State of Jharkhand Vs Kamal Prasad .

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4809 OF 2014

(ARISING OUT OF SLP(C) 266 OF 2012)

STATE OF JHARKHAND & ORS. ……APPELLANTS VS.

KAMAL PRASAD & ORS. ………RESPONDENTS

With

CIVIL APPEAL NO.4837 OF 2014 (ARISING OUT OF SLP(C) NO. 21936 of 2013)

CIVIL APPEAL NO.4810 OF 2014 (ARISING OUT OF SLP(C) NO. 34437 of 2012)

CIVIL APPEAL NO.4811 OF 2014 (ARISING OUT OF SLP(C) NO. 36515 of 2012)

CIVIL APPEAL NO.4812 OF 2014 (ARISING OUT OF SLP(C) NO. 37628 of 2012)

CIVIL APPEAL NO.4813 OF 2014 (ARISING OUT OF SLP(C) NO. 37701 of 2012)

CIVIL APPEAL NO.4814 OF 2014 (ARISING OUT OF SLP(C) NO. 37702 of 2012)

CIVIL APPEAL NO.4815 OF 2014

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(ARISING OUT OF SLP(C) NO. 37740 of 2012) CIVIL APPEAL NO.4816 OF 2014

(ARISING OUT OF SLP(C) NO. 37819 of 2012) CIVIL APPEAL NO.4817 OF 2014

(ARISING OUT OF SLP(C) NO. 37834 of 2012) CIVIL APPEAL NO.4818 OF 2014

(ARISING OUT OF SLP(C) NO. 37850 of 2012) CIVIL APPEAL NO.4819 OF 2014

(ARISING OUT OF SLP(C) NO. 37864 of 2012) CIVIL APPEAL NO.4820 OF 2014

(ARISING OUT OF SLP(C) NO. 37930 of 2012) CIVIL APPEAL NO.4821 OF 2014

(ARISING OUT OF SLP(C) NO. 37952 of 2012) CIVIL APPEAL NO.4822 OF 2014

(ARISING OUT OF SLP(C) NO. 37981 of 2012) CIVIL APPEAL NO.4823 OF 2014

(ARISING OUT OF SLP(C) NO. 38012 of 2012) CIVIL APPEAL NO.4824 OF 2014

(ARISING OUT OF SLP(C) NO. 38039 of 2012) CIVIL APPEAL NO.4825 OF 2014

(ARISING OUT OF SLP(C) NO. 38044 of 2012) CIVIL APPEAL NO.4826 OF 2014

(ARISING OUT OF SLP(C) NO. 38053 of 2012) CIVIL APPEAL NO.4827 OF 2014

(ARISING OUT OF SLP(C) NO. 38224 of 2012) CIVIL APPEAL NO.4828 OF 2014

(ARISING OUT OF SLP(C) NO. 38237 of 2012)

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CIVIL APPEAL NO.4829 OF 2014 (ARISING OUT OF SLP(C) NO. 38242 of 2012)

CIVIL APPEAL NO.4830 OF 2014 (ARISING OUT OF SLP(C) NO. 38267 of 2012)

CIVIL APPEAL NO.4831 OF 2014 (ARISING OUT OF SLP(C) NO. 38323 of 2012)

CIVIL APPEAL NO.4832 OF 2014 (ARISING OUT OF SLP(C) NO. 38341 of 2012)

CIVIL APPEAL NO.4833 OF 2014 (ARISING OUT OF SLP(C) NO. 38404 of 2012)

CIVIL APPEAL NO.4834 OF 2014 (ARISING OUT OF SLP(C) NO. 38408 of 2012)

CIVIL APPEAL NO.4835 OF 2014 (ARISING OUT OF SLP(C) NO. 39206 of 2012)

AND CIVIL APPEAL NO.4836 OF 2014

(ARISING OUT OF SLP(C) NO. 93 of 2013)

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted in all the Special Leave Petitions.

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2. These Civil Appeals are filed by the appellant-

State of Jharkhand questioning the legality of the

impugned judgment and order dated 08.11.2011 passed by

the High Court of Jharkhand in Letters Patent Appeal

No. 256 of 2011 and connected cases which allowed the

appeals of the respondent-writ petitioners by setting

aside the judgment dated 25.07.2011 passed by the

learned single Judge whereby the writ petitions of the

respondent-employees were dismissed and the

Interlocutory Application No. 3223 of 2011 was allowed

after quashing the show cause notices issued and orders

of termination of services of the respondent-employees.

The Division Bench of the High Court by framing certain

substantial questions of law has held that the

respondents herein shall be entitled to all the

consequential benefits. The appellants being aggrieved

of the impugned judgment and orders have filed these

Civil Appeals by urging various facts and legal grounds

in support of the same and prayed to set aside the

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impugned judgment and orders by allowing the Civil

Appeals.

3. Certain relevant facts are stated for the purpose

of appreciating the rival legal contentions urged on

behalf of the parties with a view to examine the

correctness of the findings and reasons recorded by the

Division Bench of the High Court in the impugned

judgment and further to find out as to whether the

impugned judgment and orders warrant interference by

this Court in exercise of its appellate jurisdiction in

these Civil Appeals.

