# S. NAGARAJ AND ORS v. STATE OF KARNATAKA AND ANR

- **Citation:** [1993] Supp. 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1993-08-26
- **Bench:** S. Ratnavel Pandian, R.M. Sahai, B.P. Jeevan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-nagaraj-and-ors-v-state-of-karnataka-and-anr-11997
- **Pages:** 47

## Headnote

Contempt of Courts Act, 1971-Section 2-Binding effect of an order
passed by Supreme Cowt-Order improperly obtained-No cowt or auth01ity
A
B
can ignore it-Any doubt or ambiguity can be removed by court which passed C
the orde1~No authority can assume to itself role of substituting it or clarifying
and modifying it according to its own understanding-Order of Supreme Cowt
not to be taken lightly.
Constitution of India-A1t. 137-Supreme Court Rules-Order XL Rule
I-Review-Recalling or reviewing its own order-Power of Court to remove D
e17or.
Service Law-Possessing minimum qualification prescribed under
mles--does not mean appointment on that post-No employee can claim
higher post or scale of pay commensurate with his qualificatiort-AppointE
ment to a post which carries lower qualificatiort-Whether by itself,· amounts
to exploitatlon-Held, No-It is not violative of any constitutional guarantee
or principle.
Service Law-Equal pay for equal work-Doctrine of.-ApplicabilityNot to be unduly stretched to fntstrate entire process of selection and appointF
ment in Government Se1vice.
Service Law-Kamataka Civil (Special Recrnitment) Rules 1982-Rule
3 as amended in 1987-Stipendimy Graduate Emplayment Scheme,
1977-Reservation of 40% post for stipendiary graduates in direct recmits G
quota-Needs a fresh look-Rules amended in 1987 are against public policy.
Service Law-Kamataka Civil (Special Recrnitment) Rules, I982Stipendia1y Graduate Employment Scheme, 1977-Reservation of 40% posts
for stipendiary graduates in direct recrnits quota-Claim of regularisation-State's failure to b1ing correct facts on record-Order of Supreme Cowt H
1
2
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A to absorb all stipendia1y graduates in scale of First Division Assistants placing
them in higher scale amongst Assistants-Reconsideration-Order
recalled-All stipendia1y graduates covered by order to be appointed as
Second Division Assistants in Grade 'C' only.
B
Constitution 0Flndia-A1ticles 14 and 16-Scheme framed to help
educated unemployed-Commendable-Rule which results in undue benefit
to one class to the exclusion of others-pennits ently in State Civil Service
without competition-Exploitation by State in violation of Alt. 39-Kamataka
Civil (Special Recmitment) Rules 1982 as amended in 1987-Validity of-Not
challenged-Rules being not in consonance with constitutional spilit-Any
C appointments made under these mles--Not open to challenge on ground that
they are not in consonance with constitutional spilit.
In 1977 the Government of Karnataka framed a sheme for employment of unemployed graduates, post graduates and diploma-holders with
D a view to relieve unemployment among them. The scheme was made
applicable to persons coming from families having less than Rs. 3600
annual income and no earning member in the family. The stipend was
raised finally to Rs 640 p.m. from Rs. 150 p.m. After expiry of nearly four
and half years the Government framed Karnataka Civil (Special Recruitment) Rules, 1982, reserving 50% of the direct recruitment vacancies
E
existing on the date the rules came into force, to be filled by stipendiary
graduates and local candidates in various categories of posts which included First and Second Division Assistants in State Civil Services by a
competitive examination to be conducted by the Public Service Commission. These rules were amended in 1987 and three important changes were
F
made. The rules became applicable to any category of posts in group 'C'
in the State Civil Services, 50% was bifurcated and 40% was reserved for
stipendiary graduates and 10% for local candidates, and the requirement
of examination or interview was done away with.
The Association of Stipendiary Graduates filed writ petitions seeking
G declaration that they were regular employees under the rules. Their claim
was not accepted by the Tribunal as they having been appointed under a
special scheme and not against any post in a cadre they were not members
of any service of the State

## Text

_Characters 0–39,940 of 116,505. This is a partial read: ask again with offset=39940 for what follows._

-
-
S. NAGARAJ AND ORS.
v.
STATE OF KARNATAKA AND ANR.
AUGUST 26, 1993
[S. RATNAVEL PANDIAN, R.M. SAHAI AND
B.P. JEEVAN REDDY, JJ.]
Contempt of Courts Act, 1971-Section 2-Binding effect of an order
passed by Supreme Cowt-Order improperly obtained-No cowt or auth01ity
A
B
can ignore it-Any doubt or ambiguity can be removed by court which passed C
the orde1~No authority can assume to itself role of substituting it or clarifying
and modifying it according to its own understanding-Order of Supreme Cowt
not to be taken lightly.
