Service matter - Constitutional validity of the Orissa Service of Engineers(Validation of Appointment) Act, 2002 - Orissia High court strucked it as unconstitutional - Apex court set aside the order high court and allowed the appeals =
The primary issue that falls for determination touches the Constitutional
validity of what is described as the Orissa Service of Engineers
(Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc
Assistant Engineers belonging to Civil, Mechanical and Electrical
Engineering Wings of the State Engineering Service have been validated,
no matter all such appointments were in breach of the Orissa Service of
Engineers’ Rules, 1941. =
The High Court of Orissa has in a batch of writ
petitions filed before it struck down the impugned Legislation on the
ground that the same violates the fundamental rights guaranteed to the writ
petitioners under Articles 14 and 16 of the Constitution. =
(a) the validity of the impugned
Validation Act.
(b) regularization of in-service degree holder Junior
Engineers who have been working for considerable length of time as
Assistant Engineers on ad hoc basis and
(c) the seniority position of those
being regularized either under the Validation Act or in terms of the
directions being issued by us in these appeals.
Other issues which the
interveners seek to raise especially issues regarding grant or denial of
the benefit of reservation to SC and ST candidates, have not been touched
by us in these proceedings for want of proper pleadings on the subject and
also for want of any pronouncement by the High Court on the said questions.
In the circumstances, this order shall be taken to have settled only what
we have specifically dealt with or what would logically follow therefrom.
Any question
whether the same relates to inter se seniority of those
regularized under the legislation or by reason of the directions which we
propose to issue or issues relating to the benefit of seniority on the
basis of roster points if any prescribed for that purpose are left open and
may be agitated by the aggrieved party before an appropriate forum in
appropriate proceedings.
To the extent any such questions or aspects have
not been dealt with by us in this order, may be dealt with in any such
proceedings. Beyond that we do not consider it proper or necessary to say
anything at this stage.
In the result we pass the following order:
(1) Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and
Civil Appeals No.8322-8323 of 2009 and 1940 of 2010 filed by the
Stipendiary Engineers are allowed and the impugned judgment and order
dated 15th October, 2008 passed by the High Court of Orissa set aside.
(2) Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005,
12706/2006 and 8630/2006 filed by the degree holders Junior Engineers
working as Assistant Engineers on ad hoc basis are also allowed but
only to the limited extent that the services of the writ-petitioners
and all those who are similarly situated and promoted as ad hoc
Assistant Engineers against the proposed 5% quota reserved for in-
service Junior Engineers degree holder shall stand regularized w.e.f.
the date Orissa Service of Engineers (Validation of Appointment) Act,
2002 came into force. We further direct that such in-service degree
holder Junior Engineers promoted as Assistant Engineers on ad hoc
basis shall be placed below the promotees and above the Stipendiary
Engineers regularized in terms of the impugned legislation. The inter
se seniority of the Stipendiary Engineers regularized as Assistant
Engineers under the impugned Legislation and Junior Engineer degree
holders regularized in terms of this order shall be determined on the
basis of their date of first appointment as Assistant Engineers on ad
hoc basis.
(3) Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment and
order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of
1999 disposed of in terms of the above direction.
(4) Intervention applications filed in these appeals are also disposed of
in the light of observations made in Para 74 of this judgment.
(5) Parties are left to bear their own costs.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41235
T.S. THAKUR, VIKRAMAJIT SEN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8322 OF 2009
Amarendra Kumar Mohapatra & Ors. …Appellants
Versus
State of Orissa & Ors. …Respondents
WITH
Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940 of 2010.
J U D G M E N T
T.S. THAKUR, J.
1. Common questions of law arise for consideration in these appeals
which were heard together and shall stand disposed of by this common order.
The primary issue that falls for determination touches the Constitutional
validity of what is described as
the Orissa Service of Engineers
(Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc
Assistant Engineers belonging to Civil, Mechanical and Electrical
Engineering Wings of the State Engineering Service have been validated,
no matter all such appointments were in breach of the Orissa Service of
Engineers’ Rules, 1941.
The High Court of Orissa has in a batch of writ
petitions filed before it struck down the impugned Legislation on the
ground that the same violates the fundamental rights guaranteed to the writ
petitioners under Articles 14 and 16 of the Constitution.
We shall
presently formulate the questions that arise for determination more
specifically but before we do so, we consider it necessary to set out the
factual matrix in which the entire controversy arises.
2. In a note submitted to the State Cabinet on 15th May 1990 the problem
of over 2000 unemployed degree-holders in various branches of Engineering
who had passed out from several Engineering colleges since the year 1984
was highlighted and a proposal for utilizing the manpower so available for
the benefit of the State economy mooted.
The proposal envisaged a twofold
action plan for absorbing the unemployed graduate Engineers.
The first part
of the action plan provided for withdrawal of 127 posts of Assistant
Engineers that had been referred to the Public Service Commission and
advertised by it to be filled up by appointing unemployed degree holder
Engineers in a non-class II rank.
The second part of the proposal envisaged
creation of 614 posts of Junior Engineers in different Departments to
accommodate the unemployed degree holders.
These 614 posts comprised 314
new posts proposed to be created, one for each block in the State.
Similarly, 100 posts were to be created in the Irrigation Department for
survey and investigation to accelerate the pace of investigation. Yet
another 200 posts were to be created for initial infrastructure work in
connection with Paradip Steel Plant.
3. The note submitted to the Cabinet suggested that degree-holder
Engineers could be recruited against all the 741 (127 + 614) posts
mentioned above to be designated as Junior Engineers or Stipendiary
Engineers in the first phase on a consolidated stipend of Rs.2,000/- per
month. The proposal further envisaged absorption of Engineers so appointed
on regular basis after two years, after assessing their performance.
4. The Council of Ministers considered the proposal mooted before it and
approved the same. Decision taken in the 2nd Meeting of the Council of
Ministers held on 15th May, 1990 with regard to ‘Problems of Un-employed
Degree Engineers’ was forwarded to the Secretaries to the Government in
terms of a memo dated 21st May 1990, the relevant portion whereof reads as
under:
| “Item No.5: |Problems of Un-employed Degree |
| |Engineers. |
| |The problems were discussed at length |
| |and the following decisions were |
| |taken. |
| |All posts of Assistant Engineers |
| |referred to the Orissa Public Service |
| |Commission and advertised by them may |
| |be withdrawn. |
| |314 posts of Stipendiary Engineers may|
| |be created one in each Block. |
| |100 posts of Stipendiary Engineers may|
| |be created in the Irrigation |
| |Department for survey and |
| |investigation. |
| |200 posts of Stipendiary Engineers may|
| |be created for the initial |
| |infrastructure work of Paradip |
| |Port-based Steel Plant. |
| |In all, 741 posts of Stipendiary |
| |Engineers will be available, for |
| |recruiting from the unemployed Degree |
| |Engineers. A Stipendiary Engineer may|
| |be paid a consolidated stipend of |
| |Rs.2,000/- per month. Absorption into|
| |regular posts may be considered after |
| |two years on the basis of their |
| |performance. |
| |The criteria for selection are to be |
| |worked out separately, so that |
| |Stipendiary Engineers are recruited on|
| |merit basis batch by batch. |
| |The rest of the unemployed Degree |
| |Engineers are proposed to be engaged |
| |in various construction works by |
| |formation of Groups Companies and |
| |Cooperatives, which will get |
| |preference in award of work by the |
| |Department/Corporations.” |
| | |
5. As a sequel to the above decision, the Government invited
applications from unemployed graduate Engineers of all disciplines for
empanelment as Stipendiary Engineers for placement in different Government
departments, projects, public sector undertakings, co-operative societies
and industries etc.
By another resolution dated 22nd September 1990, the
Government stipulated the procedure to be adopted for discipline-wise
empanelment of the unemployed graduate Engineers for appointment as
Stipendiary Engineers against the vacancies in different departments and
undertakings.
The procedure evolved was to the following effect :
“2. Government have since decided that the following procedure
should be adopted for discipline wise empanelment of the
unemployed Graduate Engineers for appointment as Stipendiary
Engineers against the vacancies in different government
Department and undertakings:
1) 25 percent of the posts shall be filled up on merit basis
and for this purpose equal number will be taken from each
batch starting from the batch of 1984 up to the batch of
1989.
2) A point system will be adopted for empanelment on merit
basis, for which out of a total 100 marks the performance
in HSC will be given 15 marks, the performance in I. Sc.
and Diploma will be given 25 marks and the performance at
the final Engineering Degree Examination will be given 60
marks.
3) After the empanelment on merit basis is done for 25% of the
vacancies, empanelment will be done batch-wise starting
from 1984 for the remaining vacancies. The Inter se
position of candidates in the batch wise panel will again
be on the basis of merit computed as in (2) above.
4) There shall also be separate empanelment on merit basis for
SC/ST, Physically handicapped and ex-servicemen covering
all the batches to facilitate filling up of reserved
vacancies. The rules regarding reservation of vacancies
will apply to these appointments.
5) Applications received on or before 10.7.1990 will alone be
considered for empanelment. Similarly graduate Engineers
who have passed out before 1984 or those who have obtained
degree after 1989 will not be eligible for empanelment.
6) The following committee will undertake the work of scrutiny
and empanelment of the unemployed graduate Engineers.
|Secretary Steel & Mines |Chairman of the |
| |Committee |
|Engineer-in-Chief and Secretary, |Member |
|Works | |
|Engineer-in-Chief (Irrigation) |Member |
|Chief Engineer Electricity and |Member |
|electrical Projects | |
|Chief Engineer, PHD |Member |
|Chief Engineer, RLEGP |Member |
|Managing Director, IPICOL |Convenor |
7) The panels from the Scrutiny Committee will be maintained
in the Department of Planning and Coordination who will
sponsor candidates to various Government Departments and
Undertakings according to the requirement as indicated by
them. The undertakings will send indents through the
concerned Administrative Departments.
8) As regards Civil & Mechanical Engineers, the Government
Departments will intimate the requirement to Irrigation
Department who will the panel names from P & C Department
to fill up the vacancies. In case of these Engineers, the
appointment orders will be issued by the Department of
Irrigation and when required they will be sent on
deputation to the other Departments.
9) If there is no candidate to be recommended against reserve
vacancies for the reason that the panels of such candidates
are exhausted, the Department of P & C will give a non-
availability certificate to the indenting organizations so
that they can take steps to de-reserve the vacancies and
give appointment to general candidates in their place.
10) The normal requirement for new appointment under Government
viz. production of original certificates, Medical
Certificate, Schedule Caste/Scheduled Tribe Certificate
etc. shall be applicable to these appointments and the
verification of these documents shall be the responsibility
of the Employing Departments/Undertakings.
11) In some cases relaxation of age limit for entry into
Government service may have to be done and this will be
attended to by the Employing Departments/Undertakings as a
matter of course.
ORDER
Ordered that the Resolution be published in the Orissa
Gazette for general information.
Ordered also that copies of the Resolution be forwarded to
all Departments of Government, Member, Board of Revenue, All
Heads of Departments, All District Collectors, Secretary to
Governor, Registrar, Orissa High Court Secretary, OPSC,
Principal Secretary to the Chief Minister and Director of
Printing, Stationary and Publication, Orissa Cuttack and 50
copies of Planning & Coordination Department.
BY ORDER OF THE GOVERNOR
S.SUNDARARANJAN
ADDITIONAL DEVELOPMENT COMMISSIONER
AND
SECRETARY TO GOVERNMENT”
6. Applications received from unemployed graduate Engineers for
appointment as Stipendiary Engineers were in terms of the above resolution
and considered by the Committee constituted for the purpose and appointment
of eligible candidates found suitable for such appointments made between
1991 to 1994. Appointment orders issued to the candidates made it clear
that degree holder Engineers were being engaged as Stipendiary Engineers in
the concerned Department and shall be paid a consolidated stipend of
Rs.2000/- only. It further stated that the engagement was purely temporary
and terminable at any time and without any notice.
7. In August 1992, Minister for Irrigation, Government of Orissa mooted
a further proposal to the following effect:
a) The promotion quota may continue at 33% of annual vacancy.
b) In addition, there should be a selection quota of 30%. This
quota will have two components – 5% for Junior Engineers
who have acquired an Engineering Degree or equivalent
qualification and 25% which will be earmarked exclusively
for Stipendiary Engineers.
c) Direct recruitment quota will be 37%. Stipendiary Engineers
can also compete against this quota. They may be allowed
age relaxation up to five years. This will ensure that
Stipendiary Engineers have the facility of recruitment,
both against the selection quota and direct recruitment
quota.
d) Departments may not fill up vacancies in the post of
Stipendiary Engineers caused by appointment of the
incumbents as Assistant Engineers, if they want to do so,
they may obtain candidates from the panel of the P & C
Department.
e) This will be a transitional provision because appointment
of Stipendiary Engineers may not be a permanent feature.
After such time as, Government may decide the present
quotas of recruitment will be restored.
f) Public Sector Undertakings should frame their own
recruitment rules which should broadly correspond to
Government’s policy of promotion of Junior Engineers and
appointment of Stipendiary Engineers through selection. If
there are no Stipendiary Engineers or Junior Engineers with
Degree or equivalent qualification quotas for these
categories will be added to direct recruitment quota.”
8. It is evident from the above that while the Government did not
propose to reduce the 33% quota reserved for promotees, out of the
remaining 67% meant for direct recruitment, it proposed to carve out what
was described as selection quota of 30% for absorption of the Stipendiary
Engineers to the extent of 25% of the vacancies and degree holder Junior
Engineers against the remaining 5% of the vacancies. The balance of 37% of
the vacancies was, however, left to be filled up by direct recruitment from
the open market.
9. Based on the above, the Government appears to have made a reference
to the Orissa Public Service Commission on 5th June 1996 for approval of
the draft Orissa Engineering Service (Recruitment & Condition of Service)
Rules, 1994 which were already approved by the State Council of Ministers
on 3rd December 1994.
The Orissa Public Service Commission, however, struck
a discordant note.
In its opinion, since the Stipendiary Engineers did not
constitute a cadre in the formal sense it was not desirable to treat it as
a feeder grade for Assistant Engineers. So also the proposal to reserve 5%
of the vacancies in the grade of Assistant Engineers to be filled by degree
holder Junior Engineers from the Subordinate Service was also considered to
be inadvisable. The Commission opined that since persons with higher
qualifications serve practically in all fields of administration including
technical services such as Medical and Engineering, it was neither
necessary nor desirable to provide for them a route for promotion to the
higher level except the one available to all those serving in the feeder
grade. In the opinion of the Commission, the correct way of rewarding
those with higher qualification was to give them advance increments at the
time of entry. The Commission also suggested that if in the opinion of the
Government the quota for promotion of Junior Engineers to the level of
Assistant Engineers required to be higher than 33% in consideration of the
larger body of Junior Engineers some of whom were degree holders, it could
increase the same to 40%, but the fragmentation of the Junior Engineers
into degree holders and non-degree holders was not advisable. The
Commission suggested that the remainder of the 60% vacancies for direct
recruitment could be utilized by recruiting degree holder Engineers from
the open market including Stipendiary Engineers and that candidates could
be given suitable weightage while judging their inter se relevant merit.
10. The Government had, in the meantime, passed a resolution on 12th
March, 1996 stating that the Stipendiary Engineers could be appointed as
Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- or
any similar post on ad hoc basis against regular vacancies. It also
resolved to regularize the service of such ad hoc Assistant Engineers
through a Validation Act. Some Stipendiary Engineers who were working in
different State Governments and statutory bodies were also proposed to be
appointed to the post of Assistant Engineer or equivalent posts carrying
the same scale, subject to their suitability and satisfactory performance.
The relevant portion reads as under:
“In consideration of the above decision of the Government, the
appointing authority of Departments of Government will appoint
the Stipendiary Engineers of different disciplines as Assistant
Engineers against existing vacancies of Assistant Engineers on
ad hoc basis for a period of one year, except Civil &
Mechanical, to be appointed on ad hoc basis by the Department of
Water Resources.
XXX XXX XXX
Stipendiary Engineers who are already working in different State
Government Undertakings, Corporations,, Semi-Government
Organizations & Statutory Boards may also be appointed as
Assistant Engineers or in equivalent posts carrying the same
scale, subject to their suitability and satisfactory
performance.”
11. The resolution notwithstanding, the Government does not appear to
have appointed any Stipendiary Engineers as Assistant Engineers on ad hoc
basis. Aggrieved, the Stipendiary Engineers filed O.J.C. Case No.8373 of
1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for a writ of
mandamus directing the Government to comply with the resolution and the
order issued by it. This petition was allowed by the Division Bench of the
High Court of Orissa at Cuttack by an order dated 18th December 1996. The
High Court directed the Government to take expeditious steps to implement
resolution dated 12th March 1996, preferably within a period of four
months. It further directed the State Government to appoint Stipendiary
Engineers as Assistant Engineers in the scale of Rs.2000-3500 on ad hoc
basis. In compliance with the directions aforementioned, the Stipendiary
Engineers were appointed as Assistant Engineers on ad hoc basis between the
years 1997 and 2001. What is important is that pursuant to its initial
proposal of allocating 5% vacancies for those working as degree holder
Junior Engineers in different departments, the Government had between 1996
and 1997 promoted 86 degree holder Junior Engineers on an ad hoc basis as
Assistant Engineers.
12. Five Stipendiary Engineers working in the Water Resources Department
whose names had been recommended along with others for appointment as
Assistant Engineers on ad hoc basis by the Screening Committee set up for
the purpose in the meantime filed O.J.C. No.1563 of 1998 before the Orissa
High Court making a grievance that despite the recommendations made in
their favour, the Government had not appointed them as Assistant Engineers.
That petition was allowed and disposed of by an order dated 6th May, 1998
directing the State Government to consider the case of the writ-petitioners
in the light of its earlier order passed in Jayant Kumar’s case (supra).
Since the said directions were not carried out by the Government, two of
the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of 1999 in which
they complained about the non-implementation of the directions issued by
the High Court earlier and prayed for their regularisation. This petition
was disposed of by the High Court by a common order dated 2nd July, 2002 in
which the High Court noted that the petitioners had been appointed as
Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- by
the Water Resources Department Notification dated 11th December, 1998. The
High Court further held that since the Government was on principle
committed to regularising the appointments of Stipendiary Engineers there
was no reason why the Government should not treat them as direct recruits
since the year 1991, in which they were appointed, and compute their
service from that year for the purpose of in-service promotion, pension and
other service benefits except financial benefits and to absorb them on
regular basis according to law.
13. It was in the above backdrop that the Government finally came up with
a proposal for validation of the appointment of Stipendiary Engineers as
Assistant Engineers. Memorandum dated 28th November, 2002 referred to
appointment of 846 Stipendiary Engineers in Civil, 61 Stipendiary Engineers
in Mechanical and 25 Engineers in Electrical wings making a total of 932
Stipendiary Engineers in different Departments.
We are informed at the Bar
that the present number of such Stipendiary Engineers is limited to 881
only as the rest have either resigned, retired or died.
The proposal made
in the Memorandum also took note of the information given by the Orissa
Public Service Commission and the repeated demands of ad hoc Assistant
Engineers engaged from Stipendiary Engineers for regularization.
The
proposal stated that no regular appointments were made by the Orissa Public
Service Commission and that the validation of appointments of Stipendiary
Engineers as Assistant Engineers will immensely benefit the State in
execution of several ongoing development works.
The proposal further
stated that having rendered more than 10 years of service, these
Stipendiary Engineers currently working as Assistant Engineers on ad hoc
basis will have no avenues for employment as they had already gone beyond
the upper age limit prescribed for direct recruitment.
14. It is in the above backdrop that the State Legislature eventually
enacted Orissa Service of Engineers (Validation of Appointment) Act, 2002
which comprises no more than three sections. Section 3 of the legislation
reads as under:
“3(1) Notwithstanding anything contained in the Recruitment
Rules, seven hundred ninety-nine Assistant Engineers belonging
to the discipline of Civil, fifty-seven Assistant Engineers
belonging to the discipline of Mechanical and twenty-five
Assistant Engineers belonging to the discipline of Electrical as
specified in the Schedule with their names, dates of birth,
dates of appointment and the names of the Departments under
which they are working on ad hoc basis since the date of such
appointment shall be deemed to be validly and regularly
appointed under their respective Department of the Government
against the direct recruitment quota of the service with effect
from the date of commencement of this Act and, accordingly, no
such appointment shall be challenged in any court of law merely
on the ground that such appointments were made otherwise than in
accordance with the procedure laid down in the Recruitment
Rules.
