UPENDRA SINGH versus THE STATE OF BIHAR AND ORS. on 23 February 2018

[2018] 2 S.C.R. 775

UPENDRA SINGH

v.

THE STATE OF BIHAR AND ORS.

(Civil Appeal No. 2356 of 2018)

FEBRUARY 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Service Law – Regularisation – When not valid – Appellantwas appointed in Grade III in non-teaching staff by respondentNo.8, a private college– Respondent no.8 was taken over by StateGovt. and became a ‘Constituent College’ of Bihar University,whereafter though the appellant was absorbed but no salary waspaid –Writ petition thereagainst was dismissed by High Court – Pleaof appellant that by a resolution of State Govt. itself, as far back asin 1991, decision was taken to regularise the services but benefitthereof was not extended to appellant even when he fulfills all theconditions contained in the said resolution – Held: Order dtd. 13Aug. 2003 refusing regularisation specifically stated that the initialappointment of appellant was not in accordance with law –University or the Government had agreed to regularise the servicesof those employees of the colleges, which had become the ConstituentColleges, only on the condition that their initial appointment wasafter following the due procedure and that too against the sanctionedpost – Impugned order calls for no interference.

Dismissing the appeal, the Court

HELD: 1.1 The impugned judgment is without any blemishand no interference is called for. In fact, whole premise on whichthe case is founded by the appellant seems to be incorrect. Thecases of persons including the appellant, were duly consideredby the University, on the basis of which order dated August 13,2003 were passed refusing regularisation. This order specificallystated that the initial appointment of the appellant was not inaccordance with law. It was made without advertisement andthere was no recommendation of panel by the SelectionCommittee. So much so, the appointments were not made bythe competent authority. The University, or for that matter, the

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AGovernment had agreed to regularise the services of thoseemployees of the colleges, which had become the ConstituentColleges, only on the condition that their initial appointment wasafter following the due procedure and that too against thesanctioned post. [Para 7][780-D-F]

B1.2 Law pertaining to regularisation has now beenauthoritatively determined by a Constitution Bench judgment ofthis Court in Umadevi case. On the application of law laid downin that case, it is clear that the question of regularisation of dailywager appointed contrary to law does not arise. This ratio of thejudgment could not be disputed by the counsel for the appellantCas well. That is why she continued to plead that the appointmentof the appellant was made after following due procedure and inaccordance with law. However, that is not borne from the records.Pertinently, order dated August 13, 2003, vide which the appellantwas refused regularisation on the aforesaid ground was not evenDassailed by the appellant at that time. In Uma Devi, the Courtleft a small window opened for those who were working on adhoc/ daily wage basis for more than ten years, to regularise themas a one-time measure. However, that was also subject to thecondition that they should have been appointed in duly sanctioned post. Further, while counting their ten years period, those casesEwere to be excluded where such persons continued to work underthe cover of orders of the courts or the tribunal. The High Courthas, in the impugned judgment, discussed these nuances and hadalso referred to the judgment in Uma Devi and held that the benefitof one-time measure suggested in that case could not beFextended to the appellant. [Para 8][780-G-H; 781-A-C]Secretary, State of Karnataka & Ors. v. Umadevi & Ors.(2006) 4 SCC 1 : [2006] 3 SCR 953 – followed.

Case Law Reference

G[2006] 3 SCR 953 followedPara 8

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2356of 2018.

From the Order dated 25.07.2013 of the High Court of Judicatureat Patna in LPA No. 447 of 2013.

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Meera Mathur, Adv. for the Appellant.

Subhro Sanyal, Abhinav Mukerji, Ms. Binu Sharma, Ms. PurnimaKrishna, Siddharth Garg, Ajay Kumar Talesara, Atul Jha, Sandeep KumarJha, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. The appellant herein has challenged thejudgment dated July 25, 2013 passed by the High Court of Judicature atPatna dismissing the Letters Patent Appeal (LPA) filed by the appellant.In fact, by the said common judgment, two LPAs are decided. OneLPA was filed by three persons and the other was filed by eight persons.All these eleven persons, who were engaged by one K.D.S. College(respondent No.8 in these proceedings) situate within the jurisdiction ofP.S. Gogari, District Khagaria, Bihar, wanted regularisation of theirservices and payment of salary based on such regularisation. Their writpetition was dismissed by the learned Single Judge and the intra-courtappeal has met the same fate. However, it appears that out of elevenpersons, who were the appellants in the aforesaid two LPAs, only theappellant herein has approached this Court feeling dissatisfied with theoutcome therein.

