Supreme Court of India
AMARENDRA KUMAR MOHAPATRA & ORS.versusSTATE OF ORISSA & ORS.
- Citation
- 2014 INSC 113
- Decided
- 19 February 2014
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
The Act is a regularisation enactment, constitutionally valid, and Section 3(2) validly confers seniority from the date of ad‑hoc appointment; the High Court’s striking down of the Act is set aside.
Summary
The State of Orissa appointed thousands of unemployed graduate engineers as Stipendiary Engineers on an ad‑hoc basis and later as Assistant Engineers, later regularising them through the Orissa Service of Engineers (Validation of Appointment) Act, 2002. Several writ petitions challenged the Act on the grounds that it was a validation law, unconstitutional, and discriminated against degree‑holder Junior Engineers appointed as ad‑hoc Assistant Engineers. The Supreme Court held that the Act was not a validation enactment but a regularisation scheme, that it did not violate Articles 14 and 16, and that Section 3(2) granting seniority from the date of ad‑hoc appointment was valid. Consequently, the High Court’s order striking down the Act was set aside and the degree‑holder Junior Engineers were also entitled to regularisation with seniority determined from their initial ad‑hoc appointment. The Court also clarified the inter‑se seniority ranking among regularised officers.
Issues considered
- What is the true nature and purport of the Orissa Service of Engineers (Validation of Appointment) Act, 2002 – is it a validation enactment or a regularisation scheme?
- Does the Act, if it merely grants regularisation, suffer from any constitutional infirmity under Articles 14 and 16?
- Does Section 3(2) of the Act, which grants seniority from the date of ad‑hoc appointment, violate any constitutional provision?
Legislation cited
- Orissa Service of Engineers (Validation of Appointment) Act, 2002s. 3(1), s. 3(2), s. 3(3)
Subjects
regularisationvalidation actad hoc appointmentArticle 14Article 16senioritypublic service lawunder‑inclusionclassificationOrissa Service of Engineers Act
Judgment
[2014f 2 S.C.R. 1.031
AMARENDRA KUMAR MOHAPATRA & ORS. A
v.
STATE OF ORISSA & ORS.
(Civil Appeal No. 8322 of 2009)
FEBRUARY 19, 2014
B
[T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]
OR/SSA SERVICE OF ENGINEERS (VALIDATION OF
APPOINTMENT) ACT, 2002:
c
Nature and purpose of the Act - Held: The Act cannot be
said to be a validating enactment - The enactment in the case
at hand deals with the law relating to regularisation of
incumbents holding. public office on ad hoc or temporary
basis, much in the same way as regularisation of such 0
temporary appointments is ordered in terms of a scheme for
that purpose - Legislation under challenge was not a
Validation Act as it purported to be but an enactment that
regularised the appointments of graduate Stipendiary
Engineers working as ad hoc Assistant Engineers as E
Assistant Engineers - Interpretation of statutes - Title of
enactment.
Act granting regularisation of ad hoc Stipendiary
Engineers - Constitutional validity of - Held: Legislation under
challenge does not suffer from any constitutional infirmity and F
High Court was in e"or in having struck it down - Impugned
judgment of High Court set aside.
Regularisation of ad hoc Stipendiary Engineers - Held :
The appointment process of unemployed degree holders G
started with the resolution passed by State Government - The
resolution further envisaged their absorption in .service after
a period of two years -Further, their appointments were made
on the basis of a selection process and on the basis of merit
1031 H
1032 SUPREME COURT REPORTS [2014] 2 S.C.R.
A - Appointment of Stipendiary Engineers on ad hoc basis came
pursuant to the direction from High Court -- Their appointment
were made pursuant to a notification by which everyone who
was unemployed and held an Engineering degree in any
discipline was free to make an application - The process of
B ·appointment was at no stage questioned before the court - It
cannot be said that there was complete arbitrariness in the
manner of such appointments so as to violate Arts. 14 and
16 of the Constitution - Constitution of India, 1950 - Arts. 14
and 16.
c Regularization of ad hoc Stipendiary Engineers --
Degree holder Junior Engineers -- Held: They were qualified
for appointment as Assistant Engineers as they possessed
degrees from recognised institutions, they were appointed
against the sanctioned posts - Each one of them has worked
D ·for more than 10 years ever since his appointment as ad hoc
Assistant Engineer - Therefore, these appointments of
Stipendiary Engineers on ad hoc basis cannot be said to be
illegal so as to fall beyond the purview of the scheme
envisaged in Umadevi's case, which permitted regularisation
E of iffegular appointments and not illegal appointments - Entry
of degree holder Junior Engineers as Stipendiary Engineers.
and later as Assistant Engineers cannot be said to be through
"the backdoor" -- Legislative enactment granting such
regularisation does not call for interference at this late stage
F when those appointed or regularised have already started
retiring having seNed their respective departments, in some
cases for as long as 22 years.
Regularisation of degree holder Junior Engineers - Held
G : The writ petitioners cannot be said to be similarly situated
as the Stipendiaries only because they were also working as
ad hoc Assistant Engineers - A challenge based on "under
inclusion" is not readily accepted by courts - However, degree
holder Junior Engineers currently working as ad hoc Assistant
H Engineers are entitled to the relief of regularisation in seNice,
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1033
STATE OF ORISSA & ORS.
having regard to the fact that they have rendered long years A
of service as Assistant Engineers on ad hoc basis for 17 to
18 years in some cases.
ss.3(2) and 3(3) - Seniority - Granted to Stipendiary
Assistant Engineers from the date of their ad hoc appointment
8
as such - Held: To this extent the Court can suitably mould
the relief - In the circumstances, the degree holder Junior
Engineers currently working as Assistant Engineers on ad hoc
basis i.e. writ petitioners in High Court, are entitled to the relief
of regularisation with effect from the same date as the
Validation Act granted such regularisation to Stipendiary C
Engineers - There is noillegality or constitutional infirmity in
the provisions of s. 3(2) or s. 3(3) of the impugned legislation
- Similarly, degree holder Junior Engineers promoted as
Assistant Engineers on ad hoc basis, who have been held to
be entitled to regularisation on account of their length of D
servite should also be given a similar benefit - But all such
regularised Assistant Engineers from Stipendiary Stream and
from Junior Engineers category would together rank below the
promotee Assistant Engineers.
E
The Government of Orissa, in order to address the
problem of 2000 unemployed degree holders in various
branches of Engineering, invited applications for
empanelment as Stipendiary Engineers for placement in
different Government departments, projects, public sector F
undertakings, co-operative societies and industries etc.
The applications received were considered by the
Committee constituted for the purpose, and
appointments of the candidates found suitable were
made between 1991 to 1994. On 12.3.1996, the G
Government passed a resolution stating that the
Stipendiary Engineers could be appointed as Assistant
Engineers on ad hoc basis in the pay scale of Rs.2000-
3500/- or any similar post against regular vacancies. This
resolution was given effect to consequent upon the H
1034 SUPREME COURT REPORTS [2014] 2 S.C.R.
A orders dated 18-12-1996 passed by the High Court in
Jayanta Kumar Dey and Ors. v. State of Orissa and Ors.
Accordingly, the Stipendiary Engineers were appointed
as Assistant Engineers on ad hoc basis between the
years 1997 and 2001. Further, 86 degree holder Junior
s Engineers were promoted on ad hoc basis as Assistant
Engineers against 5% vacancies. The State Legislature
enacted Orissa Service of Engineers (Validation of
Appointment) Act, 2002 regularising the services of 881
ad hoc Assistant Engineers from the date of
c commencement of the Act. The Act further made
provisions for their inter se seniority and counting of their
service for the purpose of pension, leave and increment.
Several writ petitions were filed, challenging the
validity of the 2002 Act. The Division Bench of the High
D Court by its order date'd 15-10-2008 struck down the
impugned Legislation.
In the instant appeals, the following questions of law
arose for consideration:
E "1. What is the true nature and purport of the
impugned legislation? More particularly is the
impugned legislation a vandation enactment or
is it an enactment that grants regularisation to
those appointed on ad hoc basis?
F
2. If the impugned enactment simply grants
regularisation, does it suffer from any
constitutional infirmity?
3. Does Section 3(2) of the impugned legislation
G
suffer from any unconstitutionality, insofar as
the same purports to grant Stipendiary
Assistant Engineers seniority with effect from
the date they were appointed on ad hoc
basis?"
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1035
STATE OF ORISSA & ORS.
Allowing the appeals, the Court A
HELD:
Re. Question No.1
1.1 Two essentials identified by this Court for any B
legislation that purports to validate any Act, rule, action
or proceedings are: (a) The legislature enacting the
Validation Act should be competent to enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act
or the proceedings needs to be removed. [para 23] [1062· C
C-D]
Shri Prithvi Cotton Mills Ltd. and Ann v. Broach Borough
=
Municipality and Ors. 1970 (1) SCR 388 (1969) 2 SCC 283;
Hari Singh & Others v. The Military Estate Officer and Anr.
0
=
1973 (1) SCR 515 (1972) 2 SCC 239; and ITW Signode
India Ltd. v. Collector of Central Excise 2003 (5) Suppl. SCR
=
751 (2004) 3 sec 48 • relied on.
Black's Law Dictionary (9th Edition, Page No. 1545) -
referred to E
1.2 Judicial pronouncements regarding validation
laws generally deal with situations in which an act, rule;
action or proceedings has been found by a court of
competent jurisdiction to be invalid and the legislature F
has stepped in to validate the same. [para 25] [1063-D]
Madan Mohan Pathak v. Union of India 1978 (3) SCR
=
334 (1978) 2 SCC 50, Indian Aluminium Co. etc. v. State
of Kera/a and Ors. 1996 (2) SCR 23 = (1996) 7 sec 637,
· Meerut Development Authority etc. v. Satbir Singh and Ors. G
etc. 1996 (6) Suppl. SCR 529 = (1996) 11 sec 462, 1.N.
Saksena v. State of Madhya Pradesh 1976 (3) SCR 237 =
(1976) 4 SCC 750, Virender Singh Hooda and Ors. v. State
=
of Haryana and Anr. 2004 (5) Suppl. SCR 720 (2004) 12
SCC 588 and State of Bihar and Ors. v. Bihar Pensioners H
1036 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Samaj (2006) 5 SCC 65; M.P. V. Sundararamier & Co. v.
State of A.P. & Anr. AIR 1958 SC 468- referred to.
Vacher and Sons Ltd. v. London So9iety of Compositors
[1913) AC 107- referred to.
B 1.3 In the case at hand, the State Government had not
suffered any adverse judicial pronouncement to
necessitate a Validation Act. The title of the impugned
Legislation all the same describes the legislation as a
Validation Act. The title of a statute is no doubt an
c important part of an enactment and can be referred to for
determining the general scope of the legislation. But the
true nature of any such enactment has always to be
determined not on the basis of the label given to it but
on• the basis of its substance. [para 26) [1064-D-F]
D Maxwell on Interpretation of Statutes (12th Edn., page
6), referred to.
1.4 The impugned legislation regularises the
appointment of Stipendiary Engineers as Assistant
Engineers. However, there is no rationale behind the
E Legislature considering it necessary to validate the ad
hoc appointments, especially when such appointments
had been made by the Government pursuant to the
directions issued by the High Court in the writ petitions
filed by the Stipendiary Engineers. It is quite evide.nt that
F the legislation was in substance aimed at regularising the
services of such persons as had worked in the capacity
of Assistant Engineers. Existence of an illegal act,
proceedings or rule or legislation is the sine qua non for
any validating legislation to validate the same. There can
G be no validation of what has yet to be done, suffered or
enacted. A legislation that did not validate any such non-
existent Act, but simply appointed the ad hoc Assistant
Engineers as substantive employees of the State by
resort to a fiction, could not be described as a validating
H law. [para 29-32) [1066-B-C, F; 1067-G; 1068-B]
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1037
STATE OF ORISSA & ORS.
1.5 The enactment in the case at hand deals with the A
law relating to regularisation of incumbents holding
public office on ad hoc or temporary basis, much in the
same way as regularisation of such temporary
appointments is ordered in terms of a scheme for that
purpose. It is trite that what could be achieved by the B
Government by exercise of its executive power could
certainly be achieved by legislation, as indeed it has been
achieved in the case at hand. Thus the legislation under
challenge was not a Validation Act as it purported to be
but an enactment that regularised the appointment of c
graduate Stipendiary Engineers working as ad hoc
Assistant Engineers as Assistant Engineers. [para 33]
[1068-C, G; 1069-A]
Satchindananda Mishra vs. State of Orissa and Ors.
(2004) 8 SCC 599 - held inapplicable. D
Re. Question No.2
2.1 In Umadevi's case, the Constitution Bench has
ruled that regularisation of illegal or irregularly appointed
_ persons could never be an alternative mode of E
recruitment to public service. Such recruitments were, in
the opinion of this Court, in complete negation of the
guarantees contained in Arts. 14 and 16 of the
Constitution. However, this Court did not upset the
regularisations that had already taken place. The ratio of F
the decision in that sense was prospective in its
application. Further, this Court in para 53 of the decision
permitted a one-time exception for regularising services
of such employees as had been irregularly appointed
and had served for ten years or more. [para 34-35] [1069- G
C-0, G-H]
Secretary, State of Karnataka and Ors. v. Umadevi (3)
=
and Ors. 2006 (3) SCR 953 (2006) 4 sec 1 - referred to.
