SURENDRA KUMAR Vs GREATER NOIDA IND. DEVELOPMENT AUTH.&ORS
Bench: T.S. THAKUR,R. BANUMATHI
Case number: C.A. No.-004916-004916 / 2015
Diary number: 40200 / 2013
Advocates: VEERA KAUL SINGH Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4916 OF 2015 (Arising out of S.L.P. (Civil) No. 662 of 2014)
SURENDRA KUMAR & ORS. …APPELLANT (S)
VERSUS
GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY & ORS. …RESPONDENT (S)
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of a judgment passed by the
Division Bench of the High Court of Judicature at Allahabad
dated 29.10.2013 in Writ Petition No.65789 of 2011, in and
by which, the High Court held that on the principles laid down
in the case of Secretary, State of Karnataka & Ors. Vs. Uma 1
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Devi (3) & Ors., (2006) 4 SCC 1, the appointments of the
appellants were ex-facie illegal dehors Articles 14 and 16 of
the Constitution of India and directed an inquiry regarding
initial appointments.
3. Brief facts giving rise to this appeal are that the
appellants were initially engaged on the post of Assistant
Manager (Civil) by the respondent No.1–Greater Noida
Industrial Development Authority on contractual basis for a
period of 89 days. Admittedly, initial appointments of the
appellants were not made against any sanctioned posts.
However, their engagement continued from time to time, and
the appellants have been continuously working on the said
post. On 20.11.2002, the respondent authorities published an
advertisement for engagement to the posts of Assistant
Manager (Civil). The appellants and similarly situated persons
who have been engaged on contractual basis filed a Writ
Petition being Writ Petition No.54072 of 2002 seeking for a
writ of mandamus directing the respondent-authorities to
regularise their services on the post of Assistant Manager
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(Civil) and to quash the aforesaid advertisement dated
20.11.2002. The appellants contended that as they were
working continuously, the respondent authorities instead of
issuing a fresh advertisement should have regularised their
services on the said post. By the judgment dated 28.09.2005,
the learned Single Judge allowed the Writ Petition and
quashed the advertisement dated 20.11.2002 and directed the
respondent-authorities to consider the claim of the appellants
for regularisation of their services on the existing vacancies
which were directed to be filled up from the existing
contractual employees as per the Regulation/Rules and fresh
advertisement could be issued inviting applications from the
general candidates only for remaining vacancies. Challenging
the order of the learned single Judge, respondent authorities
filed Special Appeal before the Division Bench being Special
Appeal No.1432 of 2005.
4. Pending adjudication of Writ Petition No.54072 of
2002 before the learned single Judge, a scheme for
regularization of the contractual employees was formulated by
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the respondent No.1 on 16.04.2003, wherein a policy was
framed regarding regularization of 27 contractual employees
who had been engaged initially for a period of 89 days and
continued thereafter. The State Government, vide its letter
dated 05.03.2008, approved the policy formulated by
respondent No.1 for regularization of contractual employees.
As per the said policy, 60% of the vacancies were sought to be
filled up from amongst 27 contractual employees and the
remaining 40% of the vacancies through direct recruitment.
The special appeal being Special Appeal No.1432 of 2005 was
disposed of on 13.01.2010 directing the first respondent
authority to take a final decision in pursuance of the policy
framed by it and approved by the State Government on
05.03.2008. Pursuant to the policy decision, the appellants
and other similarly situated contractual employees were
appointed on the post of Assistant Manager (Civil) vide
appointment orders dated 06.08.2010.
5. After joining the said post, the appellants filed a
Claim Petition No. 174 of 2011 before the State Public Services
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Tribunal, Lucknow praying for regularization of their services
from the date of existence of vacancies, that is 20.11.2002, the
date on which the advertisement was issued, for appointment
to the post of Assistant Manager (Civil) and with all
consequential benefits. The tribunal, vide its judgment dated
23.06.2011, allowed the Claim Petition and directed the
authorities to consider the appellants’ claim for regularization
of their services on the existing vacancies with effect from
20.11.2002. Aggrieved by the order of the tribunal, the
respondent authorities preferred a writ being Writ Petition
No.65789 of 2011 before the High Court. The High Court, vide
impugned judgment dated 29.10.2013 relying on the
Constitution Bench decision of this Court in Uma Devi’s case
(supra) allowed the Writ Petition filed by the respondent
authorities and quashed the order dated 23.06.2011 passed
by the tribunal granting benefits to the appellants with
retrospective effect. Additionally, the High Court also quashed
the appointments of the appellants dated 06.08.2010 as
ex-facie illegal and directed the authorities to initiate
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proceedings in respect of illegal appointments which were
made in violation of Articles 14 and 16 of the Constitution of
India and the principles laid down in Uma Devi’s case (supra).
This appeal assails the correctness of the judgment of the
Division Bench dated 29.10.2013.
