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Sunday, March 15, 2015

the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the services of the appellant retrospectively w.e.f. 03.01.2002 (the date on which he rejoined the post as per direction of Registrar).


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  2835   OF 2015
                 (Arising out of SLP (Civil) NO. 20169/2013)

AMARKANT RAI                                 ... APPELLANT (S)

STATE OF BIHAR & ORS.                  ....RESPONDENT (S)

                               J U D G M E N T


Leave granted.

2.          This appeal by special leave  arises  out  of  the  order  dated
20.02.2013 passed by the High Court of Judicature at Patna  in  LPA  No.1312
of 2012 which was dismissed in limine by the High Court, whereby  the  order
of the learned Single Judge was confirmed observing that the appointment  of
the appellant as daily wages was not by the competent authority and that  he
is not entitled for regularization.
3.          Brief facts which led to  the  filing  of  this  appeal  are  as
follows:-  The appellant was appointed  temporarily  in  Class  IV  post  of
Night Guard, on daily wages vide Office Order  dated  04.06.1983  issued  by
Principal,  Ramashray  Baleshwar  College  (for  short  "College"),  Dalsang
Sarai,  affiliated   to   Lalit   Narayan   Mithila   University(for   short
"University"), Bihar. The University vide letter  dated  04.07.1985  took  a
decision to regularize the persons who worked for more than  240  days,  and
as per the letter dated 30.03.1987, as per which  employees  who  have  been
working for a period  for  more  than  one  year  need  to  be  regularized.
Thereafter, the  Additional  Commissioner-cum-  Secretary,  Bihar  passed  a
settlement dated 11.07.1989 and forwarded a copy of the  same  to  the  Vice
Chancellors of the Universities, wherein it was stated that the services  of
employees working in educational institutions as per the staff pattern,  can
be regularized, further imposing a condition that new  appointments  against
the vacancies present and in future should not at all be  done.   Principal,
Ramashray Baleshwar College requested the Registrar  of  the  University  to
regularize the services of appellant vide letter dated 07.10.1993;  but  the
Registrar passed an Order of termination dated 01.03.2001.  A Writ  Petition
No.9809/1998 was preferred by few similarly placed daily wagers in the  High
Court.  As per the directions issued by the High  Court,  the  Registrar  of
the University vide letter dated 22.12.2001 allowed all the daily wagers  to
resume their jobs from 03.01.2002 and the appellant also joined his duties.
4.           The  Principal  of  the  College  again  vide   letters   dated
08.01.2002 and  12.07.2004  recommended  for  absorption  of  the  appellant
against the two vacant posts.  In pursuance of the High Court Order in  CWJC
No. 5774/2000, he was given opportunity to appear before the  Three  Members
Committee constituted by the Vice-Chancellor for consideration of his  claim
for regularization of services, but the same was rejected as it was  not  in
consonance with the Recruitment Rules laid down by  the  Constitution  Bench
judgment in Secretary, State of Karnataka & Ors.  v.  Umadevi  (3)  &  Ors.,
(2006) 4 SCC 1 and the same was informed to the appellant by  the  Registrar
vide letter dated 25.11.2007.  Appellant approached the High  Court  by  way
of Writ Petition (civil) No. 545/2009 and the same was dismissed vide  Order
dated 26.8.2011 observing that it is a clear case of  violation  of  Section
10(6) and Section 35 of the Bihar State Universities Act, 1976 and there  is
no  illegality  in  the  order  passed  by  the  Three  Members   Committee.
Aggrieved by it,  the  appellant  preferred  LPA  No.  1312/2012  which  was
dismissed in limine confirming the order dated 26.08.2011.  In this  appeal,
the appellant seeks to assail the above order.
5.          Learned counsel for the appellant contended that  the  appellant
served on the post for 29 years on daily wages and even as per the  decision
in para 53 in Umadevi's case (supra),  irregular  appointment  of  employees
who have worked for more than 10 years should be considered on  merits.   It
was contended that the appellant has been working in a sanctioned  post  and
his appointment was not illegal but in the facts and  circumstances  of  the
case, his appointment could only be irregular appointment entitling him  for
regularization. It was submitted that Three Members  Committee  as  well  as
the High Court did not keep in view that  the  case  of  the  appellant  was
recommended for regularization.
6.           Per  contra,  learned  counsel  for  respondents  No.  1  to  3
contended that Principal of  the  College  has  no  authority  to  make  any
appointment on any post on daily wages as per the legislative  scheme  under
Section 10(6) of Bihar State Universities Act, 1976.  It was submitted  that
Three Members Committee scrutinized the documents available  on  record  and
rejected claim of the  appellant  for  regularization  and  the  High  Court
rightly dismissed the claim of the appellant for regularization.