4. The respondent-employees (the writ petitioners

before the High Court), were initially appointed in the

year 1981 in the posts of Junior Engineers in the Rural

Development Department in the erstwhile State of Bihar

in respect of which the recommendation of the Bihar

Public Service Commission (for short “the BPSC”) was

not required. It is the case of the respondent-

employees that they have continuously discharged their

duties in the above posts honestly and diligently to

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the satisfaction of their employer. They were

subsequently appointed on ad-hoc temporary basis as

Assistant Engineers in the pay-scales of 1000-50-1700

P.Ro-10-1820/-, with certain conditions on the basis of

recommendation made by the BPSC against temporary posts

from the date of notification. Their services as

Assistant Engineers on ad-hoc basis were entrusted to

work in the Road Construction Department where they

were required to contribute their work within the

stipulated period. The relevant condition No. 2 in the

said notification No. Work/G/1-402/87,248/(S) Patna

dated 27.6.1987 is extracted hereunder:-

“1. XXX XXX XXX

2. This ad-hoc appointment shall be dependent on approval of Bihar Public Service Commission.

3. XXX XXX XXX ……”

It is their further case that they have been working in

the said posts for more than 29 years from the date of

first appointment as Junior Engineers and 23 years from

the appointment in the posts of Assistant Engineers on

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ad-hoc basis. Neither the BPSC nor Bihar State

Government nor Jharkhand State Government had intention

to dispense with the services of these employees.

Therefore, they did not take steps to dispense with

their services from their posts. The employees

approached the High Court when they were issued the

show cause notices dated 20.4.2010 by the appellant No.3. After taking substantial work from the

respondent-employees they have been harassed by issuing

show cause notices asking them to show cause as to why

their services should not be terminated on the ground

of their appointment to the posts as illegal/invalid.

Their appointments were, however, not held to be

invalid either by the orders of the High Court or

Supreme Court in spite of the fact that 199 posts

filled up by advertisement No.128/1996 issued by the

BPSC dated 2.9.1996 as the same would not affect the respondent-employees who otherwise have been in

continuous service for more than 23 years in the

substantial posts of Road Construction Department and

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not of Rural Engineering/Rural Works Department.

Therefore, it was pleaded by them that the impugned

notices issued to them was an empty formality with

preconceived decision and the same is also not only

discriminatory but also suffers from legal malafides,

arbitrariness, unreasonableness and is in utter

transgression of the interim order dated 22.3.2010

passed in W.P. (S) No. 1001 of 2010 amounting to

overreaching the majesty of the High Court.

5. They further sought for declaration that since the

services of the respondent-employees fortuitously fall

in the territory of Jharkhand State with effect from

15.11.2000 and no final cadre division of their

services has been made till date after tentative

allocations were made vide order dated 20.12.2006 by

the Central Advisory Committee within the meaning of

Section 72 read with Section 73 of the Bihar Re-

organization Act, 2000, it is pleaded that the

appellant-State of Jharkhand and its instrumentalities

have no unilateral power and jurisdiction to take any

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such decision to their disadvantage as they were

appointed before the date of establishment of Jharkhand

State. Therefore, the impugned notices issued

unilaterally by the appellant-State to the respondent-

employees declaring their services as illegal is not

only a colourable exercise of its power but also

whimsical, discriminatory and thereby its action is

in violation of Articles 14, 16, 19(1)(g) and 21 of the

Constitution of India.

6. Further, direction was sought by the respondent-

employees from the High Court in the Writ Petitions to

treat them equally at par with similarly situated 120

persons appointed along with them who fortuitously

remained working in the territory of successor State of

Bihar namely, after the Jharkhand State was formed

w.e.f. 15.11.2000 without any disturbance and consider

their claim for regularization along with them in terms

with the conscious Policy decision taken by it vide

notification No. 10113(s) dated 11.09.2009 by the Cadre

Controlling State of Bihar and in pursuance thereof the

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respondent-employees have also applied for the same and

which is in active consideration of the State of

Jharkhand and further they sought for issuance of a

writ of prohibition restraining the appellants from

termination of their services from their posts in

pursuance of the impugned show cause notices as they

had seriously apprehended in the light of pre-decisive

and prejudicial findings and reasons recorded in the

impugned notices in the garb of order dated 22.3.2010

passed in W.P.(S) No. 1001 of 2010, that their services

might be terminated. However, the fact remains that

they are discharging their regular service to the

appellants (although their posts are termed as ad-hoc

in nomenclature) for more than 29 years from the

initial appointment as Junior Engineers since the year

1981 after following due procedure of Advertisement

etc. and their services have been upgraded to the posts

of Assistant Engineer again on temporary basis in 1987

pursuant to Cabinet decision of the erstwhile State of

Bihar Government with the permission of BPSC who had

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recognized their qualification of degree and

experience. Therefore, their appointment to the posts

is legal and valid from their date of inception of

their original appointment as Junior Engineers in the

erstwhile State Government of Bihar.

