Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8322 OF 2009

Amarendra Kumar Mohapatra & Ors. …Appellants

Versus

State of Orissa & Ors. …Respondents

WITH

Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940

of 2010.

J U D G M E N T

T.S. THAKUR, J.

1.Common questions of law arise for consideration in

these appeals which were heard together and shall stand

disposed of by this common order. The primary issue that

falls for determination touches the Constitutional validity of

what is described as the Orissa Service of Engineers

1

Page 2 (Validation of Appointment) Act, 2002 by which appointment

of 881 ad hoc Assistant Engineers belonging to Civil,

Mechanical and Electrical Engineering Wings of the State

Engineering Service have been validated, no matter all such

appointments were in breach of the Orissa Service of

Engineers’ Rules, 1941. The High Court of Orissa has in a

batch of writ petitions filed before it struck down the

impugned Legislation on the ground that the same violates

the fundamental rights guaranteed to the writ petitioners

under Articles 14 and 16 of the Constitution. We shall

presently formulate the questions that arise for

determination more specifically but before we do so, we

consider it necessary to set out the factual matrix in which

the entire controversy arises.

2.In a note submitted to the State Cabinet on 15

th

May

1990 the problem of over 2000 unemployed degree-holders

in various branches of Engineering who had passed out from

several Engineering colleges since the year 1984 was

highlighted and a proposal for utilizing the manpower so

available for the benefit of the State economy mooted. The

2

Page 3 proposal envisaged a twofold action plan for absorbing the

unemployed graduate Engineers. The first part of the action

plan provided for withdrawal of 127 posts of Assistant

Engineers that had been referred to the Public Service

Commission and advertised by it to be filled up by

appointing unemployed degree holder Engineers in a non-

class II rank. The second part of the proposal envisaged

creation of 614 posts of Junior Engineers in different

Departments to accommodate the unemployed degree

holders. These 614 posts comprised 314 new posts proposed

to be created, one for each block in the State. Similarly, 100

posts were to be created in the Irrigation Department for

survey and investigation to accelerate the pace of

investigation. Yet another 200 posts were to be created for

initial infrastructure work in connection with Paradip Steel

Plant.

3.The note submitted to the Cabinet suggested that

degree-holder Engineers could be recruited against all the

741 (127 + 614) posts mentioned above to be designated as

Junior Engineers or Stipendiary Engineers in the first phase

3

Page 4 on a consolidated stipend of Rs.2,000/- per month. The

proposal further envisaged absorption of Engineers so

appointed on regular basis after two years, after assessing

their performance.

4.The Council of Ministers considered the proposal

mooted before it and approved the same. Decision taken in

the 2

nd

Meeting of the Council of Ministers held on 15

th

May,

1990 with regard to ‘Problems of Un-employed Degree

Engineers’ was forwarded to the Secretaries to the

Government in terms of a memo dated 21

st

May 1990, the

relevant portion whereof reads as under:

“Item No.5: Problems of Un-employed Degree

Engineers.

The problems were discussed at

length and the following decisions

were taken.

i) All posts of Assistant Engineers

referred to the Orissa Public

Service Commission and

advertised by them may be

withdrawn.

ii)314 posts of Stipendiary

Engineers may be created one in

each Block.

iii)100 posts of Stipendiary

Engineers may be created in the

4

Page 5 Irrigation Department for survey

and investigation.

iv)200 posts of Stipendiary

Engineers may be created for

the initial infrastructure work of

Paradip Port-based Steel Plant.

v) In all, 741 posts of Stipendiary

Engineers will be available, for

recruiting from the unemployed

Degree Engineers. A

Stipendiary Engineer may be

paid a consolidated stipend of

Rs.2,000/- per month.

Absorption into regular posts

may be considered after two

years on the basis of their

performance.

vi)The criteria for selection are to

be worked out separately, so

that Stipendiary Engineers are

recruited on merit basis batch

by batch.

vii)The rest of the unemployed

Degree Engineers are proposed

to be engaged in various

construction works by formation

of Groups Companies and

Cooperatives, which will get

preference in award of work by

the Department/Corporations.”

5.As a sequel to the above decision, the Government

invited applications from unemployed graduate Engineers of

all disciplines for empanelment as Stipendiary Engineers for

placement in different Government departments, projects,

public sector undertakings, co-operative societies and

5

Page 6 industries etc. By another resolution dated 22

nd

September

1990, the Government stipulated the procedure to be

adopted for discipline-wise empanelment of the unemployed

graduate Engineers for appointment as Stipendiary

Engineers against the vacancies in different departments

and undertakings. The procedure evolved was to the

following effect :

“2. Government have since decided that the following

procedure should be adopted for discipline wise

empanelment of the unemployed Graduate Engineers for

appointment as Stipendiary Engineers against the

vacancies in different government Department and

undertakings:

(1)25 percent of the posts shall be filled up on merit

basis and for this purpose equal number will be

taken from each batch starting from the batch of

1984 up to the batch of 1989.

(2)A point system will be adopted for empanelment on

merit basis, for which out of a total 100 marks the

performance in HSC will be given 15 marks, the

performance in I. Sc. and Diploma will be given 25

marks and the performance at the final Engineering

Degree Examination will be given 60 marks.

(3)After the empanelment on merit basis is done for

25% of the vacancies, empanelment will be done

batch-wise starting from 1984 for the remaining

vacancies. The Inter se position of candidates in the

batch wise panel will again be on the basis of merit

computed as in (2) above.

(4)There shall also be separate empanelment on merit

basis for SC/ST, Physically handicapped and ex-

servicemen covering all the batches to facilitate

filling up of reserved vacancies. The rules regarding

reservation of vacancies will apply to these

appointments.

6

Page 7 (5)Applications received on or before 10.7.1990 will

alone be considered for empanelment. Similarly

graduate Engineers who have passed out before

1984 or those who have obtained degree after 1989

will not be eligible for empanelment.

(6)The following committee will undertake the work of

scrutiny and empanelment of the unemployed

graduate Engineers.

d.Secretary Steel & Mines Chairman

of the

Committee

di.Engineer-in-Chief and

Secretary, Works

Member

dii.Engineer-in-Chief

(Irrigation)

Member

diii.Chief Engineer Electricity

and electrical Projects

Member

div.Chief Engineer, PHD Member

dv.Chief Engineer, RLEGP Member

dvi.Managing Director, IPICOL Convenor

(7)The panels from the Scrutiny Committee will be

maintained in the Department of Planning and

Coordination who will sponsor candidates to various

Government Departments and Undertakings

according to the requirement as indicated by them.

The undertakings will send indents through the

concerned Administrative Departments.

(8)As regards Civil & Mechanical Engineers, the

Government Departments will intimate the

requirement to Irrigation Department who will the

panel names from P & C Department to fill up the

vacancies. In case of these Engineers, the

appointment orders will be issued by the Department

of Irrigation and when required they will be sent on

deputation to the other Departments.

(9)If there is no candidate to be recommended against

reserve vacancies for the reason that the panels of

7

Page 8 such candidates are exhausted, the Department of P

& C will give a non-availability certificate to the

indenting organizations so that they can take steps

to de-reserve the vacancies and give appointment to

general candidates in their place.

(10)The normal requirement for new appointment under

Government viz. production of original certificates,

Medical Certificate, Schedule Caste/Scheduled Tribe

Certificate etc. shall be applicable to these

appointments and the verification of these

documents shall be the responsibility of the

Employing Departments/Undertakings.

(11)In some cases relaxation of age limit for entry into

Government service may have to be done and this

will be attended to by the Employing

Departments/Undertakings as a matter of course.

ORDER

Ordered that the Resolution be published in the

Orissa Gazette for general information.

Ordered also that copies of the Resolution be

forwarded to all Departments of Government, Member,

Board of Revenue, All Heads of Departments, All District

Collectors, Secretary to Governor, Registrar, Orissa High

Court Secretary, OPSC, Principal Secretary to the Chief

Minister and Director of Printing, Stationary and

Publication, Orissa Cuttack and 50 copies of Planning &

Coordination Department.

BY ORDER OF THE GOVERNOR

S.SUNDARARANJAN

ADDITIONAL DEVELOPMENT COMMISSIONER

AND

SECRETARY TO GOVERNMENT”

6.Applications received from unemployed graduate

Engineers for appointment as Stipendiary Engineers were in

terms of the above resolution and considered by the

Committee constituted for the purpose and appointment of

8

Page 9 eligible candidates found suitable for such appointments

made between 1991 to 1994. Appointment orders issued to

the candidates made it clear that degree holder Engineers

were being engaged as Stipendiary Engineers in the

concerned Department and shall be paid a consolidated

stipend of Rs.2000/- only. It further stated that the

engagement was purely temporary and terminable at any

time and without any notice.

7.In August 1992, Minister for Irrigation, Government of

Orissa mooted a further proposal to the following effect:

(a)The promotion quota may continue at 33% of

annual vacancy.

(b)In addition, there should be a selection quota

of 30%. This quota will have two components

– 5% for Junior Engineers who have acquired

an Engineering Degree or equivalent

qualification and 25% which will be earmarked

exclusively for Stipendiary Engineers.

(c)Direct recruitment quota will be 37%.

Stipendiary Engineers can also compete

against this quota. They may be allowed age

relaxation up to five years. This will ensure

that Stipendiary Engineers have the facility of

recruitment, both against the selection quota

and direct recruitment quota.

(d)Departments may not fill up vacancies in the

post of Stipendiary Engineers caused by

appointment of the incumbents as Assistant

Engineers, if they want to do so, they may

obtain candidates from the panel of the P & C

Department.

9

Page 10 (e)This will be a transitional provision because

appointment of Stipendiary Engineers may not

be a permanent feature. After such time as,

Government may decide the present quotas of

recruitment will be restored.

(f)Public Sector Undertakings should frame their

own recruitment rules which should broadly

correspond to Government’s policy of

promotion of Junior Engineers and

appointment of Stipendiary Engineers through

selection. If there are no Stipendiary Engineers

or Junior Engineers with Degree or equivalent

qualification quotas for these categories will be

added to direct recruitment quota.”