2.2 In the instant case, Diploma holder Junior H
1038 SUPREME COURT REPORTS [2014) 2 S.C.R.
A Engineers were not eligible to be appointed as Assistant
Engineers in the direct recruitment quota. They could not
make a grievance against regularisation simply because
of the fact that those regularised may figure above them
in seniority. Seniority is an incident of appointment to the
B cadre which must be regulated by the relevant rules. Any
possible prejudice to diploma holders in terms of
seniority would not, therefore, make the regularisation
unconstitutional or illegal and beyond the purview of para
53 in Umadevi's case. [para 38] [1072-F-H; 1073-A]
C 2.3 The decision in Umadevi's case permitted
regularisation of irregular appointments and not illegal
appointments. The decision in Umadevi's case summed
up the following three essentials for regularisation (1) the
employees worked for ten years or more, (2) that they
D have so worked in a duly sanctioned post without the
benefit or protection of the interim order of any court or
tribunal and (3) they should have possessed the minimum
qualification stipulated for the appointment. Subject to
these three requirements being satisfied, even if the
E appointment process did not involve open competitive
selection, the appointment would be treated irregular and
not illegal and thereby qualify for regularisation. [para 40-
41] [1073-F; 1074-B-D]
State of Kamataka v. M.L. Kesari and Ors. 2010 (9) SCR
F 543 =(2010) 9 SCC 247 - referred to.
2.4 As regards the degree holder Junior Engineers,
they were qualified for appointment as Assistant
Engineers as they possessed degrees from recognised
G institutions, they were appointed against the sanctioned
posts. The information provided by the State
Government, in fact, suggests that each one of them has
worked for more than 10 years ever since his
appointment as ad hoc Assistant Engineer. Therefore,
these appointments of the Stipendiary Engineers on ad
H hoc basis cannot be said to be illegal so as to fall beyond
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1039
STATE OF ORISSA & ORS.
the purview of the scheme envisaged in Umadevi's case. A
[para 42] (1075-B-E]
2.5 Thus, not only because in Umadevi's case this
Court did not disturb the appointments already made or
regularisation granted, but also because the decision 8
itself permitted regularisation in case of irregular
appointments, the legislative enactment granting such
regularisation does not call for interference at this late
stage when those appointed or regularised have already
started retiring having served their respective C
departments, in some cases for as long as 22 years. [para
43) (1075-F-G]
2.6 The appointment process of unemployed degree
holders started with the resolution passed by the State
Government. The resolution further envisaged their D
absorption in service after a period of two years. Further,
their appointments were made on the basis of a selection
process and on the basis of merit. A reference to the
Public Service Commission was no doubt considered
unnecessary but the fact remains that their appointment E
were made pursuant to a notification by which everyone
who was unemployed and held an Engineering degree
in any discipline was free to make an application. What
is significant is that the empanelment of the unemployed
degree holders and the process of their appointment was F
at no stage questioned before the court. It is not,
therefore, wholly correct to suggest that the entry of the
degree holder Junior Engineers as Stipendiary Engineers
and later as Assistant Engineers was through "the
backdoor". The process of selection and appointments G
may not have been as per the relevant rules as the same
ought to have been, but it is far from saying that there was
complete arbitrariness in the manner of such
appointments so as to violate Arts. 14 and 16 of the
Constitution. [para 44) (1075-H; 1076-A-H]
H
1040 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 2.7 Besides, the appointment of Stipendiary
Engineers was at the level of Junior Engineers. In the
absence of any finding from the High Court on the
subject and in the absence of any cogent material on
record, it cannot be held that the appointment of the
B Stipendiary Engineers was from the beginning itself as
Assistant Engineers. It is also noteworthy that the
appointment of the Stipendiary Engineers on ad hoc
basis came pursuant to the direction from the High Court
which is yet another reason why it is not open to the
c Stipendiary Engineers to claim that they were at all points
of time working as Assistant Engineers. However, the
appointment of graduate engineers as Stipendiaries was
on a clear representation, as is evident from the
Government resolution and its counter affidavit before
the High Court, that they would be eventually absorbed
0
in service as Assistant Engineers. [para 45-46] [1077-A-
E, HJ
2.8 As regards the claim of degree holder Junior
Engineers that they were discriminated in regularisation,
E trite it is to say at the outset that a piece of legislation
carries with it a presumption of constitutional validity.
Also settled is the principle that Art. 14 does not forbid
reasonable classification. In the instant case, the
beneficiaries of the impugned legislation- constitute a
F class by themselves inasmuch as they were un-employed
degree holders appointed as Stipendiary Engineers on
a consolidated pay. The method of their employment was
also different inasmuch as although they were selected
on the basis of inter-se merit, the process of selection
G itself was not conducted by the Public Service
Commission. Their appointment as ad hoc Assistant
Engineers also came pursuant to a direction issued by
the High Court no matter the direction itself was based
on a resolution passed by the State Government that
H provided for such appointments upon proof of
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1041
STATE OF ORISSA & ORS.
satisfactory performance. The object underlying the A
legislation evidently being to ensure continued utilisation
of the services of such Stipendaries appointed on ad hoc
basis as Assistant Engineers, there was a reasonable
nexus between the classification and the object sought
to be achieved. [para 49 and 52) [1079-C; 1082-E-H] B
State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284
=AIR 1952 SC 75; Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar and Ors. 1959 SCR 279 =AIR 1958 SC 538); Re:
The Special Courts Bill, 1979 (2) SCR 476 = (1979) 1 SCC
380 • referred to. C
2.9 The writ petitioners cannot be said to similarly
situated as the Stipendiaries only because they were also
working as ad hoc Assistant Engineers. The legislation ·
does not aim at regularising all ad hoc Assistant 0
Engineers regardless of the circumstances in which such
appointments came about. The impugned legislation,
however, has limited its beneficence to ad hoc Assistant
Engineers who came in as Stipendiary Engineers
pursuant to a policy decision of the State Government E
that aimed at utilising their services and dealing with the
unemployment problem in the State. That being the
object, ad hoc Assistant Engineers appointed by othe~.
modes or in circumstances other than those in which
Stipendiaries entered the service, cannot cry foul or invite
the wrath of Art. 14 upon the legislation. [para 52] [1083- F
C-F]
2.10 A challenge based on "under inclusion" is not
readily accepted by courts. Therefore, the legislation
under challenge does not suffer from any constitutional G
infirmity and that the High Court was in error in having
struck it down. [para 53 and 56) [1084-B; 1087-B]
State of Gujarat and Anr. v. Shri Ambica Mills Ltd.,
Ahmedabad and Anr. 1974 (3) SCR 760 = (1974) 4 SCC 656;
The Superintendent and Remembrancer of Legal Affairs, · H
1042 SUPREME COURT REPORTS [2014] 2 S.C.R.
A West Bengal v. Girish Kumar Navalakha and Ors. 1975 (3)
SCR 802 = (1975) 4 SCC 754; Ajoy Kumar Banerjee and
Ors. v. Union of India and Ors. 1984 (3) SCR 252 = (1984) 3
sec 127 - relied on.
2.11 However, the degree holder Junior Engineers
8
currently working as ad hoc Assistant Engineers are
entitled to the relief of regularisation in service, having
regard to the fact that they have rendered long years of
service as Assistant Engineers on ad hoc basis for 17 to
18 years in some cases. They have served for almost a
C lifetime and held substantive vacancies no matter on ad
hoc basis. To revert them at this distant point of time
would work hardship to them. Besides, one cannot
ignore the march of events especially the fact that
stipendaries appointed at a later point of time with the
D same qualifications and pursuant to the very same
Government policy as took shape for both the categories,
have been regularised by the Government through the
medium of a legislation. To this extent this Court can
suitably mould the relief. In the circumstances, this Court
E holds the degree holder Junior Engineers currently
working as Assistant Engineers on ad hoc basis i.e. writ
petitioners in the High Court, entitled to the relief of
regularisation with effect from the same date as the
Validation Act granted such 'i-egularisation to the
F Stipendiary Engineers. [para 57] [1087-C-D; 1088-C-E]
Re. Question No.3
3.1 Though the initial appointment of ad hoc
Assistant Engineers in the instant case was not made by
G following the procedure laid down by the Rules, the
appointees had continued in the posts uninterruptedly till
the Validation Act regularised their services. There is no
room for holding that grant of seniority and other benefits
referred to in s. 3(3) of the impugned Act was legally
H impermissible or it violated any vested right of the in-
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1043
STATE OF ORISSA & ORS.
service Assistant Engineers appointed from any other A
source. There is no illegality or constitutional infirmity in
the provisions of s. 3(2) or s. 3(3) of the impugned
legislation. [para 65 and 70] (1092-B-D; 1097-B]
Direct Recruit Class II Engineering Officers' Association B
=
v. State of Maharashtra and Ors. 1990 (2) SCR 900 (1990)
2 SCC 715; Union of India and Anr. etc. etc. v. Lalita S. Rao
and Ors. etc. etc. 2001 (2) SCR 1059 = (2001) 5 sec 384;
State of Andhra Pradesh & Anr. V. K.S. Muralidhar.& Ors.
1992 (1) SCR 295 = (1992) 2 SCC 241; and Narender
Chadha & Ors. v. Union of India & Ors. 1986 (1) SCR 211 = C
(1986) 2 sec 157 - relied on.
3.2 However, there is no reason why a similar
direction regarding the writ-petitioners degree holder
Junior Engineers promoted as Assistant Engineers on ad D
hoc basis, who have been held to be entitled to
regularisation on account of their length of service
should also not be given a similar benefit. But all such
regularised Assistant Engineers from Stipendiary Stream
and from Junior Engineers category would together rank E
below the promotee Assistant Engineers. [para 71] (1097-
B-C, E-F]
4. In the result this Court passes the following order:
(1) The impugned judgment and order dated 15- F
10- 2008 passed by the High Court is set aside.
(2) The services of the writ-petitioners degree
holders Junior Engineers working as
Assistant Engineers on ad hoc basis and all G
those who are similarly situated and promoted
as ad hoc Assistant Engineers against the
proposed 5% quota reserved for in-service
Junior Engineers degree holder shall stand
regularized w.e.f. the date Orissa Service of H
1044 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Engineers (Validation of Appointment) Act,
2002 came into force. It is further directed that
such in-service degree holder Junior
Engineers promoted as Assistant Engineers
on ad hoc basis shall be placed below the
B promotees and above the Stipendiary
Engineers regularized in terms of the
impugned Notification. The inter se seniority of
the Stipendiary Engineers regularized as
Assistant Engineers under the impugned
c Legislation and Junior Engineer degree
holders regularized in terms of this order shall
be determined on the basis of their date of first
appointment as Assistant Engineers on ad
hoc basis. [para 75] (1099-C-H; 1100-A]
D Case Law Reference:
1973 (1) SCR 515 relied on para 22
2003 (5) Suppl. SCR 751 relied on para 22
E 1970 (1) SCR 388 relied on para 23 ..
1978 (3) SCR 334 referred to para 25
1996 (2) SCR 23 referred to para 25
1996 (6) Suppl. SCR 529 referred to para 25
F
1976 (3) SCR 237 referred to para 25
2004 (5) Suppl. SCR 720 referred to para 25
(2006) 5 sec 65 referred to para 25
G para 27
AIR 1958 SC 468 referred to
(1913] AC 107 referred to para 28
2004 (8) sec 599 held inapplicable para 33
H 2006 (3) SCR 953 referred to para 34
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1045
STATE OF ORISSA & ORS.
2010 (9) SCR 543 referred to para 41 A
1952 SCR 284 referred to para 49
1959 SCR 279 referred to para 4S
1979 ( 2 ) SCR 476 referred to para 49
B
1974 ( 3 ) SCR 760 relied on para 53
1975 ( 3 ) SCR 802 relied on para 54
1984 ( 3 ) SCR 252 relied on para 55
c
1990 ( 2) SCR 900 relied on para 62
2001 ( 2) SCR 1059 relied on para 66
1992 ( 1 ) SCR 295 relied on para 67
1986 ( 1 ) SCR 211 relied on para 68 D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8322 of 2009.
From the Judgment and Order dated 15.10.2008 of the
High Court of Orissa at Cuttack in WPC No. 11093 of 2006. E
WITH
Civil Appeal No. 8323 of 2009.
Civil Appeal No. 8324 of 2009. F
Civil Appeal No. 8325 of 2009.
Civil Appeal No. 8326 of 2009.
Civil Appeal No. 8327 of 2009. G
Civil Appeal No. 8328 of 2009.
Civil Appeal No. 8329 of 2009.
Civil Appeal No. 8330 of 2009. H
1046 SUPREME COURT REPORTS [2014) 2 S.C.R.
A Civil Appeal No. 8331 of 2009.
Civil Appeal No. 1768 of 2006.
Civil Appeal No. 1940 of 2010.
B L. Nageshwar Rao, ASG, Rajiv Dhavan, P.S. Narasimha,
Pallav Shishodia, Ashok Kumar Pande, J.N. Dubey, Manish
Goswami (for Map & Co.), Radha Shyam Jena, Rajneesh
Bhaskar, Aishwarya Bhati, Gp. Capt. Karan Singh Bhati,
Shibashish' Misra, Suvinay Dash, D. Abhinav Rao, Shivraj
c Gaonkar, Lingaraj Sarangi, S.R. Setia, C.K. Sucharita, Y.
Prabhakara Rao for the Appellants.
S.K. Dholakia, Jayant Das, Ashok Kumar Pande, J.N.
Dubey, P.N. Misra, P.S. Patwalia, Fakhruddin, M.K. Das, N.
Ramachandran, Lingaraj Sarangi, Rajneesh Bhaskar, S.R.
D Setia, Abhisth Kumar, U.C. Mohanty, P.K. Pattanaik, Nikilesh
Ramachandran, Raj Kikshor Choudhary, S. Kamal Mishra,
Ritesh Agrawal, R. Bhaskar, Sadaf Rehman, Umesh Chandra
Mohanty, A.P. Mohanty, Sibo Sankar Mishra, Kumar Gaurav,
P.K. Pattanaik, S.K. Patni, Kumar Gourab, B.N. Dubey,
E Debasis Misra, Sanjeeb Panigraaphi, Siddhartha Chowdhary,
L. Nidhram Sharma, Kirti Renu Mishra, Apurva Upmanyu, C.K.
Sucharita, Brij Bhusan, Manoj K. Das, M.C. Dhingra, Jitendra
Kumar for the Respondents.
