STATE OF JHARKHAND vs. KAMAL PRASAD .

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4809 OF 2014 (ARISING OUT OF SLP(C) 266 OF 2012 ) STATE OF JHARKHAND & ORS. ……APPELLANTS VS. KAMAL PRASAD & ORS. ………RESPONDENTS With CIVIL APPEAL NO.4837 OF 2014 (ARISING OUT OF SLP(C) NO. 21936 of 2013) CIVIL APPEAL NO.4810 OF 2014 (ARISING OUT OF SLP(C) NO. 34437 of 2012) CIVIL APPEAL NO.4811 OF 2014 (ARISING OUT OF SLP(C) NO. 36515 of 2012) JUDGMENT CIVIL APPEAL NO.4812 OF 2014 (ARISING OUT OF SLP(C) NO. 37628 of 2012) CIVIL APPEAL NO.4813 OF 2014 (ARISING OUT OF SLP(C) NO. 37701 of 2012) CIVIL APPEAL NO.4814 OF 2014 (ARISING OUT OF SLP(C) NO. 37702 of 2012) CIVIL APPEAL NO.4815 OF 2014 Page 1 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 (ARISING OUT OF SLP(C) NO. 37740 of 2012) CIVIL APPEAL NO.4816 OF 2014 (ARISING OUT OF SLP (C) NO. 37819 of 2012)

CIVIL APPEAL NO.4819 OF 2014 (ARISING OUT OF SLP(C) NO. 37864 of 2012) CIVIL APPEAL NO.4820 OF 2014 (ARISING OUT OF SLP(C) NO. 37930 of 2012) CIVIL APPEAL NO.4821 OF 2014 (ARISING OUT OF SLP(C) NO. 37952 of 2012) CIVIL APPEAL NO.4822 OF 2014 (ARISING OUT OF SLP(C) NO. 37981 of 2012) CIVIL APPEAL NO.4823 OF 2014 (ARISING OUT OF SLP(C) NO. 38012 of 2012) CIVIL APPEAL NO.4824 OF 2014 (ARISING OUT OF SLP(C) NO. 38039 of 2012) JUDGMENT CIVIL APPEAL NO.4825 OF 2014 (ARISING OUT OF SLP(C) NO. 38044 of 2012) CIVIL APPEAL NO.4826 OF 2014 (ARISING OUT OF SLP(C) NO. 38053 of 2012) CIVIL APPEAL NO.4827 OF 2014 (ARISING OUT OF SLP(C) NO. 38224 of 2012) CIVIL APPEAL NO.4828 OF 2014 (ARISING OUT OF SLP(C) NO. 38237 of 2012) Page 2 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 CIVIL APPEAL NO.4829 OF 2014 (ARISING OUT OF SLP(C) NO. 38242 of 2012) CIVIL APPEAL NO.4830 OF 2014 (ARISING OUT OF SLP(C) NO. 38267 of 2012) CIVIL APPEAL NO.4831 OF 2014 (ARISING OUT OF SLP(C) NO. 38323 of 2012) CIVIL APPEAL NO.4832 OF 2014 (ARISING OUT OF SLP(C) NO. 38341 of 2012) CIVIL APPEAL NO.4833 OF 2014 (ARISING OUT OF SLP(C) NO. 38404 of 2012) CIVIL APPEAL NO.4834 OF 2014 (ARISING OUT OF SLP(C) NO. 38408 of 2012) CIVIL APPEAL NO.4835 OF 2014 (ARISING OUT OF SLP(C) NO. 39206 of 2012) AND CIVIL APPEAL NO.4836 OF 2014 (ARISING OUT OF SLP(C) NO. 93 of 2013) JUDGMENT J U D G M E N T V. GOPALA GOWDA, J. Leave granted in all the Special Leave Petitions. Page 3 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4 2. These Civil Appeals are filed by the appellant- State of Jharkhand questioning the legality of the impugned judgment and order dated 08.11.2011 passed by

