STATE OF MAHARASHTRA Vs ANITA & ANR ETC.
Bench: T.S. THAKUR,R. BANUMATHI,UDAY UMESH LALIT
Case number: C.A. No.-006132-006133 / 2016
Diary number: 32974 / 2012
Advocates: NISHANT RAMAKANTRAO KATNESHWARKAR Vs
NISHANT RAMAKANTRAO KATNESHWARKAR
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6132-33 OF 2016 (Arising out of SLP(C) Nos. 34788-34789 of 2012)
STATE OF MAHARASHTRA & ORS. ..Appellants
Versus
ANITA & ANR ETC.. ...Respondents
With
CIVIL APPEAL NOS. 6134, 6135-36, 6137,6138,6139,6140,6141-42,6143,6144,6145,6146,6147-48,6149,
6150,6151,6152-53,6154,6155,6156,6157 OF 2016 (Arising out of SLP(C) Nos. 34792/12, 35146-35147/12, 36965/12,
36967/12, 36968/12, 38636/12, 39133-39134/12, 4482/13, 4484/13, 4588/13, 4592/13, 4594-4595/13, 8580/13, 11864/13, 17329/13, 17331-17332/13, 36070/13, 9282/14, 13647/14 and 14974/16)
J U D G M E N T
R. BANUMATHI, J.
Delay condoned. Leave granted.
2. This batch of appeals has been filed against the order dated
28.03.2012 and other impugned orders passed by the High Court of
Bombay Bench at Aurangabad whereby 471 posts of Legal Advisors, Law
Officers and Law Instructors created by Government Resolutions dated
21.08.2006 and 15.09.2006 for appointment on contractual basis under
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the Director General of Police and Commissioner of Police, Greater
Mumbai, were held to be permanent in nature. For convenience, appeals
arising out of SLP(C) No.34788-34789 of 2012 are taken as the lead case.
3. State of Maharashtra vide Government Resolution dated
21.08.2006 approved creation of 471 posts in various cadres including
Legal Advisors, Law Officers and Law Instructors under the establishment
of Director General of Police and Commissioner of Police, Greater Mumbai.
As per clause (3) of the said Government Resolution, the posts shall be
filled up on contractual basis as per the terms and conditions prescribed
by the Government. By a subsequent Resolution dated 15.09.2006, the
Government maintained that 471 posts created vide resolution dated
21.08.2006 shall be filled up on contractual basis by payment of
consolidated pay. As per the conditions of service laid down in the
Government Resolution dated 15.09.2006, the appointment was initially
for eleven months and with a provision of extension up to maximum of
three terms each term being of eleven months. After expiry of third term,
the candidates are required to face fresh selection process once again.
After the expiry of the term of respondents, their appointments
automatically came to an end. In pursuance of the expiry of terms of
respondents, the State issued fresh advertisements for recruitment of
Legal Advisors, Law Officers and Law Instructors on 05.12.2009,
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13.01.2010 etc.
4. On expiry of the contractual period and being aggrieved by
publication of fresh advertisement, the respondents approached the
Maharashtra Administrative Tribunal challenging the conditions in the
Government Resolutions dated 21.08.2006 and 15.09.2006, which laid
down that the appointment of the law officers/law instructors shall be
contractual, is arbitrary and that the respondents should have been
appointed on regular pay scale and not on consolidated pay. The tribunal
partly allowed the claim of the respondents and the tribunal struck down
those provisions by holding that clause (3) of the Government Resolution
dated 21.08.2006 and the clauses 'A', 'B', and 'C' in the Government
Resolution dated 15.9.2006 suffered from arbitrariness and
unreasonableness. However, no direction was issued by the tribunal
directing the State Government to regularise the respondents.
5. Aggrieved thereof, respondents filed writ petitions before the
High Court seeking for a direction to the State Government to regularise
their services. State Government also filed writ petition challenging the
order of the tribunal striking down the clauses in the said Government
Resolutions as arbitrary and for setting aside the order of the tribunal.
