Sec.74 of Indian Evidence Act - Presumption of Assignment of Patta infavour of plaintiff in the year 1977- Not Un-Rebuttable -Merely because presumption has to be drawn under Section 74 of the Act that does not prevent the court from taking into consideration all the facts and circumstances of the case and to draw conclusions which rebut the initial presumption. - admittedly the father of the plaintiff has got patta lands - admittedly the plaintiff was minor - admittedly no Cists receipt filed from 1977 - admittedly his sister is the village Officer who issued certificates Ex.A1 to A4 - admittedly she was not examined - admittedly the plaintiff is a APSRTC conductor - admittedly obtained all these certificates just before filing of the suit - No Govt. Patta would be assigned to minor, employee and sufficient land holders - Before taking presumption the lower court rightly took all these facts in to consideration and rightly rejected to take the presumption under sec.74 of Evidence Act - 2015 A.P.(2014) MSKLAWREPORTS.

Section 74 of the Evidence Act - presumption towards the acts of the officials who
issued Exs.A1 to A4. - It is settled law that presumption has to be drawn under
Section 74 of the Act with regard to the public documents. - does not mean that such presumption is unrebuttable.  -  mere marking of a document as an exhibit does not dispense with its proof.   Admittedly, sister of the plaintiff, who issued Exs.A1  to A4 was not examined.  -No person
examined to prove Exs.A1 to A4.  - Admittedly, Exs.A1 to A4 were issued by the sister of the plaintiff who was working as Village Secretary, that too just before filing the suit.   The Courts below observed that the appellant would not have kept quite without paying cist if at all assignment in his favour in 1977 is true  - An entry in Revenue record is open to the attack that it was made fraudulently.   - The Courts have to appreciate the evidence and draw logical conclusions.  - While drawing local conclusions, all the relevant facts have to be taken into consideration. -  All the facts and circumstances, under which the relevant documents came into existence should be considered.   -Whether the case put forth by a party is probable or not has to be carefully examined. -  As far as
appreciation of evidence on record is concerned, the Courts have to draw logical conclusions on the basis of evidence on record i.e., on proper appreciation of evidence. -  The fact that the father of the plaintiff had patta land and the plaintiff was only 15 years old in 1977 makes it clear that there was no possibility of assigning land to the plaintiff who was a minor in 1977. -  The Courts below were also justified in finding that the plaintiff failed to file any documents such as cist receipts or adangals from 1977 till the date of issuing Exs.A1 to A4 which were admittedly obtained by the plaintiff just before filing of the suit. -  It is also not in dispute that the plaintiff has been working as a Conductor in APSRTC and he is not entitled for assignment of land. - All these circumstances go to show that the conclusions reached by the Courts below are justified. -  Merely because presumption has to be drawn under Section 74 of the Act that does not prevent the court from taking into consideration all
the facts and circumstances of the case and to draw conclusions which rebut the initial presumption.  I do not see any reason to hold any substantial question of law, for consideration in this Second Appeal. -2015 A.P.(2014)MSKLAWREPORTS

Sec.10 (1)(vii)(ix) and Sec.19(3) of Divorce Act - Divorce on the Grounds of Lunatic and Idiot - both are different things - Uncertainty - No certificate issued under sec.18 and 19 of filed under Lunacy Act - Evidence of Doctor not helpful - she passed Degree and passed type higher in three languages - A person can be said to be lunatic if he is virtually a mad person and is insane for all practical purposes. It is only when the person exhibits extreme characteristics that he can be categorized or called as lunatic. The word 'idiot' is explained in the Chambers Dictionary as connoting "a foolish or unwise person; a person afflicted with the severest degree of intellectual sub- normality, and having low intelligence quotient" - the husband failed to prove both aspects - Trial court orders are set aside - Appeals are allowed - 2015 A.P.(2014) MSKLAWREPORTS

