RAJNISH KUMAR MISHRA & ORS. ETC. versus STATE OF UTTAR PRADESH & ORS. ETC. on 13 December 2019

68

SUPREME COURT REPORTS

[2019] 15 S.C.R.

ARAJNISH KUMAR MISHRA & ORS. ETC.

v.

STATE OF UTTAR PRADESH & ORS. ETC.

(Civil Appeal Nos. 9413-9414 of 2019)

BDECEMBER 13, 2019

[S.A. BOBDE, CJI, B.R. GAVAI AND SURYA KANT, JJ.]

Service Law – Regularisation – On creation of the AmbedkarNagar Judgeship, the appellants were appointed on ad-hoc basis –CIn 2001, advertisement issued for direct recruitment of Class-IIIemployees – Appellants filed writ petitions – Order passed on01.08.06 providing that appellants may also apply and their casesshall be considered along with other candidates – However, thesaid selection process was canceled and the appellants werecontinued on the ad-hoc basis as per interim order dtd. 01.08.06 –DIn the mean-time, the appellants represented to the District Judge,Ambedkar Nagar for regularisation – District Judge constitutedCommittee – It recommended regularization by report dtd.12.07.12

– District Judge regularised the services of the appellants – However,the successor in the office of the District Judge inter alia declaredEthat the orders of regularization were non-est – Writ petitionsdismissed by the Single Judge – Appellants’ services terminated –Appellants filed writ petition – Dismissed – Held: Report of theCommittee is on the basis of the Circular dtd. 05.11.09 issued bythe Registrar General of the High Court – Circular shows that allthe District Judges were directed that in order to restore the procedureFfor appointment of Class III & Class IV employees, all such ad-hocdaily wage appointees appointed subsequent to 31.12.01 withoutfollowing any procedure of law, must cease to work immediately –During the pendency of the petitions, the Rules with regard toregularization were amended which provided cut-off date ofG31.12.01– Appellants were appointed prior to 31.12.01 – Changein position of law ought to have been taken into consideration bythe High Court – Appellants continued in services from 01.08.06on account of interim orders passed in writ petitions – As such,when the appellants’ case was considered for regularization by the H

Committee, the appellants had put in service almost for 12 years –Further, in view of the exception carved out in Umadevi caseproviding for one-time regularization of employees who completed10 years or above; the parity of similarly circumstanced employeeswho were granted benefit in the Sheo Narain Nagar case and theRules amended in 2016 which provide cut-off date of 31.12.01, theappellants are also entitled for regularization – Appellants bereinstated with continuity in service for all the purposes includingterminal benefits, however, not entitled to back wages for the periodthey are out of employment –Uttar Pradesh Regularization of DailyWages Appointments on Group ‘D’ Posts Rules, 2001.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1.1 The Circular addressed by the RegistrarGeneral of the High Court of Allahabad dated 05.11.09 wouldshow, that all the District Judges have been directed that in orderto restore the procedure for appointment of Class III and ClassIV employees, all such ad-hoc daily wage appointees, who areappointed subsequent to 31.12.01 without following any procedureof law, must cease to work immediately. The said cut-off date isprovided in the said circular inasmuch as the provisions of UttarPradesh Regularization of daily wages Appointments on Group‘D’ Posts Rules, 2001 were notified on 31.12.01. The Committeealso found that all the appellants were appointed prior to 31.12.01;they were in continuous service thereafter and their serviceswere satisfactory. In pursuance of the said report the DistrictJudge vide order dated 09.11.12 regularized the services ofappellants from 01.06.12. The report of the Committee underthe chairmanship of the Additional District Judge is mainly onthe basis of the Circular issued by the Registrar General of theHigh Court dated 05.11.09. By the time when the cases of theappellants for regularization had come up for consideration beforethe Committee the Judgment of the Constitution Bench of thisCourt in the case of Umadevi had already been pronounced. Inthe said Judgment itself, the Constitution Bench had providedthat as a one-time measure the State should take up steps forregularization of the employees, who had rendered the servicesfor a period of more than 10 years. [Paras 14-15][75-A-D, F-H]

