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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2835   OF 2015 (Arising out of SLP (Civil) NO. 20169/2013)

 AMARKANT RAI         ... APPELLANT (S)      VERSUS

STATE OF BIHAR & ORS.        ….RESPONDENT (S)

J U D G M E N T

R. BANUMATHI,J.

Leave granted.

2. This  appeal  by  special  leave  arises  out  of  the  order  

dated 20.02.2013  passed  by  the  High  Court  of  Judicature  at  

Patna in LPA No.1312 of 2012 which was dismissed in limine by  

the High Court, whereby the order of the learned Single Judge  

was confirmed observing that the appointment of the appellant  

as daily wages was not by the competent authority and that he  

is not entitled for regularization.

3. Brief facts which led to the filing of this appeal are as  

follows:-  The appellant was appointed temporarily in Class IV  

post  of  Night  Guard,  on daily  wages vide Office Order  dated  

04.06.1983 issued by Principal,  Ramashray Baleshwar College  

(for short “College”), Dalsang Sarai, affiliated to Lalit Narayan

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Mithila University(for  short “University”),  Bihar.  The University  

vide letter dated 04.07.1985 took a decision to regularize the  

persons who worked for more than 240 days, and as per the  

letter  dated  30.03.1987,  as  per  which  employees  who  have  

been working for a period for more than one year need to be  

regularized.  Thereafter,  the  Additional  Commissioner-cum-  

Secretary,  Bihar  passed  a  settlement  dated  11.07.1989  and  

forwarded a copy of the same to the Vice Chancellors of the  

Universities,  wherein  it  was  stated  that  the  services  of  

employees working in educational institutions as per the staff  

pattern, can be regularized, further imposing a condition that  

new appointments against the vacancies present and in future  

should  not  at  all  be  done.   Principal,  Ramashray  Baleshwar  

College requested the Registrar of the University to regularize  

the services of appellant vide letter dated 07.10.1993; but the  

Registrar passed an Order of termination dated 01.03.2001.  A  

Writ  Petition  No.9809/1998  was  preferred  by  few  similarly  

placed daily wagers in the High Court.   As per the directions  

issued by the High Court, the Registrar of the University vide  

letter dated 22.12.2001 allowed all the daily wagers to resume  

their  jobs  from 03.01.2002 and the  appellant  also  joined his

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duties.

4. The  Principal  of  the  College  again  vide  letters  dated  

08.01.2002 and 12.07.2004 recommended for absorption of the  

appellant against the two vacant posts.   In pursuance of the  

High  Court  Order  in  CWJC  No.  5774/2000,  he  was  given  

opportunity  to  appear  before  the  Three  Members  Committee  

constituted by the Vice-Chancellor for consideration of his claim  

for regularization of services, but the same was rejected as it  

was not in consonance with the Recruitment Rules laid down by  

the  Constitution  Bench  judgment  in  Secretary,  State  of  

Karnataka & Ors. v. Umadevi (3) & Ors., (2006) 4 SCC 1 and the  

same was informed to the appellant by the Registrar vide letter  

dated 25.11.2007.  Appellant approached the High Court by way  

of Writ Petition (civil) No. 545/2009 and the same was dismissed  

vide Order dated 26.8.2011 observing that it is a clear case of  

violation  of  Section  10(6)  and  Section  35  of  the  Bihar  State  

Universities  Act,  1976  and  there  is  no  illegality  in  the  order  

passed by the Three Members Committee.  Aggrieved by it, the  

appellant preferred LPA No. 1312/2012 which was dismissed in  

limine confirming the order dated 26.08.2011.  In this appeal,  

the appellant seeks to assail the above order.

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5. Learned counsel  for  the  appellant  contended that  the  

appellant served on the post for 29 years on daily wages and  

even as per the decision in para 53 in Umadevi’s case (supra),  

irregular appointment of employees who have worked for more  

than  10  years  should  be  considered  on  merits.   It  was  

contended that the appellant has been working in a sanctioned  

post and his appointment was not illegal but in the facts and  

circumstances  of  the  case,  his  appointment  could  only  be  

irregular  appointment  entitling  him  for  regularization.  It  was  

submitted that Three Members Committee as well as the High  

Court did not keep in view that the case of the appellant was  

recommended for regularization.

6. Per contra, learned counsel for respondents No. 1 to 3  

contended that Principal of the College has no authority to make  

any  appointment  on  any  post  on  daily  wages  as  per  the  

legislative  scheme  under  Section  10(6)  of  Bihar  State  

Universities Act, 1976.  It was submitted that Three Members  

Committee scrutinized the documents available on record and  

rejected claim of the appellant for regularization and the High  

Court  rightly  dismissed  the  claim  of  the  appellant  for  

regularization.

