Sheo Narain Nagar vs The State Of Uttar Pradesh

CIVIL APPEAL NO.18510 OF 2017 (Arising out of SLP(C)No.6183 of 2015)

SHEO NARAIN NAGAR & ORS. ... APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH & ORS. ... RESPONDENT(S)

O R D E R

1. Leave granted.

2. Heard learned counsel for the parties.

3. The appellants were initially engaged on daily-

wage basis in the month of August, 1993. Later on,

they were appointed on contractual basis in the year

1996. In the year 2000, Respondent No.3 issued an

order appointing them as regular employees on the

minimum pay scale. By way of an order dated

25.7.2006, Signature Not Verified they were conferred the status of Digitally signed by SARITA PUROHIT Date: 2017.11.22 16:50:31 IST Reason: temporary employees with retrospective effect from

1 1.10.2002. There was a direction issued by the High

Court to consider them for regularization, but their

services were not regularized. Learned Single Judge

ultimately dismissed the writ petition seeking

regularisation. That order was affirmed by the

Division Bench of the High Court.

4. In the year 2014, the services of the appellants

were terminated. In view of the findings recorded

by the High Court vide order dated 27.10.2014, while

dealing with the case of the appellants for

regularization, that their appointments were illegal

and not irregular one. This Court, while

entertaining the special leave petition, on 23.3.2015

passed the following order:

“Issue notice.

It appears prima facie, that the petitioners had approached the High Court with a plea for regularization of services. Even this plea has not found favour in the impugned order. However, acting on this order dismissing the writ petition the respondents have decided to terminate the services of the petitioners.

There is no casual connection between the two. However, it is the common case that the

2

petitioners are not working for the last four months. We put the respondents to caution that if this Court does not uphold the impugned judgment the natural consequences will be that the petitioners will be entitled to reinstatement with full back wages. Therefore, it would be prudent for the respondents to carry on the services of the petitioners. It also appears that there is no back door employment or entry of the petitioners so as to dis-entitle them from what is envisaged in paragraph 53 of Secretary, State of Karnataka & Ors. vs. Umadevi (3) & Ors. (2006) 4 SCC 1.

If the respondents permit the petitioners to return to their services, this will be without prejudice to the petitioners’ rights in the present proceedings.”

It was observed by this Court that there was no

back door employment or entry of the appellants in

service, so as to disentitle them from the benefit of

regularization as envisaged in paragraph 53 of

decision of this Court in Secretary, State of

Karnataka & Ors. vs. Umadevi & Ors., (2006) 4 SCC 1.

Same is extracted hereunder:

“One aspect needs to be clarified. There may be cases where irregular

3 appointments (not illegal appointments) as explained in State of Mysore vs. S.V. Narayanappa, (1967) 1 SCR 128, R.N. Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409, and B.N. Nagarajan vs. State of Karnataka, (1979) 4 SCC 507, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. 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 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 under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.

We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this

4 judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

5. Thereafter, the appellants have been taken back

in service and are continuing to serve. By now they

have rendered services for about 24 years, except for

an interregnum period of few months from October,

2014 till March, 2015.

6. It was submitted by learned counsel appearing on

behalf of the appellants that the services of the

appellants ought to have been regularized. It was

not a case of back door entry or illegal appointment,

but only irregular and they are entitled for

regularization. Learned counsel has placed reliance

on the observations made in the interim order as well

as on the decision of Uma Devi (Supra). It was also

submitted that when temporary status was granted by

Respondent No.3 in the year 2006, the only question

that remained was regularization from that very date;

the minimum pay in the pay-scale was granted in the

year 2000; and thereafter on 25.7.2006, temporary

5 status had also been granted to them w.e.f.

1.10.2002; thus, their services could not have been

dispensed with and were required to be regularized.

7. Learned counsel appearing on behalf of the

respondent has relied upon paragraph 44 of the

decision in Uma Devi (Supra), so as to contend that

it was not the case of irregular appointment but of

illegal appointment; there was no post available on

which the services of the appellants could have been

regularized and appointment were in contravention of

the reservation policy also; thus, termination order

was rightly issued and, in no case, the appellants

were entitled for regularization of their services.