Sec.10(1)(vii)(ix) and 19(3) of Divorce Act (for short 'the Act') for declaring his marriage with the appellant as null and void.-Their marriage took place , according to the Christian customs and rites.-the parents of the appellant concealed the fact that the appellant is a lunatic - every effort was made by him to save the marriage, proved to be futile. -though they lived together for sometime, their marriage itself deserved to be declared as null and void.-According to her, she studied up to Degree and she completed typewriting courses in English, Hindi and Telugu.  She pleaded that her conduct was never abnormal, much less she is a lunatic or an idiot.  She alleged that the O.P., was filed by the respondent against the wishes, even of his mother and the same is liable to be dismissed.-filed O.P.No.98 of 2009 for restitution of conjugal rights.-The only ground pleaded by the respondent against the appellant is that she is of extraordinary behaviour and conduct, leading to an inference that she is a lunatic or an idiot.-The trial Court decreed the O.P., filed by the respondent under Sec.10 of the Act, and dismissed the one filed by the appellant for restitution of conjugal rights.-It is the expectation of everyone to interact with the persons with ordinary tendency and behaviour.  It is particularly so in the context of marriage.  No one would wish to have a life-partner, whose conduct or behaviour is different from the one expected from ordinary human beings.  Obviously, for that reason, law recognizes the extraordinary conduct or behaviour of a party to the marriage, as a ground for the other, to seek divorce or nullification.-Section 10(1)(iii) of the Indian Divorce Act enables a party to the marriage to seek a decree of nullity against the other spouse, if the latter was a lunatic or idiot 'as on the date of marriage'.- "Sec.10.Grounds for dissolution of marriage: (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 
2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent -
(i)   ...
(ii)  ...
(iii) has been incurably of unsound mind for a continuous period of not less
than two years immediately preceding the presentation of the petition; or
... ...
... ...
(vii) has willfully refused to consummate the marriage and the marriage has not
therefore been consummated; or 
... ...
(ix) has deserted the petitioner for at least two years immediately preceding
the presentation of the petition;"
The expression used in the Indian Divorce Act, the 'lunacy or other mental
disorder' is dealt with under two separate provisions.  In case a party to the
marriage was lunatic or idiot as on the date of the marriage, Section 19 read
with Sec.18 of the Act enables the other spouse to seek a decree of nullity of
marriage.  Section 19 (3) reads as under:
"19. Grounds of decree - Such decree may be made on any of the following grounds 
: -
(1) ...
(2) ...
(3)  that either party was a lunatic or idiot at the time of the marriage"      

  If, on the other hand, such disability or disorder has occurred at a later
point of time and remained for a period of not less than two years, the
aggrieved party can file a petition under Section 10 of the Act for dissolution
of the marriage.   -   In the instant case, the respondent invoked both the provisions.  It only means that he was not clear as to whether the appellant was a lunatic or an idiot, as on the date of marriage, or that the same has occurred to the appellant immediately two years preceding to filing of the O.P.  This uncertainty would certainly have its own impact upon the merits of the O.P  -  A person can be said to be lunatic if he is virtually a mad person and is insane for all practical purposes.  It is only when the person exhibits extreme characteristics that he can be categorized or called as lunatic.  The word 'idiot' is explained in the Chambers Dictionary as connoting "a foolish or unwise person; a person afflicted with the severest degree of intellectual sub- normality, and having low intelligence quotient"-The trial Court passed an order directing that the appellant be examined by a qualified Doctor in the Government Medical College, Guntur.  Accordingly, PW-3, Assistant Professor of Psychiatry, Guntur Medical College, examined the appellant.  His evidence is to the effect that though he found some abnormalities in the behaviour of the appellant, his observation is not sufficient to conclude that she was suffering from psychosis.  This witness was not cross-examined by the appellant. PW-4 is the Superintendent of Government Hospital, Guntur.  It is important to
note that the alleged examination of the appellant by this witness was not on the basis of any order passed by the Court.- Sections 18 & 19 of the Indian Lunacy Act prescribes detailed procedure to be followed in the context of issuing medical certificates in respect of persons, who are said to be suffering from lunacy.  The certificate is required to be issued in Form-3 appended to the
said Act.  The two sections referred to above stipulate the manner in which the medical practitioner must examine and the nature of precautions to be taken by him before issuing certificate.  The provisions read as under:  "Sec.18.Medical Certificates.- (1) Every medical certificate under this
Act shall be made and signed by a medical practitioner or a medical officer, as
the case may be, and shall be in the form prescribed.
(2)  Every medical certificate shall state the facts upon which the persons
certifying has formed his opinion that the alleged lunatic is a lunatic,
distinguishing facts observed by himself from facts communicated by others, and
no reception order on petition shall be made upon a certificate founded only
upon facts communicated by others. 
(3)  Every medical certificate made under this Act shall be evidence of the
facts therein appearing and of the judgment therein stated to have been formed
by the persons certifying on such facts, as if the matters therein appearing had
been verified on oath. - Sec.19. Time and manner of medical examination of lunatic.- (1) A reception
order required to be founded on a medical certificate shall not be made unless the persons who signs the medical certificate, or, whether two certificates are required, each person who signs a certificate has personally examined the alleged lunatic, in the case of an order upon petition, not more that seven
clear days before the date of the presentation of the petition, and, in all other cases not more than seven clear days before the date of the order.
(2)  Where two medical certificates are required, a reception order shall not be
made unless each person signing a certificate has examined the alleged lunatic
separately from the other.- Admittedly, no precautions as provided under Sections 18 & 19
of Indian Lunacy Act were taken by PW-4, nor any certificate was issued by himin Form-3 appended to the said Act.- Once a person is branded as a lunatic, he would virtually forego several civil rights, such as capacity to contract, right to take independent decisions.  He loses respect in the society, which, a man with the ordinary traits can expect.- Another aspect is that if a person is declared as lunatic, he cannot figure as an independent person in any proceedings before a Court.  He is required to be assisted by a person that may be appointed by the concerned Court, that too under a specific legal regime.- The case on hand presents a typical contradiction.  If the appellant is, in fact, a lunatic, the question of her being shown as independent party in the O.P., does not arise.  It was only through a guardian or other representative as provided for in law, that she could have been shown as a party.  Hence, there is a serious defect in the very form of framing the O.P., instituted by the
respondent.-  On merits also, we find that the conclusion arrived at by the trial Court
cannot be sustained. - If at all there is something extraordinary with her, it is in the context of passing typewriting examinations in three different languages, namely Telugu, Hindu and English. Even for ordinary persons, it is difficult to pass the typewriting examinations in two languages.  When such is the brilliance and sharpness of the appellant, it is nave to plead that she is a lunatic or for that matter 'idiot'. - Something should be seriously wrong with a person, who calls the appellant an idiot or lunatic.- It may be true that some typical characteristics may have been noticed on the part of the appellant.  One has to recognize the fact that no two citizens are endowed with the same kind of intelligence to such a degree that both react to the situation in the same manner.   It is only when the extraordinary behaviour of a person is such that his or her spouse just cannot lead normal life; that it can constitute a ground for divorce.  The likes or dislikes of a party hardly matter.-We therefore allow both the appeals and set aside the decree of divorce passed by the trial Court. -2015 A.P.(2014)MSKLAWREPORTS