appeals of the respondent-writ petitioners by setting aside the judgment dated 25.07.2011 passed by the learned single Judge whereby the writ petitions of the respondent-employees were dismissed and the Interlocutory Application No. 3223 of 2011 was allowed after quashing the show cause notices issued and orders of termination of services of the respondent-employees. The Division Bench of the High Court by framing certain substantial questions of law has held that the JUDGMENT respondents herein shall be entitled to all the consequential benefits. The appellants being aggrieved of the impugned judgment and orders have filed these Civil Appeals by urging various facts and legal grounds in support of the same and prayed to set aside the Page 4 C.A@ SLP(C) No. 266 of 2012 etc.etc. 5 impugned judgment and orders by allowing the Civil Appeals. 3. Certain relevant facts are stated for the purpose

behalf of the parties with a view to examine the correctness of the findings and reasons recorded by the Division Bench of the High Court in the impugned judgment and further to find out as to whether the impugned judgment and orders warrant interference by this Court in exercise of its appellate jurisdiction in these Civil Appeals. 4. The respondent-employees (the writ petitioners before the High Court), were initially appointed in the JUDGMENT year 1981 in the posts of Junior Engineers in the Rural Development Department in the erstwhile State of Bihar in respect of which the recommendation of the Bihar Public Service Commission (for short “the BPSC”) was not required. It is the case of the respondent- employees that they have continuously discharged their duties in the above posts honestly and diligently to Page 5 C.A@ SLP(C) No. 266 of 2012 etc.etc. 6 the satisfaction of their employer. They were subsequently appointed on ad-hoc temporary basis as Assistant Engineers in the pay-scales of 1000-50-1700

from the date of notification. Their services as Assistant Engineers on ad-hoc basis were entrusted to work in the Road Construction Department where they were required to contribute their work within the stipulated period. The relevant condition No. 2 in the said notification No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is extracted hereunder:- “1. XXX XXX XXX JUDGMENT 2. This ad-hoc appointment shall be dependent on approval of Bihar Public Service Commission. 3. XXX XXX XXX ……” It is their further case that they have been working in the said posts for more than 29 years from the date of first appointment as Junior Engineers and 23 years from the appointment in the posts of Assistant Engineers on Page 6 C.A@ SLP(C) No. 266 of 2012 etc.etc. 7 ad-hoc basis. Neither the BPSC nor Bihar State Government nor Jharkhand State Government had intention to dispense with the services of these employees.

approached the High Court when they were issued the show cause notices dated 20.4.2010 by the appellant No.3. After taking substantial work from the respondent-employees they have been harassed by issuing show cause notices asking them to show cause as to why their services should not be terminated on the ground of their appointment to the posts as illegal/invalid. Their appointments were, however, not held to be invalid either by the orders of the High Court or JUDGMENT Supreme Court in spite of the fact that 199 posts filled up by advertisement No.128/1996 issued by the BPSC dated 2.9.1996 as the same would not affect the respondent-employees who otherwise have been in continuous service for more than 23 years in the substantial posts of Road Construction Department and Page 7 C.A@ SLP(C) No. 266 of 2012 etc.etc. 8 not of Rural Engineering/Rural Works Department. Therefore, it was pleaded by them that the impugned notices issued to them was an empty formality with

arbitrariness, unreasonableness and is in utter transgression of the interim order dated 22.3.2010 passed in W.P. (S) No. 1001 of 2010 amounting to overreaching the majesty of the High Court. 5. They further sought for declaration that since the services of the respondent-employees fortuitously fall in the territory of Jharkhand State with effect from 15.11.2000 and no final cadre division of their JUDGMENT services has been made till date after tentative allocations were made vide order dated 20.12.2006 by the Central Advisory Committee within the meaning of Section 72 read with Section 73 of the Bihar Re- organization Act, 2000, it is pleaded that the appellant-State of Jharkhand and its instrumentalities have no unilateral power and jurisdiction to take any Page 8 C.A@ SLP(C) No. 266 of 2012 etc.etc. 9 such decision to their disadvantage as they were appointed before the date of establishment of Jharkhand State. Therefore, the impugned notices issued

only a colourable exercise of its power but also whimsical, discriminatory and thereby its action is in violation of Articles 14, 16, 19(1)(g) and 21 of the Constitution of India. 6. Further, direction was sought by the respondent- employees from the High Court in the Writ Petitions to treat them equally at par with similarly situated 120 persons appointed along with them who fortuitously JUDGMENT remained working in the territory of successor State of Bihar namely, after the Jharkhand State was formed w.e.f. 15.11.2000 without any disturbance and consider their claim for regularization along with them in terms with the conscious Policy decision taken by it vide notification No. 10113(s) dated 11.09.2009 by the Cadre Controlling State of Bihar and in pursuance thereof the Page 9 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 respondent-employees have also applied for the same and which is in active consideration of the State of Jharkhand and further they sought for issuance of a

