SURENDRA KUMAR & ORS.versusGREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY & ORS.

                        [2015] 6 S.C.R. 970


A                  SURENDRA KUMAR & ORS.
                                  v.
        GREATER NOIDA INDUSTRIAL DEVELOPMENT
                  AUTHORITY & ORS.
B                 (Civil Appeal No. 4916 of 2015)
                            July 2, 2015
            [T. S. THAKUR AND R. BANUMATHI, JJ.]
c         Service law - Regularisation - Claim for, with
    retrospective effect-Appellant initially appointed on the post
    of Assistant Manager on contractual basis and not on any
    sanctioned posts and continuously working on the said posts
    -Advertisements by respondent-authorities for appointment
D   to the said posts - Challenge to - High Court directing
    respondent to consider the claim of appellants for
    regularization on the existing vacancies - During pendency
    of writ petition, policy decision formulated wherein 60% of
    the vacancies were sought to be filled up from amongst 27
E   contractual employees which was later approved by the State
    Government- Pursuant thereto, appellants appointed to the
    said posts -Appellant seeking regularization of their services
    from the date of issuance of advertisement - Allowed by
    tribunal - However, High Court quashing the order passed
F   by the tribunal as also quashing the appointments of the
    appellants - On appeal, held: Appellants were appointed on
    the post only pursuant to the policy decision of the
    respondents for regularisation of contractual employees,
G   thus, the appellants cannot seek regularization with
    retrospective effect from the date of issuance of
    advertisement because at that time regularisation po/icywas
    not in vogue - By policy of regularisation, it was intended to
    give the benefit only from the date of appointment - Court
H   cannot read anything into the policy decision which is plain
                                970
 SURENDRA KUMAR v. GREATER NOIDA INDUSTRIAL 971
          DEVELOPMENT AUTHORITY

and unambiguous - Appellants have completed more than A
ten years of continuous service with respondent - They
continued in service not by the orders of the court/tribunal,
but by the policy decision - Thus, the judgment of the High
Court quashing the appointment of the appellants is set aside
- However, appellants' plea for regularization with B
re.trospective effect is rejected.

  Secretary, State of Karnataka & Ors. Vs. Uma Devi (3)
  & Ors. (2006) 4 SCC 1: 2006 (3) SCR 953 - referred
  ~                                                         c
                   Case Law Reference

2006 (3) SCR 953           referred to.           Para 2

    CIVIL APPELLATE JURISDICTION : Civil Appeal No. D
4916 of 2015.
     From the Judgment and Order dated 29.10.2013 in
W.P. No. 65789 of 2011 of the High Court of Judicature at
Allahabad.                                                E
     L. Nageshwar Rao, Vishwajit Singh, Veera Kaul Singh,
Abhindia Maheswari for the appellants.

      Ravindra Kumar for the respondents.
                                                            F
     The Judgment of the Court was delivered by

     R. BANUMATHI, J. 1. Leave granted.
       2. This appeal arises out of a judgment passed by the G
 Division Bench of the High Court of Judicature at Allahabad
dated 29.10.2013 in Writ Petition No.65789 of 2011, in and
by which, the High Court held that on the principles laid down
in the case of Secretary, State of Karnataka & Ors. Vs. Uma
Devi (3) & Ors., (2006) 4 SCC 1, the appointments of the H
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A     appellants were ex-facie illegal dehorsArticles 14 and 16 of
      the Constitution of India and directed an inquiry regarding
      initial appointments.

            3. Brief facts giving rise to this appeal are that the
B     appellants were initially engaged on the post of Assistant
      Manager (Civil) by the respondent No.1-Greater Naida
      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.
C     However, their engagement continued from time to time, and
      the appellants have been continuously working on the said
      post. On 20.11.2002, the respondent authorities published
      an advertisement for engagement to the posts of Assistant
      Manager (Civil). The appellants and similarly situated
D     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
E     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. By the judgment dated 28.09.2005,
F     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
G     contractual employees as per the Regulation/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,
      respondent authorities filed Special Appeal before the
H     Division Bench being Special Appeal No.1432 of 2005.
 SURENDRA KUMAR v. GREATER NOIDA INDUSTRIAL 973
  DEVELOPMENT AUTHORITY [R. BANUMATHI, J.)

       4. Pending adjudication of Writ Petition No.54072 of      A
2002 before the learned single Judge, a scheme for
regularization of the contractual employees was formulated
by the respondent No.1on16.04.2003, wherein a policy was
framed regarding regularization of 27 contractual employees
who had been engaged initially for a period of 89 days and       B
continued thereafter. The State Government, vide its letter
dated 05.03.2008, approved the policy formulated by
respondent No.1 for regularization 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       C
remaining 40% of the vacancies through direct recruitment.
The special appeal being Special Appeal No.1432 of 2005
was disposed of on 13.01.2010 directing the first respondent
authority to take a final decision in pursuance of the policy    D
framed by it and approved by the State Government on
05.03.2008. 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 06.08.2010.                             E

       5. After joining the said post, the appellants filed a Claim
 Petition No. 174 of 2011 before the State Public Services
Tribunal, Lucknow praying for regularization of their services
from the date of existence of vacancies, that is 20.11.2002, F
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 23.06.2011, allowed the Claim Petition and directed
the authorities to consider the appellants' claim for G
regularization of their services on the existing vacancies with
effect from 20.11.2002. 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 relying on the H

                                                                      ..
974      SUPREME COURT REPORTS                 [2015] 6 S.C.R.


