AMARENDRA KUMAR MOHAPATRA & ORS. Vs STATE OF ORISSA .
Bench: T.S. THAKUR,VIKRAMAJIT SEN
Case number: C.A. No.-008322-008322 / 2009
Diary number: 33541 / 2008
Advocates: DEBASIS MISRA Vs
NIKILESH RAMACHANDRAN
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8322 OF 2009
Amarendra Kumar Mohapatra & Ors. …Appellants
Versus
State of Orissa & Ors. …Respondents
WITH
Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940
of 2010.
J U D G M E N T
T.S. THAKUR, J.
1. Common questions of law arise for consideration in
these appeals which were heard together and shall stand
disposed of by this common order. The primary issue that
falls for determination touches the Constitutional validity of
what is described as the Orissa Service of Engineers
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(Validation of Appointment) Act, 2002 by which appointment
of 881 ad hoc Assistant Engineers belonging to Civil,
Mechanical and Electrical Engineering Wings of the State
Engineering Service have been validated, no matter all such
appointments were in breach of the Orissa Service of
Engineers’ Rules, 1941. The High Court of Orissa has in a
batch of writ petitions filed before it struck down the
impugned Legislation on the ground that the same violates
the fundamental rights guaranteed to the writ petitioners
under Articles 14 and 16 of the Constitution. We shall
presently formulate the questions that arise for
determination more specifically but before we do so, we
consider it necessary to set out the factual matrix in which
the entire controversy arises.
2. In a note submitted to the State Cabinet on 15th May
1990 the problem of over 2000 unemployed degree-holders
in various branches of Engineering who had passed out from
several Engineering colleges since the year 1984 was
highlighted and a proposal for utilizing the manpower so
available for the benefit of the State economy mooted. The
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proposal envisaged a twofold action plan for absorbing the
unemployed graduate Engineers. The first part of the action
plan provided for withdrawal of 127 posts of Assistant
Engineers that had been referred to the Public Service
Commission and advertised by it to be filled up by
appointing unemployed degree holder Engineers in a non-
class II rank. The second part of the proposal envisaged
creation of 614 posts of Junior Engineers in different
Departments to accommodate the unemployed degree
holders. These 614 posts comprised 314 new posts proposed
to be created, one for each block in the State. Similarly, 100
posts were to be created in the Irrigation Department for
survey and investigation to accelerate the pace of
investigation. Yet another 200 posts were to be created for
initial infrastructure work in connection with Paradip Steel
Plant.
3. The note submitted to the Cabinet suggested that
degree-holder Engineers could be recruited against all the
741 (127 + 614) posts mentioned above to be designated as
Junior Engineers or Stipendiary Engineers in the first phase
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on a consolidated stipend of Rs.2,000/- per month. The
proposal further envisaged absorption of Engineers so
appointed on regular basis after two years, after assessing
their performance.
4. The Council of Ministers considered the proposal
mooted before it and approved the same. Decision taken in
the 2nd Meeting of the Council of Ministers held on 15th May,
1990 with regard to ‘Problems of Un-employed Degree
Engineers’ was forwarded to the Secretaries to the
Government in terms of a memo dated 21st May 1990, the
relevant portion whereof reads as under:
“Item No.5: Problems of Un-employed Degree Engineers.
The problems were discussed at length and the following decisions were taken.
i) All posts of Assistant Engineers referred to the Orissa Public Service Commission and advertised by them may be withdrawn.
ii) 314 posts of Stipendiary Engineers may be created one in each Block.
iii) 100 posts of Stipendiary Engineers may be created in the
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Irrigation Department for survey and investigation.
iv) 200 posts of Stipendiary Engineers may be created for the initial infrastructure work of Paradip Port-based Steel Plant.
v) In all, 741 posts of Stipendiary Engineers will be available, for recruiting from the unemployed Degree Engineers. A Stipendiary Engineer may be paid a consolidated stipend of Rs.2,000/- per month. Absorption into regular posts may be considered after two years on the basis of their performance.
vi) The criteria for selection are to be worked out separately, so that Stipendiary Engineers are recruited on merit basis batch by batch.
vii) The rest of the unemployed Degree Engineers are proposed to be engaged in various construction works by formation of Groups Companies and Cooperatives, which will get preference in award of work by the Department/Corporations.”
5. As a sequel to the above decision, the Government
invited applications from unemployed graduate Engineers of
all disciplines for empanelment as Stipendiary Engineers for
placement in different Government departments, projects,
public sector undertakings, co-operative societies and
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industries etc. By another resolution dated 22nd September
1990, the Government stipulated the procedure to be
adopted for discipline-wise empanelment of the unemployed
graduate Engineers for appointment as Stipendiary
Engineers against the vacancies in different departments
and undertakings. The procedure evolved was to the
following effect :
“2. Government have since decided that the following procedure should be adopted for discipline wise empanelment of the unemployed Graduate Engineers for appointment as Stipendiary Engineers against the vacancies in different government Department and undertakings:
(1) 25 percent of the posts shall be filled up on merit basis and for this purpose equal number will be taken from each batch starting from the batch of 1984 up to the batch of 1989.
(2) A point system will be adopted for empanelment on merit basis, for which out of a total 100 marks the performance in HSC will be given 15 marks, the performance in I. Sc. and Diploma will be given 25 marks and the performance at the final Engineering Degree Examination will be given 60 marks.
(3) After the empanelment on merit basis is done for 25% of the vacancies, empanelment will be done batch-wise starting from 1984 for the remaining vacancies. The Inter se position of candidates in the batch wise panel will again be on the basis of merit computed as in (2) above.
(4) There shall also be separate empanelment on merit basis for SC/ST, Physically handicapped and ex- servicemen covering all the batches to facilitate filling up of reserved vacancies. The rules regarding reservation of vacancies will apply to these appointments.
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(5) Applications received on or before 10.7.1990 will alone be considered for empanelment. Similarly graduate Engineers who have passed out before 1984 or those who have obtained degree after 1989 will not be eligible for empanelment.
(6) The following committee will undertake the work of scrutiny and empanelment of the unemployed graduate Engineers.
d. Secretary Steel & Mines Chairman of the Committee
di. Engineer-in-Chief and Secretary, Works
Member
dii. Engineer-in-Chief (Irrigation)
Member
diii. Chief Engineer Electricity and electrical Projects
Member
div. Chief Engineer, PHD Member
dv. Chief Engineer, RLEGP Member
dvi. Managing Director, IPICOL Convenor
(7) The panels from the Scrutiny Committee will be maintained in the Department of Planning and Coordination who will sponsor candidates to various Government Departments and Undertakings according to the requirement as indicated by them. The undertakings will send indents through the concerned Administrative Departments.
(8) As regards Civil & Mechanical Engineers, the Government Departments will intimate the requirement to Irrigation Department who will the panel names from P & C Department to fill up the vacancies. In case of these Engineers, the appointment orders will be issued by the Department of Irrigation and when required they will be sent on deputation to the other Departments.
(9) If there is no candidate to be recommended against reserve vacancies for the reason that the panels of
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such candidates are exhausted, the Department of P & C will give a non-availability certificate to the indenting organizations so that they can take steps to de-reserve the vacancies and give appointment to general candidates in their place.
(10) The normal requirement for new appointment under Government viz. production of original certificates, Medical Certificate, Schedule Caste/Scheduled Tribe Certificate etc. shall be applicable to these appointments and the verification of these documents shall be the responsibility of the Employing Departments/Undertakings.
(11) In some cases relaxation of age limit for entry into Government service may have to be done and this will be attended to by the Employing Departments/Undertakings as a matter of course.
ORDER
Ordered that the Resolution be published in the Orissa Gazette for general information.
Ordered also that copies of the Resolution be forwarded to all Departments of Government, Member, Board of Revenue, All Heads of Departments, All District Collectors, Secretary to Governor, Registrar, Orissa High Court Secretary, OPSC, Principal Secretary to the Chief Minister and Director of Printing, Stationary and Publication, Orissa Cuttack and 50 copies of Planning & Coordination Department.
BY ORDER OF THE GOVERNOR S.SUNDARARANJAN
ADDITIONAL DEVELOPMENT COMMISSIONER AND
SECRETARY TO GOVERNMENT”
6. Applications received from unemployed graduate
Engineers for appointment as Stipendiary Engineers were in
terms of the above resolution and considered by the
Committee constituted for the purpose and appointment of
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eligible candidates found suitable for such appointments
made between 1991 to 1994. Appointment orders issued to
the candidates made it clear that degree holder Engineers
were being engaged as Stipendiary Engineers in the
concerned Department and shall be paid a consolidated
stipend of Rs.2000/- only. It further stated that the
engagement was purely temporary and terminable at any
time and without any notice.
7. In August 1992, Minister for Irrigation, Government of
Orissa mooted a further proposal to the following effect:
(a) The promotion quota may continue at 33% of annual vacancy.
(b) In addition, there should be a selection quota of 30%. This quota will have two components – 5% for Junior Engineers who have acquired an Engineering Degree or equivalent qualification and 25% which will be earmarked exclusively for Stipendiary Engineers.