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A1.2 During the pendency of the petitions, the Rules withregard to regularization were amended which provided cut-offdate of 31.12.01. Undisputedly, all the appellants were appointedprior to 31.12.01. The change in position of law ought to havebeen taken into consideration by the High Court. Undisputedly,the appellants were continued in services from 01.08.06 onBaccount of interim orders passed in writ petitions. However, theselection process in which the appellants were permitted toparticipate, could not see the light of the day, as it wassubsequently cancelled in 2008. As such, as a matter of fact,when the appellants’ case was considered for regularization by aCCommittee under the chairmanship of Additional District Judge,the appellants had, in fact, put in service almost for a period of 12years. The Committee under the chairmanship of the AdditionalDistrict Judge had rightly submitted its report dated 12.07.12and the then District Judge had rightly passed the order ofregularization on 09.11.12 granting regularization from 01.06.12.DWhile considering the representation of some of the employeesfor promotion, the successor in the office of the District Judgecould not have annulled the order of the regularization of theappellants which was done after following the proper procedure.The least that was required to be done was to follow the principlesEof natural justice by giving an opportunity of being heard to theappellants. The three orders passed by the District Judge dated16.08.2014 also suffer from violation of the principles of naturaljustice. In view of the exception carved out in the case of Umadeviproviding for one-time regularization of employees who havecompleted 10 years or above; the parity of similarly circumstancedFemployees who have been granted benefit in the case of SheoNarain Nagar and the Rules amended in 2016 which provide acut-off date of 31.12.2001, the appellants are also entitled forregularization of their services. [Paras 17-19][76-E-H; 77-A-D]

1.3 In the result: (1) the appeals are allowed; (2) theGJudgement and order dated 14.09.2017 passed by the SingleJudge of the High Court of Allahabad in Writ Petition No.4813(S/S) of 2014 and Writ Petition No.5530(S/S) of 2014 as well asDivision Bench of the said High Court dated 09.07.2018 in SpecialAppeal No.440 of 2017 and in Special Appeal No.444 of 2017 areH

quashed and set aside; and (3) the orders dated 16.08.2014passed by the District Judge, Ambedkar Nagar are quashed andset aside and the consequential order of termination dated23.9.2017 is also quashed and set aside; (4) the order dated9.11.2012 passed by the District Judge, Ambedkar Nagarregularizing the services of appellants with effect from 01.06.2012is upheld; (5) Consequentially, the termination of the appellantsfrom their services is quashed and set aside and the appellantsare directed to be reinstated forthwith with continuity in servicefor all the purposes including terminal benefits. However, in thefacts and circumstance of the case, the appellants would not beentitled for back wages for the period during which they are outof employment. [Para 20][77-D-H; 78-A]

State of Karnataka & Ors. v. Umadevi (3) & Ors. (2006)4 SCC 1 : [2006] 3 SCR 953 – followed.

Sheo Narain Nagar & Ors. v. State of Uttar Pradesh &Ors. (2018) 13 SCC 432 : [2017] 11 SCR 138 – relied on.

Case Law Reference

[2017] 11 SCR 138relied onPara 12[2006] 3 SCR 953followedPara 12

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9413-9414 of 2019.

From the Judgment and Order dated 09.07.2018 by the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Special AppealNo. 440 of 2017.

S.R. Singh, Sr. Adv., Ms. Kamini Jaiswal, Akhilesh Kalra, RohitKumar Singh, Ms. Rani Mishra, Jatinderpal Singh, Prasanjit Singh Rathore,Adarsh Upadhyay, Ms. Preetika Dwivedi, Ms. Sukriti Bhatnagar, Advs.for the appearing parties.

The following Judgment of the Court was delivered:

JUDGMENT

1. Leave granted.

2. Heard the learned counsel for the parties.

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B

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G

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A

3. The appeals challenge the judgment and order passed by theDivision Bench of the Allahabad High Court dated 09.07.2018, whichhas dismissed the appeals filed by the present appellants and confirmedthe order passed by the learned single judge of the said High Courtdated 14.9.2017 with some modifications.

B4. The facts, in brief, giving rise to the present appeals are asunder.

