Supreme Court of India
NEELIMA SRIVASTAVAversusTHE STATE OF UTTAR PRADESH & ORS.
- Citation
- 2021 INSC 410
- Decided
- 17 August 2021
- Disposal
- Leave Granted & Allowed
- Bench
- S ABDUL NAZEER
Holding
The appellant's appointment is irregular, not illegal, and the earlier High Court judgment that attained finality cannot be reopened, entitling her to regularisation with all benefits.
Summary
Neelima Srivastava was appointed as a temporary music teacher in 1984 on a leave vacancy and continued in service for over three decades. She sought regularisation under the Uttar Pradesh Secondary Education Department Regularisation Rules, 2001, filing multiple writ petitions. The High Court Single Judge in 2006 and again in 2014 held that she was entitled to regularisation and that the earlier judgment had attained finality. The Allahabad High Court Division Bench later set aside that judgment, deeming her appointment illegal and litigious. The Supreme Court held that her appointment was merely irregular, not illegal, and that the earlier High Court judgment could not be reopened under the doctrines of res judicata and finality. Consequently, the Court set aside the Division Bench order and directed that she be regularised with all consequential benefits.
Issues considered
- The nature of the appellant's appointment: whether it is illegal or merely irregular for the purpose of regularisation under the 2001 Rules.
- Whether the High Court judgment of 2006, which attained finality, can be reopened in subsequent proceedings.
- Whether the doctrine of res judicata and finality bars the State's appeal against the earlier judgment.
- Whether the appellant is entitled to regularisation and associated benefits.
Subjects
service lawregularisationirregular appointmentillegal appointmentres judicatafinality of judgmenttemporary appointmentleave vacancySupreme Courtservice rules
Judgment
[2021] 8 S.C.R. 167 167
NEELIMA SRIVASTAVA A
v.
THE STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No. 4840 of 2021)
AUGUST 17, 2021 B
[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]
Service law: Regularisation of service – Entitlement to –
Appellant appointed as temporary Music Teacher on a leave
vacancy – Appointment was to last till the permanent incumbent
C
re-joined the service – Incumbent employee never returned and
the appellant continued in service from 1984 to 2021 – In between,
the terms of the appointment order were modified by providing that
the appointment was to last till the regular incumbent joined back
or 20.05.1986, whichever was earlier and order was issued
dispensing with the services of the appellant, however, the High D
Court stayed the operation of the said order – Appellant then sought
regularisation in accordance with the Regularisation Rules but no
action taken – Writ petition by the appellant – Single Judge held
that the appellant would continue on her post and her case shall be
considered for regularization – Said judgment attained finality –
E
Subsequently, appellant’s claim for regularization rejected –
Appellant filed another writ petition before the High Court, wherein
the Single Judge allowed her writ petition holding that since the
earlier order of the Single Judge attained finality, refusal to apply
Regularisation Rules, 2001 was unlawful – In terms thereof, the
State regularised services of the appellant – In appeal, there against, F
the Division Bench held that since the appellant continued on the
post on the basis of the interim order passed by the High Court in
earlier round of litigation, her appointment is litigious appointment
and thus she had no enforceable right to hold the post legally – On
appeal, held: Appointment of the appellant can only be construed
G
as irregular and not illegal – Rejection of her claim for
regularization on the ground of her appointment being illegal is
patently erroneous – Judgment which attained finality crystallized
the right of the appellant for regularization – It is not permissible
for the parties to re-open the concluded judgments of the Court as
the same tantamounts to an abuse of the process of the Court and H
167
168 SUPREME COURT REPORTS [2021] 8 S.C.R.
A has far reaching adverse effect on the administration of justice –
Further, the writ Petition cannot be filed collaterally to set aside
the judgment of the same High Court rendered in an earlier round
of litigation ignoring the principles of res-judicata and doctrine of
finality – Thus, the judgment passed by the Division Bench not
sustainable and set aside – Appellant entitled to be regularised with
B
all consequential benefits.