2. The main case set up by the appellant is that, no doubt,respondent No.8 was a private college when the appellant was engaged,however, it was ultimately taken over by the State Government and gotaffiliated to the Bihar University. It is stated that having regard to thelong service rendered by the appellant, coupled with the decision of theUniversity authorities itself to regularise such persons, he was also entitledthereto. However, the same is denied and he has not been paid his regularsalary for last over a decade. The claim is founded on the followingaverments:

3. The Governing Body of respondent No.8 constituted a SelectionCommittee for appointment of teaching and non-teaching staff and thisCommittee, after following due process of recruitment through anadvertisement and thereafter selection on interview, appointed theappellant in Grade III in non-teaching category with effect from January24, 1978. In the year 1980, a decision was taken by the Government ofBihar to some Universities, including the Bihar University, that the collegesaffiliated with these Universities be converted as ‘Constituent Colleges’

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Aof the University on the basis of which respondent No.8 also became aConstituent College of the Bihar University. This decision wasimplemented by respondent No.8 as well and with effect from June 16,1981, respondent No.8 attained the status of Constituent College.Thereupon, respondent No.8 absorbed all the employees, including theappellant, and the appellant continued in service of respondent No.8Bthereafter. However, as the University authorities did not make paymentof salaries to the appellant and some other employees of Grade III andGrade IV, although they were continued in service, representations weremade in this behalf by the College Employees’ Federation. Though,initially assurances were given, they were not fulfilled, because of whichCthe Employees’ Federation started the agitation and continued the same.Ultimately, State of Bihar and Bihar Higher Education Departmententered into an agreement dated April 26, 1989 with the Bihar StateUniversity and the College Employees’ Federation agreeing to absorbthe employees, including the appellant, on the basis of Staffing Pattern.

Based on that decision, respondent No.8 scrutinised the records of itsDemployees and recommended the names of non-teaching staff, includingthat of the appellant, through its letter dated December 22, 1989 to theGovernment recommending the names for absorption. All such nameswere considered by a three man Staffing Committee appointed by theUniversity, which inspected the records, however, no final decision wasEtaken. In these circumstances, when the matter was getting delayed,the appellant and others filed writ petition in the High Court in the year1997, which was disposed of on May 05, 1999 directing the StateGovernment to take appropriate decision as early as possible. Thereafter,the matter was considered and ultimately the Bihar University issuedorders dated August 30, 1999/ September 15, 1999 rejecting the claimsFof these employees, including the appellant, and directing them not towork in the College. This action was challenged by filing writ petitions,which were allowed and the appellant and some others were taken backin the employment. However, they were not paid salary of the regularstaff. Thereafter also, few rounds of litigation took place when the writGpetitions were filed in which orders were passed by the High Court toconsider the claim of these persons and it is not necessary to give thosedetails. Suffice is to state that there was an issue as to whether therewere sanctioned posts or not against which the cases of these personscould be considered. According to the appellant, respondent No.8

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informed the University, vide letter dated June 11, 2009, that there aretwenty five posts sanctioned for the College, out of which fifteen postswere for Grade IV employees and ten for Grade III employees. In spitethereof, no decision was taken and ultimately Writ Petition No. 16667 of2010 was filed by the appellant and some other employees, which wasdismissed by the Single Judge of the High Court on February 01, 2013.It is against this judgment, LPAs in question were filed, which have beendismissed by the impugned judgment.

4. The case set up by the appellant, in nutshell, is that the appellanthas been working for more than two decades; he was appointed byrespondent No.8 after following due process of recruitment; theappointment was against sanctioned post; after respondent No.8 collegeattained the status of ‘Constituent College’, the University refused topay the salary of the regular staff; and though decision was taken toregularise the services on the basis of Staffing Pattern as far back as onMay 10, 1991 by a resolution of the State Government in this behalf,benefit thereof is not extended to the appellant even when he fulfils allthe conditions contained in the said resolution.

5. Learned counsel for the appellant submitted that the writ courtas well as the appeal court have proceeded on a wholly erroneous basisand assumption that the Government had, at no stage, agreed to regularisethe appellant and others. She submitted that the State Government hadalready given concurrence for such a regularisation but was delaying itsimplementation on one pretext or the other. This concurrence of theState Government was recorded in the agreement dated April 26, 1989with the University and the College Employees’ Federation, which wasfollowed by various other documents exchanged between the University,the State Government and respondent No.8. It was also argued that theHigh Court wrongly proceeded on the basis that the appellant wasappointed after the cut off date of July 12, 1980, whereas the recordreveals that he was appointed much prior thereto, i.e. on January 24,1978.

