AMARKANT RAIversusSTATE OF BIHAR & ORS.

                         [2015] 3 S.C.R. 542


A                         AMARKANT RAI

                                  v.
                     STATE OF BIHAR & ORS.
B                  (Civil Appeal No. 2835 of 2015)

                          MARCH 13, 2015

          [V.GOPALA GOWDA AND R.BANUMATHI, JJ.]
c            Labour laws: Regularisation of service - Post of Night
    Guard-Appointment of appellant temporarily on daily wages
    -: University took a decision to regularize the persons who
    worked for more than 240 days - Principal requested the
D   Registrar of University to regularise the services of appellant
    but Registrar passed order of termination - On writ petition
    preferred by few similarly placed daily wagers, High Court
    directed registrar to allow daily wagers to resume their jobs
    and appellant also joined his duties -Appellant was required
E   to appear before the Three Members Committee for
    consideration of his claim for regularisation of services, but
    the same was rejected on the ground that it was a clear case
    of violation of BSU Act, 1976 - Held: Appellant served
    University for more than 29 years on the post of Night Guard
F   on daily wages - For a considerable time, University never
    raised the issue that the appointment of the appellant was
    ultra vires the rules of BSU Act- Having regard to the various
    communications between the Principal and the University
G   and also the education authorities and the facts of the case,
    the appointment of the appellant cannot be termed to be
    illegal, but it can only be termed as irregular- In *Umadevi's
    case, ·it was provided that irregular appointment in duly
    sanctioned posts who have worked for 10 years or more can
H   be considered on merits end steps to be taken one time
                                   542
      AMARKANT RAI v. STATE OF BIHAR & ORS.                         543



measure to regularize them - The objective behind the                A
exception carved out in that case was to permit regularization
of such appointments which are irregular but not illegal and
to ensure security of employment of those persons who
served the State Government and their instrumentalities for
more than 10 years - The said exception carved out in                B
Umadevi is applicable to the facts of the present case - There
is no material that the appellant has been lacking any
qualification or bear any blemish record during his
employment for over two decades - Considering the facts              C
and circumstances of the case that the appellant has served
the University for more than 29 years, in the interest ofjustice,
the authorities directed to regularize the services of the
appellant retrospectively- Bihar State Universities Act, 1976
- SS. 10(6), 35.                                                     D

       Allowing the appeal, the Court

       HELD: 1. The appointment of the appellant as
Night Guard was done out of necessity and concern for
the college. The Principal of the college had E
recommended the case of the appellant for
regularization on the post of Night Guard and the
University was thus well acquainted with the
appointment of the appellant by the then Principal even F
though Principal was not a competent authority to make
such appointments and thus the appointment of the
appellant and other employees was brought to the notice
of the University in 1988. For a considerable time,
University never raised the issue that the appointment G
of the appellant by the Principal was ultra vires the rules
of BSU Act. Having regard to the various
communications between the Principal and the
University and also the education authorities and the
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544      SUPREME COURT REPORTS                [2015] 3 S.C.R.


A facts of the case, the appointment of the appellant cannot
    be termed to be illegal, but it can only be termed as
  . irregular. [Para 9] [548-E-H; 549-A]

         2. The State Government intimated to the
B Registrar of all the Colleges that as per the settlement
  held between 8ihar State University and College
  Employees Federation and the Government it was
  agreed that the services of the employees working in
  the education institutions on the basis of prescribed
C staffing pattern are to be regularized. As per sanctioned
  staffing pattern, there were two vacant posts of Class IV
  employees and the appellant was appointed against the
  same. [Para 1OJ [549-8-D]
D       3. The objective behind the exception carved out
  in *Umadevi's case was to permit regularization of such
  appointments, which are irregular but not illegal, and to
  ensure security of employment of those persons who
  served the State Government and their instrumentalities
E for more than ten years. The exception carved out in
  Umadevi is applicable to the facts of the present case.
  There is no material placed by the respondents that the
  appellant has been lacking any qualification or bear any
F blemish record during his employment for over two
  decades. Considering the fact that the appellant has
  served the University for more than 29 years on the post
  of Night Guard on daily wages, in the interest of justice,
  the authorities are directed to regularize the services of
G the appellant retrospectively. (Paras 11, 14, 16] [551-8-
  C; 553-0, G-H; 554~A]

      Secretary, State of Kamataka & Ors. v. Umadevi (3) &
      Ors. (2006) 4 sec 1 :2006 (3) SCR 953 - relied on.
H
     AMARKANT RAI v. STATE OF BIHAR & ORS.                   545


   State of Kamataka & Ors. v. M.L. Kesari & Ors. (2010)      A
   9 SCC 247: 2010 (9) SCR 543; Nihal Singh & Ors. v.
   State of Punjab & Ors. (2013) 14 SCC: 2013 (11)
   SCR 1 - referred to.