(c) Direct recruitment quota will be 37%. Stipendiary Engineers can also compete against this quota. They may be allowed age relaxation up to five years. This will ensure that Stipendiary Engineers have the facility of recruitment, both against the selection quota and direct recruitment quota.
(d) Departments may not fill up vacancies in the post of Stipendiary Engineers caused by appointment of the incumbents as Assistant Engineers, if they want to do so, they may obtain candidates from the panel of the P & C Department.
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(e) This will be a transitional provision because appointment of Stipendiary Engineers may not be a permanent feature. After such time as, Government may decide the present quotas of recruitment will be restored.
(f) Public Sector Undertakings should frame their own recruitment rules which should broadly correspond to Government’s policy of promotion of Junior Engineers and appointment of Stipendiary Engineers through selection. If there are no Stipendiary Engineers or Junior Engineers with Degree or equivalent qualification quotas for these categories will be added to direct recruitment quota.”
8. It is evident from the above that while the Government
did not propose to reduce the 33% quota reserved for
promotees, out of the remaining 67% meant for direct
recruitment, it proposed to carve out what was described as
selection quota of 30% for absorption of the Stipendiary
Engineers to the extent of 25% of the vacancies and degree
holder Junior Engineers against the remaining 5% of the
vacancies. The balance of 37% of the vacancies was,
however, left to be filled up by direct recruitment from the
open market.
9. Based on the above, the Government appears to have
made a reference to the Orissa Public Service Commission
on 5th June 1996 for approval of the draft Orissa Engineering
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Service (Recruitment & Condition of Service) Rules, 1994
which were already approved by the State Council of
Ministers on 3rd December 1994. The Orissa Public Service
Commission, however, struck a discordant note. In its
opinion, since the Stipendiary Engineers did not constitute a
cadre in the formal sense it was not desirable to treat it as a
feeder grade for Assistant Engineers. So also the proposal to
reserve 5% of the vacancies in the grade of Assistant
Engineers to be filled by degree holder Junior Engineers
from the Subordinate Service was also considered to be
inadvisable. The Commission opined that since persons with
higher qualifications serve practically in all fields of
administration including technical services such as Medical
and Engineering, it was neither necessary nor desirable to
provide for them a route for promotion to the higher level
except the one available to all those serving in the feeder
grade. In the opinion of the Commission, the correct way of
rewarding those with higher qualification was to give them
advance increments at the time of entry. The Commission
also suggested that if in the opinion of the Government the
quota for promotion of Junior Engineers to the level of
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Assistant Engineers required to be higher than 33% in
consideration of the larger body of Junior Engineers some of
whom were degree holders, it could increase the same to
40%, but the fragmentation of the Junior Engineers into
degree holders and non-degree holders was not advisable.
The Commission suggested that the remainder of the 60%
vacancies for direct recruitment could be utilized by
recruiting degree holder Engineers from the open market
including Stipendiary Engineers and that candidates could be
given suitable weightage while judging their inter se relevant
merit.
10. The Government had, in the meantime, passed a
resolution on 12th March, 1996 stating that the Stipendiary
Engineers could be appointed as Assistant Engineers on ad
hoc basis in the pay scale of Rs.2000-3500/- or any similar
post on ad hoc basis against regular vacancies. It also
resolved to regularize the service of such ad hoc Assistant
Engineers through a Validation Act. Some Stipendiary
Engineers who were working in different State Governments
and statutory bodies were also proposed to be appointed to
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the post of Assistant Engineer or equivalent posts carrying
the same scale, subject to their suitability and satisfactory
performance. The relevant portion reads as under:
“In consideration of the above decision of the Government, the appointing authority of Departments of Government will appoint the Stipendiary Engineers of different disciplines as Assistant Engineers against existing vacancies of Assistant Engineers on ad hoc basis for a period of one year, except Civil & Mechanical, to be appointed on ad hoc basis by the Department of Water Resources.
XXX XXX XXX
Stipendiary Engineers who are already working in different State Government Undertakings, Corporations,, Semi-Government Organizations & Statutory Boards may also be appointed as Assistant Engineers or in equivalent posts carrying the same scale, subject to their suitability and satisfactory performance.”
11. The resolution notwithstanding, the Government does
not appear to have appointed any Stipendiary Engineers as
Assistant Engineers on ad hoc basis. Aggrieved, the
Stipendiary Engineers filed O.J.C. Case No.8373 of 1995
Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for
a writ of mandamus directing the Government to comply
with the resolution and the order issued by it. This petition
was allowed by the Division Bench of the High Court of
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Orissa at Cuttack by an order dated 18th December 1996.
The High Court directed the Government to take expeditious
steps to implement resolution dated 12th March 1996,
preferably within a period of four months. It further directed
the State Government to appoint Stipendiary Engineers as
Assistant Engineers in the scale of Rs.2000-3500 on ad hoc
basis. In compliance with the directions aforementioned, the
Stipendiary Engineers were appointed as Assistant Engineers
on ad hoc basis between the years 1997 and 2001. What is
important is that pursuant to its initial proposal of allocating
5% vacancies for those working as degree holder Junior
Engineers in different departments, the Government had
between 1996 and 1997 promoted 86 degree holder Junior
Engineers on an ad hoc basis as Assistant Engineers.
12. Five Stipendiary Engineers working in the Water
Resources Department whose names had been
recommended along with others for appointment as
Assistant Engineers on ad hoc basis by the Screening
Committee set up for the purpose in the meantime filed
O.J.C. No.1563 of 1998 before the Orissa High Court making
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a grievance that despite the recommendations made in their
favour, the Government had not appointed them as
Assistant Engineers. That petition was allowed and disposed
of by an order dated 6th May, 1998 directing the State
Government to consider the case of the writ-petitioners in
the light of its earlier order passed in Jayant Kumar’s case
(supra). Since the said directions were not carried out by the
Government, two of the Stipendiary Engineers filed O.J.C.
Nos.6354 and 6355 of 1999 in which they complained about
the non-implementation of the directions issued by the High
Court earlier and prayed for their regularisation. This
petition was disposed of by the High Court by a common
order dated 2nd July, 2002 in which the High Court noted
that the petitioners had been appointed as Assistant
Engineers on ad hoc basis in the pay scale of Rs.2000-
3500/- by the Water Resources Department Notification
dated 11th December, 1998. The High Court further held that
since the Government was on principle committed to
regularising the appointments of Stipendiary Engineers there
was no reason why the Government should not treat them
as direct recruits since the year 1991, in which they were
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appointed, and compute their service from that year for the
purpose of in-service promotion, pension and other service
benefits except financial benefits and to absorb them on
regular basis according to law.
13. It was in the above backdrop that the Government
finally came up with a proposal for validation of the
appointment of Stipendiary Engineers as Assistant
Engineers. Memorandum dated 28th November, 2002
referred to appointment of 846 Stipendiary Engineers in
Civil, 61 Stipendiary Engineers in Mechanical and 25
Engineers in Electrical wings making a total of 932
Stipendiary Engineers in different Departments. We are
informed at the Bar that the present number of such
Stipendiary Engineers is limited to 881 only as the rest have
either resigned, retired or died. The proposal made in the
Memorandum also took note of the information given by the
Orissa Public Service Commission and the repeated demands
of ad hoc Assistant Engineers engaged from Stipendiary
Engineers for regularization. The proposal stated that no
regular appointments were made by the Orissa Public
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Service Commission and that the validation of appointments
of Stipendiary Engineers as Assistant Engineers will
immensely benefit the State in execution of several ongoing
development works. The proposal further stated that having
rendered more than 10 years of service, these Stipendiary
Engineers currently working as Assistant Engineers on ad
hoc basis will have no avenues for employment as they had
already gone beyond the upper age limit prescribed for
direct recruitment.
14. It is in the above backdrop that the State Legislature
eventually enacted Orissa Service of Engineers (Validation of
Appointment) Act, 2002 which comprises no more than
three sections. Section 3 of the legislation reads as under:
“3(1) Notwithstanding anything contained in the Recruitment Rules, seven hundred ninety-nine Assistant Engineers belonging to the discipline of Civil, fifty-seven Assistant Engineers belonging to the discipline of Mechanical and twenty-five Assistant Engineers belonging to the discipline of Electrical as specified in the Schedule with their names, dates of birth, dates of appointment and the names of the Departments under which they are working on ad hoc basis since the date of such appointment shall be deemed to be validly and regularly appointed under their respective Department of the Government against the direct recruitment quota of the service with effect from the date of commencement of this Act and, accordingly, no such appointment shall be challenged in any court of law
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merely on the ground that such appointments were made otherwise than in accordance with the procedure laid down in the Recruitment Rules.
(2) The inter-se-seniority of the Assistant Engineers whose appointments are so validated shall be determined according to their dates of appointment on ad hoc basis as mentioned in the Schedule and they shall be enblock junior to the Assistant Engineers of that year appointed to the service in the respective discipline in their cadre in accordance with the provisions of the Recruitment Rules.
(3) The services rendered by the Assistant Engineers whose appointments are so validated, prior to the commencement of this Act shall, subject to the provisions in sub-section (2), count for the purpose of their pension, leave and increment and for no other purpose.”
