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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.               OF 2014 (arising out of SLP©No.24083 of 2013)

SANDHYA        … APPELLANT

VERSUS

STATE OF MAHARASHTRA & ORS.       … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. This appeal is directed against the judgment and order  

dated 15th March, 2013 passed by the Division Bench of the  

High Court of Judicature of Bombay, Bench at Aurangabad in  

Writ Petition No.1047 of 2013 whereby the High Court held that  

the  appellant  is  not  entitled  for  regularization  of  her  

service as per Government Resolution dated 10th March, 2005  

and dismissed the writ petition.

3. The factual matrix of the case is as follows:

The Government of Maharashtra vide GR dated 30th June,  

1961 framed recruitment rules of revenue clerks from amongst  

persons having qualification S.S.C. and within the age limit  

of 23 years (relaxable upto 26 years for reserved category  

candidates).  Selected  candidates  were  to  be  appointed  in  

their office to work against clerical post.  Those who could

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not  be  adjusted  against  the  post   but  were  kept  in  the  

waiting list,  were called upon to work on payment of nominal  

fees  under the control of different departments like revenue  

Department, Settlement Commissioner, Land Records Department,  

city survey office, etc. Those candidates who were engaged to  

work  on  payment  of  fees  were  popularly  known  as  “unpaid  

candidates’.    

Their payments are being made out of copying fees received by  

the department, 70% of which was for payment of wages to the  

said  unpaid  candidates and  30%  share  was  credited  to the  

Government.  

4. The applications were called for appointment to Clerical  

posts.  The  appellant  and  others  were  declared  successful.  

Those whose names were appearing in the main selection list  

were appointed against the Clerical post. Rest in the waiting  

list were allowed to work as unpaid candidates. Since 4th  

July, 1985, the appellant is working as unpaid candidate in  

the City Survey Office at Dhule, Maharasthra.

5. The  Secretary  of  Bhumi  Abhilekh  Bina  Vetan  Sangthana  

(Union  of  Unpaid  Candidates  belonging  to  Land  Records  

Department)  filed  an  Original  Application  No.153  of  1991  

before the Maharashtra Administrative Tribunal, Mumbai.  They  

prayed  for  direction  on  the  respondents  for  regular  

absorption of its members i.e. unpaid candidates against the  

regular vacancies. The Tribunal by its judgment dated 20th  

December,  1992  allowed  the  application  directing   the

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respondents to absorb unpaid candidates, who had put in more  

than ten years of service as such, by giving preference and  

by  relaxation  of  age,  if  they  otherwise  fulfill  other  

eligibility criteria.

6. The said judgment was challenged by the State Government  

before this Court and the SLP was dismissed on 14th July,  

1995. Consequently, the State Government issued G.R. dated  

21st October, 1995, for implementation of the directions of  

the Tribunal in Original Application No.153 of 1991.

7. The other  candidates of  revenue department  thereafter  

approached  the  Tribunal  at  Aurangabad  by  filing  Original  

Application No.895 of 1995.  The said application was also  

decided in their favour by judgment dated 30th November, 1995.  

The Tribunal directed the State Government to frame a scheme  

as envisaged in its earlier judgment dated 20th December, 1992  

for absorption of unpaid candidates. In order to comply with  

the directions issued by the Tribunal, the State Government  

issued G.R. dated 22nd October, 1996 for absorption of unpaid  

candidates in the revenue department and fixed 30th November,  

1995 as the cutoff date. Consequently, unpaid candidates who  

had completed 10 years of service as such, became eligible  

for  absorption,  subject  to  the  satisfaction  of  other  

conditions prescribed in the said GR.

8. In Writ Petition No.2150 of 1998, the Division Bench of  

the Bombay High Court passed an order on 16th October, 2002  

directing the State to pay a minimum salary of Rs.3,200/- per

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month to   the unpaid candidates.  Pursuant to the said  

direction, the benefit of minimum salary of Rs.3,200/- was  

given by the State Government to all  unpaid candidates.

9. Subsequently,  a  group  of  writ  petitions  were  also  

disposed of by a Division Bench of the Bombay High Court in  

Shivshankar  Gundu  Jawanlal  and  another  vs.  State  of  

Maharashtra and others, 2007 (3) Mh.L.J. 43.  In the said  

case, the petitioners were seeking a common relief for being  

absorbed  as  permanent  Class  III  employees  of  the  State  

Government  with  retrospective  effect  in  the  light  of  

judgment of the Tribunal in Original Application No.153 of  

1991 and  GRs dated 21st October, 1995, 22nd October, 1996 and  

10th March, 2005.  A group of writ petitions were disposed of  

by the Bombay High Court with observation that all the unpaid  

candidates appointed till 12th February, 1987 cannot be termed  

as backdoor entrants and declared that they are eligible for  

the scheme formulated under the GRs dated 21st October, 1995  

and 22nd October, 1996. The High Court also held that unpaid  

candidates  appointed from 13th February, 1987 onwards are not  

entitled  for  the  benefit  of   any  of  the  GRs  dated  21st  

October, 1995, 22nd October, 1996 and 10th March, 2005.