Constitution of India-A1t. 137-Supreme Court Rules-Order XL Rule
I-Review-Recalling or reviewing its own order-Power of Court to remove D
e17or.
Service Law-Possessing minimum qualification prescribed under
mles--does not mean appointment on that post-No employee can claim
higher post or scale of pay commensurate with his qualificatiort-AppointE
ment to a post which carries lower qualificatiort-Whether by itself,· amounts
to exploitatlon-Held, No-It is not violative of any constitutional guarantee
or principle.
Service Law-Equal pay for equal work-Doctrine of.-ApplicabilityNot to be unduly stretched to fntstrate entire process of selection and appointF
ment in Government Se1vice.
Service Law-Kamataka Civil (Special Recrnitment) Rules 1982-Rule
3 as amended in 1987-Stipendimy Graduate Emplayment Scheme,
1977-Reservation of 40% post for stipendiary graduates in direct recmits G
quota-Needs a fresh look-Rules amended in 1987 are against public policy.
Service Law-Kamataka Civil (Special Recrnitment) Rules, I982Stipendia1y Graduate Employment Scheme, 1977-Reservation of 40% posts
for stipendiary graduates in direct recrnits quota-Claim of regularisation-State's failure to b1ing correct facts on record-Order of Supreme Cowt H
1
2
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A to absorb all stipendia1y graduates in scale of First Division Assistants placing
them in higher scale amongst Assistants-Reconsideration-Order
recalled-All stipendia1y graduates covered by order to be appointed as
Second Division Assistants in Grade 'C' only.
B
Constitution 0Flndia-A1ticles 14 and 16-Scheme framed to help
educated unemployed-Commendable-Rule which results in undue benefit
to one class to the exclusion of others-pennits ently in State Civil Service
without competition-Exploitation by State in violation of Alt. 39-Kamataka
Civil (Special Recmitment) Rules 1982 as amended in 1987-Validity of-Not
challenged-Rules being not in consonance with constitutional spilit-Any
C appointments made under these mles--Not open to challenge on ground that
they are not in consonance with constitutional spilit.
In 1977 the Government of Karnataka framed a sheme for employment of unemployed graduates, post graduates and diploma-holders with
D a view to relieve unemployment among them. The scheme was made
applicable to persons coming from families having less than Rs. 3600
annual income and no earning member in the family. The stipend was
raised finally to Rs 640 p.m. from Rs. 150 p.m. After expiry of nearly four
and half years the Government framed Karnataka Civil (Special Recruitment) Rules, 1982, reserving 50% of the direct recruitment vacancies
E
existing on the date the rules came into force, to be filled by stipendiary
graduates and local candidates in various categories of posts which included First and Second Division Assistants in State Civil Services by a
competitive examination to be conducted by the Public Service Commission. These rules were amended in 1987 and three important changes were
F
made. The rules became applicable to any category of posts in group 'C'
in the State Civil Services, 50% was bifurcated and 40% was reserved for
stipendiary graduates and 10% for local candidates, and the requirement
of examination or interview was done away with.
The Association of Stipendiary Graduates filed writ petitions seeking
G declaration that they were regular employees under the rules. Their claim
was not accepted by the Tribunal as they having been appointed under a
special scheme and not against any post in a cadre they were not members
of any service of the State against sanctioned strength. On regularisation
it was held that it could be done by the State only, and. not by court. This
H
order was challenged by filing SLP. The State jfid not file any reply within
-
NAGARAJ v. STATE
3
time allowed by the court. This Court passed an interim order directing A
the State to pay a stipend of Rs. 960 p.m. to the stipendiary graduates. The
Court directed the State to file affidavit regarding regularisation and
absorption of the employees stating specifically the total number of vacancies to be filled up and how many of those were available to be filled up by
stipendiary graduates in accordance with rules. The State submitted that
the number of stipendiary graduates required to be regularised was 5265
and 3691 vacancies in group 'C' were available for being filled by direct
recruitment in accordance with rules. No details were given to explain the
distinction between First and Second Division Assistants nor any break
B
up of vacancies for First Division and Second Division was mentioned.
Based on these facts, the Court passed an order on 24th July 1990, C
directing the State of Karnataka to absorb all the stipendiary graduates
against the existing vacancies and create supernumerary posts for the
remaining.
