Page 1

        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  

1

Page 2

(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  

2

Page 3

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  

3

Page 4

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.

i) All  posts of Assistant Engineers   referred  to  the  Orissa  Public  Service  Commission  and  advertised  by  them  may  be  withdrawn.

ii) 314  posts  of  Stipendiary  Engineers may be created one in   each Block.

iii) 100  posts  of  Stipendiary  Engineers may be created in the  

4

Page 5

Irrigation Department for survey  and investigation.

iv) 200  posts  of  Stipendiary  Engineers  may  be  created  for   the initial infrastructure work of   Paradip Port-based Steel Plant.

v) 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.

vi) The criteria for selection are to   be  worked  out  separately,  so  that  Stipendiary  Engineers  are  recruited  on  merit  basis  batch  by batch.

vii) 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  

5

Page 6

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.

6

Page 7

(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.

d. Secretary Steel & Mines Chairman  of the  Committee

di. Engineer-in-Chief and  Secretary, Works  

Member

dii. Engineer-in-Chief  (Irrigation)

Member

diii. Chief Engineer Electricity  and electrical Projects

Member

div. Chief Engineer, PHD Member

dv. Chief Engineer, RLEGP Member

dvi. 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   

7

Page 8

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  

8

Page 9

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.

9

Page 10

(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  

10

Page 11

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  

11

Page 12

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  

12

Page 13

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  

13

Page 14

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  

14

Page 15

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  

15

Page 16

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  

16

Page 17

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   

17

Page 18

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.   

18

Page 19

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:

19

Page 20

“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  

20

Page 21

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?

21

Page 22

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.   

22

Page 23

(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  

23

Page 24

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  

24

Page 25

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.   

25

Page 26

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:

26

Page 27

“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.”

27

Page 28

(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  

28

Page 29

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  

29

Page 30

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  

30

Page 31

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,  

31

Page 32

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  

32

Page 33

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.  

33

Page 34

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.”

34

Page 35

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   

35

Page 36

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  

36

Page 37

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  

37

Page 38

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

Page 39

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  

39

Page 40

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  

40

Page 41

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  

41

Page 42

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   

42

Page 43

“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,  

43

Page 44

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  

44

Page 45

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  

45

Page 46

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  

46

Page 47

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  

47

Page 48

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  

48

Page 49

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  

49

Page 50

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  

50

Page 51

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.

51

Page 52

(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.

52

Page 53

(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  

53

Page 54

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  

54

Page 55

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  

55

Page 56

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  

56

Page 57

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  

57

Page 58

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   

58

Page 59

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  

59

Page 60

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.   

60

Page 61

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  

61

Page 62

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  

62

Page 63

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  

63

Page 64

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  

64

Page 65

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  

65

Page 66

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  

66

Page 67

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  

67

Page 68

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   

68

Page 69

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  

69

Page 70

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:

70

Page 71

“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  

71

Page 72

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

72

Page 73

(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:

73

Page 74

“ 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  

74

Page 75

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  

75

Page 76

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  

76

Page 77

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.

77

Page 78

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  

78

Page 79

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  

79

Page 80

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  

80

Page 81

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

81