These Civil Appeals are filed by the appellant- State of Jharkhand questioning the legality of the impugned judgment and order dated 08.11.2011 passed by the High Court of Jharkhand in Letters Patent Appeal No. ...
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Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4809 OF 2014
(ARISING OUT OF SLP(C) 266 OF 2012)
STATE OF JHARKHAND & ORS. ……APPELLANTS
VS.
KAMAL PRASAD & ORS. ………RESPONDENTS
With
CIVIL APPEAL NO.4837 OF 2014
(ARISING OUT OF SLP(C) NO. 21936 of 2013)
CIVIL APPEAL NO.4810 OF 2014
(ARISING OUT OF SLP(C) NO. 34437 of 2012)
CIVIL APPEAL NO.4811 OF 2014
(ARISING OUT OF SLP(C) NO. 36515 of 2012)
CIVIL APPEAL NO.4812 OF 2014
(ARISING OUT OF SLP(C) NO. 37628 of 2012)
CIVIL APPEAL NO.4813 OF 2014
(ARISING OUT OF SLP(C) NO. 37701 of 2012)
CIVIL APPEAL NO.4814 OF 2014
(ARISING OUT OF SLP(C) NO. 37702 of 2012)
CIVIL APPEAL NO.4815 OF 2014
Page 2 C.A@ SLP(C) No. 266 of 2012 etc.etc.
(ARISING OUT OF SLP(C) NO. 37740 of 2012)
CIVIL APPEAL NO.4816 OF 2014
(ARISING OUT OF SLP(C) NO. 37819 of 2012)
CIVIL APPEAL NO.4817 OF 2014
(ARISING OUT OF SLP(C) NO. 37834 of 2012)
CIVIL APPEAL NO.4818 OF 2014
(ARISING OUT OF SLP(C) NO. 37850 of 2012)
CIVIL APPEAL NO.4819 OF 2014
(ARISING OUT OF SLP(C) NO. 37864 of 2012)
CIVIL APPEAL NO.4820 OF 2014
(ARISING OUT OF SLP(C) NO. 37930 of 2012)
CIVIL APPEAL NO.4821 OF 2014
(ARISING OUT OF SLP(C) NO. 37952 of 2012)
CIVIL APPEAL NO.4822 OF 2014
(ARISING OUT OF SLP(C) NO. 37981 of 2012)
CIVIL APPEAL NO.4823 OF 2014
(ARISING OUT OF SLP(C) NO. 38012 of 2012)
CIVIL APPEAL NO.4824 OF 2014
(ARISING OUT OF SLP(C) NO. 38039 of 2012)
CIVIL APPEAL NO.4825 OF 2014
(ARISING OUT OF SLP(C) NO. 38044 of 2012)
CIVIL APPEAL NO.4826 OF 2014
(ARISING OUT OF SLP(C) NO. 38053 of 2012)
CIVIL APPEAL NO.4827 OF 2014
(ARISING OUT OF SLP(C) NO. 38224 of 2012)
CIVIL APPEAL NO.4828 OF 2014
(ARISING OUT OF SLP(C) NO. 38237 of 2012)
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Page 3 C.A@ SLP(C) No. 266 of 2012 etc.etc.
CIVIL APPEAL NO.4829 OF 2014
(ARISING OUT OF SLP(C) NO. 38242 of 2012)
CIVIL APPEAL NO.4830 OF 2014
(ARISING OUT OF SLP(C) NO. 38267 of 2012)
CIVIL APPEAL NO.4831 OF 2014
(ARISING OUT OF SLP(C) NO. 38323 of 2012)
CIVIL APPEAL NO.4832 OF 2014
(ARISING OUT OF SLP(C) NO. 38341 of 2012)
CIVIL APPEAL NO.4833 OF 2014
(ARISING OUT OF SLP(C) NO. 38404 of 2012)
CIVIL APPEAL NO.4834 OF 2014
(ARISING OUT OF SLP(C) NO. 38408 of 2012)
CIVIL APPEAL NO.4835 OF 2014
(ARISING OUT OF SLP(C) NO. 39206 of 2012)
AND
CIVIL APPEAL NO.4836 OF 2014
(ARISING OUT OF SLP(C) NO. 93 of 2013)
J U D G M E N T
V. GOPALA GOWDA, J.
Leave granted in all the Special Leave Petitions.
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Page 4 C.A@ SLP(C) No. 266 of 2012 etc.etc.
2.These Civil Appeals are filed by the appellant-
State of Jharkhand questioning the legality of the
impugned judgment and order dated 08.11.2011 passed by
the High Court of Jharkhand in Letters Patent Appeal
No. 256 of 2011 and connected cases which allowed the
appeals of the respondent-writ petitioners by setting
aside the judgment dated 25.07.2011 passed by the
learned single Judge whereby the writ petitions of the
respondent-employees were dismissed and the
Interlocutory Application No. 3223 of 2011 was allowed
after quashing the show cause notices issued and orders
of termination of services of the respondent-employees.
The Division Bench of the High Court by framing certain
substantial questions of law has held that the
respondents herein shall be entitled to all the
consequential benefits. The appellants being aggrieved
of the impugned judgment and orders have filed these
Civil Appeals by urging various facts and legal grounds
in support of the same and prayed to set aside the
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Page 5 C.A@ SLP(C) No. 266 of 2012 etc.etc.
impugned judgment and orders by allowing the Civil
Appeals.
3.Certain relevant facts are stated for the purpose
of appreciating the rival legal contentions urged on
behalf of the parties with a view to examine the
correctness of the findings and reasons recorded by the
Division Bench of the High Court in the impugned
judgment and further to find out as to whether the
impugned judgment and orders warrant interference by
this Court in exercise of its appellate jurisdiction in
these Civil Appeals.