7. The said writ petitions were opposed by the

appellants herein urging various facts and legal

contentions in justification of their claim and the

reasons assigned in the show cause notices and opposed

the prayers of the respondent-employees, which case of

them is not accepted by the learned single Judge and

consequently dismissed their writ petitions by judgment

dated 25.7.2011. Aggrieved by the said judgment and

orders, they filed Letters Patent Appeals before the

Division Bench of the High Court urging various

grounds.

8. The correctness of the same was challenged by the

appellants before the Division Bench in the Letter

Patent Appeal No. 256 of 2011 and other connected LPAs.

The learned senior counsel for the parties were heard at

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length. After considering the rival legal contentions

and noticing the relevant facts of these cases it was

held by the Division Bench of the High Court that 200

posts have been created by the erstwhile State

Government of Bihar in Rural Engineering Organization of

the Road Construction Department and the said posts

have been advertised by the department in Advertisement

No. 13 of 1985 and against those posts the respondent-

employees and other similarly placed employees were

appointed after selection to the posts of Assistant

Engineers on ad hoc basis with permission of the BPSC

and they continued as such in the said posts. On

15.11.2000, the State of Jharkhand was created by

bifurcation of the State of Bihar by the Act of Bihar

Reorganisation Act, 2000. It is the case of the

respondent-employees that as per Section 72 of the Act

of 2000, the persons who were working in the posts

falling in the territory of the State of Bihar were to

continue in the posts in the State of Jharkhand. It is

not in dispute that the said employees continued in the

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employment in the State of Jharkhand after creation of

new State. Thereafter, an order was passed by the High

Court on 22.3.2010, in the Writ Petition No. 1001 of

2010 filed by Kamal Prasad & Ors. which is produced on

record as Annexure-15 in the L.P.As. On the basis of the

said order, the State Government of Jharkhand

unilaterally decided that the appointment of the

respondent-employees were not valid and accordingly it

had directed that they should go back to the State of

Bihar. The said action of the State of Jharkhand was

found fault with by the High Court. The High Court, in

the case of Ram Swarath Prasad v. State of Jharkhand &

Ors.1 has held that the said power was not available with the State Government of Jharkhand i.e. to pass

unilateral order directing the respondent-employees to

go back to the State of Bihar, which action of it is not

in consonance with Section 72 of the Bihar

Reorganisation Act, 2000. This aspect was also observed

by the learned single Judge in his judgment impugned in

the LPAs filed by the respondent employees. However, it 1 2002 (1) J.C.R. 106

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was observed that it is open to the appropriate

authorities having power to take reasonable decision

after issuing show-cause notices to the employees with

regard to the final allocation of the cadre to the State

of Jharkhand in accordance with law. The State

Government of Jharkhand had interpreted the order dated

22.3.2010 as a direction to it and it had proceeded to

terminate the services of these employees. The State

Government took a decision to terminate the services of

all such engineers including the respondent-employees in

these appeals and notices were issued to them and the

same were stayed in the interlocutory application

filed by the respondent-employees and status-quo order

dated 9.9.2010 was passed as per Ann.-18 in the Writ

Petition(S)No.2087 of 2010. Finding the said

situation, the State Government submitted that they are

keeping the order of termination of services of the

respondent-employees and similarly situated employees in

abeyance. The State Government rejected the

representations of the respondent-employees and

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terminated their services vide separate but similar

orders dated 24.8.2011. The orders of termination were

questioned by the respondent–employees by filing

interlocutory application in the Letters Patent Appeals

questioning their propriety, correctness and legality of

the orders of termination passed against them and action

taken by the State Government of Jharkhand against them.

In the Letters Patent Appeals, the Division Bench of

High Court on 13.9.2011 passed an interim order

directing the appellants to maintain status-quo and the

respondent-employees were allowed to work in the posts.

The Division Bench accepted the factual and legal

submissions urged on behalf of the employees that they

were appointed as back as in the year 1981 in the posts

of Junior Engineers which were not illegal or even

irregular and they are qualified persons and eligible to

hold the posts. They rendered their services

satisfactorily and therefore, the State Government of

Bihar has appointed them in the posts of Assistant

Engineers by the order of the Government dated 27.6.1987

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and continued them in their services as such till the

orders of termination passed against them on 24.08.2011,

that too during pendency of the Letters Patent Appeals

before the Division Bench of the High Court. It is

observed by the Division Bench that the respondent-

employees have been in service independent of any interim order passed by the court. The State Government

was in need of Junior Engineers, therefore, the State

Government of Bihar allowed the services of the

respondent-employees in the posts. Thereafter, the State

Government of Bihar has decided to appoint them in the

posts of Assistant Engineers and it was under the

impression that their names will be recommended by the

BPSC. After accepting the case of the respondent-

employees that since 1987 till 2011 when the orders of

termination of service were passed, they continued in

service and their salaries were paid with other service

benefits including increments and they were duly

transferred from the State of Bihar to the State of

Jharkhand when it was formed and they were treated as

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regular appointees for which the Jharkhand State

