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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NOS.   6132-33   OF 2016 (Arising out of SLP(C) Nos. 34788-34789 of 2012)

STATE OF MAHARASHTRA & ORS.                                 ..Appellants

Versus

ANITA & ANR ETC..                             ...Respondents

With  

CIVIL  APPEAL NOS.  6134, 6135-36, 6137,6138,6139,6140,6141-42,6143,6144,6145,6146,6147-48,6149,

6150,6151,6152-53,6154,6155,6156,6157   OF 2016 (Arising out of SLP(C) Nos. 34792/12, 35146-35147/12, 36965/12,

36967/12, 36968/12, 38636/12, 39133-39134/12, 4482/13, 4484/13, 4588/13, 4592/13, 4594-4595/13, 8580/13, 11864/13, 17329/13, 17331-17332/13, 36070/13, 9282/14, 13647/14 and 14974/16)

J U D G M E N T

R. BANUMATHI, J.

Delay condoned.  Leave granted.   

2. This batch of appeals has been filed against the order dated

28.03.2012  and  other  impugned  orders  passed  by  the  High  Court  of

Bombay Bench at Aurangabad whereby 471 posts of Legal Advisors, Law

Officers and Law Instructors created by Government Resolutions dated

21.08.2006 and 15.09.2006 for appointment on contractual basis under

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the  Director  General  of  Police  and  Commissioner  of  Police,  Greater

Mumbai, were held to be permanent in nature.  For convenience, appeals

arising out of SLP(C) No.34788-34789 of 2012 are taken as the lead case.  

3. State  of  Maharashtra  vide  Government  Resolution  dated

21.08.2006 approved creation of  471 posts in various cadres including

Legal Advisors, Law Officers and Law Instructors under the establishment

of Director General of Police and Commissioner of Police, Greater Mumbai.

As per clause (3) of the said Government Resolution, the posts shall be

filled up on contractual basis as per the terms and conditions prescribed

by the Government. By a subsequent Resolution dated 15.09.2006, the

Government  maintained  that  471  posts  created  vide  resolution  dated

21.08.2006  shall  be  filled  up  on  contractual  basis  by  payment  of

consolidated  pay.  As  per  the  conditions  of  service  laid  down  in  the

Government Resolution dated 15.09.2006, the appointment was initially

for eleven months and with a provision of extension up to maximum of

three terms each term being of eleven months. After expiry of third term,

the candidates are required to face fresh selection process once again.

After  the  expiry  of  the  term  of  respondents,  their  appointments

automatically  came to  an end.  In  pursuance  of  the expiry  of  terms of

respondents,  the  State  issued  fresh  advertisements  for  recruitment  of

Legal  Advisors,  Law  Officers  and  Law  Instructors  on  05.12.2009,

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13.01.2010 etc.

4. On expiry of the contractual period and being aggrieved by

publication  of  fresh  advertisement,  the  respondents  approached  the

Maharashtra  Administrative  Tribunal  challenging  the  conditions  in  the

Government  Resolutions  dated 21.08.2006 and 15.09.2006,  which laid

down that the appointment of  the law officers/law instructors shall  be

contractual,  is  arbitrary  and  that  the  respondents  should  have  been

appointed on regular pay scale and not on consolidated pay. The tribunal

partly allowed the claim of the respondents and the tribunal struck down

those provisions by holding that clause (3) of the Government Resolution

dated  21.08.2006  and  the  clauses  'A',  'B',  and  'C'  in  the  Government

Resolution  dated  15.9.2006  suffered  from  arbitrariness  and

unreasonableness.  However,  no  direction  was  issued  by  the  tribunal

directing the State Government to regularise the respondents.  

5. Aggrieved thereof, respondents filed writ petitions before the

High Court seeking for a direction to the State Government to regularise

their services.  State Government also filed writ petition challenging the

order of the tribunal striking down the clauses in the said Government

Resolutions as arbitrary and for setting aside the order of the tribunal.  

6. The High Court  vide  impugned judgment dismissed all  the

writ petitions filed by the State Government as well as by the respondents.

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The  High  Court  took  the  view  that  471  posts  created  by  the  State

Government  in  various  cadres  are  permanent  posts  and  thus  the

appointments thereon must also be permanent. However, considering the

fact that the appointment of the respondents were not made in regular

manner under the constitutional scheme, the High Court held that the

respondents/original  applicants  cannot  claim  permanency  and/or

regularisation.  

