STATE OF JHARKHAND & Ors. v. KAMAL PRASAD & Ors.

#2. The action of the appellants in terminating the services of the respondent-employees who have rendered continuous service in their posts during D pendency of the Letters Patent Appeals was quashed by the High Court after it has felt that the action is not only arbitrary but shocks its conscience and therefore it has rightly exercised its discretionary power and granted the reliefs to the respondent-employees which do not E call for interference by this Court. The High Court was correct in reinstating the respondent-employees into their services under the appellants by relying on the legal principles laid down by this Court in the Constitution Bench decision in Uma Devi's case. [Paras 23, 24) [400-D-H] F Order

15.12.1996 CWJC No. 9420 Paras Kumar v. Vol. of 1996 State of Bihar II pp. 20- 21

#1. 2.

20.6.1997 CWJC No. 11761 Sardar Pradeep Vol.II Singh v. State of p.22 of 1996 Bihar

4.4.2002 CW JC No.2606 of Jawahar Prasad Vol.1 pp Bhagat v. State of 84 and 2002 Bihar 86

4.4.2002

4.4.2002

8.1.2003 CW JC No.4327 of Akhilesh Prasad 2002 v. State of Bihar 1 CW JC No.4365 of Vi jay 2002 Kumar Sharma V. State of Bihar CWJC No.2087 of 2010 as noticed present case i.e. W .P No. 2087 of 2010 Vol.I p.147 .at pp.163- 164 E F G H 386 SUPREME COURT REPORTS [2014] 13 S.C.R. A

#15. In support of second legal submission formulated above, the learned senior counsel has submitted that neither the judgment in Umadevi's case (supra) nor in U.P. State Electricity Board v. Pooran Chandra Pandey & Ors. 5 is applicable to the cases in hand in favour of the respondent- s employees. It is further submitted that the Division Bench of the High Court has erroneously applied to the cases of respondent-employees and the directions contained at para 53 of Umadevf s case since the respondents continued in service with the appellants at the instance of court's interim C orders passed in writ petitions referred to supra which has been established by the appellants. He has also placed reliance upon the judgment of this Court in the case of Amrit Lal Berry v. Collector of Central Excise, New Delhi & Ors. 6 In support of his legal contention that respondent-employees D continued in service with the State Governments of Bihar and Jharkhand, the learned counsel stated that similarly placed ·employees had approached the High Court seeking certain reliefs and they had obtained interim orders. Hence, the benefit E of said interim order passed by the High Courts of Patna and Jharkhand has been extended to th_e respondent-employees and therefore they were continued in services by applying the law laid down by this Court in the aforesaid case. Therefore, the finding recorded by the Division Bench accepting the F submission on behalf of the respondent-employees in these appeals that the respondent-employees continued in service uninterruptedly without the interim orders, is factually not correct. Therefore, the learned senior counsel for appellants contends that the said finding is not only erroneous but also suffers from G error in law. Hence, the impugned judgment and orders are liable to be set aside. He further contends that in view of the above contentions, the respondent-employees are not entitled 5 (2007) 11 sec 92 s (1975) 4 sec 714 H . STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 387 for the reliefs granted by the Division Bench of the High Court A in the impugned judgment and orders and therefore, he has prayed for setting aside the same by allowing these Civil Appeals.

