dated  24.8.2011.  The  orders  of  termination  were
questioned by the respondent–employees by filing interlocutory application
in the Letters Patent Appeals questioning their propriety, correctness and
legality of the orders of termination passed against them and action taken
by the State Government of Jharkhand against them. In the  Letters  Patent
Appeals, the Division Bench of High Court on 13.9.2011 passed  an  interim
order directing the appellants to maintain status-quo and the  respondent-
employees were allowed to work in the posts. The Division  Bench  accepted
the factual and legal submissions urged on behalf of  the  employees  that
they were appointed as back as in the year 1981 in  the  posts  of  Junior
Engineers which were not illegal or even irregular and they are  qualified
persons and eligible to hold  the  posts.  They  rendered  their  services
satisfactorily and therefore, the State Government of Bihar has  appointed
them in the posts of Assistant Engineers by the order  of  the  Government
dated 27.6.1987 and continued them in their  services  as  such  till  the
orders of termination passed against them on 24.08.2011, that  too  during
pendency of the Letters Patent Appeals before the Division  Bench  of  the
High Court. It is observed by the  Division  Bench  that  the  respondent-
employees have been in service independent of any interim order passed  by
the  court.  The  State  Government  was  in  need  of  Junior  Engineers,
therefore, the State Government of  Bihar  allowed  the  services  of  the
respondent-employees in the posts. Thereafter,  the  State  Government  of
Bihar has decided to appoint them in the posts of Assistant Engineers  and
it was under the impression that their names will be  recommended  by  the
BPSC. After accepting the case of the respondent-employees that since 1987
till 2011 when the orders of termination  of  service  were  passed,  they
continued in service and their  salaries  were  paid  with  other  service
benefits including increments and they  were  duly  transferred  from  the
State of Bihar to the State of Jharkhand when it was formed and they  were
treated as regular appointees for which the Jharkhand State Government did
not object their continuance in their services. The Order dated  22.3.2010
passed by the High Court in the writ petitions referred to supra seems  to
have been interpreted by the officers of the Jharkhand State Government as
a direction to it to  proceed  with  to  terminate  the  services  of  the
respondent-employees. The Division Bench of the High Court after referring
to the case of Secretary, State of Karnataka & Ors. v. Umadevi &  Ors.[2],
has clearly held that if a person has served for 10 years or more, then it
is  the  duty  of  the  State  Government  to  consider   his   case   for
regularization in the post.  The said conclusion came  to  be  reached  by
relying on Articles 309, 14, 16 of the Constitution of India. Relying upon
Umadevi & Ors. (supra),  the  High  Court  has  further  referred  to  the
judgment in the State of Karnataka & Ors. v. M.L. Kesari & Ors.[3]   which
is considered by this Court and this Court has clearly held that the  case
of Umadevi & Ors. (supra) cast a duty upon the State  Government  to  take
steps  to  regularize   the  services  of  those   irregularly   appointed
appointees, who had served for more than 10 years without the  benefit  or
protection of any interim order. Further in the said case, this Court  has
declared that it has been clearly ordered that one time settlement/measure
should be taken within six months i.e. from 10.04.2006. With reference  to
the aforesaid decision the learned senior counsel appearing on  behalf  of
the  respondent-employees  placed  reliance  upon  Article  142   of   the
Constitution in support of the submission that order of the Supreme  Court
be respected and implemented by its true meaning  and  spirit.  Therefore,
the Division Bench of the High Court accepted the same  and  came  to  the
conclusion that the claims of the respondent-employees for  regularization
in their posts are fit cases and they became unfortunate only  because  of
the creation of the State of Jharkhand over which  the  employees  had  no
control and could not have prevented creation of the  State  of  Jharkhand
and because of that reason only, one State cannot take a  different  stand
with respect to  the  employees  appointed  by  same  process.  The  State
Government cannot throw the employees jobless  after  30  years  of  their
continuous service in public employment guaranteed under Article 16 of the
Constitution, which would result in great injustice since their source  of
income will be taken away and thereby the  employees  and  their  families
will suffer due to  the  arbitrary  action  of  the  State  Government  of
Jharkhand which deprived a person of life  and  liberty  guaranteed  under
Articles 19 and 21 of the Constitution of India.

9.    The said legal contention urged on behalf of the  respondent-employees
has been vehemently opposed by the learned  Advocate  General  appearing  on
behalf  of  the  appellant-State  before  the  High  Court  who  sought   to
distinguish the  ratio  laid  down  in  the  aforesaid  case  to  the  facts
situation in the present  case  and  he  further  contended  that  the  said
decision has no application  to  the  cases  on  hand  which  contention  is
rejected by the Division Bench of the High Court.