(2) The inter-se-seniority of the Assistant Engineers whose
appointments are so validated shall be determined according to
their dates of appointment on ad hoc basis as mentioned in the
Schedule and they shall be enblock junior to the Assistant
Engineers of that year appointed to the service in the
respective discipline in their cadre in accordance with the
provisions of the Recruitment Rules.
(3) The services rendered by the Assistant Engineers whose
appointments are so validated, prior to the commencement of this
Act shall, subject to the provisions in sub-section (2), count
for the purpose of their pension, leave and increment and for no
other purpose.”
15. A batch of writ petitions being Writ Petitions No.9514 of 2003, 12495
of 2005, 12495 of 2005, 12627 of 2005, 12706 of 2006 and 8630 of 2006, were
then filed by the Degree holder Junior Engineers appointed as Assistant
Engineers on ad hoc basis between 1996 and 1997 challenging the validity of
the above legislation, inter alia, on the ground that the same suffered
from the vice of discrimination inasmuch as while ad hoc Assistant
Engineers, who were earlier appointed on stipendiary basis, had been
regularised under the Validation Act, those appointed against 5% quota
reserved for Junior Engineers holding a degree qualification were left out.
16. Writ Petition No.11093 of 2006 was similarly filed by Junior
Engineers who had not been appointed as Assistant Engineers claiming parity
with Degree holder Junior Engineers already appointed as Assistant
Engineers on ad hoc basis against 5% quota disapproved by the Public
Service Commission for such Engineers.
17. Writ Petition No.16742 of 2006 was filed by Junior Engineers promoted
as Assistant Engineers against 33% quota reserved for such Engineers whose
grievance primarily was that regularisation/validation of the appointments
of Stipendiary Engineers in the cadre of Assistant Engineers was illegal
and unconstitutional and adversely affected them in terms of their
seniority.
18. The above writ petitions were heard by a Division Bench of the High
Court of Orissa who allowed the same by its order dated 15th October, 2008
striking down the impugned Legislation primarily on the ground that the
same brought about discrimination between Assistant Engineers similarly
situate and, therefore, fell foul of Articles 14 and 16 of the
Constitution.
The High Court observed:
“There is no reason as to why appointments of a few persons
working as Assistant Engineers on ad hoc basis have been
validated ignoring the other similarly situated persons working
on ad hoc basis as Assistant Engineers. There cannot be
discrimination or classification amongst the persons working on
ad hoc basis or the post of Assistant Engineers. Once unequal
became equal, the State has no authority to discriminate them
and make equals as unequal.”
19. The present appeals assail the correctness of the above judgment and
order of the High Court. While Civil Appeals No.8324 to 8331 of 2009 have
been filed by the State of Orissa, Civil Appeals No.8322, 8323 of 2009 and
1940 of 2010 have been preferred by Stipendiary Engineers who are adversely
affected by the judgment of the High Court on account of striking down of
the Validation Act under which they were regularized as Assistant
Engineers. Civil Appeal No.1768 of 2006 has, however, been filed by the
Degree holder Junior Engineers who have already been promoted as Assistant
Engineers against 33% quota reserved for them to challenge the judgment of
the High Court in OJC Nos.6354 and 6355 of 1999 directing the State
Government to regularise the services of the writ-petitioners in those
petitions as Assistant Engineers from the date of their appointment as
Stipendiary Engineers with all consequential benefits except financial
benefits.
20. Several intervention applications have been filed in these appeals
including intervention application filed by the SC/ST candidates who were
directly recruited as Assistant Engineers in the year 2004 onwards.
21. We have heard learned counsel for the parties as also those appearing
for the interveners. The following three questions of law arise for
consideration:
1. What is the true nature and purport of the impugned legislation? More
particularly is the impugned legislation a validation enactment or is
it an enactment that grants regularisation to those appointed on ad
hoc basis?
2. If the impugned enactment simply grants regularisation, does it suffer
from any constitutional infirmity?
3. Does Section 3(2) of the impugned legislation suffer from any
unconstitutionality, insofar as the same purports to grant Stipendiary
Assistant Engineers seniority with effect from the date they were
appointed on ad hoc basis?
Re. Question No.1
22. Black’s Law Dictionary (9th Edition, Page No.1545) defines a
Validation Act as “a law that is amended either to remove errors or to add
provisions to conform to constitutional requirements”. To the same effect
is the view expressed by this Court in Hari Singh & Others v. The Military
Estate Officer and Anr. (1972) 2 SCC 239, where this Court said “The
meaning of a Validating Act is to remove the causes for ineffectiveness or
invalidating of actions or proceedings, which are validated by a
legislative measure”. In ITW Signode India Ltd. v. Collector of Central
Excise (2004) 3 SCC 48, this Court described Validation Act to be an Act
that “removes actual or possible voidness, disability or other defect by
confirming the validity of anything which is or may be invalid”.
23. The pre-requisite of a piece of legislation that purports to validate
any act, rule, action or proceedings were considered by this Court in Shri
Prithvi Cotton Mills Ltd. and Ann v. Broach Borough Municipality and Ors.
(1969) 2 SCC 283. Two essentials were identified by this Court for any
such legislation to be valid. These are:
(a) The legislature enacting the Validation Act should be competent to
enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act or the
proceedings needs to be removed.
24. The Court went on to enumerate certain ways in which the objective
referred to in (b) above could be achieved by the legislation and observed
:
"…….. Sometimes this is done by providing for jurisdiction where
jurisdiction had not been properly invested before. Sometimes
this is done by re-enacting retrospectively a valid and legal
taxing provision and then by fiction making the tax already
collected to stand under the re-enacted law. Sometimes the
Legislature gives its own meaning and interpretation of the law
under which the tax was collected and by legislative fiat makes
the new meaning binding upon courts. The Legislature may follow
any one method or all of them and while it does so it may
neutralise the effect of the earlier decision of the court which
becomes ineffective after the change of the law. Whichever
method is adopted it must be within the competence of the
legislature and legal and adequate to attain the object of
validation. If the Legislature has the power over the subject-
matter and competence to make a valid law, it can at any time
make such a valid law and make it retrospectively so as to bind
even past transactions. The validity of a Validating Law,
therefore, depends upon whether the Legislature possesses the
competence which it claims over the subject-matter and whether
in making the validation it removes the defect which the courts
had found in the existing law and makes adequate provisions in
the Validating Law for a valid imposition of the tax."
(emphasis supplied)
25. Judicial pronouncements regarding validation laws generally deal with
situations in which an act, rule, action or proceedings has been found by
a Court of competent jurisdiction to be invalid and the legislature has
stepped in to validate the same. Decisions of this Court which are a legion
take the view that while adjudication of rights is essentially a judicial
function, the power to validate an invalid law or to legalise an illegal
action is within the exclusive province of the legislature. Exercise of
that power by the legislature is not, therefore, an encroachment on the
judicial power of the Court. But, when the validity of any such Validation
Act is called in question, the Court would have to carefully examine the
law and determine whether (i) the vice of invalidity that rendered the act,
rule, proceedings or action invalid has been cured by the validating
legislation (ii) whether the legislature was competent to validate the act,
action, proceedings or rule declared invalid in the previous judgments and
(iii) whether such validation is consistent with the rights guaranteed by
Part III of the Constitution. It is only when the answer to all these three
questions is in the affirmative that the Validation Act can be held to be
effective and the consequences flowing from the adverse pronouncement of
the Court held to have been neutralised. Decisions of this Court in Shri
Prithvi Cotton Mills Ltd. and Anr. V. Broach Borough Municipality and Ors.
(1969) 2 SCC 283, Hari Singh v. Military Estate Officer (1972) 2 SCC 239,
Madan Mohan Pathak v. Union of India (1978) 2 SCC 50, Indian Aluminium Co.
etc. v. State of Kerala and Ors. (1996) 7 SCC 637, Meerut Development
Authority etc. v. Satbir Singh and Ors. etc. (1996) 11 SCC 462, and ITW
Signode India Ltd. v. Collector of Central Excise (2004) 3 SCC 48 fall in
that category. Even in the realm of service law, validation enactments
have subsequent to the pronouncement of competent Courts come about
validating the existing legislation. Decisions of this Court in I.N.
Saksena v. State of Madhya Pradesh (1976) 4 SCC 750, Virender Singh Hooda
and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588 and State of Bihar
and Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 deal with that category
of cases.
26. In the case at hand, the State of Orissa had not suffered any adverse
judicial pronouncement to necessitate a Validation Act, as has been the
position in the generality of the cases dealt with by this Court. The title
of the impugned Legislation all the same describes the legislation as a
Validation Act. The title of a statute is no doubt an important part of an
enactment and can be referred to for determining the general scope of the
legislation. But the true nature of any such enactment has always to be
determined not on the basis of the label given to it but on the basis of
its substance.
27. In M.P.V. Sundararamier & Co. v. State of A.P. & Anr. AIR 1958 SC 468
this Court was considering whether the impugned enactment was a Validation
Act in the true sense.
This Court held that although the short title as
also the marginal note described the Act to be a Validation Act, the
substance of the legislation did not answer that description.
This Court observed:
“It is argued that to validate is to confirm or ratify, and that
can be only in respect of acts which one could have himself
performed, and that if Parliament cannot enact a law relating to
sales tax, it cannot validate such a law either, and that such a
law is accordingly unauthorised and void. The only basis for
this contention in the Act is its description in the Short Title
as the "Sales Tax Laws Validation Act" and the marginal note to
s. 2, which is similarly worded. But the true nature of a law
has to be determined not on the label given to it in the statute
but on its substance. Section 2 of the impugned Act which is the
only substantive enactment therein makes no mention of any
validation. It only provides that no law of a State imposing tax
on sales shall be deemed to be invalid merely because such sales
are in the course of inter-State trade or commerce. The effect
of this provision is merely to liberate the State laws from the
fetter placed on them by Art. 286(2) and to enable such laws to
operate on their own terms.”
(emphasis supplied)
28. We may also refer to Maxwell on Interpretation of Statutes (12th
Edn., page 6), where on the basis of authorities on the subject, short
title of the Act has been held to be irrelevant for the purpose of
interpretation of statutes.
Lord Moulton in Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107 described the short title of an Act as
follows:
“A title given to the act is solely for the purpose of facility
of reference. If I may use the phrase, it is a statutory
nickname to obviate the necessity of always referring to the Act
under its full and descriptive title....Its object is
identification and not description.”
(emphasis supplied)
29. Dr. Dhawan, learned senior counsel appearing for the appellants
fairly conceded that the impugned legislation could not be described as a
simple Validation Act.
According to him, the Act achieved a dual purpose
of (a) validating the invalid ad hoc appointments and (b) appointing the
Stipendiary Engineers working as ad hoc Assistant Engineers on a
substantive basis by regularising their appointments.
While we have no
difficulty in agreeing with the latter part of the contention urged by Dr.
Dhawan and holding that the legislation regularises the appointment of
Stipendiary Engineers as Assistant Engineers, we have not been able to
appreciate the rationale behind the Legislature considering it necessary to
validate the ad hoc appointments, especially when such appointments had
been made by the Government pursuant to the directions issued by the High
Court in the writ petitions filed by the Stipendiary Engineers. Validation
of the ad hoc appointments of the Stipendiary Engineers as Assistant
Engineers would even otherwise have served no purpose. That is because
whether the appointments were officiating/ad hoc/temporary or described by
any other expression, the fact that the Stipendiary Engineers had worked
for a long period of time as Assistant Engineers in temporary/ad
hoc/officiating capacity would have in itself been a ground for the State
to regularise them, subject of course to such regularisation otherwise
meeting constitutional requirements.
It was not as if any such
regularisation was legally impermissible unless the “ad hoc appointments”
granted to Stipendiary Engineers were themselves validated. It is quite
evident that the legislation with which we are concerned was in substance
aimed at regularising the services of such persons as had worked in the
capacity of Assistant Engineers. If that was the true purport of the
legislation, it would be inaccurate to describe the same as a validation
enactment.
30. The matter can be viewed from yet another angle. The enactment came
de hors any compulsion arising from a judicial pronouncement regarding the
invalidity attached to the appointment of Assistant Engineers on ad hoc
basis and only because of the State’s anxiety to appoint/absorb the
Stipendiary Engineers, subsequently appointed as ad hoc Assistant Engineers
on a substantive/regular basis without following the route mandated by the
Service Rules of 1941 applicable for making any such appointments. Having
said that, we must hasten to add that a prior judicial pronouncement
declaring an act, proceedings or rule to be invalid is not a condition
precedent for the enactment of a Validation Act. Such a piece of
legislation may be enacted to remove even a perceived invalidity, which the
Court has had no opportunity to adjudge. Absence of a judicial
pronouncement is not, therefore, of much significance for determining
whether or not the legislation is a validating law.
31. There was in the above context some debate at the Bar whether or not
the impugned enactment is a validating enactment as it purports to be. As
seen above, Dr. Rajiv Dhawan and even Shri Narasimha, did not see the
impugned enactment as a validating legislation, no matter it carries a
label to that effect. Mr. Patwalia & Mr. Sisodia, senior advocates,
appearing for the opposite parties were also not supportive of the
legislation being a validating enactment and in our opinion rightly so.
That is because the essence of a validating enactment is a pre-existing
act, proceeding or rule, being found to be void or illegal with or without
a judicial pronouncement of the Court. It is only when an act committed or
a rule in existence or a proceeding taken is found to be invalid that a
validating act may validate the same by removing the defect or illegality
which is the basis of such invalidity. There is no question of validating
something that has not been done or that has yet to come in existence. No
one can say that an illegality which has not yet been committed can or
ought to be validated by legislation. Existence of an illegal act,
proceedings or rule or legislation is the sine qua non for any validating
legislation to validate the same. There can be no validation of what has
yet to be done, suffered or enacted.
32. Applying the above to the case at hand a Validation Act may have been
necessary if the Government had appointed the ad hoc Assistant Engineers on
a substantive basis in violation of the relevant recruitment Rules. For in
that case, the Government would have done an act which was legally invalid
requiring validation by a legislative measure. But a legislation that did
not validate any such non-existent act, but simply appointed the ad hoc
Assistant Engineers as substantive employees of the State by resort to a
fiction, could not be described as a validating law.
33. The legislation under challenge was in that view not a Validation Act
as it purported to be but an enactment that regularised the appointment of
graduate Stipendiary Engineers working as ad hoc Assistant Engineers as
Assistant Engineers.
Reliance upon the decision of this Court in
Satchidananda Mishra v. State of Orissa and Ors. (2004) 8 SCC 599 is, in
our opinion, of no assistance to the respondents. In Satchdinanda’s case
(supra) the High Court had struck down the validation act which order was
confirmed by this Court in appeal. What is significant, however, is that
while affirming the view taken by the High Court that the validation law
was not constitutionally sound, this Court proceeded on the assumption that
the legislation with which it was dealing with was a validation act in the
true sense. It was on that assumption that this Court looked into the
invalidity and held that the validation act did nothing except validating
the appointments without removing the basis on which such appointments
could be invalidated. We have not proceeded on any such assumption in the
instant case especially because learned counsel for some of the parties
have argued that the legislation under challenge is not a Validation
Enactment. The Enactment in the case at hand deals with the law relating
to regularisation of incumbents holding public office on ad hoc or
temporary basis, much in the same way as regularisation of such temporary
appointments is ordered in terms of a scheme for that purpose. The only
difference is that while a regularisation scheme can be framed by the
Government in exercise of its executive power, the regularisation ordered
in the case at hand is by way of a legislation. It is trite that what
could be achieved by the Government by exercise of its executive power
could certainly be achieved by legislation, as indeed it has been achieved
in the case at hand. Question No.1 is answered accordingly.
Re. Question No.2
34. A Constitution Bench of this Court in Secretary, State of Karnataka
and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 ruled that regularisation
of illegal or irregularly appointed persons could never be an alternative
mode of recruitment to public service. Such recruitments were, in the
opinion of this Court, in complete negation of the guarantees contained in
Articles 14 and 16 of the Constitution. Having said so, this Court did not
upset the regularisations that had already taken place, regardless of
whether such regularisations related to illegal or irregular appointments.
The ratio of the decision in that sense was prospective in its application,
leaving untouched that which had already happened before the pronouncement
of that decision. This is evident from the following passage appearing in
the decision:
“We also clarify that regularization, if any already made, but
not subjudice, need not be reopened based on this judgment, but
there should be no further by-passing of the constitutional
requirement and regularizing or making permanent, those not duly
appointed as per the constitutional scheme.”
35. The above is a significant feature of the pronouncement of this Court
in Umadevi’s case (supra). The second and equally significant feature is
the exception which this Court made in para 53 of the decision permitting a
one-time exception for regularising services of such employees as had been
irregularly appointed and had served for ten years or more.
The State
Government and its instrumentalities were required to formulate schemes
within a period of six months from the date of the decision for
regularisation of such employees.
This is evident from a reading of para
53 of the decision which is reproduced in extenso:
“One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained
in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N.
Nagarajan (supra), and referred to in paragraph 15 above, of
duly qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to work for ten
years or more but without the intervention of orders of courts
or of tribunals.
The question of regularization of the services
of such employees may have to be considered on merits in the
light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context,
the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months
from this date...”
(emphasis supplied)
36. Dr. Dhawan, learned senior counsel, appearing for the appellants in
some of these appeals argued, and in our opinion rightly so, that both the
aspects referred to above bear considerable significance to the case at
hand. He submitted that regularisations granted by the State or its
instrumentalities given in regard to appointments that were strictly
speaking illegal had not been upset by this Court in Umadevi’s case
(supra). That being so, the impugned Enactment by which the appointment of
the appellants- Stipendiary Engineers were regularised as Assistant
Engineers must also be treated to have been saved from the rigour of the
view taken in Umadevi’s case (supra). There is merit in that contention.
The decision in Umadevi’s case (supra) stated the true legal position on
the subject but having regard to the fact that several earlier decisions of
this Court had sanctioned regularisation of those not regularly appointed,
this Court was of the view that upsetting such regularisations would not
only unsettle what stood settled but also gravely prejudice those who are
benefitted from such orders of regularisation. There is no gainsaying that
most of such persons who entered the public service initially without going
through any open competitive selection process would have lost by passage
of time their prospects of entering public service by legal course even if
vacancies were available for such appointments. In some of the decisions
the continuance of employees on ad hoc, temporary or daily-wage basis for
an indefinite period was seen by this Court also to be a violation of the
fundamental right to life apart from being discriminatory. Considering the
magnitude of the problem that would arise if all such appointments were to
be unsettled, this Court in Umadevi’s case (supra) left such regularisation
alone and declared that in the future such orders of appointments dehors
rules would not qualify for the grant of regularisation in public
employment.
37. Equally important is the fact that even after declaring the true
legal position on the subject and even after deprecating the practice of
appointing people by means other than legitimate, this Court felt that
those who had served for ten years or so may be put to extreme hardship if
they were to be discharged from service and, therefore, directed the
formulation of a scheme for their regularisation. This was no doubt a one-
time measure, but so long as the appointment sought to be regularised was
not illegal, the scheme envisaged by para 53 of the decision (supra)
extracted above permitted the State to regularise such employees. Dr.
Dhawan argued that the appellants- Stipendiary Engineers had, by the time
the decision in Umadevi’s case (supra) was pronounced, qualified for the
benefit of a scheme of regularisation having put in ten years as ad hoc
Assistant Engineers and fifteen years if their tenure was to be counted
from the date of their employment as Stipendiary Engineers. He contended
that even in the absence of a Validation Act, Stipendiary Engineers
appointed on ad hoc basis as Assistant Engineers, who had worked for nearly
ten years to the full satisfaction of the State Government would have been
entitled to regularisation of their services in terms of any such scheme.