F The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Common questions of law arise for
consideration in these appeals which were heard together and
shall stand disposed of by this common order. The primary
issue that falls for determination touches the Constitutional
G validity of what is described as the Orissa Service of Engineers
(Validation of Appointment) Act, 2002 by which appointment
of 881 ad hoc Assistant Engineers belonging to Civil,
Mechanical and Electrical Engineering Wings of the State
Engineering Service have been validated, no matter all such
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1047
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
appointments were in breach of the Orissa Service of A
Engineers' Rules, 1941. The High Court of Orissa has in a
batch of writ petitions filed before it struck down the impugned
Legislation on the ground that the same violates the
fundamental rights guaranteed to the writ petitioners under
Articles 14 and 16 of the Constitution. We shall presently B
. formulate the questions that arise for determination more
specifically but before we do so, we consider it necessary to
set out the factual matrix in which the entire controversy arises.
2. In a note submitted to the State Cabinet on 15th May C
1990 the problem of over 2000 unemployed degree-holders in
various branches of Engineering who had passed out from
several Engineering colleges since the year 1984 was
highlighted and a proposal for utilizing the manpower so
available for the benefit of the State economy mooted. The
proposal envisaged a twofold action plan for absorbing the D
unemployed graduate Engineers. The first part of the action
plan provided for withdrawal of 127 posts of Assistant
Engineers that had been referred to the Public Service
Commission and advertised by it to be filled up by appointing
unemployed degree holder Engineers in a non-class II rank. E
The second part of the proposal envisaged creation of 614
posts of Junior Engineers in different Departments to
accommodate the unemployed degree holders. These 614
posts comprised 314 new posts proposed to be created, one
for each block in the State. Similarly, 100 posts were to be F
created in the Irrigation Department for survey and investigation
to accelerate the pace of investigation. Yet another 200 posts
were to be created for initial infrastructure work in connection
with Paradip Steel Plant. .
G
3. The note submitted to the Cabinet suggested that
degree-holder Engineers could be recruited against all the 741
(127 + 614) posts mentioned above to be designated as Junior
Engineers or Stipendiary Engineers in the first phas"e on a
consolidated stipend of Rs.2,000/- per month. The proposal
H
1048 SUPREME COURT REPORTS [2014) 2 S.C.R.
A further envisaged absorption of Engineers so appointed on
regular basis after two yeats, after assessing their performance.
4. The Council of Ministers considered the proposal
mooted before it and approved the same. Decision taken in
the 2nd Meeting of the Council of Ministers held on 15th May,.
8
1990 with regard to 'Problems of Un-employed Degree
Engineers' was forwarded to the Secretaries to the Government
in terms of a memo dated 21st May 1990, the relevant portion
whereof reads as under:
C "Item No.5: Problems of Un-employed
Degree Engineers.
The problems were discussed at length and the
following decisions were taken.
D i) All posts of Assistant Engineers referred to
the Orissa Public Service Commission and
advertised by them may be withdrawn.
ii) 314 posts of Stipendiary Engineers may be
E created one in each Block.
iii) 100 posts of Stipendiary Engineers may be
created in the Irrigation Department for
survey and investigation.
F iv) 200 posts of Stipendiary Engineers may be
created for the initial infrastructure work of
Paradip Port-based Steel Plant.
v) In all, 741 posts of Stipendiary Engineers
G will be available, for recruiting from the
unemployed Degree Engineers. A
Stipendiary Engineer may be paid a
consolidated stipend of Rs. 2, 0001- per
month. Absorption into regular posts may
H be considered after two years on the basis
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1049
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
of their performance. A
vi) The criteria for selection are to be worked
out separately, so that Stipendiary
Engineers are recruited on merit basis batch
by batch. B
vii) The rest of the unemployed Degree
Engineers are proposed to be engaged in
various construction works by formation of
Groups Companies and Cooperatives,
which will get preference in award of work by C
the Department/Corporations."
5. As a sequel to the above decision, the Government
invited applications from unemployed graduate Engineers of all
disciplines for empanelment as Stipendiary Engineers for D
placement in different Government departments, projects,
public sector undertakings, co-operative societies and
industries etc. By another resolution dated -22nd September
1990, the Government stipulated the procedure to be adopted
for discipline-wise empanelment of the unemployed graduate E
Engineers for appointment as Stipendiary Engineers against
the vacancies in different departments and undertakings. The'
procedure evolved was to the following effect:
"2. Government have since decided that the following
procedure should be adC?pted for discipline wise F
empanelment of the unemployed Graduate Engineers for
appointment as Stipendiary Engineers against the
vacancies in different government Department and
undertakings:
G
(1) 25 percent of the posts shall be filled up on merit
basis and for this purpose equal number will be
taken from each batch starting from the batch of
1984 up to the batch of 1989.
H
1050 SUPREME COURT REPORTS [2014] 2 S.C.R.
A (2) A point system will be adopted for empanelment
on merit basis, for which out of a total 100 marks
the performance in HSC will be given 15 marks,
the performance in I. Sc. and Diploma will be
given 25 marks and the performance at the final
B Engineering Degree Examination will be given 60
marks.
(3) After the empanelment on merit basis is done for
25% of the vacancies, empane/ment will be done
batch-wise starling from 1984 for the remaining
c vacancies. The Inter se position of candidates in
the batch wise panel will again be on the basis of
merit computed as in (2) above.
(4) There shall also be separate empanelment on
D merit basis for SC/ST, Physically handicapped
and ex-servicemen covering all the batches to
facilitate filling up of reserved vacancies. The rules
regarding reservation of vacancies will apply to'
these appointments.
E
(5) Applications received on or before 10. 7.1990 will
alone be considered for empanelment. Similarly
graduate Engineers who have passed out before
1984 or those who have obtained degree after
1989 will not be eligible for empanelment.
F
(6) The following committee will underlake the work of
.scrutiny and empanelment of the unemployed
graduate Engineers.
G. d. Secretary Steel & Mines Chairman
of the
Committee
di. Engineer-in-Chief and Member
Secretary, Works
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1051
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
dii. Engineer-in-Chief (Irrigation) A
Member
diii. Chief Engineer Electricity Member
and electrical Projects
div. Chief Engineer, PHO Member 8
dv. Chief Engineer, RLEGP Member
dvi. Managing Director, IP/COL Convenor
(7) The panels from the Scrutiny Committee will be C
maintained in the Department of Planning and
Coordination who will sponsor candidates to
various Government Departments and
Undertakings according to the requirement as
indicated by them. The undertakings will send D
indents through the concerned Administrative
Departments.
(8) As regards Civil & Mechanical Engineers, the
Government Departments will intimate the E
requirement to Irrigation Department who will the
panel names from P & C Department to fill up the
vacancies. In case of these Engineers, the
appointment orders will be issued by the
Department of Irrigation and when required they F
will be sent on deputation to the other
Departments.
(9) If there is no candidate to be recommended
against reserve vacancies for the reason that the
panels of such candidates are exhausted, the G
Department of P & C will give a non-availability
certificate. to the indenting organizations so that
they can take steps to de-reserve the vacancies
and give appointment to general candidates in
their place. H
1052 SUPREME COURT REPORTS [2014] 2 S.C.R.
A (10) The normal requirement for new appointment
under Government viz. production of original
certificates, Medical Certificate, Schedule Castel
Scheduled Tribe Certificate etc. shall be
applicable to these appointments and the
B verification of these documents shall be the
responsibility of the Employing Departments/
Undertakings.
(11) In some cases relaxation of age /imitforentry into
Government service may have to be done and
c this will be attended to by the Employing
Departments/Undertakings as a matter of course.
ORDER
D Ordered that the Resolution be published in the
Orissa Gazette for general information.
Ordered also that copies of the Resolution be
forwarded to all Departments of Government, Member,
Board of Revenue, All Heads of Departments, All District
E Collectors, Secretary to Governor, Registrar, Orissa High
Court Secretary, OPSC, Principal Secretary to the Chief
Minister and Director of Printing, Stationary and
Publication, Orissa Cuttack and 50 copies of Planning
& Coordination Department.
F
BY ORDER OF THE GOVERNOR
S. SUNDARARANJAN
ADDITIONAL DEVELOPMENT COMMISSIONER
AND
G SECRETARY TO GOVERNMENT"
6. Applications received from unemployed graduate
Engineers for appointment as Stipendiary Engineers were in
terms of the above resolution and considered by the Committee
constituted for the purpose and appointment of eligible
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1053
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
candidates found suitable for such appointments made A
between 1991 to 1994. Appointment orders issued to the
candidates made it clear that degree holder Engineers were
being engaged as Stipendiary Engineers in the concerned
Department and shall be paid a consolidated stipend of
Rs.2000/- only. It further stated that the engagement was purely B
temporary and terminable at any time and without any notice.
7. In August 1992, Minister for Irrigation, Government of
Orissa mooted a further proposal to the following effect:
(a) The promotion quota may continue at 33% of C·
annual vacancy.
(b) In addition, there should be a selection quota of
30%. This quota will have two components - 5%
for Junior Engineers who have acquired an D
Engineering Degree or equivalent qualffication
and 25% which will be earmarked exclusively for
Stipendiary Engineers.
(c) Direct recruitment quota will be 37%. Stipendiary
Engineers can also compete against this quota. E
They may be allowed age relaxation up to five
years. This will ensure that Stipendiary Engineers
have the facility of recruitment, both against the
selection quota and direct recruitment quota.
F
(d) Departments may not fill up vacancies in the post
of Stipendiary Engineers caused by appointment
of the incumbents as Assistant Engineers, if they
want to do so, they may obtain candidates from the
panel of the P & C Department. G
(e) This will be a transitional provision because
appointment of Stipendiary Engineers may not be
a permanent feature. After such time as,
Government may decide the present quotas of
H
1054 SUPREME COURT REPORTS [2014] 2 S.C.R.
A recruitment will be restored.
(f) Public Sector Undertakings should frame their own
recruitment rules which should broadly correspond
to Government's policy of promotion of Junior
Engineers and appointment of Stipendiary
B
Engineers through selection. If there are no
Stipendiary Engineers or Junior Engineers with
Degree or equivalent qualification quotas for these
categories will be added to direct recruitment
quota."
c
8. It is evident from the above that while the Government
did not propose to reduce the 33% quota reserved for
promotees, out of the remaining 67% meant for direct
recruitment, it proposed to carve out what was described as
D selection quota of 30% for absorption of the Stipendiary
Engineers to the extent of 25% of the vacancies and degree
holder Junior Engineers against the remaining 5% of the
vacancies. The balance of 37% of the vacancies was, however,
left to be filled up by direct recruitment from the open market.
E
9. Based on the above, the Government appears to have
made a reference to the Orissa Public Service Commission
on 5th June 1996 for approval of the draft Orissa Engineering
Service (Recruitment & Condition of Service) Rules, 1994
which were already approved by the State Council of Ministers
F .on 3rd December 1994. The Orissa Public Service
Commission, however, struck a discordant note. In its opinion,
since the· Stipendiary Engineers did not constitute a cadre in
the formal sense it was not desirable to treat it as a feeder
grade for Assistant Engineers. So also the proposal to reserve
G 5% of the vacancies in the grade of Assistant Engineers to be
filled by degree holder Junior Engineers from the Subordinate
Service was also considered to be inadvisable. The
Commission opined that since persons with higher
qualifications serve practically in all fields of administration
H including technical services such as Me~ical and Engineering,
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1055
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
it was neither necessary nor desirable to provide for them a A
route for promotion to the higher level except the one available
to all those serving in the feeder grade. In the opinion of the
Commission, the correct way of rewarding those with higher
qualification was to give them advance increments at the time
of entry. The Commission also suggested that if in the opinion B
of the Government the quota for promotion of Junior Engineers
to the level of Assistant Engineers required to be higher than
33% in consideration of the larger body of Junior Engineers
some of whom were degree holders, it could increase the
same to 40%, but the fragmentation of the Junior Engineers into c
degree holders and non-degree holders was not advisable. The
Commission suggested that the remainder of the 60%
vacancies for direct recruitment could be utilized by recruiting
degree holder Engineers from the open market including
Stipendiary Engineers and that candidates could be given 0
suitable weightage while judging their inter se relevant merit.
10. The Government had, in the meantime, passed a
resolution on 12th March. 1996 stating that the Stipendiary
Engineers could be appointed as Assistant Engineers on ad
hoc basis in the pay scale of Rs.2000-3500/- or any similar post E
on ad hoc basis against regular vacancies. It also resolved to
regularize the service of such ad hoc Assistant Er.gineers
through a Validation Act. Some Stipendiary Engineers who
were working in different State Governments and statutory
bodies were also proposed to be appointed to the post of F
Assistant Engineer or equivalent posts carrying the same scale,
subject to their suitability and satisfactory performance. The
relevant portion reads as under:
"In consideration of the above decision of the G
Government, the appointing authority of Departments of
Government will appoint the Stipendiary Engineers of
different disciplines as Assistant Engineers against
existing vacancies of Assistant Engineers on ad hoc
basis for a period of one year, except Civil & Mechanical,
H
1056 SUPREME COURT REPORTS [2014] 2 S.C.R.
A to be appointed on ad hoc basis by the Department of
Water Resources.
xxx xxx xxx
Stipendiary Engineers who are already working in
B different State Government Undertakings, Corporations,,
Semi-Government Organizations & Statutory Boards may
also be appointed as Assistant Engineers or in
equivalent posts carrying the same scale, subject to their
suitability and satisfactory performance. "
c
11. The resolution notwithstanding, the Government does
not appear to have appointed any Stipendiary Engineers as ·
Assistant Engineers on ad hoc basis. Aggrieved, the
Stipendiary Engineers filed O.J.C. Case No.8373 of 1995
D Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for
a writ of mandamus directing the Government to comply with
the resolution and the order issued by it. This petition was
allowed by the Division Bench of the High Court of Orissa at
Cuttack by an order dated 18th December 1996. The High
E Court directed the Government to take expeditious steps to
implement resolution dated 12th March 1996, preferably within
a period of four months. It further directed the State Government
to appoint Stipendiary Engineers as Assistant Engineers in the
scale of Rs.2000-3500 on ad hoc basis. In compliance with the
F directions aforementioned, the Stipendiary Engineers were
appointed as Assistant Engineers on ad hoc basis between
the years 1997 and 2001. What is important is that pursuant
to its initial proposal of allocating 5% vacancies for those
working as degree holder Junior Engineers in different
departments, the Government had between 1996 and 1997
G promoted 86 degree holder Junior Engineers on an ad hoc
basis as Assistant Engineers.
