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Tuesday, July 7, 2015

Service :- The appellants were initially engaged on contractual basis and they were not appointed against any sanctioned post before they were substantially appointed on the said post on 6.08.2010. Even though advertisement dated 20.11.2002 indicated that there were vacancies, the policy of regularization of contractual employees was approved by the State Government only on 05.03.2008. The appellants were appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularization with retrospective effect from 20.11.2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. By policy of regularisation, it was intended to give the benefit only from the date of appointment. The Court cannot read anything into the policy decision which is plain and unambiguous. Having accepted the appointment orders dated 6.08.2010 and also joined the post, the appellants cannot turn round and claim regularisation with retrospective effect. 13. The judgment of the High Court quashing the appointment of the appellants vide appointment order dated 06.08.2010 is set aside. However the appellants’ plea for regularization with retrospective effect is declined.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 4916  OF 2015
               (Arising out of S.L.P. (Civil) No. 662 of 2014)


SURENDRA KUMAR & ORS.                  …APPELLANT (S)

                                   VERSUS

GREATER NOIDA INDUSTRIAL
DEVELOPMENT AUTHORITY & ORS.   …RESPONDENT (S)



                           J  U  D  G  M  E  N  T


R. BANUMATHI,  J.


Leave granted.

2.          This appeal arises out of a  judgment  passed  by  the  Division
Bench of the High Court of Judicature at Allahabad dated 29.10.2013 in  Writ
Petition No.65789 of 2011,  in and by which, the High  Court  held  that  on
the principles laid down in the case of  Secretary,  State  of  Karnataka  &
Ors. Vs. Uma Devi (3) & Ors., (2006)  4  SCC  1,  the  appointments  of  the
appellants  were  ex-facie  illegal  dehors  Articles  14  and  16  of   the
Constitution  of  India  and   directed   an   inquiry   regarding   initial
appointments.
3.          Brief facts giving rise to this appeal are that  the  appellants
were initially engaged on the post  of  Assistant  Manager  (Civil)  by  the
respondent  No.1–Greater   Noida   Industrial   Development   Authority   on
contractual basis for a period of 89 days. Admittedly, initial  appointments
of the appellants were not  made  against  any  sanctioned  posts.  However,
their engagement continued from time to time, and the appellants  have  been
continuously working on  the  said  post.   On  20.11.2002,  the  respondent
authorities published an  advertisement  for  engagement  to  the  posts  of
Assistant Manager (Civil).  The appellants and  similarly  situated  persons
who have been engaged on contractual basis filed a Writ Petition being  Writ
Petition No.54072 of 2002 seeking for  a  writ  of  mandamus  directing  the
respondent-authorities  to  regularise  their  services  on  the   post   of
Assistant Manager (Civil) and to quash  the  aforesaid  advertisement  dated
20.11.2002.   The  appellants  contended   that   as   they   were   working
continuously,  the  respondent  authorities  instead  of  issuing  a   fresh
advertisement should have regularised their services on the said  post.   By
the judgment dated 28.09.2005, the learned Single  Judge  allowed  the  Writ
Petition and quashed the advertisement dated  20.11.2002  and  directed  the
respondent-authorities  to  consider  the  claim  of  the   appellants   for
regularisation of their  services  on  the  existing  vacancies  which  were
directed to be filled up from the existing contractual employees as per  the
Regulation/Rules  and  fresh  advertisement   could   be   issued   inviting
applications from the  general  candidates  only  for  remaining  vacancies.
Challenging the order of the learned single  Judge,  respondent  authorities
filed Special Appeal before the Division Bench being Special Appeal  No.1432
of 2005.
4.          Pending adjudication of Writ Petition No.54072  of  2002  before
the learned single Judge, a scheme for  regularization  of  the  contractual
employees was formulated by the respondent No.1  on  16.04.2003,  wherein  a
policy was framed regarding regularization of 27 contractual  employees  who
had  been  engaged  initially  for  a  period  of  89  days  and   continued
thereafter.   The  State  Government,  vide  its  letter  dated  05.03.2008,
approved the policy formulated by  respondent  No.1  for  regularization  of
contractual employees.   As per the said policy, 60% of the  vacancies  were
sought to be filled  up  from  amongst  27  contractual  employees  and  the
remaining 40% of the vacancies  through  direct  recruitment.   The  special
appeal being Special Appeal No.1432 of 2005 was disposed  of  on  13.01.2010
directing the first  respondent  authority  to  take  a  final  decision  in
pursuance of the policy framed by it and approved by  the  State  Government
on 05.03.2008.  Pursuant to the policy decision, the  appellants  and  other
similarly situated contractual employees  were  appointed  on  the  post  of
Assistant Manager (Civil) vide appointment orders dated 06.08.2010.
5.          After joining the  said  post,  the  appellants  filed  a  Claim
Petition No. 174 of 2011 before the State Public Services Tribunal,  Lucknow
praying for regularization of their services from the date of  existence  of
vacancies, that is 20.11.2002, the  date  on  which  the  advertisement  was
