Amarendra Kumar Mohapatra & Ors. Vs. State of Orissa & Ors.
[Civil Appeal No.8322 of 2009]
[Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940 of 2010]
T.S. THAKUR, J.
1. Common questions of law arise for consideration in these appeals which were heard together and shall stand disposed of by this common order. The primary issue that falls for determination touches the Constitutional validity of what is described as the Orissa Service of Engineers (Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service have been validated, no matter all such appointments were in breach of the Orissa Service of Engineers' Rules, 1941. The High Court of Orissa has in a batch of writ petitions filed before it struck down the impugned Legislation on the ground that the same violates the fundamental rights guaranteed to the writ petitioners under Articles 14 and 16 of the Constitution. We shall presently formulate the questions that arise for determination more specifically but before we do so, we consider it necessary to set out the factual matrix in which the entire controversy arises.
2. In a note submitted to the State Cabinet on 15th May 1990 the problem of over 2000 unemployed degree-holders in various branches of Engineering who had passed out from several Engineering colleges since the year 1984was highlighted and a proposal for utilizing the manpower so available for the benefit of the State economy mooted. The proposal envisaged a twofold action plan for absorbing the unemployed graduate Engineers. The first part of the action plan provided for withdrawal of 127 posts of Assistant Engineers that had been referred to the Public Service Commission and advertised by it to be filled up by appointing unemployed degree holder Engineers in a non-class II rank. The second part of the proposal envisaged creation of 614 posts of Junior Engineers in different Departments to accommodate the unemployed degree holders. These 614 posts comprised 314 new posts proposed to be created, one for each block in the State. Similarly, 100 posts were to be created in the Irrigation Department for survey and investigation to accelerate the pace of investigation. Yet another 200 posts were to be created for initial infrastructure work in connection with Paradip Steel Plant.
3. The note submitted to the Cabinet suggested that degree-holder Engineers could be recruited against all the 741 (127 + 614) posts mentioned above to be designated as Junior Engineers or Stipendiary Engineers in the first phase on a consolidated stipend of Rs.2,000/- per month. The proposal further envisaged absorption of Engineers so appointed on regular basis after two years, after assessing their performance.
4. The Council of Ministers considered the proposal mooted before it and approved the same. Decision taken in the 2nd Meeting of the Council of Ministers held on 15th May, 1990 with regard to 'Problems of Un-employed Degree Engineers' was forwarded to the Secretaries to the Government interms of a memo dated 21st May 1990, the relevant portion whereof reads asunder:
"Item No.5:
Problems of Un-employed Degree Engineers.
The problems were discussed at length and the following decisions were taken.
All posts of Assistant Engineers referred to the Orissa Public Service Commission and advertised by them may be withdrawn.
314 posts of Stipendiary Engineers may be created one in each Block.
100 posts of Stipendiary Engineers may be created in the Irrigation Department for survey and investigation.
200 posts of Stipendiary Engineers may be created for the initial infrastructure work of Paradip Port-based Steel Plant.
In all, 741 posts of Stipendiary Engineers will be available, for recruiting from the unemployed Degree Engineers.
A Stipendiary Engineer may be paid a consolidated stipend of Rs.2,000/- per month. Absorption into regular posts may be considered after two years on the basis of their performance.
The criteria for selection are to be worked out separately, so that Stipendiary Engineers are recruited on merit basis batch by batch.
The rest of the unemployed Degree Engineers are proposed to be engaged in various construction works by formation of Groups Companies and Cooperatives, which will get preference in award of work by the Department/Corporations."
5. As a sequel to the above decision, the Government invited applications from unemployed graduate Engineers of all disciplines for empanelment as Stipendiary Engineers for placement in different Government departments, projects, public sector undertakings, co-operative societies and industries etc. By another resolution dated 22nd September 1990, the Government stipulated the procedure to be adopted for discipline-wise empanelment of the unemployed graduate Engineers for appointment as Stipendiary Engineers against the vacancies in different departments and undertakings. The procedure evolved was to the following effect :
"2. Government have since decided that the following procedure should be adopted for discipline wise empanelment of the unemployed Graduate Engineers for appointment as Stipendiary Engineers against the vacancies in different government Department and undertakings:
1) 25 percent of the posts shall be filled up on merit basis and for this purpose equal number will be taken from each batch starting from the batch of 1984 up to the batch of 1989.
