# STATE OF MAHARASHTRA & ORS v. ANITA & ANR. ETC

- **Citation:** [2016] 4 S.C.R. 882
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Civil Appeal Nos. 6132-33 of2016
- **Bench:** T.S. Thakur, R. Banumathi, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-ors-v-anita-anr-etc-31321
- **Pages:** 8

## Headnote

Service Law - Appointment - On contractual basis - Propriety
of - Government resolutions dated 21.08.2006 and 15.09.2006
approving filling up 471 posts on contractual basis - As per the
resolutions appointments were to be made initially for eleven months,.
to be renewed twice (11 months each time) and after maximum
contractual period fresh process of selection was to be initiated -
Appointment of respondents -After expiry of term of the respondents,
State issued fresh advertisement - Thereafter respondents challenged
the conditions in the Resolutions dated 21.08.2006 and 15.09.2006
- State Administrative Tribunal held that the posts were permanent
in nature - However, there was no direction to regularise the
respondents - Writ Petition by the State as well as respondents -
-
Dismissed by High Court - On appeal, held: The Government
Resolutions show that intention of the State was to fill up the posts
on contractual basis - The terms of the agreement which the
respondents had entered into further reiterate that the appointments
were contractual - The respondents, after having accepted
contractual appointment, are estopped from challenging the terms
of their appointment - The Governments policy decision to fill up
the posts on contractual basis, could not have been interfered with
by the Tribunal and the High Court - Estoppel - Administrative
Law - Policy decision.
Allowing the appeals, the Court
HELD: 1. The intention of the State Government to fill up
the posts of Legal Advisors, Law Officers and Law Instructors
on contractual basis is manifest from the clauses in Government
Resolutions dated 21.08.2006 and 15.09.2006. The terms of the
agreement which the respondents have entered into, also
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STATE OF MAHARASHTRA & ORS. v. ANITA & ANR. ETC.
reiterate the stand of the State that the appointments were purely
contractual and that the respondents shall not be entitled to claim
any right or interest of permanent service in the Government.
Conditions of respondents' engagement is governed by the terms
of agreement. After having accepted contractual appointment,
the respondents are estopped from challenging the terms of their
appointment. [Paras 14 and 16] [887-G; 888-H; 889-A-B]
2. Creation of posts was only for administrative purposes
for sanction of the amount towards expenditure incurred, but
merely because the posts were created, they cannot be held to
be permanent in nature. When the Government has taken a policy
decision to fill the posts on contractual basis, the Tribunal and
the High Court ought not to have interfered with the policy
decision to hold that the appointments are permanent in nature.
JJ,>ara 1 ?l [889-Dl

## Text

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[2016] 4 S.C.R. 882
STATE OF MAHARASHTRA & ORS.
v.
ANITA & ANR. ETC.
(Civil Appeal Nos. 6132-33 of2016)
JULY 12,2016
[T.S. THAKUR, CJI, R. BANUMATHI AND
UDAY UMESH LALIT, JJ.]
Service Law - Appointment - On contractual basis - Propriety
of - Government resolutions dated 21.08.2006 and 15.09.2006
approving filling up 471 posts on contractual basis - As per the
resolutions appointments were to be made initially for eleven months,.
to be renewed twice (11 months each time) and after maximum
contractual period fresh process of selection was to be initiated -
Appointment of respondents -After expiry of term of the respondents,
State issued fresh advertisement - Thereafter respondents challenged
the conditions in the Resolutions dated 21.08.2006 and 15.09.2006
- State Administrative Tribunal held that the posts were permanent
in nature - However, there was no direction to regularise the
respondents - Writ Petition by the State as well as respondents -
-
Dismissed by High Court - On appeal, held: The Government
Resolutions show that intention of the State was to fill up the posts
on contractual basis - The terms of the agreement which the
respondents had entered into further reiterate that the appointments
were contractual - The respondents, after having accepted
contractual appointment, are estopped from challenging the terms
of their appointment - The Governments policy decision to fill up
the posts on contractual basis, could not have been interfered with
by the Tribunal and the High Court - Estoppel - Administrative
Law - Policy decision.
Allowing the appeals, the Court
HELD: 1. The intention of the State Government to fill up
the posts of Legal Advisors, Law Officers and Law Instructors
on contractual basis is manifest from the clauses in Government
Resolutions dated 21.08.2006 and 15.09.2006. The terms of the
agreement which the respondents have entered into, also
882
STATE OF MAHARASHTRA & ORS. v. ANITA & ANR. ETC.
reiterate the stand of the State that the appointments were purely
contractual and that the respondents shall not be entitled to claim
any right or interest of permanent service in the Government.