6. The High Court vide impugned judgment dismissed all the
writ petitions filed by the State Government as well as by the respondents.
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The High Court took the view that 471 posts created by the State
Government in various cadres are permanent posts and thus the
appointments thereon must also be permanent. However, considering the
fact that the appointment of the respondents were not made in regular
manner under the constitutional scheme, the High Court held that the
respondents/original applicants cannot claim permanency and/or
regularisation.
7. Being aggrieved, the State as well as the applicants have
preferred these appeals. Vide order dated 02.11.2012, this Court has
granted stay of operation of the impugned judgment dated 28.03.2012
passed by the High Court as well as the order dated 06.05.2010 passed by
the Maharashtra Administrative Tribunal, Aurangabad Bench and this
Court directed that the respondents be permitted to continue in service
until further orders. Similar orders came to be passed in other appeals
also. However, this Court’s order dated 02.11.2012 was modified by a
subsequent order of this Court dated 19.08.2014 to the effect that “the
Law Officers/Law Advisers/Law Instructors, whose contractual
appointments have come to an end, shall not be continued beyond their
contractual period. If their appointments have been renewed, the same shall
be continued till the period comes to an end”.
8. On instructions, counsel for the State of Maharashtra
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submitted that in view of the order dated 19.08.2014, presently none of
the respondents are continuing in service. Since none of the respondents
are continuing in service, the appeals have become infructuous. However,
the appeals ought to be decided to answer the contentious issues raised
and to settle the questions of law involved in the matter.
9. Learned counsel for the appellants contented that 471 posts
created by the Government Resolution dated 21.08.2006 were not
permanent posts and the appointments were made purely on contractual
basis. It was submitted that filling up of 471 posts on contractual basis
and not on permanent basis is a matter of government policy and that it
was beyond the purview of the tribunal to set aside the same. It was
submitted that the respondents had entered into a contract with the State
Government thereby accepting the terms of service laid down in
Government Resolution dated 15.09.2006 and having accepted the
appointment on contractual basis, the respondents are estopped from
challenging the validity of the said Government Resolutions dated
21.08.2006 and 15.09.2006.
10. Per contra, the counsel for the respondents contended that
clause (3) in the Government Resolution dated 21.08.2006 and clause 'A',
'B' and 'C' in the Government Resolution dated 15.09.2006 are arbitrary
and unreasonable and rightly struck down by the tribunal as violative of
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Articles 14 and 16 of the Constitution of India. It was further contended
that even though the respondents had entered into a contract with the
government accepting clause (3) in the Government Resolution dated
21.08.2006 and the clauses 'A', 'B' and 'C' in the Government Resolution
dated 15.09.2006, the same will not operate as estoppel.
11. We have carefully considered the rival submissions made by
learned counsel for the parties and perused the impugned judgment and
the material on record.
12. In the Government Resolution dated 21.08.2006 while
creating 471 posts in various cadres including Legal Advisors, Law
Officers and Law Instructors in clause (3) of the said Resolution, it was
made clear that the posts created ought to be filled up on contractual
basis. Clause (3) reads as under:-
“The said posts instead of being filled in the regular manner should be kept vacant and should be filled on the contract basis as per the terms and conditions prescribed by the government or having prepared the Recruitment Rules should be filled as per the provisions therein.”
13. Subsequently, the said Resolution was modified by
Government Resolution dated 15.09.2006. In the said Resolution, the
column specifying “Pay Scale” was substituted with column “Combined
Permissible Monthly Pay + Telephone & Travel Expenses”. However, there
was no change in the decision of the government on filling up the posts on
contractual basis. Government Resolution dated 15.09.2006 stipulates
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the terms and conditions of the contractual appointments. Clauses 'A', 'B',
'C' and 'D' read as under:-
“A) The appointment of the said posts would be completely on contractual basis. These officers/employees would not be counted as government employees.