Government did not object their continuance in their

services. The Order dated 22.3.2010 passed by the High

Court in the writ petitions referred to supra seems to

have been interpreted by the officers of the Jharkhand

State Government as a direction to it to proceed with to

terminate the services of the respondent-employees. The

Division Bench of the High Court after referring to the

case of Secretary, State of Karnataka & Ors. v. Umadevi

& Ors.2, has clearly held that if a person has served for 10 years or more, then it is the duty of the State

Government to consider his case for regularization in

the post. The said conclusion came to be reached by

relying on Articles 309, 14, 16 of the Constitution of

India. Relying upon Umadevi & Ors. (supra), the High

Court has further referred to the judgment in the State

of Karnataka & Ors. v. M.L. Kesari & Ors.3 which is

considered by this Court and this Court has clearly held

that the case of Umadevi & Ors. (supra) cast a duty upon

2 (2006) 4 SCC 1 3 (2010) 9 SCC 247

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the State Government to take steps to regularize the

services of those irregularly appointed appointees, who

had served for more than 10 years without the benefit or

protection of any interim order. Further in the said

case, this Court has declared that it has been clearly

ordered that one time settlement/measure should be taken

within six months i.e. from 10.04.2006. With reference

to the aforesaid decision the learned senior counsel

appearing on behalf of the respondent-employees placed

reliance upon Article 142 of the Constitution in support

of the submission that order of the Supreme Court be

respected and implemented by its true meaning and

spirit. Therefore, the Division Bench of the High Court

accepted the same and came to the conclusion that the

claims of the respondent-employees for regularization in

their posts are fit cases and they became unfortunate

only because of the creation of the State of Jharkhand

over which the employees had no control and could not

have prevented creation of the State of Jharkhand and

because of that reason only, one State cannot take a

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different stand with respect to the employees appointed

by same process. The State Government cannot throw the

employees jobless after 30 years of their continuous

service in public employment guaranteed under Article 16

of the Constitution, which would result in great

injustice since their source of income will be taken

away and thereby the employees and their families will

suffer due to the arbitrary action of the State

Government of Jharkhand which deprived a person of life

and liberty guaranteed under Articles 19 and 21 of the

Constitution of India.

9. The said legal contention urged on behalf of the

respondent-employees has been vehemently opposed by the

learned Advocate General appearing on behalf of the

appellant-State before the High Court who sought to

distinguish the ratio laid down in the aforesaid case

to the facts situation in the present case and he

further contended that the said decision has no

application to the cases on hand which contention is

rejected by the Division Bench of the High Court.

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10. It is contended by the learned Advocate General

that jurisdiction of the High Court in the Letters

Patent Appeal is limited to the extent of the scope of

writ petitions. Therefore, the same cannot be enlarged

by the Division Bench of the High Court. It is further

submitted by him that the respondent-employees in the

writ petitions have not prayed for regularization of

their services, and therefore, they are not entitled to

any relief in the Letters Patent Appeals.

11. With reference to the aforesaid rival contentions,

the Division Bench, by recording its finding at paras

21, 22 and 31 of the impugned judgment, has accepted

the case of the respondent-employees and allowed their

letters patent appeals by setting aside the judgment

and order dated 25.7.2011 of the learned single Judge.

12. During pendency of the Letters Patent Appeals, the

State Government rejected their representations and

terminated the services of the respondent-employees

vide separate but similar orders dated 24.8.2011

against each one of them. Therefore, they have

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submitted interlocutory application in the letters

patent appeals before the Division Bench of the High Court questioning the propriety and legality of their

orders of termination passed by the State Government.

In the Letters Patent Appeals on 13.9.2011, an interim

order was passed directing the State Government of

Jharkhand to maintain status quo that is, to allow the

respondent-employees to work in the posts by it. The

court also set aside the orders of termination by

allowing the interlocutory application and also quashed

the show cause notices and further held that the

respondent-employees are entitled to the consequential

benefits.

13. The correctness of the judgment and orders is

challenged by the appellants in these Civil Appeals by

framing various questions of law and urging grounds in

support of the same and praying to set aside the same.

The learned senior counsel, Mr. P.P. Rao appearing on

behalf of the appellants submitted that the order of

termination of services of the respondent-employees -

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ad hoc Assistant Engineers in the instant case, is the

necessary consequence of implementation of the judgment

and order dated 8.4.1996 of this Court in C.A. No.

7516-20 of 1996 – Bihar State Unemployed Civil

Engineers Association & Ors. v. State of Bihar & Ors.

Etc.4 as the respondents have failed to get selected by

BPSC. Therefore, they have no legal right to challenge

implementation of the said judgment dated 8.4.1996 as

modified by subsequent order dated 23.10.1996 in IA No.