6. Shri L. Nageswara Rao, learned Senior Counsel for
the appellants, contended that the appointment orders dated
6.08.2010 were issued pursuant to the scheme of
regularization formulated by the respondent No. 1 which was
also approved by the State Government and while so, the High
Court erred in holding that the appointments of the appellants
were ex-facie illegal. It was submitted that the appellants have
been continuously working on the said post for more than
twenty years and therefore their services ought to be
regularised with retrospective effect from 20.11.2002 and they
be granted seniority and consequential benefits.
7. The respondent authorities have fairly conceded
that appointments of the appellants vide appointment orders
dated 06.08.2010 were made pursuant to the regularization
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scheme framed by the respondent No.1 and therefore the
appointments cannot be said to be illegal being in violation of
Articles 14 and 16 of the Constitution of India. However, the
respondent authorities have raised serious objections for the
claim of the appellants seeking regularisation with
retrospective effect from 20.11.2002, when the vacancies were
first advertised. To that extent, the respondent-authorities
have supported the impugned judgment in setting aside the
order of the tribunal. It was further submitted that the
appellants were appointed pursuant to the regularisation
scheme which never contemplated that the appellants should
be entitled to regularisation from the retrospective effect.
8. The main issue that arises for consideration is
whether the policy decision extending the benefit of
regularisation to contractual employees against 60% vacant
posts will be deemed to regularise the services of the
appellants from the retrospective date, that is, 20.11.2002,
when the said posts were first advertised.
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9. At the outset, it is to be pointed out that when the
vacancies for the post of Assistant Manager (Civil) were
advertised on 20.11.2002, the scheme for regularization of
contractual employees was not in vogue and it was only
subsequently on 16.04.2003, respondent No.1 had taken a
policy decision regarding regularization of 27 contractual
employees and the scheme was approved by the State
Government vide letter dated 5.03.2008 and it is only
thereafter, the appellants came to be appointed on 6.08.2010.
Thus, when the vacancies were initially advertised, the
appellants did not have any substantive right against the
notified vacancies. The appellants cannot be said to have
acquired such right to be regularised by virtue of the decision
of the learned Single Judge in Writ Petition No. 54072 of 2002
as in Uma Devi’s case (supra), this Court held that the High
Court should not issue directions for regularization, unless the
recruitment itself was made in terms of the constitutional
Scheme and the wide power under Article 226 are not
intended to be used for issuance of such directions for
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regularization. The appellants were actually regularised only
by virtue of the policy decision taken by the respondent No.1
and not by virtue of the decision of the High Court.
10. In the impugned judgment, the Division Bench
proceeded on the premise as if Uma Devi’s case (supra) held
that the State Government, in no circumstance, can regularise
the services of contractual employees. In para (53) of Uma
Devi’s case (supra), the Constitution Bench carved out an
exception by observing that the Union of India/State
Governments/their instrumentalities should take steps to
regularise the services of such irregular employees who have
worked for more than ten years and para (53) reads as under:-
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore Vs. S.V. Narayanappa, (1967) 1 SCR 128, R.N. Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409, and B.N. Nagarajan Vs. State of Karnataka, (1979) 4 SCC 507, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and
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should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”
11. Considering the facts of the present case on the
touchstone laid down in Uma Devi’s case(supra), it will be seen
that the Division Bench was not right in setting aside the
appointment of the appellants. More so, it was nobody’s case
challenging the appointment of the appellants. Admittedly,
the appellants were engaged as contractual employees from
1994 and have completed more than ten years of continuous
service with respondent No.1. They continued in service not
by the orders of the Court/Tribunal, but by the decision of the
respondents. The appellants were regularised as per the policy
decision dated 16.04.2003 taken by respondent No.1 and
approved by the State Government vide letter dated
05.03.2008. Since the appointment of the appellants were
made pursuant to the policy of regularization, the High Court
was not right in quashing the appointment of the appellants 10
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as the same were never in question before the High Court.
The plea that was raised by the appellants was only to seek
regularization with retrospective effect from 20.11.2002 and
the consequential seniority.
12. The appellants were initially engaged on contractual
basis and they were not appointed against any sanctioned post
before they were substantially appointed on the said post on
6.08.2010. Even though advertisement dated 20.11.2002
indicated that there were vacancies, the policy of
regularization of contractual employees was approved by the
State Government only on 05.03.2008. The appellants were
appointed on the post of Assistant Manager (Civil) only
pursuant to the policy decision of the respondents for
regularisation of contractual employees and thus, the
appellants cannot seek for regularization with retrospective
effect from 20.11.2002, that is when the advertisement was
issued, because at that time regularisation policy was not in
vogue. By policy of regularisation, it was intended to give the
benefit only from the date of appointment. The Court cannot
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read anything into the policy decision which is plain and
unambiguous. Having accepted the appointment orders dated
6.08.2010 and also joined the post, the appellants cannot turn
round and claim regularisation with retrospective effect.
13. The judgment of the High Court quashing the
appointment of the appellants vide appointment order dated
06.08.2010 is set aside. However the appellants’ plea for
regularization with retrospective effect is declined.
14. In the result, the appeal is allowed in part in the
above terms. There shall be no order as to costs.
…………………………J.
(T.S. THAKUR)
…………………………J.
(R. BANUMATHI) New Delhi; July 2, 2015
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