38. On behalf of the diploma holder Junior Engineers, it was contended by
Mr. Sisodia that the appointment of Stipendiary degree holders as ad hoc
Assistant Engineers was not irregular but illegal. It was contended that
Stipendiary Engineers were appointed on ad hoc basis without following the
procedure permitted under the rules which, inter alia, entitled the degree
holder Junior Engineers also to compete. He submitted that although diploma
holder Junior Engineers were not entitled to compete against the vacancies
on the direct recruitment quota in the cadre of Assistant Engineers, yet
they were entitled to argue that any appointment to the cadre ought to be
made in accordance with the rules especially when regularisation of degree
holder Stipendiary Engineers would give them advantage in seniority to the
prejudice of the diploma holder Junior Engineers who may at their own turn
be promoted in the cadre of Assistant Engineers. We have no hesitation in
rejecting that contention. Diploma holder Junior Engineers were not,
admittedly, eligible to be appointed as Assistant Engineers in the direct
recruitment quota. They could not make a grievance against regularisation
simply because of the fact that those regularised may figure above them in
seniority. Seniority is an incident of appointment to the cadre which must
be regulated by the relevant rules. Any possible prejudice to diploma
holders in terms of seniority would not, therefore, make the regularisation
unconstitutional or illegal and hence beyond the purview of para 53 in
Umadevi’s case (supra).
39. Mr. Patwalia, learned senior counsel appearing for the degree holder
Junior Engineers who were also appointed on ad hoc basis as Assistant
Engineers against 5% quota which the Government resolution had provided
for, argued that although degree holder Junior Engineers are eligible for
appointment against the vacancies in direct recruits quota, that
opportunity was not available to his clients when the degree holder Junior
Engineers were appointed as Assistant Engineers. He contended that Junior
Engineer degree holders who were appointed as ad hoc Assistant Engineers
against 5% quota reserved for them under the Government resolution would
have no objection to the regularisation being upheld provided degree holder
Junior Engineers who had served for a relatively longer period as Assistant
Engineers on ad hoc basis were also given a similar treatment. He submitted
that the exclusion of degree holder Junior Engineers from the legislative
measure aimed at regularising the Stipendiary degree holders was clearly
discriminatory and that the High Court was on that count justified in
holding that the Validation Act itself was ultra vires. It was contended by
Mr. Patwalia that even if the legislature had restricted the benefit of
regularisation to the Stipendiary Engineers later appointed on ad hoc basis
as Assistant Engineers, there was no reason why this Court could not extend
the very same benefit to degree holder engineers who had similarly worked
for over 15 years.
40. The decision in Umadevi’s case (supra), as noticed earlier, permitted
regularisation of regular appointments and not illegal appointments.
Question, however, is whether the appointments in the instant case could be
described as illegal and if they were not, whether the State could be
directed to regularise the services of the degree holder Junior Engineers
who have worked as ad hoc Assistant Engineers for such a long period, not
only on the analogy of the legislative enactment for regularisation but
also on the principle underlying para 53 of the decision in Umadevi’s case
(supra).
41. As to what would constitute an irregular appointment is no longer res
integra. The decision of this Court in State of Karnataka v. M.L. Kesari
and Ors. (2010) 9 SCC 247, has examined that question and explained the
principle regarding regularisation as enunciated in Umadevi’s case (supra).
The decision in that case summed up the following three essentials for
regularisation (1) the employees worked for ten years or more, (2) that
they have so worked in a duly sanctioned post without the benefit or
protection of the interim order of any court or tribunal and (3) they
should have possessed the minimum qualification stipulated for the
appointment. Subject to these three requirements being satisfied, even if
the appointment process did not involve open competitive selection, the
appointment would be treated irregular and not illegal and thereby qualify
for regularisation. Para 7 in this regard is apposite and may be extracted
at this stage:
“7. It is evident from the above that there is an exception to
the general principles against “regularisation” enunciated in
Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or
more in duly sanctioned post without the benefit or protection
of the interim order of any court or tribunal. In other words,
the State Government or its instrumentality should have employed
the employee and continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should not be illegal,
even if irregular. Where the appointments are not made or
continued against sanctioned posts or where the persons
appointed do not possess the prescribed minimum qualifications,
the appointments will be considered to be illegal. But where the
person employed possessed the prescribed qualifications and was
working against sanctioned posts, but had been selected without
undergoing the process of open competitive selection, such
appointments are considered to be irregular.”
42. It is nobody’s case that the degree holder Junior Engineers were not
qualified for appointment as Assistant Engineers as even they possess
degrees from recognised institutions. It is also nobody’s case that they
were not appointed against the sanctioned post. There was some debate as to
the actual number of vacancies available from time to time but we have no
hesitation in holding that the appointments made were at all relevant
points of time against sanctioned posts. The information provided by Mr.
Nageshwar Rao, learned Additional Solicitor General, appearing for the
State of Orissa, in fact, suggests that the number of vacancies was at all
points of time more than the number of appointments made on ad hoc basis.
It is also clear that each one of the degree holders has worked for more
than 10 years ever since his appointment as ad hoc Assistant Engineer. It
is in that view difficult to describe these appointments of the Stipendiary
Engineers on ad hoc basis to be illegal so as to fall beyond the purview of
the scheme envisaged in Umadevi’s case (supra).
43. The upshot of the above discussion is that not only because in
Umadevi’s case (supra) this Court did not disturb the appointments already
made or regularisation granted, but also because the decision itself
permitted regularisation in case of irregular appointments, the legislative
enactment granting such regularisation does not call for interference at
this late stage when those appointed or regularised have already started
retiring having served their respective departments, in some cases for as
long as 22 years.
44. We need to advert to one other aspect which bears relevance to the
issue whether regularisation under the impugned Enactment is legally valid.
The appointment process of unemployed degree holders, as noticed earlier,
started with the resolution passed by the State Government which envisaged
appointments of such unemployed Graduate Engineers as Stipendiaries on a
consolidated stipend of Rs.2,000/- p.m. The resolution further envisaged
their absorption in service after a period of two years. Not only that,
appointments as Stipendiary Engineers were made on the basis of a selection
process and on the basis of merit no matter determined de hors the relevant
rules which provided for appointments to the cadre to be made only through
the Public Service Commission. A reference to the Public Service Commission
was no doubt considered unnecessary but the fact remains that appointment
of unemployed degree holders as Stipendiary Engineers were made pursuant to
a notification by which everyone who was unemployed and held an Engineering
degree in any discipline was free to make an application. A large number of
unemployed engineers responded to the notification inviting applications
out of whom nearly 932 were selected by a Selection Committee constituted
for the purpose. What is significant is that the empanelment of the
unemployed degree holders for appointment as Stipendiaries did not invite
any criticism from any quarter either as to the method of appointment or
the fairness of the selection process. The process of appointment was at no
stage questioned before the Court, a feature which is notable keeping in
view the number of people appointed/empanelled and a larger number who were
left out and who could have possibly made a grievance if there was any. It
is not, therefore, wholly correct to suggest that the entry of the degree
holder Junior Engineers as Stipendiary Engineers and later as Assistant
Engineers was through “the backdoor”, an expression very often used in
service matters where appointments are made de hors the rules. The process
of selection and appointments may not have been as per the relevant rules
as the same ought to have been, but it is far from saying that there was
complete arbitrariness in the manner of such appointments so as to violate
Articles 14 and 16 of the Constitution of India.
45. That apart the appointment of Stipendiary Engineers was at the level
of Junior Engineers although it was argued on their behalf that they were
discharging the functions of Assistant Engineers from the date they were
employed. In the absence of any finding from the High Court on the subject
and in the absence of any cogent material before us to support that claim,
we find it difficult to hold that the appointment of the Stipendiary
Engineers was from the beginning itself as Assistant Engineers. The fact
that the resolution of the State Government itself envisaged appointment of
Stipendiary Engineers as ad hoc Assistant Engineers on the basis of
performance makes it amply clear that the Stipendiary Engineers were not
treated as Assistant Engineers for otherwise there would have been no
question of appointing them as Assistant Engineers on ad hoc or any other
basis. It is also noteworthy that the appointment of the Stipendiary
Engineers on ad hoc basis came pursuant to the direction from the High
Court which is yet another reason why it is not open to the Stipendiary
Engineers to claim that they were at all points of time working as
Assistant Engineers. Having said that we cannot lose sight of the fact that
the appointment of graduate engineers as Stipendiaries was on a clear
representation that they would be eventually absorbed in service as
Assistant Engineers. That representation is evident from the resolution of
the State Government where it stated:
“In all, therefore, 741 posts will be available for
recruiting these Degree Engineers in the first instance. They
may be designed as Junior Engineers or Stipendiary Engineers in
the first phase. They may be paid salary in the scale of Junior
Engineers or in a consolidated stipend of Rs.2,000/- per month.
Absorption into regular posts may be done after two years on the
basis of their performance.”
46. In the counter-affidavit filed by the State Government before the
High Court the State re-affirmed its commitment to the appointment of
Stipendiary Engineers as Assistant Engineers on ad hoc basis.
47. In the circumstances and taking a holistic view of the matter, it
cannot be said that the appointment of Stipendiary Engineers on ad hoc
basis and their subsequent regularisation came as a side wind or was
inspired by any political or other consideration. The Government, it
appears, was from the very beginning, keen to utilise the services of
unemployed Graduate Engineers selected on their merit by the Selection
Committee and, therefore, remained steadfast in its efforts for achieving
that purpose and in the process going even to the extent of getting them
regularised by a legislative measure. Suffice it to say that the question
whether regularisation was justified cannot be viewed in isolation or
divorced from the context in which the same arises.
48. We may now turn to the contention urged by Mr. Patwalia, that the
impugned Legislation was discriminatory in as much as it granted
regularisation to persons similarly situated while denying such benefit to
his client who not only held a degree qualification like the Stipendiary
Engineers but were in terms of the Government resolution promoted as Ad hoc
Assistant Engineers against 5% quota reserved for them. It was argued that
State could not have classified ad hoc Assistant Engineers who came from
the Stipendiary Engineers stream, on one hand, and those appointed as ad
hoc Assistant Engineers on account of their being in service as Junior
Engineers holding a degree qualification. The degree holder Junior
Engineers, it was contended, were in comparison better entitled to
regularisation as they had not only the requisite qualification but had put
in longer service as ad hoc Assistant Engineers vis-a-vis their Stipendiary
counterparts. Alternatively, it was contended that the degree holder Junior
Engineers who too had put in more than 15 years service, were entitled to a
direction for their regularisation as Assistant Engineers not only on
account of the length of service rendered by them but also on the analogy
of the legislative benefit extended to their counterpart Stipendiaries.
49. The approach to be adopted and the principles applicable to any
forensic exercise aimed at examining the validity of a legislation on the
touchstone of Article 14 of the Constitution have been long since settled
by several decisions of this Court. Restatement or repetition of those
principles was, therefore, considered platitudinous. The real difficulty as
often acknowledged by this Court lies not in stating the principles
applicable but in applying them to varying fact situations that come up for
consideration. Trite it is to say at the outset that a piece of legislation
carries with it a presumption of constitutional validity. Also settled by
now is the principle that Article 14 does not forbid reasonable
classification. A classification is valid on the anvil of Article 14, if
the same is reasonable that is it is based on a reasonable and rational
differentia and has a nexus with the object sought to be achieved. (See
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 and Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538). A
comprehensive review of the law is, in our opinion, unnecessary at this
stage in view of the Constitution Bench decision of this Court in Re: The
Special Courts Bill, 1978 (1979) 1 SCC 380 where this Court undertook that
exercise and noticed as many as thirteen propositions that bear relevance
to any forensic determination of the validity of a law by reference to the
equality clause enshrined in Article 14 of the Constitution. Some of those
principles were stated by this Court in the following words:
“xxx xxx xxx
(2) The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups
or classes of persons within its territory to attain particular
ends in giving effect to its policies, and it must possess for
that purpose large powers of distinguishing and classifying
persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or scientific
exclusion or inclusion of persons or things. The courts should
not insist on delusive exactness or apply doctrinaire tests for
determining the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not
that the same rules of law should be applicable to all persons
within the Indian territory or that the same remedies should be
made available to them irrespective of differences of
circumstances. It only means that all persons similarly
circumstanced shall be treated alike both in privileges
conferred and liabilities imposed. Equal laws would have to be
applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the
subject-matter of the legislation their position is
substantially the same.
(5) By the process of classification, the State has the power of
determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular
subject. This power, no doubt, in some degree is likely to
produce some inequality; but if a law deals with the liberties
of a number of well defined classes, it is not open to the
charge of denial of equal protection on the ground that it has
no application to other persons. Classification thus means
segregation in classes which have a systematic relation, usually
found in common properties and characteristics. It postulates a
rational basis and does not mean herding together of certain
persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the
needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the
classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left out but
those qualities or characteristics must have a reasonable
relation to the object of the legislation. In order to pass the
test, two conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others
and (2) that that differentia must have a rational relation to
the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and
the object of the Act are distinct things and what is necessary
is that there must be a nexus between them. In short, while
Article 14 forbids class discrimination by conferring privileges
or imposing liabilities upon persons arbitrarily selected out of
a large number of other persons similarly situated in relation
to the privileges sought to be conferred or the liabilities
proposed to be imposed, it does not forbid classification for
the purpose of legislation, provided such classification is not
arbitrary in the sense abovementioned.
xxx xxx xxx
(11) Classification necessarily implies the making of a
distinction or discrimination between persons classified and
those who are not members of that class. It is the essence of a
classification that upon the class are cast duties and burdens
different from those resting upon the general public. Indeed,
the very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality.
xxx xxx xxx”
50. Applying the above to the case at hand, the first and foremost
question would be whether the classification of ad hoc Assistant Engineers
is reasonable, that there is a reasonable differentia that distinguishes
those grouped together for the grant of the benefit from those left out and
if there is such a differentia, whether the classification has a reasonable
nexus with the object underlying the legislation.
51. The second and by no means less important is the question whether the
impugned legislation is ultra vires of Article 14 because of under
inclusion. That is because the argument of the writ petitioners in
substance is that the legislation ought to have included even in-service
Junior Engineers degree holders working as Ad hoc Assistant Engineers for
the benefit of regularisation.
52. There is no difficulty in answering the first question. We say so
because the beneficiaries of the impugned legislation constitute a class by
themselves inasmuch as they were un-employed degree holders appointed as
Stipendiary Engineers on a consolidated pay. The method of their employment
was also different inasmuch as although they were selected on the basis of
inter-se merit, the process of selection itself was not conducted by the
Public Service Commission. Their appointment as ad hoc Assistant Engineers
also came pursuant to a direction issued by the High Court no matter the
direction itself was based on a resolution passed by the State Government
that provided for such appointments upon proof of satisfactory performance.
The object underlying the legislation evidently being to ensure continued
utilisation of the services of such Stipendaries appointed on ad hoc basis
as Assistant Engineers, there was a reasonable nexus between the
classification and the object sought to be achieved. It is not the case of
writ petitioners that Stipendiary Engineers appointed as ad hoc Assistant
Engineers were left out of the group for a hostile treatment by refusal of
the benefit extended to others similarly situated. What the writ
petitioners contend in support of their challenge to the validity of the
legislation is that since they were also appointed on ad hoc basis though
in a different way, the legislation was bad for under inclusion. We shall
presently deal with the test applicable to cases where the challenge to the
legislation is founded on under inclusion but before we do so, we need to
dispel the impression that the writ petitioners were similarly situated as
the Stipendiaries only because they were also working as ad hoc Assistant
Engineers. There is no gainsaying that the legislation does not aim at
regularising all ad hoc Assistant Engineers regardless of the circumstances
in which such appointments came about. If that were so, the writ
petitioners could well argue that since the object underlying the enactment
is to regularise all ad hoc Assistant Engineers, they could not be left out
without violating their fundamental rights under Article 14 of the
Constitution. The impugned legislation, however, has limited its
beneficence to ad hoc Assistant Engineers who came in as Stipendiary
Engineers pursuant to a policy decision of the State Government that aimed
at utilising their services and dealing with the unemployment problem in
the State. That being the object, ad hoc Assistant Engineers appointed by
other modes or in circumstances other than those in which Stipendiaries
entered the service, cannot cry foul or invite the wrath of Article 14 upon
the legislation. As a matter of fact, the State Government’s resolve to
give 5% vacancies to in service degree holder Junior Engineers itself
brought about a classification between Stipendiaries on one hand and the in-
service Junior Engineers on the other. The proposed reservation having run
into rough waters because of the opposition of the Orissa Public Service
Commission, the in-service Junior Engineer writ petitioners before the High
Court lost their fight for a share in the higher cadre of Assistant
Engineers based on their higher qualification. Suffice it to say that
Stipendiary Engineers later appointed as ad hoc Assistant Engineers were a
class by themselves and any benefit to them under the impugned Enactment
could not be grudged by in-service Junior Engineers no matter the latter
had in anticipation of the amendment to the recruitment rules also got
appointed as ad hoc Assistant Engineers.
53. Coming then to the question of “under inclusion” we need to keep in
mind that a challenge based on “under inclusion” is not readily accepted by
Courts. Constitution Bench’s decision of this Court in State of Gujarat and
Anr. v. Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974) 4 SCC 656, dealt
with the question of a classification which was under inclusive and
declared that having regard to the real difficulties under which
legislatures operate, the Courts have refused to strike down legislations
on the ground that they are under inclusive. The Court observed:
“55. A classification is under-inclusive when all who are
included in the class are tainted with the mischief but there
are others also tainted whom the classification does not
include. In other words, a classification is bad as under-
inclusive when a State benefits or burdens persons in a manner
that furthers a legitimate purpose but does not confer the same
benefit or place the same burden on others who are similarly
situated. A classification is over-inclusive when it includes
not only those who are similarly situated with respect to the
purpose but others who are not so situated as well. In other
words, this type of classification imposes a burden upon a wider
range of individuals than are included in the class of those
attended with mischief at which the law aims. Herod ordering the
death of all male children born on a particular day because one
of them would some day bring about his downfall employed such a
classification.
56. The first question, therefore, is, whether the exclusion of
establishments carrying on business or trade and employing less
than 50 persons makes the classification under-inclusive, when
it is seen that all factories employing 10 or 20 persons, as the
case may be, have been included and that the purpose of the law
is to get in unpaid accumulations for the welfare of the labour.
Since the classification does not include all who are similarly
situated with respect to the purpose of the law, the
classification might appear, at first blush, to be unreasonable.
But the Court has recognised the very real difficulties under
which legislatures operate - difficulties arising out of both
the nature of the legislative process and of the society which
legislation attempts perennially to re-shape - and it has
refused to strike down indiscriminately all legislation
embodying classificatory inequality here under consideration.
Mr. Justice Holmes, in urging tolerance of under- inclusive
classifications, stated that such legislation should not be
disturbed by the Court unless it can clearly see that there is
no fair reason for the law which would not require with equal
force its extension to those whom it leaves untouched.”
(emphasis supplied)
54. The above was followed by this Court in The Superintendent and
Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and
Ors. (1975) 4 SCC 754 where this Court held that some sacrifice of absolute
equality may be required in order that legal system may preserve the
flexibility to evolve new solutions to social and economic problems. This
Court said:
“8. Often times the courts hold that under-inclusion does not
deny the equal protection of laws under Article 14. In strict
theory, this involves an abandonment of the principle that
classification must include all who are similarly situated with
respect to the purpose. This under-inclusion is often explained
by saying that the legislature is free to remedy parts of a
mischief or to recognize degrees of evil and strike at the harm
where it thinks it most acute.
xxxxxxxxxxxx
10. There are two main considerations to justify an under-
inclusive classification. First, administrative necessity.
Second, the legislature might not be fully convinced that the
particular policy which it adopts will be fully successful or
wise. Thus to demand application of the policy to all whom it
might logically encompass would restrict the opportunity of a
State to make experiment. These techniques would show that some
sacrifice of absolute equality may be required in order that the
legal system may preserve the flexibility to evolve new
solutions to social and economic problems. The gradual and
piecemeal change is often regarded as desirable and legitimate
though in principle it is achieved at the cost of some equality.
It would seem that in fiscal and regulatory matters the court
not only entertains a greater presumption of constitutionality
but also places the burden on the party challenging its validity
to show that it has no reasonable basis for making the
classification.”