The petitioners, not satisfied, made an attempt and succeeded furD
ther in persuading this Court to add the word 'graduate' in the order dated
24th July 1990 before the word 'qualification'. The Government after being
apprised of the modified order, without making any effort to get the doubts
removed, issued a number of orders for implementing the order of this
Court by appointing and regularising the stipendiary graduates as
directed by the Court. On 11th June, for the first time a letter was issued E
the contents of which were against the tenor of orders issued till then. In
implementing orders of this Court and absorbing the stipendiary
graduates in posts carrying graduate qualification the Government
decided that absorption could be both against First Division and Second
Division Assistants. However, the stipendiary graduates were not agreeF
able to accept the post of Lower Division Assistant in group 'C' as the
minimum qualification for this was only SSLC. The petitioners filed
Contempt Application accusing the Government of going back on its
earlier orders. A claim was made that the stipendiary graduates should
only be absorbed against posts which required minimum graduate
qualification. The Government issued an order stating that to avoid any G
discrimination and in view of the availability of the vacancies in the Second
Division Assistant Cadre, it was considered appropriate to absorb these
stipendiary graduates only against the Second Division Assistant post.
Another order was passed on 5th September 1991 creating 5000 stipendiary posts. An affidavit was filed stating that the 3691 vacancies men- H
4
SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A
tioned earlier in fact comprised of both Second Division and First Division
Assfatants and out of the vacancies the majority were of the Second
Division Assistants. The affidavit did not mention the earlier orders issued
by the Government.
B
Considering that the Government was deliberately not obeying the
orders of this Court without any valid eiplanation, this court passed an
order dated 24th October 1991 directing the Government to absorb all the
stipendiary graduates as First Division Assistants. An application was
filed for clarification of the order. In the affidavit it was stated that since
the Court in every order had directed the stipendiary graduates to be
C
absorbed in accordance with rules it would have taken 10 to 15 years for
the entire lot to enter into service, it was decided to create 5000 supernumerary posts and absorb all the stipendiary graduates as Second
Division Assistants. It was stated that only 300 posts of First Division
Assistants were available. Administrative difficulties were also pointed out
D
and it was averred for the first time that the direction to absorb them at
the level of First Grade Assistants, would bring about a discrimination
even as between the stipendiary graduates. It was stated that objections
had been received from Second Division Assistants who had been selected
by the Public Service Commission and had been working since 10 to 15
years as they would be seriously affected if the claim of the petitioners was
E
accepted. it was claimed that the order dated 30th October 1991 was
passed by this Court on misrepresentation of facts furnished by the
petitioners.
Disposing of the matter, this Court
F
HELD : By the Court
The application filed by the State Government praying that the order
dated 30th October 1991 for absorbing all the stipendiary graduates in pay
scale of Rs. 1190-2200 to be recalled is allowed. All the stipendiary
G graduates covered by the order dated 24th July 1990 shall be appointed as
Second Di~ision Assistants in Grade 'C' only. (34-C]
Per "k.M. Sahai and S. Ratnaval Pandian, JJ.
1.1. The order dated 30th October 1991 for absorbing all the stipenH diary graduates in pay scale of Rs. 1190-2200 was recalled. The word
-
,
NAGARAJ v. STATE
5
'graduate' added in order dated 24th July 1990 did not purport to mean A
that all those who were working in the Stipendiary Graduate Scheme were
to b.e appointed in Category 'C' post which carried graduate qualification.
[34-DJ
1.2. The order of this Court dated 24th July 1990 directing to fill up
3691 t:xisting vacancies in Category 'C' by the stipendiary graduates and B
further to take steps to appoint remaining 1574 as soon as vacancies arose,
are to be complied within a period of six months, if necessary by creating
supernumeary posts. [34-E-F]
1.3. All the stipendiary graduates covered by the order 24th July 1990
shall be appointed as Second Division Assistants in Grade 'C' only. [34-G]
1.4. Since the delay in implementation of the order passed by this
Court had been occasioned due to petitioners themselves and further they
c
had not worked during that period as Second Division Assistants, they
were not entitled to their salary as Second Division Assistants. However D
the consolidated amount paid to them during pendency of the proceedings
shall not be recovered from them. [34-H, 35-A]
1.5. The appointment of the stipendiary graduates as Second
Division Assistants shall be effective from May 1991, the period fixed by
this Court for compliance of order dated 24th July 1990 for purposes of E
granting retirement benefits only. [35-B]
2.1. If an order had been passed by a Court which had jurisdiction
to pass it then the error or mistake in the order can be got corrected by a
higher court or by an application for clarification, modification or recall
of the order and not by ignoring the order by any authority actively or
passively or disobeying it expressly or impliedly. Even if the order has been
improperly obtained the authorities cannot assume to themselves the role
of substituting it or clarifying and modifying it as they consider proper.