12. Five Stipendiary Engineers working in the Water
Resources Department whose names had been recommended
H along with others for appointment as Assistant Engineers on
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1057
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
ad hoc basis by the Screening Committee set up for the A
purpose in the meantime filed O:J.C. No.1563of1998 before
the Orissa High Court making a grievance that despite the
recommendations made in their favour, the Government had not
appointed them as Assistant Engineers. That petition was
allowed and disposed of by an order dated 6th May, 1998 B
directing the State Government to consider the case of the writ-
petitioners in the light of its earlier order passed in Jayant
Kumar's case (supra). Since the said directions were not
carried out by the Government, two of the Stipendiary Engineers
filed O.J.C. No~.6354 and 6355 of 1999 in which they c
complained about the non-implementation of the directions
issued by the High Court earlier and prayed for their
regularisation. 1his petition was disposed of by·the High Court
by a common order dated 2nd July, 2002 in which the High
Court noted that the petitioners had been appointed as
0
Assistant Engineers on ad hoc basis in the pay scale of
Rs.2000-3500/- by the Water Resources Department
Notification dated 11th December, 1998. The High Court further
held that since the Government was on principle committed to
regularising the appointments of Stipendiary Engineers there E
was no reason why the Government should not treat them as
direct recruits since the year 1991, in which they were
appointed, and compute their service from that year for the
purpose of in-service promotion, pension and other service
benefits except financial benefits and to absorb them on regular
basis according to law. F
13. It was in the above backdrop that the Government
finally came up with a proposal for validation of the appointment
of Stipendiary Engineers as Assistant Engineers.
Memorandum dated 28th November, 2002 referred to G
appointment of 846 Stipendiary Engineers in Civil, 61
Stipendiary Engineers in Mechanical and 25 Engineers in
Electrical wings making a total of 932 Stipendiary Engineers
in different Departments. We are informed at the Bar that the
present number of such Stipendiary Engineers is limited to 881 H
1058 SUPREME COURT REPORTS [2014] 2 S.C.R.
A only as the rest have either resigned, retired or died. The
proposal made in the Memorandum also took note of the
information given by the Orissa Public Service Commission
and the repeated demands of ad hoc Assistant Engineers
engaged from Stipendiary Engineers for regularization. The
B proposal stated that no regular appointments were made by the
Orissa Public Service Commission and that the validation of
appointments of Stipendiary Engineers as Assistant Engineers
will immensely benefit the State in execution of several ongoing
development works. The proposal further stated that having
C rendered more than 10 years of service, these Stipendiary
Engineers currently working as Assistant Engineers on ad hoc
basis will have no avenues for employment as they had already
gone beyond the upper age limit prescribed for direct
recruitment.
D 14. It is in the above backdrop that the State Legislature
eventually enacted Orissa Service of Engineers (Validation of
Appointment) Act, 2002 which comprises no more than three
sections. Section 3 of the legislation reads as under:
E "3(1) Notwithstanding anything contained in the
Recruitment Rules, seven hundred ninety-nine Assistant
Engineers belonging to the discipline of Civil, fifty-seven
Assistant Engineers belonging to the discipline of
Mechanical and twenty-five Assistant Engineers
F belonging to the discipline of Electrical as specified in
the Schedule with their names, dates of birth, dates of
appointment and the names of the Departments under
which they are working on ad hoc basis since the date of
such appointment.shall be deemed to be validly and
regularly appointed under their respective Department of
G
the Government against the direct recruitment quota of
the service with effect from the date of commencement
of this Act and, accordingly, no such appointment shall
be challenged in any court of law merely on the ground
that such appointments were made otherwise than in
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1059
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
accordance with the procedure laid down in the A
Recruitment Rules.
(2) The inter-se-seniority of the Assistant Engineers
whose appointments are so validated shall be
determined according to their dates of appointment on B
ad hoc basis as mentioned in the Schedule and they
shall be enb/ock junior to the Assistant Engineers of that
year appointed to the service in the respective discipline
in their cadre in accordance with the provisions of the
Recruitment Rules.
c
(3) The services rendered by the Assistant Engineers
whose appointments are so validated, prior to the
commencement of this Act shall, subject to the
provisions in sub-section (2), count for the purpose of
their pension, leave and increment and for no other D
pu.rpose."
15. A batch of writ petitions being Writ Petitions No.9514
of 2003, 12495 of 2005, 12495 of 2005, 12627 of 2005, 12706
of 2006 and 8630 of 2006, were then filed by the Degree holder E
Junior Engineers appointed as Assistant Engineers on ad hoc
basis between 1996 and 1997 challenging the validity of the
above legislation, inter alia, on the ground that the same suffered
from the vice of discrimination inasmuch as while ad hoc
Assistant Engineers, who were earlier appointed on stipendiary
F
basis, had been regularised under the Validation Act, those
appointed against 5% quota reserved for Junior Engineers
holding a degree qualification were left out.
16. Writ Petition No.11093 of 2006 was similarly filed by
Junior Engineers who had not been appointed as Assistant G
Engineers claiming parity with Degree holder Junior Engineers
already appointed as Assistant Engineers on ad hoc basis
against 5% quota disapproved by the Public Service
Commission for such Engineers.
H
1060 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 17. Writ Petition No.16742 of 2006 was filed by Junior
Engineers promoted as Assistant Engineers against 33% quota
reserved for such Engineers whose grievance primarily was
that regularisation/validation of the appointments of Stipendiary
Engineers in the cadre of Assistant Engineers was illegal and
B unconstitutional and adversely affected them in terms of their
seniority.
18. The above writ petitions were heard by a Division
Bench of the High Court of Orissa who allowed the same by
its order dated 15th October, 2008 striking down the impugned
C Legislation primarily on the ground that the same brought about
discrimination between Assistant Engineers similarly situate
and, therefore, fell foul of Articles 14 and 16 of the Constitution.
The High Court observed:
D "There is no reason as to why appointments of a few
persons working as Assistant Engineers on ad hoc basis
have been validated ignoring the other similarly situated
persons working on ad hoc basis as Assistant Engineers.
There cannot be discrimination or classification amongst
E the persons working on ad hoc basis or the post of
Assistant Engineers. Once unequal became equal, the
State has no authority to discriminate them and make
equals as unequal."
19. The present appeals assail the correctness of the
F above judgment and order of the High Court. While Civil
Appeals No.8324 to 8331 of 2009 have been filed by the State
of Orissa, Civil Appeals No.8322, 8323 of 2009 and 1940 of
2010 have been preferred by Stipendiary Engineers who are
adversely affected by the judgment of the High Court on account
G of striking down of the Validation Act under which they were
regularized as Assistant Engineers. Civil Appeal No.1768 of
2006 has, however, been filed by the Degree holder Junior
Engineers who have already been promoted as Assistant
Engineers against 33% quota reserved for them to challenge
H the judgment of the High Court in OJC Nos.6354 and 6355 of
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1061
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
1999 directing the State Government to regularise the services A
of the writ-petitioners in those petitions as Assistant Engineers
from the date of their appointment as Stipendiary Engineers
with all consequential benefits except financial benefits.
20. Several intervention ~pplications have been filed in
8
these appeals including intervention application filed by the SC/
ST candidates who were directly recruited as Assistant
Engineers in the year 2004 onwards.
21. We have heard learned counsel for the parties as also
those appearing for the interveners. The following three C
questions of law arise for consideration:
1. What is the true nature and purport of the
impugned legislation? More particularly is the
impugned legislation a validation enactment or is 0
it an enactment that grants regularisation to those
appointed on ad hoc basis?
, 2. If the impugned enactment simply grants
regularisation, does it suffer from any
constitutional infirmity? E
3. Does Section 3(2) of the impugned legislation
suffer from any unconstitutionality, insofar as the
same purports to grant Stipendiary Assistant
Engineers seniority with effect from the date they F
were appointed on ad hoc basis?
Re. Question No.1
22. Black's Law Dictionary (9th Edition, Page No.1545)
defines a Validation Act as "a law that is amended either to G
remove errors or to add provisions to conform to constitutional
requirements". To the same effect is the view expressed by this
Court in Hari Singh & Others v. The Military Estate Officer and
Anr. (1972) 2 sec 239, where this Court said "The meaning
of a Validating Act is to remove the causes for ineffectiveness H·
1062 SUPREME COURT REPORTS [2014) 2 S.C.R.
A or invalidating of actions or proceedings, which are validated
by a legislative measure". In ITW Signode India Ltd. v.
Collector of Central Excise (2004) 3 SCC 48, this Court
described Validation Act to be an Act that "removes actual or
possible voidness, disability or other defect by confirming the
B validity of anything which is or may be invalid".
23. The pre-requisite of a piece of legislation that purports
to validate any act, rule, action or proceedings were considered
by this Court in Shri Prithvi Cotton Mills Ltd. and Ann v. Broach
Borough Municipality and Ors. (1969) 2 SCC 283. Two
C essentials were identified by this Court for any such legislation
to be valid. These are:
(a) The legislature enacting the Validation Act should
be competent to enact the law and;
D
(b) the cause for ineffectiveness or invalidity of the Act
or the proceedings needs to be remo~ed.
24. The Court went on to enumerate certain ways in which
the objective referred to in (b) above could be achieved ·by the
E legislation and observed :
"... .. .. . Sometimes this is done by providing for
jurisdiction where jurisdiction had not been properly
invested before. Sometimes this is done by re-enacting
F retrospectively a valid and legal taxing provision and then
by fiction making the tax already collected to stand under
the re-enacted law. Sometimes the Legislature gives its
own meaning and interpretation of the law under which
the tax was collected and by legislative fiat makes the new
meaning binding upon courts. The Legislature may follow
G
any one method or all of them and while it does so it may
neutralise the effect of the earlier decision of the court
which becomes ineffective after the change of the law.
Whichever method is adopted it must be within the
competence of the legislature and legal and adequate
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1063
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
to attain the object of validation. If the Legislature has the A
power over the subject-matter and competence to make
a valid law, it can at any time make such a valid law and
make it retro.spectively so as to bind even past
transactions. The validity of a Validating Law. therefore.
depends upon whether the Legislature possesses the B
competence which it claims over the subject-matter and
whether in making the validation it removes the defect
which the courts had found in the existing law and makes
adequate provisions in the Validating Law for a valid
imposition of the tax." c
(emphasis supplied)
25. Judicial pronouncements regarding validation laws
generally deal with situations in which an act, rule, action or
proceedings has been found by a Court of competent D
jurisdiction to be invalid and the legislature has stepped in to
validate the same. Decisions of this Court which are a legion
take the view that while adjudication of rights is essentially a
judicial function, the power to validate an invalid law or to
legalise an illegal action is within the exclusive province of the E
legislature. Exercise of that power by the legislature is not,
therefore, an encroachment on the judicial power of the Court.
But, when the validity of any such Validation Act is called in
question, the Court would have to carefully examine the law and
determine whether (i) the vice of invalidity that rendered the act, F
rule, proceedings or action invalid has been cured by the
validating legislation (ii) whether the legislature was competent
to validate the act, action, proceedings or rule declared invalid
in the previous judgments and (iii) whether such validation is
consistent with the rights guaranteed by Part Ill of the G
Constitution. It is only when the answer to all these three
questions is in the affirmative that the Validation Act can be
held to be effective and the consequences flowing from the
adverse pronouncement of the Court held to have been
neutralised. Decisions of this Court in Shri Prithvi Cotton Mills
H
1064 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Ltd. and Anr. V. Broach Borough Municipality and Ors. (1969)
2 SCC 283, Hari Singh v. Military Estate Officer (1972) 2 SCC
239, Madan Mohan Pathak v. Union of India (1978) 2 SCC
50, Indian Aluminium Co. etc. v. State of Kera/a and Ors.
( 1996) 7 SCC 63 7, Meerut Developmr:Jnt Authority etc. v.
B Satbir Singh and Ors. etc. (1996) 11 SCC 462, and ITW
Signode India Ltd. v. Collector of Central Excise (2004) 3
sec 48 fall in that category. Even in the realm of service law,
validation enactments have subsequent to the pronouncement.
of competent Courts come about validating the existing
c legislation. Decisions of this Court in /.N. Saksena v. State of
Madhya Pradesh (1976) 4 SCC 750, Virender Singh Hooda
and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588
and State of Bihar and Ors. v. Bihar Pensioners Samaj (2006)
5 sec 65 deal with that category of cases.
D 26. In the case at hand, the State of Orissa had not suffered
any adverse judicial pronouncement to necessitate a Validation
Act, as has been the position in the generality of the cases
dealt with by this Court. The title of the impugned Legislation
all the same describes the legislation as a Validation Act. The
E title of a statute is no doubt an important part of an enactment
and can be referred to for determining the general scope of the
legislation. But the true nature of any such enactment has
always to be determined not on the basis of the label given to
it but on the basis of its substance.
F
27. In M.P. V. Sundararamier & Co. v. State of A.P. & Anr.
AIR 1958 SC 468 this Court was considering whether the
impugned enactment was a Validation Act in the true sense.