4.The respondent-employees (the writ petitioners
before the High Court), were initially appointed in the
year 1981 in the posts of Junior Engineers in the Rural
Development Department in the erstwhile State of Bihar
in respect of which the recommendation of the Bihar
Public Service Commission (for short “the BPSC”) was
not required. It is the case of the respondent-
employees that they have continuously discharged their
duties in the above posts honestly and diligently to
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the satisfaction of their employer. They were
subsequently appointed on ad-hoc temporary basis as
Assistant Engineers in the pay-scales of 1000-50-1700
P.Ro-10-1820/-, with certain conditions on the basis of
recommendation made by the BPSC against temporary posts
from the date of notification. Their services as
Assistant Engineers on ad-hoc basis were entrusted to
work in the Road Construction Department where they
were required to contribute their work within the
stipulated period. The relevant condition No. 2 in the
said notification No. Work/G/1-402/87,248/(S) Patna
dated 27.6.1987 is extracted hereunder:-
“1.XXX XXX XXX
2.This ad-hoc appointment shall be
dependent on approval of Bihar Public
Service Commission.
3. XXX XXX XXX……”
It is their further case that they have been working in
the said posts for more than 29 years from the date of
first appointment as Junior Engineers and 23 years from
the appointment in the posts of Assistant Engineers on
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Page 7 C.A@ SLP(C) No. 266 of 2012 etc.etc.
ad-hoc basis. Neither the BPSC nor Bihar State
Government nor Jharkhand State Government had intention
to dispense with the services of these employees.
Therefore, they did not take steps to dispense with
their services from their posts. The employees
approached the High Court when they were issued the
show cause notices dated 20.4.2010 by the appellant
No.3. After taking substantial work from the
respondent-employees they have been harassed by issuing
show cause notices asking them to show cause as to why
their services should not be terminated on the ground
of their appointment to the posts as illegal/invalid.
Their appointments were, however, not held to be
invalid either by the orders of the High Court or
Supreme Court in spite of the fact that 199 posts
filled up by advertisement No.128/1996 issued by the
BPSC dated 2.9.1996 as the same would not affect the
respondent-employees who otherwise have been in
continuous service for more than 23 years in the
substantial posts of Road Construction Department and
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Page 8 C.A@ SLP(C) No. 266 of 2012 etc.etc.
not of Rural Engineering/Rural Works Department.
Therefore, it was pleaded by them that the impugned
notices issued to them was an empty formality with
preconceived decision and the same is also not only
discriminatory but also suffers from legal malafides,
arbitrariness, unreasonableness and is in utter
transgression of the interim order dated 22.3.2010
passed in W.P. (S) No. 1001 of 2010 amounting to
overreaching the majesty of the High Court.
5.They further sought for declaration that since the
services of the respondent-employees fortuitously fall
in the territory of Jharkhand State with effect from
15.11.2000 and no final cadre division of their
services has been made till date after tentative
allocations were made vide order dated 20.12.2006 by
the Central Advisory Committee within the meaning of
Section 72 read with Section 73 of the Bihar Re-
organization Act, 2000, it is pleaded that the
appellant-State of Jharkhand and its instrumentalities
have no unilateral power and jurisdiction to take any
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Page 9 C.A@ SLP(C) No. 266 of 2012 etc.etc.
such decision to their disadvantage as they were
appointed before the date of establishment of Jharkhand
State. Therefore, the impugned notices issued
unilaterally by the appellant-State to the respondent-
employees declaring their services as illegal is not
only a colourable exercise of its power but also
whimsical, discriminatory and thereby its action is
in violation of Articles 14, 16, 19(1)(g) and 21 of the
Constitution of India.
6.Further, direction was sought by the respondent-
employees from the High Court in the Writ Petitions to
treat them equally at par with similarly situated 120
persons appointed along with them who fortuitously
remained working in the territory of successor State of
Bihar namely, after the Jharkhand State was formed
w.e.f. 15.11.2000 without any disturbance and consider
their claim for regularization along with them in terms
with the conscious Policy decision taken by it vide
notification No. 10113(s) dated 11.09.2009 by the Cadre
Controlling State of Bihar and in pursuance thereof the
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respondent-employees have also applied for the same and
which is in active consideration of the State of
Jharkhand and further they sought for issuance of a
writ of prohibition restraining the appellants from
termination of their services from their posts in
pursuance of the impugned show cause notices as they
had seriously apprehended in the light of pre-decisive
and prejudicial findings and reasons recorded in the
impugned notices in the garb of order dated 22.3.2010
passed in W.P.(S) No. 1001 of 2010, that their services
might be terminated. However, the fact remains that
they are discharging their regular service to the
appellants (although their posts are termed as ad-hoc
in nomenclature) for more than 29 years from the
initial appointment as Junior Engineers since the year
1981 after following due procedure of Advertisement
etc. and their services have been upgraded to the posts
of Assistant Engineer again on temporary basis in 1987
pursuant to Cabinet decision of the erstwhile State of
Bihar Government with the permission of BPSC who had
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recognized their qualification of degree and
experience. Therefore, their appointment to the posts
is legal and valid from their date of inception of
their original appointment as Junior Engineers in the
erstwhile State Government of Bihar.
7.The said writ petitions were opposed by the
appellants herein urging various facts and legal
contentions in justification of their claim and the
reasons assigned in the show cause notices and opposed
the prayers of the respondent-employees, which case of
them is not accepted by the learned single Judge and
consequently dismissed their writ petitions by judgment
dated 25.7.2011. Aggrieved by the said judgment and
orders, they filed Letters Patent Appeals before the
Division Bench of the High Court urging various
grounds.
8.The correctness of the same was challenged by the
appellants before the Division Bench in the Letter
Patent Appeal No. 256 of 2011 and other connected LPAs.