pursuance of the impugned show cause notices as they had seriously apprehended in the light of pre-decisive and prejudicial findings and reasons recorded in the impugned notices in the garb of order dated 22.3.2010 passed in W.P.(S) No. 1001 of 2010, that their services might be terminated. However, the fact remains that they are discharging their regular service to the appellants (although their posts are termed as ad-hoc in nomenclature) for more than 29 years from the JUDGMENT initial appointment as Junior Engineers since the year 1981 after following due procedure of Advertisement etc. and their services have been upgraded to the posts of Assistant Engineer again on temporary basis in 1987 pursuant to Cabinet decision of the erstwhile State of Bihar Government with the permission of BPSC who had Page 10 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 recognized their qualification of degree and experience. Therefore, their appointment to the posts is legal and valid from their date of inception of

7. The said writ petitions were opposed by the appellants herein urging various facts and legal contentions in justification of their claim and the reasons assigned in the show cause notices and opposed the prayers of the respondent-employees, which case of them is not accepted by the learned single Judge and consequently dismissed their writ petitions by judgment dated 25.7.2011. Aggrieved by the said judgment and JUDGMENT orders, they filed Letters Patent Appeals before the Division Bench of the High Court urging various grounds. 8. The correctness of the same was challenged by the appellants before the Division Bench in the Letter Patent Appeal No. 256 of 2011 and other connected LPAs. The learned senior counsel for the parties were heard at Page 11 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 length. After considering the rival legal contentions and noticing the relevant facts of these cases it was held by the Division Bench of the High Court that 200

the Road Construction Department and the said posts have been advertised by the department in Advertisement No. 13 of 1985 and against those posts the respondent- employees and other similarly placed employees were appointed after selection to the posts of Assistant Engineers on ad hoc basis with permission of the BPSC and they continued as such in the said posts. On 15.11.2000, the State of Jharkhand was created by bifurcation of the State of Bihar by the Act of Bihar JUDGMENT Reorganisation Act, 2000. It is the case of the respondent-employees that as per Section 72 of the Act of 2000, the persons who were working in the posts falling in the territory of the State of Bihar were to continue in the posts in the State of Jharkhand. It is not in dispute that the said employees continued in the Page 12 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 employment in the State of Jharkhand after creation of new State. Thereafter, an order was passed by the High Court on 22.3.2010, in the Writ Petition No. 1001 of

said order, the State Government of Jharkhand unilaterally decided that the appointment of the respondent-employees were not valid and accordingly it had directed that they should go back to the State of Bihar. The said action of the State of Jharkhand was found fault with by the High Court. The High Court, in the case of Ram Swarath Prasad v. State of Jharkhand & 1 Ors. has held that the said power was not available with the State Government of Jharkhand i.e. to pass JUDGMENT unilateral order directing the respondent-employees to go back to the State of Bihar, which action of it is not in consonance with Section 72 of the Bihar Reorganisation Act, 2000. This aspect was also observed by the learned single Judge in his judgment impugned in the LPAs filed by the respondent employees. However, it 1 2002 (1) J.C.R. 106 Page 13 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 was observed that it is open to the appropriate authorities having power to take reasonable decision after issuing show-cause notices to the employees with

Government of Jharkhand had interpreted the order dated 22.3.2010 as a direction to it and it had proceeded to terminate the services of these employees. The State Government took a decision to terminate the services of all such engineers including the respondent-employees in these appeals and notices were issued to them and the same were stayed in the interlocutory application filed by the respondent-employees and status-quo order dated 9.9.2010 was passed as per Ann.-18 in the Writ JUDGMENT Petition(S)No.2087 of 2010. Finding the said situation, the State Government submitted that they are keeping the order of termination of services of the respondent-employees and similarly situated employees in abeyance. The State Government rejected the representations of the respondent-employees and Page 14 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 terminated their services vide separate but similar orders dated 24.8.2011. The orders of termination were questioned by the respondent–employees by filing