Divorce - Sec. 13(1) (ia) (ib) and (ii) of the Hindu Marriage Act,1955 - conversion to Christianity after birth of fourth child - Desertion after that - admitted faith in Jesus from child hood - Burden lies on her whether she converted before the marriage or after the marriage when Marriage was taken place as per Hindu rites and customs and in the absence of objection about the filing of Divorce OP under Hindu Marriage Act - Non- Production of Church Roll by Steward of Church - Presumption under sec.114 of Evidence Act - Husband proved his case that the wife converted to Christianity - is a valid Ground available under Hindu Marriage Act for Divorce and further more proved that she deserted thereafter for more than two years - Trial court order set aside - Appeal was allowed - Divorce Granted - 2015 A.P.(2014) MSKLAWREPORTS.

for divorce, under Section 13(1) (ia) (ib) and (ii) of the Hindu Marriage Act,1955 (for short 'the Act').-after the birth of the fourth child, the respondent got herself converted into Christianity. -she had faith in Jesus Christ, and the allegation against her is not true.- trial Court dismissed the OP -1) Whether the appellant established that the respondent was cruel towards him? 2) Whether the respondent deserted the company of the appellant on her own accord since December, 1997?  3) Whether the respondent converted into Christianity about two years prior to
filing of the petition?-A valid Hindu marriage can take place only between a man and a woman professing that religion, as on the date of marriage.  The first sentence in Section 5 of
the Act made this aspect clear.  It reads:"A marriage may be solemnized between two Hindus, if the following conditions are fulfilled, namely, ......." -The equivocal statement made by her is that she had faith in Jesus Christ.  The burden of proof of conversion into Christianity naturally rests upon the
respondent. -R.W.3, a person who acted as  Steward in the Church at Armoor. -  "It is true that if any person adopts Baptism, we will enter the name of such person in a particular register.  The said register is called as 'Church roll'.The said register will be maintained in all the Churches.  It is true that the names of R.W.2 and his family members entered in the Church roll.  I did not produce any register to show that R.W.2 and his family members converted into Christianity in the year 1978." The failure on the part of R.W.3 to produce the register would naturally lead to an inference to be drawn, as provided for, under Section 114 of the Evidence Act.-From the above, it becomes clear that the respondent got herself converted into Christianity, after her marriage with the appellant.  The Act recognizes conversion of a spouse into another religion as a valid ground for the other to seek divorce. -It is not in dispute that the respondent left the company of the appellant, soon after the fourth child was born.  After that, a complaint was filed against the appellant, alleging the offences under Sections 498-A and 307 of IPC, at the instance of the respondent, though by R.W.2.-We, therefore, allow the Civil Miscellaneous Appeal and the order and decree passed by the trial Court are set aside. - 2015 A.P.(2014) MSKLAWREPORTS

whether a writ application is maintainable against an order of West Bengal Land Reforms and Tenancy Tribunal ('the Tribunal'), refusing to initiate contempt proceedings against an authority arrayed as respondent no.5 before the Tribunal.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7535 OF 2011