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7. Reiterating  the  submission,  learned  counsel  for  

respondent Nos. 4 to 6 submitted that a principal of the college  

was  not  empowered  under  the  Universities  Laws  to  make  

appointment to Class III or Class IV and that the appellant was  

not  appointed  against  any  sanctioned  post  and  therefore  he  

cannot seek for regularization.

8. We have carefully considered the rival contentions and  

also perused the impugned order and material on record.

9. Insofar  as  contention  of  the  respondent  that  the  

appointment of the appellant was made by the principal who is  

not a competent authority to make such appointment and is in  

violation  of  the  Bihar  State  Universities  Act  and  hence  the  

appointment is illegal appointment, it is pertinent to note that  

the appointment of the appellant as Night Guard was done out  

of necessity and concern for the college.  As noticed earlier, the  

Principal  of  the  college  vide  letters  dated  11.03.1988,  

07.10.1993, 08.01.2002 and 12.07.2004 recommended the case  

of the appellant for regularization on the post of Night Guard  

and  the  University  was  thus  well  acquainted  with  the  

appointment of the appellant by the then principal even though  

Principal  was  not  a  competent  authority  to  make  such

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appointments and thus the appointment of the appellant and  

other employees was brought to the notice of the University in  

1988.  In spite of that, the process for termination was initiated  

only in the year 2001 and the appellant was reinstated w.e.f.  

3.01.2002 and was removed from services finally in the year  

2007.   As  rightly  contended  by  the  learned  counsel  for  the  

appellant, for a considerable time, University never raised the  

issue that the appointment of the appellant by the Principal is  

ultra vires the rules of BSU Act.  Having regard to the various  

communications between the Principal and the University and  

also the education authorities and the facts of the case, in our  

view, the appointment of the appellant cannot be termed to be  

illegal,  but it can only be termed as irregular.

10. Human  Resources  Development,  Department  of  Bihar  

Government, vide its letter dated 11.07.1989 intimated to the  

Registrar of all the Colleges that as per the settlement dated  

26.04.1989  held  between  Bihar  State  University  and  College  

Employees Federation and the Government it was agreed that  

the  services  of  the  employees  working  in  the  education  

institutions on the basis of prescribed staffing pattern are to be  

regularized.  As per sanctioned staffing pattern, in Ramashray

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Baleshwar  College,  there  were  two  vacant  posts  of  Class  IV  

employees and the appellant was appointed against the same.  

Further,  Resolution  No.  989  dated  10.05.1991  issued  by  the  

Human  Resources  Development  Department  provides  that  

employees  working  upto  10.5.1986 shall  be  adjusted  against  

the vacancies  arising in  future.   Although,  the appellant  was  

appointed  in  1983  temporarily  on  the  post  that  was  not  

sanctioned  by  the  State  Government,  as  per  the  above  

communication of Human Resources Development Department,  

it  is  evident  that  the  State  Government  issued  orders  to  

regularise  the  services  of  the  employees  who  worked  upto  

10.5.1986.   In  our  considered view,  the High Court  ought  to  

have examined the  case  of  the  appellant  in  the  light  of  the  

various communications issued by the State Government and in  

the  light  of  the  circular,  the  appellant  is  eligible  for  

consideration for regularization.

11. As noticed earlier,  the case of  the appellant  was  

referred  to  Three  Members  Committee  and  Three  Members  

Committee rejected the claim of the appellant declaring that his  

appointment is not in consonance with the ratio of the decision  

laid  down  by  this  Court  in  Umadevi’s case  (supra).   In

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Umadevi’s case,  even  though  this  Court  has  held  that  the  

appointments made against temporary or ad-hoc are not to be  

regularized,  in  para  53  of  the  judgment,  it  provided  that  

irregular  appointment  of  duly  qualified  persons  in  duly  

sanctioned posts who have worked for 10 years or more can be  

considered on merits and steps to be taken one time measure  

to regularize them.  In para 53, the Court observed as under:-

“53. One aspect needs to be clarified. There may be cases  where irregular appointments (not illegal appointments) as  explained in S.V. Narayanappa,  R.N. Nanjundappa and B.N.  Nagarajan and  referred  to  in  para  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  the  courts  or  of  tribunals.  The  question  of  regularisation 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 abovereferred 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 regularise 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  the  courts  or  of  tribunals  and  should  further ensure that regular recruitments are undertaken to  fill  those vacant sanctioned posts that require to be filled  up, in cases where temporary employees or daily wagers  are being now employed. The process must be set in motion  within  six  months  from  this  date.  We  also  clarify  that  regularisation, if any already made, but not sub judice, need  not be reopened based on this judgment, but there should  be no further bypassing of  the constitutional  requirement  and  regularising  or  making  permanent,  those  not  duly  appointed as per the constitutional scheme.”