the orders of termination passed against them and action taken by the State Government of Jharkhand against them. In the Letters Patent Appeals, the Division Bench of High Court on 13.9.2011 passed an interim order directing the appellants to maintain status-quo and the respondent-employees were allowed to work in the posts. The Division Bench accepted the factual and legal submissions urged on behalf of the employees that they were appointed as back as in the year 1981 in the posts JUDGMENT of Junior Engineers which were not illegal or even irregular and they are qualified persons and eligible to hold the posts. They rendered their services satisfactorily and therefore, the State Government of Bihar has appointed them in the posts of Assistant Engineers by the order of the Government dated 27.6.1987 Page 15 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 and continued them in their services as such till the orders of termination passed against them on 24.08.2011, that too during pendency of the Letters Patent Appeals

employees have been in service independent of any interim order passed by the court. The State Government was in need of Junior Engineers, therefore, the State Government of Bihar allowed the services of the respondent-employees in the posts. Thereafter, the State Government of Bihar has decided to appoint them in the posts of Assistant Engineers and it was under the impression that their names will be recommended by the BPSC. After accepting the case of the respondent- JUDGMENT employees that since 1987 till 2011 when the orders of termination of service were passed, they continued in service and their salaries were paid with other service benefits including increments and they were duly transferred from the State of Bihar to the State of Jharkhand when it was formed and they were treated as Page 16 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 regular appointees for which the Jharkhand State Government did not object their continuance in their services. The Order dated 22.3.2010 passed by the High

State Government as a direction to it to proceed with to terminate the services of the respondent-employees. The Division Bench of the High Court after referring to the case of Secretary, State of Karnataka & Ors. v. Umadevi 2 & Ors. , has clearly held that if a person has served for 10 years or more, then it is the duty of the State Government to consider his case for regularization in the post. The said conclusion came to be reached by relying on Articles 309, 14, 16 of the Constitution of JUDGMENT India. Relying upon Umadevi & Ors. (supra), the High Court has further referred to the judgment in the State 3 of Karnataka & Ors. v. M.L. Kesari & Ors. which is considered by this Court and this Court has clearly held that the case of Umadevi & Ors. (supra) cast a duty upon 2 (2006) 4 SCC 1 3 (2010) 9 SCC 247 Page 17 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 the State Government to take steps to regularize the services of those irregularly appointed appointees, who had served for more than 10 years without the benefit or

ordered that one time settlement/measure should be taken within six months i.e. from 10.04.2006. With reference to the aforesaid decision the learned senior counsel appearing on behalf of the respondent-employees placed reliance upon Article 142 of the Constitution in support of the submission that order of the Supreme Court be respected and implemented by its true meaning and spirit. Therefore, the Division Bench of the High Court accepted the same and came to the conclusion that the JUDGMENT claims of the respondent-employees for regularization in their posts are fit cases and they became unfortunate only because of the creation of the State of Jharkhand over which the employees had no control and could not have prevented creation of the State of Jharkhand and because of that reason only, one State cannot take a Page 18 C.A@ SLP(C) No. 266 of 2012 etc.etc. 1 different stand with respect to the employees appointed by same process. The State Government cannot throw the employees jobless after 30 years of their continuous

injustice since their source of income will be taken away and thereby the employees and their families will suffer due to the arbitrary action of the State Government of Jharkhand which deprived a person of life and liberty guaranteed under Articles 19 and 21 of the Constitution of India. 9. The said legal contention urged on behalf of the respondent-employees has been vehemently opposed by the JUDGMENT learned Advocate General appearing on behalf of the appellant-State before the High Court who sought to distinguish the ratio laid down in the aforesaid case to the facts situation in the present case and he further contended that the said decision has no application to the cases on hand which contention is rejected by the Division Bench of the High Court. Page 19 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 10. It is contended by the learned Advocate General that jurisdiction of the High Court in the Letters Patent Appeal is limited to the extent of the scope of