This Court held that although the short title as also the marginal
G note described the Act to be a Validation Act, the substance
of the legislation did not answer that description. This Court
observed:
"ft is argued that to validate is to confirm or ratify, and that
can be only in respect of acts which one could have
H himself performed, and that if Parliament cannot enact
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1065
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
a law relating to sales tax, it cannot validate such a law A
either, and that such a law is accordingly unauthorised
and void. The only basis for this contention in the Act is
its description in the Short Title as the "Sales Tax Laws
Validation Act" and the marginal note to s. 2. which is
similarly worded. But the true nature of a law has to be B
determined not on the label given to it in the statute but
on its substance. Section 2 of the impugned Act which
is the only substantive enactment therein makes no
mention of any validation. It only provides that no law of
a State imposing tax on sales shall be deemed to be c
invalid merely because such sales are in the course of
inter-State trade or commerce. The effect of this provision
is merely to liberate the State laws from the fetter placed
on them by Art. 286(2) and to enable such laws to
operate on their own terms. "
D
(emphasis supplied)
28. We may also refer to Maxwell on Interpretation of
Statutes {12th Edn., page 6), where on the basis of authorities
on the subject, short title of the Ac~ has been held to be E
ii-relevant for the purpose of interpretation of statutes. Lord
Moulton in Vacher and Sons Ltd. v. London Society of
Compositors [1913] AC 107 described the short title of an
Act
as follows:
·~ title given to the act is solely for the purpose of facility. F
of reference. If I may use the phrase, it is a statutory
nickname to obviate the necessity of always referring to
the Act under its full and descriptive title .... lts object is
identification and not description. "
G
(emphasis supplied)
29. Dr. Dhawan, learned senior counsel appearing for the
appellants fairly conceded that the impugned legislation could
not be described as a simple Validation Act. According to him,
H
1066 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the Act achieved a dual purpose of (a) validating the invalid ad
hoc appointments and (b) appointing the Stipendiary Engineers
working as ad hoc Assistant Engineers on a substantive basis
by regularising their appointments. While we have no difficulty
in agreeing with the latter part of the contention urged by Dr.
B Dhawan and holding that the legislation regularises the
appointment of Stipendiary Engineers as Assistant Engineers,
we have not been able to appreciate the rationale behind the
Legislature considering it necessary to validate the ad hoc
appointments, especially when such appointments had been
c made by the Government pursuant to the directions issued by
the High Court in the writ petitions filed by the Stipendiary
Engineers. Validation of the ad hoc appointments of the
Stipendiary Engineers as Assistant Engineers would even
otherwise have served no purpose. That is because whether
the appointments were officiating/ad hoc/temporary or
D described by any other expression, the fact that the Stipendiary
Engineers had worked for a long period of time as Assistant
Engineers in temporary/ad hoc/officiating capacity would have
in itself been a ground for the State to regularise them, subject
of course to such regularisation otherwise meeting
E constitutional requirements. It was not as if any such
regularisation was legally impermissible unless the "ad hoc
appointments" granted to Stipendiary Engineers were
themselves validated. It is quite evident that the legislation with
which we are concerned was in substance aimed at
F regularising the services of such persons as had worked in the
capacity of Assistant Engineers. If that was the true purport of
the legislation, it would be inaccurate to describe the same as
a validation enactment.
G 30. The matter can be viewed from yet another angle. The
enactment came de hors any compulsion arising from a judicial
pronouncement regarding the invalidity attached to the
appointment of Assistant Engineers on ad hoc basis and only
because of the State's anxiety to appoint/absorb the
H Stipendiary Engineers, subsequently appointed as ad hoc
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1067
STATE OF ORISSA & ORS. [T.S. THAKUR, J.)
Assistant Engineers on a substantive/regular basis without A
following the route mandated by the Service Rules of 1941
applicable for making any such appointments. Having said that,
we must hasten to add that a prior judicial pronouncement
declaring an act, proceedings or rule to be invalid is not a
condition precedent for the enactment of a Validation Act. Such B
a piece of legislation may be enacted to remove even a
perceived invalidity, which the Court has had no opportunity to
adjudge. Absence of a judicial pronouncement is not, therefore,
of much significance for determining whether or not the
legislation is a validating law. c
31. There was in the above context some debate at the
Bar whether or not the impugned enactment is a validating
enactment as it purports to be. As seen above, Dr. Rajiv
Dhawan and even Shri Narasimha, did not see the impugned
enactment as a validating legislation, no matter it carries a label D
to th~t effect. Mr. Patwalia & Mr. Sisodia, senior advocates,
appearing for the opposite parties were also not supportive of
the legislation being a validating enactment and in our opinion
rightly so. That is because the essence of a validating
enactment is a. pre-existing act, proceeding or rule, being found E
to be void or illegal with or without a judicial pronouncement of
the Court. It is only when an act committed or a rule in existence
or a proceeding taken is found to be invalid that a validating
act may validate the same by removing the defect or illegality
which is the basis of such invalidity. There is no question of F
validating something tha.t has not been done or that has yet to
come in existence. No one can say that an illegality which has
not yet been committed can or ought to be validated by
legislation. Existence of.an illegal act, proceedings or rule or
legislation is the sine qua non for any validating legislation to G
validate the same. There can be no validation of what has yet
to be done, suffered or enacted.
32. Applying the above to the case at hand a Validation
Act may have been necessary if the Government had
H
1068 SUPREME COURT REPORTS [2014] 2 S.C.R.
A appointed the ad hoc Assistant Engineers on a substantive
basis in violation of the relevant recruitment Rules. For in that
case, the Government would have done an act which was legally
1
invalid requiring validation by a legislative measure. But a
legislation that did not validate any such non-existent act, but
B simply appointed the ad hoc Assistant Engineers as
substantive employees of the State by resort to a fiction, could
not be described as a validating law.
33. The legislation under challenge was in that view not a
Validation Act as it purported to be but an enactment that
C regularised the appointment of graduate Stipendiary Engineers
working as ad hoc Assistant Engineers as Assistant
Engineers. Reliance upon the decision of this Court in
Satchidananda Mishra v. State of Orissa and Ors. (2004) 8
sec 59_9 is, in our opinion, of no assistance to the
D respondents. In Satchdinanda's case (supra) the High Court
had struck down the validation act which order was confirmed
by this Court in appeal. What is significant; however, is that
while affirming the view taken by the High Court that the
validation law was not constitutionally sound, this Court
E proceeded on the assumption that the legislation with which if
was dealing with was a validation act in the true sense. It was
on that assumption that this Court looked into the invalidity and
held that the validation act did nothing except validating the
appointments without removing the basis on which such
F appointments could be invalidated. We have not proceeded on
any such assumption in the instant case especially because
learned counsel for some of the parties have argued that the
legislation under challenge is not a Validation Enactment. The
Enactment in the case at hand deals with the law relating to
G regularisation of incumbents holding public office on ad hoc or
temporary_ basis, much in the same way as regularisation of
such temporary appointments is ordered in terms of a scheme
for that purpose. The only difference is that while a regularisation
scheme can be framed by the Government in exercise of its
H executive power, the regularisation ordered in the case at hand
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1069
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
is by way of a legislation. It is trite that what could be achieved A
by the Government by e),(ercise of its executive power could
certainly be achieved by legislation, as indeed it has been
achieved in the case at hand. Question No.1 is answered
accordingly.
B
Re. Question No.2
34. A Constitution Bench of this Court in Secretary, State
of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC
1 ruled that regularisation of illegal or irregularly appointed
persons could never be an alternative mode of recruitment to C
public service. Such recruitments were, in the opinion of this
Court, in complete negation of the guarantees contained in
Articles 14 and 16 of the Constitution. Having said so, this Court
did not upset the regularisations that had already taken pla:ce,
regardless of whether such regularisations related to illegal or D
irregular appointments. The ratio of the decision in that sense
was prospective in its application, leaving untouched that which
had already happened before the pronouncement of that
de.cision. This is evident from the following passage appearing
in the decision: E
'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 F
constitutional scheme."
35. The above is a significant feature of the pronouncement
·of this Court in Umadevi's case (supra). The second and
equally significant feature is the exception which this Court G
made in para 53 of the decision permitting a one-time
exception for regularising services of such employees as had
been irregularly appointed and had served for ten years or
more. The State Government and its instrumentalities were
required to formulate schemes within a period of six months H
1070 SUPREME COURT REPORTS [2014] 2 S.C.R.
A from the date of the decision for regularisation of such
employees. This is evident from a reading of para 53 of the
decision which is reproduced in extenso:
"One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments)
B
as explained in S. V. Narayanappa (supra), R.N.
Nanjundappa (supra}, and B.N. Nagarajan (supra), 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
c 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 settled
by this Court in the cases above referred to and in the
D 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 appointed. who have worked
for ten years or more in duly sanctioned posts but not
E 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
F set in motion within six months from this date... "
(emphasis supplied)
36. Dr. Dhawan, learned senior counsel, appearing for the
appellants in some of these appeals argued, and in our opinion
G rightly so, that both the aspects referred to above bear
considerable significance to the case at hand. He submitted
that regularisations granted by the State or its instrumentalities
given in regard to appointments that were strictly speaking
illegal had not been upset by this Court in Umadevi's case
H (supra). That being so, the impugned Enactment by which the
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1071
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
appointment of the appellants- Stipendiary Engineers were A
regularised as Assistant Engineers must also be treated to
have been saved from the rigour of the view taken in Umadevi's
case (supra). There is merit in that contention. The decision in
Umadevi's case (supra) stated the true legal position on the
subject but having regard to the fact that several earlier B
decisions of this Court had sanctioned regularisation of those
not regularly appointed, this Court was of the view that upsetting
such regularisations would not only unsettle what stood settled
but also gravely prejudice those who are benefitted from such
orders of regularisation. There is no gainsaying that most of c
such persons who entered the public service initially without
going through any open competitive selection process would
have lost by passage of time their prospects of entering public
service by legal course even if vacancies were available for
such appointments. In some of the decisions the continuance
0
of employees on ad hoc, temporary or daily-wage basis for an
indefinite period was seen by this Court also to be a violation
of the fundamental right to life apart from being discriminatory.
Considering the magnitude of the problem that would arise if
all such appointments were to be unsettled, this Court in
Umadevi's case (supra) left such regularisation alone and
E
declared that in the future such orders of appointments dehors
rules would not qualify for the grant of regularisation in public
employment.
37. Equally important is the fact that even after declaring F
the true legal position on the subject and even after deprecating
the practice of appointing people by means other than
legitimate, this Court felt that those who had served for ten
years or so may be put to extreme hardship if they were to be
discharged from service and, therefore, directed the formulation G
of a scheme for their regularisation. This was no doubt a one-
time measure, but so long as the appointment sought to be
regularised was not illegal, the scheme envisaged by para 53
of the decision (supra) extracted above permitted the State to
regularise such employees. Dr. Dhawan argued that the H
1072 SUPREME COURT REPORTS [2014] 2 S.C.R.
A appellants- Stipendiary Engineers had, by the time the decision
in Umadevi's case (supra) was pronounced, qualified for the
benefit of a scheme of regularisation having put in ten years
as ad hoc Assistant Engineers and fifteen years if their tenure
was to be counted from the date of their employment as
B Stipendiary Engineers. He contended that even in the absence
of a Validation Act, Stipendiary Engineers appointed on ad hoc
basis as Assistant Engineers, who had worked for nearly ten
years to the full satisfaction of the State Government would have
been entitled to regularisation of their services in terms of any
c such scheme.
38. On behalf of the diploma holder Junior Engineers, it
was contended by Mr. Sisodia that the appointment of
Stipendiary degree holders as ad hoc Assistant Engineers was
not irregular but illegal. It was contended that Stipendiary
D Engineers were appointed on ad hoc basis without following
the procedure permitted under the rules which, inter alia, entitled
the degree holder Junior Engineers also to compete. He
submitted that although diploma holder Junior Engineers were
not entitled to compete against the vacancies on the direct
E recruitment quota in the cadre of Assistant Engineers, yet they
were entitled to argue that any appointment to the cadre ought
to be made in accordance with the rules especially when
regularisation of degree holder Stipendiary Engineers would
give them advantage in seniority to the prejudice of the diploma
F holder Junior Engineers who may at their own turn be promoted
in the cadre of Assistant Engineers. We have no hesitation in
rejecting that contention. Diploma holder Junior Engineers were
not, admittedly, eligible to be appointed as Assistant Engineers
in the direct recruitment quota. They could not make a
G grievance against regularisation simply because of the fact that
those regularised may figure above them in seniority. Seniority
is an incident of appointment to the cadre which must be
regulated by the relevant rules. Any possible prejudice to
diploma holders in terms of seniority would not, therefore, make
H the regularisation unconstitutional or illegal anci hence beyond
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1073
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
the purview of para 53 in. Umadevi's case (supra). A
39. Mr. Patwalia, learned senior counsel appearing for the
degree holder Junior Engineers who were also appointed on
ad hoc basis as Assistant Engineers against 5% quota which
the Government resolution had provided for, argued that
8
although degree holder Junior Engineers are eligibl.e for
appointment against the vacancies in direct recruits quota, that
opportunity was not available to his clients when the degree
holder Junior Engineers were appointed as Assistant
Engineers. He contended that Junior Engineer degree holders
who were appointed as ad hoc Assistant Engineers against 5% C
quota reserved for them under the Government resolution would
have no objection to the regularisation being upheld provided
degree holder Junior Engineers who had served for a relatively
longer period as Assistant E!.~ineers on ad hoc basis were
also given a similar treatment. He submitted that the exclusion D
of degree holder Junior Engineers from the legislative measure
aimed at regularising the Stipendiary degree holders was
clearly discriminatory and that the High Court was on that count
justified in holding that the Validation Act itself was ultra vires.