The objective behind the exception carved out in this case was  

to  permit  regularization  of  such  appointments,  which  are

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irregular but not illegal, and to ensure security of employment  

of those persons who served the State Government and their  

instrumentalities for more than ten years.

12. Elaborating upon the principles laid down in  Umadevi’s  

case  (supra)  and  explaining  the  difference  between  irregular  

and illegal appointments in  State of Karnataka & Ors. v. M.L.   

Kesari & Ors., (2010) 9 SCC 247, this Court held as under:

“7. It is evident from the above that there is an exception  to the general principles against “regularisation” enunciated  in Umadevi (3) , 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.”

13. Applying the ratio of Umadevi’s case, this Court in Nihal  

Singh  &  Ors.  v.  State  of  Punjab  &  Ors., (2013)  14  SCC  65  

directed  the  absorption  of  the  Special  Police  Officers  in  the  

services of the State of Punjab holding as under:

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“35. Therefore, it is clear that the existence of the need for  creation of the posts is a relevant factor with reference to  which the executive government is required to take rational  decision  based  on  relevant  consideration.  In  our  opinion,  when the facts such as the ones obtaining in the instant  case  demonstrate  that  there  is  need  for  the  creation  of  posts, the failure of the executive government to apply its  mind and take a decision to create posts or stop extracting  work  from  persons  such  as  the  appellants  herein  for  decades together itself would be arbitrary action (inaction)  on the part of the State. 36. The other factor which the State is required to keep in  mind  while  creating  or  abolishing  posts  is  the  financial  implications  involved  in  such  a  decision.  The  creation  of  posts necessarily means additional financial burden on the  exchequer of the State. Depending upon the priorities of the  State, the allocation of the finances is no doubt exclusively  within the domain of the legislature. However in the instant  case creation of new posts would not create any additional  financial burden to the State as the various banks at whose  disposal  the  services  of  each  of  the  appellants  is  made  available have agreed to bear the burden. If absorbing the  appellants  into  the  services  of  the  State  and  providing  benefits  on  a  par  with  the  police  officers  of  similar  rank  employed  by  the  State  results  in  further  financial  commitment it is always open for the State to demand the  banks to meet such additional burden. Apparently no such  demand has ever been made by the State. The result is— the  various  banks  which  avail  the  services  of  these  appellants enjoy the supply of cheap labour over a period of  decades. It is also pertinent to notice that these banks are  public sector banks.”

14. In  our  view,  the  exception  carved  out  in  para  53  of  

Umadevi is applicable to the facts of the present case.  There is  

no  material  placed  on  record  by  the  respondents  that  the  

appellant has been lacking any qualification or bear any blemish  

record  during  his  employment  for  over  two  decades.   It  is  

pertinent to note that services of similarly situated persons on  

daily wages for  regularization viz.  one Yatindra Kumar Mishra

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who was appointed on daily wages on the post of Clerk was  

regularized w.e.f. 1987. The appellant although initially working  

against  unsanctioned  post,  the  appellant  was  working  

continuously  since  03.1.2002 against  sanctioned post.   Since  

there  is  no  material  placed  on  record  regarding  the  details  

whether  any  other  night  guard  was  appointed  against  the  

sanctioned post, in the facts and circumstances of the case,  we  

are  inclined  to  award  monetary  benefits  be  paid  from  

01.01.2010.

15. Considering the facts and circumstances of the case that  

the appellant has served the University for more than 29 years  

on the post of Night Guard and that he has served the College  

on daily  wages,  in  the interest  of  justice,  the authorities  are  

directed  to  regularize  the  services  of  the  appellant  

retrospectively w.e.f. 03.01.2002 (the date on which he rejoined  

the post as per direction of Registrar).

16. The impugned order of the High Court in LPA No.1312 of  

2012 dated 20.02.2013 is set aside and this appeal is allowed.  

The authorities are directed to notionally regularize the services  

of the appellant retrospectively w.e.f. 03.01.2002, or the date on  

which the post became vacant whichever is later and without

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monetary benefit for the above period.  However, the appellant  

shall  be entitled to monetary benefits from 01.01.2010.  The  

period from 03.01.2002 shall be taken for continuity of service  

and pensionary benefits.

17. The appeal is allowed in terms of the above.   No order  

as to costs.

       ......... ..…………………..J.      (V.GOPALA GOWDA)

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

New Delhi, March 13, 2015