Patna High Court - Orders
The State Of Bihar & Ors vs Sri Krishna Prasad on 10 September, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.549 of 2014
In
Civil Writ Jurisdiction Case No. 7852 of 2010
======================================================
1. THE STATE OF BIHAR THROUGH STATE TRANSPORT
COMMISSIONER, DEPARTMENT OF TRANSPORT,
GOVERNMENT OF BIHAR, PATNA
2. THE STATE TRANSPORT COMMISSIONER, DEPARTMENT
OF TRANSPORT, GOVERNMENT OF BIHAR, PATNA
3. THE PRINCIPAL SECRETARY, DEPARTMENT OF
PERSONNEL AND ADMINISTRATIVE REFORMS,
GOVERNMENT OF BIHAR, PATNA
4. THE JOINT TRANSPORT COMMISSIONER, DEPARTMENT
OF TRANSPORT, GOVERNMENT OF BIHAR, PATNA
5. THE DISTRICT TRANSPORT OFFICER, DARBHANGA
.... .... APPELLANTS
VERSUS
1. SRI KRISHNA PRASAD, SON OF LATE SIDESHWAR
PRASAD, RESIDENT OF VILLAGE- KULANA, POST
OFFICE- KUSUMBHAR, POLICE STATION- AKBARPUR,
DISTRICT- NAWADA AT PRESENT WORKING AS DAILY
WAGE CLERK IN THE OFFICE OF DISTRICT TRANSPORT
OFFICER, DARBHANGA
.... .... RESPONDENT
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Appearance :
For the Appellants : Mr. Siddhartha Prasad, AC to AAG 4
For the Respondent : Mr. R. Griyashey, Advocate
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
6 10-09-2014This is an appeal against order, dated 20.11.2013, passed, in CWJC No. 7852 of 2010 and other analogous cases, by a learned single Judge of this Court, directing the appellants herein to consider 'favourably' the case of the sole respondent herein, namely, Sri Krishna Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 2/30 Prasad (i.e., the writ petitioner in CWJC No. 7852 of 2010), for regularization of his service and, so far as the other writ petitioners were concerned, they were granted liberty to make representations to the appellants herein seeking regularization of their services and, if such representations were made, the same were directed to be dealt with, and dispose of, in accordance with law.
2. Aggrieved by the decision so arrived at and the directions given therein, this appeal has been preferred as against the order, dated 20.11.2013, passed in CWJC No. 7852 of 2010.
3. The materials facts, giving rise to the writ petition, may, in brief, be set out as under:
(i) All the writ petitioners were engaged on daily wages between 19.04.1980 and 17.06.1981. So far as Krishna Prasad, writ petitioner in CWJC No. 7852 of 2010, was concerned, he was engaged by District Transport Officer, Muzaffarpur, on 27.05.1981. Similarly, Madan Mohan Lal Singh, writ petitioner in CWJC No. 8186 of 2010, was engaged by District Transport Officer, Dhanbad, on 19.04.1980, Shambhu Rai, writ petitioner in CWJC No. 8462 of 2010, was engaged by District Transport Officer, Gaya, on 29.08.1980, and Prabhakar Prasad, writ petitioner in CWJC No. 11401 of 2010, was engaged by District Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 3/30 Transport Officer, Bhagalpur, on 17.06.1981.
(ii) The initial engagements, which were temporary in nature, were extended from time to time by the Transport Commissioner. One of the writ petitioners, namely, Krishna Prasad was even transferred from the Office of the District Transport Officer, Muzaffarpur, to the Office of the District Transport Officer, Gaya, by Transport Commissioner.
(iii) The case of the respondent herein, namely, Krishna Prasad, as correctly noted by the learned single Judge, was slightly different from others inasmuch as there was earlier a direction by this Court for favourable consideration of his case for regularization, the direction having been passed in CWJC No. 2243 of 2000, which arose out of a writ petition, made under Article 226 of the Constitution of India, by the respondent herein seeking regularization of his service.