[25-H, 26-A]
F
2.2. Any order passed by a Court of Law, more so by the higher G
courts and specially this Court whose decisions are declarations of law are
not only entitled to respect but are binding and have to be enforced and
obeyed strictly. No court much less an authority howsoever high can ignore
it. Any doubt or ambiguity can be removed by the court which passed the
order and not by authority according to its own understanding. [26-D]
H
A
B
6
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
2.3. In the instant case, a government which was faced with such a
stupendous problem of accommodating 5000 stipendiary graduates, took
it not only lightly, ignored the orders of the Court, but went on filing
affidavits which were vague, uncertain and did not bring the facts correctly
on record even though the. affidavits had been sworn by no less persons
than the Secretary and Deputy Secretary. If filling of 3691 vacancies in
accordance with rules would have taken 10 to 15 years then how was the
affidavit filed that 3691 vacancies were available for being filled by
stipenidary graduates against direct recruitment. The manner in which the
two orders dated 17th August and 5th September 1991 were issued by the
Government and the clumsy manner in which their issuance had been
C
attempted to be defended by the Secretary to the Government are deprecated. Mter the order was passed adding the word 'graduate' before the
word 'qualification' and the petitioners insisted that they were liable to be
absorbed as First Division Assistants the Government issued two orders,
one in January and second in April 1991. None of the orders mentioned
D that they were to be absorbed as Second Division Assistants. It was only
after the contempt application had been filed that th< Government appeared to have been awakened from its slumber and then a meeting of the
officers of the Law Department and the Finance Department took place
and the decision was taken to absorb all these petitioners as Second
Division Assistants and to effectuate it, the two orders were issued in
E
August and September 1991. In doing so the Government and its officers
assumed the role of substituting the order of the Court by what they
considered proper and convenient. Such actions were reprehensible and
not in keeping with rule of law. The Government when it issued the two
orders dated 17th August and 5th September 1991, did not appreciate the
p
gravity and appeared to have acted in violation of the order passed by this
Court. The explanation offered by the Secretary was not only an eye-wash
but was to be deprecated in strongest words to impress upon the Government and its officials that the orders of the Court should not be taken
lightly and the course open to the Government when an occasion like this
arises, is to approach the Court itself. The Government in issuing the
G orders dated 17th August and 5th September 1991 in the first instance,
and then trying to justify it, without getting the doubt, if any, cleared was
certainly guilty of not following the norms which were expected of a
responsible government of a welfare State. [26-G-H, 27-A-F]
H
2.4. Possessing minimum qualification prescribed under Service
NAGARAJ v. STATE
7
rules does not mean appointment on that post. It only provides eligibility. A
No employee can claim higher post or scale of pay commensurate with his
qualification. Appointment of a graduate or a post graduate to a post
which carries lower qualification by itself, does not amount to exploitation
nor it violative of any constitutional guarantee or principle. [28-E, G]
2.5. In the instant case, Karnataka Civil (Special Recruitment)
Rules, 1982, amended in 1987 permitted appointment of stipendiary
graduates as First Division Assistant. In absence of any challenge to such
appointments they could not be assumed tcJ be invalid nor they could
furnish valid basis for claiming that all stipendiary graduates were liable
B
to be appointed as First Division Assistants. Mere eligibility was not C
sufficient unless availability of posts was also established. In absence of
posts and due to equitable consideration arising in favour of other
employees the practical difficulty in appointing all the five thousand
stipendiary graduates as First Division Assistants appeared to be insurmountable. This court would have refused to modify its order at the D
instance of the Government but the court could not be unjust to other
employees. [30-B-DJ
2.6. No less is the hurdle arising out of principle of finality of orders
and the binding nature of direction issued by this Court. Bnt what stands
above all which persuaded to take a fresh look is the inju"!
inherent in
it. Many of the stipendiary graduates who either appeared in the competitive examination conducted by the Commission, under 1982 rules or were
selected under 1937 rules for the post of Second Division Assistants
because there were no vacancies amongst First Division Assistants would
E
not only become junior to the petitioners but they may never get a chance F
to move up higher on the ladder as the rules of 1982 and 1987 specifically
provided that a stipendiary graduate appointed under the rule would not
be eligible for recruitment again under it. Further if a stipendiary graduate
was entitled by virtue of graduate qualification fo be absorbed as First
Division Assista_nt then Rule (3) of 1982 Rules permitting absorption of
11tipendiary graduates both against Second and First Division Assistants G
'1as rendered meaningless. Nor there could be any rationale to disregard
.. the claim of those large number of stipendiary graduates who were working
~s Second Class Assistants. Moreover possessing minimum qualification
lrescribed under rules does not mean appointment on that post. It only
Pl<>vides eligibility. Being graduate did not mean that any stipendiary H
8
SUPREME COURT REPORTS [1993} SUPP. 2 S.C.R.
