# STATE OF JHARKHAND & ORS v. KAMAL PRASAD & ORS

- **Citation:** [2014] 13 S.C.R. 370
- **Court:** Supreme Court of India
- **Decided:** 2014-04-23
- **Case number:** Civil Appeal No. 4809 of 2014
- **Bench:** Gyan Sudha Misraand V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-jharkhand-ors-v-kamal-prasad-ors-29591
- **Pages:** 32

## Headnote

c
Service Law - Termination - Reinstatement -
Respondent-employees were appointed by appellantemployer on ad-hoc temporary basis as Assistant Engineers
- Subsequently they were dismissed from their services -
High Court held that respondents were entitled for relief and
o reinstated them into their services - Propriety- Entitlement
to benefit of Umadevi's case - Held: Evidence on record
produced by respondents clearly showed that they were
discharging their services as permanent employees with the
appellants to the satisfaction of their employer-Appel/ants
E failed to prove that respondents failed to render continuous
services to appellants at least for 10 years without intervention
of orders of Court - Principle laid down by Supreme Court in
Uma Devi's case squarely applicable -Action of appe/Jants
in terminating the services of respondent-employees was not
F only arbitrary but also shocked conscience - High Court right
in reinstating respondent-employees into their services under
the appellants by relying on the legal principles laid down in
Uma Devi's case.
G
Constitution of India, 1950 - Art. 136 - Interference
H
under- Scope - Discussed.
Dismissing the appeals, the Court
HELD:1.1. The evidence on record produced by the
370
STATE OF JHARKHAND v. KAMAL PRASAD
371
respondent-employees would clearly go to show that A
they have been rendering services in the posts as adhoc 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 B
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.
[Para 20][394-D-F]
C
1.2. The appellants failed to prove that the
respondents have failed to render continuous services
to the appellants at least for ten years without
intervention of orders of the court, the findings of fact D
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 issue that the .
respondent-employees have continued in their service · E
for more than 10 years continuously therefore, the legal
principle laid down by this Court in Uma Devi's case
squarely applies to the present cases. In fact, the Division
Bench of the High Court by regularizing the respondentemployees vide its impugned order has upheld the F
constitutional principle laid down by this Court in the
case of Olga Tellis case. [Paras 20, 21][395-B-E]
Secretary, State of Karnataka & Ors. v. Umadevi
& Ors. (2006) 4 sec 1 : 2006 (3) SCR 953 - held
G
applicable.
Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors. (1985) 3 SCC 545 : 1985 (2)
Suppl. SCR 51 - followed.
H
372
A
B
c
SUPREME COURT REPORTS
[2014] 13 S.C.R.
Ram Swarath Prasad v. State of Jharkhand & Ors.
2002 (1) J.C.R. 106; State of Karnataka & Ors. v.
M.L. Kesari & Ors. (2010) 9 SCC 247: 2010 (9)
SCR 543; Bihar State Unemployed Civil
Engineers Association & Ors. v. State of Bihar &
Ors. Etc. (1996) 8 SCC 615: 1996 (1) Suppl. SCR
94; U.P State Electricity Board v. Pooran Chandra
Pandey & Ors. (2007) 11 SCC 92 : 2007 (10) SCR
920 and Amrit Lal Berry v. Collector of Central
Excise, New Delhi & Ors. (1975) 4 SCC 714 :
1975 (2) SCR 960- referred to.
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 se

## Text

_Characters 0–39,943 of 57,861. This is a partial read: ask again with offset=39943 for what follows._

A
B
[2014] 13 S.C.R. 370
STATE OF JHARKHAND & ORS.
v.
KAMAL PRASAD & ORS.
(Civil Appeal No. 4809 of 2014)
APRIL 23, 2014
[GYAN SUDHA MISRAAND V. GOPALA GOWDA, JJ.]
c
Service Law - Termination - Reinstatement -
Respondent-employees were appointed by appellantemployer on ad-hoc temporary basis as Assistant Engineers
- Subsequently they were dismissed from their services -
High Court held that respondents were entitled for relief and
o reinstated them into their services - Propriety- Entitlement
to benefit of Umadevi's case - Held: Evidence on record
produced by respondents clearly showed that they were
discharging their services as permanent employees with the
appellants to the satisfaction of their employer-Appel/ants
E failed to prove that respondents failed to render continuous
services to appellants at least for 10 years without intervention
of orders of Court - Principle laid down by Supreme Court in
Uma Devi's case squarely applicable -Action of appe/Jants
in terminating the services of respondent-employees was not
F only arbitrary but also shocked conscience - High Court right
in reinstating respondent-employees into their services under
the appellants by relying on the legal principles laid down in
Uma Devi's case.