10.   It is contended by the learned Advocate General that  jurisdiction  of
the High Court in the Letters Patent Appeal is limited to the extent of  the
scope  of writ petitions. Therefore, the same  cannot  be  enlarged  by  the
Division Bench of the High Court. It is further submitted by  him  that  the
respondent-employees  in  the   writ   petitions   have   not   prayed   for
regularization of their services, and therefore, they are  not  entitled  to
any relief in the Letters Patent Appeals.

11.   With reference  to  the  aforesaid  rival  contentions,  the  Division
Bench, by recording its finding at paras 21,  22  and  31  of  the  impugned
judgment, has accepted the case  of  the  respondent-employees  and  allowed
their letters patent appeals by setting aside the judgment and  order  dated
25.7.2011 of the learned single Judge.

12.   During pendency of the Letters Patent Appeals,  the  State  Government
rejected  their  representations  and  terminated  the   services   of   the
respondent-employees  vide  separate  but  similar  orders  dated  24.8.2011
against each one of  them.  Therefore,  they  have  submitted  interlocutory
application in the letters patent appeals before the Division Bench  of  the
High Court HHigHquestioning the propriety and legality of  their  orders  of
termination passed by the State Government. In the  Letters  Patent  Appeals
on 13.9.2011, an interim order was passed directing the State Government  of
Jharkhand to maintain status quo that is, to allow the  respondent-employees
to work in the posts  by  it.  The  court  also  set  aside  the  orders  of
termination by allowing the interlocutory application and also  quashed  the
show cause notices  and  further  held  that  the  respondent-employees  are
entitled to the consequential benefits.

13. The correctness  of  the  judgment  and  orders  is  challenged  by  the
appellants in these Civil Appeals by framing various questions  of  law  and
urging grounds in support of the same and praying to  set  aside  the  same.
The learned senior  counsel,  Mr.  P.P.  Rao  appearing  on  behalf  of  the
appellants submitted that the  order  of  termination  of  services  of  the
respondent-employees - ad hoc Assistant Engineers in the  instant  case,  is
the necessary consequence of implementation of the judgment and order  dated
8.4.1996 of this Court in C.A. No. 7516-20 of 1996 – Bihar State  Unemployed
Civil Engineers Association & Ors. v. State of Bihar & Ors. Etc.[4]  as  the
respondents have failed to get selected by BPSC.  Therefore,  they  have  no
legal right to challenge implementation of the said judgment dated  8.4.1996
as modified  by  subsequent  order  dated  23.10.1996  in  IA  No.  327/1996
permitting the  State  Government  to  relax  the  age  of  the  respondent-
employees. In support of the first submission, he contends that the  cut-off
date for consideration of case of ad-hoc employees who have  worked  for  10
years or more in the duly sanctioned posts, but under the  cover  of  orders
of the court, is not covered by the case of Uma Devi &  Ors.  (supra)  which
was decided on 10.4.2006 and the time granted to the  State  Government  for
setting in motion the process of regularisation   of  ad  hoc  employees  is
“within six months from the date” i.e. till 9.10.2006.

       It is further contended by the learned senior counsel  on  behalf  of
the appellants Mr. P.P. Rao that regularisation were  allowed  by  the  High
Court in those cases where appointments could not  have  been  made  without
recommendation of the BPSC and in view of the Articles 309  and  16  of  the
Constitution of India, no appointment could have  been  made  by  the  State
Government to any post much less the respondent-employees  in  violation  of
the  Recruitment  Rules.  Therefore,  the  illegal   appointments   of   the
respondent-employees cannot be regularized by the State Government  and  the
High Court can not give direction in this regard.

14. In view of the said decisions, according to the learned senior  counsel,
two questions would arise for consideration of this Court :-

           i)  Whether  the  respondent-employees  worked  till   10.4.2006
              without any interim order of any court?

          ii) Were they appointed in duly sanctioned posts?