55. The above decisions were followed in Ajoy Kumar Banerjee and Ors. v.
Union of India and Ors. (1984) 3 SCC 127 where this Court observed:
“...Article 14 does not prevent legislature from introducing a
reform i.e. by applying the legislation to some institutions or
objects or areas only according to the exigency of the situation
and further classification of selection can be sustained on
historical reasons or reasons of administrative exigency or
piecemeal method of introducing reforms. The law need not apply
to all the persons in the sense of having a universal
application to all persons. A law can be sustained if it deals
equally with the people of well-defined class-employees of
insurance companies as such and such a law is not open to the
charge of denial of equal protection on the ground that it had
no application to other persons.”
56. We have in the light of the above no hesitation in holding that the
legislation under challenge does not suffer from any constitutional
infirmity and that the High Court was in error in having struck it down.
57. Having said that we are of the opinion that even when the challenge
to the constitutional validity of the impugned enactment fails, the degree
holder Junior Engineers currently working as ad hoc Assistant Engineers are
entitled to the relief of regularisation in service, having regard to the
fact that they have rendered long years of service as Assistant Engineers
on ad hoc basis for 17 to 18 years in some cases. While it is true that
those in service degree holders working as Junior Engineers were not the
beneficiaries of the legislation under challenge, the fact remains, that
they were eligible for appointment as Assistant Engineers on account of
their being degree holders. It is also not in dispute that they were
appointed against substantive vacancies in the cadre of Assistant Engineers
no matter by utilizing the direct recruit quota. Even in the case of
Stipendiary Engineers the vacancies were utilized out of the 67% quota
meant for direct recruitment. What is, however, significant is that the
utilization of the quota reserved for direct recruitment for appointing
Stipendiary and Junior Engineers as Assistant Engineers has not been
assailed either before the High Court or before us. On the contrary the
contention urged on behalf of Junior Engineers degree holders who are still
working as Junior Engineers was that the remainder of vacancies comprising
5% of the cadre strength should be utilised to appoint the eligible degree
holder Junior Engineers. We shall presently deal with that contention.
Suffice it to say for the present that the appointments granted to degree
holder Junior Engineers as Assistant Engineers on ad hoc basis were
pursuant to a Government decision whereunder such degree holders as were
already in-service as Junior Engineers, were also given an opening for
upward movement. Appointment of such degree holders was not grudged by
their diploma holder colleagues as no challenge was mounted by them to such
appointments ostensibly because degree holder Junior Engineers were getting
appointed without in the least affecting the quota of 33% reserved for the
promotees. In a way the upward movement of the degree holders as Assistant
Engineers brightened the chances of the rest to get promoted at their turn
in the promotees quota. All told, the Junior Engineers have served for
almost a lifetime and held substantive vacancies no matter on ad hoc basis.
To revert them at this distant point of time would work hardship to them.
Besides, we cannot ignore the march of events especially the fact that
Stipendaries appointed at a later point of time with the same
qualifications and pursuant to the very same Government policy as took
shape for both the categories, have been regularised by the Government
through the medium of a legislation. That this Court can suitably mould the
relief, was not in serious controversy before us. In the circumstances, we
hold the degree holder Junior Engineers currently working as Assistant
Engineers on ad hoc basis writ petitioners in the High Court entitled to
the relief of regularisation with effect from the same date as the
Validation Act granted such regularisation to the Stipendiary Engineers.
58. We shall advert to the question of inter se seniority between the two
categories while we take up question No.3. But before we turn to question
No.3 we need to briefly deal with the contention urged on behalf of some of
the degree holder Junior Engineers represented by Mr. Dholakia who
contended that since the Government resolution had provided for 5% quota
for degree holder Junior Engineers the Government was duty bound to make
appointments against that quota. It was urged that the cadre strength of
the Assistant Engineers had not been presently determined by the Government
nor were the figures given by the State Government accurate. The number of
Junior Engineers who should have got appointed against 5% quota reserved
for them would have been large, agreed Mr. Dholakia. To the extent of
shortfall the State Government was bound to continue the process of
appointment, contended the learned counsel.
59. There is, in our opinion, no merit in the submissions urged by Mr.
Dholakia and by learned counsel for some of the interveners. We say so
because the quota which the Government resolution proposed to carve out
never fructified by a corresponding amendment of the Service Rules. As
noticed in the earlier part of this order, the Orissa Public Service
Commission was not agreeable to the reservation of a quota for the
subordinate engineering service members who held a degree qualification. No
such classification was, therefore, made or could be made by the
Government, nor was the Government resolution translated into a binding
rule that could be enforced by a Court of law. Assuming, therefore, that
on a true and proper determination of the posts comprising the cadre
strength of Assistant Engineers, some more vacancies could fall in the 5%
quota proposed to be reserved for the degree holder Junior Engineers and no
mandamus could be issued for filing up such vacancies. It is trite that
existence of an enforceable right and a corresponding obligation is a
condition precedent for the issue of a mandamus. We fail to locate any such
right in favour of the writ petitioner degree holders who are still holding
posts as Junior Engineers. They will have, therefore, to wait for their
turn for promotion against the 33% quota reserved for them along with their
diploma holder colleagues. We hardly need to emphasise that those appointed
against 5% quota may also have had no such right, but since they have
worked in the higher cadre for a long period and discharged duties attached
to the posts of Assistant Engineers with the benefits attached thereto,
their regularisation comes on a totally different juristic basis than the
one sought to be urged on behalf of those who were left out. Appointments
as Assistant Engineers were from out of Junior Engineers made strictly
according to seniority. The fortuitous circumstance under which the
appointments did not extend to the full quota of 5% would make no material
difference when it comes to finding out whether the Junior Engineers can
claim an enforceable legal right.
60. Question No.2 is answered accordingly.
Re. Question No.3
61. Section 3(2) of the impugned legislation deals entirely with the
inter se seniority of Assistant Engineers whose appointments are
validated/regularised by the said enactment and stipulates that such inter
se seniority shall be determined according to the dates of appointment of
the officers concerned on ad hoc basis as mentioned in the schedule. It
further stipulates that all those regularised under the legislation shall
be enbloc junior to the Assistant Engineers of that year appointed to the
service in their respective discipline in their cadre in accordance with
the provisions of the Recruitment Rules. Sub-section (3) of Section 3 makes
the ad hoc service rendered by such Assistant Engineers count for the
purpose of their pension, leave and increments and for no other purpose.
62. Appearing for the State of Orissa, Mr. Nageshwar Rao contended that
grant of seniority to ad hoc Assistant Engineers regularised under the
legislation w.e.f. the date they were appointed on ad hoc basis was legally
permissible especially when the ad hoc appointments had continued without
any interruption till their regularisation. Reliance in support was placed
by Mr. Rao upon a Constitution Bench decision of this Court in Direct
Recruit Class II Engineering Officers’ Association v. State of Maharashtra
and Ors. (1990) 2 SCC 715. The case at hand, according to the learned
counsel, fell under proposition (B) formulated in the said decision. Grant
of seniority from the date of initial appointments did not, therefore,
suffer from any constitutional or other infirmity to warrant interference
from this Court.
63. Mr. Sisodia appearing for some of the parties, on the other hand,
contended that seniority could be granted only from the date of
regularisation under the enactment and not earlier. Learned counsel for
some of the interveners adopted that contention, including Ms. Aishwarya
appearing for some of the diploma holder Junior Engineers and urged that ad
hoc service rendered by the Engineers appointed otherwise than in
accordance with the rules could not count for the purposes of seniority and
that even if Section 3(1) of the Validation Act was held to be valid,
Section 3(2) which gave retrospective seniority from the date they were
first appointed on ad hoc basis must go.
64. In Direct Recruit’s case (supra) this Court reviewed and summed up
the law on the subject by formulating as many as 11 propositions out of
which propositions A and B stated in Para 47 of the decision in the
following words are relevant for our purposes:
“47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made
as a stop-gap arrangement, the officiation in such post cannot
be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues in
the post uninterruptedly till the regularisation of his service
in accordance with the rules, the period of officiating service
will be counted.”
65. There was some debate at the bar whether the case at hand is covered
by corollary to proposition A or by proposition B (supra). But having
given our consideration to the submissions at the Bar we are inclined to
agree with Mr. Rao’s submission that the case at hand is more appropriately
covered by proposition B extracted above. We say so because the initial
appointment of ad hoc Assistant Engineers in the instant case was not made
by following the procedure laid down by the Rules. Even so, the appointees
had continued in the posts uninterruptedly till the Validation Act
regularised their service. There is, in the light of those two significant
aspects, no room for holding that grant of seniority and other benefits
referred to in Section 3(3) of the impugned Act were legally impermissible
or violated any vested right of the in service Assistant Engineers
appointed from any other source. Proposition A, in our opinion, deals with
a situation where an incumbent is appointed to a post according to the
rules but the question that arises for determination is whether his
seniority should be counted from the date of his appointment or from the
date of his confirmation in the said service. The corollary under
proposition A, in our opinion, deals with an entirely different situation,
namely, where the appointment is ad hoc and made as a stop-gap-arrangement
in which case officiation in such post cannot be taken into consideration
for seniority. Be that as it may, as between proposition A and B the case
at hand falls more accurately under proposition B which permits grant of
seniority w.e.f. the date the appointees first started officiating followed
by the regularisation of their service as in the case at hand.
66. We may also refer to a three-Judge Bench of this Court in Union of
India and Anr. etc. etc. v. Lalita S. Rao and Ors. etc. etc. (2001) 5 SCC
384 where doctors appointed by Railway Administration on ad hoc basis had
been upon regularisation granted seniority from the date of their ad hoc
appointment. This Court held that proposition B stated in Direct Recruits
case (supra) permitted such seniority being granted. This Court observed:
“Obviously the Court had in mind the principle B evolved by the
Constitution Bench in the Direct Recruit Engineering Officers
Association case (supra). If the initial appointment had not
been made in accordance with the prescribed procedure laid down
by the Recruitment Rules, and yet the appointees Medical
Officers were allowed to continue in the post uninterruptedly
and then they appeared at the selection test conducted by the
Union Public Service Commission, and on being selected their
services stood regularised then there would be no justification
in not applying the principle 'B' of the Direct Recruit Class II
Engineering Officers Association case (supra) and denying the
period of officiating services for being counted for the purpose
of seniority.”
67. Reference may also be made to the decision of this Court in State of
Andhra Pradesh & Anr. V. K.S. Muralidhar & Ors. (1992) 2 SCC 241 where the
Government of India gave weightage to service rendered by employees prior
to their regularisation. The dispute in that case was regarding inter se
seniority between the Supervisors who were upgraded as Junior Engineers and
the degree holders who were directly appointed as Junior Engineers. This
Court held that the State Government had as a matter of policy given
weightage to both the categories and that there was nothing unreasonable in
giving a limited benefit or weightage to the upgraded Supervisors in the
light of their experience. This Court said:
“The question to be considered is from which date the weightage
of four years' service should be given to the upgraded Junior
Engineers namely the Supervisors. Is it the date of acquiring
the degree qualification or the date of their appointment?
Having given our earnest consideration and for the reasons
stated above we hold that the weightage can be given only from
the date of their appointment.
The Tribunal in the course of its order, however, observed that
in accordance with the existing rules the appointments of these
Junior Engineers from the notional date have to be cleared by
the Public Service Commission and the appointments cannot be
held to be regular appointments as long as they are not approved
by the Public Service Commission.
Xx xx xx
To sum up, our conclusions are as under:
(i) The weightage of four years in respect of upgraded Junior
Engineers as provided in G.O. Ms. No. 559 has to be reckoned
from the date of appointment and not the date of their acquiring
the degree qualification;
(ii) On the basis of that notional date, their inter-se
seniority has to be fixed;
(iii) The regularisation of the degree-holder Junior Engineers
who passed the SQT by giving retrospective effect cannot be held
to be illegal, and their seniority among themselves shall be
subject to the order of ranking given by the Public Service
Commission on the basis of the SQT;
(iv) The Government shall prepare a common seniority list of the
degree-holders Junior Engineers and the upgraded Junior
Engineers on the above lines and that list shall be the basis
for all the subsequent promotions. Promotions, if any, already
given shall be reviewed and readjusted in accordance with the
said seniority list; and
(v) The approval of the Public Service Commission in respect of
these appointments and their seniority thus fixed need not be
sought at this distance of time.”
(emphasis supplied)
68. In Narender Chadha & Ors. v. Union of India & Ors. (1986) 2 SCC 157,
this Court was dealing with a somewhat similar fact situation. The
petitioners in that case were not promoted by following the actual
procedure prescribed by the relevant Service Rules even though the
appointments were made in the name of the President by the competent
authority. They had based on such appointments, continuously held the post
to which they were appointed and received salary and allowances payable to
incumbent of such post. The incumbents were entered in the direct line of
their promotion. The question, however, was whether it would be just and
proper to hold that such promotees had no right to the post held by them
for 15-20 years and could be reverted unceremoniously or treated as persons
not belonging to the service at all. Repelling the argument that such
service would not count for the purposes of seniority, this Court observed:
“ It would be unjust to hold at this distance of time that on
the facts and in the circumstances of this case the petitioners
are not holding the posts n Grade IV. The above contention is
therefore without sub-stance. But we, however, make it clear
that it is not our view that whenever a person is appointed in a
post without following the Rules prescribed for appointment to
that post, he should be treated as a person regularly appointed
to that post. Such a person may be reversed from that post. But
in a case of the kind before us where persons have been allowed
to function in higher posts for 15 to 20 years with due
deliberation it would be certainly unjust to hold that they have
no sort of claim to such posts and could be reverted
unceremoniously or treated as persons not: belonging to the
Service at all, particularly where the Government is endowed
with the power to relax the Rules to avoid unjust results. In
the instant case the Government has also not expressed its
unwillingness to continue them in the said posts. The other
contesting respondents have also not urged that the petitioners
should be sent out of the said posts. The only question agitated
before us relates to the seniority as between the petitioners
and the direct recruits and such a question can arise only where
there is no dispute regarding the entry of the officers
concerned into the same Grade. In the instant case there is no
impediment even under the Rules to treat these petitioners and
others who are similarly situated as persons duly appointed to
the posts in Grade IV because of the enabling provision
contained in the Rule 16 thereof. Rule 16 as it stood at the
relevant time read as follows :
16. The Government may relax the provisions of these rules
to such extent as may be necessary to ensure satisfactory
working or remove in-equitable results.”
(emphasis supplied)
69. The ratio of the decision in the above case was not faulted by the
Constitution Bench of this Court in Direct Recruit’s case (supra). As a
matter of fact the Court approved the said decision holding that there was
force in the view taken by this Court in that case. This Court observed:
“In Narender Chadha v. Union of India
the officers were promoted
although without following the procedure prescribed under the
rules, but they continuously worked for long periods of nearly
15-20 years on the posts without being reverted.
The period of
their continuous officiation was directed to be counted for
seniority as it was held that any other view would be arbitrary
and violative of Articles 14 and 16. There is considerable force
in this view also.
We, therefore, confirm the principle of
counting towards seniority the period of continuous officiation
following an appointment made in accordance with the rules
prescribed for regular substantive appointments in the service.”
70. In the light of what we have said above, we do not see any illegality
or constitutional infirmity in the provisions of Section 3(2) or 3(3) of
the impugned legislation.
71. Having said so, there is no reason why a similar direction regarding
the writ-petitioners degree holder Junior Engineers who have been held by
us to be entitled to regularisation on account of their length of service
should also not be given a similar benefit. We must mention to the credit
of Dr. Dhawan, appearing for the Stipendiary Engineers who have been
regularised under the provisions of the Legislation that such Stipendiary-
ad hoc Assistant Engineers cannot, according to the learned counsel, have
any objection to the degree holder Junior Engineers currently working as
Assistant Engineers on ad hoc basis being regularised in service or being
given seniority from the date they were first appointed. It was also
conceded that Stipendiary Engineers all of whom were appointed after the
appointment of the Junior Engineers would enbloc rank junior to such ad hoc
Assistant Engineers from out of degree holder Junior Engineers. But all
such regularised Assistant Engineers from Stipendiary Stream and from
Junior Engineers category would together rank below the promotee Assistant
Engineers.
72. Question No.3 is answered accordingly.
73. Several intervention applications have been filed in these appeals to
which we may briefly refer at this stage. In IA No.5 of 2012 filed in Civil
Appeal No.8324 of 2009, the interveners have sought permission for the
State Government to complete the re-structuring process and to fill up the
vacancies subject to a final decision of this Court in these appeals. In IA
Nos.6 and 7 of 2012 also filed in Civil Appeal No.8324 of 2009, the
interveners seek a direction to the State of Orissa to upgrade the post of
Assistant Engineers Class II (Group B) to Assistant Executive Engineer
Junior Class I (Group A) and to make such up-gradation retrospective w.e.f.
28th February, 2009. IA No.8 of 2012 has been filed in the very same
appeal in which the interveners have sought a direction against the State
of Orissa to give effect to the up-gradation of posts considering inter se
seniority of in-service degree holder Junior Engineers who are otherwise
eligible for appointment against the vacancies reserved for direct
recruits. In IA No.3 of 2009 in SLP No.29765 of 2008, the interveners seek
permission to support the judgment of the High Court whereby the impugned
legislation has been struck down as unconstitutional. Similarly, IAs filed
in some other appeals either seek to support the judgment passed by the
High Court or pray for permission to argue the case on behalf of one or the
other party.
74. We have heard counsel for the interveners also at some length. We,
however, do not consider it necessary to enlarge the scope of these
proceedings by examining issues that are not directly related to the
controversy at hand.
Three questions that have primarily engaged our
attention in these petitions relate to
(a) the validity of the impugned
Validation Act.
(b) regularization of in-service degree holder Junior
Engineers who have been working for considerable length of time as
Assistant Engineers on ad hoc basis and
(c) the seniority position of those
being regularized either under the Validation Act or in terms of the
directions being issued by us in these appeals.
Other issues which the
interveners seek to raise especially issues regarding grant or denial of
the benefit of reservation to SC and ST candidates, have not been touched
by us in these proceedings for want of proper pleadings on the subject and
also for want of any pronouncement by the High Court on the said questions.
In the circumstances, this order shall be taken to have settled only what
we have specifically dealt with or what would logically follow therefrom.
Any question whether the same relates to inter se seniority of those
regularized under the legislation or by reason of the directions which we
propose to issue or issues relating to the benefit of seniority on the
basis of roster points if any prescribed for that purpose are left open and
may be agitated by the aggrieved party before an appropriate forum in
appropriate proceedings. To the extent any such questions or aspects have
not been dealt with by us in this order, may be dealt with in any such
proceedings. Beyond that we do not consider it proper or necessary to say
anything at this stage.
75. In the result we pass the following order:
(1) Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and
Civil Appeals No.8322-8323 of 2009 and 1940 of 2010 filed by the
Stipendiary Engineers are allowed and the impugned judgment and order
dated 15th October, 2008 passed by the High Court of Orissa set aside.
(2) Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005,
12706/2006 and 8630/2006 filed by the degree holders Junior Engineers
working as Assistant Engineers on ad hoc basis are also allowed but
only to the limited extent that the services of the writ-petitioners
and all those who are similarly situated and promoted as ad hoc
Assistant Engineers against the proposed 5% quota reserved for in-
service Junior Engineers degree holder shall stand regularized w.e.f.
the date Orissa Service of Engineers (Validation of Appointment) Act,
2002 came into force. We further direct that such in-service degree
holder Junior Engineers promoted as Assistant Engineers on ad hoc
basis shall be placed below the promotees and above the Stipendiary
Engineers regularized in terms of the impugned legislation. The inter
se seniority of the Stipendiary Engineers regularized as Assistant
Engineers under the impugned Legislation and Junior Engineer degree
holders regularized in terms of this order shall be determined on the
basis of their date of first appointment as Assistant Engineers on ad
hoc basis.
(3) Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment and
order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of
1999 disposed of in terms of the above direction.
(4) Intervention applications filed in these appeals are also disposed of
in the light of observations made in Para 74 of this judgment.
(5) Parties are left to bear their own costs.
……………………….……….…..…J.
