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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4916  OF 2015 (Arising out of S.L.P. (Civil) No. 662 of 2014)

SURENDRA KUMAR & ORS.      …APPELLANT (S)

VERSUS

GREATER NOIDA INDUSTRIAL  DEVELOPMENT AUTHORITY & ORS.   …RESPONDENT (S)

J  U  D  G  M  E  N  T

R. BANUMATHI,  J.  

 Leave granted.

2. This appeal arises out of a judgment passed by the

Division Bench of the High Court of Judicature at Allahabad

dated 29.10.2013 in Writ Petition No.65789 of 2011,  in and

by which, the High Court held that on the principles laid down

in the case of  Secretary, State of Karnataka & Ors. Vs. Uma 1

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Devi  (3)  &  Ors.,  (2006)  4  SCC  1,  the  appointments  of  the

appellants were ex-facie illegal dehors Articles 14 and 16 of

the  Constitution of  India  and directed an inquiry  regarding

initial appointments.

3. Brief  facts  giving  rise  to  this  appeal  are  that  the

appellants  were  initially  engaged  on  the  post  of  Assistant

Manager  (Civil)  by  the  respondent  No.1–Greater  Noida

Industrial  Development Authority on contractual  basis for a

period  of  89  days.  Admittedly,  initial  appointments  of  the

appellants  were  not  made  against  any  sanctioned  posts.

However, their engagement continued from time to time, and

the appellants have been continuously  working on the said

post.  On 20.11.2002, the respondent authorities published an

advertisement  for  engagement  to  the  posts  of  Assistant

Manager (Civil).  The appellants and similarly situated persons

who  have  been  engaged  on  contractual  basis  filed  a  Writ

Petition being Writ  Petition No.54072 of  2002 seeking for  a

writ  of  mandamus  directing  the  respondent-authorities  to

regularise  their  services  on  the  post  of  Assistant  Manager

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(Civil)  and  to  quash  the  aforesaid  advertisement  dated

20.11.2002.   The  appellants  contended  that  as  they  were

working  continuously,  the  respondent  authorities  instead of

issuing  a  fresh advertisement  should  have  regularised their

services on the said post.  By the judgment dated 28.09.2005,

the  learned  Single  Judge  allowed  the  Writ  Petition  and

quashed the advertisement dated 20.11.2002 and directed the

respondent-authorities to consider the claim of the appellants

for regularisation of  their  services on the existing vacancies

which  were  directed  to  be  filled  up  from  the  existing

contractual employees as per the Regulation/Rules and fresh

advertisement could be issued inviting applications from the

general candidates only for remaining vacancies.  Challenging

the order of the learned single Judge, respondent authorities

filed Special Appeal before the Division Bench being Special

Appeal No.1432 of 2005.

4. Pending adjudication of  Writ  Petition No.54072 of

2002  before  the  learned  single  Judge,  a  scheme  for

regularization of the contractual employees was formulated by

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the  respondent  No.1  on  16.04.2003,  wherein  a  policy  was

framed regarding regularization of  27 contractual  employees

who had been engaged initially for a period of 89 days and

continued thereafter.   The State  Government,  vide its  letter

dated  05.03.2008,  approved  the  policy  formulated  by

respondent No.1 for regularization of contractual employees.

As per the said policy, 60% of the vacancies were sought to be

filled  up  from  amongst  27  contractual  employees  and  the

remaining 40% of  the vacancies through direct recruitment.

The special appeal being Special Appeal No.1432 of 2005 was

disposed  of  on  13.01.2010  directing  the  first  respondent

authority to take a final decision in pursuance of the policy

framed  by  it  and  approved  by  the  State  Government  on

05.03.2008.  Pursuant to the policy decision, the appellants

and  other  similarly  situated  contractual  employees  were

appointed  on  the  post  of  Assistant  Manager  (Civil)  vide

appointment orders dated 06.08.2010.