issued, for appointment to the post of Assistant Manager  (Civil)  and  with
all  consequential  benefits.   The  tribunal,  vide  its   judgment   dated
23.06.2011, allowed the Claim  Petition  and  directed  the  authorities  to
consider the appellants’ claim for regularization of their services  on  the
existing vacancies with effect from 20.11.2002. Aggrieved by  the  order  of
the tribunal,  the  respondent  authorities  preferred  a  writ  being  Writ
Petition             No.65789 of  2011  before  the  High  Court.  The  High
Court, vide impugned judgment dated 29.10.2013 relying on  the  Constitution
Bench decision of this Court in Uma Devi’s case  (supra)  allowed  the  Writ
Petition filed by the respondent authorities and  quashed  the  order  dated
23.06.2011 passed by the tribunal granting benefits to the  appellants  with
retrospective  effect.   Additionally,  the  High  Court  also  quashed  the
appointments of the appellants dated 06.08.2010 as         ex-facie  illegal
and directed the authorities to initiate proceedings in respect  of  illegal
appointments which were made in violation of  Articles  14  and  16  of  the
Constitution of India and the  principles  laid  down  in  Uma  Devi’s  case
(supra).  This appeal  assails  the  correctness  of  the  judgment  of  the
Division Bench dated 29.10.2013.
6.           Shri  L.  Nageswara  Rao,  learned  Senior  Counsel   for   the
appellants, contended that  the  appointment  orders  dated  6.08.2010  were
issued  pursuant  to  the  scheme  of  regularization  formulated   by   the
respondent No. 1 which was also approved by the State Government  and  while
so, the High Court erred in holding that the appointments of the  appellants
were ex-facie illegal.  It was  submitted  that  the  appellants  have  been
continuously working on the  said  post  for  more  than  twenty  years  and
therefore their services ought to be regularised with  retrospective  effect
from 20.11.2002 and they be granted seniority and consequential benefits.
7.           The  respondent   authorities   have   fairly   conceded   that
appointments of the appellants  vide  appointment  orders  dated  06.08.2010
were made pursuant to the regularization scheme  framed  by  the  respondent
No.1 and therefore the appointments cannot be said to be  illegal  being  in
violation of Articles 14 and 16 of the Constitution of India.  However,  the
respondent authorities have raised serious objections for the claim  of  the
appellants   seeking   regularisation   with   retrospective   effect   from
20.11.2002, when the vacancies were first advertised.  To that  extent,  the
respondent-authorities have  supported  the  impugned  judgment  in  setting
aside the order  of  the  tribunal.   It  was  further  submitted  that  the
appellants were appointed pursuant to the regularisation scheme which  never
contemplated that the appellants should be entitled to  regularisation  from
the retrospective effect.
8.          The main issue that arises  for  consideration  is  whether  the
policy decision extending  the  benefit  of  regularisation  to  contractual
employees against  60%  vacant  posts  will  be  deemed  to  regularise  the
services  of  the  appellants  from  the  retrospective   date,   that   is,
20.11.2002, when the said posts were first advertised.
9.          At the outset, it is to be pointed out that when  the  vacancies
for the post of Assistant Manager (Civil)  were  advertised  on  20.11.2002,
the scheme for regularization of contractual employees was not in vogue  and
it was only subsequently on 16.04.2003, respondent No.1 had taken  a  policy
decision regarding  regularization  of  27  contractual  employees  and  the
scheme was approved by the State Government vide letter dated 5.03.2008  and
it is only thereafter, the appellants came to  be  appointed  on  6.08.2010.
Thus, when the vacancies were initially advertised, the appellants  did  not
have any substantive right against the notified  vacancies.  The  appellants
cannot be said to have acquired such right to be regularised  by  virtue  of
the decision of the learned Single Judge in Writ Petition No. 54072 of  2002
as in Uma Devi’s case (supra), this Court held that the  High  Court  should
not issue directions for regularization, unless the recruitment  itself  was
made in terms of the constitutional Scheme and the wide power under  Article
226 are not intended  to  be  used  for  issuance  of  such  directions  for
regularization. The appellants were actually regularised only by  virtue  of
the policy decision taken by the respondent No.1 and not by  virtue  of  the
decision of the High Court.
10.         In the impugned judgment, the Division Bench  proceeded  on  the
premise as if Uma Devi’s case (supra) held that the State Government, in  no
circumstance, can regularise the  services  of  contractual  employees.   In
para (53) of Uma Devi’s case (supra), the Constitution Bench carved  out  an
exception by observing  that  the  Union  of  India/State  Governments/their
instrumentalities should take steps  to  regularise  the  services  of  such
irregular employees who have worked for more than ten years  and  para  (53)
reads as under:-
“53. One aspect needs to be clarified. There may be  cases  where  irregular
appointments (not illegal appointments) as explained in State of Mysore  Vs.
S.V. Narayanappa, (1967) 1  SCR  128,  R.N.  Nanjundappa  Vs.  T.  Thimmiah,
(1972) 1 SCC 409, and B.N. Nagarajan Vs. State of Karnataka,  (1979)  4  SCC
507, 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   sub  judice,  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.”