8.It is evident from the above that while the Government

did not propose to reduce the 33% quota reserved for

promotees, out of the remaining 67% meant for direct

recruitment, it proposed to carve out what was described as

selection quota of 30% for absorption of the Stipendiary

Engineers to the extent of 25% of the vacancies and degree

holder Junior Engineers against the remaining 5% of the

vacancies. The balance of 37% of the vacancies was,

however, left to be filled up by direct recruitment from the

open market.

9.Based on the above, the Government appears to have

made a reference to the Orissa Public Service Commission

on 5

th

June 1996 for approval of the draft Orissa Engineering

10

Page 11 Service (Recruitment & Condition of Service) Rules, 1994

which were already approved by the State Council of

Ministers on 3

rd

December 1994. The Orissa Public Service

Commission, however, struck a discordant note. In its

opinion, since the Stipendiary Engineers did not constitute a

cadre in the formal sense it was not desirable to treat it as a

feeder grade for Assistant Engineers. So also the proposal to

reserve 5% of the vacancies in the grade of Assistant

Engineers to be filled by degree holder Junior Engineers

from the Subordinate Service was also considered to be

inadvisable. The Commission opined that since persons with

higher qualifications serve practically in all fields of

administration including technical services such as Medical

and Engineering, it was neither necessary nor desirable to

provide for them a route for promotion to the higher level

except the one available to all those serving in the feeder

grade. In the opinion of the Commission, the correct way of

rewarding those with higher qualification was to give them

advance increments at the time of entry. The Commission

also suggested that if in the opinion of the Government the

quota for promotion of Junior Engineers to the level of

11

Page 12 Assistant Engineers required to be higher than 33% in

consideration of the larger body of Junior Engineers some of

whom were degree holders, it could increase the same to

40%, but the fragmentation of the Junior Engineers into

degree holders and non-degree holders was not advisable.

The Commission suggested that the remainder of the 60%

vacancies for direct recruitment could be utilized by

recruiting degree holder Engineers from the open market

including Stipendiary Engineers and that candidates could be

given suitable weightage while judging their inter se relevant

merit.

10.The Government had, in the meantime, passed a

resolution on 12

th

March, 1996 stating that the Stipendiary

Engineers could be appointed as Assistant Engineers on ad

hoc basis in the pay scale of Rs.2000-3500/- or any similar

post on ad hoc basis against regular vacancies. It also

resolved to regularize the service of such ad hoc Assistant

Engineers through a Validation Act. Some Stipendiary

Engineers who were working in different State Governments

and statutory bodies were also proposed to be appointed to

12

Page 13 the post of Assistant Engineer or equivalent posts carrying

the same scale, subject to their suitability and satisfactory

performance. The relevant portion reads as under:

“In consideration of the above decision of the

Government, the appointing authority of

Departments of Government will appoint the

Stipendiary Engineers of different disciplines as

Assistant Engineers against existing vacancies of

Assistant Engineers on ad hoc basis for a period of

one year, except Civil & Mechanical, to be appointed

on ad hoc basis by the Department of Water

Resources.

XXX XXX XXX

Stipendiary Engineers who are already working in

different State Government Undertakings,

Corporations,, Semi-Government Organizations &

Statutory Boards may also be appointed as Assistant

Engineers or in equivalent posts carrying the same

scale, subject to their suitability and satisfactory

performance.”

11.The resolution notwithstanding, the Government does

not appear to have appointed any Stipendiary Engineers as

Assistant Engineers on ad hoc basis. Aggrieved, the

Stipendiary Engineers filed O.J.C. Case No.8373 of 1995

Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for

a writ of mandamus directing the Government to comply

with the resolution and the order issued by it. This petition

was allowed by the Division Bench of the High Court of

13

Page 14 Orissa at Cuttack by an order dated 18

th

December 1996.

The High Court directed the Government to take expeditious

steps to implement resolution dated 12

th

March 1996,

preferably within a period of four months. It further directed

the State Government to appoint Stipendiary Engineers as

Assistant Engineers in the scale of Rs.2000-3500 on ad hoc

basis. In compliance with the directions aforementioned, the

Stipendiary Engineers were appointed as Assistant Engineers

on ad hoc basis between the years 1997 and 2001. What is

important is that pursuant to its initial proposal of allocating

5% vacancies for those working as degree holder Junior

Engineers in different departments, the Government had

between 1996 and 1997 promoted 86 degree holder Junior

Engineers on an ad hoc basis as Assistant Engineers.

12.Five Stipendiary Engineers working in the Water

Resources Department whose names had been

recommended along with others for appointment as

Assistant Engineers on ad hoc basis by the Screening

Committee set up for the purpose in the meantime filed

O.J.C. No.1563 of 1998 before the Orissa High Court making

14

Page 15 a grievance that despite the recommendations made in their

favour, the Government had not appointed them as

Assistant Engineers. That petition was allowed and disposed

of by an order dated 6

th

May, 1998 directing the State

Government to consider the case of the writ-petitioners in

the light of its earlier order passed in Jayant Kumar’s case

(supra). Since the said directions were not carried out by the

Government, two of the Stipendiary Engineers filed O.J.C.

Nos.6354 and 6355 of 1999 in which they complained about

the non-implementation of the directions issued by the High

Court earlier and prayed for their regularisation. This

petition was disposed of by the High Court by a common

order dated 2

nd

July, 2002 in which the High Court noted

that the petitioners had been appointed as Assistant

Engineers on ad hoc basis in the pay scale of Rs.2000-

3500/- by the Water Resources Department Notification

dated 11

th

December, 1998. The High Court further held that

since the Government was on principle committed to

regularising the appointments of Stipendiary Engineers there

was no reason why the Government should not treat them

as direct recruits since the year 1991, in which they were

15

Page 16 appointed, and compute their service from that year for the

purpose of in-service promotion, pension and other service

benefits except financial benefits and to absorb them on

regular basis according to law.

13.It was in the above backdrop that the Government

finally came up with a proposal for validation of the

appointment of Stipendiary Engineers as Assistant

Engineers. Memorandum dated 28

th

November, 2002

referred to appointment of 846 Stipendiary Engineers in

Civil, 61 Stipendiary Engineers in Mechanical and 25

Engineers in Electrical wings making a total of 932

Stipendiary Engineers in different Departments. We are

informed at the Bar that the present number of such

Stipendiary Engineers is limited to 881 only as the rest have

either resigned, retired or died. The proposal made in the

Memorandum also took note of the information given by the

Orissa Public Service Commission and the repeated demands

of ad hoc Assistant Engineers engaged from Stipendiary

Engineers for regularization. The proposal stated that no

regular appointments were made by the Orissa Public

16

Page 17 Service Commission and that the validation of appointments

of Stipendiary Engineers as Assistant Engineers will

immensely benefit the State in execution of several ongoing

development works. The proposal further stated that having

rendered more than 10 years of service, these Stipendiary

Engineers currently working as Assistant Engineers on ad

hoc basis will have no avenues for employment as they had

already gone beyond the upper age limit prescribed for

direct recruitment.

14.It is in the above backdrop that the State Legislature

eventually enacted Orissa Service of Engineers (Validation of

Appointment) Act, 2002 which comprises no more than

three sections. Section 3 of the legislation reads as under:

“3(1) Notwithstanding anything contained in the

Recruitment Rules, seven hundred ninety-nine

Assistant Engineers belonging to the discipline of

Civil, fifty-seven Assistant Engineers belonging to

the discipline of Mechanical and twenty-five Assistant

Engineers belonging to the discipline of Electrical as

specified in the Schedule with their names, dates of

birth, dates of appointment and the names of the

Departments under which they are working on ad

hoc basis since the date of such appointment shall

be deemed to be validly and regularly appointed

under their respective Department of the

Government against the direct recruitment quota of

the service with effect from the date of

commencement of this Act and, accordingly, no such

appointment shall be challenged in any court of law

17

Page 18 merely on the ground that such appointments were

made otherwise than in accordance with the

procedure laid down in the Recruitment Rules.

(2) The inter-se-seniority of the Assistant Engineers

whose appointments are so validated shall be

determined according to their dates of appointment

on ad hoc basis as mentioned in the Schedule and

they shall be enblock junior to the Assistant

Engineers of that year appointed to the service in

the respective discipline in their cadre in accordance

with the provisions of the Recruitment Rules.

(3) The services rendered by the Assistant Engineers

whose appointments are so validated, prior to the

commencement of this Act shall, subject to the

provisions in sub-section (2), count for the purpose

of their pension, leave and increment and for no

other purpose.”

15.A batch of writ petitions being Writ Petitions No.9514 of

2003, 12495 of 2005, 12495 of 2005, 12627 of 2005, 12706

of 2006 and 8630 of 2006, were then filed by the Degree

holder Junior Engineers appointed as Assistant Engineers on

ad hoc basis between 1996 and 1997 challenging the validity

of the above legislation, inter alia, on the ground that the

same suffered from the vice of discrimination inasmuch as

while ad hoc Assistant Engineers, who were earlier

appointed on stipendiary basis, had been regularised under

the Validation Act, those appointed against 5% quota

reserved for Junior Engineers holding a degree qualification

were left out.

18

Page 19 16.Writ Petition No.11093 of 2006 was similarly filed by

Junior Engineers who had not been appointed as Assistant

Engineers claiming parity with Degree holder Junior

Engineers already appointed as Assistant Engineers on ad

hoc basis against 5% quota disapproved by the Public

Service Commission for such Engineers.

17.Writ Petition No.16742 of 2006 was filed by Junior

Engineers promoted as Assistant Engineers against 33%

quota reserved for such Engineers whose grievance primarily

was that regularisation/validation of the appointments of

Stipendiary Engineers in the cadre of Assistant Engineers

was illegal and unconstitutional and adversely affected them

in terms of their seniority.

18.The above writ petitions were heard by a Division

Bench of the High Court of Orissa who allowed the same by

its order dated 15

th

October, 2008 striking down the

impugned Legislation primarily on the ground that the same

brought about discrimination between Assistant Engineers

similarly situate and, therefore, fell foul of Articles 14 and 16

of the Constitution. The High Court observed:

19

Page 20 “There is no reason as to why appointments of a few

persons working as Assistant Engineers on ad hoc

basis have been validated ignoring the other

similarly situated persons working on ad hoc basis as

Assistant Engineers. There cannot be discrimination

or classification amongst the persons working on ad

hoc basis or the post of Assistant Engineers. Once

unequal became equal, the State has no authority to

discriminate them and make equals as unequal.”