G
Constitution of India, 1950 - Art. 136 - Interference
H
under- Scope - Discussed.
Dismissing the appeals, the Court
HELD:1.1. The evidence on record produced by the
370
STATE OF JHARKHAND v. KAMAL PRASAD
371
respondent-employees would clearly go to show that A
they have been rendering services in the posts as adhoc 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 B
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.
[Para 20][394-D-F]
C
1.2. The appellants failed to prove that the
respondents have failed to render continuous services
to the appellants at least for ten years without
intervention of orders of the court, the findings of fact D
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 issue that the .
respondent-employees have continued in their service · E
for more than 10 years continuously therefore, the legal
principle laid down by this Court in Uma Devi's case
squarely applies to the present cases. In fact, the Division
Bench of the High Court by regularizing the respondentemployees vide its impugned order has upheld the F
constitutional principle laid down by this Court in the
case of Olga Tellis case. [Paras 20, 21][395-B-E]
Secretary, State of Karnataka & Ors. v. Umadevi
& Ors. (2006) 4 sec 1 : 2006 (3) SCR 953 - held
G
applicable.
Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors. (1985) 3 SCC 545 : 1985 (2)
Suppl. SCR 51 - followed.
H
372
A
B
c
SUPREME COURT REPORTS
[2014] 13 S.C.R.
Ram Swarath Prasad v. State of Jharkhand & Ors.
2002 (1) J.C.R. 106; State of Karnataka & Ors. v.
M.L. Kesari & Ors. (2010) 9 SCC 247: 2010 (9)
SCR 543; Bihar State Unemployed Civil
Engineers Association & Ors. v. State of Bihar &
Ors. Etc. (1996) 8 SCC 615: 1996 (1) Suppl. SCR
94; U.P State Electricity Board v. Pooran Chandra
Pandey & Ors. (2007) 11 SCC 92 : 2007 (10) SCR
920 and Amrit Lal Berry v. Collector of Central
Excise, New Delhi & Ors. (1975) 4 SCC 714 :
1975 (2) SCR 960- referred to.
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)
F [400-D-H]
Jamshed Hormusji Wadia v. Board of Trustees,
Port of Mumbai & Anr. (2004) 3 SCC 214 : 2004
(1) SCR 483 and Mathai@ Joby v. George & Anr.
G
(2010) 4 SCC 358 : 2010 (3) SCR 533 - relied
on.
Case Law Reference:
H
2002 (1) J.C.R.106 referred to
Para 8
STATE OF JHARKHANDv. KAMAL PRASAD
.
373
2006 (3) SCR 953
held applicable
Para 8
2010 (9) SCR 543
referred to
Para 9
1996 (1) Suppl. SCR 94
referred to
Para 13
2007 (10) SCR 920
referred to
Para 15
1975 (2) SCR 960
referred to
Para 15
1985 (2) Suppl. SCR 51
followed
Para 16
2004 (1) SCR483
relied on
Para 23
2010 (3) SCR 533
relied on
Para 23
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 4809of2014;
A
B
c
D
From the judgment and order dated 8-11-2011 in LP.A.
No. 256 of 2011 passed by the High Court of Jharkhand at
Ranchi.
WITH
· Ci~IAppealNos.4837,4810,4811,4812,4813,4814,
4815,4816,4817,4818,4819,4820,4821,4822,4823,4824,
4825,4826,4827,4828,4829,4830,4831,4832,4833,4834,
4835 & 4836 of 2014.
P.P. Rao, Sr. Ady., Tapesh Kumar Singh, Mohd. Waquas,
Kumar Anurag Singh, Akshat Kulshrestha, Swarnendu
Chatterjee, Suraj Bhaduri, Krishnanand Pandeya, Jayesh
Gaurav Advocates for the Appellants.