#16. The aforesaid submissions made by the learned 8 senior counsel on behalf of the appellants were rebutted by the learned senior counsel, Mr. J.P. Cama appearing on behalf of the respondent-employees justifying the reasons recorded in the impugned judgment contending that the respondent employees were appointed as Junior Engineers in the year c 1981 in the Rural Department of the State of Bihar and in the year 1985 when regular appointments were to be made to the Posts of Assistant Engineers in pursuant to an advertisement made in the year 1985 itself, the respondents applied for the same but did not succeed and therefore, they were put in the D waiting list. However, their services were not terminated even after regular appoir; itments were made to the posts in the year 1985 as contended by the appellants. Their services were not dispensed with because their work was good and they were appointed as Assistant Engineers by order of the Bihar State · E Government dated 27.6.1987 and thereafter they continued in service without break in their service till the orders of termination dated 24.8.2011 passed against them. It is further contended that even after bifurcation of the appellant-State of . Jharkhand from State of Bihar on .15.11.2002, the respondent- F employees continued in employment without any break. It is contended that the existence of vacancies of Assistant Engineers in the Rural Development Department in the erstwhile State of Bihar is not in dispute. The existence of G vacancies in the said posts is not denied by the appellant State as there were 207 vacancies as on 2010. Therefore, they continued in service though they were appointed by order of the State· Government on 27.6.1987 on ad hoc basis but continued as such till the termination orders were passed H 388 SUPREME COURT REPORTS [2014] 13 S.C.R. A against them. They were being paid regular salary and other service benefits were given to them thereby treating them as permanent employees by the appellants. He further contended that the Division Bench in its judgment has held that the State Public Service Commission merely examined suitability of B eligible candidates for the posts and recommended the names of such suitable candidates for appointment to the posts. In the case on hand, it is not the position of the State Government that these employees holding the posts of Assistant Engineers and rendering their services are not suitable persons to hold the posts. It is further contended that interim stay was granted by the High Court in the cases of the respondent-employees for the first time on 9.9.2010. Therefore, it is not correct to state that they continued in the service with the intervention of interim orders of the High Courts as urged by the appellants' senior counsel and therefore, they are not entitled to the benefit of the decision of Umadevi's case (supra). Further, the learned senior counsel contends the core questions involved in the case in hand are:- C 0 ( 1) Whether the services of the respondent-employees should have been considered for regularization by the State Government even though in the first instance they did not obtain selection through the Public Service Commission and on the 2"ct occasion they did not participate in the selection process? (2) Whether, they were entitled to claim regularization based only on the fact they had worked for more than 10 years of service continuously with the appellants? He further submits that the High Court, considering the law declared in Umadevfs case (supra) at para 53 and also keeping in view the justice and good conscious, has granted the relief to the respondent-employees. The same·cannot be E F G H STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 389 termed either as erroneous or error in law. Further, it is A contended that the Division Bench of the High Court of Jharkhand has rightly rejected the contentions urged by the Advocate General to the effect that the persons who are appointed on ad hoc/temporary basis had an opportunity to get another appointment in regular selection and they failed to B participate in the selection process, th.erefore the same would not be a ground for the appellants to refuse regularization of service of the respondent-employees, even after they have not availed such opportunity. The employer State Government did not choose to dispense with their s.ervices though there is no C restraint order from the court. In the c·ases in hand, both the Government of State of Bihar and Jharkhand have continued the service of all the respondent-employees for 10 or more years even after they failed to get appointed to the posts on a D regular basis. Therefore, the principle laid down in Umadevi's case (supra) would squarely apply in the case in hand in support of the respondent-employees. The submission made by the learned senior counsel on behalf of the appellants that the regularization of the respondent-employees in their service E would deprive the other eligible persons from employment is· wholly untenable in law as the same would constitute not only. discrimination but also deprivation of their livelihood, which is not legally permissible in law. The question is whether the appellants can terminate the services of the present employees F who have served for more than 10 to 30 years, thereby rendering injustice to the eligible people. Therefore, in any event, it is doubtful whether the employer, more particularly the State can raise such a plea to deny employment to the employees and whether the law can be interpreted in a manner G so as to give all benefits to the wrongdoers. The appointments were given to a large number of engineers by the St~te Government of Bihar consciously and there is no allegation of unfairness in their appointment which can be said to be tainted H 390 SUPREME COURT REPORTS [2014] 13 S.C.R. 0 A or as a result of any nepotism. The error of the State Government of either Bihar or Jharkhand would not justify to throw away the respondent-employees by making them unemployed who have been well-settled in their life since the same would amount to a clear case of discrimination and B deprivation of their livelihood. Further, the Division Bench of High Court has rightly held that there is duty cast upon the State Government of Jharkhand to consider the claim of the respondent-employees as one-time regularization of ad-hoc/ temporary employees in their posts. Further, it is contended C by the learned senior counsel that similarly situated employees are continuing in service in the State Government of Bihar. Therefore, the relief sought by the respondent-employees' continuation in service, clearly takes care of all the hurdles coming in their way. The Division Bench of the High Court is of the considered opinion that the employees services should have been regularized, but on the other hand, the appellant State Government, during pendency of the Letters Patent Appeals, has terminated their services. The same cannot be E an hurdle for it and it would not come in the way of the appellant State Government for grant of relief in favour of the respondent employees. Lastly, it is submitted that there is material distinction between filling up a vacant post by direct recruitment on the one hand and "regularization" of existing employees in their posts by applying the decision of Umadevi's case (supra) who have served for more than 10 years in the posts with the appellants without the interventions of any interim orders granted by any court. Further, he urges that the principle which flows from the mandate of Articles 14 and 21 of the Constitution G of India is supported at paragraph 53 of Umadevi's case (supra). It is further contended that it is not a case of "appointment" as mentioned hereinbefore but it is a case of "regularization". The only qualification for the latter is continuous service of the employees without intervention of the court order for a period of 10 years. Once this takes place, the citizen's H F STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 391 . right to livelihood as guaranteed under Article 21 as also his/ A her right to fair treatment and against arbitrary action of the appellants is protected by Article 14 of the Constitution of India. That is the ratio of the impugned judgment of Division Bench of the High Court. The conclusion and the finding and reasons recorded by the Division Bench of the High Court on this aspect B of the matter in the impugned judgment is squarely covered by the Constitution Bench decision of this Court in the case of Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.7 The relevant para's of the same will be extracted in the reasoning portion of the judgment. Therefore, the learned C senior counsel has prayed for dismissal of the appeals.