7. Being  aggrieved,  the  State  as  well  as  the  applicants  have

preferred  these  appeals.  Vide  order  dated  02.11.2012,  this  Court  has

granted stay of  operation of  the impugned judgment dated 28.03.2012

passed by the High Court as well as the order dated 06.05.2010 passed by

the  Maharashtra  Administrative  Tribunal,  Aurangabad  Bench  and  this

Court directed that the respondents be permitted to continue in service

until further orders. Similar orders came to be passed in other appeals

also.  However,  this  Court’s  order  dated  02.11.2012 was modified by a

subsequent order of this Court dated 19.08.2014 to the effect that  “the

Law  Officers/Law  Advisers/Law  Instructors,  whose  contractual

appointments have come to an end, shall  not be continued beyond their

contractual period. If their appointments have been renewed, the same shall

be continued till the period comes to an end”.    

8. On  instructions,  counsel  for  the  State  of  Maharashtra

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submitted that in view of the order dated 19.08.2014, presently none of

the respondents are continuing in service. Since none of the respondents

are continuing in service, the appeals have become infructuous. However,

the appeals ought to be decided to answer the contentious issues raised

and to settle the questions of law involved in the matter.   

9. Learned counsel for the appellants contented that 471 posts

created  by  the  Government  Resolution  dated  21.08.2006  were  not

permanent posts and the appointments were made purely on contractual

basis.  It was submitted that filling up of 471 posts on contractual basis

and not on permanent basis is a matter of government policy and that it

was beyond the purview of  the tribunal  to  set  aside the same.  It  was

submitted that the respondents had entered into a contract with the State

Government  thereby  accepting  the  terms  of  service  laid  down  in

Government  Resolution  dated  15.09.2006  and  having  accepted  the

appointment  on  contractual  basis,  the  respondents  are  estopped  from

challenging  the  validity  of  the  said  Government  Resolutions  dated

21.08.2006 and 15.09.2006.  

10. Per contra,  the counsel for the respondents contended that

clause (3) in the Government Resolution dated 21.08.2006 and clause 'A',

'B' and 'C' in the Government Resolution dated 15.09.2006 are arbitrary

and unreasonable and rightly struck down by the tribunal as violative of

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Articles 14 and 16 of the Constitution of India. It was further contended

that even though the respondents had entered into a contract with the

government  accepting  clause  (3)  in  the  Government  Resolution  dated

21.08.2006 and the clauses 'A', 'B' and 'C' in the Government Resolution

dated 15.09.2006, the same will not operate as estoppel.  

11. We have carefully considered the rival submissions made by

learned counsel for the parties and perused the impugned judgment and

the material on record.  

12. In  the  Government  Resolution  dated  21.08.2006  while

creating  471  posts  in  various  cadres  including  Legal  Advisors,  Law

Officers and Law Instructors in clause (3) of the said Resolution, it was

made clear that the posts created ought to be filled up on contractual

basis. Clause (3) reads as under:-  

“The said posts instead of being filled in the regular manner should be kept vacant and should be filled on the contract basis as per the terms and conditions prescribed  by  the government  or  having  prepared  the Recruitment Rules should be filled as per the provisions therein.”

13. Subsequently,  the  said  Resolution  was  modified  by

Government  Resolution  dated  15.09.2006.  In  the  said  Resolution,  the

column specifying “Pay Scale”  was substituted with column “Combined

Permissible Monthly Pay + Telephone & Travel Expenses”. However, there

was no change in the decision of the government on filling up the posts on

contractual  basis.   Government Resolution dated 15.09.2006 stipulates

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the terms and conditions of the contractual appointments. Clauses 'A', 'B',

'C' and 'D' read as under:-  

“A) The  appointment  of  the  said  posts  would  be  completely  on contractual  basis.  These  officers/employees  would  not  be  counted  as government employees.  

B) The said appointments should be made on contract basis firstly for 11  months.  After  11  months  the  term  of  the  agreement  could  be increased  from  time  to  time  if  necessary.  Whereas,  the  appointing authority would take the precaution while extending the terms in this manner that, at one time this term should not be more than 11 months. The  appointment  in  this  way  could  be  made  maximum three  times. Thereafter,  if  the  competent  authority  is  of  the  opinion  that  the reappointment  of  such  candidate  is  necessary  then  such  candidate would have to again face the selection process.  