Sujitendra Nath Singh Roy                      .....Appellant

      Versus

State of West Bengal & Ors.                    .....Respondents




                               J U D G M E N T



SHIVA KIRTI SINGH, J.

Heard learned counsel for both the parties.  This appeal has been  preferred
to assail an order dated 20th March 2009 by the High Court  at  Calcutta  in
W.P.L.R.T. No.54 of 2009.  The High Court placed reliance  upon  a  Division
Bench judgment of  that  very  Court  in  the  case  of  Manju  Banerjee  v.
Debabrata Pal reported in  (2006)  1  WBLR  (Cal)  147  and  held  the  writ
petition preferred by the appellant to be not maintainable.
The  issue  raised  in  this  appeal  is  whether  a  writ  application   is
maintainable against an order  of  West  Bengal  Land  Reforms  and  Tenancy
Tribunal  ('the  Tribunal'),  refusing  to  initiate  contempt   proceedings
against an authority arrayed as respondent no.5 before the  Tribunal.   Such
pristine question of law does not require any reference to the  facts  which
led the appellant to file O.A.No.2744 of 2007 corresponding to M.A.No.24  of
2008 before the Tribunal with a prayer  to  initiate  proceeding  under  the
Contempt of Courts Act, 1971.
Learned counsel for the appellant has placed before us  the  Division  Bench
judgment of Calcutta High Court in the case of Manju  Banerjee  (supra)  and
has submitted that the view taken therein that there is no right  of  appeal
against dismissal  of  contempt  proceeding,  is  correct  and  requires  no
discussion but the further  view  that  even  in  gross  cases  of  palpable
contempt the concerned informant aggrieved by refusal to  initiate  contempt
proceeding can move  only  the  Supreme  Court  under  Article  136  of  the
Constitution  of  India,  has  been  assailed  on  the  ground   that   such
observation in the judgment is on account of  non-appreciation  of  relevant
facts in the judgment of the Constitution Bench  of  Supreme  Court  in  the
case of L. Chandra Kumar v. Union of India (1997) 3 SCC 261.
On behalf of appellant, it was further submitted that judgment in  the  case
of L. Chandra Kumar (supra) was rendered on 18th March 1997.   The  relevant
Act, i.e., The West Bengal Land Reforms & Tenancy Tribunal  Act,  1997  (for
brevity referred to as the 'Act of 1997') was enacted subsequently in  terms
of the enabling provisions under Article 323B of the Constitution of  India.
 Under Section 15 of the Act of 1997 the Tribunal has been vested with  such
power to punish for its contempt as is vested in the High  Court  under  the
provisions of the Contempt of Courts Act, 1971.   For  convenience,  Section
15 is set out hereinbelow :

"15. Power to punish for contempt of Tribunal.-The Tribunal shall have,  and
shall exercise, the same jurisdiction, power and  authority  in  respect  of
contempt of the Tribunal as a High Court has  and  may  exercise,  and,  for
this purpose, the provisions of the Contempt  of  Courts  Act,  1971,  shall
have effect, subject to the modifications that -

the reference therein to a High Court shall be construed as a  reference  to
the Tribunal, and

the reference therein to the Advocate-General in Section 15 of the said  Act
shall be construed as a reference to the Advocate-General of the State."

