- Bookmark
- Share
- CaseIQ
Surendra Kumar And Others v. Greater Noida Industrial Development Authority And Others
Factual and Procedural Background
The appellants were engaged by the Greater Noida Industrial Development Authority (“Authority”) as Assistant Managers (Civil) on 89-day contractual appointments that began in 1994. These engagements were not against sanctioned posts, yet they were periodically renewed, enabling the appellants to serve continuously.
On 20-11-2002 the Authority advertised permanent vacancies for the same post. The appellants filed Writ Petition No. 54072 of 2002, seeking quashing of the advertisement and regularisation of their services. A learned Single Judge of the Allahabad High Court allowed the writ on 28-09-2005, quashed the advertisement, and directed consideration of the appellants for regularisation.
While the writ was pending, the Authority framed a regularisation policy on 16-04-2003 (approved by the State on 05-03-2008) reserving 60% of vacancies for 27 contractual employees, including the appellants. Pursuant to this policy, the appellants received substantive appointment orders dated 06-08-2010.
The appellants then filed Claim Petition No. 174 of 2011 before the U.P. State Public Services Tribunal seeking regularisation with effect from 20-11-2002. The Tribunal allowed the claim on 23-06-2011.
The Authority challenged that order in Writ Petition No. 65789 of 2011. By judgment dated 29-10-2013, a Division Bench of the High Court relied on the Constitution Bench ruling in State of Karnataka v. Umadevi (3) to (i) set aside the Tribunal’s order, (ii) declare the appellants’ 06-08-2010 appointments ex facie illegal, and (iii) direct an inquiry into the appointments.
The present appeal before the Supreme Court questions the correctness of the High Court’s decision.
Legal Issues Presented
- Whether the appellants’ appointments dated 06-08-2010, made under a duly approved regularisation policy, were illegal in light of the principles laid down in Umadevi (3).
- Whether that policy entitled the appellants to retrospective regularisation and consequential benefits from 20-11-2002, the date on which the vacancies were first advertised.
Arguments of the Parties
Appellants' Arguments
- Their appointments flowed from a State-approved regularisation scheme; hence the High Court erred in terming them illegal.
- The appellants have continuously worked for over 20 years, thereby justifying regularisation with retrospective effect from 20-11-2002 together with seniority and monetary benefits.
Respondent Authority's Arguments
- Conceded that the 06-08-2010 appointments were made under the regularisation policy and are not unconstitutional.
- Opposed retrospective regularisation: the policy never contemplated back-dating of service benefits to 20-11-2002; therefore the Tribunal’s direction was unsustainable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Karnataka v. Umadevi (3), (2006) 4 SCC 1; 2006 SCC (L&S) 753 | Regularisation cannot bypass the constitutional scheme of recruitment; exception for irregular (not illegal) employees who have worked 10+ years on sanctioned posts without court orders. | Supreme Court held the High Court misapplied Umadevi; recognised that para 53 permits one-time regularisation policies like the one utilised by the Authority. |
| State of Mysore v. S.V. Narayanappa, AIR 1967 SC 1071; (1967) 1 SCR 128 | Illustrative case of “irregular appointment” referenced in Umadevi. | Quoted within the judgment to clarify what constitutes irregular (as opposed to illegal) appointments. |
| R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 | Another precedent on irregular appointments relied upon in Umadevi. | Cited through Umadevi to reiterate permissible regularisation of certain irregular appointments. |
| B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507; 1980 SCC (L&S) 4 | Further authority on treatment of irregular appointments. | Referenced via Umadevi to delineate the irregular–illegal distinction. |
| Surendra Kumar v. State of U.P., 2005 SCC OnLine All 899; (2005) 61 ALR 538 | Single-Judge decision directing consideration for regularisation of the appellants. | Cited to show the earlier litigation history; Supreme Court noted that the appellants were eventually regularised through policy, not by this judgment. |
Court's Reasoning and Analysis
1. Status of the 06-08-2010 appointments. The Court observed that the appellants were appointed pursuant to a regularisation scheme dated 16-04-2003, later approved by the State on 05-03-2008. Under para 53 of Umadevi (3), governments may, as a one-time measure, regularise irregular employees with 10+ years’ service in sanctioned posts. The Division Bench erred in assuming Umadevi bars such action. Since no one challenged the policy itself, the High Court lacked basis to declare the appointments illegal.