B) The said appointments should be made on contract basis firstly for 11 months. After 11 months the term of the agreement could be increased from time to time if necessary. Whereas, the appointing authority would take the precaution while extending the terms in this manner that, at one time this term should not be more than 11 months. The appointment in this way could be made maximum three times. Thereafter, if the competent authority is of the opinion that the reappointment of such candidate is necessary then such candidate would have to again face the selection process.
C) The concerned appointing authority at the time of the appointment would execute an agreement with the concerned candidate in the prescribed format. The prescribed format of the agreement is given in Appendix 'B'. It would be the responsibility of the concerned office to preserve all the documents of the agreement.
D) Except for the combined pay and permissible telephone and travel expenses (more than the above mentioned limit) any other allowances would not be admissible for the officers/employees being appointed on contract basis.”
14. The intention of the State Government to fill up the posts of
Legal Advisors, Law Officers and Law Instructors on contractual basis is
manifest from the above clauses in Government Resolutions dated
21.08.2006 and 15.09.2006. While creating 471 posts vide Resolution
dated 21.08.2006, the Government made it clear that the posts should be
filled up on contractual basis as per terms and conditions prescribed by
the Government. As per clause 'B' of the Government Resolution dated
15.09.2006, the initial contractual period of appointment is eleven months
and there is a provision for extension of contract for further eleven 7
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months. Clause 'B' makes it clear that the appointment could be made
maximum three times and extension of contract beyond the third term is
not allowed. If the competent authority is of the opinion that the
reappointment of such candidates is necessary then such candidates
would again have to face the selection process.
15. It is relevant to note that the respondents at the time of
appointment have accepted an agreement in accordance with Appendix 'B'
attached to Government Resolution dated 15.09.2006. The terms of the
agreement specifically lay down that the appointment is purely
contractual and that the respondents will not be entitled to claim any
rights, interest and benefits whatsoever of the permanent service in the
government. We may usefully refer to the relevant clauses in the format of
the agreement which read as under:-
“1. The First Party hereby agrees to appoint Shri/Smt._________ (Party No. II) as a ________ on contract basis for a period of 11 months commencing from __________ to __________ (mention date) on consolidated remuneration of Rs.___________ (Rupees _____________ only) per month, and said remuneration will be payable at the end of each calendar month according to British Calendar. It is agreed that IInd party shall not be entitled for separate T.A. and D.A. during the contract period….
2. …....... 3. …...... 4. …........
5. Assignment of 11 months contract is renewable for a further two terms of 11 months (i.e. total 3 terms), subject to the satisfaction of Competent Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government.”
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16. The above terms of the agreement further reiterate the stand
of the State that the appointments were purely contractual and that the
respondents shall not be entitled to claim any right or interest of
permanent service in the government. The appointments of respondents
were made initially for eleven months but were renewed twice and after
serving the maximum contractual period, the services of the respondents
came to an end and the Government initiated a fresh process of selection.
Conditions of respondents’ engagement is governed by the terms of
agreement. After having accepted contractual appointment, the
respondents are estopped from challenging the terms of their
appointment. Furthermore, respondents are not precluded from applying
for the said posts afresh subject to the satisfaction of other eligibility
criteria.
17. The High Court did not keep in view the various clauses in the
Government Resolutions dated 21.08.2006 and 15.09.2006 and also the
terms of the agreement entered into by the respondents with the
government. Creation of posts was only for administrative purposes for
sanction of the amount towards expenditure incurred but merely because
the posts were created, they cannot be held to be permanent in nature.
When the government has taken a policy decision to fill up 471 posts of
Legal Advisors, Law Officers and Law Instructors on contractual basis, the
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tribunal and the High Court ought not to have interfered with the policy
decision to hold that the appointments are permanent in nature.
18. In the result, the impugned judgment of the High Court is set
aside and these appeals are allowed.
19. Consequently, all other appeals are also allowed.
20. No costs.
….……...................CJI. (T.S. THAKUR)
……….......................J. (R. BANUMATHI)
………......................J. (UDAY UMESH LALIT)
New Delhi; July 12, 2016.
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