(T.S. THAKUR)
…………..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
February 19, 2014
The primary issue that falls for determination touches the Constitutional
validity of what is described as the Orissa Service of Engineers
(Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc
Assistant Engineers belonging to Civil, Mechanical and Electrical
Engineering Wings of the State Engineering Service have been validated,
no matter all such appointments were in breach of the Orissa Service of
Engineers’ Rules, 1941. =
The High Court of Orissa has in a batch of writ
petitions filed before it struck down the impugned Legislation on the
ground that the same violates the fundamental rights guaranteed to the writ
petitioners under Articles 14 and 16 of the Constitution. =
(a) the validity of the impugned
Validation Act.
(b) regularization of in-service degree holder Junior
Engineers who have been working for considerable length of time as
Assistant Engineers on ad hoc basis and
(c) the seniority position of those
being regularized either under the Validation Act or in terms of the
directions being issued by us in these appeals.
Other issues which the
interveners seek to raise especially issues regarding grant or denial of
the benefit of reservation to SC and ST candidates, have not been touched
by us in these proceedings for want of proper pleadings on the subject and
also for want of any pronouncement by the High Court on the said questions.
In the circumstances, this order shall be taken to have settled only what
we have specifically dealt with or what would logically follow therefrom.
Any question
whether the same relates to inter se seniority of those
regularized under the legislation or by reason of the directions which we
propose to issue or issues relating to the benefit of seniority on the
basis of roster points if any prescribed for that purpose are left open and
may be agitated by the aggrieved party before an appropriate forum in
appropriate proceedings.
To the extent any such questions or aspects have
not been dealt with by us in this order, may be dealt with in any such
proceedings. Beyond that we do not consider it proper or necessary to say
anything at this stage.
In the result we pass the following order:
(1) Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and
Civil Appeals No.8322-8323 of 2009 and 1940 of 2010 filed by the
Stipendiary Engineers are allowed and the impugned judgment and order
dated 15th October, 2008 passed by the High Court of Orissa set aside.
(2) Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005,
12706/2006 and 8630/2006 filed by the degree holders Junior Engineers
working as Assistant Engineers on ad hoc basis are also allowed but
only to the limited extent that the services of the writ-petitioners
and all those who are similarly situated and promoted as ad hoc
Assistant Engineers against the proposed 5% quota reserved for in-
service Junior Engineers degree holder shall stand regularized w.e.f.
the date Orissa Service of Engineers (Validation of Appointment) Act,
2002 came into force. We further direct that such in-service degree
holder Junior Engineers promoted as Assistant Engineers on ad hoc
basis shall be placed below the promotees and above the Stipendiary
Engineers regularized in terms of the impugned legislation. The inter
se seniority of the Stipendiary Engineers regularized as Assistant
Engineers under the impugned Legislation and Junior Engineer degree
holders regularized in terms of this order shall be determined on the
basis of their date of first appointment as Assistant Engineers on ad
hoc basis.
(3) Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment and
order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of
1999 disposed of in terms of the above direction.
(4) Intervention applications filed in these appeals are also disposed of
in the light of observations made in Para 74 of this judgment.
(5) Parties are left to bear their own costs.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41235
T.S. THAKUR, VIKRAMAJIT SEN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8322 OF 2009
Amarendra Kumar Mohapatra & Ors. …Appellants
Versus
State of Orissa & Ors. …Respondents
WITH
Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940 of 2010.
J U D G M E N T
T.S. THAKUR, J.
1. Common questions of law arise for consideration in these appeals
which were heard together and shall stand disposed of by this common order.
The primary issue that falls for determination touches the Constitutional
validity of what is described as
the Orissa Service of Engineers
(Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc
Assistant Engineers belonging to Civil, Mechanical and Electrical
Engineering Wings of the State Engineering Service have been validated,
no matter all such appointments were in breach of the Orissa Service of
Engineers’ Rules, 1941.
The High Court of Orissa has in a batch of writ
petitions filed before it struck down the impugned Legislation on the
ground that the same violates the fundamental rights guaranteed to the writ
petitioners under Articles 14 and 16 of the Constitution.
We shall
presently formulate the questions that arise for determination more
specifically but before we do so, we consider it necessary to set out the
factual matrix in which the entire controversy arises.
2. In a note submitted to the State Cabinet on 15th May 1990 the problem
of over 2000 unemployed degree-holders in various branches of Engineering
who had passed out from several Engineering colleges since the year 1984
was highlighted and a proposal for utilizing the manpower so available for
the benefit of the State economy mooted.
The proposal envisaged a twofold
action plan for absorbing the unemployed graduate Engineers.
The first part
of the action plan provided for withdrawal of 127 posts of Assistant
Engineers that had been referred to the Public Service Commission and
advertised by it to be filled up by appointing unemployed degree holder
Engineers in a non-class II rank.
The second part of the proposal envisaged
creation of 614 posts of Junior Engineers in different Departments to
accommodate the unemployed degree holders.
These 614 posts comprised 314
new posts proposed to be created, one for each block in the State.
Similarly, 100 posts were to be created in the Irrigation Department for
survey and investigation to accelerate the pace of investigation. Yet
another 200 posts were to be created for initial infrastructure work in
connection with Paradip Steel Plant.
3. The note submitted to the Cabinet suggested that degree-holder
Engineers could be recruited against all the 741 (127 + 614) posts
mentioned above to be designated as Junior Engineers or Stipendiary
Engineers in the first phase on a consolidated stipend of Rs.2,000/- per
month. The proposal further envisaged absorption of Engineers so appointed
on regular basis after two years, after assessing their performance.
4. The Council of Ministers considered the proposal mooted before it and
approved the same. Decision taken in the 2nd Meeting of the Council of
Ministers held on 15th May, 1990 with regard to ‘Problems of Un-employed
Degree Engineers’ was forwarded to the Secretaries to the Government in
terms of a memo dated 21st May 1990, the relevant portion whereof reads as
under:
| “Item No.5: |Problems of Un-employed Degree |
| |Engineers. |
| |The problems were discussed at length |
| |and the following decisions were |
| |taken. |
| |All posts of Assistant Engineers |
| |referred to the Orissa Public Service |
| |Commission and advertised by them may |
| |be withdrawn. |
| |314 posts of Stipendiary Engineers may|
| |be created one in each Block. |
| |100 posts of Stipendiary Engineers may|
| |be created in the Irrigation |
| |Department for survey and |
| |investigation. |
| |200 posts of Stipendiary Engineers may|
| |be created for the initial |
| |infrastructure work of Paradip |
| |Port-based Steel Plant. |
| |In all, 741 posts of Stipendiary |
| |Engineers will be available, for |
| |recruiting from the unemployed Degree |
| |Engineers. A Stipendiary Engineer may|
| |be paid a consolidated stipend of |
| |Rs.2,000/- per month. Absorption into|
| |regular posts may be considered after |
| |two years on the basis of their |
| |performance. |
| |The criteria for selection are to be |
| |worked out separately, so that |
| |Stipendiary Engineers are recruited on|
| |merit basis batch by batch. |
| |The rest of the unemployed Degree |
| |Engineers are proposed to be engaged |
| |in various construction works by |
| |formation of Groups Companies and |
| |Cooperatives, which will get |
| |preference in award of work by the |
| |Department/Corporations.” |
| | |
5. As a sequel to the above decision, the Government invited
applications from unemployed graduate Engineers of all disciplines for
empanelment as Stipendiary Engineers for placement in different Government
departments, projects, public sector undertakings, co-operative societies
and industries etc.
By another resolution dated 22nd September 1990, the
Government stipulated the procedure to be adopted for discipline-wise
empanelment of the unemployed graduate Engineers for appointment as
Stipendiary Engineers against the vacancies in different departments and
undertakings.
The procedure evolved was to the following effect :
“2. Government have since decided that the following procedure
should be adopted for discipline wise empanelment of the
unemployed Graduate Engineers for appointment as Stipendiary
Engineers against the vacancies in different government
Department and undertakings:
1) 25 percent of the posts shall be filled up on merit basis
and for this purpose equal number will be taken from each
batch starting from the batch of 1984 up to the batch of
1989.
2) A point system will be adopted for empanelment on merit
basis, for which out of a total 100 marks the performance
in HSC will be given 15 marks, the performance in I. Sc.
and Diploma will be given 25 marks and the performance at
the final Engineering Degree Examination will be given 60
marks.
3) After the empanelment on merit basis is done for 25% of the
vacancies, empanelment will be done batch-wise starting
from 1984 for the remaining vacancies. The Inter se
position of candidates in the batch wise panel will again
be on the basis of merit computed as in (2) above.
4) There shall also be separate empanelment on merit basis for
SC/ST, Physically handicapped and ex-servicemen covering
all the batches to facilitate filling up of reserved
vacancies. The rules regarding reservation of vacancies
will apply to these appointments.
5) Applications received on or before 10.7.1990 will alone be
considered for empanelment. Similarly graduate Engineers
who have passed out before 1984 or those who have obtained
degree after 1989 will not be eligible for empanelment.
6) The following committee will undertake the work of scrutiny
and empanelment of the unemployed graduate Engineers.
|Secretary Steel & Mines |Chairman of the |
| |Committee |
|Engineer-in-Chief and Secretary, |Member |
|Works | |
|Engineer-in-Chief (Irrigation) |Member |
|Chief Engineer Electricity and |Member |
|electrical Projects | |
|Chief Engineer, PHD |Member |
|Chief Engineer, RLEGP |Member |
|Managing Director, IPICOL |Convenor |
7) The panels from the Scrutiny Committee will be maintained
in the Department of Planning and Coordination who will
sponsor candidates to various Government Departments and
Undertakings according to the requirement as indicated by
them. The undertakings will send indents through the
concerned Administrative Departments.
8) As regards Civil & Mechanical Engineers, the Government
Departments will intimate the requirement to Irrigation
Department who will the panel names from P & C Department
to fill up the vacancies. In case of these Engineers, the
appointment orders will be issued by the Department of
Irrigation and when required they will be sent on
deputation to the other Departments.
9) If there is no candidate to be recommended against reserve
vacancies for the reason that the panels of such candidates
are exhausted, the Department of P & C will give a non-
availability certificate to the indenting organizations so
that they can take steps to de-reserve the vacancies and
give appointment to general candidates in their place.
10) The normal requirement for new appointment under Government
viz. production of original certificates, Medical
Certificate, Schedule Caste/Scheduled Tribe Certificate
etc. shall be applicable to these appointments and the
verification of these documents shall be the responsibility
of the Employing Departments/Undertakings.
11) In some cases relaxation of age limit for entry into
Government service may have to be done and this will be
attended to by the Employing Departments/Undertakings as a
matter of course.
ORDER
Ordered that the Resolution be published in the Orissa
Gazette for general information.
Ordered also that copies of the Resolution be forwarded to
all Departments of Government, Member, Board of Revenue, All
Heads of Departments, All District Collectors, Secretary to
Governor, Registrar, Orissa High Court Secretary, OPSC,
Principal Secretary to the Chief Minister and Director of
Printing, Stationary and Publication, Orissa Cuttack and 50
copies of Planning & Coordination Department.
BY ORDER OF THE GOVERNOR
S.SUNDARARANJAN
ADDITIONAL DEVELOPMENT COMMISSIONER
AND
SECRETARY TO GOVERNMENT”
6. Applications received from unemployed graduate Engineers for
appointment as Stipendiary Engineers were in terms of the above resolution
and considered by the Committee constituted for the purpose and appointment
of eligible candidates found suitable for such appointments made between
1991 to 1994. Appointment orders issued to the candidates made it clear
that degree holder Engineers were being engaged as Stipendiary Engineers in
the concerned Department and shall be paid a consolidated stipend of
Rs.2000/- only. It further stated that the engagement was purely temporary
and terminable at any time and without any notice.
7. In August 1992, Minister for Irrigation, Government of Orissa mooted
a further proposal to the following effect:
a) The promotion quota may continue at 33% of annual vacancy.
b) In addition, there should be a selection quota of 30%. This
quota will have two components – 5% for Junior Engineers
who have acquired an Engineering Degree or equivalent
qualification and 25% which will be earmarked exclusively
for Stipendiary Engineers.
c) Direct recruitment quota will be 37%. Stipendiary Engineers
can also compete against this quota. They may be allowed
age relaxation up to five years. This will ensure that
Stipendiary Engineers have the facility of recruitment,
both against the selection quota and direct recruitment
quota.
d) Departments may not fill up vacancies in the post of
Stipendiary Engineers caused by appointment of the
incumbents as Assistant Engineers, if they want to do so,
they may obtain candidates from the panel of the P & C
Department.
e) This will be a transitional provision because appointment
of Stipendiary Engineers may not be a permanent feature.
After such time as, Government may decide the present
quotas of recruitment will be restored.
f) Public Sector Undertakings should frame their own
recruitment rules which should broadly correspond to
Government’s policy of promotion of Junior Engineers and
appointment of Stipendiary Engineers through selection. If
there are no Stipendiary Engineers or Junior Engineers with
Degree or equivalent qualification quotas for these
categories will be added to direct recruitment quota.”
8. It is evident from the above that while the Government did not
propose to reduce the 33% quota reserved for promotees, out of the
remaining 67% meant for direct recruitment, it proposed to carve out what
was described as selection quota of 30% for absorption of the Stipendiary
Engineers to the extent of 25% of the vacancies and degree holder Junior
Engineers against the remaining 5% of the vacancies. The balance of 37% of
the vacancies was, however, left to be filled up by direct recruitment from
the open market.
9. Based on the above, the Government appears to have made a reference
to the Orissa Public Service Commission on 5th June 1996 for approval of
the draft Orissa Engineering Service (Recruitment & Condition of Service)
Rules, 1994 which were already approved by the State Council of Ministers
on 3rd December 1994.
The Orissa Public Service Commission, however, struck
a discordant note.
In its opinion, since the Stipendiary Engineers did not
constitute a cadre in the formal sense it was not desirable to treat it as
a feeder grade for Assistant Engineers. So also the proposal to reserve 5%
of the vacancies in the grade of Assistant Engineers to be filled by degree
holder Junior Engineers from the Subordinate Service was also considered to
be inadvisable. The Commission opined that since persons with higher
qualifications serve practically in all fields of administration including
technical services such as Medical and Engineering, it was neither
necessary nor desirable to provide for them a route for promotion to the
higher level except the one available to all those serving in the feeder
grade. In the opinion of the Commission, the correct way of rewarding
those with higher qualification was to give them advance increments at the
time of entry. The Commission also suggested that if in the opinion of the
Government the quota for promotion of Junior Engineers to the level of
Assistant Engineers required to be higher than 33% in consideration of the
larger body of Junior Engineers some of whom were degree holders, it could
increase the same to 40%, but the fragmentation of the Junior Engineers
into degree holders and non-degree holders was not advisable. The
Commission suggested that the remainder of the 60% vacancies for direct
recruitment could be utilized by recruiting degree holder Engineers from
the open market including Stipendiary Engineers and that candidates could
be given suitable weightage while judging their inter se relevant merit.
10. The Government had, in the meantime, passed a resolution on 12th
March, 1996 stating that the Stipendiary Engineers could be appointed as
Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- or
any similar post on ad hoc basis against regular vacancies. It also
resolved to regularize the service of such ad hoc Assistant Engineers
through a Validation Act. Some Stipendiary Engineers who were working in
different State Governments and statutory bodies were also proposed to be
appointed to the post of Assistant Engineer or equivalent posts carrying
the same scale, subject to their suitability and satisfactory performance.
The relevant portion reads as under:
“In consideration of the above decision of the Government, the
appointing authority of Departments of Government will appoint
the Stipendiary Engineers of different disciplines as Assistant
Engineers against existing vacancies of Assistant Engineers on
ad hoc basis for a period of one year, except Civil &
Mechanical, to be appointed on ad hoc basis by the Department of
Water Resources.
XXX XXX XXX
Stipendiary Engineers who are already working in different State
Government Undertakings, Corporations,, Semi-Government
Organizations & Statutory Boards may also be appointed as
Assistant Engineers or in equivalent posts carrying the same
scale, subject to their suitability and satisfactory
performance.”
11. The resolution notwithstanding, the Government does not appear to
have appointed any Stipendiary Engineers as Assistant Engineers on ad hoc
basis. Aggrieved, the Stipendiary Engineers filed O.J.C. Case No.8373 of
1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for a writ of
mandamus directing the Government to comply with the resolution and the
order issued by it. This petition was allowed by the Division Bench of the
High Court of Orissa at Cuttack by an order dated 18th December 1996. The
High Court directed the Government to take expeditious steps to implement
resolution dated 12th March 1996, preferably within a period of four
months. It further directed the State Government to appoint Stipendiary
Engineers as Assistant Engineers in the scale of Rs.2000-3500 on ad hoc
basis. In compliance with the directions aforementioned, the Stipendiary
Engineers were appointed as Assistant Engineers on ad hoc basis between the
years 1997 and 2001. What is important is that pursuant to its initial
proposal of allocating 5% vacancies for those working as degree holder
Junior Engineers in different departments, the Government had between 1996
and 1997 promoted 86 degree holder Junior Engineers on an ad hoc basis as
Assistant Engineers.
12. Five Stipendiary Engineers working in the Water Resources Department
whose names had been recommended along with others for appointment as
Assistant Engineers on ad hoc basis by the Screening Committee set up for
the purpose in the meantime filed O.J.C. No.1563 of 1998 before the Orissa
High Court making a grievance that despite the recommendations made in
their favour, the Government had not appointed them as Assistant Engineers.
That petition was allowed and disposed of by an order dated 6th May, 1998
directing the State Government to consider the case of the writ-petitioners
in the light of its earlier order passed in Jayant Kumar’s case (supra).
Since the said directions were not carried out by the Government, two of
the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of 1999 in which
they complained about the non-implementation of the directions issued by
the High Court earlier and prayed for their regularisation. This petition
was disposed of by the High Court by a common order dated 2nd July, 2002 in
which the High Court noted that the petitioners had been appointed as
Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- by
the Water Resources Department Notification dated 11th December, 1998. The
High Court further held that since the Government was on principle
committed to regularising the appointments of Stipendiary Engineers there
was no reason why the Government should not treat them as direct recruits
since the year 1991, in which they were appointed, and compute their
service from that year for the purpose of in-service promotion, pension and
other service benefits except financial benefits and to absorb them on
regular basis according to law.
13. It was in the above backdrop that the Government finally came up with
a proposal for validation of the appointment of Stipendiary Engineers as
Assistant Engineers. Memorandum dated 28th November, 2002 referred to
appointment of 846 Stipendiary Engineers in Civil, 61 Stipendiary Engineers
in Mechanical and 25 Engineers in Electrical wings making a total of 932
Stipendiary Engineers in different Departments.
We are informed at the Bar
that the present number of such Stipendiary Engineers is limited to 881
only as the rest have either resigned, retired or died.
The proposal made
in the Memorandum also took note of the information given by the Orissa
Public Service Commission and the repeated demands of ad hoc Assistant
Engineers engaged from Stipendiary Engineers for regularization.
The
proposal stated that no regular appointments were made by the Orissa Public
Service Commission and that the validation of appointments of Stipendiary
Engineers as Assistant Engineers will immensely benefit the State in
execution of several ongoing development works.
The proposal further
stated that having rendered more than 10 years of service, these
Stipendiary Engineers currently working as Assistant Engineers on ad hoc
basis will have no avenues for employment as they had already gone beyond
the upper age limit prescribed for direct recruitment.
14. It is in the above backdrop that the State Legislature eventually
enacted Orissa Service of Engineers (Validation of Appointment) Act, 2002
which comprises no more than three sections. Section 3 of the legislation
reads as under:
“3(1) Notwithstanding anything contained in the Recruitment
Rules, seven hundred ninety-nine Assistant Engineers belonging
to the discipline of Civil, fifty-seven Assistant Engineers
belonging to the discipline of Mechanical and twenty-five
Assistant Engineers belonging to the discipline of Electrical as
specified in the Schedule with their names, dates of birth,
dates of appointment and the names of the Departments under
which they are working on ad hoc basis since the date of such
appointment shall be deemed to be validly and regularly
appointed under their respective Department of the Government
against the direct recruitment quota of the service with effect
from the date of commencement of this Act and, accordingly, no
such appointment shall be challenged in any court of law merely
on the ground that such appointments were made otherwise than in
accordance with the procedure laid down in the Recruitment
Rules.