Judgment/Order:
Over-ruling a principle and reversal of the judgment –
Explanation of – Held: There is a distinction between the two –
C Judgment itself has to be assailed and got rid of in a manner known
to or recognized by law – Mere over-ruling of the principles, on
which the earlier judgment was passed, by a subsequent judgment
of higher forum will not have the effect of uprooting the final
adjudication between the parties and set it at naught – Mere over-
ruling of the principles by a subsequent judgment will not dilute the
D binding effect of the decision on inter-parties.
Re-opening of a concluded judgment – Permissibility of –
Held: It is not permissible for the parties to re-open a concluded
judgment of the Court – It may tantamount to an abuse of the process
of the Court and also have far reaching adverse effect on the
E administration of justice.
Allowing the appeal, the Court
HELD: 1.1 Applying the tests laid down in *State of
Karnataka & Ors. vs. M.L. Kesari & Ors. the appointment of the
F appellant can only be construed as irregular and not illegal. The
finding recorded by the Division Bench of the High Court in
respect of nature of the appointment of the appellant being illegal
is thus not liable to be sustained. Her rejection of the claim for
regularization on the ground of her appointment being illegal by
the impugned order is patently erroneous. The other condition
G of having worked for 10 years or more also stands fully satisfied
as the appellant at the time of consideration of her regularization
had completed almost 23 years of service. [Para 24][178-F-H;
179-A]
State of Karnataka & Ors. v. M.L. Kesari & Ors. (2010)
H 9 SCC 247 : [2010] 9 SCR 543 – relied on.
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 169
& ORS.
1.2 Writ Petition No. 3316 (SS) of 1986 filed by the appellant A
before the High Court challenging the modification in the terms
of her appointment was stayed vide order dated 20.05.1986 during
the pendency of this Writ Petition before the High Court. She
again approached the High Court by filing Writ Petition No. 7890
of 2003 challenging the order passed by the Joint Director of
B
Education rejecting her claim of regularization. The two pending
Writ Petitions were clubbed by the High Court and disposed of
vide common judgment and order dated 23.01.2006 with the
finding that the appellant is having all the requisite qualification
and has worked for 21 years and she might have been appointed
in a leave arrangement but by virtue of her satisfactory services, C
she has now acquired a Right to hold the post and continued in
the institution and at this stage, it would not be appropriate to
treat her as an appointee in a stop-gap arrangement and
accordingly directed the State-respondent to consider for
regularization under the relevant Regularization Rules. [Para
D
26][179-B-E]
1.3 This Judgment attained finality inter-se between the
parties as admittedly the State-respondent did not put the same
to challenge before any higher forum. The said judgment which
attained finality crystallized the right of the appellant for
regularization. When the same was refused by the Joint Director E
of Education, it was again challenged by filing Writ Petition No.
8597 of 2010. A Single Judge vide order dated 15.05.2014 allowed
the Writ Petition with the finding that in the earlier round of
litigation, the High Court had held that she was entitled to hold
the post and since the said judgment become final and F
unchallenged, the Regularization Rules, 2001 were applicable and
refusal to apply the said Rules was unlawful. [Para 27][179-E-G]
1.4 Admittedly, when the judgment dated 23.01.2006 was
passed by the High Court in the earlier two Writ Petitions filed
by the appellant, the dictum of Umadevi (3) was not even in G
existence as the said judgment was rendered subsequently on
10.04.2006. The Division Bench of the High Court has
erroneously understood the dictum of this Court in Umadevi (3).
The Constitution Bench has nowhere directed that service
H
170 SUPREME COURT REPORTS [2021] 8 S.C.R.
A matters that stand concluded inter partes, ought to be re-opened.
On the contrary, the Constitution Bench clarified as under that
those decisions which run counter to the principle settled in this
decision, or in which directions running counter to what has been
held herein, will stand denuded of their status as precedents. It
becomes absolutely clear from the above clarification that earlier
B
decisions running counter to the principles settled in the decision
of Umadevi (3) will not be treated as precedents. It cannot mean
that the judgment of a competent Court delivered prior to the
decision in Umadevi (3) and which has attained finality and is
binding inter se between the parties need not be implemented.
