AMARKANT RAI Vs STATE OF BIHAR .
Bench: V. GOPALA GOWDA,R. BANUMATHI
Case number: C.A. No.-002835-002835 / 2015
Diary number: 18800 / 2013
Advocates: (MRS. ) VIPIN GUPTA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2835 OF 2015 (Arising out of SLP (Civil) NO. 20169/2013)
AMARKANT RAI ... APPELLANT (S) VERSUS
STATE OF BIHAR & ORS. ….RESPONDENT (S)
J U D G M E N T
R. BANUMATHI,J.
Leave granted.
2. This appeal by special leave arises out of the order
dated 20.02.2013 passed by the High Court of Judicature at
Patna in LPA No.1312 of 2012 which was dismissed in limine by
the High Court, whereby the order of the learned Single Judge
was confirmed observing that the appointment of the appellant
as daily wages was not by the competent authority and that he
is not entitled for regularization.
3. Brief facts which led to the filing of this appeal are as
follows:- The appellant was appointed temporarily in Class IV
post of Night Guard, on daily wages vide Office Order dated
04.06.1983 issued by Principal, Ramashray Baleshwar College
(for short “College”), Dalsang Sarai, affiliated to Lalit Narayan
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Mithila University(for short “University”), Bihar. The University
vide letter dated 04.07.1985 took a decision to regularize the
persons who worked for more than 240 days, and as per the
letter dated 30.03.1987, as per which employees who have
been working for a period for more than one year need to be
regularized. Thereafter, the Additional Commissioner-cum-
Secretary, Bihar passed a settlement dated 11.07.1989 and
forwarded a copy of the same to the Vice Chancellors of the
Universities, wherein it was stated that the services of
employees working in educational institutions as per the staff
pattern, can be regularized, further imposing a condition that
new appointments against the vacancies present and in future
should not at all be done. Principal, Ramashray Baleshwar
College requested the Registrar of the University to regularize
the services of appellant vide letter dated 07.10.1993; but the
Registrar passed an Order of termination dated 01.03.2001. A
Writ Petition No.9809/1998 was preferred by few similarly
placed daily wagers in the High Court. As per the directions
issued by the High Court, the Registrar of the University vide
letter dated 22.12.2001 allowed all the daily wagers to resume
their jobs from 03.01.2002 and the appellant also joined his
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duties.
4. The Principal of the College again vide letters dated
08.01.2002 and 12.07.2004 recommended for absorption of the
appellant against the two vacant posts. In pursuance of the
High Court Order in CWJC No. 5774/2000, he was given
opportunity to appear before the Three Members Committee
constituted by the Vice-Chancellor for consideration of his claim
for regularization of services, but the same was rejected as it
was not in consonance with the Recruitment Rules laid down by
the Constitution Bench judgment in Secretary, State of
Karnataka & Ors. v. Umadevi (3) & Ors., (2006) 4 SCC 1 and the
same was informed to the appellant by the Registrar vide letter
dated 25.11.2007. Appellant approached the High Court by way
of Writ Petition (civil) No. 545/2009 and the same was dismissed
vide Order dated 26.8.2011 observing that it is a clear case of
violation of Section 10(6) and Section 35 of the Bihar State
Universities Act, 1976 and there is no illegality in the order
passed by the Three Members Committee. Aggrieved by it, the
appellant preferred LPA No. 1312/2012 which was dismissed in
limine confirming the order dated 26.08.2011. In this appeal,
the appellant seeks to assail the above order.
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5. Learned counsel for the appellant contended that the
appellant served on the post for 29 years on daily wages and
even as per the decision in para 53 in Umadevi’s case (supra),
irregular appointment of employees who have worked for more
than 10 years should be considered on merits. It was
contended that the appellant has been working in a sanctioned
post and his appointment was not illegal but in the facts and
circumstances of the case, his appointment could only be
irregular appointment entitling him for regularization. It was
submitted that Three Members Committee as well as the High
Court did not keep in view that the case of the appellant was
recommended for regularization.
6. Per contra, learned counsel for respondents No. 1 to 3
contended that Principal of the College has no authority to make
any appointment on any post on daily wages as per the
legislative scheme under Section 10(6) of Bihar State
Universities Act, 1976. It was submitted that Three Members
Committee scrutinized the documents available on record and
rejected claim of the appellant for regularization and the High
Court rightly dismissed the claim of the appellant for
regularization.
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7. Reiterating the submission, learned counsel for
respondent Nos. 4 to 6 submitted that a principal of the college
was not empowered under the Universities Laws to make
appointment to Class III or Class IV and that the appellant was
not appointed against any sanctioned post and therefore he
cannot seek for regularization.
8. We have carefully considered the rival contentions and
also perused the impugned order and material on record.