The learned senior counsel for the parties were heard at
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length. After considering the rival legal contentions
and noticing the relevant facts of these cases it was
held by the Division Bench of the High Court that 200
posts have been created by the erstwhile State
Government of Bihar in Rural Engineering Organization of
the Road Construction Department and the said posts
have been advertised by the department in Advertisement
No. 13 of 1985 and against those posts the respondent-
employees and other similarly placed employees were
appointed after selection to the posts of Assistant
Engineers on ad hoc basis with permission of the BPSC
and they continued as such in the said posts. On
15.11.2000, the State of Jharkhand was created by
bifurcation of the State of Bihar by the Act of Bihar
Reorganisation Act, 2000. It is the case of the
respondent-employees that as per Section 72 of the Act
of 2000, the persons who were working in the posts
falling in the territory of the State of Bihar were to
continue in the posts in the State of Jharkhand. It is
not in dispute that the said employees continued in the
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employment in the State of Jharkhand after creation of
new State. Thereafter, an order was passed by the High
Court on 22.3.2010, in the Writ Petition No. 1001 of
2010 filed by Kamal Prasad & Ors. which is produced on
record as Annexure-15 in the L.P.As. On the basis of the
said order, the State Government of Jharkhand
unilaterally decided that the appointment of the
respondent-employees were not valid and accordingly it
had directed that they should go back to the State of
Bihar. The said action of the State of Jharkhand was
found fault with by the High Court. The High Court, in
the case of Ram Swarath Prasad v. State of Jharkhand &
Ors.
1
has held that the said power was not available
with the State Government of Jharkhand i.e. to pass
unilateral order directing the respondent-employees to
go back to the State of Bihar, which action of it is not
in consonance with Section 72 of the Bihar
Reorganisation Act, 2000. This aspect was also observed
by the learned single Judge in his judgment impugned in
the LPAs filed by the respondent employees. However, it
1
2002 (1) J.C.R. 106
1
Page 14 C.A@ SLP(C) No. 266 of 2012 etc.etc.
was observed that it is open to the appropriate
authorities having power to take reasonable decision
after issuing show-cause notices to the employees with
regard to the final allocation of the cadre to the State
of Jharkhand in accordance with law. The State
Government of Jharkhand had interpreted the order dated
22.3.2010 as a direction to it and it had proceeded to
terminate the services of these employees. The State
Government took a decision to terminate the services of
all such engineers including the respondent-employees in
these appeals and notices were issued to them and the
same were stayed in the interlocutory application
filed by the respondent-employees and status-quo order
dated 9.9.2010 was passed as per Ann.-18 in the Writ
Petition(S)No.2087 of 2010. Finding the said
situation, the State Government submitted that they are
keeping the order of termination of services of the
respondent-employees and similarly situated employees in
abeyance. The State Government rejected the
representations of the respondent-employees and
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Page 15 C.A@ SLP(C) No. 266 of 2012 etc.etc.
terminated their services vide separate but similar
orders dated 24.8.2011. The orders of termination were
questioned by the respondent–employees by filing
interlocutory application in the Letters Patent Appeals
questioning their propriety, correctness and legality of
the orders of termination passed against them and action
taken by the State Government of Jharkhand against them.
In the Letters Patent Appeals, the Division Bench of
High Court on 13.9.2011 passed an interim order
directing the appellants to maintain status-quo and the
respondent-employees were allowed to work in the posts.
The Division Bench accepted the factual and legal
submissions urged on behalf of the employees that they
were appointed as back as in the year 1981 in the posts
of Junior Engineers which were not illegal or even
irregular and they are qualified persons and eligible to
hold the posts. They rendered their services
satisfactorily and therefore, the State Government of
Bihar has appointed them in the posts of Assistant
Engineers by the order of the Government dated 27.6.1987
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and continued them in their services as such till the
orders of termination passed against them on 24.08.2011,
that too during pendency of the Letters Patent Appeals
before the Division Bench of the High Court. It is
observed by the Division Bench that the respondent-
employees have been in service independent of any
interim order passed by the court. The State Government
was in need of Junior Engineers, therefore, the State
Government of Bihar allowed the services of the
respondent-employees in the posts. Thereafter, the State
Government of Bihar has decided to appoint them in the
posts of Assistant Engineers and it was under the
impression that their names will be recommended by the
BPSC. After accepting the case of the respondent-
employees that since 1987 till 2011 when the orders of
termination of service were passed, they continued in
service and their salaries were paid with other service
benefits including increments and they were duly
transferred from the State of Bihar to the State of
Jharkhand when it was formed and they were treated as
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regular appointees for which the Jharkhand State
Government did not object their continuance in their
services. The Order dated 22.3.2010 passed by the High
Court in the writ petitions referred to supra seems to
have been interpreted by the officers of the Jharkhand
State Government as a direction to it to proceed with to
terminate the services of the respondent-employees. The
Division Bench of the High Court after referring to the
case of Secretary, State of Karnataka & Ors. v. Umadevi
& Ors.
2
, has clearly held that if a person has served for
10 years or more, then it is the duty of the State
Government to consider his case for regularization in
the post. The said conclusion came to be reached by
relying on Articles 309, 14, 16 of the Constitution of
India. Relying upon Umadevi & Ors. (supra), the High
Court has further referred to the judgment in the State
of Karnataka & Ors. v. M.L. Kesari & Ors.
3
which is
considered by this Court and this Court has clearly held
that the case of Umadevi & Ors. (supra) cast a duty upon
2
(2006) 4 SCC 1
3
(2010) 9 SCC 247
1
Page 18 C.A@ SLP(C) No. 266 of 2012 etc.etc.
the State Government to take steps to regularize the
services of those irregularly appointed appointees, who
had served for more than 10 years without the benefit or
protection of any interim order. Further in the said
case, this Court has declared that it has been clearly
ordered that one time settlement/measure should be taken
within six months i.e. from 10.04.2006. With reference
to the aforesaid decision the learned senior counsel
appearing on behalf of the respondent-employees placed
reliance upon Article 142 of the Constitution in support
of the submission that order of the Supreme Court be
respected and implemented by its true meaning and
spirit. Therefore, the Division Bench of the High Court
accepted the same and came to the conclusion that the
claims of the respondent-employees for regularization in
their posts are fit cases and they became unfortunate
only because of the creation of the State of Jharkhand
over which the employees had no control and could not
have prevented creation of the State of Jharkhand and
because of that reason only, one State cannot take a
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different stand with respect to the employees appointed
by same process. The State Government cannot throw the
employees jobless after 30 years of their continuous
service in public employment guaranteed under Article 16
of the Constitution, which would result in great
injustice since their source of income will be taken
away and thereby the employees and their families will
suffer due to the arbitrary action of the State
Government of Jharkhand which deprived a person of life
and liberty guaranteed under Articles 19 and 21 of the
Constitution of India.