C Mere over-ruling of the principles, on which the earlier judgment
was passed, by a subsequent judgment of higher forum will not
have the effect of uprooting the final adjudication between the
parties and set it at naught. There is a distinction between over-
ruling a principle and reversal of the judgment. The judgment in
question itself has to be assailed and got rid of in a manner known
D
to or recognized by law. Mere over-ruling of the principles by a
subsequent judgment will not dilute the binding effect of the
decision on inter-parties. [Para 28-30][179-G-H; 180-A-E]
Secretary, State of Karnataka & Ors. v. Umadevi & Ors.
(2006) 4 SCC 1 : [2006] 3 SCR 953 – referred to.
E
1.5 The Division Bench of the High Court proceeded as if
it was hearing an appeal against the judgment dated 23.01.2006
of the Single Judge which had already attained finality. Appeal
filed under the Rules of the Court was filed against the judgment
dated 15.05.2014 rendered in Writ Petition No. 8597 of 2010. It
F is a well settled principle of law that a Letters Patent Appeal
which is in continuation of a Writ Petition cannot be filed
collaterally to set aside the judgment of the same High Court
rendered in an earlier round of litigation ignoring the principles
of res-judicata and doctrine of finality. [Para 32][181-F-H]
G 1.6 It is very well settled that it is not permissible for the
parties to re-open the concluded judgments of the Court as the
same may not only tantamount to an abuse of the process of the
H
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 171
& ORS.
Court but would have far reaching adverse effect on the A
administration of justice. [Para 36][182-F]
Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr. 1967 AIR SC 1 : [1966] 3
SCR 744; Rupa Ashok Hurra v. Ashok Hurra & Anr.
(1999) 2 SCC 10; Union of India & Ors. v. Major S.P. B
Sharma & Ors. (2014) 6 SCC 351 : [2014] 4 SCR 327
– relied on.
1.7 It is undisputed that in compliance of the judgment of
the learned Single Judge dated 15.05.2014 vide order dated
31.10.2015 respondents regularized the services of appellant C
subject to the outcome of the proceedings in the LPA and the
appellant now stand superannuated having attained the age of
superannuation after about 33 years of continuous service. [Para
37][182-F-G]
1.8 A feeble attempt was made by the counsel for the State- D
respondent to persuade this Court not to interfere in the matter
on the ground that the services of the appellant were terminated
vide letter dated 19.05.1986 which was never challenged as such
her services stood terminated. Such submission cannot be
accepted at this stage for the simple reason that it was open for
the State to have advanced this contention before the Single Judge E
in the two Writ Petitions decided vide judgment and order dated
23.01.2006. Once this argument was never made before the Single
Judge in the proceedings which has attained finality, the
respondent cannot be permitted to raise this argument in this
appeal. [Para 38][183-A-C] F
1.9 The impugned judgment passed by the Division Bench
of High Court is not liable to be sustained and is hereby set aside.
The appellant is held entitled to be regularized with all
consequential benefits which may be extended to her within the
stipulated period. [Para 39][183-D] G
Rudra Kumar Sain and Ors. v. Union of India and Ors.
(2000) 8 SCC 25 : [2000] 2 Suppl. SCR 573; Vice
Chancellor Anand Agriculture University v. Kanubhai
Nanubhai Vaghela and Anr. [2021] AIR 3529; Gujarat
Agricultural University v. Rathod Labhu Bechar & Ors.
H
(2001) 3 SCC 574 : [2001] 1 SCR 413 – referred to.
172 SUPREME COURT REPORTS [2021] 8 S.C.R.
A Case Law Reference
[2000] 2 Suppl. SCR 573 referred to Para 12
[2010] 9 SCR 543 relied on Para 24
[2006] 3 SCR 953 referred to Para 28, 29, 30
B [2021] AIR 3529 referred to Para 31
[2001] 1 SCR 413 referred to Para 31
[1966] 3 SCR 744 relied on Para 36
(1999) 2 SCC 103 relied on Para 36
C
[2014] 4 SCR 327 relied on Para 36
CIVIL APPELLATE JURISDICTION: Civil Appeal No.4840 of
2021.
From the Judgment and Order dated 07.05.2018 of the High Court
D of Judicature at Allahabad, Lucknow Bench, in Special Appeal No.743
of 2014.
Nikhil Goel, Ms. Preetika Dwivedi, Santosh Krishnan, Advs. for
the Appellant.
Harish Pandey, Rajiv Yadav, Advs. for the Respondents.