E
F
J.P. Ca ma, Sr. Adv. , Anukul Rai, Nikita Raj , Mohit Kumar G
Shah, Krishna Murari, Prem Prakash, Satya Mitra, Abhishek
Vikram (for M/s Anuradha & Associates), Ak!1ilesh Kumar
Pandey, Sudhanshu Saran, Mrs. Shalini Chandra, Mrs: Swati
Chandra, Vibhankar Mishra, Virender Kumar, Amit Kishore H
. 374.
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A Sinha, Sunil Kumar Verma, Ambar Qamaruddin, Gaurang
Kanth, Savyasachi K. Sahai Advocates for the Respondents.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. Leave granted in all the
B Special Leave Petitions.
2. These Civil Appeals are filed by the appellant-State of
Jharkhand questioning the legality of the impugned judgment
and order dated 08.11.2011 passed by the High Court of
C Jharkhand in Letters Patent Appeal No. 256 of 2011 and
connected cases which allowed the appeals of the respondentwrit petitioners by setting aside the judgment dated 25.07.2011
passed by the learned single Judge whereby the writ petitions
of the respondent-employees were dismissed and the
· D Interlocutory Application No. 3223 of 2011 was allowed after
quashing the show cause notices issued and orders of
termination of services of the respondent-employees. The
Division Bench of the High Court by framing certain substantial
questions of law has held that the respondents herein shall be
E entitled to all the consequential benefits. The appellants peing
aggrieved of the impugned judgment and orders have filed
these Civil Appeals by urging various facts and legal grounds
in support of the same and prayed to set aside the impugned
F judgment and orders by allowing the Civil Appeals.
3 .. Certain relevant facts are stated for the purpose of
appreciating the rival legal contentions urged on behalf of the
parties with a view to examine the correctness of the findings
and reasons recorded by the Division Bench of the High Court
G in the impugned judgment and further to find out as to whether
the impugned judgment and orders warrant interference by this
Court in ex~rcise of its appellate jurisdiction in these Civil
Appeals.
H
STATE OF JHARKHAND v. KAMAL PRASAD
375
[V. GOPALAGOWDA, JJ
4. The respondent-employees (the writ petitioners before A
the High Court), were initially appointed in the year 1981 in the
posts of Junior Engineers in the Rural Development
Department in the erstwhile State of Bihar in respect of which
the recommendation of the Bihar Public Service Commission
(for short "the BPSC") was not required. It is the case of the
B
respondent-employees that they have continuously discharged
their duties in the above posts honestly and diligently to the
satisfaction of their employer. They were subsequently
appointed on ad-hoc temporary basis as Assistant Engineers
in the pay-scales of 11000-50-1700 P.Ro-10-1820/-, with C
certain conditions on the basis of recommendation made by
the BPSC against temporary posts from the date of notification.
Their services as Assistant Engineers on ad-hoc basis were
entrusted to work in the Road Construction Department where
D
they were required to contribute their work within the stipulated
period. The relevant condition No. 2 in the said notification
No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is
extracted hereunder:-
"1. xxx
xxx
xxx
2. This ad-hoc appointment shall be dependent on
approval of Bihar Public Service Commission.
3. xxx
xxx
xxx ...... "
E
F
It is their further case that they have been working in the
said posts for more than 29 years from the date of first
appointment as Junior Engineers and 23 years from the
appointment in the posts of Assistant Engineers on ad-hoc
basis. Neither the BPSC nor Bihar State Government nor G
Jharkhand State Government had intention to dispense with
the services of these employees. Therefore, they did not take
steps to dispense with their services from their posts. The
employees approached the High Court when they were issued
H
376
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
the show cause notices dated 20.4.2010 by the appellant No.3.
After taking substantial work from the respondent-employees
they have been harassed by issuing show cause notices asking
them to show cause as to why their services should not be
terminated on the ground of their appointment to the posts as
B illegal/invplid. Their appointments were, however, not held to
be invalid either by the orders of the High Court or Supreme
Court in spite of the fact that 199 posts filled up by
advertisement No.128/1996 issued by the BPSC dated
2.9.1996 as the same would not affect the respondentC employees who otherwise have been in continuous service
for more than 23 years in the substantial posts of Road
Construction Department and not of Rural Engineering/Rural
Works Department. Therefore, it was pleaded by them that
0
the impugned notices issued to them was an empty formality
with preconceived decision and the same is also not only
discriminatory but also suffers from legal malafides,
arbitrariness, unreasonableness and is in utter transgression
of the interim order dated 22.3.2010 passed in W.P. (S) No ..