Conditions of respondents' engagement is governed by the terms
of agreement. After having accepted contractual appointment,
the respondents are estopped from challenging the terms of their
appointment. [Paras 14 and 16] [887-G; 888-H; 889-A-B]
2. Creation of posts was only for administrative purposes
for sanction of the amount towards expenditure incurred, but
merely because the posts were created, they cannot be held to
be permanent in nature. When the Government has taken a policy
decision to fill the posts on contractual basis, the Tribunal and
the High Court ought not to have interfered with the policy
decision to hold that the appointments are permanent in nature.
JJ,>ara 1 ?l [889-Dl
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 613233 of2016.
From the Judgment and Order dated 28.03.2012 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Writ Petition Nos.
9145 of2010 and 9160 of2010
WITH
C. A. Nos. 6134, 6135-36, 6137,6138, 6139, 6140, 6141-42, 6143,
6144,6145,6146,6147-48,6149,6150,6151,6152-S3,6154,6155,6156,
6157of2016.
Madhvi Divan, Nishant Ramakantrao Katneshwarkar, Ms. Anagha
S. Desai, Vishal Jogdand, Debasis Misra, Prabhat Kumar, Ms. Prerna
Kumari, Binay Kumar Das, Sachin Patil, Shriram P. Pingle, Dilip
Annasahed Taur, Amo! V. Deshmukh, Ms. Kanchan Vohra, A nil Kumar,
Dr. Kailash Chand, Ms. Madhavi Divan, Atul B. Dakh, Nitin S.
Tambwekar, B. S. Sai, K. Rajeev, Shankar Shillarge, Mis. Lawyer's
Knit and Co), Vinayak Dixit, Sr. Adv., Pranav Sachdeva, Roh it Kr. Singh,
Roh it Kumar Singh, Ms. Asha Gopalan Nair, Ashutosh Dubey Abhishek
Chauhan, V. S. Rawat, Satyajit A. Desai, Ms. Anagha S. Desi, Akash
Kakade, Advs. for the appearing parties.
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SUPREME COURT REPORTS
[2016]4 S.C.R.
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The Judgment of the Court was delivered by
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R. BANUMATHI, J. l. Delay condoned. Leave granted.
2. This batch of appeals has been filed against the order dated
28.03.2012 and other impugned orders passed by the High Court of
Bombay Bench at Aurangabad whereby 4 71 posts of Legal Advisors,
Law Officers and Law Instructors created by Government Resolutions
dated 21.08.2006 and 15.09.2006 for appointment on contractual basis
under the Director General of Police and Commissioner of Police, Greater
Mumbai, were held to be pennanent in nature. For convenience, appeals
arising out of SLP(C) No.34788-34789 of 2012 are taken as the lead
case.
3. State of Maharashtra vide Government Resolution dated
21.08.2006 approved creation of 471 posts in various cadres including
Legal Advisors, Law Officers and Law Instructors under the
establishment of Director General of Police and Commissioner of Police,
Greater Mumbai. As per clause (3) of the said Government Resolution,
the posts shall be filled up on contractual basis as per the terms and
conditions prescribed by the Government. By a subsequent Resolution
dated 15 .09 .2006, the Government maintained that 4 71 posts created
vide resolution dated 21.08.2006 shall be filled up on contractual basis
by payment of consolidated pay. As per the conditions of service laid
down in the Government Resolution dated 15 .09 .2006, the appointment
was initially for eleven months and with a provision of extension up to
maximum of three tenns each term being of eleven months. After expiry
of third term, the candidates are required to face fresh selection process
once again. After the expiry of the tenn ofrespondents, their appointments
automatically came to an end. In pursuance of the expiry of terms of
respondents, the State issued fresh advertisements f()r recruitment of
Legal Advisors, Law Officers and Law Instructors on 05.12.2009,
13.01.20 I 0 etc.
4. On expiry of the contractual period and being aggrieved by
publication of fresh advertisement, the respondents approached the
Maharashtra Administrative Tribunal challenging the conditions in the
Government Resolutions dated 21.08.2006 and 15.09.2006, which laid
down that the appointment of the law officers/law instructors shall be
contractual, is arbitrary and that the respondents should have been
appointed on regular pay scale and not on consolidated pay. The tribunal
STATE OF MAHARASHTRA & ORS. v. ANITA & ANR. ETC.