5. On creation of the Ambedkar Nagar Judgeship, the appellantswere appointed on ad-hoc basis. The appellants were appointed in theyear 1999-2001. The initial appointment of the appellants was made forCa period of three months, which term was extended from time to time.

6. In the year 2001, an advertisement was issued for directrecruitment of Class-III employees, which led the appellants to file severalwrit petitions before the High Court which were clubbed together, thelead Writ Petition being W.P. No.7544(S/S) of 2003. In the said bunchDof writ petitions, an order was passed on 01.08.2006 providing therein,that appellants may apply in response to the advertisement and theircases shall be considered along with other candidates. It was also directedthat the District Judge may send their names to High Court onadministrative side for considering, if they could be granted relaxation inage. It was further observed, that it was open for the District Judge andESelection Committee to take into account the length of service andexperience etc. of the appellants. It was further directed that till theselection process was over, appellants would be allowed to continue inservice in the same capacity.

7. It appears from the record that subsequently the said selectionFprocess came to be cancelled and the appellants were continued in theemployment on the ad hoc basis as per the interim order passed on01.08.2006. It further appears, that in the mean-time the appellants, sincethey were continued for a long period, made representations to the DistrictJudge, Ambedkar Nagar for their regularisation. The District Judge byGan order dated 28.5.2012 constituted a Committee under the chairmanshipof an Additional District Judge, comprising of two other members whowere also Judicial Officers. The said Committee submitted its report on12.07.2012, recommending regularization of the appellants. Pursuant tothe said recommendation made by the Committee, the District Judgepassed orders regularising the services of the appellants on 09.11.2012.HHowever, the successor in the office of the District Judge passed an order dated 16.08.2014 thereby, declaring that the orders of regularizationwere non-est. By a second order passed on the same day i.e. 16.08.2014,the District Judge also withdrew the earlier order by which, the appellantswere granted the benefits of increments with certain other benefits. TheDistrict Judge passed a third order on 16.08.2014 thereby, directingrecovery of emoluments paid to the appellants. It is further to be notedthat after the writ petitions were dismissed by the learned single judge ofthe High Court on 14.9.2017, the appellants’ services came to beterminated immediately on 23.9.2017.

8. Aggrieved by the aforesaid three orders, the appellants filedWrit Petition No.4813 (S/S) of 2014 and Writ Petition No.5530 (S/S) of2014. The single Judge of High Court by an order dated 14.09.2017,dismissed the writ petitions and also imposed cost of Rs.50,000/- oneach of the appellants (petitioners therein).

9. Being aggrieved thereby, the appellants preferred appeals beforethe Division Bench of the High Court. The Division Bench whiledismissing the appeals, however, set aside the order insofar as saddlingthe costs is concerned. The Division Bench further directed, that sinceone Manish Kumar Malviya, who was also one of the appellants beforethe Division Bench of the High Court, was appointed on 06.04.1998, hewas eligible to be considered for regularization in terms of the UttarPradesh Regularization of Ad-hoc Appointment (On Post within thepurview of the Public Service Commission) Rules, 1979 as amended inthe year 2001. It was further directed, that till the outcome of considerationof his case for regularization he should be continued on ad-hoc basis.The Division Bench further directed that in case any recruitment processfor Class III posts takes place in future, the appellants would be permittedto participate in the same and the Court would consider grant of relaxationin age and grant of preference to them by giving some benefit of lengthof service rendered by them in ad-hoc capacity. Being aggrieved thereby,the appellants have approached this Court.

10. Ms. Kamini Jaiswal, learned counsel for the appellants submits,that the Single Judge as well as the Division Bench of the High Courthave erred in dismissing the petitions and appeals of the appellants. Shesubmits, that the Committee under the chairmanship of the AdditionalDistrict Judge had given report on 12.07.2012 on the basis of Circulardated 05.11.2009, issued by the High Court. She further submits, thatthe then incumbent of the office of the District Judge had rightly, after A

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Aconsidering the report, issued the order of regularisation on 9.11.2012.She submits, that as a matter of fact, there was no occasion for thesuccessor in the office of the District Judge to have passed order dated16.08.2014, cancelling the order of regularization granted vide order dated9.11.2012.B11. The learned counsel for the appellants further submits, that

B11. The learned counsel for the appellants further submits, thatduring the pendency of the writ petitions the UP Regularization of PersonsWorking on daily wages or on work charge or on contract in governmentdepartment on group ‘C’ and group ‘D’ posts (outside the purview ofthe UP Public Service Commission) Rules, 2016 were framed. Rule 6Cthereof provided cut-off date as 31.12.2001. She further submits, thatthe High Court has failed to take into consideration the import of saidRules.