8. When we consider the prevailing scenario, it is

painful to note that the decision in Uma Devi

(Supra) has not been properly understood and rather

wrongly applied by various State Governments. We

have called for the data in the instant case to

ensure as to how many employees were working on

contract basis or ad-hoc basis or daily-wage basis in

different State departments. We can take judicial

notice that widely aforesaid practice is being

6 continued. Though this Court has emphasised that

incumbents should be appointed on regular basis as

per rules but new devise of making appointment on

contract basis has been adopted, employment is

offered on daily wage basis etc. in exploitative

forms. This situation was not envisaged by Uma Devi

(supra). The prime intendment of the decision was

that the employment process should be by fair means

and not by back door entry and in the available pay

scale. That spirit of the Uma Devi (supra) has been

ignored and conveniently over looked by various State

Governments/ authorities. We regretfully make the

observation that Uma Devi (supra) has not be

implemented in its true spirit and has not been

followed in its pith and substance. It is being used

only as a tool for not regularizing the services of

incumbents. They are being continued in service

without payment of due salary for which they are

entitled on the basis of Article 14, 16 read with

Article 34 (1)(d) of the Constitution of India as if

they have no constitutional protection as envisaged

in D.S. Nakara v. Union of India, AIR 1983 SC 130

from cradle to grave. In heydays of life they are

7 serving on exploitative terms with no guarantee of

livelihood to be continued and in old age they are

going to be destituted, there being no provision for

pension, retiral benefits etc. There is clear

contravention of constitutional provisions and

aspiration of down trodden class. They do have equal

rights and to make them equals they require

protection and cannot be dealt with arbitrarily. The

kind of treatment meted out is not only bad but

equally unconstitutional and is denial of rights. We

have to strike a balance to really implement the

ideology of Uma Devi (supra). Thus, the time has come

to stop the situation where Uma Devi (supra) can be

permitted to be flouted, whereas, this Court has

interdicted such employment way back in the year

2006. The employment cannot be on exploitative

terms, whereas Uma Devi (supra) laid down that there

should not be back door entry and every post should

be filled by regular employment, but a new device has

been adopted for making appointment on payment of

paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we

consider the pith and substance of true spirit in Uma

8 Devi (supra).

9. Coming to the facts of the instant case, there

was a direction issued way back in the year 1999, to

consider the regularization of the appellants.

However, regularization was not done. The

respondents chose to give minimum of the pay scale,

which was available to the regular employees, way

back in the year 2000 and by passing an order, the

appellants were also conferred temporary status in

the year 2006, with retrospective effect on

2.10.2002. As the respondents have themselves chosen

to confer a temporary status to the employees, as

such there was requirement at work and posts were

also available at the particular point of time when

order was passed. Thus, the submission raised by

learned counsel for the respondent that posts were

not available, is belied by their own action.

Obviously, the order was passed considering the long

period of services rendered by the appellants, which

were taken on exploitative terms.

10. The High Court dismissed the writ application

9 relying on the decision in Uma Devi (supra). But the

appellants were employed basically in the year 1993;

they had rendered service for three years, when they

were offered the service on contract basis; it was

not the case of back door entry; and there were no

Rules in place for offering such kind of appointment.

Thus, the appointment could not be said to be illegal

and in contravention of Rules, as there were no such

Rules available at the relevant point of time, when

their temporary status was conferred w.e.f.

2.10.2002. The appellants were required to be

appointed on regular basis as a one-time measure, as

laid down in paragraph 53 of Uma Devi (supra). Since

the appellants had completed 10 years of service and

temporary status had been given by the respondents

with retrospective effect in the 2.10.2002, we direct

that the services of the appellants be regularized

from the said date i.e. 2.10.2002, consequential

benefits and the arrears of pay also to be paid to

the appellants within a period of three months from

today.

11. Impugned judgment and order and also order

10 terminating the services are hereby quashed. The

appeal is, accordingly, allowed. Pending application,

stands disposed of.

...................J. [ARUN MISHRA]

...................J. [L. NAGESWARA RAO] NEW DELHI;

13TH NOVEMBER, 2017.

11 ITEM NO.8 COURT NO.10 SECTION XI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).6183/2015

(Arising out of impugned final judgment and order dated 27-10-2014 in SA No.619/2014 passed by the High Court Of Judicature At Allahabad, Lucknow Bench)

SHEO NARAIN NAGAR & ORS. Petitioner(s)

VERSUS

STATE OF UTTAR PRADESH & ORS. Respondent(s) (With appln.(s) for permission to file addl. documents, modification of interim order and for exemption from filing O.T.)

Date : 13-11-2017 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE L. NAGESWARA RAO

For Petitioner(s) Mr. Pradeep Kant,Sr.Adv.

Mr. Divyanshu Sahay,Adv. Mr. Rohit Kumar Singh,AOR Mr. Sanjay Goel,Adv.

For Respondent(s) Mr. Aarohi Bhalla,Adv.

State Ms. Sakshi Kakkar,Adv.

For Mr. Ardhendumauli Prasad,Adv.

Mr. Lav Kumar Agrawal,Adv. Mr. Kundan Kumar Lal,AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

..2/-

12 .2.

The civil is allowed in terms of the signed reportable order

(Sarita Purohit) (Jagdish Chander) Court master Branch Officer

(Signed reportable order is placed on the file)

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