E
The Judgment of the Court was delivered by
KRISHNA MURARI, J.
1. Leave granted.
2. This appeal takes exception to the judgment and order dated
F 07.05.2018 passed by the Division Bench of Allahabad High Court
(hereinafter referred to as ‘the High Court’) allowing the Special Appeal
filed by the State-Respondent and setting aside the judgment and order
dated 15.05.2014 passed in Writ Petition filed by the appellant herein.
3. The appellant is a Post Graduate from Kanpur University and
G also holds the certificate of Sangit Prabhakar and Senior Diploma from
the Prayag Sangit Samiti, Allahabad. On 23.07.1984, she was appointed
as Assistant Music Teacher in Government Inter College, Mahmoodabad,
District Sitapur on a leave vacancy as the regular incumbent went on
leave without pay. The terms of the appointment order specified that the
H appointment was temporary and meant to last till the permanent incumbent
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 173
& ORS. [KRISHNA MURARI, J.]
rejoined the service. The educational qualifications of the appellant A
satisfied the requirements prescribed under the relevant service rules.
Vide letter dated 16.05.1986, the terms of the appointment order dated
23.07.1984 was modified by providing that the appointment was to last
till the regular incumbent joined back or 20.05.1986, whichever was earlier.
4. Aggrieved by the said modification in the terms of appointment, B
the appellant filed a Writ Petition No. 3316 (SS) of 1986 before the High
Court challenging the modified terms of the appointment. On 19.05.1986,
the management of the College issued another order dispensing with the
services of the appellant w.e.f. 20.05.1986.
5. A learned Single Judge vide order dated 20.05.1986 while issuing C
notice to the respondents stayed the operation of the order dated
16.05.1986 modifying the terms of the appointment order. It was further
provided that the interim order shall automatically lapse on return of the
permanent incumbent Smt. Safia Khatoon.
6. It so happened that Smt. Safia Khatoon did not rejoin the service, D
as a result her services were terminated vide order dated 16.01.1988. It
is undisputed fact that the respondents never undertook any steps for
filling up the post and the appellant was continued on the said post without
any interruption till 2020.
7. On 17.08.2001, the State of Uttar Pradesh Promulgated the E
UP Secondary Education Department Regularization of Ad hoc
appointments on the Post of Trained Graduate Teachers Rules, 2001
(for short known as ‘Regularization Rules, 2001). On 02.11.2001, the
appellant made a representation to the authorities seeking regularization
in accordance with the said Rules. When no action was taken on a
representation for a substantial period of time, she approached the High F
Court again by filing Writ Petition No. 7890 (SS) of 2003. This Writ
Petition came to be clubbed with the earlier Writ Petition No. 3316 (SS)
of 1986 filed by the appellant and were heard together and disposed of
by a learned Single Judge of the High Court by making following
observations :- G
“After hearing learned counsel for the parties and perusing
the record, it is abundantly clear that the petitioner has more
than 21 years experience working as Assistant Teacher Music,
LT Grade in the Government Inter Collge, Mahmoodabad,
Sitapur. As per documents placed on record, she is having all
H
174 SUPREME COURT REPORTS [2021] 8 S.C.R.
A requisite educational qualification as required in the
Intermediate Education Act. She might have been appointed
in a leave arrangement but by virtue of his (sic her) continuous
satisfactory services, she has now acquired a right to hold
the post and continue in the institution, and at this stage, it
would not be appropriate to treat her as an appointee in stop-
B
gap arrangement.”
8. The operative portion of the aforesaid judgment reads as under:-
“In view of above, the Writ Petitions are allowed. The
consequences shall follow. The petitioner shall be allowed to
C continue on the post, held by her. Her case shall be considered
for regularization under the relevant regularization Rules and
appropriate orders shall be passed within three months from
the date of presentation of a certified copy of the judgment
and order.”
D 9. It is pertinent to point out at this stage that the aforesaid common
judgment rendered in the two Writ Petitions filed by the appellant attained
finality as it was not put to challenge before any higher forum.