6. Learned counsel for the respondent, on the other hand, justifiedthe reasoning adopted by the courts below and argued that the case ofthe appellant was not covered by the resolution passed on StaffingPattern, inasmuch as, neither there were sanctioned posts when theappellant was appointed nor any such post existed thereafter, nor was AB

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Ahe appointed against sanctioned post or after following the due procedure.He submitted that the appointment of the appellant or similarly situatedpersons was done by respondent No.8 of its own and when respondentNo.8 became Constituent College, the University was well within itsright not to regularise those persons who were not appointed against thesanctioned post. The learned counsel referred to clause (1) of the ManualBof Bihar University Laws (Part – I) which deals with the appointmentand powers of the Vice Chancellor and sub-clause (6) thereof stipulatesthat it is the Vice Chancellor which has the power to make appointmentto the post within the sanctioned grades and scales of pay and within thesanctioned strength of the ministerial staff etc., meaning thereby notConly power is given to the Vice Chancellor but even he can appoint onlyagainst the posts, that too within the sanctioned grades.7. After considering the respective arguments, we are of the viewthat the impugned judgment is without any blemish and no interferenceis called for. In fact, whole premise on which the case is founded by theDappellant seems to be incorrect. We note that the cases of these persons,including the appellant, were duly considered by the University, on thebasis of which order dated August 13, 2003 were passed refusingregularisation. This order specifically states that the initial appointmentof the appellant and others was not in accordance with law. It wasmade without advertisement and there was no recommendation of panelEby the Selection Committee. So much so, the appointments were notmade by the competent authority. We find that the University, or forthat matter, the Government had agreed to regularise the services ofthose employees of the colleges, which had become the ConstituentColleges, only on the condition that their initial appointment was after Ffollowing the due procedure and that too against the sanctioned post. Astatement was made at the Bar by learned counsel for the respondentthat there were no sanctioned posts even now.

8. Law pertaining to regularisation has now been authoritativelydetermined by a Constitution Bench judgment of this Court in Secretary,GState of Karnataka & Ors. v. Umadevi & Ors., (2006) 4 SCC 1. Onthe application of law laid down in that case, it is clear that the questionof regularisation of daily wager appointed contrary to law does not arise.This ratio of the judgment could not be disputed by the learned counselfor the appellant as well. That is why she continued to plead that theappointment of the appellant was made after following due procedureH

and in accordance with law. However, that is not borne from the records.Pertinently, order dated August 13, 2003, vide which the appellant wasrefused regularisation on the aforesaid ground was not even assailed bythe appellant at that time. It may be mentioned that in Uma Devi, theCourt left a small window opened for those who were working on adhoc/ daily wage basis for more than ten years, to regularise them as aone-time measure. However, that was also subject to the condition thatthey should have been appointed in duly sanctioned post. Further, whilecounting their ten years period, those cases were to be excluded wheresuch persons continued to work under the cover of orders of the courtsor the tribunal. The High Court has, in the impugned judgment, discussedthese nuances and has also referred to the judgment in Uma Devi andheld that the benefit of one-time measure suggested in that case couldnot be extended to the appellant because of the following reasons:

“The Appellants clearly fall in the exception noticed in paragraph-53 of Umadevi (supra) as their claims were sub judice on the datethe pronouncement of the Constitution Bench was made in viewof pendency of C.W.J.C. No. 12235 of 2005 disposed subsequentlyon 29.08.2006. Such litigious continuation in employment standsexcluded from the directions of Umadevi.

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

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

“43 (A) Uma Devi (supra) prohibits regularization of daily wage,casual, ad-hoc, and temporary appointments, the period ofservice being irrelevant; (B) An illegal appointment void ab initio made contrary to themandate of Article 14 without open competitive selection cannotbe regularized under any circumstances.

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A(C) Irregular appointments can be regularized if the appointmentwas made by an authority competent to do so, it was made ona vacant sanctioned post, in accordance with Article 14 of theConstitution with equal opportunity for participation to otherseligible by competitive selection and the candidate possessedthe eligibility qualifications for a regular appointment to theBpost.

(D) The appointment must not have been an individual favourdoled out to the appointee alone and he person must havecontinued in service for over ten years without intervention ofany court orders.”

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9. We are, thus, of the view that there is no merit in this appeal,which is accordingly dismissed.

No costs.

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Divya Pandey

Appeal dismissed.

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