submitted by him that the respondent-employees in the writ petitions have not prayed for regularization of their services, and therefore, they are not entitled to any relief in the Letters Patent Appeals. 11. With reference to the aforesaid rival contentions, the Division Bench, by recording its finding at paras 21, 22 and 31 of the impugned judgment, has accepted the case of the respondent-employees and allowed their JUDGMENT letters patent appeals by setting aside the judgment and order dated 25.7.2011 of the learned single Judge. 12. During pendency of the Letters Patent Appeals, the State Government rejected their representations and terminated the services of the respondent-employees vide separate but similar orders dated 24.8.2011 against each one of them. Therefore, they have Page 20 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 submitted interlocutory application in the letters patent appeals before the Division Bench of the High Court questioning the propriety and legality of their

order was passed directing the State Government of Jharkhand to maintain status quo that is, to allow the respondent-employees to work in the posts by it. The court also set aside the orders of termination by allowing the interlocutory application and also quashed the show cause notices and further held that the respondent-employees are entitled to the consequential benefits. JUDGMENT 13. The correctness of the judgment and orders is challenged by the appellants in these Civil Appeals by framing various questions of law and urging grounds in support of the same and praying to set aside the same. The learned senior counsel, Mr. P.P. Rao appearing on behalf of the appellants submitted that the order of termination of services of the respondent-employees - Page 21 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 ad hoc Assistant Engineers in the instant case, is the necessary consequence of implementation of the judgment and order dated 8.4.1996 of this Court in C.A. No.

4 Etc. as the respondents have failed to get selected by BPSC. Therefore, they have no legal right to challenge implementation of the said judgment dated 8.4.1996 as modified by subsequent order dated 23.10.1996 in IA No. 327/1996 permitting the State Government to relax the age of the respondent-employees. In support of the first submission, he contends that the cut-off date for consideration of case of ad-hoc employees who have worked for 10 years or more in the duly sanctioned JUDGMENT posts, but under the cover of orders of the court, is not covered by the case of Uma Devi & Ors. (supra) which was decided on 10.4.2006 and the time granted to the State Government for setting in motion the process of regularisation of ad hoc employees is “within six months from the date” i.e. till 9.10.2006. 4 (1996) 8 SCC 615 Page 22 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 It is further contended by the learned senior counsel on behalf of the appellants Mr. P.P. Rao that regularisation were allowed by the High Court in those

Articles 309 and 16 of the Constitution of India, no appointment could have been made by the State Government to any post much less the respondent- employees in violation of the Recruitment Rules. Therefore, the illegal appointments of the respondent- employees cannot be regularized by the State Government and the High Court can not give direction in this regard. JUDGMENT 14. In view of the said decisions, according to the learned senior counsel, two questions would arise for consideration of this Court :- (i) Whether the respondent-employees worked till 10.4.2006 without any interim order of any court? Page 23 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 (ii) Were they appointed in duly sanctioned posts? However, the Division Bench of the High Court instead of addressing these two questions, posed the question

than 10 years stand disqualified from regularisation on the ground that they did not participate in any other appointment process. It is the contention of the learned senior counsel for the appellants that the repeated finding of the High Court that the respondent- Assistant Engineers were continuing in service uninterruptedly with the employer for more than 10 years, is factually incorrect statement of fact. Therefore, the finding recorded in the impugned JUDGMENT judgment by the Division Bench of the High Court at paragraphs 23, 25 and 26 is erroneous and the same cannot be allowed to sustain by this Court for the reason that they continued in their service at least following six interim orders passed by the High Court all of which were prior to 10.4.2006, the cut-off date mentioned in Uma Devi (supra) for considering the Page 24 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 question of regularisation of ad hoc employees and therefore the said decision does not apply to the present cases. According to him, the dates on which the

15. In support of second legal submission formulated above, the learned senior counsel has submitted that Page 25 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 neither the judgment in Umadevi’s case (supra) nor in U.P. State Electricity Board v. Pooran Chandra Pandey & 5 Ors. is applicable to the cases in hand in favour of

applied to the cases of respondent-employees and the directions contained at para 53 of Umadevi ’s case since the respondents continued in service with the appellants at the instance of court’s interim orders passed in writ petitions referred to supra which has been established by the appellants. He has also placed reliance upon the judgment of this Court in the case of Amrit Lal Berry v. Collector of Central Excise, New 6 Delhi & Ors. In support of his legal contention that JUDGMENT respondent-employees continued in service with the State Governments of Bihar and Jharkhand, the learned counsel stated that similarly placed employees had approached the High Court seeking certain reliefs and they had obtained interim orders. Hence, the benefit of 5 (2007) 11 SCC 92 6 (1975) 4 SCC 714 Page 26 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 said interim order passed by the High Courts of Patna and Jharkhand has been extended to the respondent- employees and therefore they were continued in services