15. A batch of writ petitions being Writ Petitions No.9514 of
2003, 12495 of 2005, 12495 of 2005, 12627 of 2005, 12706
of 2006 and 8630 of 2006, were then filed by the Degree
holder Junior Engineers appointed as Assistant Engineers on
ad hoc basis between 1996 and 1997 challenging the validity
of the above legislation, inter alia, on the ground that the
same suffered from the vice of discrimination inasmuch as
while ad hoc Assistant Engineers, who were earlier
appointed on stipendiary basis, had been regularised under
the Validation Act, those appointed against 5% quota
reserved for Junior Engineers holding a degree qualification
were left out.
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16. Writ Petition No.11093 of 2006 was similarly filed by
Junior Engineers who had not been appointed as Assistant
Engineers claiming parity with Degree holder Junior
Engineers already appointed as Assistant Engineers on ad
hoc basis against 5% quota disapproved by the Public
Service Commission for such Engineers.
17. Writ Petition No.16742 of 2006 was filed by Junior
Engineers promoted as Assistant Engineers against 33%
quota reserved for such Engineers whose grievance primarily
was that regularisation/validation of the appointments of
Stipendiary Engineers in the cadre of Assistant Engineers
was illegal and unconstitutional and adversely affected them
in terms of their seniority.
18. The above writ petitions were heard by a Division
Bench of the High Court of Orissa who allowed the same by
its order dated 15th October, 2008 striking down the
impugned Legislation primarily on the ground that the same
brought about discrimination between Assistant Engineers
similarly situate and, therefore, fell foul of Articles 14 and 16
of the Constitution. The High Court observed:
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“There is no reason as to why appointments of a few persons working as Assistant Engineers on ad hoc basis have been validated ignoring the other similarly situated persons working on ad hoc basis as Assistant Engineers. There cannot be discrimination or classification amongst the persons working on ad hoc basis or the post of Assistant Engineers. Once unequal became equal, the State has no authority to discriminate them and make equals as unequal.”
19. The present appeals assail the correctness of the above
judgment and order of the High Court. While Civil Appeals
No.8324 to 8331 of 2009 have been filed by the State of
Orissa, Civil Appeals No.8322, 8323 of 2009 and 1940 of
2010 have been preferred by Stipendiary Engineers who are
adversely affected by the judgment of the High Court on
account of striking down of the Validation Act under which
they were regularized as Assistant Engineers. Civil Appeal
No.1768 of 2006 has, however, been filed by the Degree
holder Junior Engineers who have already been promoted as
Assistant Engineers against 33% quota reserved for them to
challenge the judgment of the High Court in OJC Nos.6354
and 6355 of 1999 directing the State Government to
regularise the services of the writ-petitioners in those
petitions as Assistant Engineers from the date of their
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appointment as Stipendiary Engineers with all consequential
benefits except financial benefits.
20. Several intervention applications have been filed in
these appeals including intervention application filed by the
SC/ST candidates who were directly recruited as Assistant
Engineers in the year 2004 onwards.
21. We have heard learned counsel for the parties as also
those appearing for the interveners. The following three
questions of law arise for consideration:
1. What is the true nature and purport of the impugned legislation? More particularly is the impugned legislation a validation enactment or is it an enactment that grants regularisation to those appointed on ad hoc basis?
2. If the impugned enactment simply grants regularisation, does it suffer from any constitutional infirmity?
3. Does Section 3(2) of the impugned legislation suffer from any unconstitutionality, insofar as the same purports to grant Stipendiary Assistant Engineers seniority with effect from the date they were appointed on ad hoc basis?
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Re. Question No.1
22. Black’s Law Dictionary (9th Edition, Page No.1545)
defines a Validation Act as “a law that is amended either to
remove errors or to add provisions to conform to
constitutional requirements”. To the same effect is the view
expressed by this Court in Hari Singh & Others v. The
Military Estate Officer and Anr. (1972) 2 SCC 239,
where this Court said “The meaning of a Validating Act is to
remove the causes for ineffectiveness or invalidating of
actions or proceedings, which are validated by a legislative
measure”. In ITW Signode India Ltd. v. Collector of
Central Excise (2004) 3 SCC 48, this Court described
Validation Act to be an Act that “removes actual or possible
voidness, disability or other defect by confirming the validity
of anything which is or may be invalid”.
23. The pre-requisite of a piece of legislation that purports
to validate any act, rule, action or proceedings were
considered by this Court in Shri Prithvi Cotton Mills Ltd.
and Ann v. Broach Borough Municipality and Ors.
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(1969) 2 SCC 283. Two essentials were identified by this
Court for any such legislation to be valid. These are:
(a) The legislature enacting the Validation Act should be competent to enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act or the proceedings needs to be removed.
24. The Court went on to enumerate certain ways in which
the objective referred to in (b) above could be achieved by
the legislation and observed :
"…….. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re- enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law
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and makes adequate provisions in the Validating Law for a valid imposition of the tax."
(emphasis supplied)
25. Judicial pronouncements regarding validation laws
generally deal with situations in which an act, rule, action or
proceedings has been found by a Court of competent
jurisdiction to be invalid and the legislature has stepped in
to validate the same. Decisions of this Court which are a
legion take the view that while adjudication of rights is
essentially a judicial function, the power to validate an
invalid law or to legalise an illegal action is within the
exclusive province of the legislature. Exercise of that power
by the legislature is not, therefore, an encroachment on the
judicial power of the Court. But, when the validity of any
such Validation Act is called in question, the Court would
have to carefully examine the law and determine whether (i)
the vice of invalidity that rendered the act, rule, proceedings
or action invalid has been cured by the validating legislation
(ii) whether the legislature was competent to validate the
act, action, proceedings or rule declared invalid in the
previous judgments and (iii) whether such validation is
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consistent with the rights guaranteed by Part III of the
Constitution. It is only when the answer to all these three
questions is in the affirmative that the Validation Act can be
held to be effective and the consequences flowing from the
adverse pronouncement of the Court held to have been
neutralised. Decisions of this Court in Shri Prithvi Cotton
Mills Ltd. and Anr. V. Broach Borough Municipality and
Ors. (1969) 2 SCC 283, Hari Singh v. Military Estate
Officer (1972) 2 SCC 239, Madan Mohan Pathak v.
Union of India (1978) 2 SCC 50, Indian Aluminium Co.
etc. v. State of Kerala and Ors. (1996) 7 SCC 637,
Meerut Development Authority etc. v. Satbir Singh and
Ors. etc. (1996) 11 SCC 462, and ITW Signode India
Ltd. v. Collector of Central Excise (2004) 3 SCC 48 fall
in that category. Even in the realm of service law, validation
enactments have subsequent to the pronouncement of
competent Courts come about validating the existing
legislation. Decisions of this Court in I.N. Saksena v.
State of Madhya Pradesh (1976) 4 SCC 750, Virender
Singh Hooda and Ors. v. State of Haryana and Anr.
(2004) 12 SCC 588 and State of Bihar and Ors. v.
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Bihar Pensioners Samaj (2006) 5 SCC 65 deal with that
category of cases.
26. In the case at hand, the State of Orissa had not
suffered any adverse judicial pronouncement to necessitate
a Validation Act, as has been the position in the generality of
the cases dealt with by this Court. The title of the impugned
Legislation all the same describes the legislation as a
Validation Act. The title of a statute is no doubt an important
part of an enactment and can be referred to for determining
the general scope of the legislation. But the true nature of
any such enactment has always to be determined not on the
basis of the label given to it but on the basis of its
substance.
27. In M.P.V. Sundararamier & Co. v. State of A.P. &
Anr. AIR 1958 SC 468 this Court was considering whether
the impugned enactment was a Validation Act in the true
sense. This Court held that although the short title as also
the marginal note described the Act to be a Validation Act,
the substance of the legislation did not answer that
description. This Court observed:
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“It is argued that to validate is to confirm or ratify, and that can be only in respect of acts which one could have himself performed, and that if Parliament cannot enact a law relating to sales tax, it cannot validate such a law either, and that such a law is accordingly unauthorised and void. The only basis for this contention in the Act is its description in the Short Title as the "Sales Tax Laws Validation Act" and the marginal note to s. 2 , which is similarly worded. But the true nature of a law has to be determined not on the label given to it in the statute but on its substance. Section 2 of the impugned Act which is the only substantive enactment therein makes no mention of any validation. It only provides that no law of a State imposing tax on sales shall be deemed to be invalid merely because such sales are in the course of inter-State trade or commerce. The effect of this provision is merely to liberate the State laws from the fetter placed on them by Art. 286(2) and to enable such laws to operate on their own terms.”
(emphasis supplied)
28. We may also refer to Maxwell on Interpretation of
Statutes (12th Edn., page 6), where on the basis of
authorities on the subject, short title of the Act has been
held to be irrelevant for the purpose of interpretation of
statutes. Lord Moulton in Vacher and Sons Ltd. v. London
Society of Compositors [1913] AC 107 described the
short title of an Act as follows:
“A title given to the act is solely for the purpose of facility of reference. If I may use the phrase, it is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title....Its object is identification and not description.”
