SANDHYAversusSTATE OF MAHARASHTRA & ORS.

                     [2014] 6 S.C.R. 255

                        SANDHYA                                    A
                             v.
            STATE OF MAHARASHTRA & ORS.
             (Civil Appeal Nos. 5887 of 2014)
                       JULY 01, 2014
                                                                   B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
                DIPAK MISRA, JJ.)

      Service law: Regularisation - Claim for - Appellant-
Terminated employee challenging termination and seeking            C
regularisation of services - Administrative Tribunal directing
the authorities to regularise the services in accordance with
Government Resolution dated 1Oth March 2005 - Authorities
refusing to regularise the appellant on the ground that he was
not working on the date the said Government Resolution came        D
into force - High Court refusing to interfere with the orders of
authorities - Held: High Court has misguided itself by holding
that the appellant was not working on the date of Government
Resolution dated 1Oth March, 2005 - The order of termination
dated 20th April, 1998 was set aside by the Tribunal by its        E
order dated 24th November, 2011 - The. order of termination
being set aside, in the eye of law the appellant shall be
deemed to be continued in service even on 10th March, 2005
i.e. the date when the Government Resolution was issued -
The respondents are directed to regularize the services of the     F
appellant with retrospective effect..

     The applications were called for appointment to the
post of revenue clerks. Those who could not be adjusted
against the post but were kept in the waiting list, were
called upon to work on payment 6f nominal fees and                 G
were known as unpaid candidates. The appellant was
working as unpaid candidate since 4th July, 1985. The
services of certain unpaid candidates were terminated.
The appellant's service was also terminated on 20th April,
                           255                                     H
    256       SUPREME COURT REPORTS           [2014] 6 S.C.R.


A 1988. The appellant and others challenged their
  respective orders of termination before the Administrative
  Tribunal and prayed for directions on respondents for
  regularisation of their services. The Tribunal by order
  dated 24th November, 2011 allowed the applications and
B set aside their orders of termination with directions to the
  respondents to take action for regularisation of services
  of all the applicants including the appellant in accordance
  with GR dated 10th March, 2005. Thereafter, r~spondent
  no. 3 by letter dated 7th August, 2012, intimated the
c appellant that her service could not be regularized
  because of non:fulfillment of condition in GR dated 10th
  March, 2005. It was alleged that the appellant was not
  working on the date when GR came into force. The
  appellant filed a writ petition which was dismissed by the
  High Court on the ground that the appellant did not fulfill
0
  the requirement laid down under GR dated 10th March,
  2005. The instant appeal was filed challenging the order
  of the High Court.

          Allowing the appeal, the Court
E
       HELD: 1. TIJe High Court has misguided itself by
  holding that the appellant was not in service since July,
  2002 and was not working on the date of Government
  Resolution dated 10th March, 2005. The order of
F termination dated 20th April, 1998 was set aside by the
  Tribunal by its order dated 24th November, 2011. The
  Tribunal directed the respondents to consider the case of
  appellant for reg1.1larization in terms of Government
  Resolution dated 10th March, 2005. The order of
G termination being set aside, in the eye of law the appellant
  shall be deemed to be continued in service even on 10th
  March, 2005 i.e. the date when the Government Resolution
  was issued. Such being the position of law, the appellant
  is entitled for regularization. But the High Court was not
  correct in holding that the appellant was not in service on
H
        SANDHYA v. STATE OF MAHARASHTRA                        257


·10th March, 2005 and wrongly rejected her claim for                   A
 regularization. The respondents are directed to regularize
 the services of the appellant with retrospective effect.
 [Paras 17, 18 and 19] (261-F-H; 262-A-C]

    Shivashankar Gundu Jawanlal and Anr. vs. State of                  B
 Maharashtra and Ors. 2007 (3) Mh.L.J. 43 - referred to.
                        Case Law Reference:
      2007 (3) Mh.L.J. 43        referred to             Para 8
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.                   C
 5887 of 2014.

     From the Judgment and Order dated 15.03.2013 in WP
 No. 1047/2013, of the High Court of Bombay at Aurangabad.
                                                                       D
      P .V. Daware, Dr. Kai lash Chand for the _Appellant.

      Atul B. Dakh (for A.P. Mayee) for the Respondents.-

      The Judgment of the Court was delivered by
                                                                       E
     SUDHANSU JYOTI MUKHOPADHAYA, J. 1.Leave
 granted.