Division Bench accepting the submission on behalf of the respondent-employees in these appeals that the respondent-employees continued in service uninterruptedly without the interim orders, is factually not correct. Therefore, the learned senior counsel for appellants contends that the said finding is not only erroneous but also suffers from error in law. Hence, the impugned judgment and orders are liable to be set aside. He further contends that in view of JUDGMENT the above contentions, the respondent-employees are not entitled for the reliefs granted by the Division Bench of the High Court in the impugned judgment and orders and therefore, he has prayed for setting aside the same by allowing these Civil Appeals. Page 27 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 16. The aforesaid submissions made by the learned senior counsel on behalf of the appellants were rebutted by the learned senior counsel, Mr. J.P. Cama

judgment contending that the respondent-employees were appointed as Junior Engineers in the year 1981 in the Rural Department of the State of Bihar and in the year 1985 when regular appointments were to be made to the Posts of Assistant Engineers in pursuant to an advertisement made in the year 1985 itself, the respondents applied for the same but did not succeed and therefore, they were put in the waiting list. However, their services were not terminated even after JUDGMENT regular appointments were made to the posts in the year 1985 as contended by the appellants. Their services were not dispensed with because their work was good and they were appointed as Assistant Engineers by order of the Bihar State Government dated 27.6.1987 and thereafter they continued in service without break in Page 28 C.A@ SLP(C) No. 266 of 2012 etc.etc. 2 their service till the orders of termination dated 24.8.2011 passed against them. It is further contended that even after bifurcation of the appellant-State of

any break. It is contended that the existence of vacancies of Assistant Engineers in the Rural Development Department in the erstwhile State of Bihar is not in dispute. The existence of vacancies in the said posts is not denied by the appellant-State as there were 207 vacancies as on 2010. Therefore, they continued in service though they were appointed by order of the State Government on 27.6.1987 on ad hoc basis but continued as such till the termination orders JUDGMENT were passed against them. They were being paid regular salary and other service benefits were given to them thereby treating them as permanent employees by the appellants. He further contended that the Division Bench in its judgment has held that the State Public Service Commission merely examined suitability of Page 29 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 eligible candidates for the posts and recommended the names of such suitable candidates for appointment to the posts. In the case on hand, it is not the position

services are not suitable persons to hold the posts. It is further contended that interim stay was granted by the High Court in the cases of the respondent-employees for the first time on 9.9.2010. Therefore, it is not correct to state that they continued in the service with the intervention of interim orders of the High Courts as urged by the appellants’ senior counsel and therefore, they are not entitled to the benefit of the decision of Umadevi’ s case (supra). Further, the JUDGMENT learned senior counsel contends the core questions involved in the case in hand are:- (1) Whether the services of the respondent- employees should have been considered for regularization by the State Government even though in the first instance they did not obtain Page 30 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 selection through the Public Service Commission nd and on the 2 occasion they did not participate in the selection process?

regularization based only on the fact they had worked for more than 10 years of service continuously with the appellants? He further submits that the High Court, considering the law declared in Umadevi ’ s case (supra) at para 53 and also keeping in view the justice and good conscious, has granted the relief to the respondent-employees. The same cannot be termed either as erroneous or error in law. Further, it is contended that the Division Bench JUDGMENT of the High Court of Jharkhand has rightly rejected the contentions urged by the Advocate General to the effect that the persons who are appointed on ad hoc/temporary basis had an opportunity to get another appointment in regular selection and they failed to participate in the selection process, therefore the same would not be a ground for the appellants to refuse regularization of Page 31 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 service of the respondent-employees, even after they have not availed such opportunity. The employer State Government did not choose to dispense with their