9. Insofar as contention of the respondent that the
appointment of the appellant was made by the principal who is
not a competent authority to make such appointment and is in
violation of the Bihar State Universities Act and hence the
appointment is illegal appointment, it is pertinent to note that
the appointment of the appellant as Night Guard was done out
of necessity and concern for the college. As noticed earlier, the
Principal of the college vide letters dated 11.03.1988,
07.10.1993, 08.01.2002 and 12.07.2004 recommended the case
of the appellant for regularization on the post of Night Guard
and the University was thus well acquainted with the
appointment of the appellant by the then principal even though
Principal was not a competent authority to make such
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appointments and thus the appointment of the appellant and
other employees was brought to the notice of the University in
1988. In spite of that, the process for termination was initiated
only in the year 2001 and the appellant was reinstated w.e.f.
3.01.2002 and was removed from services finally in the year
2007. As rightly contended by the learned counsel for the
appellant, for a considerable time, University never raised the
issue that the appointment of the appellant by the Principal is
ultra vires the rules of BSU Act. Having regard to the various
communications between the Principal and the University and
also the education authorities and the facts of the case, in our
view, the appointment of the appellant cannot be termed to be
illegal, but it can only be termed as irregular.
10. Human Resources Development, Department of Bihar
Government, vide its letter dated 11.07.1989 intimated to the
Registrar of all the Colleges that as per the settlement dated
26.04.1989 held between Bihar State University and College
Employees Federation and the Government it was agreed that
the services of the employees working in the education
institutions on the basis of prescribed staffing pattern are to be
regularized. As per sanctioned staffing pattern, in Ramashray
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Baleshwar College, there were two vacant posts of Class IV
employees and the appellant was appointed against the same.
Further, Resolution No. 989 dated 10.05.1991 issued by the
Human Resources Development Department provides that
employees working upto 10.5.1986 shall be adjusted against
the vacancies arising in future. Although, the appellant was
appointed in 1983 temporarily on the post that was not
sanctioned by the State Government, as per the above
communication of Human Resources Development Department,
it is evident that the State Government issued orders to
regularise the services of the employees who worked upto
10.5.1986. In our considered view, the High Court ought to
have examined the case of the appellant in the light of the
various communications issued by the State Government and in
the light of the circular, the appellant is eligible for
consideration for regularization.
11. As noticed earlier, the case of the appellant was
referred to Three Members Committee and Three Members
Committee rejected the claim of the appellant declaring that his
appointment is not in consonance with the ratio of the decision
laid down by this Court in Umadevi’s case (supra). In
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Umadevi’s case, even though this Court has held that the
appointments made against temporary or ad-hoc are not to be
regularized, in para 53 of the judgment, it provided that
irregular appointment of duly qualified persons in duly
sanctioned posts who have worked for 10 years or more can be
considered on merits and steps to be taken one time measure
to regularize them. In para 53, the Court observed as under:-
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
The objective behind the exception carved out in this case was
to permit regularization of such appointments, which are
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irregular but not illegal, and to ensure security of employment
of those persons who served the State Government and their
instrumentalities for more than ten years.
12. Elaborating upon the principles laid down in Umadevi’s
case (supra) and explaining the difference between irregular
and illegal appointments in State of Karnataka & Ors. v. M.L.
Kesari & Ors., (2010) 9 SCC 247, this Court held as under:
“7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) , if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”
13. Applying the ratio of Umadevi’s case, this Court in Nihal
Singh & Ors. v. State of Punjab & Ors., (2013) 14 SCC 65
directed the absorption of the Special Police Officers in the
services of the State of Punjab holding as under:
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“35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is— the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.”
14. In our view, the exception carved out in para 53 of
Umadevi is applicable to the facts of the present case. There is
no material placed on record by the respondents that the
appellant has been lacking any qualification or bear any blemish
record during his employment for over two decades. It is
pertinent to note that services of similarly situated persons on
daily wages for regularization viz. one Yatindra Kumar Mishra
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who was appointed on daily wages on the post of Clerk was
regularized w.e.f. 1987. The appellant although initially working
against unsanctioned post, the appellant was working
continuously since 03.1.2002 against sanctioned post. Since
there is no material placed on record regarding the details
whether any other night guard was appointed against the
sanctioned post, in the facts and circumstances of the case, we
are inclined to award monetary benefits be paid from
01.01.2010.
15. Considering the facts and circumstances of the case that
the appellant has served the University for more than 29 years
on the post of Night Guard and that he has served the College
on daily wages, in the interest of justice, the authorities are
directed to regularize the services of the appellant
retrospectively w.e.f. 03.01.2002 (the date on which he rejoined
the post as per direction of Registrar).
16. The impugned order of the High Court in LPA No.1312 of
2012 dated 20.02.2013 is set aside and this appeal is allowed.
The authorities are directed to notionally regularize the services
of the appellant retrospectively w.e.f. 03.01.2002, or the date on
which the post became vacant whichever is later and without
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monetary benefit for the above period. However, the appellant
shall be entitled to monetary benefits from 01.01.2010. The
period from 03.01.2002 shall be taken for continuity of service
and pensionary benefits.
17. The appeal is allowed in terms of the above. No order
as to costs.
......... ..…………………..J. (V.GOPALA GOWDA)
..………………………J. (R.BANUMATHI)
New Delhi, March 13, 2015