2) A point system will be adopted for empanelment on merit basis, for which out of a total 100 marks the performance in HSC will be given 15 marks, the performance in I. Sc. and Diploma will be given 25 marks and the performance at the final Engineering Degree Examination will be given 60 marks.
3) After the empanelment on merit basis is done for 25% of the vacancies, empanelment will be done batch-wise starting from 1984 for the remaining vacancies. The Inter se position of candidates in the batch wise panel will again be on the basis of merit computed as in (2) above.
4) There shall also be separate empanelment on merit basis for SC/ST, Physically handicapped and ex-servicemen covering all the batches to facilitate filling up of reserved vacancies. The rules regarding reservation of vacancies will apply to these appointments.
5) Applications received on or before 10.7.1990 will alone be considered for empanelment. Similarly graduate Engineers who have passed out before 1984 or those who have obtained degree after 1989 will not be eligible for empanelment.
6) The following committee will undertake the work of scrutiny and empanelment of the unemployed graduate Engineers.
Secretary Steel & Mines
Chairman of the Committee
Engineer-in-Chief and Secretary, Works
Member
Engineer-in-Chief (Irrigation)
Member
Chief Engineer Electricity and electrical Projects
Member
Chief Engineer, PHD
Member
Chief Engineer, RLEGP
Member
Managing Director, IPICOL
Convenor
7) The panels from the Scrutiny Committee will be maintained in the Department of Planning and Coordination who will sponsor candidates to various Government Departments and Undertakings according to the requirement as indicated by them. The undertakings will send indents through the concerned Administrative Departments.
8) As regards Civil & Mechanical Engineers, the Government Departments will intimate the requirement to Irrigation Department who will the panel names from P & C Department to fill up the vacancies. In case of these Engineers, the appointment orders will be issued by the Department of Irrigation and when required they will be sent on deputation to the other Departments.
9) If there is no candidate to be recommended against reserve vacancies for the reason that the panels of such candidates are exhausted, the Department of P & C will give a non- availability certificate to the indenting organizations so that they can take steps to de-reserve the vacancies and give appointment to general candidates in their place.
10) The normal requirement for new appointment under Government viz. production of original certificates, Medical Certificate, Schedule Caste/Scheduled Tribe Certificate etc. shall be applicable to these appointments and the verification of these documents shall be the responsibility of the Employing Departments/Undertakings.
11) In some cases relaxation of age limit for entry into Government service may have to be done and this will be attended to by the Employing Departments/Undertakings as a matter of course.
ORDER
Ordered that the Resolution be published in the Orissa Gazette for general information. Ordered also that copies of the Resolution be forwarded to all Departments of Government, Member, Board of Revenue, All Heads of Departments, All District Collectors, Secretary to Governor, Registrar, Orissa High Court Secretary, OPSC, Principal Secretary to the Chief Minister and Director of Printing, Stationary and Publication, Orissa Cuttack and 50 copies of Planning & Coordination Department.
BY ORDER OF THE GOVERNOR
S.SUNDARARANJAN
ADDITIONAL DEVELOPMENT COMMISSIONER AND SECRETARY TO GOVERNMENT"
6. Applications received from unemployed graduate Engineers for appointment as Stipendiary Engineers were in terms of the above resolution and considered by the Committee constituted for the purpose and appointment of eligible candidates found suitable for such appointments made between1991 to 1994. Appointment orders issued to the candidates made it clear that degree holder Engineers were being engaged as Stipendiary Engineers in the concerned Department and shall be paid a consolidated stipend of Rs.2000/- only. It further stated that the engagement was purely temporary and terminable at any time and without any notice.
7. In August 1992, Minister for Irrigation, Government of Orissa mooted a further proposal to the following effect:
a) The promotion quota may continue at 33% of annual vacancy.
b) In addition, there should be a selection quota of 30%. This quota will have two components - 5% for Junior Engineers who have acquired an Engineering Degree or equivalent qualification and 25% which will be earmarked exclusively for Stipendiary Engineers.
c) Direct recruitment quota will be 37%. Stipendiary Engineers can also compete against this quota. They may be allowed age relaxation up to five years. This will ensure that Stipendiary Engineers have the facility of recruitment, both against the selection quota and direct recruitment quota.
d) Departments may not fill up vacancies in the post of Stipendiary Engineers caused by appointment of the incumbents as Assistant Engineers, if they want to do so, they may obtain candidates from the panel of the P & C Department.
e) This will be a transitional provision because appointment of Stipendiary Engineers may not be a permanent feature. After such time as, Government may decide the present quotas of recruitment will be restored.
f) Public Sector Undertakings should frame their own recruitment rules which should broadly correspond to Government's policy of promotion of Junior Engineers and appointment of Stipendiary Engineers through selection. If there are no Stipendiary Engineers or Junior Engineers with Degree or equivalent qualification quotas for these categories will be added to direct recruitment quota."