State of Bihar and Jharkhand have continued the service of all the respondent-employees for 10 or more years even after they failed to get appointed to the posts on a regular basis. Therefore, the principle laid down in Umadevi’ s case (supra) would squarely apply in the case in hand in support of the respondent-employees. The submission made by the learned senior counsel on behalf of the appellants that the regularization of the respondent-employees in their service would deprive the JUDGMENT other eligible persons from employment is wholly untenable in law as the same would constitute not only discrimination but also deprivation of their livelihood, which is not legally permissible in law. The question is whether the appellants can terminate the services of the present employees who have served Page 32 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 for more than 10 to 30 years, thereby rendering injustice to the eligible people. Therefore, in any event, it is doubtful whether the employer, more

interpreted in a manner so as to give all benefits to the wrongdoers. The appointments were given to a large number of engineers by the State Government of Bihar consciously and there is no allegation of unfairness in their appointment which can be said to be tainted or as a result of any nepotism. The error of the State Government of either Bihar or Jharkhand would not justify to throw away the respondent-employees by making them unemployed who have been well-settled in JUDGMENT their life since the same would amount to a clear case of discrimination and deprivation of their livelihood. Further, the Division Bench of High Court has rightly held that there is duty cast upon the State Government of Jharkhand to consider the claim of the respondent- employees as one-time regularization of ad-hoc/ Page 33 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 temporary employees in their posts. Further, it is contended by the learned senior counsel that similarly situated employees are continuing in service in the

clearly takes care of all the hurdles coming in their way. The Division Bench of the High Court is of the considered opinion that the employees services should have been regularized, but on the other hand, the appellant-State Government, during pendency of the Letters Patent Appeals, has terminated their services. The same cannot be an hurdle for it and it would not come in the way of the appellant-State Government for grant of relief in favour of the respondent-employees. JUDGMENT Lastly, it is submitted that there is material distinction between filling up a vacant post by direct recruitment on the one hand and “regularization” of existing employees in their posts by applying the decision of Umadevi ’s case (supra) who have served for more than 10 years in the posts with the appellants Page 34 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 without the interventions of any interim orders granted by any court. Further, he urges that the principle which flows from the mandate of Articles 14 and 21 of

it is not a case of “appointment” as mentioned hereinbefore but it is a case of “regularization”. The only qualification for the latter is continuous service of the employees without intervention of the court order for a period of 10 years. Once this takes place, the citizen’s right to livelihood as guaranteed under Article 21 as also his/her right to fair treatment and against arbitrary action of the appellants is protected by Article 14 of the Constitution of India. That is the JUDGMENT ratio of the impugned judgment of Division Bench of the High Court. The conclusion and the finding and reasons recorded by the Division Bench of the High Court on this aspect of the matter in the impugned judgment is squarely covered by the Constitution Bench decision of this Court in the case of Olga Tellis & Ors. v. Bombay Page 35 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 7 Municipal Corporation & Ors. The relevant para’s of the same will be extracted in the reasoning portion of the judgment. Therefore, the learned senior counsel has

17. All the other learned counsel appearing for the respondent-employees in the connected Civil Appeals have adopted the submission made by the learned senior counsel on behalf of the respondent-employees in the Civil Appeal @ SLP (C) No. 266 of 2012. In view of the above submissions, the learned counsel for the respondent-employees requested this Court for dismissal of the Civil Appeals. 18. With reference to the above said rival legal JUDGMENT contentions, urged on behalf of the parties the following points would arise for consideration in these Civil Appeals :- (1) Whether the impugned judgment is correct in holding that the 7 (1985) 3 SCC 545 Page 36 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 respondents-employees are entitled for the benefit of Umadevi’s case (supra) as they rendered more than

intervention of the court? (2) Whether the impugned judgment passed by the Division Bench of High Court is vitiated on account of erroneous finding or suffers from error in law? (3) Whether the impugned judgment warrants interference by this Court JUDGMENT in exercise of power under Article 136 of the Constitution of India on the grounds urged in these appeals? (4) What orders? Answer to Point Nos. 1 & 2: Page 37 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 These points are answered together as they are inter related with each other. 19. The learned senior counsel appearing on behalf of