A
graduate was liable to be absorbed as First Division Assistant. No
employee can claim higher post or scale of pay commensurate with his
qualification. It may be ideal but not practical. Appointment of a graduate
or a post graduate to a post which carries lower qualification by itself, does
not amount to exploitation nor it is violative of any constitutional guaranB
tee or principle. (28-B-G]
3. Justice is a virtue which transcends all barriers. Neither the rules
of procedure nor technicalities of law stand in its way. The order of the
court should not be prejudicial to anyone. Rule -0f stare decisis is adhered
for consistency hut it is not inflexible in Administrative Law as in Public
C Law. Even the law bends before justice. Mistake is accepted as valid reason
to recall an order. Differnce lies in the nature of mistake and scope of
rectification, depending on if it is of fact or law. But the root from which
the power flows is the anxiety to avoid injustice. It is either statutory or
inherent. The latter is available where the mistake is of the court. TechD nicalities apart if the Court is satisfied of the injustice then it is its
constitutional and legal obligation to .set it right by recalling its order. In
the instant case, this court did commit an error in placing all stipendiary
graduates in the scale of First Division Assistants due to State's failure to
bring correct facts on record. But that cannot stand in the way of the Court
E
F
correcting its mistake. Rectification of an order thus stems from the,
fundamental principle that justice is above all. It is exercised to remove
the error and not for disturbing finality. When the Constitution was
framed the substantive power to rectify or recall the order passed by this
Court was specifically provided by Article 137 of the Constitution. Our
Constitution-makers who had the practical wisdom to visualise the efficacy
of such provision expressly conferred the substantive power to review any
judgment or order by Article 137 of the Constitution. And clause (c) of
Article 145 permitted this Court to frame rules as to the conditions subject
to which any judgment or order may be reviewed. In exercise of tJ_iis power
Order XL had been framed empowering this Court to review an order in -
G civil proceedings on grounds analogous to Order XLVII Rule 1 of of Civil
Procedure Cooe. The expression, 'for any other sufficient reason' in the
clause has been given an expanded meaning and a decree or order passed
under misapprehension of the true state of circumstances has been held
to be sufficient ground to exercise the power. Apart from Order XL Rule
1 of the Supreme Court Rules this Court has the inherent power to make
H
such orders as may be necessary in the interest of justice or to prevent the
-~
NAGARA.T v. STATE
9
abuse of process of cou,.C The Court is thus not precluded from recalling A
or reviewing its own order if it is satisfied that it is necessary to do so for
sake of justice. [31-E-H, 32-A-E]
Raja Prithvi Chand Lal Choudhary v. Sukhraj Rai and Ors., AIR (1941)
Federal Court 1, relied on.
Rajinder Narain Rae v.Bijai GovindSingh,) MOO PC 117 L, referred
to.
State of Mys. & Anr. v. P. Narasinga Rao, AIR (1968) SC 349; State of
J &. K v. Triloki Nath Khosa, AIR (1974) SC 1 and Sabyasachi Sengupta &
A·nr. v. Nani Gopal Dutta, [1990] Supp. SCC 315, distinguished.
4. Stipendiary Graduate En11ployment Scheme framed by the Government of Karnataka in the year un7, if still in operation required immediB
c
ate attention. Reservation of 40% posts, for stipendiary graduate, in direct
recruits quota itself needed a f1resh look. Framing of scheme in keeping D
with constitutional goal to provi1de job to uneducated cannot be construed
as right of such incumbents to enter civil service as a matter of right either
due to length of service or beca111s'e the allowance paid is lower than others
who have entered civil service under the rules. 'Equal pay for equal job'
should not be unduly stretched to frustrate the entire process of selection E
and appointment in Government service. Any rule which results in undue
benefit to one class to the exclmlion of others and permit entry in State
Civil Service, without any competition or test is breach of faith with others
in society. Rules framed by the Karnataka Government, particularly in
1987, are against public policy. Hut no one had challenged their validity.
Therefore, any appointment made under these rules, till now shall not be
F
open to challenge for the reason that they were not in consonance with
constitutional spirit. [33-H, 34-A-B]
5. Application filed by the State Government praying that the order
dated 30th October 1991 should be modified and stipendiary graduates to
be directed to be appointed as Second Division Assistants in Group 'C' G
was allowed. In absence of posts and due to equitable consideration arising
in favour of other employees, the practical difficulty in appointing all the
five thousand stipendary graduates as First Division Assistants appeared
to be insurmountable. Even so this court would have refused to modify its
order dated 24th October 1991 at the instance of the Government but the H
10
SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A
Court could not be unjust to other employees. [34-C, 30-C-D]
B
c
Per Jeevan Reddy, J. (Partly concurring) :
1.1. The orders based upon the mis:leading and wrong'.information
had resulted in directing the filling up of all vacancies in group 'C" services
with the stipendiary graduates instead of confining them to·40% of the
vacancies reserved for direct recruitment. The failure of justice IDld infraction of law was too eloquent to require any emphasis. Stip~ndiary
graduates were not government servants. They were mere stipendttries.