E
1001 of 2010 amounting to overreaching the majesty of the
High Court.
5. They further sought for declaration that since the
services of the respondent-employees fortuitously fall in the
territory of Jharkhand State with effect from 15.11.2000 and
F
no final cadre division of their services has been made till date
after tentative allocations were made vide order dated
20.12.2006 by the Central Advisory Committee within the
meaning of Section 72 read with Section 73 of the Bihar Reorganization Act, 2000, it is pleaded that the appellant-State
G of Jharkhand and its instrumentalities have no unilateral power
and jurisdiction to take any such decision to their disadvantage
as they were appointed before the date of establishment of
Jharkhand State. Therefore, the impugned notices issued
H unilaterally by the appellant-State to the respondent-employees
•
STATE OF JHARKHAND v. KAMAL PRASAD
377
[V. GOPALA GOWDA, J.]
declaring their services as illegal is not only a colourable A
exercise of its power but also whimsical, discriminatory and
thereby its action is in violation of Articles 14, 16, 19(1)(g)
and 21 of the Constitution of India.
6. Further, direction was sought by the respondentB
employees from the High Court in the Writ Petitions to tr~at
them equally at par with similarly situated 120 persons
appointed along with them who fortuitously remained working
in the territory of successor State of Bihar namely, after the
Jharkhand State was formed w.e.f. 15.11.2000 without any C
disturbance and consider their claim for regularization along
with them in terms with the conscious Policy decision taken by
it vide notification No. 10113(s) dated 11.09.2009 by the Cadre
Controlling State of Bihar and in pursuance thereof the
respondent-employees have also applied for the same and
D
which is in active consideration of the State of Jharkhand and
further they sought for issuance of a writ of prohibition
restraining the appellants from termination of their services
from their posts in pursuance of the impugned show cause
notices as they had seriously apprehended in the light of preE
decisive and prejudicial findings and reasons recorded in the
impugned notices in the garb of order dated 22.3.2010 passed
in W:P.(S) No. 1001 of 2010, that their services might be
terminated. However, the fact remains that they are discharging
their regular service to the appellants (although their posts are
F
termed as ad-hoc in nomenclature) for more than 29 years
from the initial appointment as Junior Engineers since the year
1981 after following due procedure of Advertisement etc. and
their services have been upgraded to the posts of Assistant G
Engineer again on temporary basis in 1987 pursuant to
Cabinet decision of the erstwhile State of Bihar Government
with the permission of BPSC who had recognized their
qualification of degree and experience. Therefore, their •
appointment to the posts is legal and valid from their date of H
378
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A inception of their original appointment as Junior Engineers in
the erstwhile State Government of Bihar.
7. The said writ petitions were opposed by the appellants
herein urging various facts and legal contentions in justification
B of their claim and the reasons assigned in the show cause
notices and opposed the prayers of the respondentemployees, which case of them is not accepted by the learned
single Judge and consequently dismissed their writ petitions
by judgment dated 25. 7.2011. Aggrieved by the said judgment
c and orders, they filed Letters Patent Appeals before the
Division Bench of the High Court urging various grounds.
8. The correctness of the same was challenged by the
appellants before the Division Bench in the Letter Patent
D Appeal No. 256 of 2011 and other connected LPAs. The
learned senior counsel for the parties were heard at length.
After considering the rival legal contentions and noticing the
relevant facts of these cases it was held by the Division Bench
of the High Court that 200 posts have been created by the
E erstwhile State Government of Bihar in Rural Engineering
Organization of the Road Construction Department and the
said posts have been advertised by the department in
Advertisement No. 13 of 1985 and against those posts the
respondent-employees and other similarly placed employees
F were appointed after selection to the posts of Assistant
Engineers on ad hoc basis with permission of the BPSC and
they continued as such in the said posts. On 15.11.2000, the
State of Jharkhand was created by bifurcation of the State of
Bihar by the Act of Bihar Reorganisation Act, 2000. It is the
G case of the respondent-employees that as per Section 72 of
the Act of 2000, the persons who were working in the posts
fallin~J in the territory of the State of Bihar were to continue in
the posts in the State of Jharkhand. It is not in dispute that the
said employees continued in the employment in the State of
H
STATE OF JHARKHAND v. KAMALPRASAD
379
[V. GOPALA GOWDA, J.]