findings of the High Court that the respondents have been continued in service voluntarily by the employer for more than 10 years. Correctness of the same is disputed by the learned senior counsel for the appellants by placing reliance upon at least six interim orders passed by the High Court all of which are prior to 10-4-2006, the dates of these Orders are as follows: (i) Order dated 15-12-1996 in CWJC NO. 9420 of 1996- Param Kumar v. State of Bihar. JUDGMENT (ii) Order dated 20-6-1997 in CWJC No. 11761 of 1996- Sardar Pradeep Singh v. State of Bihar. (iii) Order dated 4-4-2002 in CWJC No. 2606 of 2002- Jawahar Prasad Bhagat v. State of Bihar. (iv) Order dated 4-4-2002 in CWJC No. 4327 of 2002- Akhilesh Prasad v. State of Bihar. Page 38 C.A@ SLP(C) No. 266 of 2012 etc.etc. 3 (v) Order dated 4-4-2002 in CWJC No. 4365 of 2002- Vijay Kumar Sharma v. State of Bihar. (vi) Order dated 8-1-2003 in CWJC No. 2087 of 2010.

Page 39 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4

The learned senior counsel for the appellants placing JUDGMENT reliance upon the aforesaid paragraph of the decision submits that the respondents do not fulfil the requirement of 10 years of uninterrupted service which is sine qua non for regularization of the services of the employees in their posts. Hence, the legal principle laid down by this Court in the aforesaid case Page 40 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4 cannot apply in the present case, therefore, the respondents are not entitled for regularization. 20. We have heard the factual and legal contentions

parties and carefully examined the findings and reasons recorded in the impugned judgment with reference to the evidence produced on behalf of the respondent- employees. The evidence on record produced by the respondent-employees would clearly go to show that they have been rendering services in the posts as ad-hoc Engineers since 1987 and have been discharging their services as permanent employees with the appellants. Additional 200 posts were created thereafter by the JUDGMENT State Government of Bihar. However, the respondents continued in their services as ad hoc employees without any disciplinary proceedings against them which prove that they have been discharging services to their employers to their satisfaction. The learned senior counsel on behalf of the appellants have failed to show as to how the interim Page 41 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4 orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court

Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent- employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned senior counsel has failed to prove that the respondents have failed to render continuous services to the appellants at least for ten JUDGMENT years without intervention of orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious issue that the respondent-employees have continued in their Page 42 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4 service for more than 10 years continuously therefore, the legal principle laid down by this Court in Uma Devi’s case (supra) at paragraph 53 squarely applies to

entitled for the relief, the same cannot be interfered with by this Court. 21. In fact, the Division Bench of the High Court by regularizing the respondent-employees vide its impugned order has upheld the constitutional principle laid down by this Court in the case of Olga Tellis (supra), the relevant para of which reads as under :- “32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to JUDGMENT Page 43 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4

JUDGMENT Page 44 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4 for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life”, as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.” (Emphasis laid by this Court) In view of the foregoing reasons which we have JUDGMENT assigned in this judgment and in upholding the findings and reasons recorded by the Division Bench of the High Court in the impugned judgment, it cannot be said that the findings and reasons recorded by the High Court in arriving at the conclusions on the contentious issues that arose for its consideration can be termed either as erroneous or error in law. Page 45 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4 22. In view of the foregoing reasons, we are inclined to conclude that the High Court was legally correct in extending the benefits of Uma Devi’s case to the

Answer to Point No. 3 23. Though, point Nos. 1 and 2 have been answered in favour of the respondents, the question raised regarding the requirement of interference by this Court under Article 136 of the Constitution of India requires separate and independent consideration by us. In the case of Jamshed Hormusji Wadia v. Board of Trustees, JUDGMENT 8 Port of Mumbai & Anr. , this Court observed as under:

8 (2004) 3 SCC 214 Page 46 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4

Page 47 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4

Page 48 C.A@ SLP(C) No. 266 of 2012 etc.etc. 4

Page 49 C.A@ SLP(C) No. 266 of 2012 etc.etc. 5

24. As already mentioned above, we are of the opinion that the High Court was correct in reinstating the respondent-employees into their services under the appellants by relying on the legal principles laid down by this Court in the Constitution Bench decision in Uma Page 50 C.A@ SLP(C) No. 266 of 2012 etc.etc. 5 Devi’s case (supra). We accordingly direct the appellants to implement the orders of the Division Bench of the High Court thereby continuing the

25. The Civil Appeals are dismissed accordingly. ………………………………………………………………………J. [GYAN SUDHA MISRA] ………………………………………………………………………J. [V. GOPALA GOWDA] New Delhi, April 23, 2014. JUDGMENT Page 51