Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.94139414 OF 2019
(Arising out of SLP(C) Nos. 2329723298 of 2018)
RAJNISH KUMAR MISHRA & ORS.
ETC. ...APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH &
ORS. ETC. .... RESPONDENT(S)
J U D G M E N T
Leave granted.
2. Heard the learned counsel for the parties.
3. The appeals challenge the judgment and order passed
by the Division Bench of the Allahabad High Court dated
09.07.2018, which has dismissed the appeals filed by the
present appellants and confirmed the order passed by the
learned single judge of the said High Court dated
Signature Not Verified
Digitally signed by
14.9.2017 with some modifications.
SANJAY KUMAR
Date: 2019.12.13
16:47:54 IST
Reason:
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4. The facts, in brief, giving rise to the present appeals
are as under.
5. On creation of the Ambedkar Nagar Judgeship, the
appellants were appointed on adhoc basis. The appellants
were appointed in the year 19992001. The initial
appointment of the appellants was made for a period of
three months, which term was extended from time to time.
6. In the year 2001, an advertisement was issued for
direct recruitment of ClassIII employees, which led the
appellants to file several writ petitions before the High
Court which were clubbed together, the lead Writ Petition
being W.P. No.7544(S/S) of 2003. In the said bunch of
writ petitions, an order was passed on 01.08.2006
providing therein, that appellants may apply in response to
the advertisement and their cases shall be considered
along with other candidates. It was also directed that the
District Judge may send their names to High Court on
administrative side for considering, if they could be granted
relaxation in age. It was further observed, that it was open
for the District Judge and Selection Committee to take into
account the length of service and experience etc. of the
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appellants. It was further directed that till the selection
process was over, appellants would be allowed to continue
in service in the same capacity.
7. It appears from the record that subsequently the said
selection process came to be cancelled and the appellants
were continued in the employment on the ad hoc basis as
per the interim order passed on 01.08.2006. It further
appears, that in the meantime the appellants, since they
were continued for a long period, made representations to
the District Judge, Ambedkar Nagar for their
regularisation. The District Judge by an order dated
28.5.2012 constituted a Committee under the
chairmanship of an Additional District Judge, comprising
of two other members who were also Judicial Officers. The
said Committee submitted its report on 12.07.2012,
recommending regularization of the appellants. Pursuant
to the said recommendation made by the Committee, the
District Judge passed orders regularising the services of
the appellants on 09.11.2012. However, the successor in
the office of the District Judge passed an order dated
16.08.2014 thereby, declaring that the orders of
regularization were nonest. By a second order passed on
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the same day i.e. 16.08.2014, the District Judge also
withdrew the earlier order by which, the appellants were
granted the benefits of increments with certain other
benefits. The District Judge passed a third order on
16.08.2014 thereby, directing recovery of emoluments paid
to the appellants. It is further to be noted that after the
writ petitions were dismissed by the learned single judge of
the High Court on 14.9.2017, the appellants’ services came
to be terminated immediately on 23.9.2017.
8. Aggrieved by the aforesaid three orders, the
appellants filed Writ Petition No.4813 (S/S) of 2014 and
Writ Petition No.5530 (S/S) of 2014. 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/ on
each of the appellants (petitioners therein).
9. Being aggrieved thereby, the appellants preferred
appeals before the Division Bench of the High Court. The
Division Bench while dismissing the appeals, however, set
aside the order insofar as saddling the costs is concerned.
The Division Bench further directed, that since one Manish
Kumar Malviya, who was also one of the appellants before
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the Division Bench of the High Court, was appointed on
06.04.1998, he was eligible to be considered for
regularization in terms of the Uttar Pradesh Regularization
of Adhoc Appointment (On Post within the purview of the
Public Service Commission) Rules, 1979 as amended in the
year 2001. It was further directed, that till the outcome of
consideration of his case for regularization he should be
continued on adhoc basis. The Division Bench further
directed that in case any recruitment process for Class III
posts takes place in future, the appellants would be
permitted to participate in the same and the Court would
consider grant of relaxation in age and grant of preference
to them by giving some benefit of length of service rendered
by them in adhoc 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 Court have erred in dismissing
the petitions and appeals of the appellants. She submits,
that the Committee under the chairmanship of the
Additional District Judge had given report on 12.07.2012
on the basis of Circular dated 05.11.2009, issued by the
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High Court. She further submits, that the then incumbent
of the office of the District Judge had rightly, after
considering the report, issued the order of regularisation
on 9.11.2012. She submits, that as a matter of fact, there
was no occasion for the successor in the office of the
District Judge to have passed order dated 16.08.2014,
cancelling the order of regularization granted vide order
dated 9.11.2012.