27
Page 28
(emphasis supplied)
29. Dr. Dhawan, learned senior counsel appearing for the
appellants fairly conceded that the impugned legislation
could not be described as a simple Validation Act. According
to him, the Act achieved a dual purpose of (a) validating the
invalid ad hoc appointments and (b) appointing the
Stipendiary Engineers working as ad hoc Assistant Engineers
on a substantive basis by regularising their appointments.
While we have no difficulty in agreeing with the latter part of
the contention urged by Dr. Dhawan and holding that the
legislation regularises the appointment of Stipendiary
Engineers as Assistant Engineers, we have not been able to
appreciate the rationale behind the Legislature considering it
necessary to validate the ad hoc appointments, especially
when such appointments had been made by the Government
pursuant to the directions issued by the High Court in the
writ petitions filed by the Stipendiary Engineers. Validation
of the ad hoc appointments of the Stipendiary Engineers as
Assistant Engineers would even otherwise have served no
purpose. That is because whether the appointments were
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Page 29
officiating/ad hoc/temporary or described by any other
expression, the fact that the Stipendiary Engineers had
worked for a long period of time as Assistant Engineers in
temporary/ad hoc/officiating capacity would have in itself
been a ground for the State to regularise them, subject of
course to such regularisation otherwise meeting
constitutional requirements. It was not as if any such
regularisation was legally impermissible unless the “ad hoc
appointments” granted to Stipendiary Engineers were
themselves validated. It is quite evident that the legislation
with which we are concerned was in substance aimed at
regularising the services of such persons as had worked in
the capacity of Assistant Engineers. If that was the true
purport of the legislation, it would be inaccurate to describe
the same as a validation enactment.
30. The matter can be viewed from yet another angle. The
enactment came de hors any compulsion arising from a
judicial pronouncement regarding the invalidity attached to
the appointment of Assistant Engineers on ad hoc basis and
only because of the State’s anxiety to appoint/absorb the
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Page 30
Stipendiary Engineers, subsequently appointed as ad hoc
Assistant Engineers on a substantive/regular basis without
following the route mandated by the Service Rules of 1941
applicable for making any such appointments. Having said
that, we must hasten to add that a prior judicial
pronouncement declaring an act, proceedings or rule to be
invalid is not a condition precedent for the enactment of a
Validation Act. Such a piece of legislation may be enacted to
remove even a perceived invalidity, which the Court has had
no opportunity to adjudge. Absence of a judicial
pronouncement is not, therefore, of much significance for
determining whether or not the legislation is a validating
law.
31. There was in the above context some debate at the Bar
whether or not the impugned enactment is a validating
enactment as it purports to be. As seen above, Dr. Rajiv
Dhawan and even Shri Narasimha, did not see the impugned
enactment as a validating legislation, no matter it carries a
label to that effect. Mr. Patwalia & Mr. Sisodia, senior
advocates, appearing for the opposite parties were also not
30
Page 31
supportive of the legislation being a validating enactment
and in our opinion rightly so. That is because the essence of
a validating enactment is a pre-existing act, proceeding or
rule, being found to be void or illegal with or without a
judicial pronouncement of the Court. It is only when an act
committed or a rule in existence or a proceeding taken is
found to be invalid that a validating act may validate the
same by removing the defect or illegality which is the basis
of such invalidity. There is no question of validating
something that has not been done or that has yet to come in
existence. No one can say that an illegality which has not
yet been committed can or ought to be validated by
legislation. Existence of an illegal act, proceedings or rule or
legislation is the sine qua non for any validating legislation
to validate the same. There can be no validation of what has
yet to be done, suffered or enacted.
32. Applying the above to the case at hand a Validation Act
may have been necessary if the Government had appointed
the ad hoc Assistant Engineers on a substantive basis in
violation of the relevant recruitment Rules. For in that case,
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Page 32
the Government would have done an act which was legally
invalid requiring validation by a legislative measure. But a
legislation that did not validate any such non-existent act,
but simply appointed the ad hoc Assistant Engineers as
substantive employees of the State by resort to a fiction,
could not be described as a validating law.
33. The legislation under challenge was in that view not a
Validation Act as it purported to be but an enactment that
regularised the appointment of graduate Stipendiary
Engineers working as ad hoc Assistant Engineers as
Assistant Engineers. Reliance upon the decision of this Court
in Satchidananda Mishra v. State of Orissa and Ors.
(2004) 8 SCC 599 is, in our opinion, of no assistance to
the respondents. In Satchdinanda’s case (supra) the High
Court had struck down the validation act which order was
confirmed by this Court in appeal. What is significant,
however, is that while affirming the view taken by the High
Court that the validation law was not constitutionally sound,
this Court proceeded on the assumption that the legislation
with which it was dealing with was a validation act in the
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Page 33
true sense. It was on that assumption that this Court looked
into the invalidity and held that the validation act did
nothing except validating the appointments without
removing the basis on which such appointments could be
invalidated. We have not proceeded on any such assumption
in the instant case especially because learned counsel for
some of the parties have argued that the legislation under
challenge is not a Validation Enactment. The Enactment in
the case at hand deals with the law relating to regularisation
of incumbents holding public office on ad hoc or temporary
basis, much in the same way as regularisation of such
temporary appointments is ordered in terms of a scheme for
that purpose. The only difference is that while a
regularisation scheme can be framed by the Government in
exercise of its executive power, the regularisation ordered in
the case at hand is by way of a legislation. It is trite that
what could be achieved by the Government by exercise of its
executive power could certainly be achieved by legislation,
as indeed it has been achieved in the case at hand. Question
No.1 is answered accordingly.
33
Page 34
Re. Question No.2
34. A Constitution Bench of this Court in Secretary, State
of Karnataka and Ors. v. Umadevi (3) and Ors. (2006)
4 SCC 1 ruled that regularisation of illegal or irregularly
appointed persons could never be an alternative mode of
recruitment to public service. Such recruitments were, in
the opinion of this Court, in complete negation of the
guarantees contained in Articles 14 and 16 of the
Constitution. Having said so, this Court did not upset the
regularisations that had already taken place, regardless of
whether such regularisations related to illegal or irregular
appointments. The ratio of the decision in that sense was
prospective in its application, leaving untouched that which
had already happened before the pronouncement of that
decision. This is evident from the following passage
appearing in the decision:
“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.”
34
Page 35
35. The above is a significant feature of the pronouncement
of this Court in Umadevi’s case (supra). The second and
equally significant feature is the exception which this Court
made in para 53 of the decision permitting a one-time
exception for regularising services of such employees as had
been irregularly appointed and had served for ten years or
more. The State Government and its instrumentalities were
required to formulate schemes within a period of six months
from the date of the decision for regularisation of such
employees. This is evident from a reading of para 53 of the
decision which is reproduced in extenso:
“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 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
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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...”
(emphasis supplied)
36. Dr. Dhawan, learned senior counsel, appearing for the
appellants in some of these appeals argued, and in our
opinion rightly so, that both the aspects referred to above
bear considerable significance to the case at hand. He
submitted that regularisations granted by the State or its
instrumentalities given in regard to appointments that were
strictly speaking illegal had not been upset by this Court in
Umadevi’s case (supra). That being so, the impugned
Enactment by which the appointment of the appellants-
Stipendiary Engineers were regularised as Assistant
Engineers must also be treated to have been saved from the
rigour of the view taken in Umadevi’s case (supra). There
is merit in that contention. The decision in Umadevi’s case
(supra) stated the true legal position on the subject but
having regard to the fact that several earlier decisions of this
Court had sanctioned regularisation of those not regularly
appointed, this Court was of the view that upsetting such
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Page 37
regularisations would not only unsettle what stood settled
but also gravely prejudice those who are benefitted from
such orders of regularisation. There is no gainsaying that
most of such persons who entered the public service initially
without going through any open competitive selection
process would have lost by passage of time their prospects
of entering public service by legal course even if vacancies
were available for such appointments. In some of the
decisions the continuance of employees on ad hoc,
temporary or daily-wage basis for an indefinite period was
seen by this Court also to be a violation of the fundamental
right to life apart from being discriminatory. Considering the
magnitude of the problem that would arise if all such
appointments were to be unsettled, this Court in Umadevi’s
case (supra) left such regularisation alone and declared that
in the future such orders of appointments dehors rules
would not qualify for the grant of regularisation in public
employment.
37. Equally important is the fact that even after declaring
the true legal position on the subject and even after
deprecating the practice of appointing people by means
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Page 38
other than legitimate, this Court felt that those who had
served for ten years or so may be put to extreme hardship if
they were to be discharged from service and, therefore,
directed the formulation of a scheme for their regularisation.
This was no doubt a one-time measure, but so long as the
appointment sought to be regularised was not illegal, the
scheme envisaged by para 53 of the decision (supra)
extracted above permitted the State to regularise such
employees. Dr. Dhawan argued that the appellants-
Stipendiary Engineers had, by the time the decision in
Umadevi’s case (supra) was pronounced, qualified for the
benefit of a scheme of regularisation having put in ten years
as ad hoc Assistant Engineers and fifteen years if their
tenure was to be counted from the date of their employment
as Stipendiary Engineers. He contended that even in the
absence of a Validation Act, Stipendiary Engineers appointed
on ad hoc basis as Assistant Engineers, who had worked for
nearly ten years to the full satisfaction of the State
Government would have been entitled to regularisation of
their services in terms of any such scheme.