However, the Division Bench of the High Court instead  of  addressing  these
two questions, posed the question as to whether ad hoc  employees  who  have
served for more than 10 years stand disqualified from regularisation on  the
ground that they did not participate in any other  appointment  process.  It
is the contention of the learned senior counsel for the appellants that  the
repeated finding of the High Court that the  respondent-Assistant  Engineers
were continuing in service uninterruptedly with the employer for  more  than
10 years, is factually incorrect statement of fact. Therefore,  the  finding
recorded in the impugned judgment by the Division Bench of  the  High  Court
at paragraphs 23, 25 and 26 is erroneous and the same cannot be  allowed  to
sustain by this Court for the reason that they continued  in  their  service
at least following six interim orders passed by the High Court all of  which
 were prior to 10.4.2006, the cut-off date mentioned  in  Uma  Devi  (supra)
for considering the question of regularisation  of  ad  hoc  employees   and
therefore the said decision does not apply to the present  cases.  According
to him, the dates on which the  interim  orders  passed  in  different  writ
petitions are mentioned hereunder :-

|S. No.  |Date of Order |Case No.         |Cause Title         |Vol./Pages  |
|1.      |15.12.1996    |CWJC No. 9420 of |Paras Kumar v. State|Vol. II pp. |
|        |              |1996             |of Bihar            |20-21       |
|2.      |20.6.1997     |CWJC No. 11761 of|Sardar Pradeep Singh|Vol.II p.22 |
|        |              |1996             |v. State of Bihar   |            |
|3.      |4.4.2002      |CWJC No.2606 of  |Jawahar Prasad      |Vol.1 pp 84 |
|        |              |2002             |Bhagat v. State of  |and 86      |
|        |              |                 |Bihar               |            |
|4.      |4.4.2002      |CWJC No.4327 of  |Akhilesh Prasad v.  |            |
|        |              |2002             |State of Bihar      |            |
|5.      |4.4.2002      |CWJC No.4365 of  |Vijay Kumar Sharma  |            |
|        |              |2002             |v. State of Bihar   |            |
|6.      |8.1.2003      |CWJC No.2087 of  |                    |Vol.I p.147 |
|        |              |2010 as noticed  |                    |at          |
|        |              |in the present   |                    |pp.163-164  |
|        |              |case i.e. W.P No.|                    |            |
|        |              |2087 of 2010     |                    |            |


15.   In support of second legal submission formulated  above,  the  learned
senior counsel has submitted that neither the  judgment  in  Umadevi’s  case
(supra) nor in U.P. State Electricity  Board  v.  Pooran  Chandra  Pandey  &
Ors.[5] is applicable to the cases in hand  in  favour  of  the  respondent-
employees. It is further  submitted that the  Division  Bench  of  the  High
Court has erroneously applied to the cases of respondent-employees and   the
directions contained at para 53 of Umadevi’s  case   since  the  respondents
continued in service with the appellants at the instance of court’s  interim
orders  passed  in  writ  petitions  referred  to  supra  which   has   been
established by  the  appellants.  He  has  also  placed  reliance  upon  the
judgment of this Court in the case  of  Amrit  Lal  Berry  v.  Collector  of
Central Excise, New Delhi & Ors.[6] In support of his legal contention  that
respondent-employees continued in service  with  the  State  Governments  of
Bihar and Jharkhand,  the  learned  counsel  stated  that  similarly  placed
employees had approached the High Court seeking  certain  reliefs  and  they
had obtained interim orders.  Hence,  the  benefit  of  said  interim  order
passed by the High Courts of Patna and Jharkhand has been  extended  to  the
respondent-employees and  therefore  they  were  continued  in  services  by
applying the law laid down by this Court in the aforesaid  case.  Therefore,
the finding recorded by the  Division  Bench  accepting  the  submission  on
behalf of the respondent-employees in these  appeals  that  the  respondent-
employees continued in service uninterruptedly without the  interim  orders,
is  factually  not  correct.  Therefore,  the  learned  senior  counsel  for
appellants contends that the said finding is not  only  erroneous  but  also
suffers from error in law. Hence,  the  impugned  judgment  and  orders  are
liable to be set aside. He further  contends  that  in  view  of  the  above
contentions, the respondent-employees  are  not  entitled  for  the  reliefs
granted by the Division Bench of the High Court  in  the  impugned  judgment
and orders and therefore, he has  prayed  for  setting  aside  the  same  by
allowing these Civil Appeals.