Jharkhand after creation of new State. Thereafter, an order A
was passed by the High Court on 22.3.2010, in the Writ Petition
No. 1001 of 2010 filed by Kamal Prasad & Ors. which is
produced on record asAnnexure-15 in the LP.As. On the basis
of the said order, the State Government of Jharkhand
unilaterally decided thatthe appointment of the respondentB
employees were not valid and accordingly it had directed that
they should go back to the State of Bihar. The said action of
the State of Jharkhand was found fault with by the High Court.
The High Court, in the case of Ram Swarath Prasad v. State
of Jharkhand & Ors. 1 has held that the said power was not · C
available with the State Government of Jharkhand i.e. to pass
unilateral order directing the respondent-employees to go back
to the State of Bihar, which action of it is not in consonance
with Section 72 of the Bihar Reorganisation Act, 2000. This 0
aspect was also observed by the learned single Judge in his
judgment impugned in the LPAs filed by the respond!'lnt
employees. However, it was observed that it is open to the
appropriate authorities having power to take reasonable
decision after issuing show-cause notices to the employees E
with regard to the final allocation of the cadre to the State of
Jharkhand m accordance with law. The State Government of
Jharkhand.had interpreted the order dated 22.3.2010 as a
direction to it and it had proceeded to terminate the services
of these employees. The State Government took a decision to
F
terminate the services of all such engineers including the
respondent-employees in ttiese appeals and notices were
issued to them and the same were stayed in the interlocutory
application filed by the respondent-employees and statusquo order dated 9.9.2010 was passed as per Ann.-18 in the G
Writ Petition(S)No.2087 of 2010. Finding. the said
situation,
the State Government submitted that they are keeping the order
of termination of services of the respondent-employees and
1 2002(1) J.C.R.106
H
380
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A similarly situated employees in abeyance. The State
Government rejected the representations of the respondentemployees and terminated their services vide separate but
similar orders dated 24.8.2011. The orders of termination were
questioned by the respondent-employees by filing interlocutory
B application in the Letters Patent Appeals questioning their
propriety, correctness and legality of the orders of termination
passed against them and action taken by the State Government
of Jharkhand against them. In the Letters Patent Appeals, the
Division Bench of High Court on 13.9.2011 passed an interim
C order directing the appellants to maintain status-quo and the
respondent-employees were allowed to work in the posts. The
Division Bench accepted the factual and legal submissions
urged on behalf of the employees that they were appointed as
0
back as in the year 1981 in the posts of Junior Engineers which
were not illegal or even irregular and they are qualified persons
and.eligible to hold the posts. They rendered their services
satisfactorily and therefore, the State Government of Bihar has
appointed them in the posts of Assistant Engineers by the order
E of the Government dated 27.6.1987 and continued them in
their services as such till the orders of termination passed
..
against them on 24.08.2011, that too during pendency of the
Letters Patent Appeals before the Division Bench of the High
Court. It is observed by the Division Bench that the respondentF employees have been in service independent of any interim
order passed by the court. The State Government was in need
of Junior Engineers, therefore, the State Government of Bihar
allowed the services of the respondent-employees in the posts.
Thereafter, the State Government of Bihar has decided to
G appoint them in the posts of Assistant Engineers and it was
under the impression. that their names will be recommended
by the BPSC. After accepting the case of the respondentemployees that since 1987 till 2011 when the orders of
termination of service were passed, they continued in service
H and their salaries were paid with other service benefits including
STATE OF JHARKHAND v. KAMAL PRASAD
381
[V. GOPALA GOWDA, J.]
increments and they were duly transferred from the State of A
Bihar to the State of J harkhand when it was formed and they
were treated as regular appointees for which the Jharkhand
State Government did not object their continuance in their
services. The Order dated 22.3.2010 passed by the High Court
in the writ petitions referred to supra seems to have been
B
interpreted by the officers of the Jharkhand State Government
a~ a direction to it to proceed with to terminate the services of
the respondent-employees. The Division Bench of the High
Court after referring to the case of Secretary, State of
Karnataka & Ors. v. Umadevi & Ors.2, has clearly held that if C ·
a person has served for 10 years or more, then it is the duty of
the State Government to consider his case for regularization
in the post. The said conclusion came to be reached by relying
on Articles 309, 14, 16 of the Constitution of India. Relying D
upon Umadevi & Ors. (supra), the High Court has further
referred to the judgment in the State of Karnataka & Ors. v.