(iv) A learned Single Judge of this Court, having noticed that the service of the two other daily wagers, engaged subsequent to the sole respondent herein, namely, Krishna Prasad, had been regularized and there was no change in the Government's policy of 1985 in respect of regularization of the persons appointed prior to 01.08.1985, the said writ petition, namely, CWJC No. 2243 Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 4/30 of 2000, was disposed of, on 12.03.2008, with direction to the appellants herein to favourably consider the case of the sole respondent herein, namely, Krishna Prasad, for regularization of his service. The relevant portion of the order reads as under:
"Having regard to the fact that there is a policy for regularization of the people, who had been appointed prior to 1985 and that policy having not been given a go by and in the meantime, two persons appointed in the same department after the appointment of the petitioner having been regularized, it would be appropriate on the part of the State Government to consider favourably the case of the petitioner for regularization in terms of the Government policy otherwise there would be discrimination for no just reason."
(v) Pursuant to the order, dated 12.03.2008, aforementioned, Transport Department, Government of Bihar, referred the case of Krishna Prasad and others to the Department of Personnel and Administrative Reforms for consideration of regularization and upon examination. Eventually, the State Government has rejected the case of Krishna Prasad as regards regularization of his service, the ground of rejection being that the regularization of the service of Krishna Prasaad would be, in the light of Secretary, State of Karnatka vs. Uma Devi, reported in Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 5/30 (2006) 4 SCC 1, illegal. Though a Letters Patent Appeal was preferred against the order, dated 12.03.2008, aforementioned, and the appeal gave rise to L.P.A. No. 561 of 2008, the same was dismissed, in limine, by order, dated 28.07.2008.
4. Aggrieved by the rejection of his claim of regularization, another writ petition was filed, under Article 226 of the Constitution of India, by the sole respondent, which gave rise to CWJC No. 7852 of 2010. One of the reliefs, which had been prayed for in the writ petition and appearing at paragraph 4 (iv), read as under:
"Issuance of declaration that after appointment as Daily Wager having been done by the competent authority and transfer etc. apart from assignment of variety of jobs for a long time sufficiently create condition- precedent for regularizing the services of the petitioner."
5. From a bare reading of the relief, which has been reproduced above, it becomes clear that the sole respondent was not engaged against any sanctioned vacant post; rather, he was assigned variety of jobs and assignment of variety of jobs to him, for a sufficiently long period of time, was claimed to have created condition Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 6/30 precedent for regularization of his service.
6. It needs to be noted that the decision, in CWJC No. 2243 of 2000, came to be rendered on 12.03.2008, which was long after the decision, in Uma Devi's case (supra), was delivered.
7. The Division Bench of this Court, while dismissing, on 28.07.2008, the appeal (i.e., L.P.A. No. 561 of 2008), did not notice the fact that the decision, which stood impugned in L.P.A. No. 561 of 2008, was rendered on 12.03.2008, i.e., long after the law had been authoritatively laid down by the Supreme Court, in Uma Devi (supra), wherein the Constitution Bench, while laying down subject of regularization of service, made it clear that those decisions, which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedent, meaning thereby that the decision of the Constitution Bench, in Uma Devi (supra), will hold the field and any decision, which was contrary to the law laid down in Uma Devi (supra), would stand denuded of its status as precedent.
8. To put it a little differently, no regularization of service of a person by a Government can be directed after the decision in Uma Devi's case (supra) if Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 7/30 such a direction would run contrary to the principles settled in Uma Devi's case (supra).
9. Bearing in mind the factual matrix of the case as delineated above, let us, now, consider this appeal on merit.
10. Before, however, dealing with the merit of the present appeal, it needs to be borne in mind that an illegality cannot be allowed to be perpetuated in the name of removing discrimination. The mere fact that an authority has passed a particular order in the case of another person, similarly situated, cannot be a ground for issuing a writ in favour of a petitioner on the plea of discrimination if the order, passed in favour of the other person, is found to be contrary to law or not warranted in the facts and circumstances of a given case.
11. The test, therefore, shall be as to whether the order, which has already been passed in favour of a particular person, is legally sustainable or not and it is only if the order is found to be legally sustainable that the Court may direct similar order to be passed for the purpose of removing discrimination. When, however, the order, passed in favour of a particular person, is not legally sustainable, it is not permissible for a Court to pass any direction for similar orders, in another case, in the name of removing Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 8/30 discrimination, for, such a direction by a Court would amount to perpetuating illegality and not removing discrimination.
12. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat illegalities, the Supreme Court has expressed its anxiety on such an approach and has laid down the position of law, in no uncertain words, in Chandigarh Administration and Another v. Jagjit Singh and Another, reported in (1995) 1 SCC 745, as follows:
8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come-across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be allowed and valid or it might not be. That has to be Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 9/30 investigated first before it can be directed to be followed in the case of the petitioner.
If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat the illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law-in-deed, wherever, it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such please would be prejudicial to the interests of law and will do incalculable Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 10/30 mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case, than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and illegal, in Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 11/30 accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial word. What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises.
(Emphasis is added)
13. From the observations, made in Jagjit Singh (supra), it becomes more than abundantly clear that in the name of removing discrimination, no Court can issue a direction, which would amount to perpetuating an illegality. If, therefore, a person's service cannot be legally regularized, it would be impermissible for the Court to issue a direction for regularization of service of another person on the ground that similar order of regularization had already been passed in the past.
14. What logically follows from the above discussion is that no direction for regularization of the service of the sole respondent herein could have been passed without coming to the conclusion that the earlier regularization of the persons, junior to the sole respondent herein or who were engaged as daily wagers subsequent to Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 12/30 the engagement of the sole respondent herein, was in accordance with law.
15. While considering the rival submissions, made before this Court, it needs to be noted that there was no finding by the Court, in the present case, that the two persons, who were alleged to be junior to the writ petitioner-sole respondent herein, namely, Krishna Prasad, had been working against vacant sanctioned posts, which was the minimum requirement, in the light of the authoritative pronouncement in Uma Devi's case (supra), if the Government were to regularize anyone's service.
16. Clearly, therefore, without any such determination, as to whether the said two persons (junior to the writ petitioner-sole respondent herein, namely, Krishna Prasad) had worked against vacant sanctioned posts (which was one of the pre-conditions of regularization of a person's service in the light of Uma Devi's case (supra), the order, in the present case, was made directing regularization of the service of the writ petitioner-sole respondent herein, namely, Krishna Prasad,, though such a direction, in the light of Uma Devi's case (supra), was impermissible unless the said two persons had been working, before their regularization, against vacant sanctioned posts.
Patna High Court LPA No.549 of 2014 (6) dt.10-09-201413/30
17. In fact, it is not in dispute before us that the engagements of the said two persons, junior to the writ petitioner-sole respondent herein, namely, Krishna Prasad, were against non-existent posts.
18. In the circumstances pointed out above, directions for regularization of the services of the said two persons, junior to the writ petitioner-sole respondent herein, namely, Krishna Prasad, were, in the light of the decision, in Uma Devi (supra), wholly impermissible in law.
19. Situated thus, it becomes abundantly clear that when the decision of regularization of the services of the said two persons (junior to the writ petitioner-sole respondent herein, namely, Krishna Prasad) could not have been, in the light of the decision, in Uma Devi (supra), regarded legally valid, no direction for 'favourable' consideration of the case of the writ petitioner- sole respondent herein, namely, Krishna Prasad, for regularization of his service, could have been, in the light of the decision in Jagjit Singh (supra), given, for, such a direction, though given in the name of removing discrimination, did not, in fact, remove discrimination, but perpetuated illegality.
20. With regard to the above, it is also worth pointing out that a Constitution Bench, in Uma Devi Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 14/30 (supra), has made it clear that the term temporary employee is a general category, which has under it several sub-catetegories, e.g., casual employee, daily-rated employee, ad hoc employee, etc. A daily-rated or casual worker is only a temporary employee and it is well settled that a temporary employee has no right to the post, or to be continued in service, to get absorption, far less the right to be regularized or claim regular pay. No doubt, there can be occasions, when the State or its instrumentalities employ persons on temporary or daily-wage basis in a contingency as additional hands without following the required procedure, but this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following a due selection process consistent with the rules, if any, or consistent with the concept of public employment as envisaged under the Constitution of India, such appointees do not have any right to claim permanent absorption in the establishment. The court cannot direct continuation in service of a non-regular appointee.
21. In Uma Devi (supra), the Constitution Bench held:
"Any public employment has to be in terms of the constitutional scheme.