327/1996 permitting the State Government to relax the

age of the respondent-employees. In support of the

first submission, he contends that the cut-off date for

consideration of case of ad-hoc employees who have

worked for 10 years or more in the duly sanctioned

posts, but under the cover of orders of the court, is

not covered by the case of Uma Devi & Ors. (supra)

which was decided on 10.4.2006 and the time granted to

the State Government for setting in motion the process

of regularisation of ad hoc employees is “within six

months from the date” i.e. till 9.10.2006. 4 (1996) 8 SCC 615

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It is further contended by the learned senior

counsel on behalf of the appellants Mr. P.P. Rao that

regularisation were allowed by the High Court in those

cases where appointments could not have been made

without recommendation of the BPSC and in view of the

Articles 309 and 16 of the Constitution of India, no

appointment could have been made by the State

Government to any post much less the respondent-

employees in violation of the Recruitment Rules.

Therefore, the illegal appointments of the respondent-

employees cannot be regularized by the State Government

and the High Court can not give direction in this

regard.

14. In view of the said decisions, according to the

learned senior counsel, two questions would arise for

consideration of this Court :-

(i) Whether the respondent-employees worked till

10.4.2006 without any interim order of any

court?

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(ii) Were they appointed in duly sanctioned posts?

However, the Division Bench of the High Court instead

of addressing these two questions, posed the question

as to whether ad hoc employees who have served for more

than 10 years stand disqualified from regularisation on

the ground that they did not participate in any other

appointment process. It is the contention of the

learned senior counsel for the appellants that the

repeated finding of the High Court that the respondent-

Assistant Engineers were continuing in service

uninterruptedly with the employer for more than 10

years, is factually incorrect statement of fact.

Therefore, the finding recorded in the impugned

judgment by the Division Bench of the High Court at

paragraphs 23, 25 and 26 is erroneous and the same

cannot be allowed to sustain by this Court for the

reason that they continued in their service at least

following six interim orders passed by the High Court

all of which were prior to 10.4.2006, the cut-off date

mentioned in Uma Devi (supra) for considering the

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question of regularisation of ad hoc employees and

therefore the said decision does not apply to the

present cases. According to him, the dates on which the

interim orders passed in different writ petitions are

mentioned hereunder :-

S. No. Date of Order

Case No. Cause Title Vol./Pages

1. 15.12.1996 CWJC No. 9420 of 1996

Paras Kumar v. State of Bihar

Vol. II pp. 20-21

2. 20.6.1997 CWJC No. 11761 of 1996

Sardar Pradeep Singh v. State of Bihar

Vol.II p.22

3. 4.4.2002 CWJC No.2606 of 2002

Jawahar Prasad Bhagat v. State of Bihar

Vol.1 pp 84 and 86

4. 4.4.2002 CWJC No.4327 of 2002

Akhilesh Prasad v. State of Bihar

5. 4.4.2002 CWJC No.4365 of 2002

Vijay Kumar Sharma v. State of Bihar

6. 8.1.2003 CWJC No.2087 of 2010 as noticed in the present case i.e. W.P No. 2087 of 2010

Vol.I p.147 at pp.163-164

15. In support of second legal submission formulated

above, the learned senior counsel has submitted that

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neither the judgment in Umadevi’s case (supra) nor in

U.P. State Electricity Board v. Pooran Chandra Pandey &

Ors.5 is applicable to the cases in hand in favour of

the respondent-employees. It is further submitted that

the Division Bench of the High Court has erroneously

applied to the cases of respondent-employees and the

directions contained at para 53 of Umadevi’s case

since the respondents continued in service with the

appellants at the instance of court’s interim orders

passed in writ petitions referred to supra which has

been established by the appellants. He has also placed

reliance upon the judgment of this Court in the case of

Amrit Lal Berry v. Collector of Central Excise, New

Delhi & Ors.6 In support of his legal contention that

respondent-employees continued in service with the

State Governments of Bihar and Jharkhand, the learned

counsel stated that similarly placed employees had

approached the High Court seeking certain reliefs and

they had obtained interim orders. Hence, the benefit of

5 (2007) 11 SCC 92 6 (1975) 4 SCC 714

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said interim order passed by the High Courts of Patna

and Jharkhand has been extended to the respondent-

employees and therefore they were continued in services

by applying the law laid down by this Court in the

aforesaid case. Therefore, the finding recorded by the

Division Bench accepting the submission on behalf of

the respondent-employees in these appeals that the

respondent-employees continued in service

uninterruptedly without the interim orders, is

factually not correct. Therefore, the learned senior

counsel for appellants contends that the said finding

is not only erroneous but also suffers from error in

law. Hence, the impugned judgment and orders are liable

to be set aside. He further contends that in view of

the above contentions, the respondent-employees are not

entitled for the reliefs granted by the Division Bench

of the High Court in the impugned judgment and orders

and therefore, he has prayed for setting aside the same

by allowing these Civil Appeals.

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16. The aforesaid submissions made by the learned

senior counsel on behalf of the appellants were

rebutted by the learned senior counsel, Mr. J.P. Cama

appearing on behalf of the respondent-employees

justifying the reasons recorded in the impugned

judgment contending that the respondent-employees were

appointed as Junior Engineers in the year 1981 in the

Rural Department of the State of Bihar and in the year

1985 when regular appointments were to be made to the

Posts of Assistant Engineers in pursuant to an

advertisement made in the year 1985 itself, the

respondents applied for the same but did not succeed

and therefore, they were put in the waiting list.