9.The said legal contention urged on behalf of the
respondent-employees has been vehemently opposed by the
learned Advocate General appearing on behalf of the
appellant-State before the High Court who sought to
distinguish the ratio laid down in the aforesaid case
to the facts situation in the present case and he
further contended that the said decision has no
application to the cases on hand which contention is
rejected by the Division Bench of the High Court.
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Page 20 C.A@ SLP(C) No. 266 of 2012 etc.etc.
10.It is contended by the learned Advocate General
that jurisdiction of the High Court in the Letters
Patent Appeal is limited to the extent of the scope of
writ petitions. Therefore, the same cannot be enlarged
by the Division Bench of the High Court. It is further
submitted by him that the respondent-employees in the
writ petitions have not prayed for regularization of
their services, and therefore, they are not entitled to
any relief in the Letters Patent Appeals.
11.With reference to the aforesaid rival contentions,
the Division Bench, by recording its finding at paras
21, 22 and 31 of the impugned judgment, has accepted
the case of the respondent-employees and allowed their
letters patent appeals by setting aside the judgment
and order dated 25.7.2011 of the learned single Judge.
12.During pendency of the Letters Patent Appeals, the
State Government rejected their representations and
terminated the services of the respondent-employees
vide separate but similar orders dated 24.8.2011
against each one of them. Therefore, they have
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submitted interlocutory application in the letters
patent appeals before the Division Bench of the High
Court questioning the propriety and legality of their
orders of termination passed by the State Government.
In the Letters Patent Appeals on 13.9.2011, an interim
order was passed directing the State Government of
Jharkhand to maintain status quo that is, to allow the
respondent-employees to work in the posts by it. The
court also set aside the orders of termination by
allowing the interlocutory application and also quashed
the show cause notices and further held that the
respondent-employees are entitled to the consequential
benefits.
13. The correctness of the judgment and orders is
challenged by the appellants in these Civil Appeals by
framing various questions of law and urging grounds in
support of the same and praying to set aside the same.
The learned senior counsel, Mr. P.P. Rao appearing on
behalf of the appellants submitted that the order of
termination of services of the respondent-employees -
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ad hoc Assistant Engineers in the instant case, is the
necessary consequence of implementation of the judgment
and order dated 8.4.1996 of this Court in C.A. No.
7516-20 of 1996 – Bihar State Unemployed Civil
Engineers Association & Ors. v. State of Bihar & Ors.
Etc.
4
as the respondents have failed to get selected by
BPSC. Therefore, they have no legal right to challenge
implementation of the said judgment dated 8.4.1996 as
modified by subsequent order dated 23.10.1996 in IA No.
327/1996 permitting the State Government to relax the
age of the respondent-employees. In support of the
first submission, he contends that the cut-off date for
consideration of case of ad-hoc employees who have
worked for 10 years or more in the duly sanctioned
posts, but under the cover of orders of the court, is
not covered by the case of Uma Devi & Ors. (supra)
which was decided on 10.4.2006 and the time granted to
the State Government for setting in motion the process
of regularisation of ad hoc employees is “within six
months from the date” i.e. till 9.10.2006.
4
(1996) 8 SCC 615
2
Page 23 C.A@ SLP(C) No. 266 of 2012 etc.etc.
It is further contended by the learned senior
counsel on behalf of the appellants Mr. P.P. Rao that
regularisation were allowed by the High Court in those
cases where appointments could not have been made
without recommendation of the BPSC and in view of the
Articles 309 and 16 of the Constitution of India, no
appointment could have been made by the State
Government to any post much less the respondent-
employees in violation of the Recruitment Rules.
Therefore, the illegal appointments of the respondent-
employees cannot be regularized by the State Government
and the High Court can not give direction in this
regard.
14. In view of the said decisions, according to the
learned senior counsel, two questions would arise for
consideration of this Court :-
(i) Whether the respondent-employees worked till
10.4.2006 without any interim order of any
court?
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(ii)Were they appointed in duly sanctioned posts?
However, the Division Bench of the High Court instead
of addressing these two questions, posed the question
as to whether ad hoc employees who have served for more
than 10 years stand disqualified from regularisation on
the ground that they did not participate in any other
appointment process. It is the contention of the
learned senior counsel for the appellants that the
repeated finding of the High Court that the respondent-
Assistant Engineers were continuing in service
uninterruptedly with the employer for more than 10
years, is factually incorrect statement of fact.
Therefore, the finding recorded in the impugned
judgment by the Division Bench of the High Court at
paragraphs 23, 25 and 26 is erroneous and the same
cannot be allowed to sustain by this Court for the
reason that they continued in their service at least
following six interim orders passed by the High Court
all of which were prior to 10.4.2006, the cut-off date
mentioned in Uma Devi (supra) for considering the
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question of regularisation of ad hoc employees and
therefore the said decision does not apply to the
present cases. According to him, the dates on which the
interim orders passed in different writ petitions are
mentioned hereunder :-
S. No.Date of
Order
Case No. Cause Title Vol./Pages
1. 15.12.1996 CWJC No. 9420
of 1996
Paras Kumar v.
State of Bihar
Vol. II
pp. 20-21
2. 20.6.1997 CWJC No. 11761
of 1996
Sardar Pradeep
Singh v. State
of Bihar
Vol.II
p.22
3. 4.4.2002 CWJC No.2606
of 2002
Jawahar Prasad
Bhagat v. State
of Bihar
Vol.1 pp
84 and 86
4. 4.4.2002 CWJC No.4327
of 2002
Akhilesh Prasad
v. State of
Bihar
5. 4.4.2002 CWJC No.4365
of 2002
Vijay Kumar
Sharma v. State
of Bihar
6. 8.1.2003 CWJC No.2087
of 2010 as
noticed in the
present case
i.e. W.P No.