16.   The aforesaid submissions  made  by  the  learned  senior  counsel  on
behalf of the appellants were rebutted by the learned  senior  counsel,  Mr.
J.P. Cama appearing on behalf of  the  respondent-employees  justifying  the
reasons recorded in the impugned judgment contending  that  the  respondent-
employees were appointed as Junior Engineers in the year 1981 in  the  Rural
Department of the  State  of  Bihar  and  in  the  year  1985  when  regular
appointments were to  be  made  to  the  Posts  of  Assistant  Engineers  in
pursuant to an advertisement made in the year 1985 itself,  the  respondents
applied for the same but did not succeed and therefore,  they  were  put  in
the waiting list. However, their services were  not  terminated  even  after
regular appointments were made to the posts in the year  1985  as  contended
by the appellants. Their services were  not  dispensed  with  because  their
work was good and they were appointed as Assistant  Engineers  by  order  of
the Bihar State Government dated 27.6.1987 and thereafter they continued  in
service without break in their service till the orders of termination  dated
24.8.2011 passed against them. It  is  further  contended  that  even  after
bifurcation of the appellant-State of  Jharkhand  from  State  of  Bihar  on
15.11.2002, the respondent-employees continued  in  employment  without  any
break. It  is  contended  that  the  existence  of  vacancies  of  Assistant
Engineers in the Rural Development Department  in  the  erstwhile  State  of
Bihar is not in dispute. The existence of vacancies in  the  said  posts  is
not denied by the appellant-State as there were 207 vacancies  as  on  2010.
Therefore, they continued in service though they were appointed by order  of
the State Government on 27.6.1987 on ad hoc  basis  but  continued  as  such
till the termination orders were passed against them. They were  being  paid
regular salary and  other  service  benefits  were  given  to  them  thereby
treating  them  as  permanent  employees  by  the  appellants.  He   further
contended that the Division Bench in its judgment has held  that  the  State
Public  Service  Commission  merely   examined   suitability   of   eligible
candidates for  the  posts  and  recommended  the  names  of  such  suitable
candidates for appointment to the posts. In the case on hand, it is not  the
position of the State Government that these employees holding the  posts  of
Assistant Engineers and rendering their services are  not  suitable  persons
to hold the posts. It is further contended that interim stay was granted  by
the High Court in the cases of the respondent-employees for the  first  time
on 9.9.2010. Therefore, it is not correct to state that  they  continued  in
the service with the intervention of interim orders of the  High  Courts  as
urged by  the  appellants’  senior  counsel  and  therefore,  they  are  not
entitled to the benefit of the decision of Umadevi’s case (supra).  Further,
the learned senior counsel contends the core questions involved in the  case
in hand are:-

       (1) Whether the services of  the  respondent-employees  should  have
       been considered for regularization   by the  State  Government  even
       though in the first instance they did not obtain  selection  through
       the Public Service Commission and on the 2nd occasion they  did  not
       participate in the selection process?

       (2) Whether, they were entitled to claim regularization  based  only
       on the fact they had worked  for  more  than  10  years  of  service
       continuously with the appellants?