However, their services were not terminated even after

regular appointments were made to the posts in the year

1985 as contended by the appellants. Their services

were not dispensed with because their work was good and

they were appointed as Assistant Engineers by order of

the Bihar State Government dated 27.6.1987 and

thereafter they continued in service without break in

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their service till the orders of termination dated

24.8.2011 passed against them. It is further contended

that even after bifurcation of the appellant-State of

Jharkhand from State of Bihar on 15.11.2002, the

respondent-employees continued in employment without

any break. It is contended that the existence of

vacancies of Assistant Engineers in the Rural

Development Department in the erstwhile State of Bihar

is not in dispute. The existence of vacancies in the

said posts is not denied by the appellant-State as

there were 207 vacancies as on 2010. Therefore, they

continued in service though they were appointed by

order of the State Government on 27.6.1987 on ad hoc

basis but continued as such till the termination orders

were passed against them. They were being paid regular

salary and other service benefits were given to them

thereby treating them as permanent employees by the

appellants. He further contended that the Division

Bench in its judgment has held that the State Public

Service Commission merely examined suitability of

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eligible candidates for the posts and recommended the

names of such suitable candidates for appointment to

the posts. In the case on hand, it is not the position

of the State Government that these employees holding

the posts of Assistant Engineers and rendering their

services are not suitable persons to hold the posts. It

is further contended that interim stay was granted by

the High Court in the cases of the respondent-employees

for the first time on 9.9.2010. Therefore, it is not

correct to state that they continued in the service

with the intervention of interim orders of the High

Courts as urged by the appellants’ senior counsel and

therefore, they are not entitled to the benefit of the

decision of Umadevi’s case (supra). Further, the

learned senior counsel contends the core questions

involved in the case in hand are:-

(1) Whether the services of the respondent-

employees should have been considered for

regularization by the State Government even

though in the first instance they did not obtain

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selection through the Public Service Commission

and on the 2nd occasion they did not participate in

the selection process?

(2) Whether, they were entitled to claim

regularization based only on the fact they had

worked for more than 10 years of service

continuously with the appellants?

He further submits that the High Court, considering the

law declared in Umadevi’s case (supra) at para 53 and

also keeping in view the justice and good conscious,

has granted the relief to the respondent-employees. The

same cannot be termed either as erroneous or error in

law. Further, it is contended that the Division Bench

of the High Court of Jharkhand has rightly rejected the

contentions urged by the Advocate General to the effect

that the persons who are appointed on ad hoc/temporary

basis had an opportunity to get another appointment in

regular selection and they failed to participate in the

selection process, therefore the same would not be a

ground for the appellants to refuse regularization of

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service of the respondent-employees, even after they

have not availed such opportunity. The employer State

Government did not choose to dispense with their

services though there is no restraint order from the

court. In the cases in hand, both the Government of

State of Bihar and Jharkhand have continued the service

of all the respondent-employees for 10 or more years

even after they failed to get appointed to the posts on

a regular basis. Therefore, the principle laid down in

Umadevi’s case (supra) would squarely apply in the case

in hand in support of the respondent-employees. The

submission made by the learned senior counsel on behalf

of the appellants that the regularization of the

respondent-employees in their service would deprive the

other eligible persons from employment is wholly

untenable in law as the same would constitute not only

discrimination but also deprivation of their

livelihood, which is not legally permissible in law.

The question is whether the appellants can terminate

the services of the present employees who have served

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for more than 10 to 30 years, thereby rendering

injustice to the eligible people. Therefore, in any

event, it is doubtful whether the employer, more

particularly the State can raise such a plea to deny

employment to the employees and whether the law can be

interpreted in a manner so as to give all benefits to

the wrongdoers. The appointments were given to a large

number of engineers by the State Government of Bihar

consciously and there is no allegation of unfairness in

their appointment which can be said to be tainted or as

a result of any nepotism. The error of the State

Government of either Bihar or Jharkhand would not

justify to throw away the respondent-employees by

making them unemployed who have been well-settled in

their life since the same would amount to a clear case

of discrimination and deprivation of their livelihood.

Further, the Division Bench of High Court has rightly

held that there is duty cast upon the State Government

of Jharkhand to consider the claim of the respondent-

employees as one-time regularization of ad-hoc/

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temporary employees in their posts. Further, it is

contended by the learned senior counsel that similarly

situated employees are continuing in service in the

State Government of Bihar. Therefore, the relief sought

by the respondent-employees’ continuation in service,

clearly takes care of all the hurdles coming in their

way. The Division Bench of the High Court is of the

considered opinion that the employees services should

have been regularized, but on the other hand, the

appellant-State Government, during pendency of the

Letters Patent Appeals, has terminated their services.

The same cannot be an hurdle for it and it would not

come in the way of the appellant-State Government for

grant of relief in favour of the respondent-employees.