They were never appointed to any service under the State. The manne:- of
their induction into· gov'!rnment service en masse, to the extent of all f,e
available vacancies or even to the extent of vacancies reserved for direct
recruitment was likely to take several years which meant that others including
fresh graduates could never expect to get an opportunity to apply or compete
for these vacancies. Similarly persons in the lower grades, who were entitled
to be promoted to these posts were also deprived of their opportunity for
D a long number of years to come. Such a course could not be treated as
valid unless there were extra-ordinary and exceptional circumstances to
sustain it. [44-C-EJ
1.2. It was true that the Government was mainly responsible for the
E
above unfortunate state ofaffairs but that should not desist this Court from
- revising and reviewing the said orders which had such·serious consequences. It is one thing to punish the person who furnished false particulars and
altogether a different thing to refuse to revise and review the orders when
the correct situation and its likely consequences are brought to the notice of
Court. It is the duty of the Court to rectify, revise and re-call its orders as
F
and when it is brought to its notice that certain of its orders were passed on
a wrong or mistaken assumption of facts and that implementation of those
orders would have serious consequences. [46-B-C]
13. No one had questioned the 1987 amendments. The parties who
G were affected namely the persons 'awaiting employment under the government probably did not even know what was happening. But where an unconstitutional provision of such vast impact is brought to the notice of this
Court and it is asked to enforce it, it is the constitutional duty of this Court
to refuse to do so. Therefore, this Court should refuse to make any orders
directing implementation of the Rules as amended in 1987. The proper
. H
direction would be to direct the absorption of the S.Gs. in accordance with
NAGARAT v. STATE[SAHAl,J.]
11
the 1982 rules as originally framed (i.e., without reference to the 1987 A
Amendments) and to the extent provided therein. Those S.Gs. who had been
absorbed already into group 'C' service in accordance with the said rules
will remain uneffected since disturbing them, without notice to them and in
view of all the circumstances of this case, may not be advisable. AU those
S.Gs. who had not so far been absorbed in group 'C' service shall continue
in the present status, drawing Rs. 960 per month. They will be entitled for
absorption in group 'C' posts only in accordance with the 1982 Rules,
without reference to the 1987 Amendements. [46-H, 47-A-B-C]
1.4. Limited review of directing to absorb these persons in the second
grade assistants category would not meet the end of justice or of the law.
It may not be permissible for the court to load the administration with five
thousand persons at a stretch. The. practical and pragmatic considerations
militates against such direction. [47-E)
ORIGINAL JURISDICTION : Comtempt Petition No. 55 of 1992.
~n
W.P. (C) No. 1249 of 1989 etc. etc.
(Under Article 32 of the Constitution of India)
R.K. Garg, K. Ramaswamy, S.K. Kulkarni, D.K. Garg, V.
Lakshminarayan, Indeevar Goodrill, R.C. Kaushik and Ashok Sharma for
the appellants.
B
c
D
E
Altaf Ahmad, ASG, V.C. Mahajan, M. Veerappa and M.T. George
for the respondents.
F
The Judgment of the Court was delivered by
R.M. SARAI, J. How even the socio-economic welfare measures
taken by the State to tackle unemployment and ameliorate poverty, within
its limited resources, gets stiffled and flounders due to lack of proper G
appreciation of its purpose and objective aided by faulty enforcement,
aggravated by apathy of those responsible in government to place correct
facts, when called upon to do so by courts, and wake up, only, when it is
either too late or move on pain of contempt proceedings resulting in one
sided orders creating rights in favour of some leading to clash of interest H
12
SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A and heart burning among others leaving the courts in dilemma of how to
adjust the equities of competing claims. To what extent such frustrating
consequences can arise is demonstrated by these applications filed, on one
hand, by what are known as stipendiary graduates in the State of Karnataka
for taking contempt proceedings against State and its officials for not
B
c
complying with orders of this Court and on the· other application filed by
the State for clarification of the very order, giving rise to contempt
proceedings, as usual, not before the point of no return was, nearly,
reached and writ petitions by yet others, who at one time were stipendiary
graduates, but were absorbed as provided in the rules and placed in the
lowest scale for Assistants, for grant of same pay and grade which was
granted by this Court to those others who till, now, were only stipendiary
graduates.
To comprehend the problem it is necessary to narrate the facts in
detail, step by step during which two important stages were crossed, one,
D creating right in favour of stipendiary graduates under orders of this Court
obtained without apprising it of full and complete facts and second, issuing
of directions to absorb them as First Division Assistants placing them in
higher scale amongst assistants. Normally all this was not necessary to be
said but the piquant situation that has arisen requires re-consideration of
the entire matter, afresh, as the stipendiary graduates succeeded in getting
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orders for absorption of all of them numbering thousands and a jump in
higher scale, without any adjudication on merits either in the Special Leave
Petition or even in the Writ Petition on assumptions drawn from a vague
and an incorrect affidavit filed on behalf of the State.
