REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2356 OF 2018

UPENDRA SINGH .....APPELLANT(S)

VERSUS

STATE OF BIHAR AND OTHERS .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The appellant  herein  has  challenged the judgment  dated

July 25, 2013 passed by the High Court of Judicature at Patna

dismissing the Letters Patent Appeal (LPA) filed by the appellant.

In fact,  by the said common judgment,  two LPAs are decided.

One LPA was filed by three persons and the other was filed by

eight persons.  All these eleven persons, who were engaged by

one  K.D.S.  College  (respondent  No.8  in  these  proceedings)

situate  within  the  jurisdiction  of  P.S.  Gogari,  District  Khagaria,

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Bihar,  wanted  regularisation  of  their  services  and  payment  of

salary  based  on  such  regularisation.   Their  writ  petition  was

dismissed by the learned Single Judge and the intra-court appeal

has met the same fate.  However, it appears that out of eleven

persons, who were the appellants in the aforesaid two LPAs, only

the  appellant  herein  has  approached  this  Court  feeling

dissatisfied with the outcome therein.

2) The  main  case  set  up  by  the  appellant  is  that,  no  doubt,

respondent No.8 was a private college when the appellant was

engaged,  however,  it  was  ultimately  taken  over  by  the  State

Government and got affiliated to the Bihar University.  It is stated

that having regard to the long service rendered by the appellant,

coupled  with  the  decision  of  the  University  authorities  itself  to

regularise such persons, he was also entitled thereto. However,

the same is denied and he has not been paid his regular salary

for last over a decade.  The claim is founded on the following

averments:

3) The Governing Body of respondent No.8 constituted a Selection

Committee  for  appointment  of  teaching  and  non-teaching  staff

and this  Committee,  after  following due process of  recruitment

through an advertisement and thereafter selection on interview,

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appointed the appellant in Grade III in non-teaching category with

effect from January 24, 1978.  In the year 1980, a decision was

taken by the Government of Bihar to some Universities, including

the  Bihar  University,  that  the  colleges  affiliated  with  these

Universities  be  converted  as  ‘Constituent  Colleges’  of  the

University on the basis of which respondent No.8 also became a

Constituent College of the Bihar University.   This decision was

implemented by respondent  No.8 as well  and with  effect  from

June  16,  1981,  respondent  No.8  attained  the  status  of

Constituent College.  Thereupon, respondent No.8 absorbed all

the  employees,  including  the  appellant,  and  the  appellant

continued in service of respondent No.8 thereafter.  However, as

the University authorities did not make payment of salaries to the

appellant and some other employees of Grade III and Grade IV,

although they  were  continued in  service,  representations were

made  in  this  behalf  by  the  College  Employees’  Federation.

Though, initially assurances were given, they were not fulfilled,

because of which the Employees’ Federation started the agitation

and continued the same.  Ultimately,  State of  Bihar  and Bihar

Higher Education Department entered into an agreement dated

April  26,  1989 with the Bihar  State University  and the College

Employees’  Federation  agreeing  to  absorb  the  employees,

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including the appellant, on the basis of  Staffing Pattern.  Based

on that decision, respondent No.8 scrutinised the records of its

employees and recommended the names of non-teaching staff,

including that of the appellant, through its letter dated December

22,  1989  to  the  Government  recommending  the  names  for

absorption.   All  such  names were  considered by a  three  man

Staffing Committee appointed by the University, which inspected

the  records,  however,  no  final  decision  was  taken.   In  these

circumstances,  when  the  matter  was  getting  delayed,  the

appellant  and others filed writ  petition in the High Court  in the

year 1997, which was disposed of on May 05, 1999 directing the

State  Government  to  take  appropriate  decision  as  early  as

possible.  Thereafter, the matter was considered and ultimately

the  Bihar  University  issued  orders  dated  August  30,  1999/

September  15,  1999 rejecting  the  claims of  these  employees,

including  the  appellant,  and  directing  them not  to  work  in  the

College.  This action was challenged by filing writ petitions, which

were allowed and the appellant and some others were taken back

in the employment.  However, they were not paid salary of the

regular staff.  Thereafter also, few rounds of litigation took place

when the writ petitions were filed in which orders were passed by

the High Court to consider the claim of these persons and it is not

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necessary to give those details.  Suffice is to state that there was

an issue as to whether there were sanctioned posts or not against

which  the  cases  of  these  persons  could  be  considered.