2087 of 2010
Vol.I
p.147 at
pp.163-164
15.In support of second legal submission formulated
above, the learned senior counsel has submitted that
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neither the judgment in Umadevi’s case (supra) nor in
U.P. State Electricity Board v. Pooran Chandra Pandey &
Ors.
5
is applicable to the cases in hand in favour of
the respondent-employees. It is further submitted that
the Division Bench of the High Court has erroneously
applied to the cases of respondent-employees and the
directions contained at para 53 of Umadevi’s case
since the respondents continued in service with the
appellants at the instance of court’s interim orders
passed in writ petitions referred to supra which has
been established by the appellants. He has also placed
reliance upon the judgment of this Court in the case of
Amrit Lal Berry v. Collector of Central Excise, New
Delhi & Ors.
6
In support of his legal contention that
respondent-employees continued in service with the
State Governments of Bihar and Jharkhand, the learned
counsel stated that similarly placed employees had
approached the High Court seeking certain reliefs and
they had obtained interim orders. Hence, the benefit of
5
(2007) 11 SCC 92
6
(1975) 4 SCC 714
2
Page 27 C.A@ SLP(C) No. 266 of 2012 etc.etc.
said interim order passed by the High Courts of Patna
and Jharkhand has been extended to the respondent-
employees and therefore they were continued in services
by applying the law laid down by this Court in the
aforesaid case. Therefore, the finding recorded by the
Division Bench accepting the submission on behalf of
the respondent-employees in these appeals that the
respondent-employees continued in service
uninterruptedly without the interim orders, is
factually not correct. Therefore, the learned senior
counsel for appellants contends that the said finding
is not only erroneous but also suffers from error in
law. Hence, the impugned judgment and orders are liable
to be set aside. He further contends that in view of
the above contentions, the respondent-employees are not
entitled for the reliefs granted by the Division Bench
of the High Court in the impugned judgment and orders
and therefore, he has prayed for setting aside the same
by allowing these Civil Appeals.
2
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16.The aforesaid submissions made by the learned
senior counsel on behalf of the appellants were
rebutted by the learned senior counsel, Mr. J.P. Cama
appearing on behalf of the respondent-employees
justifying the reasons recorded in the impugned
judgment contending that the respondent-employees were
appointed as Junior Engineers in the year 1981 in the
Rural Department of the State of Bihar and in the year
1985 when regular appointments were to be made to the
Posts of Assistant Engineers in pursuant to an
advertisement made in the year 1985 itself, the
respondents applied for the same but did not succeed
and therefore, they were put in the waiting list.
However, their services were not terminated even after
regular appointments were made to the posts in the year
1985 as contended by the appellants. Their services
were not dispensed with because their work was good and
they were appointed as Assistant Engineers by order of
the Bihar State Government dated 27.6.1987 and
thereafter they continued in service without break in
2
Page 29 C.A@ SLP(C) No. 266 of 2012 etc.etc.
their service till the orders of termination dated
24.8.2011 passed against them. It is further contended
that even after bifurcation of the appellant-State of
Jharkhand from State of Bihar on 15.11.2002, the
respondent-employees continued in employment without
any break. It is contended that the existence of
vacancies of Assistant Engineers in the Rural
Development Department in the erstwhile State of Bihar
is not in dispute. The existence of vacancies in the
said posts is not denied by the appellant-State as
there were 207 vacancies as on 2010. Therefore, they
continued in service though they were appointed by
order of the State Government on 27.6.1987 on ad hoc
basis but continued as such till the termination orders
were passed against them. They were being paid regular
salary and other service benefits were given to them
thereby treating them as permanent employees by the
appellants. He further contended that the Division
Bench in its judgment has held that the State Public
Service Commission merely examined suitability of
2
Page 30 C.A@ SLP(C) No. 266 of 2012 etc.etc.
eligible candidates for the posts and recommended the
names of such suitable candidates for appointment to
the posts. In the case on hand, it is not the position
of the State Government that these employees holding
the posts of Assistant Engineers and rendering their
services are not suitable persons to hold the posts. It
is further contended that interim stay was granted by
the High Court in the cases of the respondent-employees
for the first time on 9.9.2010. Therefore, it is not
correct to state that they continued in the service
with the intervention of interim orders of the High
Courts as urged by the appellants’ senior counsel and
therefore, they are not entitled to the benefit of the
decision of Umadevi’s case (supra). Further, the
learned senior counsel contends the core questions
involved in the case in hand are:-
(1) Whether the services of the respondent-
employees should have been considered for
regularization by the State Government even
though in the first instance they did not obtain
3
Page 31 C.A@ SLP(C) No. 266 of 2012 etc.etc.
selection through the Public Service Commission
and on the 2
nd
occasion they did not participate in
the selection process?
(2) Whether, they were entitled to claim
regularization based only on the fact they had
worked for more than 10 years of service
continuously with the appellants?
He further submits that the High Court, considering the
law declared in Umadevi’s case (supra) at para 53 and
also keeping in view the justice and good conscious,
has granted the relief to the respondent-employees. The
same cannot be termed either as erroneous or error in
law. Further, it is contended that the Division Bench
of the High Court of Jharkhand has rightly rejected the
contentions urged by the Advocate General to the effect
that the persons who are appointed on ad hoc/temporary
basis had an opportunity to get another appointment in
regular selection and they failed to participate in the
selection process, therefore the same would not be a
ground for the appellants to refuse regularization of
3
Page 32 C.A@ SLP(C) No. 266 of 2012 etc.etc.
service of the respondent-employees, even after they
have not availed such opportunity. The employer State
Government did not choose to dispense with their
services though there is no restraint order from the
court. In the cases in hand, both the Government of
State of Bihar and Jharkhand have continued the service
of all the respondent-employees for 10 or more years
even after they failed to get appointed to the posts on
a regular basis. Therefore, the principle laid down in
Umadevi’s case (supra) would squarely apply in the case
in hand in support of the respondent-employees. The
submission made by the learned senior counsel on behalf
of the appellants that the regularization of the
respondent-employees in their service would deprive the
other eligible persons from employment is wholly
untenable in law as the same would constitute not only
discrimination but also deprivation of their
livelihood, which is not legally permissible in law.