       2. This appeal is directed against the judgment and order
· dated 15th March, 2013 passed by the Division Bench of the
  High Court of Judicature of Bombay, Bench at Aurangabad in           F
  Writ Petition No.104 7 of 2013 whereby the High Court held that
  the appellant is not entitled for regularization of her service as
  per Government Resolution dated 10th March, 2005 and
  dismissed the writ petition.
                                                                       G
    • 3. The factual matrix of the case is as follows:

     The Government of Maharashtra vide GR dated 30th June,
 1961 framed recruitment rules of revenue clerks from amongst
 persons having qualification S.S.C. and within the age limit of       H
    258      SUPREME COURT REPORTS                [2014] 6 S.C.R.


A 23 years (relaxable upto 26 years for reserved category
  candidates). Selected candidates were to be appointed in their
  office to work against clerical post. Those who could not be
  adjusted against the post but were kept in the waiting list, were
  called upon to work on payment of nominal fees under the
B control of different departments like revenue Department,
  Settlement Commissioner, Land Records Department, city
  survey office, etc. Those candidates who were engaged to work
  on payment of fees were popularly known as "unpaid
  candidates'.
c        Their payments are being made out of copying fees
    received by the department, 70% of which was for payment of
    wages to the said unpaid candidates and 30% share was
    credited to the Government.

D       4. The applications were called for appointment to Clerical
  posts. The appellant and others were declared successful.
  Those whose names were appearing in the main selection list
  were appointed' against the Clerical post. Rest in the waiting
  list were allowed to work as unpaid candidates. Since 4th July,
E 1985, the appellant is working as unpaid candidate in the City
  Survey Office at Dhule, Maharasthra.

        5. The Secretary of Bhumi Abhilekh Bina Vetan Sangthana
  (Union of Unpaid Candidates belonging to Land Records
  Department) filed an Original Application No.153 of 1991
F before the Maharashtra Administrative Tribunal, Mumbai. They
  prayed for direction on the respondents for regular absorption
  of its members i.e. unpaid candidates against the regular
  vacr.incies. The Tribunal by its judgment dated 20th December,
  1992 allowed the application directing the respondents to
G absorb unpaid candidates, who had put in more than ten years
  of service as such, by giving preference and by relaxation of
  age, if they otherwise fulfill other eligibility criteria.

     6. The said judgment was challenged by the State
H Government before this Court and the SLP was dismissed on
       SANDHYA v. STATE OF MAHARASHTRA                       259
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
14th July, 1995. Consequently, the State Government issued          A
G.R. dated 21st October, 1995, for implementation of the
directions of the Tribunal in Original Application No.153 of
1991.

     7. The other candidates of revenue department thereafter       B
approached the Tribunal at Aurangabad by filing Original
Application No.895 of 1995. The said application was also
decided in their favour by judgment dated 30th November,
1995. The Tribunal directed the State Go'vernment to frame a
scheme as envisaged in its earlier judgment dated 20th
December, 1992 for absorption of unpaid candidates. In order        C
to comply with the directions issued by the Tribunal, the State
Government issued G.R. dated 22nd October, 1996 for
absorption of unpaid candidates in the revenue department and
fixed 30th November, 1995 as the cutoff date. Consequently,
unpaid candidates who had completed 10 years of service as          D
such, became eligible for absorption, subject to the satisfaction
of other conditions prescribed in the said GR.

       8. In Writ Petition No.2150 of 1998, the Division Bench of
  the Bombay High Court passed an order on 16th October, 2002       E
. directing the State to pay a minimum salary of Rs.3,200/- per
  month to the unpaid candidates. Pursuant to the said direction,
  the benefit of minimum salary of Rs.3,200/- was given by the
  State Government to all unpaid candidates.

     9. Subsequently, a group of writ petitions were also
                                                                    F
 disposed of by a Division Bench of the Bombay High Court in
 Shivshankar Gundu Jawanlal and another vs. State of
 Maharashtra and others, 2007 (3) Mh.L.J. 43. In the said case,
 the petitioners were seeking a common relief for being
 absorbed as permanent Class Ill employees of the State             G
 Government with retrospective effect in the light of judgment of
 the Tribunal in Original Application No.153 of 1991 and GRs
 dated 21st October, 1995, 22nd October, 1996 and 10th March,
 2005. A group of writ petitions were disposed of by the Bombay
    260      SUPREME COURT REPORTS                [2014) 6 S.C.R.