2. Retrospective regularisation claim. When vacancies were advertised on 20-11-2002, no regularisation policy existed; therefore the appellants had no vested right then. The policy intended benefits only from the date of substantive appointment. Accepting the offer of appointment dated 06-08-2010 without protest, the appellants cannot later demand back-dating. Courts cannot rewrite an otherwise clear policy.
3. Application of Umadevi exception. The appellants, contractual since 1994, had more than ten years’ service when the policy was framed. Their eventual absorption fits within the “irregular, not illegal” category envisaged in para 53. Thus the High Court’s direction to void their appointments was unsustainable.
Holding and Implications
PARTLY ALLOWED. The Supreme Court:
- Set aside the High Court judgment insofar as it quashed the appellants’ appointments and ordered an inquiry.
- Declined the appellants’ request for retrospective regularisation and consequential benefits.
Implications: The appellants retain their substantive appointments from 06-08-2010 but gain no seniority or monetary benefits prior to that date. The decision reaffirms that while Umadevi (3) restricts regularisation, it permits one-time policies for long-serving irregular employees; however, such policies confer benefits only prospectively unless explicitly stated otherwise. No new legal precedent was set beyond clarification of the proper reading of Umadevi.
R. Banumathi, J.— Leave granted. This appeal arises out of a judgment passed by the Division Bench of the High Court of Judicature at Allahabad dated 29-10-2013 in Greater Noida Industrial Development Authority v. Surendra Kumar 2013 SCC OnLine All 9827 , (2014) 102 ALR 418, in and by which, the High Court held that on the principles laid down in State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 , 2006 SCC (L&S) 753, the appointments of the appellants were ex facie illegal dehors Articles 14 and 16 of the Constitution of India and directed an inquiry regarding initial appointments.
2. Brief facts giving rise to this appeal are that the appellants were initially engaged on the post of Assistant Manager (Civil) by Respondent 1 Greater Noida Industrial Development Authority on contractual basis for a period of 89 days. Admittedly, initial appointments of the appellants were not made against any sanctioned posts. However, their engagement continued from time to time, and the appellants have been continuously working on the said post.
3. On 20-11-2002, the respondent authorities published an advertisement for engagement to the posts of Assistant Manager (Civil). The appellants and similarly situated persons who have been engaged on contractual basis filed a writ petition being Writ Petition No. 54072 of 2002 seeking for a writ of mandamus directing the respondent authorities to regularise their services on the post of Assistant Manager (Civil) and to quash the aforesaid advertisement dated 20-11-2002. The appellants contended that as they were working continuously, the respondent authorities instead of issuing a fresh advertisement should have regularised their services on the said post.
4. By the judgment dated 28-9-2005 2005 SCC OnLine All 899 , (2005) 61 ALR 538, the learned Single Judge allowed the writ petition and quashed the advertisement dated 20-11-2002 and directed the respondent authorities to consider the claim of the appellants for regularisation of their services on the existing vacancies which were directed to be filled up from the existing contractual employees as per the regulations/rules and fresh advertisement could be issued inviting applications from the general candidates only for remaining vacancies. Challenging the order of the learned Single Judge, the respondent authorities filed special appeal before the Division Bench being Special Appeal No. 1432 of 2005.