#17. All the other learned counsel appearing for the respondent-employees in the connected Civil Appeals have adopted the submission made by the learned senior counsel D on behalf of the respondent-employees in the Civil Appeal@ SLP (C) No. 266 of 2012. In view of ttie above submissions, the learned counsel forthe respondent-employees requested this Court for dismissal of the Civil Appeals.

#18. With reference to 1he above said rival legal contentions, urged on behalf of the parties the following points would arise for consideration in these Civil Appeals :- E (1) Whether the impugned judgment is correct in holding F that the respondents-employees are entitled for the benefit of Umadevi's case (supra) as they rendered more than 10 years of service in the State Government of Jharkhand without intervention of the court? (2) Whether the impugned judgment passed by the G Division Bench of High Court is vitiated on account of erroneous finding or suffers from error in law? 1 (1985) 3 sec 545 H 392 SUPREME COURT REPORTS [2014] 13 S.C.R. A (3) Whether the impugned judgment warrants interference by this Court in exercise of power under Article 136 of the Constitution of India on the grounds urged in these ap; Jeals? B 0)Wh~o~eIB? Answer to Point Nos. 1 & 2: These poi~ts are answered together as they are inter related with each other. c

#19. The learned senior counsel appearing on behalf of the appellants argued that there have been repeated findings of the High Court that the respondents have been continued in service voluntarily by the employer for more than 10 years. 0 Correctness of the same is disputed by the learned senior counsel for the appellants by placing reliance upon at least six interim orders passed by the High Court all of which are prior to 10-4-2006, the dates of these Orders are as follows: E (i) Order dated 15-12-1996 in CWJC NO. 9420of1996- Param Kumar v. State of Bihar. (ii) Order dated 20-6-1997 in CW JC No. 11761 of 1996- Sardar Pradeep Singh v. State of Bihar. F (iii) Order dated 4-4-2002 in CWJC No. 2606 of 2002- Jawahar Prasad Bhagat v. State of Bihar. (iv) Order dated 4-4-2002 in CWJC No. 4327 of 2002- Akhilesh Prasad v. State of Bihar. G (v) Order dated 4-4-2002 in CWJC No. 4365 of 2002- Vijay Kumar Sharma v. State of Bihar. (vi) Order dated 8-1-2003 in CWJC No. 2087 of 2010. H STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 393 Further, two stay orders have also been passed by the A High Court subsequent to 10-4-2006, which are (1) Order dated 9-9-2007 of the learned single Judge and (2) Order dated 13-9-2011. Further, in the case of Uma Devi (supra) it has·been 8 held by the Constitution Bench of this Court that: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in 5. V. Narayanappa C (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 for ten years or more but without the 0 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 E context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under F 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 G 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 judgment, but there should be no further by-passing of the constitutional time measure, H 394 SUPREME COURT REPORTS [2014] 13 S.C.R. A requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." (Emphasis laid by this Court) The learned senior counsel for the appellants placing B reliance upon the aforesaid paragraph of the decision submits that the respondents do not fulfil the requirement of 10 years of uninterrupted service which is sine qua non for regularization of the services of the employees in their posts. Hence, the legal principle laid down by this Court in the aforesaid case cannot apply in the present case, therefore, the respondents are not entitled for regularization. C