The question is whether the appellants can terminate
the services of the present employees who have served
3
Page 33 C.A@ SLP(C) No. 266 of 2012 etc.etc.
for more than 10 to 30 years, thereby rendering
injustice to the eligible people. Therefore, in any
event, it is doubtful whether the employer, more
particularly the State can raise such a plea to deny
employment to the employees and whether the law can be
interpreted in a manner so as to give all benefits to
the wrongdoers. The appointments were given to a large
number of engineers by the State Government of Bihar
consciously and there is no allegation of unfairness in
their appointment which can be said to be tainted or as
a result of any nepotism. The error of the State
Government of either Bihar or Jharkhand would not
justify to throw away the respondent-employees by
making them unemployed who have been well-settled in
their life since the same would amount to a clear case
of discrimination and deprivation of their livelihood.
Further, the Division Bench of High Court has rightly
held that there is duty cast upon the State Government
of Jharkhand to consider the claim of the respondent-
employees as one-time regularization of ad-hoc/
3
Page 34 C.A@ SLP(C) No. 266 of 2012 etc.etc.
temporary employees in their posts. Further, it is
contended by the learned senior counsel that similarly
situated employees are continuing in service in the
State Government of Bihar. Therefore, the relief sought
by the respondent-employees’ continuation in service,
clearly takes care of all the hurdles coming in their
way. The Division Bench of the High Court is of the
considered opinion that the employees services should
have been regularized, but on the other hand, the
appellant-State Government, during pendency of the
Letters Patent Appeals, has terminated their services.
The same cannot be an hurdle for it and it would not
come in the way of the appellant-State Government for
grant of relief in favour of the respondent-employees.
Lastly, it is submitted that there is material
distinction between filling up a vacant post by direct
recruitment on the one hand and “regularization” of
existing employees in their posts by applying the
decision of Umadevi’s case (supra) who have served for
more than 10 years in the posts with the appellants
3
Page 35 C.A@ SLP(C) No. 266 of 2012 etc.etc.
without the interventions of any interim orders granted
by any court. Further, he urges that the principle
which flows from the mandate of Articles 14 and 21 of
the Constitution of India is supported at paragraph 53
of Umadevi’s case (supra). It is further contended that
it is not a case of “appointment” as mentioned
hereinbefore but it is a case of “regularization”. The
only qualification for the latter is continuous service
of the employees without intervention of the court
order for a period of 10 years. Once this takes place,
the citizen’s right to livelihood as guaranteed under
Article 21 as also his/her right to fair treatment and
against arbitrary action of the appellants is protected
by Article 14 of the Constitution of India. That is the
ratio of the impugned judgment of Division Bench of the
High Court. The conclusion and the finding and reasons
recorded by the Division Bench of the High Court on
this aspect of the matter in the impugned judgment is
squarely covered by the Constitution Bench decision of
this Court in the case of Olga Tellis & Ors. v. Bombay
3
Page 36 C.A@ SLP(C) No. 266 of 2012 etc.etc.
Municipal Corporation & Ors.
7
The relevant para’s of
the same will be extracted in the reasoning portion of
the judgment. Therefore, the learned senior counsel has
prayed for dismissal of the appeals.
17. All the other learned counsel appearing for the
respondent-employees in the connected Civil Appeals
have adopted the submission made by the learned senior
counsel on behalf of the respondent-employees in the
Civil Appeal @ SLP (C) No. 266 of 2012. In view of the
above submissions, the learned counsel for the
respondent-employees requested this Court for dismissal
of the Civil Appeals.
18.With reference to the above said rival legal
contentions, urged on behalf of the parties the
following points would arise for consideration in these
Civil Appeals :-
(1) Whether the impugned judgment is
correct in holding that the
7
(1985) 3 SCC 545
3
Page 37 C.A@ SLP(C) No. 266 of 2012 etc.etc.
respondents-employees are entitled
for the benefit of Umadevi’s case
(supra) as they rendered more than
10 years of service in the State
Government of Jharkhand without
intervention of the court?
(2) Whether the impugned judgment passed
by the Division Bench of High Court
is vitiated on account of erroneous
finding or suffers from error in
law?
(3) Whether the impugned judgment
warrants interference by this Court
in exercise of power under Article
136 of the Constitution of India on
the grounds urged in these appeals?
(4) What orders?
Answer to Point Nos. 1 & 2:
3
Page 38 C.A@ SLP(C) No. 266 of 2012 etc.etc.
These points are answered together as they are
inter related with each other.
19.The learned senior counsel appearing on behalf of
the appellants argued that there have been repeated
findings of the High Court that the respondents have
been continued in service voluntarily by the employer
for more than 10 years. Correctness of the same is
disputed by the learned senior counsel for the
appellants by placing reliance upon at least six
interim orders passed by the High Court all of which
are prior to 10-4-2006, the dates of these Orders are
as follows:
(i) Order dated 15-12-1996 in CWJC NO. 9420 of
1996- Param Kumar v. State of Bihar.
(ii)Order dated 20-6-1997 in CWJC No. 11761 of
1996- Sardar Pradeep Singh v. State of Bihar.
(iii)Order dated 4-4-2002 in CWJC No. 2606 of 2002-
Jawahar Prasad Bhagat v. State of Bihar.
(iv)Order dated 4-4-2002 in CWJC No. 4327 of 2002-
Akhilesh Prasad v. State of Bihar.
3
Page 39 C.A@ SLP(C) No. 266 of 2012 etc.etc.
(v) Order dated 4-4-2002 in CWJC No. 4365 of 2002-
Vijay Kumar Sharma v. State of Bihar.
(vi)Order dated 8-1-2003 in CWJC No. 2087 of 2010.
Further, two stay orders have also been passed by the
High Court subsequent to 10-4-2006, which are
(1) Order dated 9-9-2007 of the learned single Judge
and (2) Order dated 13-9-2011.