A Constitution Bench decision of this Court in Uma Devi's case
  (supra) allowed the Writ Petition filed by the respondent
  authorities and quashed the order dated 23.06.2011 passed
  by the tribunal granting benefits to the appellants with
  retrospective effect. Additionally, the High Court also
B quashed the appointments of the appellants dated
  06.08.2010 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 Uma
C Devi's case (supra). This appeal assails the correctness of
  the judgment of the Division Bench dated 29.10.2013.

       6. Shri L. Nageswara Rao, learned Senior Counsel for
  the appellants, contended that the appointment orders dated
D 6.08.2010 were issued pursuant to the scheme of
  regularization formulated by the respondent No. 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
E 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.

 F      7. The respondent authorities have fairly conceded that
  appointments of the appellants vide appointment orders
  dated 06.08.2010 ware made pursuant to the regularization
  scheme framed by the respondent No.1 and therdore the
  appointments cannot be said to be illegal being in violation
G 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
H were first advertised. To that extent, the respondent-
 SURENDRA KUMAR v. GREATER NOIDA INDUSTRIAL 975
   DEVELOPMENT AUTHORITY [R. BANUMATHI, J.]

authorities have supported the impugned judgment in setting      A
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.
                                                                 B
     8. 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, C
when the said posts were first advertised.

       9. 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 regularization of      o
 contractual employees was not in vogue and it was only
 subsequently on 16.04.2003, respondent No.1 had taken a
 policy decision regarding regularization of 27 contractual
 employees and the scheme was approved by the State
 Government vide letter dated 5.03.2008 and it is only E
 thereafter, the appellants came to be appointed on 6.08.2010.
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 F
of the learned Single Judge in Writ Petition No. 54072 of
2002 as in Uma Devi's case (supra), this Court held that the
High Court should not issue directions for regularization,
unless the recruitment itself was made in terms of the
constitutional Scheme and the wide power under Article 226 G
are not intended to be used for issuance of such directions
for regularization. The appellants were actually regularised
only by virtue of the policy decision taken by the respondent
No.1 and not by virtue of the decision of the High Court.
                                                                 H
976      SUPREME COURT REPORTS                [2015] 6 S.C.R.


A       10. In the impugned judgment, the Division Bench
  proceeded on the premise as if Uma Devi's case (supra)
  held that the State Government, in no circumstance, can
  regularise the services of contractual employees. In para
  (53) of Uma Devi's case (supra), the Constitution Bench
B 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:-
c
      "53. One aspect needs to be clarified. There may
      be cases where irregular appointments (not illegal
      appointments) as explained in State of Mysore Vs.
      S. V. Narayanappa, (1967) 1 SCR 128, R.N.
D     Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409,
      and B.N. Nagarajan Vs. State of Karnataka, (1979)
      4 sec 507, and referred to in paragraph 15 above,
      of duly qualified persons in duly sanctioned vacant
      posts might have been made and the employees
 E    have continued to work for ten years or more but
      without the intervention of orders of courts or of
      tribunals. The question of regularization of the
      services of such employees may have to be
      considered on merits in the light of the principles
 F    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 regulari"e as
      a one time measure, the services of such irregularly
G     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
H
 SURENDRA KUMAR v. GREATER NOIDA INDUSTRIAL 977
   DEVELOPMENT AUTHORITY [R. BANUMATHI, J.]

  be filled up, in cases where temporary employees              A
  or daily wagers are being now employed. The
  process must be set in motion within six months
  from this date. We also clarify that regularization,
  if any already made, but not sub judice, need not
  be reopened based on this judgment, but there                 B
  should be no further by-passing of the
  constitutional requirement and regularizing or
  making permanent, those not duly appointed as per ·
  the constitutional scheme."
                                                                c
      11. Considering the facts of the present case on the
touchstone laid down in Uma Devi's case(supra), 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. D
Admittedly, the appellants were engaged as contractual
employees from 1994 and have completed more than ten
years of continuous service with respondent No.1. They
continued in service not by the orders of the Court!Tribunal,
but by the decision of the respondents. The appellants were E
regularised as per the policy decision dated 16.04.2003 taken
by respondent No. 1 and approved by the State Government
vide letter dated 05.03.2008. Since the appointment of the
appellants were made pursuant to the policy of regularization,
the High Court was not right in quashing the appointment of F
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 regularization with retrospective effect from
20.11.2002 and the consequential seniority.
                                                               G
     12. 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 6.08.2010. Even though advertisement dated
                                                                H
978          SUPREME COURT REPORTS               [2015] 6 S.C.R.


A     20.11.2002 indicated that there were vacancies, the policy
  of regularization of contractual employees was approved by
  the State Government only on 05.03.2008. The appellants
  were appointed on the post of Assistant Manager (Civil) only
  pursuant to the policy decision of the respondents for
B regularisation of contractual employees and thus, the
  appellants cannot seek for regularization 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
C 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 6.08.2010 and also joined the post, the appellants
  cannot turn round and claim regularisation with retrospective
0
  effect.

       13. The judgment of the High Court quashing the
  appointment of the appellants vide appointment order dated
  06.08.2010 is set aside. However the appellants' plea for
E regularization with retrospective effect is declined.

          14. In the result, the appeal is allowed in part in the
      above terms. There shall be no order as to costs.

 F    Nidhi Jain                               Appeals partly allowed.