5. Pending adjudication of Writ Petition No. 54072 of 2002 before the learned Single Judge, a scheme for regularisation of the contractual employees was formulated by Respondent 1 on 16-4-2003, wherein a policy was framed regarding regularisation of 27 contractual employees who had been engaged initially for a period of 89 days and continued thereafter. The State Government, vide its Letter dated 5-3-2008, approved the policy formulated by Respondent 1 for regularisation of contractual employees. As per the said policy, 60% of the vacancies were sought to be filled up from amongst 27 contractual employees and the remaining 40% of the vacancies through direct recruitment. The special appeal being Special Appeal No. 1432 of 2005 was disposed of on 13-1-2010 Special Appeal No. 1432 of 2005, order dated 13-1-2010 (All) directing the first respondent authority to take a final decision in pursuance of the policy framed by it and approved by the State Government on 5-3-2008. Pursuant to the policy decision, the appellants and other similarly situated contractual employees were appointed on the post of Assistant Manager (Civil) vide appointment orders dated 6-8-2010.
6. After joining the said post of Assistant Manager (Civil), the appellants filed a Claim Petition No. 174 of 2011 before the State Public Services Tribunal, Lucknow praying for regularisation of their services from the date of existence of vacancies, that is 20-11-2002, the date on which the advertisement was issued, for appointment to the post of Assistant Manager (Civil) and with all consequential benefits. The Tribunal, vide its judgment dated 23-6-2011, allowed the claim petition and directed the authorities to consider the appellants' claim for regularisation of their services on the existing vacancies with effect from 20-11-2002.
7. Aggrieved by the order of the Tribunal, the respondent authorities preferred a writ being Writ Petition No. 65789 of 2011 before the High Court. The High Court, vide impugned judgment dated 29-10-2013 2013 SCC OnLine All 9827 , (2014) 102 ALR 418 relying on the Constitution Bench decision of this Court in Umadevi (3) case (2006) 4 SCC 1 , 2006 SCC (L&S) 753 allowed the writ petition filed by the respondent authorities and quashed the order dated 23-6-2011 passed by the Tribunal granting benefits to the appellants with retrospective effect. Additionally, the High Court also quashed the appointments of the appellants dated 6-8-2010 as ex facie illegal and directed the authorities to initiate proceedings in respect of illegal appointments which were made in violation of Articles 14 and 16 of the Constitution of India and the principles laid down in Umadevi (3) case (2006) 4 SCC 1 , 2006 SCC (L&S) 753. This appeal assails the correctness of the judgment of the Division Bench dated 29-10-2013 2013 SCC OnLine All 9827 , (2014) 102 ALR 418.
8. Shri L. Nageswara Rao, learned Senior Counsel for the appellants, contended that the appointment orders dated 6-8-2010 were issued pursuant to the scheme of regularisation formulated by Respondent 1 which was also approved by the State Government and while so, the High Court erred in holding that the appointments of the appellants were ex facie illegal. It was submitted that the appellants have been continuously working on the said post for more than twenty years and therefore their services ought to be regularised with retrospective effect from 20-11-2002 and they be granted seniority and consequential benefits.
9. The respondent authorities have fairly conceded that appointments of the appellants vide appointment orders dated 6-8-2010 were made pursuant to the regularisation scheme framed by Respondent 1 and therefore the appointments cannot be said to be illegal being in violation of Articles 14 and 16 of the Constitution of India. However, the respondent authorities have raised serious objections for the claim of the appellants seeking regularisation with retrospective effect from 20-11-2002, when the vacancies were first advertised. To that extent, the respondent authorities have supported the impugned judgment in setting aside the order of the Tribunal. It was further submitted that the appellants were appointed pursuant to the regularisation scheme which never contemplated that the appellants should be entitled to regularisation from the retrospective effect.
10. The main issue that arises for consideration is whether the policy decision extending the benefit of regularisation to contractual employees against 60% vacant posts will be deemed to regularise the services of the appellants from the retrospective date, that is, 20-11-2002, when the said posts were first advertised.