Further, in the case of Uma Devi (supra) it has been
held by the Constitution Bench of this Court that:
“53. 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
3
Page 40 C.A@ SLP(C) No. 266 of 2012 etc.etc.
regularize as a one time measure, the services
of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts
but not under cover of orders of courts or of
tribunals and should further ensure that
regular recruitments are undertaken to fill
those vacant sanctioned posts that require to
be filled up, in cases where temporary
employees or daily wagers are being now
employed. The process must be set in motion
within six months from this date. We also
clarify that regularization, if any already
made, but not 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.”
(Emphasis laid by this Court)
The learned senior counsel for the appellants placing
reliance upon the aforesaid paragraph of the decision
submits that the respondents do not fulfil the
requirement of 10 years of uninterrupted service which
is sine qua non for regularization of the services of
the employees in their posts. Hence, the legal
principle laid down by this Court in the aforesaid case
4
Page 41 C.A@ SLP(C) No. 266 of 2012 etc.etc.
cannot apply in the present case, therefore, the
respondents are not entitled for regularization.
20.We have heard the factual and legal contentions
urged by the learned senior counsel for both the
parties and carefully examined the findings and reasons
recorded in the impugned judgment with reference to the
evidence produced on behalf of the respondent-
employees. The evidence on record produced by the
respondent-employees would clearly go to show that they
have been rendering services in the posts as ad-hoc
Engineers since 1987 and have been discharging their
services as permanent employees with the appellants.
Additional 200 posts were created thereafter by the
State Government of Bihar. However, the respondents
continued in their services as ad hoc employees without
any disciplinary proceedings against them which prove
that they have been discharging services to their
employers to their satisfaction.
The learned senior counsel on behalf of the
appellants have failed to show as to how the interim
4
Page 42 C.A@ SLP(C) No. 266 of 2012 etc.etc.
orders upon which he placed strong reliance are
extended to the respondents which is not forthcoming
except placing reliance upon the decision of this Court
in the case of Amrit Lal Berry (supra), without
producing any record on behalf of both the State
Governments of Bihar and Jharkhand to substantiate the
contention that the interim orders obtained by the
similarly placed employees in the writ petitions
referred to supra were extended to the respondent-
employees to maintain parity though they have not
obtained such interim orders from the High Court.
Therefore, the learned senior counsel has failed to
prove that the respondents have failed to render
continuous services to the appellants at least for ten
years without intervention of orders of the court, the
findings of fact recorded by the Division Bench of the
High Court is based on record, hence the same cannot be
termed as erroneous in law. In view of the categorical
finding of fact on the relevant contentious issue that
the respondent-employees have continued in their
4
Page 43 C.A@ SLP(C) No. 266 of 2012 etc.etc.
service for more than 10 years continuously therefore,
the legal principle laid down by this Court in Uma
Devi’s case (supra) at paragraph 53 squarely applies to
the present cases. The Division Bench of the High Court
has rightly held that the respondent-employees are
entitled for the relief, the same cannot be interfered
with by this Court.
21.In fact, the Division Bench of the High Court by
regularizing the respondent-employees vide its impugned
order has upheld the constitutional principle laid down
by this Court in the case of Olga Tellis (supra), the
relevant para of which reads as under :-
“32. As we have stated while summing up the
petitioners’ case, the main plank of their
argument is that the right to life which is
guaranteed by Article 21 includes the right
to livelihood and since, they will be
deprived of their livelihood if they are
evicted from their slum and pavement
dwellings, their eviction is tantamount to
deprivation of their life and is hence
unconstitutional. For purposes of argument,
we will assume the factual correctness of
the premise that if the petitioners are
evicted from their dwellings, they will be
deprived of their livelihood. Upon that
assumption, the question which we have to
4
Page 44 C.A@ SLP(C) No. 266 of 2012 etc.etc.
consider is whether the right to life
includes the right to livelihood. We see
only one answer to that question, namely,
that it does. The sweep of the right to
life conferred by Article 21 is wide and
far-reaching. It does not mean merely that
life cannot be extinguished or taken away
as, for example, by the imposition and
execution of the death sentence, except
according to procedure established by law.
That is but one aspect of the right to
life. An equally important facet of that
right is the right to livelihood because,
no person can live without the means of
living, that is, the means of livelihood.
If the right to livelihood is not treated
as a part of the constitutional right to
life, the easiest way of depriving a person
of his right to life would be to deprive
him of his means of livelihood to the point
of abrogation. Such deprivation would not
only denude the life of its effective
content and meaningfulness but it would
make life impossible to live. And yet, such
deprivation would not have to be in
accordance with the procedure established
by law, if the right to livelihood is not
regarded as a part of the right to life.
That, which alone makes it possible to
live, leave aside what makes life livable,
must be deemed to be an integral component
of the right to life. Deprive a person of
his right to livelihood and you shall have
deprived him of his life. Indeed, that
explains the massive migration of the rural
population to big cities. They migrate
because they have no means of livelihood in
the villages. The motive force which
propels their desertion of their hearths
and homes in the village is the struggle
4
Page 45 C.A@ SLP(C) No. 266 of 2012 etc.etc.
for survival, that is, the struggle for
life. So unimpeachable is the evidence of
the nexus between life and the means of
livelihood. They have to eat to live: only
a handful can afford the luxury of living
to eat. That they can do, namely, eat, only
if they have the means of livelihood. That
is the context in which it was said by
Douglas, J. in Baksey that the right to
work is the most precious liberty that man
possesses. It is the most precious liberty
because, it sustains and enables a man to
live and the right to life is a precious
freedom. “Life”, as observed by Field, J.
in Munn v. Illinois means something more
than mere animal existence and the
inhibition against the deprivation of life
extends to all those limits and faculties
by which life is enjoyed. This observation
was quoted with approval by this Court in
Kharak Singh v. State of U.P.”