Lastly, it is submitted that there is material

distinction between filling up a vacant post by direct

recruitment on the one hand and “regularization” of

existing employees in their posts by applying the

decision of Umadevi’s case (supra) who have served for more than 10 years in the posts with the appellants

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without the interventions of any interim orders granted

by any court. Further, he urges that the principle

which flows from the mandate of Articles 14 and 21 of

the Constitution of India is supported at paragraph 53

of Umadevi’s case (supra). It is further contended that

it is not a case of “appointment” as mentioned

hereinbefore but it is a case of “regularization”. The

only qualification for the latter is continuous service

of the employees without intervention of the court

order for a period of 10 years. Once this takes place,

the citizen’s right to livelihood as guaranteed under

Article 21 as also his/her right to fair treatment and

against arbitrary action of the appellants is protected

by Article 14 of the Constitution of India. That is the

ratio of the impugned judgment of Division Bench of the

High Court. The conclusion and the finding and reasons

recorded by the Division Bench of the High Court on

this aspect of the matter in the impugned judgment is

squarely covered by the Constitution Bench decision of

this Court in the case of Olga Tellis & Ors. v. Bombay

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Municipal Corporation & Ors.7 The relevant para’s of

the same will be extracted in the reasoning portion of

the judgment. Therefore, the learned senior counsel has

prayed for dismissal of the appeals.

17. All the other learned counsel appearing for the

respondent-employees in the connected Civil Appeals

have adopted the submission made by the learned senior

counsel on behalf of the respondent-employees in the

Civil Appeal @ SLP (C) No. 266 of 2012. In view of the

above submissions, the learned counsel for the

respondent-employees requested this Court for dismissal

of the Civil Appeals.

18. With reference to the above said rival legal

contentions, urged on behalf of the parties the

following points would arise for consideration in these

Civil Appeals :-

(1) Whether the impugned judgment is

correct in holding that the

7 (1985) 3 SCC 545

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respondents-employees are entitled

for the benefit of Umadevi’s case

(supra) as they rendered more than

10 years of service in the State

Government of Jharkhand without

intervention of the court?

(2) Whether the impugned judgment passed

by the Division Bench of High Court

is vitiated on account of erroneous

finding or suffers from error in

law?

(3) Whether the impugned judgment

warrants interference by this Court

in exercise of power under Article

136 of the Constitution of India on

the grounds urged in these appeals?

(4) What orders?

Answer to Point Nos. 1 & 2:

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These points are answered together as they are

inter related with each other.

19. The learned senior counsel appearing on behalf of

the appellants argued that there have been repeated

findings of the High Court that the respondents have

been continued in service voluntarily by the employer

for more than 10 years. Correctness of the same is

disputed by the learned senior counsel for the

appellants by placing reliance upon at least six interim orders passed by the High Court all of which

are prior to 10-4-2006, the dates of these Orders are

as follows:

(i) Order dated 15-12-1996 in CWJC NO. 9420 of 1996- Param Kumar v. State of Bihar.

(ii) Order dated 20-6-1997 in CWJC No. 11761 of 1996- Sardar Pradeep Singh v. State of Bihar.

(iii) Order dated 4-4-2002 in CWJC No. 2606 of 2002- Jawahar Prasad Bhagat v. State of Bihar.

(iv) Order dated 4-4-2002 in CWJC No. 4327 of 2002- Akhilesh Prasad v. State of Bihar.

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(v) Order dated 4-4-2002 in CWJC No. 4365 of 2002- Vijay Kumar Sharma v. State of Bihar.

(vi) Order dated 8-1-2003 in CWJC No. 2087 of 2010.

Further, two stay orders have also been passed by the

High Court subsequent to 10-4-2006, which are

(1) Order dated 9-9-2007 of the learned single Judge

and (2) Order dated 13-9-2011.

Further, in the case of Uma Devi (supra) it has been

held by the Constitution Bench of this Court that:

“53. 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

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regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. 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.”

(Emphasis laid by this Court)

The learned senior counsel for the appellants placing

reliance upon the aforesaid paragraph of the decision

submits that the respondents do not fulfil the

requirement of 10 years of uninterrupted service which

is sine qua non for regularization of the services of

the employees in their posts. Hence, the legal

principle laid down by this Court in the aforesaid case

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cannot apply in the present case, therefore, the

respondents are not entitled for regularization.

20. We have heard the factual and legal contentions

urged by the learned senior counsel for both the

parties and carefully examined the findings and reasons

recorded in the impugned judgment with reference to the

evidence produced on behalf of the respondent-

employees. The evidence on record produced by the

respondent-employees would clearly go to show that they

have been rendering services in the posts as ad-hoc

Engineers since 1987 and have been discharging their

services as permanent employees with the appellants.

Additional 200 posts were created thereafter by the

State Government of Bihar. However, the respondents

continued in their services as ad hoc employees without

any disciplinary proceedings against them which prove

that they have been discharging services to their

employers to their satisfaction.