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Page 39
38. On behalf of the diploma holder Junior Engineers, it
was contended by Mr. Sisodia that the appointment of
Stipendiary degree holders as ad hoc Assistant Engineers
was not irregular but illegal. It was contended that
Stipendiary Engineers were appointed on ad hoc basis
without following the procedure permitted under the rules
which, inter alia, entitled the degree holder Junior Engineers
also to compete. He submitted that although diploma holder
Junior Engineers were not entitled to compete against the
vacancies on the direct recruitment quota in the cadre of
Assistant Engineers, yet they were entitled to argue that any
appointment to the cadre ought to be made in accordance
with the rules especially when regularisation of degree
holder Stipendiary Engineers would give them advantage in
seniority to the prejudice of the diploma holder Junior
Engineers who may at their own turn be promoted in the
cadre of Assistant Engineers. We have no hesitation in
rejecting that contention. Diploma holder Junior Engineers
were not, admittedly, eligible to be appointed as Assistant
Engineers in the direct recruitment quota. They could not
make a grievance against regularisation simply because of
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Page 40
the fact that those regularised may figure above them in
seniority. Seniority is an incident of appointment to the
cadre which must be regulated by the relevant rules. Any
possible prejudice to diploma holders in terms of seniority
would not, therefore, make the regularisation
unconstitutional or illegal and hence beyond the purview of
para 53 in Umadevi’s case (supra).
39. Mr. Patwalia, learned senior counsel appearing for the
degree holder Junior Engineers who were also appointed on
ad hoc basis as Assistant Engineers against 5% quota which
the Government resolution had provided for, argued that
although degree holder Junior Engineers are eligible for
appointment against the vacancies in direct recruits quota,
that opportunity was not available to his clients when the
degree holder Junior Engineers were appointed as Assistant
Engineers. He contended that Junior Engineer degree
holders who were appointed as ad hoc Assistant Engineers
against 5% quota reserved for them under the Government
resolution would have no objection to the regularisation
being upheld provided degree holder Junior Engineers who
had served for a relatively longer period as Assistant
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Page 41
Engineers on ad hoc basis were also given a similar
treatment. He submitted that the exclusion of degree holder
Junior Engineers from the legislative measure aimed at
regularising the Stipendiary degree holders was clearly
discriminatory and that the High Court was on that count
justified in holding that the Validation Act itself was ultra
vires. It was contended by Mr. Patwalia that even if the
legislature had restricted the benefit of regularisation to the
Stipendiary Engineers later appointed on ad hoc basis as
Assistant Engineers, there was no reason why this Court
could not extend the very same benefit to degree holder
engineers who had similarly worked for over 15 years.
40. The decision in Umadevi’s case (supra), as noticed
earlier, permitted regularisation of regular appointments and
not illegal appointments. Question, however, is whether the
appointments in the instant case could be described as
illegal and if they were not, whether the State could be
directed to regularise the services of the degree holder
Junior Engineers who have worked as ad hoc Assistant
Engineers for such a long period, not only on the analogy of
the legislative enactment for regularisation but also on the
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principle underlying para 53 of the decision in Umadevi’s
case (supra).
41. As to what would constitute an irregular appointment is
no longer res integra. The decision of this Court in State of
Karnataka v. M.L. Kesari and Ors. (2010) 9 SCC 247,
has examined that question and explained the principle
regarding regularisation as enunciated in Umadevi’s case
(supra). The decision in that case summed up the following
three essentials for regularisation (1) the employees worked
for ten years or more, (2) that they have so worked in a
duly sanctioned post without the benefit or protection of the
interim order of any court or tribunal and (3) they should
have possessed the minimum qualification stipulated for the
appointment. Subject to these three requirements being
satisfied, even if the appointment process did not involve
open competitive selection, the appointment would be
treated irregular and not illegal and thereby qualify for
regularisation. Para 7 in this regard is apposite and may be
extracted at this stage:
“7. It is evident from the above that there is an exception to the general principles against
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“regularisation” enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”
42. It is nobody’s case that the degree holder Junior
Engineers were not qualified for appointment as Assistant
Engineers as even they possess degrees from recognised
institutions. It is also nobody’s case that they were not
appointed against the sanctioned post. There was some
debate as to the actual number of vacancies available from
time to time but we have no hesitation in holding that the
appointments made were at all relevant points of time
against sanctioned posts. The information provided by Mr.
Nageshwar Rao, learned Additional Solicitor General,
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Page 44
appearing for the State of Orissa, in fact, suggests that the
number of vacancies was at all points of time more than the
number of appointments made on ad hoc basis. It is also
clear that each one of the degree holders has worked for
more than 10 years ever since his appointment as ad hoc
Assistant Engineer. It is in that view difficult to describe
these appointments of the Stipendiary Engineers on ad hoc
basis to be illegal so as to fall beyond the purview of the
scheme envisaged in Umadevi’s case (supra).
43. The upshot of the above discussion is that not only
because in Umadevi’s case (supra) this Court did not
disturb the appointments already made or regularisation
granted, but also because the decision itself permitted
regularisation in case of irregular appointments, the
legislative enactment granting such regularisation does not
call for interference at this late stage when those appointed
or regularised have already started retiring having served
their respective departments, in some cases for as long as
22 years.
44. We need to advert to one other aspect which bears
relevance to the issue whether regularisation under the
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Page 45
impugned Enactment is legally valid. The appointment
process of unemployed degree holders, as noticed earlier,
started with the resolution passed by the State Government
which envisaged appointments of such unemployed
Graduate Engineers as Stipendiaries on a consolidated
stipend of Rs.2,000/- p.m. The resolution further envisaged
their absorption in service after a period of two years. Not
only that, appointments as Stipendiary Engineers were made
on the basis of a selection process and on the basis of merit
no matter determined de hors the relevant rules which
provided for appointments to the cadre to be made only
through the Public Service Commission. A reference to the
Public Service Commission was no doubt considered
unnecessary but the fact remains that appointment of
unemployed degree holders as Stipendiary Engineers were
made pursuant to a notification by which everyone who was
unemployed and held an Engineering degree in any
discipline was free to make an application. A large number
of unemployed engineers responded to the notification
inviting applications out of whom nearly 932 were selected
by a Selection Committee constituted for the purpose. What
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Page 46
is significant is that the empanelment of the unemployed
degree holders for appointment as Stipendiaries did not
invite any criticism from any quarter either as to the method
of appointment or the fairness of the selection process. The
process of appointment was at no stage questioned before
the Court, a feature which is notable keeping in view the
number of people appointed/empanelled and a larger
number who were left out and who could have possibly
made a grievance if there was any. It is not, therefore,
wholly correct to suggest that the entry of the degree holder
Junior Engineers as Stipendiary Engineers and later as
Assistant Engineers was through “the backdoor”, an
expression very often used in service matters where
appointments are made de hors the rules. The process of
selection and appointments may not have been as per the
relevant rules as the same ought to have been, but it is far
from saying that there was complete arbitrariness in the
manner of such appointments so as to violate Articles 14
and 16 of the Constitution of India.
45. That apart the appointment of Stipendiary Engineers
was at the level of Junior Engineers although it was argued
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Page 47
on their behalf that they were discharging the functions of
Assistant Engineers from the date they were employed. In
the absence of any finding from the High Court on the
subject and in the absence of any cogent material before us
to support that claim, we find it difficult to hold that the
appointment of the Stipendiary Engineers was from the
beginning itself as Assistant Engineers. The fact that the
resolution of the State Government itself envisaged
appointment of Stipendiary Engineers as ad hoc Assistant
Engineers on the basis of performance makes it amply clear
that the Stipendiary Engineers were not treated as Assistant
Engineers for otherwise there would have been no question
of appointing them as Assistant Engineers on ad hoc or any
other basis. It is also noteworthy that the appointment of
the Stipendiary Engineers on ad hoc basis came pursuant to
the direction from the High Court which is yet another
reason why it is not open to the Stipendiary Engineers to
claim that they were at all points of time working as
Assistant Engineers. Having said that we cannot lose sight of
the fact that the appointment of graduate engineers as
Stipendiaries was on a clear representation that they would
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Page 48
be eventually absorbed in service as Assistant Engineers.
That representation is evident from the resolution of the
State Government where it stated:
“In all, therefore, 741 posts will be available for recruiting these Degree Engineers in the first instance. They may be designed as Junior Engineers or Stipendiary Engineers in the first phase. They may be paid salary in the scale of Junior Engineers or in a consolidated stipend of Rs.2,000/- per month. Absorption into regular posts may be done after two years on the basis of their performance.”
46. In the counter-affidavit filed by the State Government
before the High Court the State re-affirmed its commitment
to the appointment of Stipendiary Engineers as Assistant
Engineers on ad hoc basis.
47. In the circumstances and taking a holistic view of the
matter, it cannot be said that the appointment of
Stipendiary Engineers on ad hoc basis and their subsequent
regularisation came as a side wind or was inspired by any
political or other consideration. The Government, it appears,
was from the very beginning, keen to utilise the services of
unemployed Graduate Engineers selected on their merit by
the Selection Committee and, therefore, remained steadfast
in its efforts for achieving that purpose and in the process
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Page 49
going even to the extent of getting them regularised by a
legislative measure. Suffice it to say that the question
whether regularisation was justified cannot be viewed in
isolation or divorced from the context in which the same
arises.