He further submits that the High Court,  considering  the  law  declared  in
Umadevi’s case (supra) at para 53 and also keeping in view the  justice  and
good conscious, has granted the  relief  to  the  respondent-employees.  The
same cannot be termed either as erroneous or error in law.  Further,  it  is
contended that the Division  Bench  of  the  High  Court  of  Jharkhand  has
rightly rejected the contentions  urged  by  the  Advocate  General  to  the
effect that the persons who are appointed on ad hoc/temporary basis  had  an
opportunity  to get  another  appointment  in  regular  selection  and  they
failed to participate in the selection process,  therefore  the  same  would
not be a ground  for the appellants to refuse regularization of  service  of
the  respondent-employees,  even  after   they   have   not   availed   such
opportunity. The employer State Government did not choose to  dispense  with
their services though there is no restraint order from  the  court.  In  the
cases in hand, both the Government of State  of  Bihar  and  Jharkhand  have
continued the service of all  the  respondent-employees  for   10   or  more
years even after they failed to get appointed to  the  posts  on  a  regular
basis. Therefore, the principle laid down in Umadevi’s  case  (supra)  would
squarely apply in the case in hand in support of  the  respondent-employees.
The submission  made  by  the  learned  senior  counsel  on  behalf  of  the
appellants that the regularization  of  the  respondent-employees  in  their
service would deprive the other eligible persons from employment  is  wholly
untenable in law as the same would constitute not  only  discrimination  but
also deprivation of their livelihood, which is not  legally  permissible  in
law. The question is whether the appellants can terminate  the  services  of
the present employees who have served for more than 10 to 30 years,  thereby
rendering injustice to the eligible people. Therefore, in any event,  it  is
doubtful whether the employer, more particularly the State can raise such  a
plea to deny employment  to  the  employees  and  whether  the  law  can  be
interpreted in  a manner so as to give all benefits to the  wrongdoers.  The
appointments were given  to  a  large  number  of  engineers  by  the  State
Government of Bihar consciously and there is no allegation of unfairness  in
their appointment which can be said to be tainted or  as  a  result  of  any
nepotism. The error of the State Government of  either  Bihar  or  Jharkhand
would not justify to throw away  the  respondent-employees  by  making  them
unemployed who have been well-settled in their life  since  the  same  would
amount  to  a  clear  case  of  discrimination  and  deprivation  of   their
livelihood. Further, the Division Bench of High Court has rightly held  that
there is duty cast upon the State Government of Jharkhand  to  consider  the
claim of the respondent-employees  as  one-time  regularization  of  ad-hoc/
temporary employees in their posts. Further, it is contended by the  learned
senior counsel that similarly situated employees are continuing  in  service
in the State Government of  Bihar.  Therefore,  the  relief  sought  by  the
respondent-employees’ continuation in service, clearly  takes  care  of  all
the hurdles coming in their way. The Division Bench of the High Court is  of
the  considered  opinion  that  the  employees  services  should  have  been
regularized, but on the other hand, the appellant-State  Government,  during
pendency of the Letters Patent Appeals, has terminated their  services.  The
same cannot be an hurdle for it and it would not come  in  the  way  of  the
appellant-State Government for grant of relief  in favour of the respondent-
employees. Lastly, it  is  submitted  that  there  is  material  distinction
between filling up a vacant post by direct recruitment on the one  hand  and
“regularization” of existing  employees  in  their  posts  by  applying  the
decision of Umadevi’s case (supra) who have served for more  than  10  years
in the posts with the appellants  without the interventions of  any  interim
orders granted by any court. Further, he  urges  that  the  principle  which
flows from the mandate of Articles 14 and 21 of the  Constitution  of  India
is supported at paragraph 53  of  Umadevi’s  case  (supra).  It  is  further
contended that it is not a case of “appointment” as  mentioned  hereinbefore
but it is a case of “regularization”. The only qualification for the  latter
is continuous service of the employees without  intervention  of  the  court
order for a period of 10 years. Once this takes place, the  citizen’s  right
to livelihood as guaranteed under Article 21 as also his/her right  to  fair
treatment and against arbitrary action of the  appellants  is  protected  by
Article 14 of the Constitution of India. That is the ratio of  the  impugned
judgment of Division Bench  of  the  High  Court.  The  conclusion  and  the
finding and reasons recorded by the Division Bench  of  the  High  Court  on
this aspect of the matter in the impugned judgment is  squarely  covered  by
the Constitution Bench decision of this Court in the case of Olga  Tellis  &
Ors. v. Bombay Municipal Corporation & Ors.[7]  The relevant para’s  of  the
same will be extracted in the reasoning portion of the judgment.  Therefore,
the learned senior counsel has prayed for dismissal of the appeals.

17.    All the other learned counsel appearing for the  respondent-employees
in the connected Civil Appeals have  adopted  the  submission  made  by  the
learned senior counsel on behalf of the respondent-employees  in  the  Civil
Appeal @ SLP (C) No. 266 of 2012. In view  of  the  above  submissions,  the
learned counsel  for  the  respondent-employees  requested  this  Court  for
dismissal of the Civil Appeals.

18.   With reference to the above said rival  legal  contentions,  urged  on
behalf of the parties the following points would arise for consideration  in
these Civil Appeals :-



                    1) Whether the impugned judgment is correct  in  holding
                       that the respondents-employees are entitled  for  the
                       benefit of Umadevi’s case (supra)  as  they  rendered
                       more than 10 years of service in the State Government
                       of Jharkhand without intervention of the court?

                    2) Whether the impugned judgment passed by the  Division
                       Bench  of  High  Court  is  vitiated  on  account  of
                       erroneous finding or suffers from error in law?

                    3) Whether the impugned judgment  warrants  interference
                       by this Court in exercise of power under Article  136
                       of the Constitution of India on the grounds urged  in
                       these appeals?

                    4) What orders?




Answer to Point Nos. 1 & 2:

     These points are answered together as they are inter related with  each
other.