It is not the role envisaged for the Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 15/30 High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties of for scuttling the whole scheme of public employment.
The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
When rules framed under Art.309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Art.162 of the Constitution in contravention of the rules.
Though the High Court is entitled to exercise its judicial discretion in deciding writ petition or civil revision applications coming before it, the discretion had to be confined in declining to entertain such petitions and refusing to grant reliefs asked for.
Adherence to rule of equality in public employment is a basic feature of the Constitution.
High Court acting under Art.226 of the Constitution, should not ordinarily issue direction for absorption, unless the recruitment itself was made regularly and in terms of the Constitutional scheme.
When the Court is approached for Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 16/30 relief by way of a writ, the Court has necessarily to ask itself whether the person before it had any legal right to be enforced.
Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment.
Those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
22. From what have been observed and held by the Constitution Bench, in Uma Devi (supra), it becomes transparent that Articles 14, 16 and 309 of the Constitution of India form part of the basic structure of the Constitution inasmuch as these constitutional provisions aim at ensuring that public employment is given only in a fair and equitable manner by giving all those, who are eligible, an opportunity to seek employment. Adherence to the rule of equal opportunity in public employment is, thus, a basic feature of the Constitution. When rules framed under Article 309 of the Constitution of India are in force, no regularization of service is permissible in exercise of the State's executive powers under Article 162 of the Constitution of India, particularly, when the exercise of Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 17/30 such executive power by the State contravenes the rules framed under Article 309 of the Constitution of India.
23. Even when no rules have been framed under Article 309 of the Constitution of India, the public employment must be made following a fair and equitable selection process in terms of Articles 14 and 16 so as to enable every eligible person the liberty to seek employment. Our Constitution does not permit, in the light of the decision of the Constitution Bench, in Uma Devi (supra), making of public employment outside the Constitutional scheme and without fulfilling the requirements set forth hereinbefore.
24. The decision of the Constitution Bench, in Uma Devi (supra), makes definitely clear that no High Court, while acting under Article 226 of the Constitution of India, should, ordinarily, issue direction for absorption, regularization or permanent continuance unless the recruitment, so made, is not illegal, but merely irregular. The fact that a person has been working, on the basis of an illegal appointment, for fairly long period of time cannot be made a ground for directing regularization of his service.
25. In Uma Devi (supra), the Constitution Bench observed, in paragraph 43, as under:
"43. Thus, it is clear that adherence to the rule of equity in public employment is Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 18/30 the basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end and at the end of the contract; if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 19/30 prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointments, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The court must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by passing of Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 20/30 the constitutional and statutory mandates."
(Emphasis is supplied)
26. Referring to the above observations made in Uma Devi (supra), the Supreme Court, in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd, reported in (2007) 1 SCC 408, held, "26.The underlined observations above clearly indicated that the casual, daily-rated, ad hoc employees, like the respondents in the present appeal, have no right to be continued in service, far less of being regularized and getting regular pay."
27. In paragraphs 4 and 5 of its judgment, in Uma Devi (supra), the Constitution Bench observed: "This Court has also on occasions issued directions, which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 21/30 by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench."
28. Taking note of the above observations made in Uma Devi (supra), the Court, in Indian Drugs & Pharmaceuticals Ltd. (supra), observed:
"23. We have underlined the observations made above to emphasize that the court cannot direct continuation in service of a non-regular appointee. The High Court's direction is hence contrary to the said decision."
29. What surfaces from the above discussion is that if an employee's appointment is a contractual appointment, the appointment comes to an end with the end of the contract; if the appointments were an engagement or appointment on the basis of daily wage or on casual basis, the same would come to an end, when it is discontinued. Merely because of the fact that the service of a casual wage earner is continued for a long time, he would not be entitled to be absorbed in regular service or made permanent on the strength of such continuance if the original appointment was not made by following a due process of selection as envisaged under the scheme of the Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 22/30 Constitution with regard to public employment or if he had not been working against a vacant sanctioned post and holding necessary qualification therefor.