48. We may now turn to the contention urged by Mr.
Patwalia, that the impugned Legislation was discriminatory
in as much as it granted regularisation to persons similarly
situated while denying such benefit to his client who not only
held a degree qualification like the Stipendiary Engineers but
were in terms of the Government resolution promoted as Ad
hoc Assistant Engineers against 5% quota reserved for
them. It was argued that State could not have classified ad
hoc Assistant Engineers who came from the Stipendiary
Engineers stream, on one hand, and those appointed as ad
hoc Assistant Engineers on account of their being in service
as Junior Engineers holding a degree qualification. The
degree holder Junior Engineers, it was contended, were in
comparison better entitled to regularisation as they had not
only the requisite qualification but had put in longer service
as ad hoc Assistant Engineers vis-a-vis their Stipendiary
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counterparts. Alternatively, it was contended that the degree
holder Junior Engineers who too had put in more than 15
years service, were entitled to a direction for their
regularisation as Assistant Engineers not only on account of
the length of service rendered by them but also on the
analogy of the legislative benefit extended to their
counterpart Stipendiaries.
49. The approach to be adopted and the principles
applicable to any forensic exercise aimed at examining the
validity of a legislation on the touchstone of Article 14 of the
Constitution have been long since settled by several
decisions of this Court. Restatement or repetition of those
principles was, therefore, considered platitudinous. The real
difficulty as often acknowledged by this Court lies not in
stating the principles applicable but in applying them to
varying fact situations that come up for consideration. Trite
it is to say at the outset that a piece of legislation carries
with it a presumption of constitutional validity. Also settled
by now is the principle that Article 14 does not forbid
reasonable classification. A classification is valid on the anvil
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Page 51
of Article 14, if the same is reasonable that is it is based on
a reasonable and rational differentia and has a nexus with
the object sought to be achieved. (See State of West
Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 and Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.
AIR 1958 SC 538). A comprehensive review of the law is,
in our opinion, unnecessary at this stage in view of the
Constitution Bench decision of this Court in Re: The Special
Courts Bill, 1978 (1979) 1 SCC 380 where this Court
undertook that exercise and noticed as many as thirteen
propositions that bear relevance to any forensic
determination of the validity of a law by reference to the
equality clause enshrined in Article 14 of the Constitution.
Some of those principles were stated by this Court in the
following words:
“xxx xxx xxx
(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
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(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
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(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned.
xxx xxx xxx
(11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. xxx xxx xxx”
50. Applying the above to the case at hand, the first and
foremost question would be whether the classification of ad
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hoc Assistant Engineers is reasonable, that there is a
reasonable differentia that distinguishes those grouped
together for the grant of the benefit from those left out and
if there is such a differentia, whether the classification has a
reasonable nexus with the object underlying the legislation.
51. The second and by no means less important is the
question whether the impugned legislation is ultra vires of
Article 14 because of under inclusion. That is because the
argument of the writ petitioners in substance is that the
legislation ought to have included even in-service Junior
Engineers degree holders working as Ad hoc Assistant
Engineers for the benefit of regularisation.
52. There is no difficulty in answering the first question.
We say so because the beneficiaries of the impugned
legislation constitute a class by themselves inasmuch as
they were un-employed degree holders appointed as
Stipendiary Engineers on a consolidated pay. The method of
their employment was also different inasmuch as although
they were selected on the basis of inter-se merit, the
process of selection itself was not conducted by the Public
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Service Commission. Their appointment as ad hoc Assistant
Engineers also came pursuant to a direction issued by the
High Court no matter the direction itself was based on a
resolution passed by the State Government that provided for
such appointments upon proof of satisfactory performance.
The object underlying the legislation evidently being to
ensure continued utilisation of the services of such
Stipendaries appointed on ad hoc basis as Assistant
Engineers, there was a reasonable nexus between the
classification and the object sought to be achieved. It is not
the case of writ petitioners that Stipendiary Engineers
appointed as ad hoc Assistant Engineers were left out of the
group for a hostile treatment by refusal of the benefit
extended to others similarly situated. What the writ
petitioners contend in support of their challenge to the
validity of the legislation is that since they were also
appointed on ad hoc basis though in a different way, the
legislation was bad for under inclusion. We shall presently
deal with the test applicable to cases where the challenge to
the legislation is founded on under inclusion but before we
do so, we need to dispel the impression that the writ
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petitioners were similarly situated as the Stipendiaries only
because they were also working as ad hoc Assistant
Engineers. There is no gainsaying that the legislation does
not aim at regularising all ad hoc Assistant Engineers
regardless of the circumstances in which such appointments
came about. If that were so, the writ petitioners could well
argue that since the object underlying the enactment is to
regularise all ad hoc Assistant Engineers, they could not be
left out without violating their fundamental rights under
Article 14 of the Constitution. The impugned legislation,
however, has limited its beneficence to ad hoc Assistant
Engineers who came in as Stipendiary Engineers pursuant to
a policy decision of the State Government that aimed at
utilising their services and dealing with the unemployment
problem in the State. That being the object, ad hoc Assistant
Engineers appointed by other modes or in circumstances
other than those in which Stipendiaries entered the service,
cannot cry foul or invite the wrath of Article 14 upon the
legislation. As a matter of fact, the State Government’s
resolve to give 5% vacancies to in service degree holder
Junior Engineers itself brought about a classification
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between Stipendiaries on one hand and the in-service Junior
Engineers on the other. The proposed reservation having run
into rough waters because of the opposition of the Orissa
Public Service Commission, the in-service Junior Engineer
writ petitioners before the High Court lost their fight for a
share in the higher cadre of Assistant Engineers based on
their higher qualification. Suffice it to say that Stipendiary
Engineers later appointed as ad hoc Assistant Engineers
were a class by themselves and any benefit to them under
the impugned Enactment could not be grudged by in-service
Junior Engineers no matter the latter had in anticipation of
the amendment to the recruitment rules also got appointed
as ad hoc Assistant Engineers.
53. Coming then to the question of “under inclusion” we
need to keep in mind that a challenge based on “under
inclusion” is not readily accepted by Courts. Constitution
Bench’s decision of this Court in State of Gujarat and Anr.
v. Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974)
4 SCC 656, dealt with the question of a classification which
was under inclusive and declared that having regard to the
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real difficulties under which legislatures operate, the Courts
have refused to strike down legislations on the ground that
they are under inclusive. The Court observed:
“55. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over- inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification.
56. The first question, therefore, is, whether the exclusion of establishments carrying on business or trade and employing less than 50 persons makes the classification under-inclusive, when it is seen that all factories employing 10 or 20 persons, as the case may be, have been included and that the purpose of the law is to get in unpaid accumulations for the welfare of the labour. Since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate - difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re- shape - and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under- inclusive classifications, stated that such legislation
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should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched.”
(emphasis supplied)
54. The above was followed by this Court in The
Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Girish Kumar Navalakha and Ors.
(1975) 4 SCC 754 where this Court held that some
sacrifice of absolute equality may be required in order that
legal system may preserve the flexibility to evolve new
solutions to social and economic problems. This Court said:
“8. Often times the courts hold that under- inclusion does not deny the equal protection of laws under Article 14. In strict theory, this involves an abandonment of the principle that classification must include all who are similarly situated with respect to the purpose. This under-inclusion is often explained by saying that the legislature is free to remedy parts of a mischief or to recognize degrees of evil and strike at the harm where it thinks it most acute.
xxxxxxxxxxxx
10. There are two main considerations to justify an under-inclusive classification. First, administrative necessity. Second, the legislature might not be fully convinced that the particular policy which it adopts will be fully successful or wise. Thus to demand application of the policy to all whom it might logically encompass would restrict the opportunity of a State to make experiment. These techniques would show
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that some sacrifice of absolute equality may be required in order that the legal system may preserve the flexibility to evolve new solutions to social and economic problems. The gradual and piecemeal change is often regarded as desirable and legitimate though in principle it is achieved at the cost of some equality. It would seem that in fiscal and regulatory matters the court not only entertains a greater presumption of constitutionality but also places the burden on the party challenging its validity to show that it has no reasonable basis for making the classification.”
55. The above decisions were followed in Ajoy Kumar
Banerjee and Ors. v. Union of India and Ors. (1984) 3
SCC 127 where this Court observed:
“...Article 14 does not prevent legislature from introducing a reform i.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification of selection can be sustained on historical reasons or reasons of administrative exigency or piecemeal method of introducing reforms. The law need not apply to all the persons in the sense of having a universal application to all persons. A law can be sustained if it deals equally with the people of well-defined class-employees of insurance companies as such and such a law is not open to the charge of denial of equal protection on the ground that it had no application to other persons.”
56. We have in the light of the above no hesitation in
holding that the legislation under challenge does not suffer
from any constitutional infirmity and that the High Court was
in error in having struck it down.