It was contended by Mr. Patwalia that even if the legislature had E
restricted the benefit of regularisation to the Stipendiary
Engineers later appointed on ad hoc basis as Assistant
Engineers, there was no reason why this Court could not extend
the very same benefit to degree holder engineers who had
similarly worked for over 15 years. F
40. The decision in Umadevi's case (supra), as noticed
earlier, permitted regularisation of regular appointments and not
illegal appointments. Question, however, is whether the
appointments in the instant case could be described as illegal G
and if they were not, whether the State could be directed to
regularise the services of the degree holder Junior Engineers
who have worked as ad hoc Assistant Engineers for such a long
period, not only on the analogy of the legislative enactment for
regularisation but also on the principle underlying para 53 of
H
1074 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the decision in Umadevi's case (supra).
41. As to what would constitute an irregular appointment
is no longer res integra. The decision of this Court in State of
Karnataka v. M.L. Kesari and Ors. (2010) 9 SCC 247, has
examined that question and explained the principle regarding
8 regularisation as enunciated in Umadevi's case (supra). The
decision in that case summed up the following three essentials
for regularisation (1) the employees worked for ten years or
more, (2) that they have so worked in a duly sanctioned post
without the benefit or protection of the interim order of any court
C or tribunal and (3) they should have possessed the minimum
qualification stipulated for the appointment. Subject to these
three requirements being satisfied, even if the appointment
process did not involve open competitive selection, the
appointment would be treated irregular and not illegal and
D thereby qualify for regularisation. Para 7 in this regard is
apposite and may be extracted at this stage:
'7. It is evident from the above that there is an exception
to the general principles against "regularisation"
E 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.
F 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 (ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are not
made or continued against sanctioned posts or where the
persons appointed do not possess the prescribed
minimum qualifications, the appointments will be
H considered to be illegal. But where the person employed
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1075
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
possessed the prescribed qualifications and was working ·A
against sanctioned posts, but had been selected without
undergoing the process of open competitive selection,
such appointments are considered to be irregular."
42. It is nobody's case that the degree holder Junior 8
Engineers were not qualified for appointment as Assistant
Engineers as even they possess degrees from recognised
institutions. It is also nobody's case that they were not appointed
against the sanctioned post. There was some debate as to the
actual number of vacancies available from time to time but we C
have no hesitation in holding that the appointments made were
at all relevant points of time against sanctioned posts. The
information provided by Mr. Nageshwar Rao, learned
Additional Solicitor General, appearing for the State of Orissa,
in fact, suggests that the number of vacancies was at all points
of time more than the number of appointments made on ad hoc D
basis. It is also clear that each one of the degree holders has
worked for more than 10 years ever since his appointment as
. ad hoc Assistant Engineer. It is in that view difficult to describe
these appointments of the Stipendiary Engineers on ad hoc
basis to be illegal so as to fall beyond the purview of the E
scheme envisaged in Umadevi's case (supra).
43. The upshot of the above discussion is that not only
because in Umadevi's case (supra) this Court did not disturb
the appointments already made or regularisation granted, but F
also because the decision itself permitted regularisation in
case of irregular appointments, the legislative enactment
granting such regularisation does not call for interference at this
late stage when those appointed or regularised have already
started retiring having served their respective departments, in G
some cases for as long as 22 years.
44. We need to advert to one other aspect which bears
relevance to the issue whether regularisation under the
impugned Enactment is legally valid. The appointment process
of unemployed degree holders, as noticed earlier, staI:ted with H
1076 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the resolution passed by the State Government which
envisaged appointments of such unemployed Graduate
Engineers as Stipendiaries on a consolidated stipend of
Rs.2,000/- p.m. The resolution further envisaged their
absorption in service after a period of two years. Not only that,
B appointments as Stipendiary Engineers were made· on the
basis of a selection process and on the basis of merit no matter
determined de hors the relevant rules which provided for
appointments to the cadre to be made only through the Public
Service Commission. A reference to the Public Service
c Commission was no doubt considered unnecessary but the fact
remains that appointment of unemployed degree holders as
Stipendiary Engineers were made pursuant to a notification by
which everyone who was unemployed and held an Engineering
degree in any discipline was free to make an application. A
large number of unemployed engineers responded to the
0
notification inviting applications out of whom nearly 932 were
selected by a Selection Committee constituted for the purpose.
What is significant is that the empanelment of the unemployed
degree holders for appointment as Stipendiaries did not invite
any criticism from any quarter either as to the method of
E appointment or the fairness of the selection process. The
process of appointment was at no stage questioned before the
Court, a feature which is notable keeping in view the number
of people appointed/empanelled and a larger number who were
left out and who could have possibly made a grievance if there
F was any. It is not, therefore, wholly correct to suggest that the
entry of the degree holder Junior Engineers as Stipendiary
Engineers and later as Assistant Engineers was through "the
backdoor", an expression very often used in service matters
where appointments are made de hors the rules. The process
G of selection and appointments may not have been as per the
relevant rules as the same ought to have been, but it is far from
saying that there was complete arbitrariness in the manner of
such appointments so as to violate Articles 14 and 16 of the
Constitution of India.
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1077
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
45. That apart the appointment of Stipendiary Engineers A
was at the level of Junior Engineers although itwas argued on
their behalf that they were discharging the functions of Assistant
Engineers from the date they were employed. In the absence
of any finding from the High Court on the subject and in the
absence of any cogent material before us to support that claim, B
we find it difficult to hold that the appointment of the Stipendiary
Engineers was from the beginning itself as Assistant
Engineers. The fact that the resolution of the State Government
itself envisaged appointment of Stipendiary Engineers as ad
hoc Assistant Engineers on the basis of performance makes c
it amply clear that the Stipendiary Engineers were not treated
as Assistant Engineers for otherwise there would have been
no question of appointing them as Assistant Engineers on ad
hoc or any other basis. It is also noteworthy that the appointment
of the Stipendiary Engineers on ad hoc basis came pursuant D
to the direction from the High Court which is yet another reason
why it is not open to the Stipendiary Engineers to claim that
they were at all points of time working as Assistant Engineers.
Having said that we cannot lose sight of the fact that the
appointment of graduate engineers as Stipendiaries was on a E
clear representation that they would be eventually absorbed in
service as Assistant Engineers. That representation is evident
from the resolution of the State Government where it stated:
"In all, therefore, 741 posts will be available for
recruiting these Degree Engineers in the first instance. F
They may be designed as Junior Engineers or
Stipendiary Engineers in the first phase. They may be
paid salary in the scale of Junior Engineers or in a
consolidated stipend of Rs.2,0001- per month. Absorption
into regular posts may be done after two years on the G
basis of their performance. "
46. In the counter-affidavit filed by the State Government
before the High Court the State re-affirmed its commitment to
·the appointment of Stipendiary Engineers as Assistant H
1078 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Engineers on ad hoc basis.
47. In the circumstances and taking a holistic view of the
matter, it cannot be said that the appointment of Stipendiary
Engineers on ad hoc basis and their subsequent regularisation
B came as a side wind or was inspired by any political or other
consideration. The Government, it appears, was from the very
beginning, keen to utilise the services of unemployed Graduate
Engineers selected on their merit by the Selection Committee
and, therefore, remained steadfast in its efforts for achieving
that purpose and in the process going even to the extent of
C getting them regularised by a legislative measure. Suffice it to
say that the question whether regularisation was justified cannot
be viewed in isolation or divorced from the context in which the
same arises.
D 48. We may now turn to the contention urged by Mr.
Patwalia, that the impugned Legislation was discriminatory in
as much as it granted regularisation to persons similarly
situated while denying such benefit to his client who not only
held a degree qualification like the Stipendiary Engineers but
E were in terms of the Government resolution promoted as Ad
hoc Assistant Engineers against 5% quota reserved for them.
It was argued that State could not have classified ad hoc
Assistant Engineers who came from the Stipendiary Engineers
stream, on one hand, and those appointed as ad hoc Assistant
F Engineers on account of their being in service as Junior
Engineers holding a degree qualification. The degree holder
Junior Engineers, it was contended, were in comparison better
entitled to regularisation as they had not only the requisite
qualification but had put in longer service as ad hoc Assistant
G Engineers vis-a-vis their Stipendiary counterparts. Alternatively,
it was contended that the degree holder Junior Engineers who
too had put in more than 15 years service, were entitled to a
direction for their regularisation as Assistant Engineers not only
on account of the length of service rendered by them but also
on the analogy of the legislative benefit extended to their
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1079
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
counterpart Stipendiaries. A
49. The approach to be adopted and the principles
applicable to any forensic exercise aimed at examining the
validity of a legislation on the touchstone of Article 14 of the
Constitution have been long since settled by several decisions 8
of this Court. Restatement or repetition of those principles was,
therefore, considered platitudinous. The real difficulty as often
acknowledged by this Court lies not in stating the principles
applicable but in applying them to varying fact situations that
come up for consideration. Trite it is to say at the outset that a C
piece of legislation carries with it a presumption of constitutional
validity. Also settled by now is the principle that Article 14 does
not forbid reasonable classification. A classification is valid on
the anvil of Article 14, if the same is reasonable that is it is
based on a reasonable and rational differentia and has a nexus
with the object sought to be achieved. (See State of West D
Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 and Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC
538). A comprehensive review of the law is, in our opinion,
unnecessary at this stage in view of the Constitution Bench
decision of this Court in Re: The Special Courts Bill, 1978 E
(1979} 1 sec 380 where this Court undertook that exercise
and noticed as many as thirteen propositions that bear
relevance to any forensic determination of the validity of a law
'by reference to the equality clause enshrined in Article 14 of
the Constitution. Some of those principles were stated by this F
Court in the following words:
''xxx xxx xxx
(2) The State, in the exercise of its governmental power,
has of necessity to make laws operating differently on G
· different groups or classes of persons within its territory
to attain particular ends in giving effect to its policies, and
it must possess for that purpose large powers of
distinguishing and classifying persons or things to be
subjected to such laws. H
1080 SUPREME COURT REPORTS [2014] 2 S.C.R.
A (3) The constitutional command to the State to afford
equal protection of its laws sets a goal not attainable by
the invention and application of a precise formula.
Therefore, classification need not be constituted by an
exact or scientific exclusion or inclusion of persons or
B things. The courts should not insist on delusive exactness
or apply doctrinaire tests for determining the validity of
classification in any given case. Classification is justified
if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14
c is not that the same rules of Jaw should be applicable to
all persons within the Indian territory or that the same
remedies should be made available to them irrespective
of differences of circumstances. It only means that all
persons similarly circumstanced shall be treated alike
D both in privileges conferred and liabilities imposed. Equal
laws would have to be applied to all in the same situation,
and there should be no discrimination between one
person and another if as regards the subject-matter of the
legislation their position is substantially the same.
E
(5) By the process of classification, the State has the
power of determining who should be regarded as a class
for purposes of legislation and in relation to a law enacted
on a particular subject. This power, no doubt, in some.
F degree is likely to produce some inequality; but if a law
deals with the liberties of a number of well defined
classes, it is not open to the charge of denial of equal
protection on the ground that it has no application to other
persons. Classification thus means segregation in
classes which have a systematic relation, usually found
G
in common properties and characteristics. It postulates
a rational basis and does not mean herding together of
certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according
H to the needs and exigencies of the society and as
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1081
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
suggested by experience. It can recognise even degree A
of evil, but the classification should never be arbitrary,
artificial or evasive.
(7) The classification must not be arbitrary but must be
· rational, that is to say, it must not only be based on some
8
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left
out but those qualities or characteristics must have a
reasonable relation to the object of the legislation. In
order to pass the teSt,- two_ conditions must be fulfilled,
namely, (1) that the classification must be founded on an C
intelligible differentia which distinguishes those that are
grouped together from others and (2) that that differentia
must have a rational relation to the object sought to be
achieved by the Act.
D
(8) The differentia which is the basis of the classification
and the object of the Act are distinct things and what_ is
necessary is that there must be a nexus between them.
In short, while Article 14 forbids class discrimination by
conferring privilegf)s or imposing liabilities upon persons E
arbitrarily selected out of a large number of other persons
similarly situated in relation to the privileges sought to
be conferred or the liabilities proposed to be imposed, it
does not forbid classification for the purpose of
legislation, provided such classification is not arbitrary in F
the sense abovementioned.
xxx xxx xxx
(11) Classification necessarily implies the making of a
distinction or discrimination between persons classified G
and those who are not members of that class. It is the
essence of a classification that upon the class are cast
duties and burdens different from those resting upon the
general public. Indeed, the very idea of classification is
that of inequality, so that it goes without saying that the H
1082 SUPREME COURT REPORTS [2014] 2 S.C.R.
A mere fact of inequality in no manner determines the
matter of constitutionality.
xxx xxx xxx"
50. Applying the above to the case at hand, the first and
B foremost question would be whether the classification of ad hoc
Assistant Engineers is reasonable, that there is a reasonable
differentia that distinguishes those grouped together for the
grant of the benefit from those left out and if there is such a
differentia, whether the classification has a reasonable nexus
C with the object underlying the legislation.
51. The second and by no means less important is the
question whether the impugned legislation is ultra vires of Article
14 because of under inclusion. That is because the argument
0 of the writ petitioners in substance is that the legislation ought
to have included even in-service Junior Engineers degree
holders working as Ad hoc Assistant Engineers for the benefit
of regularisation.
52. There is no difficulty in answering the first question. We
E say so because the beneficiaries of the impugned legislation
constitute a class by themselves inasmuch as they were un"'.
employed degree holders appointed as Stipendiary Engineers
on a consolidated pay. The method of their employment was
also different inasmuch as although they were selected on the
F basis of inter-se merit, the process of selection itself was not
conducted by the Public Service Commission. Their
appointment as ad hoc Assistant Engineers also came
pursuant to a direction issued by the High Court no matter the
direction itself was based on a resolution passed by the State
G Government that provided for such appointments upon proof of
satisfactory performance. The object underlying the legislation
evidently being to ensure continued utilisation of the services
of such Stipendaries appointed on ad hoc basis as Assistant
Engineers, there was a reasonable nexus between the
H classification and the object sought to be achieved. It is not the
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1083
STATE OF ORISSA & ORS. [T.S. THAKUR, J.)
case of writ petitioners that Stipendiary Engineers appointed A
as ad hoc Assistant Engineers were left out of the group for a
hostile treatment by refusal of the benefit extended to others
similarly situated. What the writ petitioners contend in support
of their challenge to the validity of the legislation is that since
they were also appointed .on ad hoc basis though in a different B
way, the legislation was bad for under inclusion. We shall
presently deal with the test applicable to cases where the
challenge to the legislation is founded on under inclusion but
before we do so, we need to dispel the impression that the writ
petitioners were similarly situated as the Stipendiaries only c
because they were also working as ad hoc Assistant
Engineers. There is no gainsaying that the legislation does not
aim at regularising all ad hoc Assistant Engineers regardless
of the circumstances in which such appointments came about.