11. The learned counsel for the appellants further
submits, that during the pendency of the writ petitions the
UP Regularization of Persons Working on daily wages or on
work charge or on contract in government department on
group ‘C’ and group ‘D’ posts (outside the purview of the
UP Public Service Commission) Rules, 2016 were framed.
Rule 6 thereof provided cutoff date as 31.12.2001. She
further submits, that the High Court has failed to take into
consideration the import of said Rules.
12. The learned counsel further submits, that this Court
in the case of Sheo Narain Nagar & Ors . vs. State of
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Uttar Pradesh & Ors . , after considering the judgment of
this Court in vs.
Secretary, State of Karnataka & Ors.
1 (2018) 13 SCC 432 {Civil Appeal No.18510 of 2017 [@ SLP(C) No.6183/2015]}
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Umadevi (3) & Ors . wherein it was observed that as a
onetime measure the employer should take steps for
regularisation of the services of the employees who had put
in service of 10 years or more and had directed
regularization of the appellants therein. The learned
counsel further submits, that the appeals deserve to be
allowed and the impugned order deserves to be quashed
and set aside.
13. Shri S.R. Singh, learned Senior Counsel appearing on
behalf of the respondents would submit, that the
appellants continued in service by virtue of interim order
passed by the High Court dated 01.08.2006 and, as such,
the benefit of onetime regularization as provided by the
judgment of the Constitution Bench of this Court in the
case of Umadevi (supra), cannot be granted to the
appellants. It is further submitted, that the report of the
Committee set up by the District Judge dated 12.07.2012
was collusive and, as such, the successor in the office of
District Judge had rightly passed an order dated
16.08.2014 thereby, cancelling the order of regularization
dated 09.11.2012 passed on the basis of the Report dated
2 (2006) 4 SCC 1
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12.07.2012. He further submits, that the appellants are
not entitled to the equitable relief and, as such, the appeals
deserve to be dismissed.
14. We have perused the material placed on record. The
Circular addressed by the Registrar General of the High
Court of Allahabad dated 05.11.2009 would show, that all
the District Judges have been directed that in order to
restore the procedure for appointment of Class III and
Class IV employees, all such adhoc daily wage appointees,
who are appointed subsequent to 31.12.2001 without
following any procedure of law, must cease to work
immediately. It appears, that the said cutoff date is
provided in the said circular inasmuch as the provisions of
Uttar Pradesh Regularization of daily wages Appointments
on Group ‘D’ Posts Rules, 2001 were notified on
31.12.2001. The Committee under the chairmanship of the
Additional District Judge after basically considering the
Circular dated 05.11.2009 and the cutoff date of
31.12.2001 mentioned therein had submitted the report
thereby, recommending regularization of the appellants.
While considering the same, the Committee also found that
all the appellants were appointed prior to 31.12.2001; they
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were in continuous service thereafter and their services
were satisfactory. In pursuance of the said report the
District Judge vide order dated 09.11.2012 regularized the
services of appellants from 01.06.2012. It appears that
subsequently in the year 2014 certain employees made
representation(s) to the successor in the office of the
District Judge for promotion. While examining the same,
the District Judge found that regularization of the
appellants was not proper and, therefore, vide order dated
16.08.2014 annulled the regularization of the appellants
and also ordered for recovery of the amount, which the
appellants had received on the basis of the order dated
09.11.2012.
15. The Single Judge as well as the Division Bench have
primarily nonsuited the appellants on the ground, that the
regularization of the appellants was on account of collusion
between the appellants and the members of the Committee.