10. The aforesaid judgment was challenged by those unpaid  

candidates, who were appointed on and after 13th February,  

1987, in view of denial of relief given by the Division Bench  

of the Bombay High Court.  The Civil Appeals preferred by  

those unpaid candidates were allowed by this Court's order

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dated  11th August,  2011  directing  the  respondents  to  take  

action for regularization of services of the appellants in  

accordance with GR dated 10th March, 2005.

11. Meanwhile, services of certain unpaid candidates were  

terminated by the respondents.  The appellant’s service was  

also terminated by order dated 20th April, 1998.

12. The  appellant  and  others  challenged  their  respective  

orders of termination before the Maharashtra Administrative  

Tribunal,  Mumbai  Bench  at  Aurangabad  and  prayed  for  

directions  on  respondents  for  regularisation  of  their  

services.

13. After hearing the parties,  the Tribunal by its common  

judgment  dated  24th November,  2011  passed  in  Original  

Application  No.202/1998  (Smt.  Rajani  vs.  Government  of  

Maharashtra etc.), including Original Application No.293/1998  

preferred  by  the  appellant,  allowed  the  applications,  set  

aside their respective orders of termination with direction  

to  the  respondents  to  take  action  for  regularisation  of  

services   of  all  the  applicants  including  the  appellant  

herein in accordance with GR dated 10th March, 2005. It was  

directed to pass appropriate orders within three months.

14. Thereafter, respondent no. 3 vide his letter dated 7th  

August, 2012, intimated the appellant that her service cannot  

be regularized because of non-fulfillment of  condition in  

GR dated 10th March, 2005.  It was alleged that the appellant  

was not working on the date when GR came into force.

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15. The appellant being aggrieved, filed a contempt petition  

in Original Application No. 292/1998. The same was rejected  

by order dated 18th December, 2012. The order passed by the  

Tribunal  was  challenged  by  the  appellant  before  the  High  

Court in writ petition no. 1047 of 2013.  After hearing the  

parties, the High Court rejected the writ petition on the  

ground that the appellant did not fulfill the requirement as  

laid down under GR dated 10th March, 2005.

16. In  the  said  writ  petition,  the  respondents  took  a  

similar plea before the High Court that the appellant did not  

attend the office since 8th July, 2002. She ceased to be in  

employment since then. It was contended that on the date of  

issuance  of  Government  Resolution  dated  10th March,  2005,  

since the appellant was not in employment the benefits as per  

Government Resolution cannot be extended in her favour.  The  

Division Bench accepted the said plea and upheld the order  

passed by the Tribunal.

17. Learned counsel for the appellant rightly contended that  

the  High  Court  has  misguided  itself  by  holding  that  the  

appellant was not in service since July, 2002 and was not  

working on the date of Government Resolution dated 10th March,  

2005.

18.  The order of termination dated 20th April, 1998 was set  

aside by the Tribunal by its order dated 24th November, 2011.  

The Tribunal directed the respondents to consider the case of  

appellant  for  regularization  in  terms  of  Government

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Resolution dated 10th March, 2005.  The order of termination  

being set aside, in the eye of law the appellant shall be  

deemed to be continued in service even on 10th March,  2005  

i.e.  the  date  when  the  Government  Resolution  was  issued.  

Such being the position of law, the appellant is entitled for  

regularization.  But  the  High  Court  was  not  correct  in  

holding that the appellant was not in service on 10th March,  

2005  and wrongly rejected her claim for regularization.

19. For the reason aforesaid, the impugned judgment passed  

by the High Court cannot be upheld. The impugned judgment  

dated 15th March, 2013 passed by the High Court is set aside.  

The respondents are directed to comply with the order and  

directions passed by the Tribunal on 24th November, 2011 in OA  

No. 293/1998 and regularize the services of the appellant  

with retrospective effect within two months from the date of  

receipt of copy of this judgment. The appeal is allowed with  

the aforesaid direction and observation. No costs.

…………………………………………………………………….J.                       (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………………………………….J.                  (DIPAK MISRA)

NEW DELHI, JULY 01, 2014.

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ITEM NO.1F               COURT NO.6                 SECTION IX (For Judgment)

              S U P R E M E  C O U R T  O F  I N D I A                           RECORD OF PROCEEDINGS

Civil Appeal No(s). 24083/2013

SANDHYA                                            Appellant(s)

                               VERSUS

STATE OF MAHARASHTRA & ORS.                        Respondent(s)

Date : 01/07/2014 This appeal was called on for pronouncement of  Judgment today.

For Appellant(s) Dr. Kailash Chand ,Adv.

For Respondent(s)                              

         Hon'ble  Mr.  Justice Sudhansu  Jyoti  Mukhopadhaya  pronounced  

the reportable judgment of the Bench comprising His Lordship and  Hon'ble Mr. Justice Dipak Misra.

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The  appeal  is  allowed  in  terms  of  the  signed  reportable  judgment.

(MEENAKSHI KOHLI)                               (USHA SHARMA)   COURT MASTER                                   COURT MASTER  

[Signed reportable judgment is placed on the file]