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In 1977 the Government of Karnataka framed a scheme for employment of unemployed graduates, post-graduates and diploma holders. Its
salient features were its applicability to persons coming from families
having less than Rs. 3,600 annual income and no earning member in the
family. The value of the stipend was fixed at Rs. 150 per month. But since
with such amount it would have been difficult for beneficiaries to work in
far off places the scheme visualised employment of such educated unemployed in special programmes located as near as possible to their native
places within a Taluka. The stipend was raised in 1979 to Rs. 200, in 1982
to Rs. 250, then to Rs. 490 and finally to Rs. 640. After expiry of nearly
four and half years the Government decided, further, to help such unH ·employed youth by framing Karnataka Civil (Special Recruitment Rules),
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NAGARAJ v. STATE (SAf-TAl,J.]
13
i982, and reserving 50% of the direct recruitment vacancies existing on the A
dates, the rules came into force, to be filled by stipendiary graduates and
local candidates in various categories of posts mentioned therein which
included First and Second Division Assistants in State Civil services by a
competitive examination to be conducted by the Public Service Commission. These rules were amended, again, in 1987 and three important B
changes were made. One, the rules became applicable to any category of
posts in group 'C' in the State Civil services, second, 50% was bifurcated
and 40% was reserved for stipendiary graduates and 10% for local candidates. Third and the most significant amendment was that the requirement of examination or interview was done away with. Whether such rules
are violative of Articles 14 and 16 of the Constitution does not arise for C
consideration in these proceedings. Yet we cannot refrain from expressing
that any laudable scheme or policy framed by a government to help the
educated unemployed to stand on their own is commendable and in
keeping with spirit of Directive Principles of the Constitution. But any rule
which results in undue benefit to one class to exclusion of others and D
permit entry in State Civil Service, the most coveted service wealth, without
any competition or test written or oral of persons who are possessed of
only one qualification that despite State help for five years or more they
could not get entry anywhere is something which is breach of faith with
others in society. A man in the street or a common man cannot have any
knowledge how his right to enter into service has been eroded or curtailed
by rules. Helping. the weak or the poor is one of the primary functions of
the State. But any such scheme should not be so 'manoeuvred by the State
as to make an in road in the right guaranteed to every citizen of equal
treatment of entering into service. Rules such as were framed by the
Karnataka Government, particularly in 1987, are against public policy. But
no one has challenged their validity. They have been in force for all these
years. Therefore, it is necessary to make it clear that any appointment made
under these rules, till now shall not be open to challenge for the reason
that they are not in consonance with constitutional spirit.
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However to complete the narration yet another set of rules had been G
framed in 1986 for, 'local condidates' as defined in Clause 27A of Rule 8
of the Karnataka Civil Service Rules. It provided for absorption of such
candidates in groups 'A', 'B', 'C' and 'D' and fixation of their pay, seniority
alongwith other candidates under 1986 rules. Relying on the expression
'local candidates' the Association of Stipendiary Graduates approached the H
14
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A
High Court under Article 226 by way of writ petitions seeking declaration
that they were regular employees under the rules, which were transferred
to the State Administrative Tribunal. Their claim was not accepted as they
having been appointed under a special scheme and not against any post in
a cadre they were not members of any service of the State against sancB
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tioned strength. The Tribunal further held that the rules of 1986 were not
applicable to them as local candiqates under Rule 27 A did not bear the
same connotation as local candidate under the scheme. On regularisation
it was held that it could be done by the State, only, and not by court and.
the State had already taken steps by framing rules and reserving 40% of
the posts in group 'C' for being filled by such stipendiary graduates. This
order was challenged by way of S.L.P. (C) Nos. 4760-62 of 1989. Some of
the stipendiary graduates, who were not parties before the Tribunal, invoked extraordinary jurisdiction of this Court by way of Writ Petition (C)
No. 1249 of 1989 and claimed exploitation by the State in violation of
Article 39, on which the respondents were directed to show cause why rule
D nisi should not be issued. The Bench further· directed that during pendency
of the writ petition, the daily wages/daily rates employees who had not
already been relieved from service shall continue in employment. The State
did not file any reply within time allowed by the Court, consequently, on
5th February 1990 the Bench, after hearing the learned counsel for parties
passed the following order :
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F
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"After hearing Ld. counsels for the parties there will be an interim
order to this extent that the petitioners will be .given a consolidated
pay of Rs. 960 w.e.f. 1st Feb., 1990 until further orders. The
Counsel for the Respondents stated that he will file an affidavit
about the Scheme stating what are the total number of vacancies
at present, how many have already been absorbed in these vacancies and how many remained to be absorbed. The State will also
given the inter se seniority of those employees who are required to
be absorbed categorywise. These affidavits will be filed within four
weeks and reply, if any, be filed within two weeks. Thereafter, the
matter will come up for hearing after 7 weeks. This order is with
regard to both the matters."