C) The concerned appointing authority at the time of the appointment would  execute  an  agreement  with  the  concerned  candidate  in  the prescribed format. The prescribed format of the agreement is given in Appendix 'B'.  It  would be the responsibility of  the concerned office to preserve all the documents of the agreement.

D) Except for the combined pay and permissible telephone and travel expenses (more than the above mentioned limit)  any other allowances would not be admissible for the officers/employees being appointed on contract basis.”

14. The intention of the State Government to fill up the posts of

Legal Advisors, Law Officers and Law Instructors on contractual basis is

manifest  from  the  above  clauses  in  Government  Resolutions  dated

21.08.2006  and  15.09.2006.  While  creating  471  posts  vide  Resolution

dated 21.08.2006, the Government made it clear that the posts should be

filled up on contractual basis as per terms and conditions prescribed by

the Government.  As per clause 'B' of the Government Resolution dated

15.09.2006, the initial contractual period of appointment is eleven months

and  there  is  a  provision  for  extension  of  contract  for  further  eleven 7

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months. Clause 'B' makes it clear that the appointment could be made

maximum three times and extension of contract beyond the third term is

not  allowed.  If  the  competent  authority  is  of  the  opinion  that  the

reappointment  of  such  candidates  is  necessary  then  such  candidates

would again have to face the selection process.  

15. It  is  relevant  to  note  that  the  respondents  at  the  time  of

appointment have accepted an agreement in accordance with Appendix 'B'

attached to Government Resolution dated 15.09.2006.  The terms of the

agreement  specifically  lay  down  that  the  appointment  is  purely

contractual  and that the respondents will  not  be entitled to  claim any

rights, interest and benefits whatsoever of the permanent service in the

government.  We may usefully refer to the relevant clauses in the format of

the agreement which read as under:-  

“1. The First Party hereby agrees to appoint Shri/Smt._________ (Party No.  II)  as  a  ________  on  contract  basis  for  a  period  of  11  months commencing from __________ to __________ (mention date) on consolidated remuneration of Rs.___________ (Rupees _____________ only)  per month, and said remuneration will be payable at the end of each calendar month according to British Calendar.  It  is  agreed that IInd party shall  not be entitled for separate T.A. and D.A. during the contract period….

2. …....... 3. …...... 4. …........

5. Assignment of 11 months contract is renewable for a further two terms of  11  months  (i.e.  total  3  terms),  subject  to  the satisfaction of Competent Authority, and on its recommendations.

6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government.”  

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16. The above terms of the agreement further reiterate the stand

of the State that the appointments were purely contractual and that the

respondents  shall  not  be  entitled  to  claim  any  right  or  interest  of

permanent service in the government. The appointments of respondents

were made initially for eleven months but were renewed twice and after

serving the maximum contractual period, the services of the respondents

came to an end and the Government initiated a fresh process of selection.

Conditions  of  respondents’  engagement  is  governed  by  the  terms  of

agreement.  After  having  accepted  contractual  appointment,  the

respondents  are  estopped  from  challenging  the  terms  of  their

appointment. Furthermore, respondents are not precluded from applying

for  the  said  posts  afresh  subject  to  the  satisfaction  of  other  eligibility

criteria.  

17. The High Court did not keep in view the various clauses in the

Government Resolutions dated 21.08.2006 and 15.09.2006 and also the

terms  of  the  agreement  entered  into  by  the  respondents  with  the

government.  Creation of posts was only for administrative purposes for

sanction of the amount towards expenditure incurred but merely because

the posts were created, they cannot be held to be permanent in nature.

When the government has taken a policy decision to fill up 471 posts of

Legal Advisors, Law Officers and Law Instructors on contractual basis, the

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tribunal and the High Court ought not to have interfered with the policy

decision to hold that the appointments are permanent in nature.

18. In the result, the impugned judgment of the High Court is set

aside and these appeals are allowed.  

19. Consequently, all other appeals are also allowed.  

20. No costs.  

                 ….……...................CJI.   (T.S. THAKUR)

……….......................J.   (R. BANUMATHI)

………......................J. (UDAY UMESH LALIT)

New Delhi;  July 12, 2016.  

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