SURENDRA KUMAR & ORS Vs. GREATER NOIDA IND. DEVELOPMENT AUTH.&ORS
Section 14 - Equality before law
Section 16 - Equality of opportunity in matters of public employment
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 4916 of 2015, Judgment Date: Jul 02, 2015
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.
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 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.
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 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 (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 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 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 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 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.
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
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 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 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 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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