19.   The learned senior counsel  appearing  on  behalf  of  the  appellants
argued that there have been repeated findings of the  High  Court  that  the
respondents have been continued in service voluntarily by the  employer  for
more than 10 years. Correctness of the  same  is  disputed  by  the  learned
senior counsel for the appellants by placing  reliance  upon  at  least  six
interim orders passed by the High Court all of  which  are  prior  to  10-4-
2006, the dates of these Orders are as follows:

        i) Order dated 15-12-1996 in CWJC NO. 9420 of 1996- Param Kumar  v.
           State of Bihar.


       ii) Order dated 20-6-1997 in CWJC No. 11761 of 1996- Sardar  Pradeep
           Singh v. State of Bihar.


      iii) Order dated 4-4-2002 in CWJC No. 2606 of  2002-  Jawahar  Prasad
           Bhagat v. State of Bihar.

       iv) Order dated 4-4-2002 in CWJC No. 4327 of 2002-  Akhilesh  Prasad
           v. State of Bihar.

        v) Order dated 4-4-2002 in CWJC  No.  4365  of  2002-  Vijay  Kumar
           Sharma v. State of Bihar.


       vi) Order dated 8-1-2003 in CWJC No. 2087 of 2010.

   Further, two stay  orders  have  also  been  passed  by  the  High  Court
   subsequent to 10-4-2006, which are        (1) Order dated 9-9-2007 of the
   learned single Judge and (2) Order dated 13-9-2011.

   Further, in the case of  Uma  Devi  (supra)  it  has  been  held  by  the
   Constitution Bench of this Court that:

          “53. 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.  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.”

                                               (Emphasis laid by this Court)



The learned senior counsel for the  appellants  placing  reliance  upon  the
aforesaid paragraph of the decision submits  that  the  respondents  do  not
fulfil the requirement of 10 years of uninterrupted service  which  is  sine
qua non for regularization of the services of the employees in their  posts.
Hence, the legal principle laid down by this Court  in  the  aforesaid  case
cannot apply in  the  present  case,  therefore,  the  respondents  are  not
entitled for regularization.

20.   We have heard the factual and legal contentions urged by  the  learned
senior counsel for both the parties and carefully examined the findings  and
reasons recorded in the impugned judgment with  reference  to  the  evidence
produced on behalf of the  respondent-employees.   The  evidence  on  record
produced by the respondent-employees would clearly  go  to  show  that  they
have been rendering services in the posts as  ad-hoc  Engineers  since  1987
and have been discharging their services as  permanent  employees  with  the
appellants. Additional 200  posts  were  created  thereafter  by  the  State
Government of Bihar. However, the respondents continued  in  their  services
as ad hoc employees without any disciplinary proceedings against them  which
prove that they have been discharging services to their employers  to  their
satisfaction.

      The learned senior counsel on behalf of the appellants have failed  to
show as to how the interim orders upon which he placed strong  reliance  are
extended  to  the  respondents  which  is  not  forthcoming  except  placing
reliance upon the decision of this Court in the  case  of  Amrit  Lal  Berry
(supra),  without  producing  any  record  on  behalf  of  both  the   State
Governments of Bihar and Jharkhand to substantiate the contention  that  the
interim orders obtained by  the  similarly  placed  employees  in  the  writ
petitions referred to supra were extended  to  the  respondent-employees  to
maintain parity though they have not obtained such interim orders  from  the
High Court.  Therefore, the learned senior counsel has failed to prove  that
the respondents have failed to render continuous services to the  appellants
at least for ten years without intervention of  orders  of  the  court,  the
findings of fact recorded by the Division Bench of the High Court  is  based
on record, hence the same cannot be termed as erroneous in law. In  view  of
the categorical finding of fact on the relevant contentious issue  that  the
respondent-employees have continued in their service for more than 10  years
continuously therefore, the legal principle laid down by this Court  in  Uma
Devi’s case (supra) at paragraph 53 squarely applies to the  present  cases.
The Division Bench of the High Court has rightly held that  the  respondent-
employees are entitled for the relief, the same cannot  be  interfered  with
by this Court.

21.   In fact, the Division Bench of the  High  Court  by  regularizing  the
respondent-employees vide its impugned order has upheld  the  constitutional
principle laid down by this Court in the case of Olga  Tellis  (supra),  the
relevant para of which reads as under :-