[R. BANUMATHI, J.]
partly allowed the claim of the respondents and the tribunal struck down
those provisions by holding that clause (3) of the Government Resolution
dated 21.08.2006 and the clauses 'A', 'B', and 'C' in the Government
Resolution dated 15.9.2006 suffered from arbitrariness and
unreasonableness. However, no direction was issued by the tribunal
directing the State Government to regularise the respondents.
5. Aggrieved thereof, respondents filed writ petitions before the
High Court seeking for a direction to the State Government to regularise
their services. State Government also filed writ petition challenging the
order of the tribunal striking down the clauses in the said Government
Resolutions as arbitrary and for setting aside the order of the tribunal.
6. The High Court vide impugned judgment dismissed all the writ
petitions filed by the State Government as well as by the respondents.
The High Court took the view that 4 71 posts created by the State
Government in various cadres are permanent posts and thus the
appointments thereon must also be permanent. However, considering
the fact that the appointment of the respondents were not made in regular
manner under the constitutional scheme, the High Court held that the
respondents/original applicants cannot claim permanency and/or
regularisation.
7. Being aggrieved, the State as well as the applicants have preferred
these appeals. Vide order dated 02.11.2012, this Court has granted stay
of operation of the impugned judgment dated 28.03.2012 passed by the
High Court as well as the order dated 06.05.2010 passed by the
Maharashtra Administrative Tribunal, Aurangabad Bench and this Court
directed that the respondents be permitted to continue in service until
further orders. Similar orders came to be passed in other appeals also.
However, this Court's order dated 02.11.2012 was modified by a
subsequent order of this Court dated 19.08.2014 to the effect that "the
Law Officers/Law Advisers/Law Instructors, whose contractual
appointments have come to an end, shall not be continued beyond
their contractual period. If their appointments have been renewed,
the same shall be continued till the period comes to an end".
8. On instructions, counsel for the State of Maharashtra submitted
that in view of the order dated 19.08.2014, presently none of the
respondents are continuing in service. Since none of the respondents
are continuing in service, the appeals have become infructuous. However,
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SUPREME COURT REPORTS
[2016] 4 S.C.R.
the appeals ought to be decided to answer the contentious issues raised
and to settle the questions of law involved in the matter.
9. Learned counsel for the appellants contented that 4 71 posts
created by the Government Resolution dated 21.08.2006 were not
permanent posts and the appointments were made purely on contractual
basis. It was submitted that filling up of 471 posts on contractual basis
and not on permanent basis is a matter of government policy and that it
was beyond the purview of the tribunal to set aside the same. It was
submitted that the respondents had entered into a contract with the State
Government thereby accepting the terms of service laid down in
Government Resolution dated 15.09.2006 and having accepted the
appointment on contractual basis, the respondents are estopped from
challenging the validity of the said Government Resolutions dated
21.08.2006 and 15.09.2006.
I 0. Per contra, the counsel for the respondents contended that
clause (3) in the Government Resolution dated 21.08.2006 and clause
'A', 'B' and 'C' in the Government Resolution dated 15.09.2006 are
arbitrary and unreasonable and rightly struck down by the tribunal as
violative of Articles 14 and 16 of the Constitution oflndia. It was further
contended that even though the respondents had entered into a contract
with the government accepting clause (3) in the Government Resolution
dated 21.08.2006 and the clauses 'A', '8' and 'C' in the Government
Resolution dated 15.09.2006, the same will not operate as estoppel.
11. We have carefully considered the rival submissions made by
learned counsel for the parties and perused the impugned judgment and
the material on record.
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12. In the Government Resolution dated 21.08.2006 while creating
4 71 posts in various cadres including Legal Advisors, Law Officers and
Law Instructors in clause (3) of the said Resolution, it.was made clear
that the posts created ought to be filled up on contractual basis. Clause
(3) reads as under:-
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"The said posts instead of being filled in the regular manner should
be kept vacant and should be filled on the contract basis as per
the terms and conditions prescribed by the government or having
prepared the Recruitment Rules should be filled as per the
provisions therein."
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STATE OF MAHARASHTRA & ORS. v. ANITA & ANR. ETC.
[R. BANUMATHI, J.]
13. Subsequently, the said Resolution was modified by Government
Resolution dated 15.09.2006. In the said Resolution, the column specifying
"Pay Scale" was substituted with column "Combined Permissible
Monthly Pay + Telephone & Travel Expenses". However, there was
no change in the decision of the government on filling up the posts on
contractual basis. Government Resolution dated 15.09.2006 stipulates
the terms and conditions of the contractual appointments. Clauses 'A',
'B', 'C' and 'D' read as under:-
"A) The appointment of the said posts would be completely on
contractual basis. These officers/employees would not be counted
as government employees.