7.          Reiterating the submission, learned counsel for respondent  Nos.
4 to 6 submitted that a principal of the college  was  not  empowered  under
the Universities Laws to make appointment to Class III or Class IV and  that
the appellant was not appointed against any sanctioned  post  and  therefore
he cannot seek for regularization.
8.          We have carefully considered  the  rival  contentions  and  also
perused the impugned order and material on record.
9.          Insofar as contention of the respondent that the appointment  of
the appellant was made by the principal who is not a competent authority  to
make such appointment and is in violation of the  Bihar  State  Universities
Act and hence the appointment is illegal appointment,  it  is  pertinent  to
note that the appointment of the appellant as Night Guard was  done  out  of
necessity and concern for the college.  As noticed  earlier,  the  Principal
of the college vide letters dated  11.03.1988,  07.10.1993,  08.01.2002  and
12.07.2004 recommended the case of the appellant for regularization  on  the
post of Night Guard and the University was thus  well  acquainted  with  the
appointment of the appellant by the then  principal  even  though  Principal
was not a competent  authority  to  make  such  appointments  and  thus  the
appointment of the appellant and other employees was brought to  the  notice
of the University in 1988.  In spite of that, the  process  for  termination
was initiated only in the year 2001 and the appellant was reinstated  w.e.f.
3.01.2002 and was removed from  services  finally  in  the  year  2007.   As
rightly  contended  by  the  learned  counsel  for  the  appellant,  for   a
considerable time, University never raised the issue  that  the  appointment
of the appellant by the Principal is ultra  vires  the  rules  of  BSU  Act.
Having regard to the various communications between the  Principal  and  the
University and also the education authorities and the facts of the case,  in
our view, the appointment of the appellant cannot be termed to  be  illegal,
but it can only be termed as irregular.
10.   Human Resources Development, Department of Bihar Government, vide  its
letter dated 11.07.1989 intimated to the Registrar of all the Colleges  that
as per the settlement dated 26.04.1989 held between Bihar  State  University
and College Employees Federation and the Government it was agreed  that  the
services of the employees working  in  the  education  institutions  on  the
basis of  prescribed  staffing  pattern  are  to  be  regularized.   As  per
sanctioned staffing pattern, in Ramashray Baleshwar College, there were  two
vacant posts of Class IV employees and the appellant was  appointed  against
the same. Further, Resolution No. 989 dated 10.05.1991 issued by  the  Human
Resources  Development  Department  provides  that  employees  working  upto
10.5.1986 shall  be  adjusted  against  the  vacancies  arising  in  future.
Although, the appellant was appointed in 1983 temporarily on the  post  that
was not sanctioned by the State Government, as per the  above  communication
of Human Resources Development Department, it  is  evident  that  the  State
Government issued orders to regularise the services  of  the  employees  who
worked upto 10.5.1986.  In our considered view,  the  High  Court  ought  to
have examined the case  of  the  appellant  in  the  light  of  the  various
communications issued by the State  Government  and  in  the  light  of  the
circular, the appellant is eligible for consideration for regularization.
11.         As noticed earlier, the case of the appellant  was  referred  to
Three Members Committee and Three Members Committee rejected  the  claim  of
the appellant declaring that his appointment is not in consonance  with  the
ratio of the decision laid down by this Court  in  Umadevi's  case  (supra).
In Umadevi's case, even though this Court has  held  that  the  appointments
made against temporary or ad-hoc are not to be regularized, in  para  53  of
the judgment, it provided  that  irregular  appointment  of  duly  qualified
persons in duly sanctioned posts who have worked for 10 years  or  more  can
be considered  on  merits  and  steps  to  be  taken  one  time  measure  to
regularize them.  In para 53, the Court observed as under:-
"53. One aspect needs to be clarified. There may be  cases  where  irregular
appointments (not illegal appointments) as explained  in  S.V.  Narayanappa,
R.N. Nanjundappa and B.N. Nagarajan and referred to in  para  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 the courts or of tribunals.  The  question  of
regularisation 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
abovereferred 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 regularise  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  the  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 regularisation, if any already made, but not  sub
judice, need not be reopened based on this judgment, but there should be  no
further bypassing of the  constitutional  requirement  and  regularising  or
making permanent,  those  not  duly  appointed  as  per  the  constitutional