10. Vide order dated 29.01.2007, the Joint Director of Education
considered the case of the petitioner (appellant herein) and despite
E observations contained in the judgment of the learned Single Judge
rejected her claim for regularization. Her claim for regularization was
mainly rejected on the ground that since her initial appointment was on
leave vacancy for which there was no provision under the 2001 Rules,
as such she cannot be held to be entitled to the benefit conferred by
Regularization Rules, 2001.
F
11. This order was again put to challenge by the appellant by filing
yet another Writ Petition No. 8597 of 2010. After hearing learned counsel
for the parties, learned Single Judge vide judgment and order dated
15.05.2014 allowed the same on the following reasonings :-
i. Petitioner has been working since 23.07.1984 and in the earlier
G
round of litigation, the High Court had held her entitled to
hold the post. The judgment dated 23.01.2006 had become
final and was unchallenged.
ii. Regularization Rules, 2001 were applicable to the petitioner.
The earlier judgment had found petitioner to be entitled to
H
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 175
& ORS. [KRISHNA MURARI, J.]
hold the post. Respondents’ refusal to apply the Regularization A
Rules, 2001 was accordingly unlawful.
iii. A quietus needs to be given to long drawn litigation and the
petitioner is entitled for regularization.
12. The learned Single Judge placed reliance upon the Constitution
Bench Judgment of this Court in the case of Rudra Kumar Sain and B
Ors. vs. Union of India and Ors.1 and in particular the following
observations made in paragraph 20 of the said Constitution Bench
Judgment :-
“In the service jurisprudence, a person who possesses the requisite
qualification for being appointed to a particular post and then he is C
appointed with the approval and consultation of the appropriate
authority and continues in the post for a fairly long period, then
such an appointment cannot be held to be ‘stopgap or fortuitous
or purely ad hoc’.”
13. The learned Single Judge found that the appellant has been D
teaching since 23.07.1984 and in an earlier judgment, the High Court
has already held her appointment not being a stopgap arrangement and
further she has a right to the post which has attained finality having not
been challenged the Regularization Rules, 2001 are applicable to such
cases and refusal to give benefit of the said Rules is not lawful exercise E
of the power by Joint Director and since no regular appointment has
been made, she is fully eligible and qualified to be appointed as such.
14. Vide order dated 31.10.2015, in terms of the judgment of the
learned Single Judge dated 15.05.2014, the respondent regularized the
services of the appellant and simultaneously also filed a Special Appeal F
before a Division Bench.
15. Vide order dated 07.05.2018, impugned in this appeal the
Division Bench allowed the Special Appeal preferred by the respondents
herein and set aside the judgment of the learned Single Judge. The Division
Bench was of the view that since the appellant herein was appointed in
leave vacancy on 23.07.1984 and her services came to an end on G
20.05.1986 and she continued on the post on the basis of the interim
order passed by the High Court in earlier round of litigation and her
appointment is litigious appointment and thus she has no enforceable
right to hold this post legally in her favour.
1
(2000) 8 SCC 25 H
176 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 16. Heard Shri Nikhil Goel, learned counsel for the appellant and
Shri Harish Pandey, learned counsel for the State-Respondent. We have
also gone through the impugned judgment as also the record of the case
with the assistance of the learned counsel for the parties.
17. The Special Appeal filed by the State was allowed by the
B Division Bench of the High Court mainly on the reasoning that the
petitioner (appellant herein) was employed on a temporary basis against
the leave vacancy and since the Service Rules, 1983 did not permit any
appointment on leave vacancy, the appointment of the petitioner (appellant
herein) was illegal appointment of ‘stop-gap nature’. Analyzing the
Regularization Rules, 2001 the Division Bench found that there was no
C provision for regularization of an appointment made against the leave
vacancy.
18. Relying upon the observations made by this Court in the case
of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. 2 wherein
it was held that since the initial appointment of the petitioner (appellant
D herein) was dehors the Rules and thus was illegal and her appointment
was litigious appointment and she continued on the strength of an interim
order passed by the High Court on 20.05.1986, she was not entitled for
regularization.
19. The Constitution Bench of this Court in the case of Umadevi
E (3) has held that a temporary, contractual, casual or a daily-wage
employee does not have a legal right to be made permanent unless the
appointment has been made in accordance with the terms of the relevant
service rules governing the said appointment and in adherence of Articles
14 and 16 of the Constitution. This Court however made one exception
F to the above by observing in paragraph 53 of the reports 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 [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N.
G Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3
SCR 937] and referred to in paragraph 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 courts or of tribunals.
2
H (2006) 4 SCC 1
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 177
& ORS. [KRISHNA MURARI, J.]
The question of regularization of the services of such employees A
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. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to
regularize as a one time measure, the services of such irregularly
B
appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of 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 C
six months from this date. We also clarify that regularization, if
any already made, but not subjudice, need not be reopened based
on this judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making permanent,
those not duly appointed as per the constitutional scheme.”
D
20. The above quoted paragraph 53 from the pronouncement in
the case of Umadevi(3) has carved out an exception to the general
principles against ‘regularization’ in case, the following conditions are
fulfilled :
i. The incumbent should have worked for 10 years or more on a E
duly sanctioned post without the benefit or protection of the
interim order of any Court or Tribunal.
ii. The appointment of such employee should not be illegal, even
if irregular.
21. Applying the above tests laid down in the judgment of Umadevi F
(3), carving an exception to the general principles against ‘regularization’,
the Division Bench of the High Court has held that since the appointment
of the appellant was dehors the rules and without undergoing the process
of open competitive selection, as such the same is illegal and since she
continued in service under the cover of the order passed by the learned G
Single Judge of the High Court, her appointment is litigious and thus is
not covered by exception carved out in the case of Umadevi(3).
22. Referring to the observations made in the case of Umadevi
(3) paragraph 53 quoted herein above, this Court in the case of State of
H
178 SUPREME COURT REPORTS [2021] 8 S.C.R.
A Karnataka & Ors. vs. M.L. Kesari & Ors. 3 has laid down the conditions
to test when the appointment will be considered illegal and when it shall
be considered to be irregular. It may be relevant to extract paragraph 7
from the said report, which reads as under:-
“It is evident from the above that there is an exception to the
B general principles against `regularization’ enunciated in Umadevi,
if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or
more in duly sanctioned post without the benefit or protection of
the interim order of any court or tribunal. In other words, the
C State Government or its instrumentality should have employed
the employee and continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even
if irregular. Where the appointments are not made or continued
D against sanctioned posts or 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 been selected without undergoing the
process of open competitive selection, such appointments are
E considered to be irregular.”
23. In the case of the appellant, it is undisputed that she was
appointed by the Regional Inspectress of Girls Schools, who is the
prescribed appointing authority under the Uttar Pradesh Subordinate
Educational (Trained Graduates Grade) Service Rules, 1983. Equally
F undisputed is the fact that she was appointed on a sanctioned post and
possessed all the necessary prescribed qualifications under 1983, Rules.
24. Applying the tests laid down in State of Karnataka & Ors.
Vs. M.L. Kesari & Ors. (Supra) the appointment of the appellant can
only be construed as irregular and not illegal. The finding recorded by
G the Division Bench of the High Court in respect of nature of the
appointment of the appellant being illegal is thus not liable to be sustained.
Her rejection of the claim for regularization on the ground of her
appointment being illegal by the impugned order is patently erroneous.
The other condition of having worked for 10 years or more also stands
3
H (2010) 9 SCC 247
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 179
& ORS. [KRISHNA MURARI, J.]
fully satisfied as the appellant at the time of consideration of her A
regularization had completed almost 23 years of service.
25. The only question which now requires consideration is whether
her continuation on the post on the strength of the interim order passed
by the High Court would dis-entitle her from regularization in view of
the dictum in the case of Umadevi(3). B
26. Writ Petition No. 3316 (SS) of 1986 filed by the appellant
before the High Court challenging the modification in the terms of her
appointment was stayed vide order dated 20.05.1986 during the pendency
of this Writ Petition before the High Court. She again approached the
High Court by filing Writ Petition No. 7890 of 2003 challenging the order C
passed by the Joint Director of Education rejecting her claim of
regularization. The two pending Writ Petitions were clubbed by the High
Court and disposed of vide common judgment and order dated 23.01.2006
with the finding that the appellant is having all the requisite qualification
and has worked for 21 years and she might have been appointed in a
leave arrangement but by virtue of her satisfactory services, she has D
now acquired a Right to hold the post and continued in the institution and
at this stage, it would not be appropriate to treat her as an appointee in a
stop-gap arrangement and accordingly directed the State-respondent to
consider for regularization under the relevant Regularization Rules.
