UPENDRA SINGH versus THE STATE OF BIHAR AND ORS.
[2018] 2 S.C.R. 775, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Facts
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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 – Appellant
was appointed in Grade III in non-teaching staff by respondent
No.8, a private college– Respondent no.8 was taken over by State
Govt. and became a ‘Constituent College’ of Bihar University,
whereafter though the appellant was absorbed but no salary was
paid –Writ petition thereagainst was dismissed by High Court – Plea
of appellant that by a resolution of State Govt. itself, as far back as
in 1991, decision was taken to regularise the services but benefit
thereof was not extended to appellant even when he fulfills all the
conditions contained in the said resolution – Held: Order dtd. 13
Aug. 2003 refusing regularisation specifically stated that the initial
appointment of appellant was not in accordance with law –
University or the Government had agreed to regularise the services
of those employees of the colleges, which had become the Constituent
Colleges, only on the condition that their initial appointment was
after following the due procedure and that too against the sanctioned
post – Impugned order calls for no interference.
Dismissing the appeal, the Court
HELD: 1.1 The impugned judgment is without any blemish
and no interference is called for.  In fact, whole premise on which
the case is founded by the appellant seems to be incorrect. The
cases of persons
including the appellant, were duly considered
by the University, on the basis of which order dated August 13,
2003 were passed refusing regularisation. This order specifically
stated that the initial appointment of the appellant was not in
accordance with law.  It was made without advertisement and
there was no recommendation of panel by the Selection
Committee.  So much so, the appointments were not made by
the competent authority.  The University, or for that matter, the
  [2018] 2 S.C.R. 775
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Government had agreed to regularise the services of those
employees of the colleges, which had become the Constituent
Colleges, only on the condition that their initial appointment was
after following the due procedure and that too against the
sanctioned post. [Para 7][780-D-F]
1.2 Law pertaining to regularisation has now been
authoritatively determined by a Constitution Bench judgment of
this Court in Umadevi case.  On the application of law laid down
in that case, it is clear that the question of regularisation of daily
wager appointed contrary to law does not arise.  This ratio of the
judgment could not be disputed by the counsel for the appellant
as well.  That is why she continued to plead that the appointment
of the appellant was made after following due procedure and in
accordance with law.  However, that is not borne from the records.
Pertinently, order dated August 13, 2003, vide which the appellant
was refused regularisation on the aforesaid ground was not even
assailed by the appellant at that time.  In Uma Devi, the Court
left a small window opened for those who were working on ad
hoc/ daily wage basis for more than ten years, to regularise them
as a one-time measure.  However, that was also subject to the
condition that they should have been appointed in duly sanctioned
post.  Further, while counting their ten years period, those cases
were to be excluded where such persons continued to work under
the
cover of orders of the courts or the tribunal.  The High Court
has, in the impugned judgment, discussed these nuances and had
also referred to the judgment in Uma Devi and held that the benefit
of one-time measure suggested in that case could not be
extended 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
[2006] 3 SCR 953
    followed
Para 8
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 2356
of 2018.
From the Order dated 25.07.2013 of the High Court of Judicature
at 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. Purnima
Krishna, Siddharth Garg, Ajay Kumar Talesara, Atul Jha, Sandeep Kumar
Jha, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. The appellant herein has challenged the
judgment dated July 25, 2013 passed by the High Court of Judicature at
Patna dismissing the Letters Patent Appeal (LPA) filed by the appellant.
In fact, by the said common judgment, two LPAs are decided.  One
LPA 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 of
P.S. Gogari, District Khagaria, Bihar, wanted regularisation of their
services and payment of salary based on such regularisation.  Their writ
petition was dismissed by the learned Single Judge and the intra-court
appeal has met the same fate.  However, it appears that out of eleven
persons, who were the appellants in the aforesaid two LPAs, only the
appellant herein has approached this Court feeling dissatisfied with the
outcome 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 got
affiliated to the Bihar University.  It is stated that having regard to the
long service rendered by the
appellant, coupled with the decision of the
University authorities itself to regularise such persons, he was also entitled
thereto. However, the same is denied and he has not been paid his regular
salary for last over a decade.  The claim is founded on the following
averments:
3. The Governing Body of respondent No.8 constituted a Selection
Committee for appointment of teaching and non-teaching staff and this
Committee, after following due process of recruitment through an
advertisement and thereafter selection on interview, appointed the
appellant in Grade III in non-teaching category with effect from January
24, 1978.  In the year 1980, a decision was taken by the Government of
Bihar to some Universities, including the Bihar University, that the colleges
affiliated with these Universities be converted as ‘Constituent Colleges’
UPENDRA SINGH  v. THE STATE OF BIHAR AND ORS.