According  to  the  appellant,  respondent  No.8  informed  the

University, vide letter dated June 11, 2009, that there are twenty

five posts sanctioned for the College, out of which fifteen posts

were for Grade IV employees and ten for Grade III employees.  In

spite thereof, no decision was taken and ultimately Writ Petition

No. 16667 of 2010 was filed by the appellant and some other

employees, which was dismissed by the Single Judge of the High

Court on February 01, 2013.  It is against this judgment, LPAs in

question were filed, which have been dismissed by the impugned

judgment.

4) The case set up by the appellant, in nutshell, is that the appellant

has been working for more than two decades; he was appointed

by respondent No.8 after  following due process of  recruitment;

the appointment was against sanctioned post;  after respondent

No.8  college  attained  the  status  of  ‘Constituent  College’,  the

University  refused  to  pay  the  salary  of  the  regular  staff;  and

though decision was taken to regularise the services on the basis

of Staffing Pattern as far back as on May 10, 1991 by a resolution

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of  the  State  Government  in  this  behalf,  benefit  thereof  is  not

extended to the appellant even when he fulfils all the conditions

contained in the said resolution.

5) Learned counsel for the appellant submitted that the writ court as

well as the appeal court have proceeded on a wholly erroneous

basis  and  assumption  that  the  Government  had,  at  no  stage,

agreed to regularise the appellant and others.  She submitted that

the State Government had already given concurrence for such a

regularisation but was delaying its implementation on one pretext

or  the  other.   This  concurrence  of  the  State  Government  was

recorded  in  the  agreement  dated  April  26,  1989  with  the

University  and  the  College  Employees’ Federation,  which  was

followed  by  various  other  documents  exchanged  between  the

University, the State Government and respondent No.8.  It was

also argued that the High Court wrongly proceeded on the basis

that the appellant was appointed after the cut off date of July 12,

1980, whereas the record reveals that he was appointed much

prior thereto, i.e. on January 24, 1978.

6) Learned counsel for the respondent, on the other hand, justified

the reasoning adopted by the courts below and argued that the

case of the appellant was not covered by the resolution passed

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on Staffing Pattern, inasmuch as, neither there were sanctioned

posts  when  the  appellant  was  appointed  nor  any  such  post

existed thereafter, nor was he appointed against sanctioned post

or  after  following  the  due  procedure.   He  submitted  that  the

appointment  of  the appellant  or  similarly  situated persons was

done by respondent No.8 of its own and when respondent No.8

became Constituent  College,  the University  was well  within its

right  not  to  regularise  those  persons  who were  not  appointed

against  the  sanctioned post.   The  learned counsel  referred  to

clause (1) of the Manual of Bihar University Laws (Part – I) which

deals with the appointment and powers of the Vice Chancellor

and sub-clause (6) thereof stipulates that it is the Vice Chancellor

which has the power to make appointment to the post within the

sanctioned grades and scales of pay and within the sanctioned

strength  of  the  ministerial  staff  etc.,  meaning  thereby not  only

power is given to the Vice Chancellor but even he can appoint

only against the posts, that too within the sanctioned grades.

7) After considering the respective arguments, we are of the view

that  the  impugned  judgment  is  without  any  blemish  and  no

interference is called for.   In fact,  whole premise on which the

case is founded by the appellant seems to be incorrect.  We note

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that  the cases of  these persons,  including the appellant,  were

duly considered by the University,  on the basis of  which order

dated August 13, 2003 were passed refusing regularisation.  This

order  specifically  states  that  the  initial  appointment  of  the

appellant  and  others  was not  in  accordance with  law.   It  was

made without advertisement and there was no recommendation

of  panel  by  the  Selection  Committee.   So  much  so,  the

appointments were not made by the competent authority.  We find

that the University, or for that matter, the Government had agreed

to  regularise  the services of  those employees of  the colleges,

which  had  become  the  Constituent  Colleges,  only  on  the

condition that their initial appointment was after following the due

procedure and that too against the sanctioned post.  A statement

was made at the Bar by learned counsel for the respondent that

there were no sanctioned posts even now.