                  Case Law Reference                          B
      2006 (3) SCR 953 relied on.        Para 4
      2010 (9) SCR 543 referred to. Para 12

      2013 (11) SCR 1      referred to. Para 13               C
      CIVILAPPELLATE JURISDICTION: Civil Appeal No.
2835 of 2015.

       From the Judgment and Order dated 20.02.2013 of        o
the High Court of judicature at Patna in LP.A. No. 1312 of
2012.
      Pradeep Gupta, Parinav Gupta, Mansi Gupta, Dr. Vipin
GuptafortheAppellant.                                      E
       Abhinav Mukerji, Bihu Sharma, Pumima Krishna, Rohit
K. Singh for the Respondents.

      The Judgment of the Court was delivered by
                                                              F
       R. BANUMATHI, J. 1. Leave granted.

       2. This appeal by special leave arises out of the order
dated 20.02.2013 passed by the High Court of Judicature at
Patna in LPA No.1312 of 2012 which was dismissed in limine G
by the High Court, whereby the order of the learned Single
Judge was confirmed observing that the appointment of the
appellant as daily wages was not by the competent authority
and that he is not entitled for regularization.
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546          SUPREME COURT REPORTS                      [2015]3S.C.R.


A             3. Brief facts which led to the filing of this appeal are as
      follows:- Th,e appellant was appointed temporarily in Class IV
      post of Night Guard. on daily wages vide Office Order dated
      04.06.1983 issued by Principal, Ramashray Baleshwar
      College (for short "College"), Dalsang Sarai, affiliated to Lalit
B     Narayan Mithila University(for short "University"), Bihar. The
      University vide letter dated 04.07.1985 took a decision to
      regularize the persons who worked for more than 240 days,
      and as per the letter dated 30.03.1987, as per which
C     employees who have been working for a period for more than
      one year need to be regularized. Thereafter, the Additional
      Commissioner-cum" Secretary, Bihar passed a settlement
      dated 11. 07 .1989 and forwarded a copy of the same to the
      Vice Chancellors of the Universities, wherein it was stated that
o     the services of employees working in educational institutions
      as per the staff pattern, can be regularized, further imposing a
      condition that newappointments against the vacancies present
      and in future should not at all be done. Principal, Ram ash ray
      Baleshwar College requested the Registrar of the University
E     to regularize the services of appellant vide letter dated
      07 .10.1993; butthe Registrar passed an Order of termination
      dated 01.03.2001. A Writ Petition No.9809/1998 was
      preferred by few similarly placed daily wagers in the High Court.
      As per the directions issued by the High Court, the Registrar
F     of the University vide letter dated 22.12.2001 allowed all the
      daily wagers to resume their jobs from 03.01.2002 and the
      appellant also joined his duties.

          4. The Principal of the College again vide letters dated
G 08.01.2002 and 12.07.2004 recommended for absorption of
  the appellant against the two vacant posts. In pursuance of
  the High Court Order in CWJC No. 5774/2000, he was given
  opportunity to appear before the Three Members Committee
H constituted by the Vice-Chancellor for consideration of his claim
      AMARKANT RAI v. STATE OF BIHAR & ORS.                         547
               [R. BANUMATHI, J.]

for regularization of services, but the same was rejected as it      A
was not in consonance with the Recruitment Rules laid down
 by the Constitution Bench judgment in Secretary, State of
 Kamataka & Ors. v. Umadevi (3) & Ors., (2006) 4 SCC 1 and
the same was informed to the appellant by the Registrar vide
 letter dated 25.11.2007. Appellant approached the High Court        B
 by way of Writ Petition (civil) No. 545/2009 and the same was
dismissed vide Order dated 26.8.2011 observing that it is a
 clear case of violation of Section 10(6) and Section 35 of the
 Bihar State Universities Act, 1976 and there is no illegality in    C
 the order passed by the Three Members Committee.
Aggrieved by it, the appellant preferred LPA No. 1312/2012
which was dismissed in limine confirming the order dated
 26.08.2011. In this appeal, the appellant seeks to assail the
.above order.                                                        D

        5. Learned counsel for the appellant contended thatthe
appellant served on the post for 29 years on daily wages and
even as per th~ decision in para 53 in Umadevi's case (supra),
irregular appointment of employees who have worked for more E
than 10 years should be considered on merits. It was
contended that the appellant has been working in a sanctioned
post and his appointment was not illegal but in the facts and
circumstances of the case, his appointment could only be
irregular appointment entitling him for regularization. It was F
submitted that Three Members Committee as well as the High
Court did not keep in view that the case of the appellant was
recommended for regularization.