However, at the cost of repetition, we may state that the
report of the Committee under the chairmanship of the
Additional District Judge is mainly on the basis of the
Circular issued by the Registrar General of the High Court
dated 05.11.2009. It is further to be noted, that by the
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time when the cases of the appellants for regularization
had come up for consideration before the Committee the
Judgment of the Constitution Bench of this Court in the
case of Umadevi (supra) had already been pronounced. In
the said Judgment itself, the Constitution Bench had
provided that as a onetime measure the State should take
up steps for regularization of the employees, who had
rendered the services for a period of more than 10 years.
16. It is further to be noted that similarly circumstanced
employees in the employment of the State of Uttar Pradesh,
who were appointed on daily wages/contractual basis had
approached the Allahabad High Court praying for
regularization of their services. The Single Judge had
dismissed the writ petitions which orders were affirmed by
the Division Bench. The said employees therein had
approached this Court by way of 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 in the case of (supra):
Sheo Narain Nagar
“The appellants were required to be appointed
on regular basis as a onetime measure, as laid
down in paragraph 53 of Umadevi (supra). Since
the appellants had completed 10 years of service
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and temporary status had been given by the
respondents with retrospective effect in the
02.10.2002, we direct that the services of the
appellants be regularized from the said date i.e.
02.10.2002, consequential benefits and the
arrears of pay also to be paid to the appellants
within a period of three months from today.”
17. Another aspect that needs consideration is that
during the pendency of the petitions, the Rules with regard
to regularization were amended which provided cutoff date
of 31.12.2001. Undisputedly, all the appellants were
appointed prior to 31.12.2001. The change in position of
law ought to have been taken into consideration by the
High Court. It is not in dispute that all the appellants were
appointed prior to 31.12.2001. Undisputedly, the
appellants were continued in services from 01.08.2006 on
account of interim orders passed in writ petitions.
However, the selection process in which the appellants
were permitted to participate, could not see the light of the
day, as it was subsequently cancelled in 2008. As such, as
a matter of fact, when the appellants’ case was considered
for regularization by a Committee under the chairmanship
of Additional District Judge, the appellants had, in fact,
put in service almost for a period of 12 years.
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18. As such, apart from the circular issued by the
Registrar General of the High Court dated 05.11.2009, the
appellants’ cases were also required to be taken into
consideration in view of the exception carved out in the
case of (supra) We find that the Committee
Umadevi .
under the chairmanship of the Additional District Judge
had rightly submitted its report dated 12.07.2012 and the
then District Judge had rightly passed the order of
regularization on 09.11.2012 granting regularization from
01.06.2012. We find, that while considering the
representation of some of the employees for promotion, the
successor in the office of the District Judge could not have
annulled the order of the regularization of the appellants
which was done after following the proper procedure. The
least that was required to be done was to follow the
principles of natural justice 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 also
suffer from violation of the principles of natural justice.
19. In any case, we find that in view of the exception
carved out in the case of providing for
Umadevi (supra)
onetime regularization of employees who have completed
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10 years or above; the parity of similarly circumstanced
employees who have been granted benefit in the case of
(supra) and the Rules amended in
Sheo Narain Nagar
2016 which provide a cutoff date of 31.12.2001, the
appellants are also entitled for regularization of their
services.
20. In the result:
(1) the appeals are allowed;
(2) the Judgement and order dated 14.09.2017
passed by the Single Judge 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
as Division Bench of the said High Court dated
09.07.2018 in Special Appeal No.440 of 2017
and in Special Appeal No.444 of 2017 are
quashed and set aside; and
(3) the orders dated 16.08.2014 passed by the
District Judge, Ambedkar Nagar are quashed
and set aside and the consequential order of
termination dated 23.9.2017 is also quashed
and set aside.
(4) the order dated 9.11.2012 passed by the
District Judge, Ambedkar Nagar regularizing
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the services of appellants with effect from
01.06.2012 is upheld.
(5) Consequentially, the termination of the
appellants from their services is quashed and
set aside and the appellants are directed to be
reinstated forthwith with continuity in service
for all the purposes including terminal benefits.
However, in the facts and circumstance of the
case, the appellants would not be entitled for
back wages for the period during which they are
out of employment.
21. In the facts and circumstances, there shall be no
order as to cost. All pending applications shall stand
disposed of.
…………...................CJI.
[S.A. BOBDE]
…………........................J.
[B.R. GAVAI]
..................................J.
[SURYA KANT]
NEW DELHI;
DECEMBER 13, 2019