19.The present appeals assail the correctness of the above

judgment and order of the High Court. While Civil Appeals

No.8324 to 8331 of 2009 have been filed by the State of

Orissa, Civil Appeals No.8322, 8323 of 2009 and 1940 of

2010 have been preferred by Stipendiary Engineers who are

adversely affected by the judgment of the High Court on

account of striking down of the Validation Act under which

they were regularized as Assistant Engineers. Civil Appeal

No.1768 of 2006 has, however, been filed by the Degree

holder Junior Engineers who have already been promoted as

Assistant Engineers against 33% quota reserved for them to

challenge the judgment of the High Court in OJC Nos.6354

and 6355 of 1999 directing the State Government to

regularise the services of the writ-petitioners in those

petitions as Assistant Engineers from the date of their

20

Page 21 appointment as Stipendiary Engineers with all consequential

benefits except financial benefits.

20.Several intervention applications have been filed in

these appeals including intervention application filed by the

SC/ST candidates who were directly recruited as Assistant

Engineers in the year 2004 onwards.

21.We have heard learned counsel for the parties as also

those appearing for the interveners. The following three

questions of law arise for consideration:

1.What is the true nature and purport of the impugned

legislation? More particularly is the impugned

legislation a validation enactment or is it an enactment

that grants regularisation to those appointed on ad hoc

basis?

2.If the impugned enactment simply grants

regularisation, does it suffer from any constitutional

infirmity?

3. Does Section 3(2) of the impugned legislation suffer

from any unconstitutionality, insofar as the same

purports to grant Stipendiary Assistant Engineers

seniority with effect from the date they were appointed

on ad hoc basis?

21

Page 22 Re. Question No.1

22.Black’s Law Dictionary (9

th

Edition, Page No.1545)

defines a Validation Act as “a law that is amended either to

remove errors or to add provisions to conform to

constitutional requirements”. To the same effect is the view

expressed by this Court in Hari Singh & Others v. The

Military Estate Officer and Anr. (1972) 2 SCC 239 ,

where this Court said “The meaning of a Validating Act is to

remove the causes for ineffectiveness or invalidating of

actions or proceedings, which are validated by a legislative

measure”. In ITW Signode India Ltd. v. Collector of

Central Excise (2004) 3 SCC 48 , this Court described

Validation Act to be an Act that “removes actual or possible

voidness, disability or other defect by confirming the validity

of anything which is or may be invalid”.

23.The pre-requisite of a piece of legislation that purports

to validate any act, rule, action or proceedings were

considered by this Court in Shri Prithvi Cotton Mills Ltd.

and Ann v. Broach Borough Municipality and Ors.

22

Page 23 (1969) 2 SCC 283 . Two essentials were identified by this

Court for any such legislation to be valid. These are:

(a) The legislature enacting the Validation Act should be

competent to enact the law and;

(b) the cause for ineffectiveness or invalidity of the Act or

the proceedings needs to be removed.

24.The Court went on to enumerate certain ways in which

the objective referred to in (b) above could be achieved by

the legislation and observed :

"…….. Sometimes this is done by providing for

jurisdiction where jurisdiction had not been properly

invested before. Sometimes this is done by re-

enacting retrospectively a valid and legal taxing

provision and then by fiction making the tax already

collected to stand under the re-enacted law.

Sometimes the Legislature gives its own meaning

and interpretation of the law under which the tax

was collected and by legislative fiat makes the new

meaning binding upon courts. The Legislature may

follow any one method or all of them and while it

does so it may neutralise the effect of the earlier

decision of the court which becomes ineffective after

the change of the law. Whichever method is adopted

it must be within the competence of the legislature

and legal and adequate to attain the object of

validation. If the Legislature has the power over the

subject-matter and competence to make a valid law,

it can at any time make such a valid law and make it

retrospectively so as to bind even past transactions.

The validity of a Validating Law, therefore, depends

upon whether the Legislature possesses the

competence which it claims over the subject-matter

and whether in making the validation it removes the

defect which the courts had found in the existing law

23

Page 24 and makes adequate provisions in the Validating Law

for a valid imposition of the tax."

(emphasis supplied)

25.Judicial pronouncements regarding validation laws

generally deal with situations in which an act, rule, action or

proceedings has been found by a Court of competent

jurisdiction to be invalid and the legislature has stepped in

to validate the same. Decisions of this Court which are a

legion take the view that while adjudication of rights is

essentially a judicial function, the power to validate an

invalid law or to legalise an illegal action is within the

exclusive province of the legislature. Exercise of that power

by the legislature is not, therefore, an encroachment on the

judicial power of the Court. But, when the validity of any

such Validation Act is called in question, the Court would

have to carefully examine the law and determine whether (i)

the vice of invalidity that rendered the act, rule, proceedings

or action invalid has been cured by the validating legislation

(ii) whether the legislature was competent to validate the

act, action, proceedings or rule declared invalid in the

previous judgments and (iii) whether such validation is

24

Page 25 consistent with the rights guaranteed by Part III of the

Constitution. It is only when the answer to all these three

questions is in the affirmative that the Validation Act can be

held to be effective and the consequences flowing from the

adverse pronouncement of the Court held to have been

neutralised. Decisions of this Court in Shri Prithvi Cotton

Mills Ltd. and Anr. V. Broach Borough Municipality and

Ors. (1969) 2 SCC 283, Hari Singh v. Military Estate

Officer (1972) 2 SCC 239, Madan Mohan Pathak v.

Union of India (1978) 2 SCC 50, Indian Aluminium Co.

etc. v. State of Kerala and Ors. (1996) 7 SCC 637,

Meerut Development Authority etc. v. Satbir Singh and

Ors. etc. (1996) 11 SCC 462, and ITW Signode India

Ltd. v. Collector of Central Excise (2004) 3 SCC 48 fall

in that category. Even in the realm of service law, validation

enactments have subsequent to the pronouncement of

competent Courts come about validating the existing

legislation. Decisions of this Court in I.N. Saksena v.

State of Madhya Pradesh (1976) 4 SCC 750, Virender

Singh Hooda and Ors. v. State of Haryana and Anr.

(2004) 12 SCC 588 and State of Bihar and Ors. v.

25

Page 26 Bihar Pensioners Samaj (2006) 5 SCC 65 deal with that

category of cases.

26.In the case at hand, the State of Orissa had not

suffered any adverse judicial pronouncement to necessitate

a Validation Act, as has been the position in the generality of

the cases dealt with by this Court. The title of the impugned

Legislation all the same describes the legislation as a

Validation Act. The title of a statute is no doubt an important

part of an enactment and can be referred to for determining

the general scope of the legislation. But the true nature of

any such enactment has always to be determined not on the

basis of the label given to it but on the basis of its

substance.

27.In M.P.V. Sundararamier & Co. v. State of A.P. &

Anr. AIR 1958 SC 468 this Court was considering whether

the impugned enactment was a Validation Act in the true

sense. This Court held that although the short title as also

the marginal note described the Act to be a Validation Act,

the substance of the legislation did not answer that

description. This Court observed:

26

Page 27 “It is argued that to validate is to confirm or ratify,

and that can be only in respect of acts which one

could have himself performed, and that if Parliament

cannot enact a law relating to sales tax, it cannot

validate such a law either, and that such a law is

accordingly unauthorised and void. The only basis

for this contention in the Act is its description in the

Short Title as the "Sales Tax Laws Validation Act"

and the marginal note to s. 2 , which is similarly

worded. But the true nature of a law has to be

determined not on the label given to it in the statute

but on its substance. Section 2 of the impugned Act

which is the only substantive enactment therein

makes no mention of any validation. It only provides

that no law of a State imposing tax on sales shall be

deemed to be invalid merely because such sales are

in the course of inter-State trade or commerce. The

effect of this provision is merely to liberate the State

laws from the fetter placed on them by

Art. 286(2) and to enable such laws to operate on

their own terms.”

(emphasis supplied)

28.We may also refer to Maxwell on Interpretation of

Statutes (12

th

Edn., page 6), where on the basis of

authorities on the subject, short title of the Act has been

held to be irrelevant for the purpose of interpretation of

statutes. Lord Moulton in Vacher and Sons Ltd. v. London

Society of Compositors [1913] AC 107 described the

short title of an Act as follows:

“A title given to the act is solely for the purpose of

facility of reference. If I may use the phrase, it is a

statutory nickname to obviate the necessity of

always referring to the Act under its full and

descriptive title....Its object is identification and not

description.”

27

Page 28 (emphasis supplied)

29.Dr. Dhawan, learned senior counsel appearing for the

appellants fairly conceded that the impugned legislation

could not be described as a simple Validation Act. According

to him, the Act achieved a dual purpose of (a) validating the

invalid ad hoc appointments and (b) appointing the

Stipendiary Engineers working as ad hoc Assistant Engineers

on a substantive basis by regularising their appointments.

While we have no difficulty in agreeing with the latter part of

the contention urged by Dr. Dhawan and holding that the

legislation regularises the appointment of Stipendiary

Engineers as Assistant Engineers, we have not been able to

appreciate the rationale behind the Legislature considering it

necessary to validate the ad hoc appointments, especially

when such appointments had been made by the Government

pursuant to the directions issued by the High Court in the

writ petitions filed by the Stipendiary Engineers. Validation

of the ad hoc appointments of the Stipendiary Engineers as

Assistant Engineers would even otherwise have served no

purpose. That is because whether the appointments were

28

Page 29 officiating/ad hoc/temporary or described by any other

expression, the fact that the Stipendiary Engineers had

worked for a long period of time as Assistant Engineers in

temporary/ad hoc/officiating capacity would have in itself

been a ground for the State to regularise them, subject of

course to such regularisation otherwise meeting

constitutional requirements. It was not as if any such

regularisation was legally impermissible unless the “ad hoc

appointments” granted to Stipendiary Engineers were

themselves validated. It is quite evident that the legislation

with which we are concerned was in substance aimed at

regularising the services of such persons as had worked in

the capacity of Assistant Engineers. If that was the true

purport of the legislation, it would be inaccurate to describe

the same as a validation enactment.