12. The learned counsel further submits, that this Court in thecase of Sheo Narain Nagar & Ors. vs. State of Uttar Pradesh &DOrs.[1], after considering the judgment of this Court in Secretary, Stateof Karnataka & Ors. vs. Umadevi (3) & Ors.[2] wherein it was observedthat as a one-time measure the employer should take steps forregularisation of the services of the employees who had put in service of10 years or more and had directed regularization of the appellants therein.The learned counsel further submits, that the appeals deserve to beEallowed and the impugned order deserves to be quashed and set aside.

13. Shri S.R. Singh, learned Senior Counsel appearing on behalfof the respondents would submit, that the appellants continued in serviceby virtue of interim order passed by the High Court dated 01.08.2006and, as such, the benefit of one-time regularization as provided by theFjudgment of the Constitution Bench of this Court in the case of Umadevi(supra), cannot be granted to the appellants. It is further submitted, thatthe report of the Committee set up by the District Judge dated 12.07.2012was collusive and, as such, the successor in the office of District Judgehad rightly passed an order dated 16.08.2014 thereby, cancelling theGorder of regularization dated 09.11.2012 passed on the basis of the Reportdated 12.07.2012. He further submits, that the appellants are not entitledto the equitable relief and, as such, the appeals deserve to be dismissed.

1 (2018) 13 SCC 432 {Civil Appeal No.18510 of 2017 [@ SLP(C) No.6183/2015]}H2 (2006) 4 SCC 1

14. We have perused the material placed on record. The Circularaddressed by the Registrar General of the High Court of Allahabad dated05.11.2009 would show, that all the District Judges have been directedthat in order to restore the procedure for appointment of Class III andClass IV employees, all such ad-hoc daily wage appointees, who areappointed subsequent to 31.12.2001 without following any procedure oflaw, must cease to work immediately. It appears, that the said cut-offdate is provided in the said circular inasmuch as the provisions of UttarPradesh Regularization of daily wages Appointments on Group ‘D’ PostsRules, 2001 were notified on 31.12.2001. The Committee under thechairmanship of the Additional District Judge after basically consideringthe Circular dated 05.11.2009 and the cut-off date of 31.12.2001mentioned therein had submitted the report thereby, recommendingregularization of the appellants. While considering the same, theCommittee also found that all the appellants were appointed prior to31.12.2001; they were in continuous service thereafter and their serviceswere satisfactory. In pursuance of the said report the District Judgevide order dated 09.11.2012 regularized the services of appellants from01.06.2012. It appears that subsequently in the year 2014 certainemployees made representation(s) to the successor in the office of theDistrict Judge for promotion. While examining the same, the DistrictJudge found that regularization of the appellants was not proper and,therefore, vide order dated 16.08.2014 annulled the regularization of theappellants and also ordered for recovery of the amount, which theappellants had received on the basis of the order dated 09.11.2012.

15. The Single Judge as well as the Division Bench have primarilynon-suited the appellants on the ground, that the regularization of theappellants was on account of collusion between the appellants and themembers of the Committee. However, at the cost of repetition, we maystate that the report of the Committee under the chairmanship of theAdditional District Judge is mainly on the basis of the Circular issued bythe Registrar General of the High Court dated 05.11.2009. It is furtherto be noted, that by the time when the cases of the appellants forregularization had come up for consideration before the Committee theJudgment of the Constitution Bench of this Court in the case of Umadevi(supra) had already been pronounced. In the said Judgment itself, theConstitution Bench had provided that as a one-time measure the Stateshould take up steps for regularization of the employees, who hadrendered the services for a period of more than 10 years.