(Emphasis laid by this Court)
In view of the foregoing reasons which we have
assigned in this judgment and in upholding the findings
and reasons recorded by the Division Bench of the High
Court in the impugned judgment, it cannot be said that
the findings and reasons recorded by the High Court in
arriving at the conclusions on the contentious issues
that arose for its consideration can be termed either
as erroneous or error in law.
4
Page 46 C.A@ SLP(C) No. 266 of 2012 etc.etc.
22.In view of the foregoing reasons, we are inclined
to conclude that the High Court was legally correct in
extending the benefits of Uma Devi’s case to the
respondent-employees. Therefore, we answer point nos. 1
and 2 in favour of the respondent-employees.
Answer to Point No. 3
23. Though, point Nos. 1 and 2 have been answered in
favour of the respondents, the question raised
regarding the requirement of interference by this Court
under Article 136 of the Constitution of India requires
separate and independent consideration by us. In the
case of Jamshed Hormusji Wadia v. Board of Trustees,
Port of Mumbai & Anr.
8
, this Court observed as under:
“33.The discretionary power of the
Supreme Court is plenary in the sense
that there are no words in Article 136
itself qualifying that power. The very
conferment of the discretionary power
defies any attempt at exhaustive
definition of such power. The power is
permitted to be invoked not in a
routine fashion but in very
exceptional circumstances as when a
8
(2004) 3 SCC 214
4
Page 47 C.A@ SLP(C) No. 266 of 2012 etc.etc.
question of law of general public
importance arises or a decision sought
to be impugned before the Supreme
Court shocks the conscience. This
overriding and exceptional power has
been vested in the Supreme Court to be
exercised sparingly and only in
furtherance of the cause of justice in
the Supreme Court in exceptional cases
only when special circumstances are
shown to exist.”
(Emphasis laid by this Court)
This position was reaffirmed and further elucidated in
the case of Mathai @ Joby v. George & Anr.
9
, wherein the
two judge Bench of this Court held as follows:
“21. Mr. Venugopal has suggested the
following categories of cases which alone
should be entertained under Article 136 of
the Constitution.
(i) All matters involving substantial
questions of law relating to the
interpretation of the Constitution of
India;
(ii) All matters of National or public
importance;
(iii) Validity of laws, Central and State;
(iv) After Kesavananda Bharati, (1973) 4
SCC 217, the judicial review of
Constitutional Amendments; and
9
(2010) 4 SCC 358
4
Page 48 C.A@ SLP(C) No. 266 of 2012 etc.etc.
(v) To settle differences of opinion of
important issues of law between High
Courts.
22. We are of the opinion that two
additional categories of cases can be
added to the above list, namely (i) where
the Court is satisfied that there has been
a grave miscarriage of justice and (ii)
where a fundamental right of a person has
prima facie been violated. However, it is
for the Constitution Bench to which we are
referring this matter to decide what are
the kinds of cases in which discretion
under Article 136 should be exercised.
23. In our opinion, the time has now come
when an authoritative decision by a
Constitution Bench should lay down some
broad guidelines as to when the discretion
under Article 136 of the Constitution
should be exercised, i.e., in what kind of
cases a petition under Article 136 should
be entertained. If special leave petitions
are entertained against all and sundry
kinds of orders passed by any court or
tribunal, then this Court after some time
will collapse under its own burden.
24. It may be mentioned that in Pritam
Singh v. The State AIR 1950 S.C. 169 a
Constitution Bench of this Court observed
(vide para 9) that "a more or less uniform
standard should be adopted in granting
Special Leave". Unfortunately, despite
this observation no such uniform standard
has been laid down by this Court, with the
result that grant of Special Leave has
become, as Mr. Setalvad pointed out in his
book ` My Life', a gamble. This is not a
4
Page 49 C.A@ SLP(C) No. 266 of 2012 etc.etc.
desirable state of affairs as there should
be some uniformity in the approach of the
different benches of this Court. Though
Article 136 no doubt confers a discretion
on the Court, judicial discretion, as Lord
Mansfield stated in classic terms in the
case of John Wilkes, (1770) 4 Burr
2528 "means sound discretion guided by
law. It must be governed by rule, not
humour: it must not be arbitrary, vague
and fanciful"
In view of the legal principles laid down in the
aforesaid decisions, we are of the opinion that the
decision of the High Court does not fall in either of
the categories mentioned above which calls for our
interference. The Division Bench of the High Court
having regard to the glaring facts that the respondent-
employees have continuously worked in their posts for
more than 29 years discharging permanent nature of
duties and they have been paid their salaries and other
service benefits out of the budget allocation, no
objection was raised by the CAG in this regard and
therefore, it is not open for the appellants to contend
that the law laid down in Uma Devi’s case (supra) has
no application to the fact situation. The action of the
4
Page 50 C.A@ SLP(C) No. 266 of 2012 etc.etc.
appellants in terminating the services of the
respondent-employees who have rendered continuous
service in their posts during pendency of the Letters
Patent Appeals was quashed by the High Court after it
has felt that the action is not only arbitrary but
shocks its conscious and therefore it has rightly
exercised its discretionary power and granted the
reliefs to the respondent-employees which do not call
for our interference. Therefore, we are of the opinion
that this Court will not interfere with the opinion of
the High Court and on the contrary, we will uphold the
decision of the High Court both on factual and legal
aspects as the same is legally correct and it has done
justice to the respondent-employees.
Answer to Point No. 4
24. As already mentioned above, we are of the opinion
that the High Court was correct in reinstating the
respondent-employees into their services under the
appellants by relying on the legal principles laid down
by this Court in the Constitution Bench decision in Uma
5
Page 51 C.A@ SLP(C) No. 266 of 2012 etc.etc.
Devi’s case (supra). We accordingly direct the
appellants to implement the orders of the Division
Bench of the High Court thereby continuing the
respondents in their services and extend all benefits
as have been granted by it in the impugned judgment.
25. The Civil Appeals are dismissed accordingly.
……………………………………………………………………… J.
[GYAN SUDHA MISRA]
……………………………………………………………………… J.
[V. GOPALA GOWDA]
New Delhi,
April 23, 2014.
5
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