On 12th February 1990 notice was issued on S.L.P. and it was directed to
be tagged with the Writ Petition. On 26th March 1990 yet another order
H was passed,
J·
NAGARAJ v. STATE [SAHAI,J.]
15
"that the State of Karnataka, is hereby directed to comply with the A
order of this Court dated 5th February 1990 as early as possible
but not later than two weeks from this date, 26th March 1990."
The Bench directed ·the State to file affidavit also, within four weeks
regarding regularisation and absorption of the employees. On 3rd May the
Court directed the State to comply with order dated 26th February 1990
and to file an affidavit,
"stating specifically what were the total number of vacancies to be
filled up and also state in case there are vacancies how many of
those were available to be filled up by stip.endiary graduates in
accordance with rules."
It was only after the order was passed on 3rd May 1990 that the State filed
its reply on 11th May 1990. It was explained that the stipendiary graduates
were not appointed to any civil post and, therefore, they were not eligible
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for such benefits as house rent· allowance CCA, DA etc. which were D
payable to regular government servants. It was also stated that the stipendiary graduates were not working against any sanctioned group 'C' post
nor they were performing same duty as regular assistants. They were only
attached to the office and rendered such assistance as was required of
them. They were further bel.ng paid a consolidated.amount of Rs. 640 per E
month. They were selected without any test or interview, yet in order to
provide them regular employment the State Government had taken steps
and Karnataka Civil Service Special (Amendment) Rules of 1987 had been
framed reserving 40% of group 'C' vacancies for them. Another affidavit
was filed, in pursuance of the order requiring the State to apprise the
number of vacancies etc., and it was stated that 3691 vacancies in group F
'C' were available for being filled by direct recruitments in accordance with
rules. How far this affidavit was correct shall appear when reference is
made to other affidavits filed by the State but it certainly led to passing of
the orders .the chain reaction of which has not settled down as yet. But
when the Court was informed that so many vacancies were available for G
being filled by stipendiary graduates it passed the order on 24th July 1990
to the following effect :
"We have heard learned counsel for all the parties. By an order
dated 5.2.90 we directed the counsel for the respondents to file an
affidavit about the scheme stating what are the total number of H
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SUPREME COURTREPO'RTS (1993) SUPP.2S.C.R.
vacancies at present, how many have already been a,bsorbed in
these vacancies and how many remained to be absortled. By our
further order dated 26.3.90 we alsn directed the State to file an
affidavit in the light of the Order dated 5.2.90 regarding regularisation and absorption of the employiees. In one of the affidavits it
has been stated in para-3 that the nmmber of stipendiary graduates
still required to be regularised is 5265 and not 7500 to 8000 as
contended by the petitioner in para-10. Another affidavit has been
sworn on 18.7.90 where from it appears (vide para-3 of the said
affidavit filed by the State) that a total number of 3691 vacancies
in Category 'C' are vacant and are required to be filled up by the
Stipendiary Graduates in accordance with the Rules.
After considering both these affidavits we direct the respondent
State of Karnataka to take immediate steps for filling up the
vacancies 3691 which are in Category 'C' by the Stipendiary
Graduates who fulfil the required qualifications as provided in the
Rules. As regards the balance 1574 Stipendiary Graduates steps
will be teken by the State as soon as the vacancies arise in the
Department concerned to fill Qp all vacant posts available by the
Stipendiary Graduates preferably within a period of nine months
from this date. We make it clear that this matter will appear after
the expiry of a period 9 months from the date of this Order and
the State will file an affidavit stating therein that they have filled
up all the available vacancies as per extant rules by Stipendiary
Graduates and regularised them. The Writ Petition No. 1249/89 as
well as other writ petitions and special leave petitions are disposed
of accordingly without any order as to costs."
With this came to an end the first phase of litigation which was
remarkable for State's typical attitude of not giving due weight to the orders
of this Court passed from time to time. Result was that each innocuous
looking order either restraining the State from terminating services of
G stipendiary graduates, or for payment of consolidated amount of Rs. 960
or giving details of vacancies and regularisation gradually created an
impression of undesirable exploitation of the educated unemployed to
which the State had no answer. And when ultimately the State filed its
objection/reply no effort was made to explain the distinction between First
H or Second Division Assistants and the method how the stipendiary
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NAGAltAJ v.