11. At the outset, it is to be pointed out that when the vacancies for the post of Assistant Manager (Civil) were advertised on 20-11-2002, the scheme for regularisation of contractual employees was not in vogue and it was only subsequently on 16-4-2003, Respondent 1 had taken a policy decision regarding regularisation of 27 contractual employees and the scheme was approved by the State Government vide Letter dated 5-3-2008 and it is only thereafter, the appellants came to be appointed on 6-8-2010. Thus, when the vacancies were initially advertised, the appellants did not have any substantive right against the notified vacancies. The appellants cannot be said to have acquired such right to be regularised by virtue of the decision of the learned Single Judge in Surendra Kumar v. State of U.P 2005 SCC OnLine All 899 , (2005) 61 ALR 538 as in Umadevi (3) case (2006) 4 SCC 1 , 2006 SCC (L&S) 753, this Court held that the High Court should not issue directions for regularisation, unless the recruitment itself was made in terms of the constitutional scheme and the wide power under Article 226 are not intended to be used for issuance of such directions for regularisation. The appellants were actually regularised only by virtue of the policy decision taken by Respondent 1 and not by virtue of the decision of the High Court.
12. In the impugned judgment 2013 SCC OnLine All 9827 , (2014) 102 ALR 418, the Division Bench proceeded on the premise as if Umadevi (3) case (2006) 4 SCC 1 , 2006 SCC (L&S) 753 held that the State Government, in no circumstance, can regularise the services of contractual employees. In para 53 of Umadevi (3) case (2006) 4 SCC 1 , 2006 SCC (L&S) 753, the Constitution Bench carved out an exception by observing that the Union of India/State Governments/their instrumentalities should take steps to regularise the services of such irregular employees who have worked for more than ten years and para 53 reads as under:
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V Narayanappa AIR 1967 SC 1071 , (1967) 1 SCR 128, R.N Nanjundappa v. T. Thimmiah (1972) 1 SCC 409 and B.N Nagarajan v. State of Karnataka (1979) 4 SCC 507 , 1980 SCC (L&S) 4 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
(emphasis in original)
13. Considering the facts of the present case on the touchstone laid down in Umadevi (3) case (2006) 4 SCC 1 , 2006 SCC (L&S) 753, it will be seen that the Division Bench was not right in setting aside the appointment of the appellants. More so, it was nobody's case challenging the appointment of the appellants. Admittedly, the appellants were engaged as contractual employees from 1994 and have completed more than ten years of continuous service with Respondent 1. They continued in service not by the orders of the Court/Tribunal, but by the decision of the respondents. The appellants were regularised as per the policy decision dated 16-4-2003 taken by Respondent 1 and approved by the State Government vide Letter dated 5-3-2008. Since the appointment of the appellants were made pursuant to the policy of regularisation, the High Court was not right in quashing the appointment of the appellants as the same were never in question before the High Court. The plea that was raised by the appellants was only to seek regularisation with retrospective effect from 20-11-2002 and the consequential seniority.
14. The appellants were initially engaged on contractual basis and they were not appointed against any sanctioned post before they were substantially appointed on the said post on 6-8-2010. Even though advertisement dated 20-11-2002 indicated that there were vacancies, the policy of regularisation of contractual employees was approved by the State Government only on 5-3-2008. The appellants were appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularisation with retrospective effect from 20-11-2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. By policy of regularisation, it was intended to give the benefit only from the date of appointment. The Court cannot read anything into the policy decision which is plain and unambiguous. Having accepted the appointment orders dated 6-8-2010 and also joined the post, the appellants cannot turn round and claim regularisation with retrospective effect.
15. The judgment 2013 SCC OnLine All 9827 , (2014) 102 ALR 418 of the High Court quashing the appointment of the appellants vide appointment order dated 6-8-2010 is set aside. However, the appellants' plea for regularisation with retrospective effect is declined.
16. In the result, the appeal is allowed in part in the above terms. There shall be no order as to costs.
Alert