The learned senior counsel on behalf of the

appellants have failed to show as to how the interim

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orders upon which he placed strong reliance are

extended to the respondents which is not forthcoming

except placing reliance upon the decision of this Court

in the case of Amrit Lal Berry (supra), without producing any record on behalf of both the State

Governments of Bihar and Jharkhand to substantiate the

contention that the interim orders obtained by the

similarly placed employees in the writ petitions

referred to supra were extended to the respondent-

employees to maintain parity though they have not

obtained such interim orders from the High Court.

Therefore, the learned senior counsel has failed to

prove that the respondents have failed to render

continuous services to the appellants at least for ten

years without intervention of orders of the court, the

findings of fact recorded by the Division Bench of the

High Court is based on record, hence the same cannot be

termed as erroneous in law. In view of the categorical

finding of fact on the relevant contentious issue that

the respondent-employees have continued in their

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service for more than 10 years continuously therefore,

the legal principle laid down by this Court in Uma

Devi’s case (supra) at paragraph 53 squarely applies to

the present cases. The Division Bench of the High Court

has rightly held that the respondent-employees are

entitled for the relief, the same cannot be interfered

with by this Court.

21. In fact, the Division Bench of the High Court by

regularizing the respondent-employees vide its impugned

order has upheld the constitutional principle laid down

by this Court in the case of Olga Tellis (supra), the

relevant para of which reads as under :-

“32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to

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consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle

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for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life”, as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.”

(Emphasis laid by this Court)

In view of the foregoing reasons which we have

assigned in this judgment and in upholding the findings

and reasons recorded by the Division Bench of the High

Court in the impugned judgment, it cannot be said that

the findings and reasons recorded by the High Court in

arriving at the conclusions on the contentious issues

that arose for its consideration can be termed either

as erroneous or error in law.

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22. In view of the foregoing reasons, we are inclined

to conclude that the High Court was legally correct in

extending the benefits of Uma Devi’s case to the

respondent-employees. Therefore, we answer point nos. 1

and 2 in favour of the respondent-employees.

Answer to Point No. 3

23. Though, point Nos. 1 and 2 have been answered in

favour of the respondents, the question raised

regarding the requirement of interference by this Court

under Article 136 of the Constitution of India requires

separate and independent consideration by us. In the

case of Jamshed Hormusji Wadia v. Board of Trustees,

Port of Mumbai & Anr.8, this Court observed as under:

“33.The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a

8 (2004) 3 SCC 214

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question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist.”

(Emphasis laid by this Court)

This position was reaffirmed and further elucidated in

the case of Mathai @ Joby v. George & Anr.9, wherein the

two judge Bench of this Court held as follows:

“21. Mr. Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the Constitution. (i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India; (ii) All matters of National or public importance; (iii) Validity of laws, Central and State; (iv) After Kesavananda Bharati, (1973) 4 SCC 217, the judicial review of Constitutional Amendments; and

9 (2010) 4 SCC 358

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(v) To settle differences of opinion of important issues of law between High Courts.

22. We are of the opinion that two additional categories of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.

23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden.

24. It may be mentioned that in Pritam Singh v. The State AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a more or less uniform standard should be adopted in granting Special Leave". Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book ` My Life', a gamble. This is not a

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desirable state of affairs as there should be some uniformity in the approach of the different benches of this Court. Though Article 136 no doubt confers a discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful"

In view of the legal principles laid down in the

aforesaid decisions, we are of the opinion that the

decision of the High Court does not fall in either of

the categories mentioned above which calls for our

interference. The Division Bench of the High Court

having regard to the glaring facts that the respondent-

employees have continuously worked in their posts for

more than 29 years discharging permanent nature of

duties and they have been paid their salaries and other

service benefits out of the budget allocation, no

objection was raised by the CAG in this regard and

therefore, it is not open for the appellants to contend

that the law laid down in Uma Devi’s case (supra) has no application to the fact situation. The action of the

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appellants in terminating the services of the

respondent-employees who have rendered continuous

service in their posts during pendency of the Letters

Patent Appeals was quashed by the High Court after it

has felt that the action is not only arbitrary but

shocks its conscious and therefore it has rightly

exercised its discretionary power and granted the

reliefs to the respondent-employees which do not call

for our interference. Therefore, we are of the opinion

that this Court will not interfere with the opinion of

the High Court and on the contrary, we will uphold the

decision of the High Court both on factual and legal

aspects as the same is legally correct and it has done

justice to the respondent-employees.

Answer to Point No. 4

24. As already mentioned above, we are of the opinion

that the High Court was correct in reinstating the

respondent-employees into their services under the

appellants by relying on the legal principles laid down

by this Court in the Constitution Bench decision in Uma

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Devi’s case (supra). We accordingly direct the

appellants to implement the orders of the Division

Bench of the High Court thereby continuing the

respondents in their services and extend all benefits

as have been granted by it in the impugned judgment.

25. The Civil Appeals are dismissed accordingly.

………………………………………………………………………J.

[GYAN SUDHA MISRA]

………………………………………………………………………J. [V. GOPALA GOWDA]

New Delhi, April 23, 2014.

5

STATE OF JHARKHAND Vs KAMAL PRASAD .

STATE OF JHARKHAND Vs KAMAL PRASAD .