M.L. Kesari & Ors. 3 which is considered by this Court and
this Court has clearly held that the case of Umadevi & Ors.
(supra) cast a duty upon the State Government to take steps E
to regularize the services of those irregularly appointed
appointees, who had served for more than 10 years without
the benefit or protection of any interim order. Further in the
said case, this Court has declared that it has been clearly
ordered that one time settlement/measure should be taken
F
within six months i.e. from 10.04.2006. With reference to the
aforesaid decision the learned ?enior counsel appearing on
behalf of the respondent-employees placed reliance upon
Article 142 of the Constitution in support of the submission
that order of the Supreme Court be respected and G
.
.
implemented by its true meaning and spirit. Therefore, the
Division Bench of the High Court accepted the same and came
2 (2006) 4 sec 1
3 (201 o) g sec 247
H
382
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
to the conclusion that the claims of the respondent-employees
fot regularization in their posts are fit cases and they became
unfortunate only because of the creation of the State of
Jharkhand over which the employees had no control and could
not have prevented creation of the State of Jharkhand and
B because of that reason only, one State cannot take a different
stand with respect to the employees appointed by same
process. The State Government cannot throw the employees
jobleiss after 30 years of their continuous service in publfc
employment guaranteed under Article 16 of the Constitution,
C which would result in great injustice since their source of income
will be taken away and thereby the employees and their families
will suffer due to the arbitrary action of the State Government
of Jharkhand which deprived a person of life and liberty
D guaranteed under Articles 19 and 21 of the Constitution of India.
9. The said legal contention urged on behalf of the
respondent-employees has been vehemently opposed by the
learned Advocate General appearing on behalf of the
appellant-State before the High Court who sought to distinguish
E the ratio !aid down in the aforesaid case to the facts situation
in the present case and he further contended that the said
decision has no application to the cases on hand which
contention is rejected by the Division Bench of the High Court.
F
10. It is contended by the learned Advocate General that
jurisdictiOn of the High Court in the Letters Patent Appeal is
limited to the extent of the scope of writ petitions. Therefore,
the same cannot be enlarged by the Division Bench of the
High Court. It is further submitted by him that the respondentG employees in the writ petitions have not prayed for
regularization of their services, and therefore, they are not
entitled to any relief in the Letters Patent Appeals.
11. With reference to the aforesaid rival contentions, the
H Division Bench, by recording its finding at paras 21, 22 and
STATE OF JHARKHAND v. KAMAL PRASAD
383
[V. GOPALAGOWDA .. J.]
31 bf the impugned judgment, has accepted the case of the A
respondent-employees and allowed their letters patent appeals
by setting aside the judgment and order dated 25.7.2011 of
the learned single Judge.
12. During pendency of the b.etters Patent Appeals, the B
State Government rejected their representations· and
terminated the services of the respondent-employees vide ·
separate but similar orders dated 24.8.2011 against each one
of them. Therefore, they have submitted interlocutory
application in the letters patent appeals before the Division c
Bench of the High Court HHigHquestioning the propriety and
legality of their orders of termination passed by the State
Government. In the Letters Patent Appeals on 13.9.2011, an
interim order was passed directing the State Government of
Jharkhand to maintain status quo that is, to allow the D
respondent-employees to work in the posts by it. The court
also set aside the orders of termination by allowing the
interlocutory application and also quashed the show cause
notices and further held that the respondent-employees are
entitled to the consequential benefits.
E
13. The correctness of the judgment and orders is
challenged by the appellants in these Civil Appeals by framing
various questions of law and urging grounds in support of the
same and praying to set aside the same. The learned senior F
counsel, Mr. P.P. Rao appearing on behalf of"the appellants
submitted that the order of termination of services of the
respondent-employees - ad hoc Assistant Engineers in the
instant case, is the necessary consequence of implementation
of the judgment and order dated 8.4.1996 of this Court in C.A. G
No. 7516-20 of 1996 - Bihar State Unemployed .Civil
Engineers Association & Ors. v. State of Bihar & Ors. Etc. 4
as the respondents have failed to get selected by BPSC.