30.The matter can be viewed from yet another angle. The

enactment came de hors any compulsion arising from a

judicial pronouncement regarding the invalidity attached to

the appointment of Assistant Engineers on ad hoc basis and

only because of the State’s anxiety to appoint/absorb the

29

Page 30 Stipendiary Engineers, subsequently appointed as ad hoc

Assistant Engineers on a substantive/regular basis without

following the route mandated by the Service Rules of 1941

applicable for making any such appointments. Having said

that, we must hasten to add that a prior judicial

pronouncement declaring an act, proceedings or rule to be

invalid is not a condition precedent for the enactment of a

Validation Act. Such a piece of legislation may be enacted to

remove even a perceived invalidity, which the Court has had

no opportunity to adjudge. Absence of a judicial

pronouncement is not, therefore, of much significance for

determining whether or not the legislation is a validating

law.

31.There was in the above context some debate at the Bar

whether or not the impugned enactment is a validating

enactment as it purports to be. As seen above, Dr. Rajiv

Dhawan and even Shri Narasimha, did not see the impugned

enactment as a validating legislation, no matter it carries a

label to that effect. Mr. Patwalia & Mr. Sisodia, senior

advocates, appearing for the opposite parties were also not

30

Page 31 supportive of the legislation being a validating enactment

and in our opinion rightly so. That is because the essence of

a validating enactment is a pre-existing act, proceeding or

rule, being found to be void or illegal with or without a

judicial pronouncement of the Court. It is only when an act

committed or a rule in existence or a proceeding taken is

found to be invalid that a validating act may validate the

same by removing the defect or illegality which is the basis

of such invalidity. There is no question of validating

something that has not been done or that has yet to come in

existence. No one can say that an illegality which has not

yet been committed can or ought to be validated by

legislation. Existence of an illegal act, proceedings or rule or

legislation is the sine qua non for any validating legislation

to validate the same. There can be no validation of what has

yet to be done, suffered or enacted.

32.Applying the above to the case at hand a Validation Act

may have been necessary if the Government had appointed

the ad hoc Assistant Engineers on a substantive basis in

violation of the relevant recruitment Rules. For in that case,

31

Page 32 the Government would have done an act which was legally

invalid requiring validation by a legislative measure. But a

legislation that did not validate any such non-existent act,

but simply appointed the ad hoc Assistant Engineers as

substantive employees of the State by resort to a fiction,

could not be described as a validating law.

33.The legislation under challenge was in that view not a

Validation Act as it purported to be but an enactment that

regularised the appointment of graduate Stipendiary

Engineers working as ad hoc Assistant Engineers as

Assistant Engineers. Reliance upon the decision of this Court

in Satchidananda Mishra v. State of Orissa and Ors.

(2004) 8 SCC 599 is, in our opinion, of no assistance to

the respondents. In Satchdinanda’s case (supra) the High

Court had struck down the validation act which order was

confirmed by this Court in appeal. What is significant,

however, is that while affirming the view taken by the High

Court that the validation law was not constitutionally sound,

this Court proceeded on the assumption that the legislation

with which it was dealing with was a validation act in the

32

Page 33 true sense. It was on that assumption that this Court looked

into the invalidity and held that the validation act did

nothing except validating the appointments without

removing the basis on which such appointments could be

invalidated. We have not proceeded on any such assumption

in the instant case especially because learned counsel for

some of the parties have argued that the legislation under

challenge is not a Validation Enactment. The Enactment in

the case at hand deals with the law relating to regularisation

of incumbents holding public office on ad hoc or temporary

basis, much in the same way as regularisation of such

temporary appointments is ordered in terms of a scheme for

that purpose. The only difference is that while a

regularisation scheme can be framed by the Government in

exercise of its executive power, the regularisation ordered in

the case at hand is by way of a legislation. It is trite that

what could be achieved by the Government by exercise of its

executive power could certainly be achieved by legislation,

as indeed it has been achieved in the case at hand. Question

No.1 is answered accordingly.

33

Page 34 Re. Question No.2

34.A Constitution Bench of this Court in Secretary, State

of Karnataka and Ors. v. Umadevi (3) and Ors. (2006)

4 SCC 1 ruled that regularisation of illegal or irregularly

appointed persons could never be an alternative mode of

recruitment to public service. Such recruitments were, in

the opinion of this Court, in complete negation of the

guarantees contained in Articles 14 and 16 of the

Constitution. Having said so, this Court did not upset the

regularisations that had already taken place, regardless of

whether such regularisations related to illegal or irregular

appointments. The ratio of the decision in that sense was

prospective in its application, leaving untouched that which

had already happened before the pronouncement of that

decision. This is evident from the following passage

appearing in the decision:

“We also clarify that regularization, if any already

made, but not subjudice, 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.”

34

Page 35 35.The above is a significant feature of the pronouncement

of this Court in Umadevi’s case (supra). The second and

equally significant feature is the exception which this Court

made in para 53 of the decision permitting a one-time

exception for regularising services of such employees as had

been irregularly appointed and had served for ten years or

more. The State Government and its instrumentalities were

required to formulate schemes within a period of six months

from the date of the decision for regularisation of such

employees. This is evident from a reading of para 53 of the

decision which is reproduced in extenso:

“One aspect needs to be clarified. There may be

cases where irregular appointments (not illegal

appointments) as explained in S.V. Narayanappa

(supra), R.N. Nanjundappa (supra), and B.N.

Nagarajan (supra), 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

35

Page 36 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...”

(emphasis supplied)

36.Dr. Dhawan, learned senior counsel, appearing for the

appellants in some of these appeals argued, and in our

opinion rightly so, that both the aspects referred to above

bear considerable significance to the case at hand. He

submitted that regularisations granted by the State or its

instrumentalities given in regard to appointments that were

strictly speaking illegal had not been upset by this Court in

Umadevi’s case (supra). That being so, the impugned

Enactment by which the appointment of the appellants-

Stipendiary Engineers were regularised as Assistant

Engineers must also be treated to have been saved from the

rigour of the view taken in Umadevi’s case (supra). There

is merit in that contention. The decision in Umadevi’s case

(supra) stated the true legal position on the subject but

having regard to the fact that several earlier decisions of this

Court had sanctioned regularisation of those not regularly

appointed, this Court was of the view that upsetting such

36

Page 37 regularisations would not only unsettle what stood settled

but also gravely prejudice those who are benefitted from

such orders of regularisation. There is no gainsaying that

most of such persons who entered the public service initially

without going through any open competitive selection

process would have lost by passage of time their prospects

of entering public service by legal course even if vacancies

were available for such appointments. In some of the

decisions the continuance of employees on ad hoc,

temporary or daily-wage basis for an indefinite period was

seen by this Court also to be a violation of the fundamental

right to life apart from being discriminatory. Considering the

magnitude of the problem that would arise if all such

appointments were to be unsettled, this Court in Umadevi’s

case (supra) left such regularisation alone and declared that

in the future such orders of appointments dehors rules

would not qualify for the grant of regularisation in public

employment.

37.Equally important is the fact that even after declaring

the true legal position on the subject and even after

deprecating the practice of appointing people by means

37

Page 38 other than legitimate, this Court felt that those who had

served for ten years or so may be put to extreme hardship if

they were to be discharged from service and, therefore,

directed the formulation of a scheme for their regularisation.

This was no doubt a one-time measure, but so long as the

appointment sought to be regularised was not illegal, the

scheme envisaged by para 53 of the decision (supra)

extracted above permitted the State to regularise such

employees. Dr. Dhawan argued that the appellants-

Stipendiary Engineers had, by the time the decision in

Umadevi’s case (supra) was pronounced, qualified for the

benefit of a scheme of regularisation having put in ten years

as ad hoc Assistant Engineers and fifteen years if their

tenure was to be counted from the date of their employment

as Stipendiary Engineers. He contended that even in the

absence of a Validation Act, Stipendiary Engineers appointed

on ad hoc basis as Assistant Engineers, who had worked for

nearly ten years to the full satisfaction of the State

Government would have been entitled to regularisation of

their services in terms of any such scheme.

38

Page 39 38.On behalf of the diploma holder Junior Engineers, it

was contended by Mr. Sisodia that the appointment of

Stipendiary degree holders as ad hoc Assistant Engineers

was not irregular but illegal. It was contended that

Stipendiary Engineers were appointed on ad hoc basis

without following the procedure permitted under the rules

which, inter alia, entitled the degree holder Junior Engineers

also to compete. He submitted that although diploma holder

Junior Engineers were not entitled to compete against the

vacancies on the direct recruitment quota in the cadre of

Assistant Engineers, yet they were entitled to argue that any

appointment to the cadre ought to be made in accordance

with the rules especially when regularisation of degree

holder Stipendiary Engineers would give them advantage in

seniority to the prejudice of the diploma holder Junior

Engineers who may at their own turn be promoted in the

cadre of Assistant Engineers. We have no hesitation in

rejecting that contention. Diploma holder Junior Engineers

were not, admittedly, eligible to be appointed as Assistant

Engineers in the direct recruitment quota. They could not

make a grievance against regularisation simply because of

39

Page 40 the fact that those regularised may figure above them in

seniority. Seniority is an incident of appointment to the

cadre which must be regulated by the relevant rules. Any

possible prejudice to diploma holders in terms of seniority

would not, therefore, make the regularisation

unconstitutional or illegal and hence beyond the purview of

para 53 in Umadevi’s case (supra).

39.Mr. Patwalia, learned senior counsel appearing for the

degree holder Junior Engineers who were also appointed on

ad hoc basis as Assistant Engineers against 5% quota which

the Government resolution had provided for, argued that

although degree holder Junior Engineers are eligible for

appointment against the vacancies in direct recruits quota,

that opportunity was not available to his clients when the

degree holder Junior Engineers were appointed as Assistant

Engineers. He contended that Junior Engineer degree

holders who were appointed as ad hoc Assistant Engineers

against 5% quota reserved for them under the Government

resolution would have no objection to the regularisation

being upheld provided degree holder Junior Engineers who

had served for a relatively longer period as Assistant

40

Page 41 Engineers on ad hoc basis were also given a similar

treatment. He submitted that the exclusion of degree holder

Junior Engineers from the legislative measure aimed at

regularising the Stipendiary degree holders was clearly

discriminatory and that the High Court was on that count

justified in holding that the Validation Act itself was ultra

vires. It was contended by Mr. Patwalia that even if the

legislature had restricted the benefit of regularisation to the

Stipendiary Engineers later appointed on ad hoc basis as

Assistant Engineers, there was no reason why this Court

could not extend the very same benefit to degree holder

engineers who had similarly worked for over 15 years.