11.         Considering the facts of the  present  case  on  the  touchstone
laid down in Uma Devi’s case(supra), it  will  be  seen  that  the  Division
Bench was not right in setting aside  the  appointment  of  the  appellants.
More  so,  it  was  nobody’s  case  challenging  the  appointment   of   the
appellants.   Admittedly,  the  appellants  were  engaged   as   contractual
employees from 1994 and have completed more than  ten  years  of  continuous
service with respondent No.1.  They continued in service not by  the  orders
of  the  Court/Tribunal,  but  by  the  decision  of  the  respondents.  The
appellants were regularised as per  the  policy  decision  dated  16.04.2003
taken by respondent No.1 and approved by the State  Government  vide  letter
dated 05.03.2008.   Since  the  appointment  of  the  appellants  were  made
pursuant to the policy of regularization, the High Court was  not  right  in
quashing the appointment of  the  appellants  as  the  same  were  never  in
question before the High Court.  The plea that was raised by the  appellants
was only to seek regularization with retrospective  effect  from  20.11.2002
and the consequential seniority.
12.         The appellants were initially engaged on contractual  basis  and
they were not  appointed  against  any  sanctioned  post  before  they  were
substantially  appointed  on  the  said  post  on  6.08.2010.  Even   though
advertisement dated 20.11.2002 indicated  that  there  were  vacancies,  the
policy of regularization of contractual employees was approved by the  State
Government only on 05.03.2008. The appellants were appointed on the post  of
Assistant Manager (Civil) only  pursuant  to  the  policy  decision  of  the
respondents for  regularisation  of  contractual  employees  and  thus,  the
appellants cannot seek for regularization  with  retrospective  effect  from
20.11.2002, that is when the advertisement was issued, because at that  time
regularisation policy was not in vogue.  By  policy  of  regularisation,  it
was intended to give the benefit only from  the  date  of  appointment.  The
Court cannot read anything into the  policy  decision  which  is  plain  and
unambiguous.  Having accepted the appointment  orders  dated  6.08.2010  and
also  joined  the  post,  the  appellants  cannot  turn  round   and   claim
regularisation with retrospective effect.
13.         The judgment of the High Court quashing the appointment  of  the
appellants vide appointment order dated 06.08.2010 is  set  aside.   However
the  appellants’  plea  for  regularization  with  retrospective  effect  is
declined.
14.         In the result, the appeal  is  allowed  in  part  in  the  above
terms.      There     shall     be     no     order     as     to     costs.


                                                                …………………………J.
                                                 (T.S. THAKUR)


                                                                …………………………J.
                                                 (R. BANUMATHI)
New Delhi;
July 2, 2015
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