The objective behind the exception carved out in this case  was  prohibiting
regularization of such appointments, appointed  persons  whose  appointments
is irregular but  not  illegal,  ensure  security  of  employment  of  those
persons who served the State  Government  and  their  instrumentalities  for
more than ten years.
12.   Elaborating upon the principles laid down in  Umadevi's  case  (supra)
and explaining the difference between irregular and illegal appointments  in
State of Karnataka & Ors. v. M.L. Kesari & Ors.,  (2010)  9  SCC  247,  this
Court held as under:
"7. It is evident from the above that there is an exception to  the  general
principles against "regularisation" enunciated  in  Umadevi  (3)  ,  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."

13.   Applying the ratio of Umadevi's case, this  Court  in  Nihal  Singh  &
Ors. v. State of Punjab & Ors., (2013) 14 SCC 65 directed the absorption  of
the Special Police Officers in the services of the State of  Punjab  holding
as under:
"35. Therefore, it is clear that the existence of the need for  creation  of
the posts is a  relevant  factor  with  reference  to  which  the  executive
government  is  required  to  take  rational  decision  based  on   relevant
consideration. In our opinion, when the facts such as the ones obtaining  in
the instant case demonstrate that there is need for the creation  of  posts,
the failure of the executive  government  to  apply  its  mind  and  take  a
decision to create posts or stop extracting work from persons  such  as  the
appellants herein for decades together  itself  would  be  arbitrary  action
(inaction) on the part of the State.
36. The other factor which the State is  required  to  keep  in  mind  while
creating or abolishing posts is the financial implications involved in  such
a decision. The creation of posts  necessarily  means  additional  financial
burden on the exchequer of the State. Depending upon the priorities  of  the
State, the allocation of the finances is no  doubt  exclusively  within  the
domain of the legislature. However in  the  instant  case  creation  of  new
posts would not create any additional financial burden to the State  as  the
various banks at whose disposal the services of each of  the  appellants  is
made available have agreed to bear the burden. If absorbing  the  appellants
into the services of the State and providing benefits  on  a  par  with  the
police officers of similar rank employed by the  State  results  in  further
financial commitment it is always open for the State to demand the banks  to
meet such additional burden. Apparently no such demand has  ever  been  made
by the State. The result is-the various banks which avail  the  services  of
these appellants enjoy the supply of cheap labour over a period of  decades.
It is also pertinent to notice that these banks are public sector banks."

14.   In our view, the exception  carved  out  in  para  53  of  Umadevi  is
applicable to the facts of the present case.  There is  no  material  placed
on record by the  respondents  that  the  appellant  has  been  lacking  any
qualification or bear any blemish record during his employment for over  two
decades.  It is pertinent  to  note  that  services  of  similarly  situated
persons on daily wages for regularization viz.  one  Yatindra  Kumar  Mishra
who was appointed on daily wages  on  the  post  of  Clerk  was  regularized
w.e.f. 1987. The appellant although initially working  against  unsanctioned
post, the  appellant  was  working   continuously  since  03.1.2002  against
sanctioned post.  Since there is no material placed on record regarding  the
details whether any other night guard was appointed against  the  sanctioned
post, in the facts and circumstances of the case,  we are inclined to  award
monetary benefits be paid from 01.01.2010.
15.    Considering  the  facts  and  circumstances  of  the  case  that  the
appellant has served the University for more than 29 years on  the  post  of
Night Guard and that he has served  the  College  on  daily  wages,  in  the
interest  of  justice,  the  authorities  are  directed  to  regularize  the
services of the appellant retrospectively w.e.f.  03.01.2002  (the  date  on
which he rejoined the post as per direction of Registrar).
16.   The impugned order of the High Court in  LPA  No.1312  of  2012  dated
20.02.2013 is set aside and this appeal is  allowed.   The  authorities  are
directed  to  notionally  regularize   the   services   of   the   appellant
retrospectively w.e.f. 03.01.2002, or the date  on  which  the  post  became
vacant whichever is  later  and  without  monetary  benefit  for  the  above
period.  However, the appellant shall be entitled to monetary benefits  from
01.01.2010.  The period from 03.01.2002 shall be  taken  for  continuity  of
service and pensionary benefits.
17.   The appeal is allowed in terms of the above.   No order as to costs.

                                                  (V.GOPALA GOWDA)

New Delhi,
March 13, 2015

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