40.The decision in Umadevi’s case (supra), as noticed

earlier, permitted regularisation of regular appointments and

not illegal appointments. Question, however, is whether the

appointments in the instant case could be described as

illegal and if they were not, whether the State could be

directed to regularise the services of the degree holder

Junior Engineers who have worked as ad hoc Assistant

Engineers for such a long period, not only on the analogy of

the legislative enactment for regularisation but also on the

41

Page 42 principle underlying para 53 of the decision in Umadevi’s

case (supra).

41.As to what would constitute an irregular appointment is

no longer res integra. The decision of this Court in State of

Karnataka v. M.L. Kesari and Ors. (2010) 9 SCC 247 ,

has examined that question and explained the principle

regarding regularisation as enunciated in Umadevi’s case

(supra). The decision in that case summed up the following

three essentials for regularisation (1) the employees worked

for ten years or more, (2) that they have so worked in a

duly sanctioned post without the benefit or protection of the

interim order of any court or tribunal and (3) they should

have possessed the minimum qualification stipulated for the

appointment. Subject to these three requirements being

satisfied, even if the appointment process did not involve

open competitive selection, the appointment would be

treated irregular and not illegal and thereby qualify for

regularisation. Para 7 in this regard is apposite and may be

extracted at this stage:

“7. It is evident from the above that there is an

exception to the general principles against

42

Page 43 “regularisation” enunciated in Umadevi, 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.”

42.It is nobody’s case that the degree holder Junior

Engineers were not qualified for appointment as Assistant

Engineers as even they possess degrees from recognised

institutions. It is also nobody’s case that they were not

appointed against the sanctioned post. There was some

debate as to the actual number of vacancies available from

time to time but we have no hesitation in holding that the

appointments made were at all relevant points of time

against sanctioned posts. The information provided by Mr.

Nageshwar Rao, learned Additional Solicitor General,

43

Page 44 appearing for the State of Orissa, in fact, suggests that the

number of vacancies was at all points of time more than the

number of appointments made on ad hoc basis. It is also

clear that each one of the degree holders has worked for

more than 10 years ever since his appointment as ad hoc

Assistant Engineer. It is in that view difficult to describe

these appointments of the Stipendiary Engineers on ad hoc

basis to be illegal so as to fall beyond the purview of the

scheme envisaged in Umadevi’s case (supra).

43.The upshot of the above discussion is that not only

because in Umadevi’s case (supra) this Court did not

disturb the appointments already made or regularisation

granted, but also because the decision itself permitted

regularisation in case of irregular appointments, the

legislative enactment granting such regularisation does not

call for interference at this late stage when those appointed

or regularised have already started retiring having served

their respective departments, in some cases for as long as

22 years.

44.We need to advert to one other aspect which bears

relevance to the issue whether regularisation under the

44

Page 45 impugned Enactment is legally valid. The appointment

process of unemployed degree holders, as noticed earlier,

started with the resolution passed by the State Government

which envisaged appointments of such unemployed

Graduate Engineers as Stipendiaries on a consolidated

stipend of Rs.2,000/- p.m. The resolution further envisaged

their absorption in service after a period of two years. Not

only that, appointments as Stipendiary Engineers were made

on the basis of a selection process and on the basis of merit

no matter determined de hors the relevant rules which

provided for appointments to the cadre to be made only

through the Public Service Commission. A reference to the

Public Service Commission was no doubt considered

unnecessary but the fact remains that appointment of

unemployed degree holders as Stipendiary Engineers were

made pursuant to a notification by which everyone who was

unemployed and held an Engineering degree in any

discipline was free to make an application. A large number

of unemployed engineers responded to the notification

inviting applications out of whom nearly 932 were selected

by a Selection Committee constituted for the purpose. What

45

Page 46 is significant is that the empanelment of the unemployed

degree holders for appointment as Stipendiaries did not

invite any criticism from any quarter either as to the method

of appointment or the fairness of the selection process. The

process of appointment was at no stage questioned before

the Court, a feature which is notable keeping in view the

number of people appointed/empanelled and a larger

number who were left out and who could have possibly

made a grievance if there was any. It is not, therefore,

wholly correct to suggest that the entry of the degree holder

Junior Engineers as Stipendiary Engineers and later as

Assistant Engineers was through “the backdoor”, an

expression very often used in service matters where

appointments are made de hors the rules. The process of

selection and appointments may not have been as per the

relevant rules as the same ought to have been, but it is far

from saying that there was complete arbitrariness in the

manner of such appointments so as to violate Articles 14

and 16 of the Constitution of India.

45.That apart the appointment of Stipendiary Engineers

was at the level of Junior Engineers although it was argued

46

Page 47 on their behalf that they were discharging the functions of

Assistant Engineers from the date they were employed. In

the absence of any finding from the High Court on the

subject and in the absence of any cogent material before us

to support that claim, we find it difficult to hold that the

appointment of the Stipendiary Engineers was from the

beginning itself as Assistant Engineers. The fact that the

resolution of the State Government itself envisaged

appointment of Stipendiary Engineers as ad hoc Assistant

Engineers on the basis of performance makes it amply clear

that the Stipendiary Engineers were not treated as Assistant

Engineers for otherwise there would have been no question

of appointing them as Assistant Engineers on ad hoc or any

other basis. It is also noteworthy that the appointment of

the Stipendiary Engineers on ad hoc basis came pursuant to

the direction from the High Court which is yet another

reason why it is not open to the Stipendiary Engineers to

claim that they were at all points of time working as

Assistant Engineers. Having said that we cannot lose sight of

the fact that the appointment of graduate engineers as

Stipendiaries was on a clear representation that they would

47

Page 48 be eventually absorbed in service as Assistant Engineers.

That representation is evident from the resolution of the

State Government where it stated:

“In all, therefore, 741 posts will be available

for recruiting these Degree Engineers in the first

instance. They may be designed as Junior Engineers

or Stipendiary Engineers in the first phase. They

may be paid salary in the scale of Junior Engineers

or in a consolidated stipend of Rs.2,000/- per month.

Absorption into regular posts may be done after two

years on the basis of their performance.”

46.In the counter-affidavit filed by the State Government

before the High Court the State re-affirmed its commitment

to the appointment of Stipendiary Engineers as Assistant

Engineers on ad hoc basis.

47.In the circumstances and taking a holistic view of the

matter, it cannot be said that the appointment of

Stipendiary Engineers on ad hoc basis and their subsequent

regularisation came as a side wind or was inspired by any

political or other consideration. The Government, it appears,

was from the very beginning, keen to utilise the services of

unemployed Graduate Engineers selected on their merit by

the Selection Committee and, therefore, remained steadfast

in its efforts for achieving that purpose and in the process

48

Page 49 going even to the extent of getting them regularised by a

legislative measure. Suffice it to say that the question

whether regularisation was justified cannot be viewed in

isolation or divorced from the context in which the same

arises.

48.We may now turn to the contention urged by Mr.

Patwalia, that the impugned Legislation was discriminatory

in as much as it granted regularisation to persons similarly

situated while denying such benefit to his client who not only

held a degree qualification like the Stipendiary Engineers but

were in terms of the Government resolution promoted as Ad

hoc Assistant Engineers against 5% quota reserved for

them. It was argued that State could not have classified ad

hoc Assistant Engineers who came from the Stipendiary

Engineers stream, on one hand, and those appointed as ad

hoc Assistant Engineers on account of their being in service

as Junior Engineers holding a degree qualification. The

degree holder Junior Engineers, it was contended, were in

comparison better entitled to regularisation as they had not

only the requisite qualification but had put in longer service

as ad hoc Assistant Engineers vis-a-vis their Stipendiary

49

Page 50 counterparts. Alternatively, it was contended that the degree

holder Junior Engineers who too had put in more than 15

years service, were entitled to a direction for their

regularisation as Assistant Engineers not only on account of

the length of service rendered by them but also on the

analogy of the legislative benefit extended to their

counterpart Stipendiaries.

49.The approach to be adopted and the principles

applicable to any forensic exercise aimed at examining the

validity of a legislation on the touchstone of Article 14 of the

Constitution have been long since settled by several

decisions of this Court. Restatement or repetition of those

principles was, therefore, considered platitudinous. The real

difficulty as often acknowledged by this Court lies not in

stating the principles applicable but in applying them to

varying fact situations that come up for consideration. Trite

it is to say at the outset that a piece of legislation carries

with it a presumption of constitutional validity. Also settled

by now is the principle that Article 14 does not forbid

reasonable classification. A classification is valid on the anvil

50

Page 51 of Article 14, if the same is reasonable that is it is based on

a reasonable and rational differentia and has a nexus with

the object sought to be achieved. (See State of West

Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 and Ram

Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.

AIR 1958 SC 538 ). A comprehensive review of the law is,

in our opinion, unnecessary at this stage in view of the

Constitution Bench decision of this Court in Re: The Special

Courts Bill, 1978 (1979) 1 SCC 380 where this Court

undertook that exercise and noticed as many as thirteen

propositions that bear relevance to any forensic

determination of the validity of a law by reference to the

equality clause enshrined in Article 14 of the Constitution.

Some of those principles were stated by this Court in the

following words:

“xxx xxx xxx

(2) The State, in the exercise of its governmental

power, has of necessity to make laws operating

differently on different groups or classes of persons

within its territory to attain particular ends in giving

effect to its policies, and it must possess for that

purpose large powers of distinguishing and

classifying persons or things to be subjected to such

laws.

51

Page 52 (3) The constitutional command to the State to

afford equal protection of its laws sets a goal not

attainable by the invention and application of a

precise formula. Therefore, classification need not be

constituted by an exact or scientific exclusion or

inclusion of persons or things. The courts should not

insist on delusive exactness or apply doctrinaire

tests for determining the validity of classification in

any given case. Classification is justified if it is not

palpably arbitrary.

(4) The principle underlying the guarantee of Article

14 is not that the same rules of law should be

applicable to all persons within the Indian territory

or that the same remedies should be made available

to them irrespective of differences of circumstances.

It only means that all persons similarly

circumstanced shall be treated alike both in

privileges conferred and liabilities imposed. Equal

laws would have to be applied to all in the same

situation, and there should be no discrimination

between one person and another if as regards the

subject-matter of the legislation their position is

substantially the same.