       6. Per contra, learned counsel for respondents No. 1 to G
3 contended that Principal of the College has no authority to
make any appointment on any post on daily wages as per the
legislative scheme under Section 10(6) of Bihar State
Universities Act, 1976. It was submitted that Three Members
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548         SUPREME COURT REPORTS                   [2015] 3 S.C.R.



A     Committee scrutinized the documents available on record and
      rejected claim of the appellant for regularization and the High
      Court rightly dismissed the claim of the appellant for
      regl!larization.

B        7. Reiterating the submission, learned counsel for
  respondent Nos. 4 to 6 submitted that a principal of the college
  was not empowered under the Universities Laws to make
  appointmentto Class Ill or Class IV and thatthe appellant was
  not appointed against any sanctioned post and therefore he
C cannot seek for regularization.

             8. We have carefully considered the rival contentions
      and also perused the impugned order and material on record.

o          9. Insofar as contention of the respondent that the
   appointment of the appellant was made by the principal who
   is not a competent authority to make such appointment and is
   in violation of the Bihar State Universities Act and hence the
   appointment is illegal appointment, it is pertinent to note that
E the appointment of the appellant as Night Guard was done out
   of necessity and concern for the college. As noticed earlier,
   the Principal of the college vide letters dated 11.03.1988,
   07.10.1993, 08.01.2002 and 12.07.2004 recommended the
  ·case of the appellant for regularization on the post of Night
F Guard and the University was thus well acquainted with the
   appointment of the appellant by the then principal even though
   Principal was not a competent authority to make such
   appointments and thus the appointment of the appellant and
G other employees was brought to the notice of the University in
   1988. In spite of that, the process for termination was initiated
   only in the year 2001 and the appellant was reinstated w.e.f.
   3.01.2002 and was removed from services finally in the year
   .2007. As rightly contended by the learned counsel for the
H appellant, for a considerable time, University never raised the
      AMARKANT RAI v. STATE OF BIHAR & ORS.                          549
               [R. BANUMATHI, J.]

issue that the appointment of the appellant by the Principal is A
ultra vires the rules of BSU Act. Having regard to the various
communications between the Principal and the University and
also the education authorities and the facts of the case, in our
view, the appointment of the appellant cannot be termed to be
illegal, but it can only be termed as irregular.                 B

        10. Human Resources Development, Department of
Bihar Government, vide its letter dated 11.07 .1989 intimated
to the Registrar of all the Colleges that as per the settlement
dated 26.04.1989 held between Bihar State University and              C
College Employees Federation and the Government it was
agreed that the services of the employees working in the
education institutions on the basis of prescribed staffing pattern
are to be regularized. As per sanctioned staffing pattern, in         D
Ramashray Baleshwar College, there were two vacant posts
of Class IV employees and the appellant was appointed against
the same. Further, Resolution No. 989 dated 10.05.1991 issued
by the Human Resources Development Department provides
that employees working upto 10.5.1986 shall be adjusted               E
against the vacancies arising in future. Although, the appellant
was appointed in 1983 temporarily on the post that was not
sanctioned by the State Government, as per the above
communication of Human Resources Development
Department, it is evident that the State Government issued            F
orders to regularise the services of the employees who worked
upto 10.5.1986. In our considered view, the High Court ought
to have examined the case of the appellant in the light of the
various communications issued by the State Government and
in the light of the circular, the appellant is eligible for           G
consideration for regularization.

       11. As noticed earlier, the case of the appellant was
referred to Three Members Committee and Three Members
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550         SUPREME COURT REPORTS                   [2015] 3 S.C.R.


A     Committee rejected the claim of the appellant declaring that
      his appointment is not in consonance with the ratio of the
      decision laid down by this Court in Umadevi's case (supra).
      In Umadevi's case, even though this Court has held that the
      appointments made against temporary or ad-hoc are not to
8     be regularized, in para 53 of the judgment, it provided that
      irregular appointment of duly qualified persons in duly
      sanctioned posts who have worked for 10 years or more can
      be considered on merits and steps to be taken one time
C     measure to regularize them. In para 53, the Court observed
      as under:-

        "53. One aspect needs to be clarified. There may be
        cases where irregular appointments (not illegal
        appointments) as explained in S. V. Narayanappa, R.N.
D
        Nanjundappa and B.N. Nagarajan 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
E       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 above referred to and in the light of this judgment.
F       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
G       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
H
      AMARKANT RAI v. STATE OF BIHAR & ORS.                     551
               [R. BANUMATHI, J.)

  six months from this date. We also clarify that                A
  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."          B

The objective behind the exception carved out in this case was
to permit regularization of such appointments, which are
irregular but not illegal, and to ensure security of employment
of those persons wtio served the State Government and their C
instrumentalities for more than ten years.