          “32. As we have stated while summing up the petitioners’ case, the
          main plank of their argument is that the right to  life  which  is
          guaranteed by Article 21 includes  the  right  to  livelihood  and
          since, they will be deprived  of  their  livelihood  if  they  are
          evicted from their slum and pavement dwellings, their eviction  is
          tantamount  to  deprivation   of   their   life   and   is   hence
          unconstitutional. For purposes of argument,  we  will  assume  the
          factual correctness of the premise that  if  the  petitioners  are
          evicted from their dwellings,  they  will  be  deprived  of  their
          livelihood. Upon that assumption, the question which  we  have  to
          consider is whether the  right  to  life  includes  the  right  to
          livelihood. We see only one answer to that question, namely,  that
          it does. The sweep of the right to life conferred by Article 21 is
          wide and far-reaching. It does not mean merely that life cannot be
          extinguished or taken away as, for example, by the imposition  and
          execution of the death sentence,  except  according  to  procedure
          established by law. That is but one aspect of the right  to  life.
          An  equally  important  facet  of  that  right  is  the  right  to
          livelihood because, no  person  can  live  without  the  means  of
          living, that  is,  the  means  of  livelihood.  If  the  right  to
          livelihood is not treated as a part of the constitutional right to
          life, the easiest way of depriving a person of his right  to  life
          would be to deprive him of his means of livelihood to the point of
          abrogation. Such deprivation would not only denude the life of its
          effective content  and  meaningfulness  but  it  would  make  life
          impossible to live. And yet, such deprivation would not have to be
          in accordance with the procedure established by law, if the  right
          to livelihood is not regarded as a part  of  the  right  to  life.
          That, which alone makes it possible  to  live,  leave  aside  what
          makes life livable, must be deemed to be an integral component  of
          the right to life. Deprive a person of his right to livelihood and
          you shall have deprived him of his life. Indeed, that explains the
          massive migration of the rural  population  to  big  cities.  They
          migrate because they have no means of livelihood in the  villages.
          The motive force which propels their desertion  of  their  hearths
          and homes in the village is the struggle for  survival,  that  is,
          the struggle for life. So unimpeachable is  the  evidence  of  the
          nexus between life and the means of livelihood. They have  to  eat
          to live: only a handful can afford the luxury of  living  to  eat.
          That they can do, namely, eat, only if  they  have  the  means  of
          livelihood. That is the context in which it was said  by  Douglas,
          J. in Baksey that the right to work is the most  precious  liberty
          that man possesses. It is the most precious  liberty  because,  it
          sustains and enables a man to live and the  right  to  life  is  a
          precious freedom. “Life”, as observed by  Field,  J.  in  Munn  v.
          Illinois means something more than mere animal existence  and  the
          inhibition against the deprivation of life extends  to  all  those
          limits and faculties by which life is  enjoyed.  This  observation
          was quoted with approval by this Court in Kharak Singh v. State of
          U.P.”
                                               (Emphasis laid by this Court)



      In view of the foregoing  reasons  which  we  have  assigned  in  this
judgment and in upholding the findings and reasons recorded by the  Division
Bench of the High Court in the impugned judgment, it  cannot  be  said  that
the findings and reasons recorded by the  High  Court  in  arriving  at  the
conclusions on the contentious issues that arose for its  consideration  can
be termed either as erroneous or error in law.

22.   In view of the foregoing reasons, we are  inclined  to  conclude  that
the High Court was legally correct in extending the benefits of  Uma  Devi’s
case to the respondent-employees. Therefore, we answer point nos.  1  and  2
in favour of the respondent-employees.



Answer to Point No. 3

23. Though, point Nos.  1  and  2  have  been  answered  in  favour  of  the
respondents, the question raised regarding the requirement  of  interference
by this Court under Article  136  of  the  Constitution  of  India  requires
separate and independent  consideration  by  us.  In  the  case  of  Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai  &  Anr.[8], this  Court
observed as under:

              “33.The discretionary power of the Supreme Court  is  plenary
              in the sense that there are no words in  Article  136  itself
              qualifying  that  power.   The   very   conferment   of   the
              discretionary  power  defies  any   attempt   at   exhaustive
              definition of such  power.  The  power  is  permitted  to  be
              invoked not in a  routine  fashion but  in  very  exceptional
              circumstances as when a question of  law  of  general  public
              importance arises or a decision sought to be impugned  before
              the Supreme Court shocks the conscience. This overriding  and
              exceptional power has been vested in the Supreme Court to  be
              exercised sparingly and only in furtherance of the  cause  of
              justice in the Supreme Court in exceptional cases  only  when
              special circumstances are shown to exist.”

                                               (Emphasis laid by this Court)




This position was reaffirmed and further elucidated in the case of Mathai  @
Joby v. George & Anr.[9], wherein the two judge Bench of this Court held  as
follows:

           “21. Mr. Venugopal has suggested  the  following  categories  of
           cases which alone should be entertained under Article 136 of the
           Constitution.
           (i) All matters involving substantial questions of law  relating
           to the interpretation of the Constitution of India;

           (ii) All matters of National or public importance;

           (iii) Validity of laws, Central and State;

           (iv) After Kesavananda Bharati, (1973) 4 SCC 217,  the  judicial
           review of Constitutional Amendments; and

           (v) To settle differences of opinion of important issues of  law
           between High Courts.