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A16. It is further to be noted that similarly circumstanced employeesin the employment of the State of Uttar Pradesh, who were appointedon daily wages/contractual basis had approached the Allahabad HighCourt praying for regularization of their services. The Single Judge haddismissed the writ petitions which orders were affirmed by the DivisionBench. The said employees therein had approached this Court by wayBof Civil Appeal No.18510 of 2017 (arising out of Special Leave Petition(Civil) No.6183 of 2015) in the case of Sheo Narain Nagar cited supra.It will be relevant to refer to the following observations of this Court inthe case of Sheo Narain Nagar (supra):

“The appellants were required to be appointed on regular basis asCa one-time measure, as laid down in paragraph 53 of Umadevi(supra). Since the appellants had completed 10 years of serviceand temporary status had been given by the respondents withretrospective effect in the 02.10.2002, we direct that the servicesof the appellants be regularized from the said date i.e. 02.10.2002,Dconsequential benefits and the arrears of pay also to be paid tothe appellants within a period of three months from today.”

17. Another aspect that needs consideration is that during thependency of the petitions, the Rules with regard to regularization wereamended which provided cut-off date of 31.12.2001. Undisputedly, allEthe appellants were appointed prior to 31.12.2001. The change in positionof law ought to have been taken into consideration by the High Court. Itis not in dispute that all the appellants were appointed prior to 31.12.2001.Undisputedly, the appellants were continued in services from 01.08.2006on account of interim orders passed in writ petitions. However, theselection process in which the appellants were permitted to participate,Fcould not see the light of the day, as it was subsequently cancelled in2008. As such, as a matter of fact, when the appellants’ case wasconsidered for regularization by a Committee under the chairmanship ofAdditional District Judge, the appellants had, in fact, put in service almostfor a period of 12 years.G

18. As such, apart from the circular issued by the Registrar Generalof the High Court dated 05.11.2009, the appellants’ cases were alsorequired to be taken into consideration in view of the exception carvedout in the case of Umadevi (supra). We find that the Committee underthe chairmanship of the Additional District Judge had rightly submittedHits report dated 12.07.2012 and the then District Judge had rightly passed the order of regularization on 09.11.2012 granting regularization from01.06.2012. We find, that while considering the representation of someof the employees for promotion, the successor in the office of the DistrictJudge could not have annulled the order of the regularization of theappellants which was done after following the proper procedure. Theleast that was required to be done was to follow the principles of naturaljustice by giving an opportunity of being heard to the appellants. We find,that the three orders passed by the District Judge dated 16.08.2014 alsosuffer from violation of the principles of natural justice.

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B

19. In any case, we find that in view of the exception carved outin the case of Umadevi (supra) providing for one-time regularization ofemployees who have completed 10 years or above; the parity of similarlycircumstanced employees who have been granted benefit in the case ofSheo Narain Nagar (supra) and the Rules amended in 2016 whichprovide a cut-off date of 31.12.2001, the appellants are also entitled forregularization of their services.

C

D

20. In the result:

(1) the appeals are allowed;

(2) the Judgement and order dated 14.09.2017 passed by theSingle Judge of the High Court of Allahabad in Writ PetitionNo.4813(S/S) of 2014 and Writ Petition No.5530(S/S) of2014 as well as Division Bench of the said High Courtdated 09.07.2018 in Special Appeal No.440 of 2017 and inSpecial Appeal No.444 of 2017 are quashed and set aside;and E

(3) the orders dated 16.08.2014 passed by the District Judge,Ambedkar Nagar are quashed and set aside and theconsequential order of termination dated 23.9.2017 is alsoquashed and set aside.

F

(4) the order dated 9.11.2012 passed by the District Judge,Ambedkar Nagar regularizing the services of appellantsGwith effect from 01.06.2012 is upheld.

(5) Consequentially, the termination of the appellants from theirservices is quashed and set aside and the appellants aredirected to be reinstated forthwith with continuity in servicefor all the purposes including terminal benefits. However, H

78SUPREME COURT REPORTS

Ain the facts and circumstance of the case, the appellantswould not be entitled for back wages for the period duringwhich they are out of employment.

21. In the facts and circumstances, there shall be no order as tocost. All pending applications shall stand disposed of.

B

Divya Pandey

Appeals allowed.

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