27. This Judgment attained finality inter-se between the parties E
as admittedly the State-respondent did not put the same to challenge
before any higher forum. The aforesaid judgment which attained finality
crystallized the right of the appellant for regularization. When the same
was refused by the Joint Director of Education, it was again challenged
by filing Writ Petition No. 8597 of 2010. A learned Single Judge vide F
order dated 15.05.2014 allowed the Writ Petition with the finding that in
the earlier round of litigation, the High Court had held that she was
entitled to hold the post and since the said judgment become final and
unchallenged, the Regularization Rules, 2001 were applicable and refusal
to apply the said Rules was unlawful.
G
28. Admittedly, when the judgment dated 23.01.2006 was passed
by the High Court in the earlier two Writ Petitions filed by the appellant,
the dictum of Umadevi (3) was not even in existence as the said judgment
was rendered subsequently on 10.04.2006.
H
180 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 29. The Division Bench of the High Court has erroneously
understood the dictum of this Court in Umadevi (3). The Constitution
Bench has nowhere directed that service matters that stand concluded
inter partes, ought to be re-opened. On the contrary, in paragraph 54
of the said decision, the Constitution Bench clarified as under:-
B “It is also clarified that those decisions which run counter to the
principle settled in this decision, or in which directions running
counter to what we have held herein, will stand denuded of their
status as precedents.”
30. It becomes absolutely clear from the above clarification that
C earlier decisions running counter to the principles settled in the decision
of Umadevi (3) will not be treated as precedents. It cannot mean that
the judgment of a competent Court delivered prior to the decision in
Umadevi (3) and which has attained finality and is binding inter se
between the parties need not be implemented. Mere over-ruling of the
principles, on which the earlier judgment was passed, by a subsequent
D judgment of higher forum will not have the effect of uprooting the final
adjudication between the parties and set it at naught. There is a distinction
between over-ruling a principle and reversal of the judgment. The
judgment in question itself has to be assailed and got rid of in a manner
known to or recognized by law. Mere over-ruling of the principles by a
E subsequent judgment will not dilute the binding effect of the decision on
inter-parties.
31. In an identical situation, this Court in Civil Appeal No. 4443 of
2021 with Civil Appeal Nos. 4444 & 4445 of 2021 decided on 26.07.2021
(Vice Chancellor Anand Agriculture University vs. Kanubhai
F Nanubhai Vaghela and Anr.) has rejected the argument advanced by
the appellant in the said case that the judgment of this Court dated
18.01.2001 in Gujarat Agricultural University vs. Rathod Labhu
Bechar & Ors.4 does not survive after the judgment of this Court in
Umadevi(3). It was held in paragraph 11 as under:-
G “11. We have heard Mr. P.S. Patwalia, learned senior counsel for
the university and Mr. Nachiketa Joshi, learned counsel for the
respondents. The main contention of the university is that after
the judgment of this Court in Secretary, State of Karnataka and
Ors. vs. Umadevi and Ors. 2, the respondents are not entitled for
4
H (2001) 3 SCC 574
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 181
& ORS. [KRISHNA MURARI, J.]
regularization as there are no sanctioned posts available. Another A
submission made on behalf of the appellant is that the judgment of
this Court dated 18.01.2001 in Gujarat Agricultural University
(supra) does not survive after the judgment of this Court in
Umadevi. It is no doubt true that in Umadevi’s case, it has been
held that regularization as a one-time measure can only be in
B
respect of those who were irregularly appointed and have worked
for 10 years or more in duly sanctioned posts. However, in the
instant case the respondents are covered by the judgment of this
Court in Gujarat Agricultural University (supra). This Court
approved the proposed scheme of the State of Gujarat and directed
regularization of all those daily wagers who were eligible in C
accordance with the scheme phase-wise. The right to be
regularized in accordance with the scheme continues till all the
eligible daily-wagers are absorbed. Creation of additional posts
for absorption was staggered by this Court permitting the appellant
and the State of Gujarat to implement the scheme phase-wise.