A High Court with observation that all the unpaid candidates
  appointed till 12th February, 1987 cannot be termed as
  backdoor entrants and declared that they are eligible for the
  scheme formulated under the GRs dated 21st October, 1995
  and 22nd October, 1996. The High Court also held that unpaid
B candidates· appointed from 13th February, 1987 onwards are
  not entitled for the benefit of any of the GRs dated 21st October,
  1995, 22r;id October, 1996 and 10th March, 2005.

       10. The aforesaid judgment was challenged by those
  unpaid candidates, who were appointed on and after 13th
C February, 1987, in view of denial of relief given by the Division
  Bench of the Bombay High Court. The Civil Appeals preferred
  by those unpaid candidates were allowed by this Court's order
  dated 11th August, 2011 directing the respondents to take
  action for regularization of services of the appellants in
D accordance with GR dated 10th March, 2005.

         11. Meanwhile, services of c_ertain unpaid candidates were
    terminated by the respondents. The appellant's service was
    also terminated by order dated-20th April, 1998.
E
         12. The appellant and otbe~s challenged their respective
    orders of termination before the Maharashtra Administrative
    Tribunal, Mumbai Bench at Aurangabad and prayed for
    directions on respondents for regularisation of their services.

F      13. After hearing the parties, the Tribunal by its common
  judgment dated 24th November, 2011 passed in Original
  Application No.202/1998 (Smt. Rajani vs. Government of
  Maharashtra etc.), including Original Application No.293/1998
  preferred by the appellant, allowed the applications, set aside
G their respective orders of termination with direction to the
  respondents to take action for regularisation of services of all
  the applicants including the appellant herein in accordance with
  GR dated 10th March, 2005. It was directed to pass
  appropriate orders within three months.
H
       SANDHYA v. STATE OF MAHARASHTRA                         261
       [SUDHANSU JYOTI MUKHOPADHAYA,- J.]
     14. Thereafter, respondent no. 3 vide his letter dated 7th       A
August, 2012, intimated the appellant that her service cannot
be regularized because of non-fulfillment of condition in GR
dated 10th March, 2005. It was alleged that the appellant was
not working on the date when GR came into force.
                                                                      B
      15. The appellant being aggrieved, filed a contempt
petition in Original Application No. 292/1998. The same was
rejected by order dated 18th December, 2012. The order
passed by the Tribunal was challenged by the appellant before
the High Court in writ petition no. 104 7 of 2013. After hearing
the parties, the High Court rejected the writ petition on the         c
ground that the appellant did not fulfill the requirement as laid
down under GR dated 10th March, 2005.

      16. In the said writ petition, the respondents took a similar
plea before the High Court that the appellant did not attend the      D
office since 8th July, 2002. She ceased to be in employment
since then. It was contended that on the date of issuance of
Government Resolution dated 10th March, 2005, since the
appellant was not in employment the benefits as per
Government Resolution cannot be extended in her favour. The           E
Division Bench accepted the said plea and upheld the order
passed by the Tribunal.

     17. Learned counsel for the appellant rightly contended that
the High Court has misguided itself by holding that the appellant
was not in service since July, 2002 and was not working on the        F
date of Government Resolution dated 10th March, 2005.

     18. The order of termination dated 20th April, 1998 was
set aside by the Tribunal by its order dated 24th November,
2011. The Tribunal directed the respondents to consider the
case of appellant for regularization in terms of Government
Resolution dated 10th March, 2005. The order of termination
being set aside, in the eye of law the appellant shall be deemed
to be continued in service even on 10th March, 2005 i.e. the
date when the Government Resolution was issued. Such being            H
    262        SUPREME COURT REPORTS              [2014] 6 S.C.R.


A the position of law, the appellant is entitled for regularization.
  B1:1t the High Court was not correct in holding that the appellant
  was not in service on 10th March, 2005 and wrongly rejected
  her claim for regularization.

       19. For the reason aforesaid, the impugned judgment
8
  passed by the High Court cannot be upheld. The impugned
  judgment dated 15th March, 2013 passed by the High Court
  is set aside. The respondents are directed to comply with the
  order and directions passed by the Tribunal on 24th November,
  2011 in OA No. 293/1998 and regularize the services of the
C appellant with retrospective effect within two months from the
  date of receipt of copy of this judgment. The appeal is allowed
  with the aforesaid direction and observation. No costs.

    Devika Gujral                                     Appeal allowed.