30. With regard to the above, it may also be noted that while laying down that unless an appointment has been made by observing the constitutional guarantee, as embodied in Articles 14 and 16 requiring an appointment to be made after giving opportunity of participation in the selection process to all eligible candidates, the Constitution Bench, in Uma Devi (supra), made one exception, the exception being that when a person was, admittedly, qualified and was appointed against a sanctioned post and had continued for more than 10 years, in service, without any orders of the Court, then, the State shall undertake an exercise to regularize the service of such a person as a one-time measure. The relevant observations, appearing at paragraph 53, in Uma Devi (supra), read as under:
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 Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 23/30 qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed.
The process must be set in motion within Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 24/30 six months from this date.
(Emphasis is added)
31. Having considered about the exception, which was carved out by the Constitution Bench, in Uma Devi (supra), a two Judge Bench of the Supreme Court, in State of Karnataka v. M.L. Kesari, reported in (2010) 9 SCC 247, speaking through R.V. Raveendran, J., laid down as under:
7. It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Uma Devi, 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 Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 25/30 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.
8. Uma Devi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Uma Devi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
Patna High Court LPA No.549 of 2014 (6) dt.10-09-201426/30
9. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
(Emphasis is added)
32. From a minute reading of what have been observed above, it becomes clear that as a one time measure, the State was given by the Constitution Bench, in Uma Devi's case (supra), the opportunity to regularize the service of such a person, whose appointment was not illegal, but irregular in the sense that he was qualified to hold the post against which he was appointed and that the post was a sanctioned post.
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33. Unless, therefore, a person is found to have been appointed against a duly sanctioned vacant post, his appointment cannot, in the light of the decision in Uma Devi (supra), be directed to be regularized even as a one- time measure and within the exception which has been carried out in Uma Devi's case (supra). This is more than abundantly clear from the observations, made, at paragraph 7, in M. L. Kesari (supra), which we have already reproduced above, and paragraph 11 thereof, which reads as follows:
11. The object behind the said direction in para 53 of Uma Devi is two-fold.
First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Uma Devi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments /instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 28/30 years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Uma Devi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Uma Devi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Uma Devi as a one-time measure.
(Emphasis is supplied)
34. Situated thus, it becomes crystal clear that there was, in the present case, not even an iota of material to show that the two persons, junior to the writ petitioner-sole respondent herein, namely, Krishna Prasad, whose services are claimed to have been regularized, had Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 29/30 worked, before their regularization, against vacant sanctioned posts. In the absence of any such concrete finding, there ought not to have been any direction for 'favourable' consideration of the case of the present respondent for regularization of his service, more so, when the writ petitioner-sole respondent herein, Krishna Prasad, is even not claimed to have worked against vacant sanctioned post.
35. In the name, therefore, of removing the discrimination, it was, in the present case, not open, in the light of the decision, in Chandigarh Administration (supra), to direct the State Government to regularize the service of the writ petitioner-sole respondent herein, namely, Krishna Prasad, and thereby perpetuate illegality. Consequently, the impugned order, dated 20.11.2013, passed in CWJC No. 7852 of 2010, cannot be sustained, for, the direction suffers from severe legal infirmities.
36. Coupled with the above, it is of utmost importance to note that as far as the writ petitioner-sole respondent herein, namely, Krishna Prasad, is concerned, he has not claimed to have worked against any vacant sanctioned post. Apart from this, one of the reliefs, which the writ petitioner-sole respondent herein, namely, Krishna Prasad, sought for, in CWJC No. 7852 of 2010, clearly Patna High Court LPA No.549 of 2014 (6) dt.10-09-2014 30/30 indicated that the sole respondent herein had not been engaged against any vacant sanctioned post; rather, he was assigned variety of jobs. Thus, mere assignment of variety of jobs to him, for a sufficiently long time, could not have created the condition precedent for regularization of service of the writ petitioner-sole respondent herein.
37. Because of what have been discussed and pointed out above, it becomes more than abundantly clear that the directions, given in the writ petition to the present appellants to consider favourably the case of the sole respondent herein, namely, Krishna Prasad, for regularization of his service, was wholly illegal and not sustainable in law.
38. In the result and for the reasons discussed above, this appeal succeeds. The impugned order, dated 20.11.2013, shall accordingly stand set aside.
39. No order as to costs.
(I. A. Ansari, J.)
Anjana Mishra, J.: I agree.
(Anjana Mishra, J.)
Prabhakar Anand/AFR
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