If that were so, the writ petitioners could well argue that since 0
the object underlying the enactment is to regularise all ad hoc
Assistant Engineers, they could not be left out without violating
their fundamental rights under Article 14 of the Constitution. The
impugned legislation, however, has limited its beneficence to
ad hoc Assistant Engineers who came in as Stipendiary E
Engineers pursuant to a policy decision of the State
Government that aimed at utilising their services and dealing
with the unemployment problem in the State. That being the
object, ad hoc Assistant Engineers appointed by other modes
or in circumstances other than those in which Stipendiaries
entered the service, cannot cry foul or invite the wrath of Article F
14 upon the legislation. As a matter of fact, the State
Government's resolve to give 5% vacancies to in service
degree holder Junior Engineers itself brought· about a
classification between Stipendiaries on one hand and the in-
se rvice Junior Engineers on the other. The proposed G
reservation having run into rough waters because of the
opposition of the Orissa Public Service Commission, the in-
service Junior Engineer writ petitioners before the High Court
lost their fight for a share in the higher cadre of Assistant
Engineers based on their higher qualification. Suffice it to say H
1084 SUPREME COURT REPORTS [2014] 2 S.C.R.
A that Stipendiary Engineers later appointed as ad hoc Assistant
Engineers were a class by themselves and any benefit to them
under the impugned Enactment could not be grudged by in-
service Junior Engineers no matter the latter had in anticipation
of the amendment to the recruitment rules also got appointed
B as ad hoc Assistant Engineers.
53. Coming then to the question of "under inclusion" we
need to keep in mind that a challenge based on "under
inclusion" is not readily accepted by Courts. Constitution
C Bench's decision of this Court in State of Gujarat and Anr. v.
Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974) 4 SCC
656, dealt with the question of a classification which was under
inclusive and declared that having regard to the real difficulties
under which legislatures operate, the Courts have refused to
strike down legislations on the ground that they are under
D inclusive. The Court observed:
55. A classification is under-inclusive when all who are
included in the class are tainted with the mischief but there
are others also tainted whom the classification does not
E include. In other words, a classification is bad as under-
inclusive when a State benefits or burdens persons in a
manner that furthers a legitimate purpose but does not
confer the same benefit or place the same burden on
others who are similarly situated. A classification is over-
F inclusive when it includes not only those who are similarly
situated with respect to the purpose but others who are not
so situated as well. In other words, this type of classification
imposes a burden upon a wider range of individuals than
are included in the class of those attended with mischief
at which the law aims. Herod ordering the death of all male
G
children born on a particular day because one of them
would some day bring about his downfall employed such
a classification.
56. The first question, therefore, is, whether the exclusion
H of establishments carrying on business or trade and
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1085
STATE OF ORISSA & ORS. [TS. THAKUR, J.]
employing less than 50 persons makes the classification A
under-inclusive, when it is seen that all factories employing
10 or 20 persons, as the case may be, have been included
and that the purpose of the law is to get in unpaid
accumulations for the welfare of the labour. Since the
classification does not include all who are similarly situated B
with respect to the purpose of the law, the classification
might appear, at first blush, to be unreasonable. But the
Court has recognised the verv real difficulties under which
legislatures operate - difficulties arising out of both the
nature of the legislative process and of the society which c
legislation attempts perennially to re-shape - and it has
refused to strike down indiscriminately all legislation
embodying classificatory inequality here under
consideration. Mr. Justice Holmes. in urging tolerance of
under- inclusive classifications, stated that such legislation
0
should not be disturbed by the Court unless it can clearly
see that there is no fair reason for the law which would not
require with equal force its extension to those whom it
leaves untouched."
(emphasis supplied) E
54. The above was followed by this Court in The
Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Girish Kumar Navalakha and Ors. (1975) 4 SCC
754 where this Court held that some sacrifice of absolute F
equality may be required in order that legal system may
preserve the flexibility to evolve new solutions to social and
economic problems. This Court -said:
"8. Often times the courts hold that under-inclusion does
not deny the equal protection of laws under Article 14. In G
strict theory, this involves an abandonment of the
principle that classification must include all who are
similarly situated with respect to the purpose. This under-
inclusion is often explained by saying that the legislature
is free to remedy parts of a mischief or to recognize H
1086 SUPREME COURT ~EPORTS [2014] 2 S.C.R.
A degrees of evil and strike at the harm where it thinks it
most acute.
xxxxxxxxxxxx
10. There are two main considerations to justify an under-
B inclusive classification. First, administrative necessity.
Second, the legislature might not be fully convinced that
the particular policy which it adopts will be fully successful
or wise. Thus to demand application of the policy to all
whom it might logically encompass would restrict the
c opportunity of a State to make experiment. These
techniques would show that some sacrifice of absolute
equality may be required in order that the legal system
may preseP/e the flexibility to evolve new solutions to
social and economic problems. The gradual and
D piecemeal change is often regarded as desirable and
legitimate though in principle it is achieved at the cost
of some equality. It would seem that in fiscal and
regulatory matters the court not only entertains a greater
presumption of constitutionality but also places the
E burden on the party challenging its validity to show that
it has no reasonable basis for making the classification."
55. The above decisions were followed in Ajoy Kumar
Banerjee and Ors. v. Union of India and Ors. (1984) 3 SCC
127 where this Court observed:
F
"... Article 14 does not prevent legislature from introducing
a reform i.e. by applying the legislation to some
institutions or objects or areas only according to the
exigency of the situation and further classification of
G selection can be sustained on historical reasons or
reasons of administrative exigency or piecemeal method
of introducing reforms. The law need not apply to all the
persons in the sense of having a universal application
to all persons. A law can be sustained if it deals equally
H with the people of well-defined class-employees of
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1087
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
insurance companies as such and such a law is not open A
to the charge of denial of equal protection on the ground
that it had no application to other persons."
56. We have in the light of the above no hesitation in
holding that the legislation under challenge does not suffer from 8
any constitutional infirmity and that the High Court was in error
in having struck it down.
57. Having said that we are of the opinion that even when
the challenge to the constitutional validity of the impugned
enactment fails, the degree holder Junior Engineers currently C
working as ad hoc Assistant Engineers are entitled to the relief
of regularisation in service, having regard to the fact that they
have rendered long years of service as Assistant Engineers on
ad hoc basis for 17 to 18 years in some cases. While it is true
that those in service degree holders working as Junior D
Engineers were not the beneficiaries of the legislation under
challenge, the fact remains, that they were eligible for
appointment as Assistant Engineers on account of their being
degree holders. It is also not in dispute that they were appointed
against substantive vacancies in the cadre of Assistant E
Engineers no matter by utilizing the direct recruit quota. Even
in the case of Stipendiary Engineers the vacancies were
utilized out of the 67% quota meant for direct recruitment. What
is, however, significant is that the utilization of the quota
reserved for direct recruitment for appointing Stipendiary and F
Junior Engineers as Assistant Engineers has not been assailed
either before the High Court or before us. On the contrary the
contention urged on behalf of Junior Engineers degree holders
who are still working as Junior Engineers was that the
remainder of vacancies comprising 5% of the cadre strength G
should be utilised to appoint the eligible degree holder Junior
Engineers. We shall presently deal with that contention. Suffice
it to say for the present that the appointments granted to degree
holder Junior Engineers as Assistant Engineers on ad hoc
basis were pursuant to a Government decision whereunder
H
1088 SUPREME COURT REPORTS [2014] 2 S.C.R.
A such degree holders as were already in-service as Junior
Engineers, were also given an opening for upward- movement.
Appointment of such degree holders was not grudged by their
diploma holder colleagues as no challenge was mounted by
them to such appointments ostensibly because degree holder
B Junior Engineers were getting appointed without in the least
affecting the quota of 33% reserved for the promotees. In a way
the upward movement of the. degree holders as Assistant
Engineers brightened the chances of the rest to get promoted
at their turn in the promotees quota. All told, the Junior
c Engineers have served for almost a lifetime and held
substantive vacancies no matter on ad hoc basis. To revert them
at this distant point of time would work hardship to them.
Besides, we cannot ignore the march of events especially the
fact that Stipendaries appointed at a later point of time with the
0 same qualifications and pursuant to the very same Government
policy as took shape for both the categories, have been
regularised by the Government through the medium of a
legislation. That this Court can suitably mould the relief, was not
in serious controversy before us. In the circumstances, we hold
the degree holder Junior Engineers currently working as
E Assistant Engineers on ad hoc basis writ petitioners in the High
Court entitled to the relief of regularisation with effect from the
same date as the Validation Act granted such regularisation
to the Stipendiary Engineers.
F 58. We shall advert to the question of inter se seniority
between the two categories while we take up question No.3.
But before we turn to question No.3 we need to briefly deal with
the contention urged on behalf of some of the degree holder
Junior Engineers represented by Mr. Dholakia who contended
G that since the Government resolution had provided for 5% quota
for degree holder Junior Engineers the Government was duty
bound to make appointments against that quota. It was urged
that the cadre strength of the Assistant Engineers had not been
presently determined by the Government nor were the figures
H given by the State Government accurate. The number of Junior
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1089
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
Engineers who should have got appointed against 5% quota A
reserved for them would have been large, agreed Mr. Dholakia.
To the extent of shortfall the State Government was bound to
continue the process of appointment, contended the learned
counsel.
B
59. There is, in our opinion, no merit in the submissions
urged by Mr. Dholakia and by learned counsel for some of the
interveners. We. say so because the quota which the
Government resolution proposed to carve out never fructified
by a corresponding amendment of the Service Rules. As
noticed in the earlier part of this order, the Orissa Public C
Service Commission was not agreeable to the reservation of
a quota for the subordinate engineering service members who
held a degree qualification. No such classification was,
therefore, made or could be made by the Government, nor was
the Government resolution translated into a binding rule that D
could be enforced by a Court of law. Assuming, therefore, that
on a true and proper determination of the posts comprising the
cadre strength of Assistant Engineers, some more vacancies
could fall in the 5% quota proposed to be reserved for the
degree holder Junior Engineers and no mandamus could be E
issued for filing up such vacancies. It is trite that existence of
an enforceable right and a corresponding obligation is a
condition precedent for the issue of a mandamus. We fail to
locate any such right in favour of the writ petitioner degree
holders who are still holding posts as Junior Engineers. They F
will have, therefore, to wait for their turn for promotion against
the 33% quota reserved for them along with their diploma
holder colleagues. We hardly need to emphasise that those
appointed against 5% quota may also have had no such right,
but since they have worked in the higher cadre for a long period G
and discharged duties attached to the posts of Assistant
Engineers with the benefits attached thereto, their regularisation
comes on a totally different juristic basis than the one sought
to be urged on behalf of those who were left out. Appointments
as Assistant Engineers were from out of Junior Engineers H
1090 SUPREME COURT REPORTS (2014] 2 S.C.R.
A made strictly according to seniority. The fortuitous circumstance
under which the appointments did not extend to the full quota
of 5% would make no material difference when it comes to
finding out whether the Junior Engineers can claim an
enforceable legal right.
B
60. Question No.2 is answered accordingly.
Re. Question No.3
61. Section 3(2) of the impugned legislation deals entirely
c with the inter se seniority of Assistant Engineers whose
appointments are validated/regularised by the said enactment
and stipulates that such inter se seniority shall be determined
according to the dates of appointment of the officers concerned
on ad hoc basis as mentioned in the schedule. It further
0 stipulates that all those regularised under the legislation shall
be enbloc junior to the Assistant Engineers of that year
appointed to the service in their respective discipline in their
cadre in accordance with the provisions of the Recruitment
Rules. Sub-section (3) of Section 3 makes the ad hoc service
E rendered by such Assistant Engineers count for the purpose
of their pension, leave and increments and for no other purpose.
62. Appearing for the State of Orissa, Mr. Nageshwar Rao
contended that grant of seniority to ad hoc Assistant Engineers
regularised under the legislation w.e.f. the date they were
F appointed on ad hoc basis was legally permissible especially
when the ad hoc appointments had continued without any
interruption till their regularisation. Reliance in support was
placed by Mr. Rao upon a Constitution Bench decision of this
Court in Direct Recruit Class II Engineering Officers'
G Association v. State of Maharashtra and Ors. (1990) 2 SCC
715. The case at hand, according to the learned counsel, fell
under proposition (B) formulated in the said decision. Grant of
seniority from the date of initial appointments did not, therefore,
suffer from any constitutional or other infirmity to warrant
H interference from this Court.
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1091
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
63. Mr. Sisodia appearing for some of the parties, on the A
other-hand, contended that seniority could be granted only from
the date of regularisation under the enactment and not earlier.
Learned counsel for some of the interveners adopted that
contention, including Ms. Aishwarya appearing for some of the
diploma holder Junior Engineers and urged that ad hoc service B
rendered by the Engineers appointed otherwise than in
accordance with the rules could not count for the purposes of
seniority and that even if Section 3(1) of the Validation Act was
held to be valid, Section 3(2) which gave retrospective seniority
from the date they were first appointed on ad hoc basis must c
go.
64. In Direct Recruit's case (supra) this Court reviewed
and summed up the law on the subject by formulating as many
as 11 propositions out of which propositions A and B stated
in Para 47 of the decision in the following words are relevant D
for our purposes:
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according E
to rule, his seniority has to be counted from the date of
his appointment and not according to the date of his
confirmation.