B) The said appointments should be made on contract basis firstly
for 11 months. After 11 months the term of the agreement could
be increased from time to time if necessary. Whereas, the
appointing authority would take the precaution while extending
the terms in this manner that, at one time this term should not be
more than 11 months. The appointment in this way could be made
maximum three times. Thereafter, ifthe competent authority is of
the opinion that the reappointment of such candidate is necessary
then such candidate would have to again face the selection process.
C) The concerned appointing authority at the time of the
appointment would execute an agreement with the concerned
candidate in the prescribed format. The prescribed format of the
agreement is given in Appendix 'B'. It would be the responsibility
of the concerned office to preserve all the documents of the
agreement.
D) Except for the combined pay and permissible telephone and
travel expenses (more than the above mentioned limit) any other
allowances would not be admissible for the officers/employees
being appointed on contract basis."
14. The intention of the State Government to fill up the posts of
Legal Advisors, Law Officers and Law Instructors on contractual basis
is manifest from the above clauses in Government Resolutions dated
21.08.2006 and 15.09.2006. While creating 471 posts vide Resolution
dated 21.08.2006, the Government made it clear that the posts should be
filled up on contractual basis as per terms and conditions prescribed by
the Government. As per clause 'B' of the Government Resolution dated
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SUPREME COURT REPORTS
[2016] 4 S.C.R.
15.09.2006, the initial contractual period ofappointment is eleven months
and there is a provision for extension of contract for further eleven months.
Clause' B' makes it clear that the appointment could be made maximum
three times and extension of contract beyond the third term is not allowed.
If the competent authority is of the opinion that the reappointment of
such candidates is necessary then such candidates would again have to
face the selection process.
15. It is relevant to note that the respondents at the time of
appointment have accepted an agreement in accordance with Appendix
'B' attached to Government Resolution dated 15 .09 .2006. The terms of
the agreement specifically lay down that the appointment is purely
contractual and that the respondents will not be entitled to claim any
rights, interest and benefits whatsoever of the permanent service in the
government. We may usefully refer to the relevant clauses in the format
of the agreement which read as under:-
" 1. The First Party hereby agrees to appoint Shri/Smt. ----
(Party No. II) as a
on contract basis for a period of 11
months commencing from
to
(mention
date) on consolidated remuneration ofRs.
(Rupees
______ only) per month, and said remuneration will be
payable at the end of each calendar month according to British
Calendar. It is agreed that Il"d party shall not be entitled for
separate T.A. and D.A. during the contract period ....
2.
3.
4.
5. Assignment of 11 months contract is renewable for a further
two terms of 11 months (i.e. total 3 terms), subject to the
satisfaction of Competent Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights, interest,
benefits whatsoever of the permanent service in the Government."
16. The above terms of the agreement further reiterate the stand
of the State that the appointments were purely contractual and that the
respondents sh al I not be entitled to claim any right or interest of permanent
STATE OF MAHARASHTRA & ORS. v. ANITA & ANR. ETC.
[R. BANUMATHI, J.]
service in the government. The appointments of respondents were made
initially for eleven months but were renewed twice and after serving the
maximum contractual period, the services of the respondents came to
an end and the Government initiated a fresh process of selection.
Conditions of respondents' engagement is governed by the terms of
agreement. After having accepted contractual appointment, the
respondents are estopped from challenging the terms of their appointment.
Furthermore, respondents are not precluded from applying for the said
posts afresh subject to the satisfaction of other eligibility criteria.
17. The High Court did not keep in view the various clauses in the
Government Resolutions dated 21.08.2006 and I 5.09 .2006 and also the
terms of the agreement entered into by the respondents with the
government. Creation of posts was only for administrative purposes for
sanction of the amount towards expenditure incurred but merely because
the posts were created, they cannot be held to be permanent in nature.
When the government has taken a policy decision to fill up 471 posts of
Legal Advisors, Law Officers and Law Instructors on contractual basis,
the tribunal and the High Court ought not to have interfered with the
policy decision to hold that the appointments are permanent in nature.
18. In the result, the impugned judgment of the High Court is set
aside and these appeals are allowed.
19. Consequently, all other appeals are also allowed.
20. No costs.
Devika Gujral
Appeals allowed.
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