#20. We have heard the factual and legal contentions urged by the learned senior counsel for both the parties and D carefully examined the findings and reasons recorded in the impugned judgment with reference to the evidence produced on behalf of the respondent-employees. The evidence on record produced by the respondent-employees would clearly go to show that they have been rendering services in the posts E as ad-hoc Engineers since 1987 and have been discharging their services as permanent employees with the appellants. Additional 200 posts were created thereafter by the State Government of Bihar. However, the respondents continued in their services as ad hoc employees without any disciplinary proceedings against them which prove that they have been discharging services to their employers to their satisfaction. F The learned senior counsel on behalf of the appellants have failed to show as to how the interim orders upon which G he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in the case of Amrit Lal Berry (supra), without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the H STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 395 contention that the interim orders obtained by the similarly A placed employees in the writ petitions referred to supra were extended to the respondent-employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned senior counsel has failed to prove that the respondents have failed to render continuous B services to the appellants at least for ten years without intervention of orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious C issue that the respondent-employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Uma Devi's case (supra) at paragraph 53 squarely applies to the present cases. The D Division Bench of the High Court has rightly held that the respondent-employees are entitled for the relief, the same cannot be interfered with by this Court. : 21. In fact, the, Division Bench of the High Court by regularizing the respondent-employees vide its impugned E order has upheld the constitutional principle laid down by this Court in the case of Olga Tellis (supra), the relevant para of which reads as under:- "32. As we have stated while summing up the petitioners' F case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of G their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon H 396 A. B c D E F G H SUPREME COURT REPORTS [2014] 13 S.C.R. that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migr9tion of the rural population to big cities. They migrate because they have no means of livelih~od in the villages. The motive force which propels their desertion of their hearths and home::. in the village is the struggle for survival. that is. the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely; eat. only if they have the STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALA GOWDA, J.] 397 means of livelihood. That is the context in which it was A said by Douglas, J. in Bakseythat the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", . as observed by Field, J. in Munn v. Illinois means B something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P" C (Emphasis laid by this Court) In view of the foregoing reasons which we have assigned in this judgment and in upholding the findings and reasons D recorded by the Division Bench of the High Court in the impugned judgment, it cannot be said that the findings and reasons recorded by the High Court in arriving at the conclusions on the contenticus issues that arose for its consideration can be termed either as erroneous or error in E law.

#22. In view of the foregoing reasons, we are inclined to conclude that the High Court was legally correct in extendihg the benefits of Uma Devi's case to the respondent-employees. F Therefore, we answer point nos. 1 and 2 in favour of the respondent-employees. Answer to Point No. 3

#23. Though, point Nos. 1 and 2 have been answered in G favour of the respondents, the question raised regarding the requirement of interference by this Court under Article 136 of the Constitution of India requires separate and independent consideration by us. In the case of Jamshed Hormusji Wadia H 398 SUPREME COURT REPORTS [2014] 13 S.C.R. A B C D E F G H ~~ Board of Trustees, Port of Mumbai & Anr. 8 observed as under: , this Court "33.The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when .a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist." (Emphasis laid by this Court) This position was reaffirmed and further elucidated in , wherein the the case of Mathai@ Joby v. George & Anr. 9 two judge Bench of this Court held as follows: "21. Mr. Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the Constitution. (i) All matters involving substantial questions of law · relating to the interpretation of the Constitution of India; (ii)All matters of National or public importance; (iii) Validity of laws, Central and State; (iv) After Kesavananda Bharati, (1973) 4 SCC 217, the judicial review of Constitutional Amendments; and a (2004) 3 sec 214 9 (2010) 4 sec 358 · STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 399 (v) To settle differences of opinion of important issues of A law between High Courts.

#22. We are of the opinion that two additional categories of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave B miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised. c

#23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden. 0 E . 24. It may be mentioned that in Pritam Singh v. The State AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a more or less uniform standard should be adopted in granting Special Leave". F Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book· My Life', a gamble. This is not a desirable state of affairs as there should be some G uniformity in the approach of the different benches of this Court. Though Article 136 no doubt confers a discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770)4 Burr H 400 SUPREME COURT REPORTS [2014) 13 S.C.R. A 2528 "means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful" In view of the legal principles laid down in the aforesaid B decisions, we are of the opinion .that the decision of the High Court does not fall in either of the categories mentioned above which calls for our interference. The Division Bench of the High Court having regard to the glaring facts that the respondent employees have continuously worked in their posts for more c than 29 years discharging permanent nature of duties and they have been paid their salaries and other service benefits out of the budget allocation, no objection was raised by the CAG in this regard and therefore, it is not open for the appellants to contend that the law laid down in Uma Devi's case (supra) D has no application to the fact situation. The action of the appellants in terminating the services of the respondent . employees who have rendered continuous service in their posts during pendency of the Letters Patent Appeals was quashed by the High Court after it has felt that the action is not only E arbitrary but shocks its conscious and therefore it has rightly exercised its discretionary power and granted the reliefs to the respondent-employees which do not call for our interference. Therefore, we are of the opinion that this Court will not interfere with the opinion of the High Court and on the F contrary, we will uphold the decision of the High Court both on factual and legal aspects as the same is legally correct and it has done justice to the respondent-employees. Answer to Point No. 4 G

#24. As already mentioned above, we are of the opinio~ that the High Court was correct in reinstating the respondent employees into their services under the appellants by relying on the legal principles laid down by this Court in the Constitution H Bench decision in Uma Devi's case (supra). We accordingly STATE OF JHARKHAND v. KAMAL PRASAD [V. GOPALAGOWDA, J.] 401 direct the appellants to implement the orders of the Division A Bench of the High Court thereby continuing the respondents in their services and extend all benefits as have been granteo by · it in the impugned judgment.

#25. The Civil Appeals are dismissed accordingly. B Bibhuti Bhushan Bose Appeals dismissed.