(5) By the process of classification, the State has the

power of determining who should be regarded as a

class for purposes of legislation and in relation to a

law enacted on a particular subject. This power, no

doubt, in some degree is likely to produce some

inequality; but if a law deals with the liberties of a

number of well defined classes, it is not open to the

charge of denial of equal protection on the ground

that it has no application to other persons.

Classification thus means segregation in classes

which have a systematic relation, usually found in

common properties and characteristics. It postulates

a rational basis and does not mean herding together

of certain persons and classes arbitrarily.

(6) The law can make and set apart the classes

according to the needs and exigencies of the society

and as suggested by experience. It can recognise

even degree of evil, but the classification should

never be arbitrary, artificial or evasive.

52

Page 53 (7) The classification must not be arbitrary but must

be rational, that is to say, it must not only be based

on some qualities or characteristics which are to be

found in all the persons grouped together and not in

others who are left out but those qualities or

characteristics must have a reasonable relation to

the object of the legislation. In order to pass the

test, two conditions must be fulfilled, namely, (1)

that the classification must be founded on an

intelligible differentia which distinguishes those that

are grouped together from others and (2) that that

differentia must have a rational relation to the object

sought to be achieved by the Act.

(8) The differentia which is the basis of the

classification and the object of the Act are distinct

things and what is necessary is that there must be a

nexus between them. In short, while Article 14

forbids class discrimination by conferring privileges

or imposing liabilities upon persons arbitrarily

selected out of a large number of other persons

similarly situated in relation to the privileges sought

to be conferred or the liabilities proposed to be

imposed, it does not forbid classification for the

purpose of legislation, provided such classification is

not arbitrary in the sense abovementioned.

xxx xxx xxx

(11) Classification necessarily implies the making of

a distinction or discrimination between persons

classified and those who are not members of that

class. It is the essence of a classification that upon

the class are cast duties and burdens different from

those resting upon the general public. Indeed, the

very idea of classification is that of inequality, so

that it goes without saying that the mere fact of

inequality in no manner determines the matter of

constitutionality.

xxx xxx xxx”

50.Applying the above to the case at hand, the first and

foremost question would be whether the classification of ad

53

Page 54 hoc Assistant Engineers is reasonable, that there is a

reasonable differentia that distinguishes those grouped

together for the grant of the benefit from those left out and

if there is such a differentia, whether the classification has a

reasonable nexus with the object underlying the legislation.

51.The second and by no means less important is the

question whether the impugned legislation is ultra vires of

Article 14 because of under inclusion. That is because the

argument of the writ petitioners in substance is that the

legislation ought to have included even in-service Junior

Engineers degree holders working as Ad hoc Assistant

Engineers for the benefit of regularisation.

52.There is no difficulty in answering the first question.

We say so because the beneficiaries of the impugned

legislation constitute a class by themselves inasmuch as

they were un-employed degree holders appointed as

Stipendiary Engineers on a consolidated pay. The method of

their employment was also different inasmuch as although

they were selected on the basis of inter-se merit, the

process of selection itself was not conducted by the Public

54

Page 55 Service Commission. Their appointment as ad hoc Assistant

Engineers also came pursuant to a direction issued by the

High Court no matter the direction itself was based on a

resolution passed by the State Government that provided for

such appointments upon proof of satisfactory performance.

The object underlying the legislation evidently being to

ensure continued utilisation of the services of such

Stipendaries appointed on ad hoc basis as Assistant

Engineers, there was a reasonable nexus between the

classification and the object sought to be achieved. It is not

the case of writ petitioners that Stipendiary Engineers

appointed as ad hoc Assistant Engineers were left out of the

group for a hostile treatment by refusal of the benefit

extended to others similarly situated. What the writ

petitioners contend in support of their challenge to the

validity of the legislation is that since they were also

appointed on ad hoc basis though in a different way, the

legislation was bad for under inclusion. We shall presently

deal with the test applicable to cases where the challenge to

the legislation is founded on under inclusion but before we

do so, we need to dispel the impression that the writ

55

Page 56 petitioners were similarly situated as the Stipendiaries only

because they were also working as ad hoc Assistant

Engineers. There is no gainsaying that the legislation does

not aim at regularising all ad hoc Assistant Engineers

regardless of the circumstances in which such appointments

came about. If that were so, the writ petitioners could well

argue that since the object underlying the enactment is to

regularise all ad hoc Assistant Engineers, they could not be

left out without violating their fundamental rights under

Article 14 of the Constitution. The impugned legislation,

however, has limited its beneficence to ad hoc Assistant

Engineers who came in as Stipendiary Engineers pursuant to

a policy decision of the State Government that aimed at

utilising their services and dealing with the unemployment

problem in the State. That being the object, ad hoc Assistant

Engineers appointed by other modes or in circumstances

other than those in which Stipendiaries entered the service,

cannot cry foul or invite the wrath of Article 14 upon the

legislation. As a matter of fact, the State Government’s

resolve to give 5% vacancies to in service degree holder

Junior Engineers itself brought about a classification

56

Page 57 between Stipendiaries on one hand and the in-service Junior

Engineers on the other. The proposed reservation having run

into rough waters because of the opposition of the Orissa

Public Service Commission, the in-service Junior Engineer

writ petitioners before the High Court lost their fight for a

share in the higher cadre of Assistant Engineers based on

their higher qualification. Suffice it to say that Stipendiary

Engineers later appointed as ad hoc Assistant Engineers

were a class by themselves and any benefit to them under

the impugned Enactment could not be grudged by in-service

Junior Engineers no matter the latter had in anticipation of

the amendment to the recruitment rules also got appointed

as ad hoc Assistant Engineers.

53.Coming then to the question of “under inclusion” we

need to keep in mind that a challenge based on “under

inclusion” is not readily accepted by Courts. Constitution

Bench’s decision of this Court in State of Gujarat and Anr.

v. Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974)

4 SCC 656, dealt with the question of a classification which

was under inclusive and declared that having regard to the

57

Page 58 real difficulties under which legislatures operate, the Courts

have refused to strike down legislations on the ground that

they are under inclusive. The Court observed:

“55. A classification is under-inclusive when all who

are included in the class are tainted with the

mischief but there are others also tainted whom the

classification does not include. In other words, a

classification is bad as under-inclusive when a State

benefits or burdens persons in a manner that

furthers a legitimate purpose but does not confer the

same benefit or place the same burden on others

who are similarly situated. A classification is over-

inclusive when it includes not only those who are

similarly situated with respect to the purpose but

others who are not so situated as well. In other

words, this type of classification imposes a burden

upon a wider range of individuals than are included

in the class of those attended with mischief at which

the law aims. Herod ordering the death of all male

children born on a particular day because one of

them would some day bring about his downfall

employed such a classification.

56. The first question, therefore, is, whether the

exclusion of establishments carrying on business or

trade and employing less than 50 persons makes the

classification under-inclusive, when it is seen that all

factories employing 10 or 20 persons, as the case

may be, have been included and that the purpose of

the law is to get in unpaid accumulations for the

welfare of the labour. Since the classification does

not include all who are similarly situated with respect

to the purpose of the law, the classification might

appear, at first blush, to be unreasonable. But the

Court has recognised the very real difficulties under

which legislatures operate - difficulties arising out of

both the nature of the legislative process and of the

society which legislation attempts perennially to re-

shape - and it has refused to strike down

indiscriminately all legislation embodying

classificatory inequality here under consideration.

Mr. Justice Holmes, in urging tolerance of under-

inclusive classifications, stated that such legislation

58

Page 59 should not be disturbed by the Court unless it can

clearly see that there is no fair reason for the law

which would not require with equal force its

extension to those whom it leaves untouched.”

(emphasis supplied)

54.The above was followed by this Court in The

Superintendent and Remembrancer of Legal Affairs,

West Bengal v. Girish Kumar Navalakha and Ors.

(1975) 4 SCC 754 where this Court held that some

sacrifice of absolute equality may be required in order that

legal system may preserve the flexibility to evolve new

solutions to social and economic problems. This Court said:

“8. Often times the courts hold that under-

inclusion does not deny the equal protection of laws

under Article 14. In strict theory, this involves an

abandonment of the principle that classification must

include all who are similarly situated with respect to

the purpose. This under-inclusion is often explained

by saying that the legislature is free to remedy parts

of a mischief or to recognize degrees of evil and

strike at the harm where it thinks it most acute.

xxxxxxxxxxxx

10. There are two main considerations to justify an

under-inclusive classification. First, administrative

necessity. Second, the legislature might not be fully

convinced that the particular policy which it adopts

will be fully successful or wise. Thus to demand

application of the policy to all whom it might logically

encompass would restrict the opportunity of a State

to make experiment. These techniques would show

59

Page 60 that some sacrifice of absolute equality may be

required in order that the legal system may preserve

the flexibility to evolve new solutions to social and

economic problems. The gradual and piecemeal

change is often regarded as desirable and legitimate

though in principle it is achieved at the cost of some

equality. It would seem that in fiscal and regulatory

matters the court not only entertains a greater

presumption of constitutionality but also places the

burden on the party challenging its validity to show

that it has no reasonable basis for making the

classification.”

55.The above decisions were followed in Ajoy Kumar

Banerjee and Ors. v. Union of India and Ors. (1984) 3

SCC 127 where this Court observed:

“...Article 14 does not prevent legislature from

introducing a reform i.e. by applying the legislation

to some institutions or objects or areas only

according to the exigency of the situation and

further classification of selection can be sustained on

historical reasons or reasons of administrative

exigency or piecemeal method of introducing

reforms. The law need not apply to all the persons in

the sense of having a universal application to all

persons. A law can be sustained if it deals equally

with the people of well-defined class-employees of

insurance companies as such and such a law is not

open to the charge of denial of equal protection on

the ground that it had no application to other

persons.”

56.We have in the light of the above no hesitation in

holding that the legislation under challenge does not suffer

from any constitutional infirmity and that the High Court was

in error in having struck it down.