There is no caveat to the proposition of law that under Section  19  of  the
Contempt of Courts Act, 1971 an appeal lies before the  Supreme  Court  only
against such order of the High Court which imposes punishment  for  contempt
and no appeal will lie against an interlocutory order or an  order  dropping
or refusing to initiate contempt proceedings.  This was  clearly  laid  down
in the case of State of Maharashtra v. Mahboob  S.  Allibhoy  (1996)  4  SCC
411.  This view was also followed in several cases including in the case  of
Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda (2006) 5 SCC 399.
In the case of L. Chandra Kumar (supra) a Constitution Bench of  this  Court
declared certain clauses in Articles 323A and 323B of  the  Constitution  of
India to be unconstitutional to the extent they  excluded  the  jurisdiction
of the High Courts and the Supreme Court under  Articles  226/227and  32  of
the Constitution.  This was on the premise that power of judicial review  is
a basic and essential feature of the Constitution and, therefore, could  not
be taken away even by constitutional amendment.  Paragraphs 91,  92  and  93
of this judgment were highlighted by learned counsel for  the  appellant  in
support of his submission that all decisions of tribunals  created  pursuant
to Article 323A or Article 323B of the Constitution have  been  held  to  be
subject to the High Courts' writ jurisdiction under Article 226/227  of  the
Constitution.
 On the  other  hand,  learned  counsel  for  the  respondents  relied  upon
paragraph 4 in the case of  Mahboob  S.  Allibhoy  (supra)  wherein  it  was
clarified  that  no  appeal  is  maintainable  against  an  order   dropping
proceeding for contempt or refusing to initiate a  proceeding  for  contempt
in terms of Section 19 of the Contempt of Courts Act,  1971.   It  was  also
submitted that since under Section 15  of  the  Act  of  1997  the  Tribunal
enjoys same jurisdiction, power and authority as a High Court in respect  of
contempt under the provisions of the  Contempt  of  Courts  Act,  therefore,
High Court cannot exercise  power  of  judicial  review  when  the  Tribunal
exercises same powers as that  of  the  High  Court  to  reject  or  drop  a
contempt petition.
On a careful consideration of judgment of the Division Bench in the case  of
Manju Banerjee (supra) which has been followed in  the  impugned  order,  we
are unable to agree with the view that writ petition under  Article  226/227
of the Constitution  is  not  maintainable  when  the  Tribunal  refuses  to
initiate a contempt proceeding.   Such  inference  has  been  drawn  by  the
Division Bench on the basis of some judgments of this Court such as  in  the
case of D.N. Taneja v. Bhajan Lal (1988) 3  SCC  26.   In  those  cases  the
order refusing to initiate proceeding had been passed by the High Court  and
not by a tribunal and, therefore, this Court observed  that  in  a  fit  and
proper case the aggrieved person who informed the court of the  alleged  act
of contempt can  approach  the  Supreme  Court  under  Article  136  of  the
Constitution of India.  Obviously in those cases there could be no  occasion
to observe that the aggrieved person can also approach the High Court  under
Article 226/227.  The submission that because of similar powers of  contempt
vested in the Tribunal under Section 15 of the Act  of  1997,  the  Tribunal
ceases to be inferior to the High Court for exercise  of  writ  jurisdiction
is devoid of  any  substance  because  it  ignores  that  High  Courts  have
constitutional status and are vested with  extraordinary  writ  jurisdiction
whereas the  Tribunal  is  only  a  creature  of  statute.   Hence,  in  our
considered view, in the case of Manju Banjerjee (supra) the  Division  Bench
of the Calcutta High Court does not lay down the  law  correctly  that  when
the  tribunal refuses to initiate contempt proceeding, the aggrieved  person
has remedy only under Article 136 and  not  under  Article  226/227  of  the
Constitution.
As held by the Constitution Bench in the case of L.  Chandra  Kumar  (supra)
the power of judicial review of the High Court under Article 226/227 of  the
Constitution cannot be taken away by a  law  or  even  by  a  constitutional
amendment.  Hence, it will be indeed a rare case where the  High  Court  can
hold that a writ petition against any order of inferior  court  or  tribunal
is not maintainable.  However, we hasten to add that it is always  open  for
the High Court, in appropriate cases, to hold that a writ  petition  is  not
entertainable on account of propriety, constitutional scheme,  some  settled
rules of self-restraint or its peculiar facts.
In view of the aforesaid discussion, the impugned order  is  set  aside  and
the matter is remitted back to the  High  Court  for  considering  the  writ
petition of the appellant afresh on its own merits and as per law.  We  make
it clear that we have not applied ourselves to the  merits  of  the  matter.
The appeal is allowed to the aforesaid extent.  No costs.


                       ...........................................J.
                       [VIKRAMAJIT SEN]



                       ............................................J.
                             [SHIVA KIRTI SINGH]

New Delhi.
March 13, 2015.
-----------------------
7

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).

                                                                  REPORTABLE

                        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)
                               VERSUS

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

                               J U D G M E N T

R. BANUMATHI,J.

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
scheme."

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.

                                                                   .........
                                                 .........................J.
                                                  (V.GOPALA GOWDA)


     .............................J.
                                                  (R.BANUMATHI)
New Delhi,
March 13, 2015