# f 2 S.C.R. 1.031 AMARENDRA KUMAR MOHAPATRA & ORS v. STATE OF ORISSA & ORS

- **Citation:** [2014] 2 S.C.R. 1031
- **Court:** Supreme Court of India
- **Decided:** 2014-02-19
- **Case number:** Civil Appeal No. 8322 of 2009
- **Bench:** T.S. Thakur, Vikramajit Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-2-s-c-r-1-031-amarendra-kumar-mohapatra-ors-v-state-of-orissa-ors-29793
- **Pages:** 70

## Headnote

OR/SSA SERVICE OF ENGINEERS (VALIDATION OF
APPOINTMENT) ACT, 2002:
Nature and purpose of the Act - Held: The Act cannot be
said to be a validating enactment - The enactment in the case
B
c
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 regularisat

## Text

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[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
[T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]
OR/SSA SERVICE OF ENGINEERS (VALIDATION OF
APPOINTMENT) ACT, 2002:
Nature and purpose of the Act - Held: The Act cannot be
said to be a validating enactment - The enactment in the case
B
c
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.20003500/- 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.
E
F
G
H
In the instant appeals, the following questions of law
arose for consideration:
"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?
2.
If the impugned enactment simply grants
regularisation, does it suffer from any
constitutional infirmity?
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 were appointed on ad hoc
basis?"
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 nonexistent 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] [1069G
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 4041] [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
0 the High Court, that they would be eventually absorbed
in service as Assistant Engineers. [para 45-46] [1077-AE, 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
F
the wrath of Art. 14 upon the legislation. [para 52] [1083C-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.
8
2.11 However, the degree holder Junior Engineers
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
v. State of Maharashtra and Ors. 1990 (2) SCR 900 = (1990)
B
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] (1097B-C, E-F]
4. In the result this Court passes the following order:
(1)
The impugned judgment and order dated 15F
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
A
B
c
D
E
F
G
H
1044
SUPREME COURT REPORTS
[2014] 2 S.C.R.
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
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
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]
Case Law Reference:
1973 (1) SCR 515
relied on
para 22
2003 (5) Suppl. SCR 751
relied on
para 22
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
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
AIR 1958 SC 468
referred to
para 27
(1913] AC 107
referred to
para 28
2004 (8) sec 599
held inapplicable para 33
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
1952 SCR 284
referred to
para 49
1959 SCR 279
referred to
para 4S
1979 ( 2 ) SCR 476
referred to
para 49
1974 ( 3 ) SCR 760
relied on
para 53
1975 ( 3 ) SCR 802
relied on
para 54
1984 ( 3 ) SCR 252
relied on
para 55
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
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8322 of 2009.
A
B
c
D
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.
Civil Appeal No. 8325 of 2009.
Civil Appeal No. 8326 of 2009.
Civil Appeal No. 8327 of 2009.
Civil Appeal No. 8328 of 2009.
Civil Appeal No. 8329 of 2009.
Civil Appeal No. 8330 of 2009.
F
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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. .
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
G
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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
8 the 2nd Meeting of the Council of Ministers held on 15th May,.
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
D
E
F
G
H
Degree Engineers.
The problems were discussed at length and the
following decisions were taken.
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
created one in each Block.
iii)
100 posts of Stipendiary Engineers may be
created in the Irrigation Department for
survey and investigation.
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
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
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:
(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.
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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
c
batch-wise starling from 1984 for the remaining
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
F
1989 will not be eligible for empanelment.
(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
H
Secretary, Works
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
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2014] 2 S.C.R.
(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
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
this will be attended to by the Employing
Departments/Undertakings as a matter of course.
ORDER
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
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.
BY ORDER OF THE GOVERNOR
S. SUNDARARANJAN
ADDITIONAL DEVELOPMENT COMMISSIONER
AND
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
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
E
Engineers can also compete against this quota.
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
A
B
c
1054
SUPREME COURT REPORTS
[2014] 2 S.C.R.
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
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."
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.