60

Page 61 57.Having said that we are of the opinion that even when

the challenge to the constitutional validity of the impugned

enactment fails, the degree holder Junior Engineers

currently working as ad hoc Assistant Engineers are entitled

to the relief of regularisation in service, having regard to the

fact that they have rendered long years of service as

Assistant Engineers on ad hoc basis for 17 to 18 years in

some cases. While it is true that those in service degree

holders working as Junior Engineers were not the

beneficiaries of the legislation under challenge, the fact

remains, that they were eligible for appointment as Assistant

Engineers on account of their being degree holders. It is also

not in dispute that they were appointed against substantive

vacancies in the cadre of Assistant Engineers no matter by

utilizing the direct recruit quota. Even in the case of

Stipendiary Engineers the vacancies were utilized out of the

67% quota meant for direct recruitment. What is, however,

significant is that the utilization of the quota reserved for

direct recruitment for appointing Stipendiary and Junior

Engineers as Assistant Engineers has not been assailed

either before the High Court or before us. On the contrary

61

Page 62 the contention urged on behalf of Junior Engineers degree

holders who are still working as Junior Engineers was that

the remainder of vacancies comprising 5% of the cadre

strength should be utilised to appoint the eligible degree

holder Junior Engineers. We shall presently deal with that

contention. Suffice it to say for the present that the

appointments granted to degree holder Junior Engineers as

Assistant Engineers on ad hoc basis were pursuant to a

Government decision whereunder such degree holders as

were already in-service as Junior Engineers, were also given

an opening for upward movement. Appointment of such

degree holders was not grudged by their diploma holder

colleagues as no challenge was mounted by them to such

appointments ostensibly because degree holder Junior

Engineers were getting appointed without in the least

affecting the quota of 33% reserved for the promotees. In a

way the upward movement of the degree holders as

Assistant Engineers brightened the chances of the rest to get

promoted at their turn in the promotees quota. All told, the

Junior Engineers have served for almost a lifetime and held

substantive vacancies no matter on ad hoc basis. To revert

62

Page 63 them at this distant point of time would work hardship to

them. Besides, we cannot ignore the march of events

especially the fact that Stipendaries appointed at a later

point of time with the same qualifications and pursuant to

the very same Government policy as took shape for both the

categories, have been regularised by the Government

through the medium of a legislation. That this Court can

suitably mould the relief, was not in serious controversy

before us. In the circumstances, we hold the degree holder

Junior Engineers currently working as Assistant Engineers on

ad hoc basis writ petitioners in the High Court entitled to the

relief of regularisation with effect from the same date as the

Validation Act granted such regularisation to the Stipendiary

Engineers.

58.We shall advert to the question of inter se seniority

between the two categories while we take up question No.3.

But before we turn to question No.3 we need to briefly deal

with the contention urged on behalf of some of the degree

holder Junior Engineers represented by Mr. Dholakia who

contended that since the Government resolution had

63

Page 64 provided for 5% quota for degree holder Junior Engineers

the Government was duty bound to make appointments

against that quota. It was urged that the cadre strength of

the Assistant Engineers had not been presently determined

by the Government nor were the figures given by the State

Government accurate. The number of Junior Engineers who

should have got appointed against 5% quota reserved for

them would have been large, agreed Mr. Dholakia. To the

extent of shortfall the State Government was bound to

continue the process of appointment, contended the learned

counsel.

59.There is, in our opinion, no merit in the submissions

urged by Mr. Dholakia and by learned counsel for some of

the interveners. We say so because the quota which the

Government resolution proposed to carve out never

fructified by a corresponding amendment of the Service

Rules. As noticed in the earlier part of this order, the Orissa

Public Service Commission was not agreeable to the

reservation of a quota for the subordinate engineering

service members who held a degree qualification. No such

64

Page 65 classification was, therefore, made or could be made by the

Government, nor was the Government resolution translated

into a binding rule that could be enforced by a Court of law.

Assuming, therefore, that on a true and proper

determination of the posts comprising the cadre strength of

Assistant Engineers, some more vacancies could fall in the

5% quota proposed to be reserved for the degree holder

Junior Engineers and no mandamus could be issued for filing

up such vacancies. It is trite that existence of an enforceable

right and a corresponding obligation is a condition precedent

for the issue of a mandamus. We fail to locate any such right

in favour of the writ petitioner degree holders who are still

holding posts as Junior Engineers. They will have, therefore,

to wait for their turn for promotion against the 33% quota

reserved for them along with their diploma holder

colleagues. We hardly need to emphasise that those

appointed against 5% quota may also have had no such

right, but since they have worked in the higher cadre for a

long period and discharged duties attached to the posts of

Assistant Engineers with the benefits attached thereto, their

regularisation comes on a totally different juristic basis than

65

Page 66 the one sought to be urged on behalf of those who were left

out. Appointments as Assistant Engineers were from out of

Junior Engineers made strictly according to seniority. The

fortuitous circumstance under which the appointments did

not extend to the full quota of 5% would make no material

difference when it comes to finding out whether the Junior

Engineers can claim an enforceable legal right.

60.Question No.2 is answered accordingly.

Re. Question No.3

61.Section 3(2) of the impugned legislation deals entirely

with the inter se seniority of Assistant Engineers whose

appointments are validated/regularised by the said

enactment and stipulates that such inter se seniority shall be

determined according to the dates of appointment of the

officers concerned on ad hoc basis as mentioned in the

schedule. It further stipulates that all those regularised

under the legislation shall be enbloc junior to the Assistant

Engineers of that year appointed to the service in their

respective discipline in their cadre in accordance with the

provisions of the Recruitment Rules. Sub-section (3) of

66

Page 67 Section 3 makes the ad hoc service rendered by such

Assistant Engineers count for the purpose of their pension,

leave and increments and for no other purpose.

62.Appearing for the State of Orissa, Mr. Nageshwar Rao

contended that grant of seniority to ad hoc Assistant

Engineers regularised under the legislation w.e.f. the date

they were appointed on ad hoc basis was legally permissible

especially when the ad hoc appointments had continued

without any interruption till their regularisation. Reliance in

support was placed by Mr. Rao upon a Constitution Bench

decision of this Court in Direct Recruit Class II

Engineering Officers’ Association v. State of

Maharashtra and Ors. (1990) 2 SCC 715 . The case at

hand, according to the learned counsel, fell under

proposition (B) formulated in the said decision. Grant of

seniority from the date of initial appointments did not,

therefore, suffer from any constitutional or other infirmity to

warrant interference from this Court.

63.Mr. Sisodia appearing for some of the parties, on the

other hand, contended that seniority could be granted only

from the date of regularisation under the enactment and not

67

Page 68 earlier. Learned counsel for some of the interveners adopted

that contention, including Ms. Aishwarya appearing for some

of the diploma holder Junior Engineers and urged that ad

hoc service rendered by the Engineers appointed otherwise

than in accordance with the rules could not count for the

purposes of seniority and that even if Section 3(1) of the

Validation Act was held to be valid, Section 3(2) which gave

retrospective seniority from the date they were first

appointed on ad hoc basis must go.

64.In Direct Recruit’s case (supra) this Court reviewed

and summed up the law on the subject by formulating as

many as 11 propositions out of which propositions A and B

stated in Para 47 of the decision in the following words are

relevant for our purposes:

“47. To sum up, we hold that:

(A)Once an incumbent is appointed to a post

according to rule, his seniority has to be counted

from the date of his appointment and not according

to the date of his confirmation.

The corollary of the above rule is that where

the initial appointment is only ad hoc and not

according to rules and made as a stop-gap

arrangement, the officiation in such post cannot be

taken into account for considering the seniority.

(B)If the initial appointment is not made by

following the procedure laid down by the rules but

the appointee continues in the post uninterruptedly

68

Page 69 till the regularisation of his service in accordance

with the rules, the period of officiating service will be

counted.”

65.There was some debate at the bar whether the case at

hand is covered by corollary to proposition A or by

proposition B (supra). But having given our consideration to

the submissions at the Bar we are inclined to agree with Mr.

Rao’s submission that the case at hand is more

appropriately covered by proposition B extracted above. We

say so because the initial appointment of ad hoc Assistant

Engineers in the instant case was not made by following the

procedure laid down by the Rules. Even so, the appointees

had continued in the posts uninterruptedly till the Validation

Act regularised their service. There is, in the light of those

two significant aspects, no room for holding that grant of

seniority and other benefits referred to in Section 3(3) of the

impugned Act were legally impermissible or violated any

vested right of the in service Assistant Engineers appointed

from any other source. Proposition A, in our opinion, deals

with a situation where an incumbent is appointed to a post

according to the rules but the question that arises for

69

Page 70 determination is whether his seniority should be counted

from the date of his appointment or from the date of his

confirmation in the said service. The corollary under

proposition A, in our opinion, deals with an entirely different

situation, namely, where the appointment is ad hoc and

made as a stop-gap-arrangement in which case officiation in

such post cannot be taken into consideration for seniority.

Be that as it may, as between proposition A and B the case

at hand falls more accurately under proposition B which

permits grant of seniority w.e.f. the date the appointees first

started officiating followed by the regularisation of their

service as in the case at hand.

66.We may also refer to a three-Judge Bench of this Court

in Union of India and Anr. etc. etc. v. Lalita S. Rao and

Ors. etc. etc. (2001) 5 SCC 384 where doctors appointed

by Railway Administration on ad hoc basis had been upon

regularisation granted seniority from the date of their ad hoc

appointment. This Court held that proposition B stated in

Direct Recruits case (supra) permitted such seniority being

granted. This Court observed:

70

Page 71 “Obviously the Court had in mind the principle B

evolved by the Constitution Bench in the Direct

Recruit Engineering Officers Association case

(supra). If the initial appointment had not been

made in accordance with the prescribed procedure

laid down by the Recruitment Rules, and yet the

appointees Medical Officers were allowed to continue

in the post uninterruptedly and then they appeared

at the selection test conducted by the Union Public

Service Commission, and on being selected their

services stood regularised then there would be no

justification in not applying the principle 'B' of the

Direct Recruit Class II Engineering Officers

Association case (supra) and denying the period of

officiating services for being counted for the purpose

of seniority.”

67.Reference may also be made to the decision of this

Court in State of Andhra Pradesh & Anr. V. K.S.