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of the University on the basis of which respondent No.8 also became a
Constituent College of the Bihar University.  This decision was
implemented 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 the
appellant, and the appellant continued in service of respondent No.8
thereafter.  However, as the University authorities did not make payment
of salaries to the appellant and some other employees of Grade III and
Grade IV, although they were continued in service, representations were
made in this behalf by the College Employees’ Federation.  Though,
initially assurances were given, they were not fulfilled, because of which
the Employees’ Federation started the agitation and continued the same.
Ultimately, State of Bihar and Bihar Higher Education Department
entered into an agreement dated April 26, 1989 with the Bihar State
University and the College Employees’ Federation agreeing to absorb
the employees, including the appellant, on the basis of Staffing Pattern.
Based on that decision, respondent No.8 scrutinised the records of its
employees and recommended the names of non-teaching staff, including
that of the appellant, through its letter dated December 22, 1989 to the
Government recommending the names for absorption.  All such names
were considered by a three man Staffing Committee
appointed by the
University, which inspected the records, however, no final decision was
taken.  In these circumstances, when the matter was getting delayed,
the appellant and others filed writ petition in the High Court in the year
1997, which was disposed of on May 05, 1999 directing the State
Government to take appropriate decision as early as possible.  Thereafter,
the matter was considered and ultimately the Bihar University issued
orders dated August 30, 1999/ September 15, 1999 rejecting the claims
of these employees, including the appellant, and directing them not to
work in the College.  This action was challenged by filing writ petitions,
which were allowed and the appellant and some others were taken back
in the employment.  However, they were not paid salary of the regular
staff.  Thereafter also, few rounds of litigation took place when the writ
petitions were filed in which orders were passed by the High Court to
consider the claim of these persons and it is not necessary to give those
details.  Suffice is to state that there was an issue as to whether there
were sanctioned posts or not against which the cases of these persons
could be considered.  According to the appellant, respondent No.8
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informed the University, vide letter dated June 11, 2009, that there are
twenty five posts sanctioned for the College, out of which fifteen posts
were for Grade IV employees and ten for Grade III employees.  In spite
thereof, no decision was taken and ultimately Writ Petition No. 16667 of
2010 was filed by the appellant and some other employees, which was
dismissed by the Single Judge of the High Court on February 01, 2013.
It is against this judgment, LPAs in question were filed, which have been
dismissed by the impugned judgment.
4. The case set up by the appellant, in nutshell, is that the appellant
has been working for more than two decades; he was appointed by
respondent No.8 after following due process of recruitment; the
appointment was against sanctioned post; after respondent No.8 college
attained the status of ‘Constituent College’, the University refused to
pay the salary of the regular staff; and though decision was taken to
regularise the services on the basis of Staffing Pattern as far back as on
May 10, 1991 by a resolution of the State Government in this behalf,
benefit thereof is not extended to the appellant even when he fulfils all
the conditions contained in the said resolution.
5. Learned counsel for the appellant submitted that the writ court
as well as the appeal court have proceeded on a wholly erroneous basis
and assumption that the Government had, at no stage, agreed to regularise
the appellant and others.  She submitted that the
State Government had
already given concurrence for such a regularisation but was delaying its
implementation on one pretext or the other.  This concurrence of the
State Government was recorded in the agreement dated April 26, 1989
with the University and the College Employees’ Federation, which was
followed by various other documents exchanged between the University,
the State Government and respondent No.8.  It was also argued that the
High Court wrongly proceeded on the basis that the appellant was
appointed after the cut off date of July 12, 1980, whereas the record
reveals that he was appointed much prior thereto, i.e. on January 24,
1978.
6. Learned counsel for the respondent, on the other hand, justified
the reasoning adopted by the courts below and argued that the case of
the appellant was not covered by the resolution passed on Staffing
Pattern, inasmuch as, neither there were sanctioned posts when the
appellant was appointed nor any such post existed thereafter, nor was
UPENDRA SINGH  v. THE STATE OF BIHAR AND ORS.
[A. K. SIKRI, J.]
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he appointed against sanctioned post or after following the due procedure.