• (1996) s sec 615
H
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
A Therefore, they have no legal right to challenge implementation
of the said judgment dated 8.4.1996 as modified by
subsequent order dated 23.10.1996 in IA No. 327/1996
permitting the State Government to relax the age of the
respondent-employees. In support of the first submission, he
B contends that the cut-off date for consideration of case of adhoc employees who have worked for 10 years or more in the
duly sanctioned posts, but under the cover of orders of the
court, is not covered by the case of Uma Devi & Ors. (supra)
which was decided on 10.4.2006 and the time granted to the
C State Government for setting in motion the process of
regularisation of ad hoc employees is "within six months from
the date" i.e. till 9.10.2006.
It is further contended by the learned senior counsel on
D behalf of the appellants Mr. P.P. Rao that regularisation were
allowed by the High Court in those cases where appointments
could not have been made without recommendation of the
BPSC and in view of the Articles 309 and 16 of the Constitution
of India, no appointment could have been made by the State
E Government to any post much less the respondent-employees
in violation of the Recruitment Rules. Therefore, the illegal
appointments of the respondent-employees cannot be
regularized by the State Government and the High Court can
not give direction in this regard.
F
G
14. In view of the said decisions, according to the learned
senior counsel, two questions would arise for consideration of
this Court :-
(i) Whether the respondent-employees worked till
10.4.2006 without any interim order of any court?
(ii) Were they appointed in duly sanctioned posts?
However, the Division Bench of the High Court instead
H of addressing these two questions, posed the question as to
STATE OF JHARKHAND v. KAMAL PRASAD
385
[V. GOPALAGOWDA, J.]
whether ad hoc employees who have served for more than 10 A
years stand disqualified from regularisation on the ground that
they did not participate in any other appointment process. It is
the contention of the learned senior counsel for the appellants
that the repeated finding of the High Court that the respondentAssistant Engineers were continuing in service uninterruptedly B
with the employer for more than 10 years, is factually incorrect
statement of fact. Therefore, the finding recorded in the
impugned judgment by the Division Bench of the High Court
at paragraphs 23, 25 and 26 is erroneous and the same cannot
bf? allowed to sustain by this Court for the reason that they C
continued in their service at least following six interim orders
passed by the High Court all of which were prior to 10.4.2006,
the cut-off date mentioned in Uma Devi (supra) for considering
the question of regularisation of ad hoc employees and D
therefore the said decision does not apply to the present
cases. According to him, the dates on which the interim orders
passed in different writ petitions are mentioned hereunder:-
S. No.
Date
of Case No.
Cause Title
Vol./Pag
Order
es
1.
15.12.1996
CWJC No. 9420 Paras Kumar v.
Vol.
II
E
of 1996
State of Bihar
pp.
2021
1. 2.
20.6.1997
CWJC No. 11761
Sardar
Pradeep Vol.II
of 1996
Singh v. State of p.22
Bihar
3.
4.4.2002
CW JC No.2606 of Jawahar
Prasad
Vol.1 pp
F
2002
Bhagat v. State of 84
and
Bihar
86
4.
4.4.2002
CW JC No.4327 of Akhilesh
Prasad
1
2002
v. State of Bihar
5.
4.4.2002
CW JC No.4365 of Vi jay
Kumar
2002
Sharma V. State
G
of Bihar
6.
8.1.2003
CWJC No.2087 of
Vol.I
2010 as noticed
p.147 .at
in
the
present
pp.163case i.e. W .P No.
164
2087 of 2010
H
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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 respondents 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
H
s (1975) 4 sec 714
. STATE OF JHARKHAND v. KAMAL PRASAD
387
[V. GOPALAGOWDA, J.]
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 respondentemployees 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 respondentF
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 appellantState 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
C 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
0 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:-
E
F
G
H
( 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
STATE OF JHARKHAND v. KAMAL PRASAD
389
[V. GOPALAGOWDA, J.]
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.
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
0 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 appellantState 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 appellantState Government for grant of relief in favour of the respondentemployees. 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
F 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
H for a period of 10 years. Once this takes place, the citizen's
STATE OF JHARKHAND v. KAMAL PRASAD
391 .
[V. GOPALAGOWDA, J.]
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.