The corollary of.the above rule is that where the
initial appointment is only ad hoc and not according to F
rules and made as a stop-gap arrangement, the
officiation in such post cannot be taken into account for
considering the seniority.
(8) If the initial appointment is not made by following the G
procedure laid down by -the rules but the appointee
continues in the post uninterruptedly till the regularisation
of his service in accordance with the rules, the period of
officiating service will be counted. "
H
1092 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 65. There was some debate at the bar whether the case
at hand is covered by corollary to proposition A or by
proposition B (supra). But having given our consideration to the
submissions at the Bar we are inclined to agree with Mr. Rao's
submission that the case at hand is more appropriately
B covered by proposition B extracted above. We say so because
the initial appointment of ad ·hoc Assistant Engineers in the
instant case was not made by following the procedure laid
down by the Rules. Even so, the appointees had continued in
the posts uninterruptedly till the Validation Act regularised their
c service. There is, in the light of those two significant aspects,
no room for holding that grant of seniority and other benefits
referred to in Section 3(3) of the impugned Act were legally
impermissible or violated any vested right of the in service
Assistant Engineers appointed from any other source.
Proposition A, in our opinion, deals with a situation where an
0
incumbent is appointed to a post according to the rules but the
question that arises for determination is whether his seniority
should be counted from the date of his appointment or from the
date of his confirmation in the said service. The corollary under
E proposition A, in our opinion, deals with an entirely different
situation, namely, where the appointment is ad hoc and made
as a stop-gap-arrangement in which case officiation in such
post cannot be taken into consideration for seniority. Be that
as it may, as between proposition A and B the case at hand .
falls more accurately under proposition B which permits grant
F of seniority w.e.f. the date the appointees first started officiating
followed by the regularisation of their service as in the case at
hand.
66. We may also refer to a three-Judge Bench of this Court
G in Union of India and Anr. etc. etc. v. Lalita S. Rao and Ors.
etc. etc. (2001) 5 sec 384 where doctors appointed by
Railway Administration on ad hoc basis had been upon
regularisation granted seniority from the date of their ad hoc
appointment. This Court held that proposition B stated in Direct
H Recruits case (supra) permitted such seniority being granted.
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1093
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
This Court observed: A
"Obviously the Court had in mind the principle B evolved
by the Constitution Bench in the Direct Recruit
Engineering Officers Association case (supra). If the
initial appointment had not been made in accordance
with the prescribed procedure laid down by the 8
Recruitment Rules, and yet the appointees Medical
Officers were allowed to continue in the post
uninterruptedly and then they appeared at the selection
test conducted by the Union Public Service
Commission, and on being selected their services stood C
regularised then there would be no justification in not
applying the principle 'B' of the Direct Recruit Class II
Engineering Officers Association case (supra) and
denying the period of officiating services for being
counted for the purppse of seniority." D
67. Reference may also be made to the decision of this
Co!,lrt in State of Andhra Pradesh & Anr. V. K. S. Muralidhar
& Ors. (1992) 2 SCC 241 where the Government of India gave
weightage to service rendered by employees prior to their
regularisation. The dispute in that case was regarding inter se E
seniority between the Supervisors who were upgraded as
Junior Engineers and the degree holders who were directly
appointed as Junior Engineers. This Court held that the State
Government had as a matter of policy given weightage to both
the categories and that there was nothing unreasonable in giving F
a limited benefit or weightage to the upgraded Supervisors in
the light of their experience. This Court said:
"The question to be considered is from which date the
weightage of four years' service should be given to the G
upgraded Junior Engineers namely the Supervisors. Is
it the date of acquiring the degree qualification or the date
of their appointment? Having given our earnest
consideration and for the reasons stated above we hold
that the weightage can be given only from the date of their
appointment. H
1094 SUPREME COURT REPORTS (2014) 2 S.C.R.
A The Tribunal in the course of its order, however, observed
that in accordance with the existing rules the
appointments of these Junior Engineers from the notional
date have to be cleared by the Public Service
Commission and the appointments cannot be held to be
B regular appointments as long as they are not approved
by the Public Service Commission.
Xx xx xx
To sum up, our conclusions are as under:
c
(i) The weightage of four years in respect of upgraded
Junior Engineers as provided in G. 0. Ms. No. 559 has
to be reckoned from the date of appointment and not the
date of their acquiring the degree qualification:
D (ii) On the basis of that notional date. their inter-se
seniority has to be fixed:
(iii) The regularisation of the degree-holder·Junior
Engineers who passed the SQT by giving retrospective
E effect cannot be held to be illegal, and their seniority
among themselves shall be subject to the order of
ranking given by the Public Service Commission on the
basis of the SQT;
(iv) The Government shall prepare a common seniority
F
list of the degree-holders Junior Engineers and the
upgraded Junior Engineers on the above lines and that
list shall be the basis for all the subsequent promotions.
Promotions, if any, already given shall be reviewed and
readjusted in accordance with the said seniority list; and
G
(v) The approval of the Public Service Commission in
respect of these appointments and their seniority thus
fixed need not be sought at this distance of time."
H (emphasis supplied)
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1095
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
68. In Narender Chadha & Ors. v. Union of India & Ors. A
(1986) 2 sec 157, this Court was dealing with a somewhat
similar fact situation. The petitioners in that case were not
promoted by following the actual procedure prescribed by the
relevant Service Rules even though the appointments were
made in the name of the President by the competent authority. B
They had based on such appointments, continuously held the
post to which they were appointed and received salary and
allowances payable to incumbent of such post. The incumbents
were entered in the direct line of their promotion. The question,
however; was whether it would be just and proper to hold that c
such promotees had no right to the post held by them for 15-
20 years and could be reverted unceremoniously or treated as
persons not belonging to the service at all. Repelling the
argument that such service would not count for the purposes
of seniority, this Court observed: 0
" It would be unjust to hold at this distance of time that
on the facts and in the circumstances of this case the
petitioners are not holding the posts n Grade IV. The
above contention is therefore without sub-stance. But we,
however, make it clear that it is not our view that whenever E
a person is appointed in a post without following the Rules
prescribed for appointment to that post. he should be
treated as a person regularly appointed to that post. Such
a person may be reversed from that post. But in a case
of the kind before us where persons have been allowed F
to function in higher posts for 15 to 20 years with due
deliberation it would be certainly unjust to hold that they
have no sort of claim to such posts and could be reverted
unceremoniously or treated as persons not: belonging to
the Service at all. particularly where the Government is G
endowed with the power to relax the Rules to avoid unjust
results. In the instant case the Government has also not
expressed its unwillingness to continue them in the said
posts. The other contesting respondents have also not
H
1096 SUPREME COURT REPORTS [2014) 2 S.C.R.
A urged that the petitioners should be sent out of the said
posts. The only question agitated before us relates to the
seniority as between the petitioners and the direct recruits
and such a question can arise only where there is no
dispute regarding the entry of the officers concerned into
B the same Grade. In the instant case there is no
impediment even under the Rules to treat these
petitioners and others who are similarly situated as
persons duly appointed to the posts in Grade IV because
of the enabling provision contained in the Rule 16
c thereof. Rule 16 as it stood at the relevant time read as
follows:
16. The Government may relax the provisions of
these rules to such extent as may be necessary
to ensure satisfactory working or remove in-
D equitable results."
(emphasis supplied)
69. The ratio of the decision in the above case was not
E faulted by the Constitution Bench of this Court in Direct
Recruit's case (supra). As a matter of fact the Court approved
the said decision holding that there was force in the view taken
by this Court in that case. This Court observed:
"In Narender Chadha v. Union of India the officers wera
F promoted although without following the procedure
prescribed under the rules, but they continuously worked
for long periods of nearly 15-20 years on the posts without
being reverted. The period of their continuous officiation
was directed to be counted for seniority as it was held that
G any other view would be arbitrary and violative of Articles
14 and 16. There is considerable force in this view also.
We, therefore, confirm the principle of counting towards
seniority the period of continuous officiation following an
appointment made in accordance with the rules
H
AMARENDRA KUMAR MOHAPATRA & ORS. v. 1097
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
ptescribed for regular substantive appointments in the A
service."
70. In the light of what we have said above, we do not see
any illegality or constitutional infirmity in the provisions of
Section 3(2) or 3(3) of the impugned legislation.
B
71. Having said so, there is no reason why a similar
direction regarding the writ-petitioners degree holder Junior
Engineers who have been held by us to be entitled to
regularisation on account of their length of service should also
not be given a similar benefit. We must mention to the credit C
of Dr. Dhawan, appearing for the Stipendiary Engineers who
have been regularised under the provisions of the Legislation
that such Stipendiary-ad hoc Assistant Engineers cannot,
according to the learned counsel, have any objection to the
degree holder Junior Engineers currently working as Assistant D
Engineers on ad hoc basis being regularised in service or
being given seniority from the date they were first appointed. It
was also conceded that Stipendiary Engineers all of whom
were appointed after the appointment of the Junior Engineers
would enbloc rank junior to such ad hoc Assistant Engineers E
from out of degree holder Junior Engineers. But all such
regularised Assistant Engineers from Stipendiary Stream and
from Junior Engineers category would together rank below the
promotee Assistant Engineers.
F
72. Question No.3 is answered accordingly.
73. Several intervention applications have been filed in
these appeals to which we may briefly refer at this stage. In IA
No.5 of 2012 filed in Civil Appeal No.8324 of 2009, the
interveners have sought permission for the State Government G
to complete the re-structuring process and to fill up the
vacancies subject to a final decision of this Court in these
appeals. In IA Nos.6 and 7 of 2012 also filed in Civil Appeal
No.8324 of 2009, the interveners seek a direction to the State
of Orissa to upgrade the post of Assistant Engineers Class II H
1098 SUPREME COURT REPORTS [2014] 2 S.C.R
A (Group B) to Assistant Executive Engineer Junior Class I
(Group A) and to make such up-gradation retrospective w.e.f.
28th February, 2009. IA No.8 of 2012 has been filed in the very
same appeal in which the interveners have sought a direction
against the State of Orissa to give effect to the up-gradation
B of posts considering inter se seniority of in-service degree
holder Junior Engineers who are otherwise eligible for
appointment against the vacancies reserved for direct recruits.
In IA No.3 of 2009 in SLP No.29765 of 2008, the interveners
seek permission to support the judgment of the High Court
c whereby the impugned legislation has been struck down as
unconstitutional. Similarly, IAs filed in some other appeals either
seek to support the judgment passed by the High Court or pray
for permission to argue the case on behalf of one or the other
party.
D 74. We have heard counsel for the interveners also at some
length. We, however, do not consider it necessary to enlarge
the scope of these proceedings by examining issues that are
not directly related to the controversy at hand. Three questions
that have primarily engaged our attention in these petitions
E relate to (a) the validity of the impugned Validation Act. (b)
regularization of in-service degree holder Junior Engineers who
have been working for considerable length of time as Assistant
Engineers on ad hoc basis and (c) the seniority position of
those being regularized either under the Validation Act or in
F terms of the directions being issued by us in these appeals.
Other issues which the interveners seek to raise especially
issues regarding grant or denial of the benefit of reservation
to SC and ST candidates, have not been touched by us in these
proceedings for want of proper pleadings on the subject and
G also for want of any pronouncement by the High Court on the
said questions. In the circumstances, this order shall be taken
to have settled only what we have specifically dealt with or what
would logically follow therefrom. Any question whether the same
relates to inter se seniority of those regularized under the
H legislation or by reason of the directions which we propose to
AMAR~NDRA KUMAR MOHAPATRA & ORS. v. 1099
STATE OF ORISSA & ORS. [T.S. THAKUR, J.]
issue or issues relating to the benefit of seniority on the basis A
of roster points if any prescribed for that purpose are left open
and may be agitated by the aggrieved party before an
appropriate forum in appropriate proceedings. To the extent
any such questions or aspects have not been dealt with by us
in this order, may be dealt with in any such proceedings. B
Beyond that we do not consider it proper or necessary to say
anything at this stage.
75. In the result we pass the following order:
(1) Civil Appeals No.8324-8331 of 2009 filed by the C
State of Orissa and Civil Appeals No.8322-8323
of 2009 and 1940 of 2010 filed by the Stipendiary
Engineers are allowed and the impugned judgment
and order dated 15th October, 2008 passed by the
High Court of Orissa set aside. D
(2) Writ Petitions No.9514/2003, 12494/2005, 12495/
2005, 12627/2005, 12706/2006 and 8630/2006
filed by the degree holders Junior Engineers
working as Assistant Engineers on ad hoc basis E
are also allowed but only to the limited extent that
the services of the writ-petitioners and all those who
are similarly situated and promoted as ad hoc
Assistant Engineers against the proposed 5%
quota reserved for in-service Junior Engineers
F
degree holder shall stand regularized w.e.f. the date
Orissa Service of Engineers (Validation of
Appointment) Act, 2002 came into force. We
further direct that such in-service degree holder
Junior Engineers promoted as Assistant Engineers
on ad hoc basis shall be placed below the G
promotees and above the Stipendiary Engineers
regularized in terms of the impugned Notification.
The inter se seniority of the Stipendiary Engineers
regularized as Assistant Engineers under the
H
1100 SUPREME COURT REPORTS [2014) 2 S.C.R.
A impugned Legislation and Junior Engineer degree
holders regularized in terms of this order shall be
determined on the basis of their date of first
appointment as Assistant Engineers on ad hoc
basis.
B
{3) Civil Appeal No.1768 of 2006 is resultantly allowed,
the judgment and order impugned therein set aside
and Writ Petitions OJC Nos.6354-55 of 1999
disposed of in terms of the above direction.
c {4) Intervention applications filed in these appeals are
also disposed of in the light of observations in Para
74 of this judgment.
(5) Parties are left to bear their own costs.
D R.P. Appeals allowed.
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