           22. We are of the opinion  that  two  additional  categories  of
           cases can be added to the above list, namely (i) where the Court
           is  satisfied  that  there  has  been  a grave  miscarriage   of
           justice and (ii) where a fundamental right of a person has prima
           facie been violated. However, it is for the  Constitution  Bench
           to which we are referring this matter to  decide  what  are  the
           kinds of cases in which discretion under  Article 136 should  be
           exercised.


           23. In our opinion, the time has now come when an  authoritative
           decision by a Constitution Bench  should  lay  down  some  broad
           guidelines as to when the discretion  under  Article 136 of  the
           Constitution should be exercised, i.e., in what kind of cases  a
           petition under Article 136 should  be  entertained.  If  special
           leave petitions are entertained against all and sundry kinds  of
           orders passed by any court or tribunal, then  this  Court  after
           some time will collapse under its own burden.


           24. It may be mentioned that in Pritam Singh v. The  State   AIR
           1950 S.C. 169 a Constitution Bench of this Court observed  (vide
           para 9) that "a more or less uniform standard should be  adopted
           in  granting  Special  Leave".   Unfortunately,   despite   this
           observation no such uniform standard has been laid down by  this
           Court, with the result that grant of Special Leave  has  become,
           as Mr. Setalvad pointed out in his book ` My  Life',  a  gamble.
           This is not a desirable state of affairs as there should be some
           uniformity in the approach of  the  different  benches  of  this
           Court. Though Article 136 no doubt confers a discretion  on  the
           Court, judicial discretion, as Lord Mansfield stated in  classic
           terms in the case of  John  Wilkes, (1770)  4  Burr  2528 "means
           sound discretion guided by law. It must be governed by rule, not
           humour: it must not be arbitrary, vague and fanciful"



In view of the legal principles laid down in  the  aforesaid  decisions,  we
are of the opinion that the decision of the High  Court  does  not  fall  in
either of the categories mentioned above which calls for  our  interference.
The Division Bench of the High Court having  regard  to  the  glaring  facts
that the respondent-employees have continuously worked in  their  posts  for
more than 29 years discharging permanent nature  of  duties  and  they  have
been paid their salaries and  other  service  benefits  out  of  the  budget
allocation,  no  objection  was  raised  by  the  CAG  in  this  regard  and
therefore, it is not open for the appellants to contend that  the  law  laid
down in  Uma Devi’s case (supra)  has no application to the fact  situation.
The action of the appellants in terminating the services of the  respondent-
employees who  have  rendered  continuous  service  in  their  posts  during
pendency of the Letters Patent Appeals was quashed by the High  Court  after
it has felt that the action is not only arbitrary but shocks  its  conscious
and therefore it has rightly exercised its discretionary power  and  granted
the  reliefs  to  the  respondent-employees  which  do  not  call  for   our
interference. Therefore, we are of the opinion  that  this  Court  will  not
interfere with the opinion of the High Court and on the  contrary,  we  will
uphold the decision of the High Court both on factual and legal  aspects  as
the same is legally correct and it  has  done  justice  to  the  respondent-
employees.

Answer to Point No. 4

24. As already mentioned above, we are of the opinion that  the  High  Court
was correct in reinstating  the  respondent-employees  into  their  services
under the appellants by relying on the legal principles laid  down  by  this
Court in the Constitution Bench decision in  Uma  Devi’s  case  (supra).  We
accordingly direct the appellants to implement the orders  of  the  Division
Bench of  the  High  Court  thereby  continuing  the  respondents  in  their
services and extend all benefits as have been granted by it in the  impugned
judgment.

25. The Civil Appeals are dismissed accordingly.





                                ………………………………………………………………………J.
                                [GYAN SUDHA MISRA]



                                ………………………………………………………………………J.
                                [V. GOPALA GOWDA]


New Delhi,
April 23, 2014.

-----------------------
[1]    2002 (1) J.C.R. 106

[2]    (2006) 4 SCC 1
[3]    (2010) 9 SCC 247
[4]    (1996) 8 SCC 615
[5]    (2007) 11 SCC 92

[6]    (1975) 4 SCC 714

[7]    (1985) 3 SCC 545

[8]    (2004) 3 SCC 214

[9]    (2010)  4 SCC 358



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