He submitted that the appointment of the appellant or similarly situated
persons was done by respondent No.8 of its own and when respondent
No.8 became Constituent College, the University was well within its
right not to regularise those persons who were not appointed against the
sanctioned post.  The learned counsel referred to clause (1) of the Manual
of Bihar University Laws (Part – I) which deals with the appointment
and powers of the Vice Chancellor and sub-clause (6) thereof stipulates
that it is the Vice Chancellor which has the power to make appointment
to the post within the sanctioned grades and scales of pay and within the
sanctioned strength of the ministerial staff etc., meaning thereby not
only power is given to the Vice Chancellor but even he can appoint only
against the posts, that too within the sanctioned grades.
7. After considering the respective arguments, we are of the view
that the impugned judgment is without any blemish and no interference
is called for.  In fact, whole premise on which the case is founded by the
appellant seems to be incorrect.  We note that the cases of these persons,
including the appellant, were duly considered by the University, on the
basis of which order dated August 13, 2003 were passed refusing
regularisation.  This order specifically states that the initial appointment
of the appellant and
others was not in accordance with law.  It was
made without advertisement and there was no recommendation of panel
by the Selection Committee.  So much so, the appointments were not
made by the competent authority.  We find that the University, or for
that matter, the Government had agreed to regularise the services of
those employees of the colleges, which had become the Constituent
Colleges, only on the condition that their initial appointment was after
following the due procedure and that too against the sanctioned post.  A
statement was made at the Bar by learned counsel for the respondent
that there were no sanctioned posts even now.
8. Law pertaining to regularisation has now been authoritatively
determined by a Constitution Bench judgment of this Court in Secretary,
State of Karnataka & Ors. v. Umadevi & Ors., (2006) 4 SCC 1.  On
the application of law laid down in that case, it is clear that the question
of regularisation of daily wager appointed contrary to law does not arise.
This ratio of the judgment could not be disputed by the learned counsel
for the appellant as well.  That is why she continued to plead that the
appointment of the appellant was made after following due procedure
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and in accordance with law.  However, that is not borne from the records.
Pertinently, order dated August 13, 2003, vide which the appellant was
refused regularisation on the aforesaid ground was not even assailed by
the appellant at that time.  It may be mentioned that in Uma Devi, the
Court left a small window opened for those who were working on ad
hoc/ daily wage basis for more than ten years, to regularise them as a
one-time measure.  However, that was also subject to the condition that
they should have been appointed in duly sanctioned post.  Further, while
counting their ten years period, those cases were to be excluded where
such persons continued to work under the cover of orders of the courts
or the tribunal.  The High Court has, in the impugned judgment, discussed
these nuances and has also referred to the judgment in Uma Devi and
held that the benefit of one-time measure suggested in that case could
not 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 date
the pronouncement of the Constitution Bench was made in view
of pendency of C.W.J.C. No. 12235 of 2005 disposed subsequently
on 29.08.2006.  Such litigious continuation in employment stands
excluded from the directions of Umadevi.
The Appellants claim to have been regularized within the staffing
pattern. In our opinion, it is not the crux of the
matter.  The crucial
question is if their initial appointment by the Managing Committee
was in consonance with Article 14 of the Constitution of India by
open advertisement and competitive merit selection.  On account
of various interpretations by more than one Bench of M.L. Kesari
(supra) reference was made to the Full Bench.  We have already
noticed from the order refusing regularization dated 13.08.2003
that the appointment of the Appellants on daily wage was not in
consonance with the law.
The conclusion in Ram Sewak Yadav (supra) at paragraph 43 is
as follows:
“43 (A) Uma Devi (supra) prohibits regularization of daily wage,
casual, ad-hoc, and temporary appointments, the period of
service being irrelevant;
(B) An illegal appointment void ab initio made contrary to the
mandate of Article 14 without open competitive selection cannot
be regularized under any circumstances.
UPENDRA SINGH  v. THE STATE OF BIHAR AND ORS.
[A. K. SIKRI, J.]
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(C) Irregular appointments can be regularized if the appointment
was made by an authority competent to do so, it was made on
a vacant sanctioned post, in accordance with Article 14 of the
Constitution with equal opportunity for participation to others
eligible by competitive selection and the candidate possessed
the eligibility qualifications for a regular appointment to the
post.
(D) The appointment must not have been an individual favour
doled out to the appointee alone and he person must have
continued in service for over ten years without intervention of
any court orders.”
9.  We are, thus, of the view that there is no merit in this appeal,
which is accordingly dismissed.
No costs.
Divya Pandey
                              Appeal dismissed.