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57. Having said that we are of the opinion that even when
the challenge to the constitutional validity of the impugned
enactment fails, the degree holder Junior Engineers
currently working as ad hoc Assistant Engineers are entitled
to the relief of regularisation in service, having regard to the
fact that they have rendered long years of service as
Assistant Engineers on ad hoc basis for 17 to 18 years in
some cases. While it is true that those in service degree
holders working as Junior Engineers were not the
beneficiaries of the legislation under challenge, the fact
remains, that they were eligible for appointment as Assistant
Engineers on account of their being degree holders. It is also
not in dispute that they were appointed against substantive
vacancies in the cadre of Assistant Engineers no matter by
utilizing the direct recruit quota. Even in the case of
Stipendiary Engineers the vacancies were utilized out of the
67% quota meant for direct recruitment. What is, however,
significant is that the utilization of the quota reserved for
direct recruitment for appointing Stipendiary and Junior
Engineers as Assistant Engineers has not been assailed
either before the High Court or before us. On the contrary
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the contention urged on behalf of Junior Engineers degree
holders who are still working as Junior Engineers was that
the remainder of vacancies comprising 5% of the cadre
strength should be utilised to appoint the eligible degree
holder Junior Engineers. We shall presently deal with that
contention. Suffice it to say for the present that the
appointments granted to degree holder Junior Engineers as
Assistant Engineers on ad hoc basis were pursuant to a
Government decision whereunder such degree holders as
were already in-service as Junior Engineers, were also given
an opening for upward movement. Appointment of such
degree holders was not grudged by their diploma holder
colleagues as no challenge was mounted by them to such
appointments ostensibly because degree holder Junior
Engineers were getting appointed without in the least
affecting the quota of 33% reserved for the promotees. In a
way the upward movement of the degree holders as
Assistant Engineers brightened the chances of the rest to get
promoted at their turn in the promotees quota. All told, the
Junior Engineers have served for almost a lifetime and held
substantive vacancies no matter on ad hoc basis. To revert
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them at this distant point of time would work hardship to
them. Besides, we cannot ignore the march of events
especially the fact that Stipendaries appointed at a later
point of time with the same qualifications and pursuant to
the very same Government policy as took shape for both the
categories, have been regularised by the Government
through the medium of a legislation. That this Court can
suitably mould the relief, was not in serious controversy
before us. In the circumstances, we hold the degree holder
Junior Engineers currently working as Assistant Engineers on
ad hoc basis writ petitioners in the High Court entitled to the
relief of regularisation with effect from the same date as the
Validation Act granted such regularisation to the Stipendiary
Engineers.
58. We shall advert to the question of inter se seniority
between the two categories while we take up question No.3.
But before we turn to question No.3 we need to briefly deal
with the contention urged on behalf of some of the degree
holder Junior Engineers represented by Mr. Dholakia who
contended that since the Government resolution had
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provided for 5% quota for degree holder Junior Engineers
the Government was duty bound to make appointments
against that quota. It was urged that the cadre strength of
the Assistant Engineers had not been presently determined
by the Government nor were the figures given by the State
Government accurate. The number of Junior Engineers who
should have got appointed against 5% quota reserved for
them would have been large, agreed Mr. Dholakia. To the
extent of shortfall the State Government was bound to
continue the process of appointment, contended the learned
counsel.
59. There is, in our opinion, no merit in the submissions
urged by Mr. Dholakia and by learned counsel for some of
the interveners. We say so because the quota which the
Government resolution proposed to carve out never
fructified by a corresponding amendment of the Service
Rules. As noticed in the earlier part of this order, the Orissa
Public Service Commission was not agreeable to the
reservation of a quota for the subordinate engineering
service members who held a degree qualification. No such
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classification was, therefore, made or could be made by the
Government, nor was the Government resolution translated
into a binding rule that could be enforced by a Court of law.
Assuming, therefore, that on a true and proper
determination of the posts comprising the cadre strength of
Assistant Engineers, some more vacancies could fall in the
5% quota proposed to be reserved for the degree holder
Junior Engineers and no mandamus could be issued for filing
up such vacancies. It is trite that existence of an enforceable
right and a corresponding obligation is a condition precedent
for the issue of a mandamus. We fail to locate any such right
in favour of the writ petitioner degree holders who are still
holding posts as Junior Engineers. They will have, therefore,
to wait for their turn for promotion against the 33% quota
reserved for them along with their diploma holder
colleagues. We hardly need to emphasise that those
appointed against 5% quota may also have had no such
right, but since they have worked in the higher cadre for a
long period and discharged duties attached to the posts of
Assistant Engineers with the benefits attached thereto, their
regularisation comes on a totally different juristic basis than
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the one sought to be urged on behalf of those who were left
out. Appointments as Assistant Engineers were from out of
Junior Engineers made strictly according to seniority. The
fortuitous circumstance under which the appointments did
not extend to the full quota of 5% would make no material
difference when it comes to finding out whether the Junior
Engineers can claim an enforceable legal right.
60. Question No.2 is answered accordingly.
Re. Question No.3
61. Section 3(2) of the impugned legislation deals entirely
with the inter se seniority of Assistant Engineers whose
appointments are validated/regularised by the said
enactment and stipulates that such inter se seniority shall be
determined according to the dates of appointment of the
officers concerned on ad hoc basis as mentioned in the
schedule. It further stipulates that all those regularised
under the legislation shall be enbloc junior to the Assistant
Engineers of that year appointed to the service in their
respective discipline in their cadre in accordance with the
provisions of the Recruitment Rules. Sub-section (3) of
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Section 3 makes the ad hoc service rendered by such
Assistant Engineers count for the purpose of their pension,
leave and increments and for no other purpose.
62. Appearing for the State of Orissa, Mr. Nageshwar Rao
contended that grant of seniority to ad hoc Assistant
Engineers regularised under the legislation w.e.f. the date
they were appointed on ad hoc basis was legally permissible
especially when the ad hoc appointments had continued
without any interruption till their regularisation. Reliance in
support was placed by Mr. Rao upon a Constitution Bench
decision of this Court in Direct Recruit Class II
Engineering Officers’ Association v. State of
Maharashtra and Ors. (1990) 2 SCC 715. The case at
hand, according to the learned counsel, fell under
proposition (B) formulated in the said decision. Grant of
seniority from the date of initial appointments did not,
therefore, suffer from any constitutional or other infirmity to
warrant interference from this Court.
63. Mr. Sisodia appearing for some of the parties, on the
other hand, contended that seniority could be granted only
from the date of regularisation under the enactment and not
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earlier. Learned counsel for some of the interveners adopted
that contention, including Ms. Aishwarya appearing for some
of the diploma holder Junior Engineers and urged that ad
hoc service rendered by the Engineers appointed otherwise
than in accordance with the rules could not count for the
purposes of seniority and that even if Section 3(1) of the
Validation Act was held to be valid, Section 3(2) which gave
retrospective seniority from the date they were first
appointed on ad hoc basis must go.
64. In Direct Recruit’s case (supra) this Court reviewed
and summed up the law on the subject by formulating as
many as 11 propositions out of which propositions A and B
stated in Para 47 of the decision in the following words are
relevant for our purposes:
“47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly
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till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.”
65. There was some debate at the bar whether the case at
hand is covered by corollary to proposition A or by
proposition B (supra). But having given our consideration to
the submissions at the Bar we are inclined to agree with Mr.
Rao’s submission that the case at hand is more
appropriately covered by proposition B extracted above. We
say so because the initial appointment of ad hoc Assistant
Engineers in the instant case was not made by following the
procedure laid down by the Rules. Even so, the appointees
had continued in the posts uninterruptedly till the Validation
Act regularised their service. There is, in the light of those
two significant aspects, no room for holding that grant of
seniority and other benefits referred to in Section 3(3) of the
impugned Act were legally impermissible or violated any
vested right of the in service Assistant Engineers appointed
from any other source. Proposition A, in our opinion, deals
with a situation where an incumbent is appointed to a post
according to the rules but the question that arises for
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determination is whether his seniority should be counted
from the date of his appointment or from the date of his
confirmation in the said service. The corollary under
proposition A, in our opinion, deals with an entirely different
situation, namely, where the appointment is ad hoc and
made as a stop-gap-arrangement in which case officiation in
such post cannot be taken into consideration for seniority.
Be that as it may, as between proposition A and B the case
at hand falls more accurately under proposition B which
permits grant of seniority w.e.f. the date the appointees first
started officiating followed by the regularisation of their
service as in the case at hand.
66. We may also refer to a three-Judge Bench of this Court
in Union of India and Anr. etc. etc. v. Lalita S. Rao and
Ors. etc. etc. (2001) 5 SCC 384 where doctors appointed
by Railway Administration on ad hoc basis had been upon
regularisation granted seniority from the date of their ad hoc
appointment. This Court held that proposition B stated in
Direct Recruits case (supra) permitted such seniority being
granted. This Court observed:
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“Obviously the Court had in mind the principle B evolved by the Constitution Bench in the Direct Recruit Engineering Officers Association case (supra). If the initial appointment had not been made in accordance with the prescribed procedure laid down by the Recruitment Rules, and yet the appointees Medical Officers were allowed to continue in the post uninterruptedly and then they appeared at the selection test conducted by the Union Public Service Commission, and on being selected their services stood regularised then there would be no justification in not applying the principle 'B' of the Direct Recruit Class II Engineering Officers Association case (supra) and denying the period of officiating services for being counted for the purpose of seniority.”