8) Law  pertaining  to  regularisation  has  now  been  authoritatively

determined by  a  Constitution  Bench judgment  of  this  Court  in

Secretary,  State  of  Karnataka  &  Ors.  v.  Umadevi  &  Ors.,

(2006) 4 SCC 1.  On the application of law laid down in that case,

it  is  clear  that  the  question  of  regularisation  of  daily  wager

appointed  contrary  to  law  does  not  arise.   This  ratio  of  the

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judgment could not be disputed by the learned counsel for the

appellant as well.  That is why she continued to plead that the

appointment  of  the  appellant  was  made  after  following  due

procedure  and  in  accordance  with  law.   However,  that  is  not

borne from the records.  Pertinently, order dated August 13, 2003,

vide  which  the  appellant  was  refused  regularisation  on  the

aforesaid ground was not even assailed by the appellant at that

time.  It  may be mentioned that in  Uma Devi,  the Court left a

small  window opened for  those who were working on  ad hoc/

daily wage basis for more than ten years, to regularise them as a

one-time  measure.   However,  that  was  also  subject  to  the

condition  that  they  should  have  been  appointed  in  duly

sanctioned post.  Further, while counting their ten years period,

those cases were to be excluded where such persons continued

to work under the cover of orders of the courts or the tribunal.

The High Court has, in the impugned judgment, discussed these

nuances and has also referred to the judgment in Uma Devi and

held that the benefit of one-time measure suggested in that case

could not be extended to the appellant because of the following

reasons:

“The Appellants clearly fall in the exception noticed in paragraph-53 of Umadevi (supra) as their claims were sub  judice  on  the  date  the  pronouncement  of  the Constitution Bench was made in view of pendency of

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C.W.J.C.  No.  12235 of  2005 disposed subsequently on  29.08.2006.   Such  litigious  continuation  in employment  stands  excluded  from  the  directions  of Umadevi.

The  Appellants  claim  to  have  been  regularized within the staffing pattern.  In our opinion, it is not the crux of the matter.  The crucial question is if their initial appointment  by  the  Managing  Committee  was  in consonance with Article 14 of the Constitution of India by  open  advertisement  and  competitive  merit selection.   On account  of  various  interpretations  by more than one Bench of M.L. Kesari (supra) reference was made to the Full Bench.  We have already noticed from  the  order  refusing  regularization  dated 13.08.2003 that the appointment of the Appellants on daily wage was not in consonance with the law.

The  conclusion  in  Ram Sewak  Yadav  (supra)  at paragraph 43 is as follows:

“43  (A)  Uma  Devi  (supra)  prohibits regularization of daily wage, casual, ad-hoc, and temporary  appointments,  the period of  service being irrelevant;

(B) An illegal  appointment  void ab initio made contrary  to  the  mandate  of  Article  14  without open  competitive  selection  cannot  be regularized under any circumstances.

(C) Irregular appointments can be regularized if the  appointment  was  made  by  an  authority competent to do so, it  was made on a vacant sanctioned post, in accordance with Article 14 of the  Constitution  with  equal  opportunity  for participation  to  others  eligible  by  competitive selection  and  the  candidate  possessed  the eligibility qualifications for a regular appointment to the post.

(D)  The  appointment  must  not  have  been  an individual  favour  doled  out  to  the  appointee alone  and  he  person  must  have  continued  in service for over ten years without intervention of any court orders.”

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9) We are, thus, of the view that there is no merit in this appeal,

which is accordingly dismissed.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; FEBRUARY 23, 2018.

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