D
We are not impressed with the submissions made on behalf of the
university that the judgment of this Court in Umadevi’s case
overruled the judgment in Gujarat Agricultural University (supra).
The judgment of this Court in Gujarat Agricultural University
(supra) inter partes has become final and is binding on the
university. Even according to Para 54 of Umadevi’s case, any E
judgment which is contrary to the principles settled in Umadevi
shall be denuded of status as precedent. This observation at Para
54 in Uma Devi’s case does not absolve the university of its duty
to comply with the directions of this Court in Gujarat Agricultural
University (Supra).”
F
32. The Division Bench of the High Court proceeded as if it was
hearing an appeal against the judgment dated 23.01.2006 of the learned
Single Judge which had already attained finality. Appeal filed under the
Rules of the Court was filed against the judgment dated 15.05.2014
rendered in Writ Petition No. 8597 of 2010. It is a well settled principle
of law that a Letters Patent Appeal which is in continuation of a Writ G
Petition cannot be filed collaterally to set aside the judgment of the same
High Court rendered in an earlier round of litigation ignoring the principles
of res-judicata and doctrine of finality.
H
182 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 33.By a majority decision in Naresh Shridhar Mirajkar & Ors.
vs. State of Maharashtra & Anr.5 has laid down the law in this regard
as under:-
“When a Judge deals with matters brought before him for his
adjudication, he first decides questions, of fact on which the parties
B are at issue, and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are right or
wrong, and whether the conclusion of law drawn by him suffers
from any infirmity, can be considered and decided if the party
aggrieved by the decision of the Judge takes the matter up before
the appellate Court.”
C
34. In Rupa Ashok Hurra vs. Ashok Hurra & Anr.6, while
dealing with an identical issue this Court held that reconsideration of the
judgment of this Court which has attained finality is not normally
permissible. The decision upon a question of law rendered by this Court
was conclusive and would bind the Court in subsequent cases. The Court
D cannot sit in appeal against its own judgment.
35. In Union of India & Ors. vs. Major S.P. Sharma & Ors. 7,
a three-judge bench of this Court has held as under:-
“A decision rendered by a competent court cannot be challenged
E in collateral proceedings for the reason that if it is permitted to do
so there would be “confusion and chaos and the finality of
proceedings would cease to have any meaning.”
36. Thus, it is very well settled that it is not permissible for the
parties to re-open the concluded judgments of the Court as the same
F may not only tantamount to an abuse of the process of the Court but
would have far reaching adverse effect on the administration of justice.
37. It is undisputed that in compliance of the judgment of the
learned Single Judge dated 15.05.2014 vide order dated 31.10.2015
respondents regularized the services of appellant subject to the outcome
of the proceedings in the LPA and the appellant now stand superannuated
G
having attained the age of superannuation after about 33 years of
continuous service.
5
1967 AIR SC 1
6
(1999) 2 SCC 103
H 7
(2014) 6 SCC 351
NEELIMA SRIVASTAVA v. THE STATE OF UTTAR PRADESH 183
& ORS. [KRISHNA MURARI, J.]
38. In the end, a feeble attempt was made by the learned counsel A
for the State-respondent to persuade us not to interfere in the matter on
the ground that the services of the appellant were terminated vide letter
dated 19.05.1986 which was never challenged as such her services stood
terminated. We are not ready to accept the proposition canvased by
learned counsel for the respondent at this stage for the simple reason
B
that it was open for the State to have advanced this contention before
the learned Single Judge in the two Writ Petitions decided vide judgment
and order dated 23.01.2006. Once this argument was never made
before the learned Single Judge in the proceedings which has attained
finality, the respondent cannot be permitted to raise this argument in this
appeal. C
39. Analyzing the entire facts of the case and upon consideration
of the matter and settled legal position, we are of the considered view
that the impugned judgment passed by the Division Bench of High Court
is not liable to be sustained and is hereby set aside. The appeal, accordingly,
stands allowed. The appellant is held entitled to be regularized with all D
consequential benefits which may be extended to her within a period of
three months from today.
40. In the facts and circumstances, we, however, do not make
any order as to costs.
E
Nidhi Jain Appeal allowed.
F
G
H
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