Muralidhar & Ors. (1992) 2 SCC 241 where the

Government of India gave weightage to service rendered by

employees prior to their regularisation. The dispute in that

case was regarding inter se seniority between the

Supervisors who were upgraded as Junior Engineers and the

degree holders who were directly appointed as Junior

Engineers. This Court held that the State Government had

as a matter of policy given weightage to both the categories

and that there was nothing unreasonable in giving a limited

71

Page 72 benefit or weightage to the upgraded Supervisors in the light

of their experience. This Court said:

“The question to be considered is from which date

the weightage of four years' service should be given

to the upgraded Junior Engineers namely the

Supervisors. Is it the date of acquiring the degree

qualification or the date of their appointment?

Having given our earnest consideration and for the

reasons stated above we hold that the weightage can

be given only from the date of their appointment.

The Tribunal in the course of its order, however,

observed that in accordance with the existing rules

the appointments of these Junior Engineers from the

notional date have to be cleared by the Public

Service Commission and the appointments cannot be

held to be regular appointments as long as they are

not approved by the Public Service Commission.

Xx xx xx

To sum up, our conclusions are as under:

(i) The weightage of four years in respect of

upgraded Junior Engineers as provided in G.O. Ms.

No. 559 has to be reckoned from the date of

appointment and not the date of their acquiring the

degree qualification;

(ii) On the basis of that notional date, their inter-se

seniority has to be fixed;

(iii) The regularisation of the degree-holder Junior

Engineers who passed the SQT by giving

retrospective effect cannot be held to be illegal, and

their seniority among themselves shall be subject to

the order of ranking given by the Public Service

Commission on the basis of the SQT;

(iv) The Government shall prepare a common

seniority list of the degree-holders Junior Engineers

and the upgraded Junior Engineers on the above

lines and that list shall be the basis for all the

subsequent promotions. Promotions, if any, already

given shall be reviewed and readjusted in

accordance with the said seniority list; and

72

Page 73 (v) The approval of the Public Service Commission in

respect of these appointments and their seniority

thus fixed need not be sought at this distance of

time.”

(emphasis supplied)

68.In Narender Chadha & Ors. v. Union of India &

Ors. (1986) 2 SCC 157, this Court was dealing with a

somewhat similar fact situation. The petitioners in that case

were not promoted by following the actual procedure

prescribed by the relevant Service Rules even though the

appointments were made in the name of the President by

the competent authority. They had based on such

appointments, continuously held the post to which they were

appointed and received salary and allowances payable to

incumbent of such post. The incumbents were entered in the

direct line of their promotion. The question, however, was

whether it would be just and proper to hold that such

promotees had no right to the post held by them for 15-20

years and could be reverted unceremoniously or treated as

persons not belonging to the service at all. Repelling the

argument that such service would not count for the purposes

of seniority, this Court observed:

73

Page 74 “ It would be unjust to hold at this distance of time

that on the facts and in the circumstances of this

case the petitioners are not holding the posts n

Grade IV. The above contention is therefore without

sub-stance. But we, however, make it clear that it is

not our view that whenever a person is appointed in

a post without following the Rules prescribed for

appointment to that post, he should be treated as a

person regularly appointed to that post. Such a

person may be reversed from that post. But in a case

of the kind before us where persons have been

allowed to function in higher posts for 15 to 20 years

with due deliberation it would be certainly unjust to

hold that they have no sort of claim to such posts

and could be reverted unceremoniously or treated as

persons not: belonging to the Service at all,

particularly where the Government is endowed with

the power to relax the Rules to avoid unjust results.

In the instant case the Government has also not

expressed its unwillingness to continue them in the

said posts. The other contesting respondents have

also not urged that the petitioners should be sent out

of the said posts. The only question agitated before

us relates to the seniority as between the petitioners

and the direct recruits and such a question can arise

only where there is no dispute regarding the entry of

the officers concerned into the same Grade. In the

instant case there is no impediment even under the

Rules to treat these petitioners and others who are

similarly situated as persons duly appointed to the

posts in Grade IV because of the enabling provision

contained in the Rule 16 thereof. Rule 16 as it stood

at the relevant time read as follows :

16. The Government may relax the

provisions of these rules to such extent

as may be necessary to ensure

satisfactory working or remove in-

equitable results.”

(emphasis supplied)

69.The ratio of the decision in the above case was not

faulted by the Constitution Bench of this Court in Direct

74

Page 75 Recruit’s case (supra). As a matter of fact the Court

approved the said decision holding that there was force in

the view taken by this Court in that case. This Court

observed:

“In Narender Chadha v. Union of India the officers

were promoted although without following the

procedure prescribed under the rules, but they

continuously worked for long periods of nearly 15-20

years on the posts without being reverted. The period

of their continuous officiation was directed to be

counted for seniority as it was held that any other

view would be arbitrary and violative of Articles 14

and 16. There is considerable force in this view also.

We, therefore, confirm the principle of counting

towards seniority the period of continuous officiation

following an appointment made in accordance with

the rules prescribed for regular substantive

appointments in the service.”

70.In the light of what we have said above, we do not see

any illegality or constitutional infirmity in the provisions of

Section 3(2) or 3(3) of the impugned legislation.

71.Having said so, there is no reason why a similar

direction regarding the writ-petitioners degree holder Junior

Engineers who have been held by us to be entitled to

regularisation on account of their length of service should

also not be given a similar benefit. We must mention to the

credit of Dr. Dhawan, appearing for the Stipendiary

75

Page 76 Engineers who have been regularised under the provisions of

the Legislation that such Stipendiary-ad hoc Assistant

Engineers cannot, according to the learned counsel, have

any objection to the degree holder Junior Engineers

currently working as Assistant Engineers on ad hoc basis

being regularised in service or being given seniority from the

date they were first appointed. It was also conceded that

Stipendiary Engineers all of whom were appointed after the

appointment of the Junior Engineers would enbloc rank

junior to such ad hoc Assistant Engineers from out of degree

holder Junior Engineers. But all such regularised Assistant

Engineers from Stipendiary Stream and from Junior

Engineers category would together rank below the promotee

Assistant Engineers.

72.Question No.3 is answered accordingly.

73.Several intervention applications have been filed in

these appeals to which we may briefly refer at this stage. In

IA No.5 of 2012 filed in Civil Appeal No.8324 of 2009, the

interveners have sought permission for the State

Government to complete the re-structuring process and to

76

Page 77 fill up the vacancies subject to a final decision of this Court

in these appeals. In IA Nos.6 and 7 of 2012 also filed in Civil

Appeal No.8324 of 2009, the interveners seek a direction to

the State of Orissa to upgrade the post of Assistant

Engineers Class II (Group B) to Assistant Executive Engineer

Junior Class I (Group A) and to make such up-gradation

retrospective w.e.f. 28

th

February, 2009. IA No.8 of 2012

has been filed in the very same appeal in which the

interveners have sought a direction against the State of

Orissa to give effect to the up-gradation of posts considering

inter se seniority of in-service degree holder Junior

Engineers who are otherwise eligible for appointment

against the vacancies reserved for direct recruits. In IA No.3

of 2009 in SLP No.29765 of 2008, the interveners seek

permission to support the judgment of the High Court

whereby the impugned legislation has been struck down as

unconstitutional. Similarly, IAs filed in some other appeals

either seek to support the judgment passed by the High

Court or pray for permission to argue the case on behalf of

one or the other party.

77

Page 78 74.We have heard counsel for the interveners also at some

length. We, however, do not consider it necessary to enlarge

the scope of these proceedings by examining issues that are

not directly related to the controversy at hand. Three

questions that have primarily engaged our attention in these

petitions relate to (a) the validity of the impugned Validation

Act. (b) regularization of in-service degree holder Junior

Engineers who have been working for considerable length of

time as Assistant Engineers on ad hoc basis and (c) the

seniority position of those being regularized either under the

Validation Act or in terms of the directions being issued by

us in these appeals. Other issues which the interveners seek

to raise especially issues regarding grant or denial of the

benefit of reservation to SC and ST candidates, have not

been touched by us in these proceedings for want of proper

pleadings on the subject and also for want of any

pronouncement by the High Court on the said questions. In

the circumstances, this order shall be taken to have settled

only what we have specifically dealt with or what would

logically follow therefrom. Any question whether the same

relates to inter se seniority of those regularized under the

78

Page 79 legislation or by reason of the directions which we propose

to issue or issues relating to the benefit of seniority on the

basis of roster points if any prescribed for that purpose are

left open and may be agitated by the aggrieved party before

an appropriate forum in appropriate proceedings. To the

extent any such questions or aspects have not been dealt

with by us in this order, may be dealt with in any such

proceedings. Beyond that we do not consider it proper or

necessary to say anything at this stage.

75.In the result we pass the following order:

(1)Civil Appeals No.8324-8331 of 2009 filed by the State

of Orissa and Civil Appeals No.8322-8323 of 2009 and

1940 of 2010 filed by the Stipendiary Engineers are

allowed and the impugned judgment and order dated

15

th

October, 2008 passed by the High Court of Orissa

set aside.

(2)Writ Petitions No.9514/2003, 12494/2005,

12495/2005, 12627/2005, 12706/2006 and 8630/2006

filed by the degree holders Junior Engineers working as

Assistant Engineers on ad hoc basis are also allowed

79

Page 80 but only to the limited extent that the services of the

writ-petitioners and all those who are similarly situated

and promoted as ad hoc Assistant Engineers against

the proposed 5% quota reserved for in-service Junior

Engineers degree holder shall stand regularized w.e.f.

the date Orissa Service of Engineers (Validation of

Appointment) Act, 2002 came into force. We further

direct that such in-service degree holder Junior

Engineers promoted as Assistant Engineers on ad hoc

basis shall be placed below the promotees and above

the Stipendiary Engineers regularized in terms of the

impugned legislation. The inter se seniority of the

Stipendiary Engineers regularized as Assistant

Engineers under the impugned Legislation and Junior

Engineer degree holders regularized in terms of this

order shall be determined on the basis of their date of

first appointment as Assistant Engineers on ad hoc

basis.

(3)Civil Appeal No.1768 of 2006 is resultantly allowed, the

judgment and order impugned therein set aside and

80

Page 81 Writ Petitions OJC Nos.6354-55 of 1999 disposed of in

terms of the above direction.

(4)Intervention applications filed in these appeals are also

disposed of in the light of observations made in Para 74

of this judgment.

(5)Parties are left to bear their own costs.

……………………….……….…..…J.

(T.S. THAKUR)

…………..…………………..…..…J.

(VIKRAMAJIT SEN)

New Delhi

February 19, 2014

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