5. After  joining  the  said  post,  the  appellants  filed  a

Claim Petition No. 174 of 2011 before the State Public Services

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Tribunal, Lucknow praying for regularization of their services

from the date of existence of vacancies, that is 20.11.2002, the

date on which the advertisement was issued, for appointment

to  the  post  of  Assistant  Manager  (Civil)  and  with  all

consequential benefits.  The tribunal, vide its judgment dated

23.06.2011,  allowed  the  Claim  Petition  and  directed  the

authorities to consider the appellants’ claim for regularization

of  their  services  on  the  existing  vacancies  with  effect  from

20.11.2002.  Aggrieved  by  the  order  of  the  tribunal,  the

respondent  authorities  preferred  a  writ  being  Writ  Petition

No.65789 of 2011 before the High Court. The High Court, vide

impugned  judgment  dated  29.10.2013  relying  on  the

Constitution Bench decision of this Court in Uma Devi’s case

(supra)  allowed  the  Writ  Petition  filed  by  the  respondent

authorities and quashed the order dated 23.06.2011 passed

by  the  tribunal  granting  benefits  to  the  appellants  with

retrospective effect.  Additionally, the High Court also quashed

the  appointments  of  the  appellants  dated  06.08.2010  as

ex-facie illegal  and  directed  the  authorities  to  initiate

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proceedings  in  respect  of  illegal  appointments  which  were

made in violation of Articles 14 and 16 of the Constitution of

India and the principles laid down in Uma Devi’s case (supra).

This  appeal  assails  the  correctness  of  the  judgment  of  the

Division Bench dated 29.10.2013.

6. Shri L. Nageswara Rao, learned Senior Counsel for

the appellants, contended that the appointment orders dated

6.08.2010  were  issued  pursuant  to  the  scheme  of

regularization formulated by the respondent No. 1 which was

also approved by the State Government and while so, the High

Court erred in holding that the appointments of the appellants

were ex-facie illegal.  It was submitted that the appellants have

been continuously  working  on  the  said  post  for  more  than

twenty  years  and  therefore  their  services  ought  to  be

regularised with retrospective effect from 20.11.2002 and they

be granted seniority and consequential benefits.   

7. The  respondent  authorities  have  fairly  conceded

that appointments of the appellants vide appointment orders

dated 06.08.2010 were made pursuant to the regularization

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scheme  framed  by  the  respondent  No.1  and  therefore  the

appointments cannot be said to be illegal being in violation of

Articles 14 and 16 of the Constitution of India.  However, the

respondent authorities have raised serious objections for the

claim  of  the  appellants  seeking  regularisation  with

retrospective effect from 20.11.2002, when the vacancies were

first  advertised.   To  that  extent,  the  respondent-authorities

have supported the impugned judgment in setting aside the

order  of  the  tribunal.   It  was  further  submitted  that  the

appellants  were  appointed  pursuant  to  the  regularisation

scheme which never contemplated that the appellants should

be entitled to regularisation from the retrospective effect.

8. The  main  issue  that  arises  for  consideration  is

whether  the  policy  decision  extending  the  benefit  of

regularisation to  contractual  employees  against  60% vacant

posts  will  be  deemed  to  regularise  the  services  of  the

appellants  from the  retrospective  date,  that  is,  20.11.2002,

when the said posts were first advertised.

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9. At the outset, it is to be pointed out that when the

vacancies  for  the  post  of  Assistant  Manager  (Civil)  were

advertised  on  20.11.2002,  the  scheme  for  regularization  of

contractual  employees  was  not  in  vogue  and  it  was  only

subsequently  on  16.04.2003,  respondent  No.1  had  taken  a

policy  decision  regarding  regularization  of  27  contractual

employees  and  the  scheme  was  approved  by  the  State

Government  vide  letter  dated  5.03.2008  and  it  is  only

thereafter, the appellants came to be appointed on 6.08.2010.