        12. Elaborating upon the principles laid down in
Umadevi's case (supra) and explaining the difference between
irregular and illegal appointments in State of Kamataka & Ors. D
v. M.L. Kesari & Ors., (2010) 9 SCC 247, this Court held as
under:
  "7. It is evident from the above that there is an exception
  to the general principles against "regularisation"             E
  enunciated in Umadevi (3) , if the following conditions
  are fulfilled:

     (1) The employee concerned should have worked for
     10 years or more in duly sanctioned post without the        F
     benefit or protection of the interim order of any court
     or tribunal. In other words, the State Government or
     its instrumentality should have employed the employee
     and continued him in service voluntarily and
     continuously for more than ten years.                       G

      (it) The appointment of such employee should not be
      illegal, even if irregular. Where the appointments are
      not made or continued against sanctioned posts or
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552       SUPREME COURT REPORTS                     [2015] 3 S.C.R.


A        where the persons appointed do not possess the
         prescribed minimum qualifications, the appointments
         will be considered to be illegal. But where the person
         employed possessed the prescribed qualifications
         and was working against sanctioned posts, but had
B        been selected without undergoing· the process of
         open competitive selection, such appointments are
         considered to be irregular."

         13. Applying the ratio of Umadevi's case, this Court in
C Nihal Singh & Ors. v. State of Punjab & Ors., (2013) 14 SCC
  65 directed the absorption of the Special Police Officers in
  the services of the State of Punjab holding as under:

      "35. Therefore, it is clear that the existence of the need
D     for creation of the posts is a relevant factor with reference ·
      to which the executive government is required to take
      rational decision based on relevant consideration. In our
      opinion, when the facts such as the ones obtaining in
      the instant case demonstrate that there is need for the
E     creation of posts, the failure of the executive government
      to apply its mind and take a decision to create posts or
      stop extracting work from persons such as the appellants
      herein for decades together itself would be arbitrary
F     action (inaction) on the part of the State.

      36. The other factor which the State is required to keep
      in mind while creating or abolishing posts is the financial
      implications involved in such a decision. The creation of
      posts necessarily means additional financial burden on
G
      the exchequer of the State. Depending upon the priorities
      of the State, the allocation of the finances is no doubt
      exclusively within the domain of the legislature. However
      in the instant case creation of new posts would not create
H     any additional financial burden to the State as the various
      AMARKANT RAI v. STATE OF BIHAR & ORS.                       553
               [R. BANUMATHI, J.]

  banks at whose disposal the services of each of the              A
  appellants is made available have agreed to bear the
  burden. If absorbing the appellants into the services of
  the State and providing benefits on a par with the police
  officers of similar rank employed by the State results in
  further financial commitment it is always open for the           B
  State to demand the banks to meet such additional
  burden. Apparently no such demand has ever been
  made by the State. The result is-the various banks
  which avail the services of these appellants enjoy the
  supply of cheap labour over a period of decades. It is
                                                                   c
  also pertinent to notice that these banks are public sector
  banks."

         14. In our view, the exception carved out in para 53 of
                                                                    0
Umadevi is applicable to the facts of the present case. There
is no material placed on record by the respondents that the
appellant has been lacking any qualification or bear any
blemish record during his employment for over two decades.
It is pertinent to note that services of similarly situated persons E
on daily wages for regularization viz. one Yatindra Kumar
Mishra who was appointed on daily wages on the post of Clerk
was regularized w.e.f. 1987. The appellant although initially
working against unsanctioned post, the appellant was working
continuously since 03.1.2002 against sanctioned post. Since F
there is no material placed on record regarding the details
whether any other night guard was appointed against the
sanctioned post, in the facts and circumstances of the case,
we are inclined to award monetary benefits be paid from
01.01.2010.                                                        G
        15. Considering the facts and circumstances of the case
that the appellant has served the University for more than 29
years on the post of Night Guard and that he has served the
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554          SUPREME COURT REPORTS                     [2015) 3 S.C.R.


A     College on daily wages, in the interest of justice, the authorities
      are directed to regularize the services of the appellant
      retrospectivelyw.e.f. 03.01.2002 (the date on which he rejoined
      the post as p~r direction of Registrar).

B        16. The impugned order of the High Court in LPA
  No.1312 of 2012 dated 20.02.2013 is set aside and this
, appeal is allowed. The authorities are directed to notionally
  regulari.ie the services of the appellant retrospectively w.e.f.
  03.01.2002, or the date on which the post became vacant
C whichever is later and without monetary benefit for the above
  period. However, the appellant shall be entitled to monetary
  benefits from 01.01.2010. The period from 03.01.2002 shall
  be taken for continuity of service and pensionary benefits.

D            17. The appeal is allowed in terms of the above. No
      order as to costs.

      Devika Gujral                                       Appeal allowed.


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