(2) The inter-se-seniority of the Assistant Engineers whose
appointments are so validated shall be determined according to
their dates of appointment on ad hoc basis as mentioned in the
Schedule and they shall be enblock junior to the Assistant
Engineers of that year appointed to the service in the
respective discipline in their cadre in accordance with the
provisions of the Recruitment Rules.
(3) The services rendered by the Assistant Engineers whose
appointments are so validated, prior to the commencement of this
Act shall, subject to the provisions in sub-section (2), count
for the purpose of their pension, leave and increment and for no
other purpose.”
15. A batch of writ petitions being Writ Petitions No.9514 of 2003, 12495
of 2005, 12495 of 2005, 12627 of 2005, 12706 of 2006 and 8630 of 2006, were
then filed by the Degree holder Junior Engineers appointed as Assistant
Engineers on ad hoc basis between 1996 and 1997 challenging the validity of
the above legislation, inter alia, on the ground that the same suffered
from the vice of discrimination inasmuch as while ad hoc Assistant
Engineers, who were earlier appointed on stipendiary basis, had been
regularised under the Validation Act, those appointed against 5% quota
reserved for Junior Engineers holding a degree qualification were left out.
16. Writ Petition No.11093 of 2006 was similarly filed by Junior
Engineers who had not been appointed as Assistant Engineers claiming parity
with Degree holder Junior Engineers already appointed as Assistant
Engineers on ad hoc basis against 5% quota disapproved by the Public
Service Commission for such Engineers.
17. Writ Petition No.16742 of 2006 was filed by Junior Engineers promoted
as Assistant Engineers against 33% quota reserved for such Engineers whose
grievance primarily was that regularisation/validation of the appointments
of Stipendiary Engineers in the cadre of Assistant Engineers was illegal
and unconstitutional and adversely affected them in terms of their
seniority.
18. The above writ petitions were heard by a Division Bench of the High
Court of Orissa who allowed the same by its order dated 15th October, 2008
striking down the impugned Legislation primarily on the ground that the
same brought about discrimination between Assistant Engineers similarly
situate and, therefore, fell foul of Articles 14 and 16 of the
Constitution.
The High Court observed:
“There is no reason as to why appointments of a few persons
working as Assistant Engineers on ad hoc basis have been
validated ignoring the other similarly situated persons working
on ad hoc basis as Assistant Engineers. There cannot be
discrimination or classification amongst the persons working on
ad hoc basis or the post of Assistant Engineers. Once unequal
became equal, the State has no authority to discriminate them
and make equals as unequal.”
19. The present appeals assail the correctness of the above judgment and
order of the High Court. While Civil Appeals No.8324 to 8331 of 2009 have
been filed by the State of Orissa, Civil Appeals No.8322, 8323 of 2009 and
1940 of 2010 have been preferred by Stipendiary Engineers who are adversely
affected by the judgment of the High Court on account of striking down of
the Validation Act under which they were regularized as Assistant
Engineers. Civil Appeal No.1768 of 2006 has, however, been filed by the
Degree holder Junior Engineers who have already been promoted as Assistant
Engineers against 33% quota reserved for them to challenge the judgment of
the High Court in OJC Nos.6354 and 6355 of 1999 directing the State
Government to regularise the services of the writ-petitioners in those
petitions as Assistant Engineers from the date of their appointment as
Stipendiary Engineers with all consequential benefits except financial
benefits.
20. Several intervention applications have been filed in these appeals
including intervention application filed by the SC/ST candidates who were
directly recruited as Assistant Engineers in the year 2004 onwards.
21. We have heard learned counsel for the parties as also those appearing
for the interveners. The following three questions of law arise for
consideration:
1. What is the true nature and purport of the impugned legislation? More
particularly is the impugned legislation a validation enactment or is
it an enactment that grants regularisation to those appointed on ad
hoc basis?
2. If the impugned enactment simply grants regularisation, does it suffer
from any constitutional infirmity?
3. Does Section 3(2) of the impugned legislation suffer from any
unconstitutionality, insofar as the same purports to grant Stipendiary
Assistant Engineers seniority with effect from the date they were
appointed on ad hoc basis?
Re. Question No.1
22. Black’s Law Dictionary (9th Edition, Page No.1545) defines a
Validation Act as “a law that is amended either to remove errors or to add
provisions to conform to constitutional requirements”. To the same effect
is the view expressed by this Court in Hari Singh & Others v. The Military
Estate Officer and Anr. (1972) 2 SCC 239, where this Court said “The
meaning of a Validating Act is to remove the causes for ineffectiveness or
invalidating of actions or proceedings, which are validated by a
legislative measure”. In ITW Signode India Ltd. v. Collector of Central
Excise (2004) 3 SCC 48, this Court described Validation Act to be an Act
that “removes actual or possible voidness, disability or other defect by
confirming the validity of anything which is or may be invalid”.
23. The pre-requisite of a piece of legislation that purports to validate
any act, rule, action or proceedings were considered by this Court in Shri
Prithvi Cotton Mills Ltd. and Ann v. Broach Borough Municipality and Ors.
(1969) 2 SCC 283. Two essentials were identified by this Court for any
such legislation to be valid. These are:
(a) The legislature enacting the Validation Act should be competent to
enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act or the
proceedings needs to be removed.
24. The Court went on to enumerate certain ways in which the objective
referred to in (b) above could be achieved by the legislation and observed
:
"…….. Sometimes this is done by providing for jurisdiction where
jurisdiction had not been properly invested before. Sometimes
this is done by re-enacting retrospectively a valid and legal
taxing provision and then by fiction making the tax already
collected to stand under the re-enacted law. Sometimes the
Legislature gives its own meaning and interpretation of the law
under which the tax was collected and by legislative fiat makes
the new meaning binding upon courts. The Legislature may follow
any one method or all of them and while it does so it may
neutralise the effect of the earlier decision of the court which
becomes ineffective after the change of the law. Whichever
method is adopted it must be within the competence of the
legislature and legal and adequate to attain the object of
validation. If the Legislature has the power over the subject-
matter and competence to make a valid law, it can at any time
make such a valid law and make it retrospectively so as to bind
even past transactions. The validity of a Validating Law,
therefore, depends upon whether the Legislature possesses the
competence which it claims over the subject-matter and whether
in making the validation it removes the defect which the courts
had found in the existing law and makes adequate provisions in
the Validating Law for a valid imposition of the tax."
(emphasis supplied)
25. Judicial pronouncements regarding validation laws generally deal with
situations in which an act, rule, action or proceedings has been found by
a Court of competent jurisdiction to be invalid and the legislature has
stepped in to validate the same. Decisions of this Court which are a legion
take the view that while adjudication of rights is essentially a judicial
function, the power to validate an invalid law or to legalise an illegal
action is within the exclusive province of the legislature. Exercise of
that power by the legislature is not, therefore, an encroachment on the
judicial power of the Court. But, when the validity of any such Validation
Act is called in question, the Court would have to carefully examine the
law and determine whether (i) the vice of invalidity that rendered the act,
rule, proceedings or action invalid has been cured by the validating
legislation (ii) whether the legislature was competent to validate the act,
action, proceedings or rule declared invalid in the previous judgments and
(iii) whether such validation is consistent with the rights guaranteed by
Part III of the Constitution. It is only when the answer to all these three
questions is in the affirmative that the Validation Act can be held to be
effective and the consequences flowing from the adverse pronouncement of
the Court held to have been neutralised. Decisions of this Court in Shri
Prithvi Cotton Mills Ltd. and Anr. V. Broach Borough Municipality and Ors.
(1969) 2 SCC 283, Hari Singh v. Military Estate Officer (1972) 2 SCC 239,
Madan Mohan Pathak v. Union of India (1978) 2 SCC 50, Indian Aluminium Co.
etc. v. State of Kerala and Ors. (1996) 7 SCC 637, Meerut Development
Authority etc. v. Satbir Singh and Ors. etc. (1996) 11 SCC 462, and ITW
Signode India Ltd. v. Collector of Central Excise (2004) 3 SCC 48 fall in
that category. Even in the realm of service law, validation enactments
have subsequent to the pronouncement of competent Courts come about
validating the existing legislation. Decisions of this Court in I.N.
Saksena v. State of Madhya Pradesh (1976) 4 SCC 750, Virender Singh Hooda
and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588 and State of Bihar
and Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 deal with that category
of cases.
26. In the case at hand, the State of Orissa had not suffered any adverse
judicial pronouncement to necessitate a Validation Act, as has been the
position in the generality of the cases dealt with by this Court. The title
of the impugned Legislation all the same describes the legislation as a
Validation Act. The title of a statute is no doubt an important part of an
enactment and can be referred to for determining the general scope of the
legislation. But the true nature of any such enactment has always to be
determined not on the basis of the label given to it but on the basis of
its substance.
27. In M.P.V. Sundararamier & Co. v. State of A.P. & Anr. AIR 1958 SC 468
this Court was considering whether the impugned enactment was a Validation
Act in the true sense.
This Court held that although the short title as
also the marginal note described the Act to be a Validation Act, the
substance of the legislation did not answer that description.
This Court observed:
“It is argued that to validate is to confirm or ratify, and that
can be only in respect of acts which one could have himself
performed, and that if Parliament cannot enact a law relating to
sales tax, it cannot validate such a law either, and that such a
law is accordingly unauthorised and void. The only basis for
this contention in the Act is its description in the Short Title
as the "Sales Tax Laws Validation Act" and the marginal note to
s. 2, which is similarly worded. But the true nature of a law
has to be determined not on the label given to it in the statute
but on its substance. Section 2 of the impugned Act which is the
only substantive enactment therein makes no mention of any
validation. It only provides that no law of a State imposing tax
on sales shall be deemed to be invalid merely because such sales
are in the course of inter-State trade or commerce. The effect
of this provision is merely to liberate the State laws from the
fetter placed on them by Art. 286(2) and to enable such laws to
operate on their own terms.”
(emphasis supplied)
28. We may also refer to Maxwell on Interpretation of Statutes (12th
Edn., page 6), where on the basis of authorities on the subject, short
title of the Act has been held to be irrelevant for the purpose of
interpretation of statutes.
Lord Moulton in Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107 described the short title of an Act as
follows:
“A title given to the act is solely for the purpose of facility
of reference. If I may use the phrase, it is a statutory
nickname to obviate the necessity of always referring to the Act
under its full and descriptive title....Its object is
identification and not description.”
(emphasis supplied)
29. Dr. Dhawan, learned senior counsel appearing for the appellants
fairly conceded that the impugned legislation could not be described as a
simple Validation Act.
According to him, the Act achieved a dual purpose
of (a) validating the invalid ad hoc appointments and (b) appointing the
Stipendiary Engineers working as ad hoc Assistant Engineers on a
substantive basis by regularising their appointments.
While we have no
difficulty in agreeing with the latter part of the contention urged by Dr.
Dhawan and holding that the legislation regularises the appointment of
Stipendiary Engineers as Assistant Engineers, we have not been able to
appreciate the rationale behind the Legislature considering it necessary to
validate the ad hoc appointments, especially when such appointments had
been made by the Government pursuant to the directions issued by the High
Court in the writ petitions filed by the Stipendiary Engineers. Validation
of the ad hoc appointments of the Stipendiary Engineers as Assistant
Engineers would even otherwise have served no purpose. That is because
whether the appointments were officiating/ad hoc/temporary or described by
any other expression, the fact that the Stipendiary Engineers had worked
for a long period of time as Assistant Engineers in temporary/ad
hoc/officiating capacity would have in itself been a ground for the State
to regularise them, subject of course to such regularisation otherwise
meeting constitutional requirements.
It was not as if any such
regularisation was legally impermissible unless the “ad hoc appointments”
granted to Stipendiary Engineers were themselves validated. It is quite
evident that the legislation with which we are concerned was in substance
aimed at regularising the services of such persons as had worked in the
capacity of Assistant Engineers. If that was the true purport of the
legislation, it would be inaccurate to describe the same as a validation
enactment.
30. The matter can be viewed from yet another angle. The enactment came
de hors any compulsion arising from a judicial pronouncement regarding the
invalidity attached to the appointment of Assistant Engineers on ad hoc
basis and only because of the State’s anxiety to appoint/absorb the
Stipendiary Engineers, subsequently appointed as ad hoc Assistant Engineers
on a substantive/regular basis without following the route mandated by the
Service Rules of 1941 applicable for making any such appointments. Having
said that, we must hasten to add that a prior judicial pronouncement
declaring an act, proceedings or rule to be invalid is not a condition
precedent for the enactment of a Validation Act. Such a piece of
legislation may be enacted to remove even a perceived invalidity, which the
Court has had no opportunity to adjudge. Absence of a judicial
pronouncement is not, therefore, of much significance for determining
whether or not the legislation is a validating law.
31. There was in the above context some debate at the Bar whether or not
the impugned enactment is a validating enactment as it purports to be. As
seen above, Dr. Rajiv Dhawan and even Shri Narasimha, did not see the
impugned enactment as a validating legislation, no matter it carries a
label to that effect. Mr. Patwalia & Mr. Sisodia, senior advocates,
appearing for the opposite parties were also not supportive of the
legislation being a validating enactment and in our opinion rightly so.
That is because the essence of a validating enactment is a pre-existing
act, proceeding or rule, being found to be void or illegal with or without
a judicial pronouncement of the Court. It is only when an act committed or
a rule in existence or a proceeding taken is found to be invalid that a
validating act may validate the same by removing the defect or illegality
which is the basis of such invalidity. There is no question of validating
something that has not been done or that has yet to come in existence. No
one can say that an illegality which has not yet been committed can or
ought to be validated by legislation. Existence of an illegal act,
proceedings or rule or legislation is the sine qua non for any validating
legislation to validate the same. There can be no validation of what has
yet to be done, suffered or enacted.
32. Applying the above to the case at hand a Validation Act may have been
necessary if the Government had appointed the ad hoc Assistant Engineers on
a substantive basis in violation of the relevant recruitment Rules. For in
that case, the Government would have done an act which was legally invalid
requiring validation by a legislative measure. But a legislation that did
not validate any such non-existent act, but simply appointed the ad hoc
Assistant Engineers as substantive employees of the State by resort to a
fiction, could not be described as a validating law.
33. The legislation under challenge was in that view not a Validation Act
as it purported to be but an enactment that regularised the appointment of
graduate Stipendiary Engineers working as ad hoc Assistant Engineers as
Assistant Engineers.
Reliance upon the decision of this Court in
Satchidananda Mishra v. State of Orissa and Ors. (2004) 8 SCC 599 is, in
our opinion, of no assistance to the respondents. In Satchdinanda’s case
(supra) the High Court had struck down the validation act which order was
confirmed by this Court in appeal. What is significant, however, is that
while affirming the view taken by the High Court that the validation law
was not constitutionally sound, this Court proceeded on the assumption that
the legislation with which it was dealing with was a validation act in the
true sense. It was on that assumption that this Court looked into the
invalidity and held that the validation act did nothing except validating
the appointments without removing the basis on which such appointments
could be invalidated. We have not proceeded on any such assumption in the
instant case especially because learned counsel for some of the parties
have argued that the legislation under challenge is not a Validation
Enactment. The Enactment in the case at hand deals with the law relating
to regularisation of incumbents holding public office on ad hoc or
temporary basis, much in the same way as regularisation of such temporary
appointments is ordered in terms of a scheme for that purpose. The only
difference is that while a regularisation scheme can be framed by the
Government in exercise of its executive power, the regularisation ordered
in the case at hand is by way of a legislation. It is trite that what
could be achieved by the Government by exercise of its executive power
could certainly be achieved by legislation, as indeed it has been achieved
in the case at hand. Question No.1 is answered accordingly.
Re. Question No.2
34. A Constitution Bench of this Court in Secretary, State of Karnataka
and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 ruled that regularisation
of illegal or irregularly appointed persons could never be an alternative
mode of recruitment to public service. Such recruitments were, in the
opinion of this Court, in complete negation of the guarantees contained in
Articles 14 and 16 of the Constitution. Having said so, this Court did not
upset the regularisations that had already taken place, regardless of
whether such regularisations related to illegal or irregular appointments.
The ratio of the decision in that sense was prospective in its application,
leaving untouched that which had already happened before the pronouncement
of that decision. This is evident from the following passage appearing in
the decision:
“We also clarify that regularization, if any already made, but
not subjudice, need not be reopened based on this judgment, but
there should be no further by-passing of the constitutional
requirement and regularizing or making permanent, those not duly
appointed as per the constitutional scheme.”
35. The above is a significant feature of the pronouncement of this Court
in Umadevi’s case (supra). The second and equally significant feature is
the exception which this Court made in para 53 of the decision permitting a
one-time exception for regularising services of such employees as had been
irregularly appointed and had served for ten years or more.
The State
Government and its instrumentalities were required to formulate schemes
within a period of six months from the date of the decision for
regularisation of such employees.
This is evident from a reading of para
53 of the decision which is reproduced in extenso:
“One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained
in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N.
Nagarajan (supra), and referred to in paragraph 15 above, of
duly qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to work for ten
years or more but without the intervention of orders of courts
or of tribunals.
The question of regularization of the services
of such employees may have to be considered on merits in the
light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context,
the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months
from this date...”
(emphasis supplied)
36. Dr. Dhawan, learned senior counsel, appearing for the appellants in
some of these appeals argued, and in our opinion rightly so, that both the
aspects referred to above bear considerable significance to the case at
hand. He submitted that regularisations granted by the State or its
instrumentalities given in regard to appointments that were strictly
speaking illegal had not been upset by this Court in Umadevi’s case
(supra). That being so, the impugned Enactment by which the appointment of
the appellants- Stipendiary Engineers were regularised as Assistant
Engineers must also be treated to have been saved from the rigour of the
view taken in Umadevi’s case (supra). There is merit in that contention.
The decision in Umadevi’s case (supra) stated the true legal position on
the subject but having regard to the fact that several earlier decisions of
this Court had sanctioned regularisation of those not regularly appointed,
this Court was of the view that upsetting such regularisations would not
only unsettle what stood settled but also gravely prejudice those who are
benefitted from such orders of regularisation. There is no gainsaying that
most of such persons who entered the public service initially without going
through any open competitive selection process would have lost by passage
of time their prospects of entering public service by legal course even if
vacancies were available for such appointments. In some of the decisions
the continuance of employees on ad hoc, temporary or daily-wage basis for
an indefinite period was seen by this Court also to be a violation of the
fundamental right to life apart from being discriminatory. Considering the
magnitude of the problem that would arise if all such appointments were to
be unsettled, this Court in Umadevi’s case (supra) left such regularisation
alone and declared that in the future such orders of appointments dehors
rules would not qualify for the grant of regularisation in public
employment.
37. Equally important is the fact that even after declaring the true
legal position on the subject and even after deprecating the practice of
appointing people by means other than legitimate, this Court felt that
those who had served for ten years or so may be put to extreme hardship if
they were to be discharged from service and, therefore, directed the
formulation of a scheme for their regularisation. This was no doubt a one-
time measure, but so long as the appointment sought to be regularised was
not illegal, the scheme envisaged by para 53 of the decision (supra)
extracted above permitted the State to regularise such employees. Dr.
Dhawan argued that the appellants- Stipendiary Engineers had, by the time
the decision in Umadevi’s case (supra) was pronounced, qualified for the
benefit of a scheme of regularisation having put in ten years as ad hoc
Assistant Engineers and fifteen years if their tenure was to be counted
from the date of their employment as Stipendiary Engineers. He contended
that even in the absence of a Validation Act, Stipendiary Engineers
appointed on ad hoc basis as Assistant Engineers, who had worked for nearly
ten years to the full satisfaction of the State Government would have been
entitled to regularisation of their services in terms of any such scheme.