67. Reference may also be made to the decision of this
Court in State of Andhra Pradesh & Anr. V. K.S.
Muralidhar & Ors. (1992) 2 SCC 241 where the
Government of India gave weightage to service rendered by
employees prior to their regularisation. The dispute in that
case was regarding inter se seniority between the
Supervisors who were upgraded as Junior Engineers and the
degree holders who were directly appointed as Junior
Engineers. This Court held that the State Government had
as a matter of policy given weightage to both the categories
and that there was nothing unreasonable in giving a limited
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benefit or weightage to the upgraded Supervisors in the light
of their experience. This Court said:
“The question to be considered is from which date the weightage of four years' service should be given to the upgraded Junior Engineers namely the Supervisors. Is it the date of acquiring the degree qualification or the date of their appointment? Having given our earnest consideration and for the reasons stated above we hold that the weightage can be given only from the date of their appointment.
The Tribunal in the course of its order, however, observed that in accordance with the existing rules the appointments of these Junior Engineers from the notional date have to be cleared by the Public Service Commission and the appointments cannot be held to be regular appointments as long as they are not approved by the Public Service Commission.
Xx xx xx
To sum up, our conclusions are as under:
(i) The weightage of four years in respect of upgraded Junior Engineers as provided in G.O. Ms. No. 559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification;
(ii) On the basis of that notional date, their inter-se seniority has to be fixed;
(iii) The regularisation of the degree-holder Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT;
(iv) The Government shall prepare a common seniority list of the degree-holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions. Promotions, if any, already given shall be reviewed and readjusted in accordance with the said seniority list; and
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(v) The approval of the Public Service Commission in respect of these appointments and their seniority thus fixed need not be sought at this distance of time.”
(emphasis supplied)
68. In Narender Chadha & Ors. v. Union of India &
Ors. (1986) 2 SCC 157, this Court was dealing with a
somewhat similar fact situation. The petitioners in that case
were not promoted by following the actual procedure
prescribed by the relevant Service Rules even though the
appointments were made in the name of the President by
the competent authority. They had based on such
appointments, continuously held the post to which they were
appointed and received salary and allowances payable to
incumbent of such post. The incumbents were entered in the
direct line of their promotion. The question, however, was
whether it would be just and proper to hold that such
promotees had no right to the post held by them for 15-20
years and could be reverted unceremoniously or treated as
persons not belonging to the service at all. Repelling the
argument that such service would not count for the purposes
of seniority, this Court observed:
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“ It would be unjust to hold at this distance of time that on the facts and in the circumstances of this case the petitioners are not holding the posts n Grade IV. The above contention is therefore without sub-stance. But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reversed from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not: belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results. In the instant case the Government has also not expressed its unwillingness to continue them in the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts. The only question agitated before us relates to the seniority as between the petitioners and the direct recruits and such a question can arise only where there is no dispute regarding the entry of the officers concerned into the same Grade. In the instant case there is no impediment even under the Rules to treat these petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in the Rule 16 thereof. Rule 16 as it stood at the relevant time read as follows :
16. The Government may relax the provisions of these rules to such extent as may be necessary to ensure satisfactory working or remove in- equitable results.”
(emphasis supplied)
69. The ratio of the decision in the above case was not
faulted by the Constitution Bench of this Court in Direct
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Recruit’s case (supra). As a matter of fact the Court
approved the said decision holding that there was force in
the view taken by this Court in that case. This Court
observed:
“In Narender Chadha v. Union of India the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.”
70. In the light of what we have said above, we do not see
any illegality or constitutional infirmity in the provisions of
Section 3(2) or 3(3) of the impugned legislation.
71. Having said so, there is no reason why a similar
direction regarding the writ-petitioners degree holder Junior
Engineers who have been held by us to be entitled to
regularisation on account of their length of service should
also not be given a similar benefit. We must mention to the
credit of Dr. Dhawan, appearing for the Stipendiary
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Engineers who have been regularised under the provisions of
the Legislation that such Stipendiary-ad hoc Assistant
Engineers cannot, according to the learned counsel, have
any objection to the degree holder Junior Engineers
currently working as Assistant Engineers on ad hoc basis
being regularised in service or being given seniority from the
date they were first appointed. It was also conceded that
Stipendiary Engineers all of whom were appointed after the
appointment of the Junior Engineers would enbloc rank
junior to such ad hoc Assistant Engineers from out of degree
holder Junior Engineers. But all such regularised Assistant
Engineers from Stipendiary Stream and from Junior
Engineers category would together rank below the promotee
Assistant Engineers.
72. Question No.3 is answered accordingly.
73. Several intervention applications have been filed in
these appeals to which we may briefly refer at this stage. In
IA No.5 of 2012 filed in Civil Appeal No.8324 of 2009, the
interveners have sought permission for the State
Government to complete the re-structuring process and to
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fill up the vacancies subject to a final decision of this Court
in these appeals. In IA Nos.6 and 7 of 2012 also filed in Civil
Appeal No.8324 of 2009, the interveners seek a direction to
the State of Orissa to upgrade the post of Assistant
Engineers Class II (Group B) to Assistant Executive Engineer
Junior Class I (Group A) and to make such up-gradation
retrospective w.e.f. 28th February, 2009. IA No.8 of 2012
has been filed in the very same appeal in which the
interveners have sought a direction against the State of
Orissa to give effect to the up-gradation of posts considering
inter se seniority of in-service degree holder Junior
Engineers who are otherwise eligible for appointment
against the vacancies reserved for direct recruits. In IA No.3
of 2009 in SLP No.29765 of 2008, the interveners seek
permission to support the judgment of the High Court
whereby the impugned legislation has been struck down as
unconstitutional. Similarly, IAs filed in some other appeals
either seek to support the judgment passed by the High
Court or pray for permission to argue the case on behalf of
one or the other party.
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74. We have heard counsel for the interveners also at some
length. We, however, do not consider it necessary to enlarge
the scope of these proceedings by examining issues that are
not directly related to the controversy at hand. Three
questions that have primarily engaged our attention in these
petitions relate to (a) the validity of the impugned Validation
Act. (b) regularization of in-service degree holder Junior
Engineers who have been working for considerable length of
time as Assistant Engineers on ad hoc basis and (c) the
seniority position of those being regularized either under the
Validation Act or in terms of the directions being issued by
us in these appeals. Other issues which the interveners seek
to raise especially issues regarding grant or denial of the
benefit of reservation to SC and ST candidates, have not
been touched by us in these proceedings for want of proper
pleadings on the subject and also for want of any
pronouncement by the High Court on the said questions. In
the circumstances, this order shall be taken to have settled
only what we have specifically dealt with or what would
logically follow therefrom. Any question whether the same
relates to inter se seniority of those regularized under the
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legislation or by reason of the directions which we propose
to issue or issues relating to the benefit of seniority on the
basis of roster points if any prescribed for that purpose are
left open and may be agitated by the aggrieved party before
an appropriate forum in appropriate proceedings. To the
extent any such questions or aspects have not been dealt
with by us in this order, may be dealt with in any such
proceedings. Beyond that we do not consider it proper or
necessary to say anything at this stage.
75. In the result we pass the following order:
(1) Civil Appeals No.8324-8331 of 2009 filed by the State
of Orissa and Civil Appeals No.8322-8323 of 2009 and
1940 of 2010 filed by the Stipendiary Engineers are
allowed and the impugned judgment and order dated
15th October, 2008 passed by the High Court of Orissa
set aside.
(2) Writ Petitions No.9514/2003, 12494/2005,
12495/2005, 12627/2005, 12706/2006 and 8630/2006
filed by the degree holders Junior Engineers working as
Assistant Engineers on ad hoc basis are also allowed
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but only to the limited extent that the services of the
writ-petitioners and all those who are similarly situated
and promoted as ad hoc Assistant Engineers against
the proposed 5% quota reserved for in-service Junior
Engineers degree holder shall stand regularized w.e.f.
the date Orissa Service of Engineers (Validation of
Appointment) Act, 2002 came into force. We further
direct that such in-service degree holder Junior
Engineers promoted as Assistant Engineers on ad hoc
basis shall be placed below the promotees and above
the Stipendiary Engineers regularized in terms of the
impugned legislation. The inter se seniority of the
Stipendiary Engineers regularized as Assistant
Engineers under the impugned Legislation and Junior
Engineer degree holders regularized in terms of this
order shall be determined on the basis of their date of
first appointment as Assistant Engineers on ad hoc
basis.
(3) Civil Appeal No.1768 of 2006 is resultantly allowed, the
judgment and order impugned therein set aside and
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Writ Petitions OJC Nos.6354-55 of 1999 disposed of in
terms of the above direction.
(4) Intervention applications filed in these appeals are also
disposed of in the light of observations made in Para 74
of this judgment.
(5) Parties are left to bear their own costs.
……………………….……….…..…J. (T.S. THAKUR)
…………..…………………..…..…J. (VIKRAMAJIT SEN)
New Delhi February 19, 2014
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