Thus,  when  the  vacancies  were  initially  advertised,  the

appellants  did  not  have  any  substantive  right  against  the

notified  vacancies.  The  appellants  cannot  be  said  to  have

acquired such right to be regularised by virtue of the decision

of the learned Single Judge in Writ Petition No. 54072 of 2002

as in  Uma Devi’s case (supra), this Court held that the High

Court should not issue directions for regularization, unless the

recruitment  itself  was  made  in  terms  of  the  constitutional

Scheme  and  the  wide  power  under  Article  226  are  not

intended  to  be  used  for  issuance  of  such  directions  for

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regularization.  The appellants were actually regularised only

by virtue of the policy decision taken by the respondent No.1

and not by virtue of the decision of the High Court.

10. In  the  impugned  judgment,  the  Division  Bench

proceeded on the premise as if  Uma Devi’s case (supra) held

that the State Government, in no circumstance, can regularise

the services of  contractual  employees.  In para (53) of  Uma

Devi’s case  (supra),  the  Constitution  Bench  carved  out  an

exception  by  observing  that  the  Union  of  India/State

Governments/their  instrumentalities  should  take  steps  to

regularise the services of such irregular employees who have

worked for more than ten years and para (53) reads as under:-

“53.  One aspect  needs to  be clarified.  There may be  cases where  irregular  appointments  (not  illegal  appointments)  as explained in State of Mysore Vs. S.V. Narayanappa, (1967) 1 SCR 128,  R.N. Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409, and  B.N.  Nagarajan Vs.  State of  Karnataka,  (1979)  4 SCC  507,  and  referred  to  in  paragraph  15  above,  of  duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the  Union  of  India,  the  State  Governments  and  their instrumentalities  should  take  steps  to  regularize  as  a  one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and

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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  sub judice, 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.”

11. Considering  the  facts  of  the  present  case  on  the

touchstone laid down in Uma Devi’s case(supra), it will be seen

that  the  Division  Bench  was  not  right  in  setting  aside  the

appointment of the appellants.   More so, it was nobody’s case

challenging  the  appointment  of  the  appellants.   Admittedly,

the  appellants were engaged as contractual  employees from

1994 and have completed more than ten years of continuous

service with respondent No.1.  They continued in service not

by the orders of the Court/Tribunal, but by the decision of the

respondents. The appellants were regularised as per the policy

decision  dated  16.04.2003  taken  by  respondent  No.1  and

approved  by  the  State  Government  vide  letter  dated

05.03.2008.   Since  the  appointment  of  the  appellants  were

made pursuant to the policy of regularization, the High Court

was not right in quashing the appointment of the appellants 10

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as the same were never  in question before the High Court.

The plea that was raised by the appellants was only to seek

regularization with retrospective  effect  from 20.11.2002 and

the consequential seniority.

12. The appellants were initially engaged on contractual

basis and they were not appointed against any sanctioned post

before they were substantially appointed on the said post on

6.08.2010.  Even  though  advertisement  dated  20.11.2002

indicated  that  there  were  vacancies,  the  policy  of

regularization of contractual employees was approved by the

State  Government  only  on 05.03.2008.  The appellants  were

appointed  on  the  post  of  Assistant  Manager  (Civil)  only

pursuant  to  the  policy  decision  of  the  respondents  for

regularisation  of  contractual  employees  and  thus,  the

appellants  cannot  seek  for  regularization  with  retrospective

effect from 20.11.2002, that is when the advertisement was

issued, because at that time regularisation policy was not in

vogue.  By policy of regularisation, it was intended to give the

benefit only from the date of appointment. The Court cannot

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read  anything  into  the  policy  decision  which  is  plain  and

unambiguous.  Having accepted the appointment orders dated

6.08.2010 and also joined the post, the appellants cannot turn

round and claim regularisation with retrospective effect.  

13.  The  judgment  of  the  High  Court  quashing  the

appointment of the appellants vide appointment order dated

06.08.2010  is  set  aside.   However  the  appellants’  plea  for

regularization with retrospective effect is declined.

14. In the result,  the appeal is allowed in part in the

above terms.  There shall be no order as to costs.          

                …………………………J.

    (T.S. THAKUR)

                                                     …………………………J.

   (R. BANUMATHI) New Delhi; July 2, 2015

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