38. On behalf of the diploma holder Junior Engineers, it was contended by
Mr. Sisodia that the appointment of Stipendiary degree holders as ad hoc
Assistant Engineers was not irregular but illegal. It was contended that
Stipendiary Engineers were appointed on ad hoc basis without following the
procedure permitted under the rules which, inter alia, entitled the degree
holder Junior Engineers also to compete. He submitted that although diploma
holder Junior Engineers were not entitled to compete against the vacancies
on the direct recruitment quota in the cadre of Assistant Engineers, yet
they were entitled to argue that any appointment to the cadre ought to be
made in accordance with the rules especially when regularisation of degree
holder Stipendiary Engineers would give them advantage in seniority to the
prejudice of the diploma holder Junior Engineers who may at their own turn
be promoted in the cadre of Assistant Engineers. We have no hesitation in
rejecting that contention. Diploma holder Junior Engineers were not,
admittedly, eligible to be appointed as Assistant Engineers in the direct
recruitment quota. They could not make a grievance against regularisation
simply because of the fact that those regularised may figure above them in
seniority. Seniority is an incident of appointment to the cadre which must
be regulated by the relevant rules. Any possible prejudice to diploma
holders in terms of seniority would not, therefore, make the regularisation
unconstitutional or illegal and hence beyond the purview of para 53 in
Umadevi’s case (supra).
39. Mr. Patwalia, learned senior counsel appearing for the degree holder
Junior Engineers who were also appointed on ad hoc basis as Assistant
Engineers against 5% quota which the Government resolution had provided
for, argued that although degree holder Junior Engineers are eligible for
appointment against the vacancies in direct recruits quota, that
opportunity was not available to his clients when the degree holder Junior
Engineers were appointed as Assistant Engineers. He contended that Junior
Engineer degree holders who were appointed as ad hoc Assistant Engineers
against 5% quota reserved for them under the Government resolution would
have no objection to the regularisation being upheld provided degree holder
Junior Engineers who had served for a relatively longer period as Assistant
Engineers on ad hoc basis were also given a similar treatment. He submitted
that the exclusion of degree holder Junior Engineers from the legislative
measure aimed at regularising the Stipendiary degree holders was clearly
discriminatory and that the High Court was on that count justified in
holding that the Validation Act itself was ultra vires. It was contended by
Mr. Patwalia that even if the legislature had restricted the benefit of
regularisation to the Stipendiary Engineers later appointed on ad hoc basis
as Assistant Engineers, there was no reason why this Court could not extend
the very same benefit to degree holder engineers who had similarly worked
for over 15 years.
40. The decision in Umadevi’s case (supra), as noticed earlier, permitted
regularisation of regular appointments and not illegal appointments.
Question, however, is whether the appointments in the instant case could be
described as illegal and if they were not, whether the State could be
directed to regularise the services of the degree holder Junior Engineers
who have worked as ad hoc Assistant Engineers for such a long period, not
only on the analogy of the legislative enactment for regularisation but
also on the principle underlying para 53 of the decision in Umadevi’s case
(supra).
41. As to what would constitute an irregular appointment is no longer res
integra. The decision of this Court in State of Karnataka v. M.L. Kesari
and Ors. (2010) 9 SCC 247, has examined that question and explained the
principle regarding regularisation as enunciated in Umadevi’s case (supra).
The decision in that case summed up the following three essentials for
regularisation (1) the employees worked for ten years or more, (2) that
they have so worked in a duly sanctioned post without the benefit or
protection of the interim order of any court or tribunal and (3) they
should have possessed the minimum qualification stipulated for the
appointment. Subject to these three requirements being satisfied, even if
the appointment process did not involve open competitive selection, the
appointment would be treated irregular and not illegal and thereby qualify
for regularisation. Para 7 in this regard is apposite and may be extracted
at this stage:
“7. It is evident from the above that there is an exception to
the general principles against “regularisation” enunciated in
Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or
more in duly sanctioned post without the benefit or protection
of the interim order of any court or tribunal. In other words,
the State Government or its instrumentality should have employed
the employee and continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should not be illegal,
even if irregular. Where the appointments are not made or
continued against sanctioned posts or where the persons
appointed do not possess the prescribed minimum qualifications,
the appointments will be considered to be illegal. But where the
person employed possessed the prescribed qualifications and was
working against sanctioned posts, but had been selected without
undergoing the process of open competitive selection, such
appointments are considered to be irregular.”
42. It is nobody’s case that the degree holder Junior Engineers were not
qualified for appointment as Assistant Engineers as even they possess
degrees from recognised institutions. It is also nobody’s case that they
were not appointed against the sanctioned post. There was some debate as to
the actual number of vacancies available from time to time but we have no
hesitation in holding that the appointments made were at all relevant
points of time against sanctioned posts. The information provided by Mr.
Nageshwar Rao, learned Additional Solicitor General, appearing for the
State of Orissa, in fact, suggests that the number of vacancies was at all
points of time more than the number of appointments made on ad hoc basis.
It is also clear that each one of the degree holders has worked for more
than 10 years ever since his appointment as ad hoc Assistant Engineer. It
is in that view difficult to describe these appointments of the Stipendiary
Engineers on ad hoc basis to be illegal so as to fall beyond the purview of
the scheme envisaged in Umadevi’s case (supra).
43. The upshot of the above discussion is that not only because in
Umadevi’s case (supra) this Court did not disturb the appointments already
made or regularisation granted, but also because the decision itself
permitted regularisation in case of irregular appointments, the legislative
enactment granting such regularisation does not call for interference at
this late stage when those appointed or regularised have already started
retiring having served their respective departments, in some cases for as
long as 22 years.
44. We need to advert to one other aspect which bears relevance to the
issue whether regularisation under the impugned Enactment is legally valid.
The appointment process of unemployed degree holders, as noticed earlier,
started with the resolution passed by the State Government which envisaged
appointments of such unemployed Graduate Engineers as Stipendiaries on a
consolidated stipend of Rs.2,000/- p.m. The resolution further envisaged
their absorption in service after a period of two years. Not only that,
appointments as Stipendiary Engineers were made on the basis of a selection
process and on the basis of merit no matter determined de hors the relevant
rules which provided for appointments to the cadre to be made only through
the Public Service Commission. A reference to the Public Service Commission
was no doubt considered unnecessary but the fact remains that appointment
of unemployed degree holders as Stipendiary Engineers were made pursuant to
a notification by which everyone who was unemployed and held an Engineering
degree in any discipline was free to make an application. A large number of
unemployed engineers responded to the notification inviting applications
out of whom nearly 932 were selected by a Selection Committee constituted
for the purpose. What is significant is that the empanelment of the
unemployed degree holders for appointment as Stipendiaries did not invite
any criticism from any quarter either as to the method of appointment or
the fairness of the selection process. The process of appointment was at no
stage questioned before the Court, a feature which is notable keeping in
view the number of people appointed/empanelled and a larger number who were
left out and who could have possibly made a grievance if there was any. It
is not, therefore, wholly correct to suggest that the entry of the degree
holder Junior Engineers as Stipendiary Engineers and later as Assistant
Engineers was through “the backdoor”, an expression very often used in
service matters where appointments are made de hors the rules. The process
of selection and appointments may not have been as per the relevant rules
as the same ought to have been, but it is far from saying that there was
complete arbitrariness in the manner of such appointments so as to violate
Articles 14 and 16 of the Constitution of India.
45. That apart the appointment of Stipendiary Engineers was at the level
of Junior Engineers although it was argued on their behalf that they were
discharging the functions of Assistant Engineers from the date they were
employed. In the absence of any finding from the High Court on the subject
and in the absence of any cogent material before us to support that claim,
we find it difficult to hold that the appointment of the Stipendiary
Engineers was from the beginning itself as Assistant Engineers. The fact
that the resolution of the State Government itself envisaged appointment of
Stipendiary Engineers as ad hoc Assistant Engineers on the basis of
performance makes it amply clear that the Stipendiary Engineers were not
treated as Assistant Engineers for otherwise there would have been no
question of appointing them as Assistant Engineers on ad hoc or any other
basis. It is also noteworthy that the appointment of the Stipendiary
Engineers on ad hoc basis came pursuant to the direction from the High
Court which is yet another reason why it is not open to the Stipendiary
Engineers to claim that they were at all points of time working as
Assistant Engineers. Having said that we cannot lose sight of the fact that
the appointment of graduate engineers as Stipendiaries was on a clear
representation that they would be eventually absorbed in service as
Assistant Engineers. That representation is evident from the resolution of
the State Government where it stated:
“In all, therefore, 741 posts will be available for
recruiting these Degree Engineers in the first instance. They
may be designed as Junior Engineers or Stipendiary Engineers in
the first phase. They may be paid salary in the scale of Junior
Engineers or in a consolidated stipend of Rs.2,000/- per month.
Absorption into regular posts may be done after two years on the
basis of their performance.”
46. In the counter-affidavit filed by the State Government before the
High Court the State re-affirmed its commitment to the appointment of
Stipendiary Engineers as Assistant Engineers on ad hoc basis.
47. In the circumstances and taking a holistic view of the matter, it
cannot be said that the appointment of Stipendiary Engineers on ad hoc
basis and their subsequent regularisation came as a side wind or was
inspired by any political or other consideration. The Government, it
appears, was from the very beginning, keen to utilise the services of
unemployed Graduate Engineers selected on their merit by the Selection
Committee and, therefore, remained steadfast in its efforts for achieving
that purpose and in the process going even to the extent of getting them
regularised by a legislative measure. Suffice it to say that the question
whether regularisation was justified cannot be viewed in isolation or
divorced from the context in which the same arises.
48. We may now turn to the contention urged by Mr. Patwalia, that the
impugned Legislation was discriminatory in as much as it granted
regularisation to persons similarly situated while denying such benefit to
his client who not only held a degree qualification like the Stipendiary
Engineers but were in terms of the Government resolution promoted as Ad hoc
Assistant Engineers against 5% quota reserved for them. It was argued that
State could not have classified ad hoc Assistant Engineers who came from
the Stipendiary Engineers stream, on one hand, and those appointed as ad
hoc Assistant Engineers on account of their being in service as Junior
Engineers holding a degree qualification. The degree holder Junior
Engineers, it was contended, were in comparison better entitled to
regularisation as they had not only the requisite qualification but had put
in longer service as ad hoc Assistant Engineers vis-a-vis their Stipendiary
counterparts. Alternatively, it was contended that the degree holder Junior
Engineers who too had put in more than 15 years service, were entitled to a
direction for their regularisation as Assistant Engineers not only on
account of the length of service rendered by them but also on the analogy
of the legislative benefit extended to their counterpart Stipendiaries.
49. The approach to be adopted and the principles applicable to any
forensic exercise aimed at examining the validity of a legislation on the
touchstone of Article 14 of the Constitution have been long since settled
by several decisions of this Court. Restatement or repetition of those
principles was, therefore, considered platitudinous. The real difficulty as
often acknowledged by this Court lies not in stating the principles
applicable but in applying them to varying fact situations that come up for
consideration. Trite it is to say at the outset that a piece of legislation
carries with it a presumption of constitutional validity. Also settled by
now is the principle that Article 14 does not forbid reasonable
classification. A classification is valid on the anvil of Article 14, if
the same is reasonable that is it is based on a reasonable and rational
differentia and has a nexus with the object sought to be achieved. (See
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 and Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538). A
comprehensive review of the law is, in our opinion, unnecessary at this
stage in view of the Constitution Bench decision of this Court in Re: The
Special Courts Bill, 1978 (1979) 1 SCC 380 where this Court undertook that
exercise and noticed as many as thirteen propositions that bear relevance
to any forensic determination of the validity of a law by reference to the
equality clause enshrined in Article 14 of the Constitution. Some of those
principles were stated by this Court in the following words:
“xxx xxx xxx
(2) The State, in the exercise of its governmental power, has of
necessity to make laws operating differently on different groups
or classes of persons within its territory to attain particular
ends in giving effect to its policies, and it must possess for
that purpose large powers of distinguishing and classifying
persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal
protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or scientific
exclusion or inclusion of persons or things. The courts should
not insist on delusive exactness or apply doctrinaire tests for
determining the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not
that the same rules of law should be applicable to all persons
within the Indian territory or that the same remedies should be
made available to them irrespective of differences of
circumstances. It only means that all persons similarly
circumstanced shall be treated alike both in privileges
conferred and liabilities imposed. Equal laws would have to be
applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the
subject-matter of the legislation their position is
substantially the same.
(5) By the process of classification, the State has the power of
determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular
subject. This power, no doubt, in some degree is likely to
produce some inequality; but if a law deals with the liberties
of a number of well defined classes, it is not open to the
charge of denial of equal protection on the ground that it has
no application to other persons. Classification thus means
segregation in classes which have a systematic relation, usually
found in common properties and characteristics. It postulates a
rational basis and does not mean herding together of certain
persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the
needs and exigencies of the society and as suggested by
experience. It can recognise even degree of evil, but the
classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left out but
those qualities or characteristics must have a reasonable
relation to the object of the legislation. In order to pass the
test, two conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others
and (2) that that differentia must have a rational relation to
the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and
the object of the Act are distinct things and what is necessary
is that there must be a nexus between them. In short, while
Article 14 forbids class discrimination by conferring privileges
or imposing liabilities upon persons arbitrarily selected out of
a large number of other persons similarly situated in relation
to the privileges sought to be conferred or the liabilities
proposed to be imposed, it does not forbid classification for
the purpose of legislation, provided such classification is not
arbitrary in the sense abovementioned.
xxx xxx xxx
(11) Classification necessarily implies the making of a
distinction or discrimination between persons classified and
those who are not members of that class. It is the essence of a
classification that upon the class are cast duties and burdens
different from those resting upon the general public. Indeed,
the very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality.
xxx xxx xxx”
50. Applying the above to the case at hand, the first and foremost
question would be whether the classification of ad hoc Assistant Engineers
is reasonable, that there is a reasonable differentia that distinguishes
those grouped together for the grant of the benefit from those left out and
if there is such a differentia, whether the classification has a reasonable
nexus with the object underlying the legislation.
51. The second and by no means less important is the question whether the
impugned legislation is ultra vires of Article 14 because of under
inclusion. That is because the argument of the writ petitioners in
substance is that the legislation ought to have included even in-service
Junior Engineers degree holders working as Ad hoc Assistant Engineers for
the benefit of regularisation.
52. There is no difficulty in answering the first question. We say so
because the beneficiaries of the impugned legislation constitute a class by
themselves inasmuch as they were un-employed degree holders appointed as
Stipendiary Engineers on a consolidated pay. The method of their employment
was also different inasmuch as although they were selected on the basis of
inter-se merit, the process of selection itself was not conducted by the
Public Service Commission. Their appointment as ad hoc Assistant Engineers
also came pursuant to a direction issued by the High Court no matter the
direction itself was based on a resolution passed by the State Government
that provided for such appointments upon proof of satisfactory performance.
The object underlying the legislation evidently being to ensure continued
utilisation of the services of such Stipendaries appointed on ad hoc basis
as Assistant Engineers, there was a reasonable nexus between the
classification and the object sought to be achieved. It is not the case of
writ petitioners that Stipendiary Engineers appointed as ad hoc Assistant
Engineers were left out of the group for a hostile treatment by refusal of
the benefit extended to others similarly situated. What the writ
petitioners contend in support of their challenge to the validity of the
legislation is that since they were also appointed on ad hoc basis though
in a different way, the legislation was bad for under inclusion. We shall
presently deal with the test applicable to cases where the challenge to the
legislation is founded on under inclusion but before we do so, we need to
dispel the impression that the writ petitioners were similarly situated as
the Stipendiaries only because they were also working as ad hoc Assistant
Engineers. There is no gainsaying that the legislation does not aim at
regularising all ad hoc Assistant Engineers regardless of the circumstances
in which such appointments came about. If that were so, the writ
petitioners could well argue that since the object underlying the enactment
is to regularise all ad hoc Assistant Engineers, they could not be left out
without violating their fundamental rights under Article 14 of the
Constitution. The impugned legislation, however, has limited its
beneficence to ad hoc Assistant Engineers who came in as Stipendiary
Engineers pursuant to a policy decision of the State Government that aimed
at utilising their services and dealing with the unemployment problem in
the State. That being the object, ad hoc Assistant Engineers appointed by
other modes or in circumstances other than those in which Stipendiaries
entered the service, cannot cry foul or invite the wrath of Article 14 upon
the legislation. As a matter of fact, the State Government’s resolve to
give 5% vacancies to in service degree holder Junior Engineers itself
brought about a classification between Stipendiaries on one hand and the in-
service Junior Engineers on the other. The proposed reservation having run
into rough waters because of the opposition of the Orissa Public Service
Commission, the in-service Junior Engineer writ petitioners before the High
Court lost their fight for a share in the higher cadre of Assistant
Engineers based on their higher qualification. Suffice it to say that
Stipendiary Engineers later appointed as ad hoc Assistant Engineers were a
class by themselves and any benefit to them under the impugned Enactment
could not be grudged by in-service Junior Engineers no matter the latter
had in anticipation of the amendment to the recruitment rules also got
appointed as ad hoc Assistant Engineers.
53. Coming then to the question of “under inclusion” we need to keep in
mind that a challenge based on “under inclusion” is not readily accepted by
Courts. Constitution Bench’s decision of this Court in State of Gujarat and
Anr. v. Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974) 4 SCC 656, dealt
with the question of a classification which was under inclusive and
declared that having regard to the real difficulties under which
legislatures operate, the Courts have refused to strike down legislations
on the ground that they are under inclusive. The Court observed:
“55. A classification is under-inclusive when all who are
included in the class are tainted with the mischief but there
are others also tainted whom the classification does not
include. In other words, a classification is bad as under-
inclusive when a State benefits or burdens persons in a manner
that furthers a legitimate purpose but does not confer the same
benefit or place the same burden on others who are similarly
situated. A classification is over-inclusive when it includes
not only those who are similarly situated with respect to the
purpose but others who are not so situated as well. In other
words, this type of classification imposes a burden upon a wider
range of individuals than are included in the class of those
attended with mischief at which the law aims. Herod ordering the
death of all male children born on a particular day because one
of them would some day bring about his downfall employed such a
classification.
56. The first question, therefore, is, whether the exclusion of
establishments carrying on business or trade and employing less
than 50 persons makes the classification under-inclusive, when
it is seen that all factories employing 10 or 20 persons, as the
case may be, have been included and that the purpose of the law
is to get in unpaid accumulations for the welfare of the labour.
Since the classification does not include all who are similarly
situated with respect to the purpose of the law, the
classification might appear, at first blush, to be unreasonable.
But the Court has recognised the very real difficulties under
which legislatures operate - difficulties arising out of both
the nature of the legislative process and of the society which
legislation attempts perennially to re-shape - and it has
refused to strike down indiscriminately all legislation
embodying classificatory inequality here under consideration.
Mr. Justice Holmes, in urging tolerance of under- inclusive
classifications, stated that such legislation should not be
disturbed by the Court unless it can clearly see that there is
no fair reason for the law which would not require with equal
force its extension to those whom it leaves untouched.”
(emphasis supplied)
54. The above was followed by this Court in The Superintendent and
Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and
Ors. (1975) 4 SCC 754 where this Court held that some sacrifice of absolute
equality may be required in order that legal system may preserve the
flexibility to evolve new solutions to social and economic problems. This
Court said:
“8. Often times the courts hold that under-inclusion does not
deny the equal protection of laws under Article 14. In strict
theory, this involves an abandonment of the principle that
classification must include all who are similarly situated with
respect to the purpose. This under-inclusion is often explained
by saying that the legislature is free to remedy parts of a
mischief or to recognize degrees of evil and strike at the harm
where it thinks it most acute.
xxxxxxxxxxxx
10. There are two main considerations to justify an under-
inclusive classification. First, administrative necessity.
Second, the legislature might not be fully convinced that the
particular policy which it adopts will be fully successful or
wise. Thus to demand application of the policy to all whom it
might logically encompass would restrict the opportunity of a
State to make experiment. These techniques would show that some
sacrifice of absolute equality may be required in order that the
legal system may preserve the flexibility to evolve new
solutions to social and economic problems. The gradual and
piecemeal change is often regarded as desirable and legitimate
though in principle it is achieved at the cost of some equality.
It would seem that in fiscal and regulatory matters the court
not only entertains a greater presumption of constitutionality
but also places the burden on the party challenging its validity
to show that it has no reasonable basis for making the
classification.”
55. The above decisions were followed in Ajoy Kumar Banerjee and Ors. v.
Union of India and Ors. (1984) 3 SCC 127 where this Court observed:
“...Article 14 does not prevent legislature from introducing a
reform i.e. by applying the legislation to some institutions or
objects or areas only according to the exigency of the situation
and further classification of selection can be sustained on
historical reasons or reasons of administrative exigency or
piecemeal method of introducing reforms. The law need not apply
to all the persons in the sense of having a universal
application to all persons. A law can be sustained if it deals
equally with the people of well-defined class-employees of
insurance companies as such and such a law is not open to the
charge of denial of equal protection on the ground that it had
no application to other persons.”
56. We have in the light of the above no hesitation in holding that the
legislation under challenge does not suffer from any constitutional
infirmity and that the High Court was in error in having struck it down.
57. Having said that we are of the opinion that even when the challenge
to the constitutional validity of the impugned enactment fails, the degree
holder Junior Engineers currently working as ad hoc Assistant Engineers are
entitled to the relief of regularisation in service, having regard to the
fact that they have rendered long years of service as Assistant Engineers
on ad hoc basis for 17 to 18 years in some cases. While it is true that
those in service degree holders working as Junior Engineers were not the
beneficiaries of the legislation under challenge, the fact remains, that
they were eligible for appointment as Assistant Engineers on account of
their being degree holders. It is also not in dispute that they were
appointed against substantive vacancies in the cadre of Assistant Engineers
no matter by utilizing the direct recruit quota. Even in the case of
Stipendiary Engineers the vacancies were utilized out of the 67% quota
meant for direct recruitment. What is, however, significant is that the
utilization of the quota reserved for direct recruitment for appointing
Stipendiary and Junior Engineers as Assistant Engineers has not been
assailed either before the High Court or before us. On the contrary the
contention urged on behalf of Junior Engineers degree holders who are still
working as Junior Engineers was that the remainder of vacancies comprising
5% of the cadre strength should be utilised to appoint the eligible degree
holder Junior Engineers. We shall presently deal with that contention.
Suffice it to say for the present that the appointments granted to degree
holder Junior Engineers as Assistant Engineers on ad hoc basis were
pursuant to a Government decision whereunder such degree holders as were
already in-service as Junior Engineers, were also given an opening for
upward movement. Appointment of such degree holders was not grudged by
their diploma holder colleagues as no challenge was mounted by them to such
appointments ostensibly because degree holder Junior Engineers were getting
appointed without in the least affecting the quota of 33% reserved for the
promotees. In a way the upward movement of the degree holders as Assistant
Engineers brightened the chances of the rest to get promoted at their turn
in the promotees quota. All told, the Junior Engineers have served for
almost a lifetime and held substantive vacancies no matter on ad hoc basis.
To revert them at this distant point of time would work hardship to them.
Besides, we cannot ignore the march of events especially the fact that
Stipendaries appointed at a later point of time with the same
qualifications and pursuant to the very same Government policy as took
shape for both the categories, have been regularised by the Government
through the medium of a legislation. That this Court can suitably mould the
relief, was not in serious controversy before us. In the circumstances, we
hold the degree holder Junior Engineers currently working as Assistant
Engineers on ad hoc basis writ petitioners in the High Court entitled to
the relief of regularisation with effect from the same date as the
Validation Act granted such regularisation to the Stipendiary Engineers.
58. We shall advert to the question of inter se seniority between the two
categories while we take up question No.3. But before we turn to question
No.3 we need to briefly deal with the contention urged on behalf of some of
the degree holder Junior Engineers represented by Mr. Dholakia who
contended that since the Government resolution had provided for 5% quota
for degree holder Junior Engineers the Government was duty bound to make
appointments against that quota. It was urged that the cadre strength of
the Assistant Engineers had not been presently determined by the Government
nor were the figures given by the State Government accurate. The number of
Junior Engineers who should have got appointed against 5% quota reserved
for them would have been large, agreed Mr. Dholakia. To the extent of
shortfall the State Government was bound to continue the process of
appointment, contended the learned counsel.
59. There is, in our opinion, no merit in the submissions urged by Mr.
Dholakia and by learned counsel for some of the interveners. We say so
because the quota which the Government resolution proposed to carve out
never fructified by a corresponding amendment of the Service Rules. As
noticed in the earlier part of this order, the Orissa Public Service
Commission was not agreeable to the reservation of a quota for the
subordinate engineering service members who held a degree qualification. No
such classification was, therefore, made or could be made by the
Government, nor was the Government resolution translated into a binding
rule that could be enforced by a Court of law. Assuming, therefore, that
on a true and proper determination of the posts comprising the cadre
strength of Assistant Engineers, some more vacancies could fall in the 5%
quota proposed to be reserved for the degree holder Junior Engineers and no
mandamus could be issued for filing up such vacancies. It is trite that
existence of an enforceable right and a corresponding obligation is a
condition precedent for the issue of a mandamus. We fail to locate any such
right in favour of the writ petitioner degree holders who are still holding
posts as Junior Engineers. They will have, therefore, to wait for their
turn for promotion against the 33% quota reserved for them along with their
diploma holder colleagues. We hardly need to emphasise that those appointed
against 5% quota may also have had no such right, but since they have
worked in the higher cadre for a long period and discharged duties attached
to the posts of Assistant Engineers with the benefits attached thereto,
their regularisation comes on a totally different juristic basis than the
one sought to be urged on behalf of those who were left out. Appointments
as Assistant Engineers were from out of Junior Engineers made strictly
according to seniority. The fortuitous circumstance under which the
appointments did not extend to the full quota of 5% would make no material
difference when it comes to finding out whether the Junior Engineers can
claim an enforceable legal right.
60. Question No.2 is answered accordingly.
Re. Question No.3
61. Section 3(2) of the impugned legislation deals entirely with the
inter se seniority of Assistant Engineers whose appointments are
validated/regularised by the said enactment and stipulates that such inter
se seniority shall be determined according to the dates of appointment of
the officers concerned on ad hoc basis as mentioned in the schedule. It
further stipulates that all those regularised under the legislation shall
be enbloc junior to the Assistant Engineers of that year appointed to the
service in their respective discipline in their cadre in accordance with
the provisions of the Recruitment Rules. Sub-section (3) of Section 3 makes
the ad hoc service rendered by such Assistant Engineers count for the
purpose of their pension, leave and increments and for no other purpose.
62. Appearing for the State of Orissa, Mr. Nageshwar Rao contended that
grant of seniority to ad hoc Assistant Engineers regularised under the
legislation w.e.f. the date they were appointed on ad hoc basis was legally
permissible especially when the ad hoc appointments had continued without
any interruption till their regularisation. Reliance in support was placed
by Mr. Rao upon a Constitution Bench decision of this Court in Direct
Recruit Class II Engineering Officers’ Association v. State of Maharashtra
and Ors. (1990) 2 SCC 715. The case at hand, according to the learned
counsel, fell under proposition (B) formulated in the said decision. Grant
of seniority from the date of initial appointments did not, therefore,
suffer from any constitutional or other infirmity to warrant interference
from this Court.
63. Mr. Sisodia appearing for some of the parties, on the other hand,
contended that seniority could be granted only from the date of
regularisation under the enactment and not earlier. Learned counsel for
some of the interveners adopted that contention, including Ms. Aishwarya
appearing for some of the diploma holder Junior Engineers and urged that ad
hoc service rendered by the Engineers appointed otherwise than in
accordance with the rules could not count for the purposes of seniority and
that even if Section 3(1) of the Validation Act was held to be valid,
Section 3(2) which gave retrospective seniority from the date they were
first appointed on ad hoc basis must go.
64. In Direct Recruit’s case (supra) this Court reviewed and summed up
the law on the subject by formulating as many as 11 propositions out of
which propositions A and B stated in Para 47 of the decision in the
following words are relevant for our purposes:
“47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made
as a stop-gap arrangement, the officiation in such post cannot
be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues in
the post uninterruptedly till the regularisation of his service
in accordance with the rules, the period of officiating service
will be counted.”
65. There was some debate at the bar whether the case at hand is covered
by corollary to proposition A or by proposition B (supra). But having
given our consideration to the submissions at the Bar we are inclined to
agree with Mr. Rao’s submission that the case at hand is more appropriately
covered by proposition B extracted above. We say so because the initial
appointment of ad hoc Assistant Engineers in the instant case was not made
by following the procedure laid down by the Rules. Even so, the appointees
had continued in the posts uninterruptedly till the Validation Act
regularised their service. There is, in the light of those two significant
aspects, no room for holding that grant of seniority and other benefits
referred to in Section 3(3) of the impugned Act were legally impermissible
or violated any vested right of the in service Assistant Engineers
appointed from any other source. Proposition A, in our opinion, deals with
a situation where an incumbent is appointed to a post according to the
rules but the question that arises for determination is whether his
seniority should be counted from the date of his appointment or from the
date of his confirmation in the said service. The corollary under
proposition A, in our opinion, deals with an entirely different situation,
namely, where the appointment is ad hoc and made as a stop-gap-arrangement
in which case officiation in such post cannot be taken into consideration
for seniority. Be that as it may, as between proposition A and B the case
at hand falls more accurately under proposition B which permits grant of
seniority w.e.f. the date the appointees first started officiating followed
by the regularisation of their service as in the case at hand.
66. We may also refer to a three-Judge Bench of this Court in Union of
India and Anr. etc. etc. v. Lalita S. Rao and Ors. etc. etc. (2001) 5 SCC
384 where doctors appointed by Railway Administration on ad hoc basis had
been upon regularisation granted seniority from the date of their ad hoc
appointment. This Court held that proposition B stated in Direct Recruits
case (supra) permitted such seniority being granted. This Court observed:
“Obviously the Court had in mind the principle B evolved by the
Constitution Bench in the Direct Recruit Engineering Officers
Association case (supra). If the initial appointment had not
been made in accordance with the prescribed procedure laid down
by the Recruitment Rules, and yet the appointees Medical
Officers were allowed to continue in the post uninterruptedly
and then they appeared at the selection test conducted by the
Union Public Service Commission, and on being selected their
services stood regularised then there would be no justification
in not applying the principle 'B' of the Direct Recruit Class II
Engineering Officers Association case (supra) and denying the
period of officiating services for being counted for the purpose
of seniority.”
67. Reference may also be made to the decision of this Court in State of
Andhra Pradesh & Anr. V. K.S. Muralidhar & Ors. (1992) 2 SCC 241 where the
Government of India gave weightage to service rendered by employees prior
to their regularisation. The dispute in that case was regarding inter se
seniority between the Supervisors who were upgraded as Junior Engineers and
the degree holders who were directly appointed as Junior Engineers. This
Court held that the State Government had as a matter of policy given
weightage to both the categories and that there was nothing unreasonable in
giving a limited benefit or weightage to the upgraded Supervisors in the
light of their experience. This Court said:
“The question to be considered is from which date the weightage
of four years' service should be given to the upgraded Junior
Engineers namely the Supervisors. Is it the date of acquiring
the degree qualification or the date of their appointment?
Having given our earnest consideration and for the reasons
stated above we hold that the weightage can be given only from
the date of their appointment.
The Tribunal in the course of its order, however, observed that
in accordance with the existing rules the appointments of these
Junior Engineers from the notional date have to be cleared by
the Public Service Commission and the appointments cannot be
held to be regular appointments as long as they are not approved
by the Public Service Commission.
Xx xx xx
To sum up, our conclusions are as under:
(i) The weightage of four years in respect of upgraded Junior
Engineers as provided in G.O. Ms. No. 559 has to be reckoned
from the date of appointment and not the date of their acquiring
the degree qualification;
(ii) On the basis of that notional date, their inter-se
seniority has to be fixed;
(iii) The regularisation of the degree-holder Junior Engineers
who passed the SQT by giving retrospective effect cannot be held
to be illegal, and their seniority among themselves shall be
subject to the order of ranking given by the Public Service
Commission on the basis of the SQT;
(iv) The Government shall prepare a common seniority list of the
degree-holders Junior Engineers and the upgraded Junior
Engineers on the above lines and that list shall be the basis
for all the subsequent promotions. Promotions, if any, already
given shall be reviewed and readjusted in accordance with the
said seniority list; and
(v) The approval of the Public Service Commission in respect of
these appointments and their seniority thus fixed need not be
sought at this distance of time.”
(emphasis supplied)
68. In Narender Chadha & Ors. v. Union of India & Ors. (1986) 2 SCC 157,
this Court was dealing with a somewhat similar fact situation. The
petitioners in that case were not promoted by following the actual
procedure prescribed by the relevant Service Rules even though the
appointments were made in the name of the President by the competent
authority. They had based on such appointments, continuously held the post
to which they were appointed and received salary and allowances payable to
incumbent of such post. The incumbents were entered in the direct line of
their promotion. The question, however, was whether it would be just and
proper to hold that such promotees had no right to the post held by them
for 15-20 years and could be reverted unceremoniously or treated as persons
not belonging to the service at all. Repelling the argument that such
service would not count for the purposes of seniority, this Court observed:
“ It would be unjust to hold at this distance of time that on
the facts and in the circumstances of this case the petitioners
are not holding the posts n Grade IV. The above contention is
therefore without sub-stance. But we, however, make it clear
that it is not our view that whenever a person is appointed in a
post without following the Rules prescribed for appointment to
that post, he should be treated as a person regularly appointed
to that post. Such a person may be reversed from that post. But
in a case of the kind before us where persons have been allowed
to function in higher posts for 15 to 20 years with due
deliberation it would be certainly unjust to hold that they have
no sort of claim to such posts and could be reverted
unceremoniously or treated as persons not: belonging to the
Service at all, particularly where the Government is endowed
with the power to relax the Rules to avoid unjust results. In
the instant case the Government has also not expressed its
unwillingness to continue them in the said posts. The other
contesting respondents have also not urged that the petitioners
should be sent out of the said posts. The only question agitated
before us relates to the seniority as between the petitioners
and the direct recruits and such a question can arise only where
there is no dispute regarding the entry of the officers
concerned into the same Grade. In the instant case there is no
impediment even under the Rules to treat these petitioners and
others who are similarly situated as persons duly appointed to
the posts in Grade IV because of the enabling provision
contained in the Rule 16 thereof. Rule 16 as it stood at the
relevant time read as follows :
16. The Government may relax the provisions of these rules
to such extent as may be necessary to ensure satisfactory
working or remove in-equitable results.”
(emphasis supplied)
69. The ratio of the decision in the above case was not faulted by the
Constitution Bench of this Court in Direct Recruit’s case (supra). As a
matter of fact the Court approved the said decision holding that there was
force in the view taken by this Court in that case. This Court observed:
“In Narender Chadha v. Union of India
the officers were promoted
although without following the procedure prescribed under the
rules, but they continuously worked for long periods of nearly
15-20 years on the posts without being reverted.
The period of
their continuous officiation was directed to be counted for
seniority as it was held that any other view would be arbitrary
and violative of Articles 14 and 16. There is considerable force
in this view also.
We, therefore, confirm the principle of
counting towards seniority the period of continuous officiation
following an appointment made in accordance with the rules
prescribed for regular substantive appointments in the service.”
70. In the light of what we have said above, we do not see any illegality
or constitutional infirmity in the provisions of Section 3(2) or 3(3) of
the impugned legislation.
71. Having said so, there is no reason why a similar direction regarding
the writ-petitioners degree holder Junior Engineers who have been held by
us to be entitled to regularisation on account of their length of service
should also not be given a similar benefit. We must mention to the credit
of Dr. Dhawan, appearing for the Stipendiary Engineers who have been
regularised under the provisions of the Legislation that such Stipendiary-
ad hoc Assistant Engineers cannot, according to the learned counsel, have
any objection to the degree holder Junior Engineers currently working as
Assistant Engineers on ad hoc basis being regularised in service or being
given seniority from the date they were first appointed. It was also
conceded that Stipendiary Engineers all of whom were appointed after the
appointment of the Junior Engineers would enbloc rank junior to such ad hoc
Assistant Engineers from out of degree holder Junior Engineers. But all
such regularised Assistant Engineers from Stipendiary Stream and from
Junior Engineers category would together rank below the promotee Assistant
Engineers.
72. Question No.3 is answered accordingly.
73. Several intervention applications have been filed in these appeals to
which we may briefly refer at this stage. In IA No.5 of 2012 filed in Civil
Appeal No.8324 of 2009, the interveners have sought permission for the
State Government to complete the re-structuring process and to fill up the
vacancies subject to a final decision of this Court in these appeals. In IA
Nos.6 and 7 of 2012 also filed in Civil Appeal No.8324 of 2009, the
interveners seek a direction to the State of Orissa to upgrade the post of
Assistant Engineers Class II (Group B) to Assistant Executive Engineer
Junior Class I (Group A) and to make such up-gradation retrospective w.e.f.
28th February, 2009. IA No.8 of 2012 has been filed in the very same
appeal in which the interveners have sought a direction against the State
of Orissa to give effect to the up-gradation of posts considering inter se
seniority of in-service degree holder Junior Engineers who are otherwise
eligible for appointment against the vacancies reserved for direct
recruits. In IA No.3 of 2009 in SLP No.29765 of 2008, the interveners seek
permission to support the judgment of the High Court whereby the impugned
legislation has been struck down as unconstitutional. Similarly, IAs filed
in some other appeals either seek to support the judgment passed by the
High Court or pray for permission to argue the case on behalf of one or the
other party.
74. We have heard counsel for the interveners also at some length. We,
however, do not consider it necessary to enlarge the scope of these
proceedings by examining issues that are not directly related to the
controversy at hand.
Three questions that have primarily engaged our
attention in these petitions relate to
(a) the validity of the impugned
Validation Act.
(b) regularization of in-service degree holder Junior
Engineers who have been working for considerable length of time as
Assistant Engineers on ad hoc basis and
(c) the seniority position of those
being regularized either under the Validation Act or in terms of the
directions being issued by us in these appeals.
Other issues which the
interveners seek to raise especially issues regarding grant or denial of
the benefit of reservation to SC and ST candidates, have not been touched
by us in these proceedings for want of proper pleadings on the subject and
also for want of any pronouncement by the High Court on the said questions.
In the circumstances, this order shall be taken to have settled only what
we have specifically dealt with or what would logically follow therefrom.
Any question whether the same relates to inter se seniority of those
regularized under the legislation or by reason of the directions which we
propose to issue or issues relating to the benefit of seniority on the
basis of roster points if any prescribed for that purpose are left open and
may be agitated by the aggrieved party before an appropriate forum in
appropriate proceedings. To the extent any such questions or aspects have
not been dealt with by us in this order, may be dealt with in any such
proceedings. Beyond that we do not consider it proper or necessary to say
anything at this stage.
75. In the result we pass the following order:
(1) Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and
Civil Appeals No.8322-8323 of 2009 and 1940 of 2010 filed by the
Stipendiary Engineers are allowed and the impugned judgment and order
dated 15th October, 2008 passed by the High Court of Orissa set aside.
(2) Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005,
12706/2006 and 8630/2006 filed by the degree holders Junior Engineers
working as Assistant Engineers on ad hoc basis are also allowed but
only to the limited extent that the services of the writ-petitioners
and all those who are similarly situated and promoted as ad hoc
Assistant Engineers against the proposed 5% quota reserved for in-
service Junior Engineers degree holder shall stand regularized w.e.f.
the date Orissa Service of Engineers (Validation of Appointment) Act,
2002 came into force. We further direct that such in-service degree
holder Junior Engineers promoted as Assistant Engineers on ad hoc
basis shall be placed below the promotees and above the Stipendiary
Engineers regularized in terms of the impugned legislation. The inter
se seniority of the Stipendiary Engineers regularized as Assistant
Engineers under the impugned Legislation and Junior Engineer degree
holders regularized in terms of this order shall be determined on the
basis of their date of first appointment as Assistant Engineers on ad
hoc basis.
(3) Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment and
order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of
1999 disposed of in terms of the above direction.
(4) Intervention applications filed in these appeals are also disposed of
in the light of observations made in Para 74 of this judgment.
(5) Parties are left to bear their own costs.
……………………….……….…..…J.
(T.S. THAKUR)
…………..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
February 19, 2014