8. It is evident from the above that while the Government did not propose to reduce the 33% quota reserved for promotees, out of the remaining 67% meant for direct recruitment, it proposed to carve out what was described as selection quota of 30% for absorption of the Stipendiary Engineers to the extent of 25% of the vacancies and degree holder Junior Engineers against the remaining 5% of the vacancies. The balance of 37% of the vacancies was, however, left to be filled up by direct recruitment from the open market.
9. Based on the above, the Government appears to have made a reference to the Orissa Public Service Commission on 5th June 1996 for approval of the draft Orissa Engineering Service (Recruitment & Condition of Service)Rules, 1994 which were already approved by the State Council of Ministers on 3rd December 1994. The Orissa Public Service Commission, however, struck a discordant note. In its opinion, since the Stipendiary Engineers did not constitute a cadre in the formal sense it was not desirable to treat it as a feeder grade for Assistant Engineers.
So also the proposal to reserve 5%of the vacancies in the grade of Assistant Engineers to be filled by degree holder Junior Engineers from the Subordinate Service was also considered to be inadvisable. The Commission opined that since persons with higher qualifications serve practically in all fields of administration including technical services such as Medical and Engineering, it was neither necessary nor desirable to provide for them a route for promotion to the higher level except the one available to all those serving in the feeder grade. In the opinion of the Commission, the correct way of rewarding those with higher qualification was to give them advance increments at the time of entry.
The Commission also suggested that if in the opinion of the Government the quota for promotion of Junior Engineers to the level of Assistant Engineers required to be higher than 33% in consideration of the larger body of Junior Engineers some of whom were degree holders, it could increase the same to 40%, but the fragmentation of the Junior Engineers into degree holders and non-degree holders was not advisable. The Commission suggested that the remainder of the 60% vacancies for direct recruitment could be utilized by recruiting degree holder Engineers from the open market including Stipendiary Engineers and that candidates could be given suitable weightage while judging their inter se relevant merit.
10. The Government had, in the meantime, passed a resolution on 12thMarch, 1996 stating that the Stipendiary Engineers could be appointed as Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- or any similar post on ad hoc basis against regular vacancies. It also resolved to regularize the service of such ad hoc Assistant Engineers through a Validation Act. Some Stipendiary Engineers who were working indifferent State Governments and statutory bodies were also proposed to be appointed to the post of Assistant Engineer or equivalent posts carrying the same scale, subject to their suitability and satisfactory performance. The relevant portion reads as under:
"In consideration of the above decision of the Government, the appointing authority of Departments of Government will appoint the Stipendiary Engineers of different disciplines as Assistant Engineers against existing vacancies of Assistant Engineers on ad hoc basis for a period of one year, except Civil & Mechanical, to be appointed on ad hoc basis by the Department of Water Resources. XXX XXX XXX Stipendiary Engineers who are already working in different State Government Undertakings, Corporations,, Semi-Government Organizations & Statutory Boards may also be appointed as Assistant Engineers or in equivalent posts carrying the same scale, subject to their suitability and satisfactory performance."
11. The resolution notwithstanding, the Government does not appear to have appointed any Stipendiary Engineers as Assistant Engineers on ad hoc basis. Aggrieved, the Stipendiary Engineers filed O.J.C. Case No.8373 of1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for a writ of mandamus directing the Government to comply with the resolution and the order issued by it. This petition was allowed by the Division Bench of the High Court of Orissa at Cuttack by an order dated 18th December 1996. The High Court directed the Government to take expeditious steps to implement resolution dated 12th March 1996, preferably within a period of four months.
It further directed the State Government to appoint Stipendiary Engineers as Assistant Engineers in the scale of Rs.2000-3500 on ad hoc basis. In compliance with the directions aforementioned, the Stipendiary Engineers were appointed as Assistant Engineers on ad hoc basis between the years 1997 and 2001. What is important is that pursuant to its initial proposal of allocating 5% vacancies for those working as degree holder Junior Engineers in different departments, the Government had between 1996and 1997 promoted 86 degree holder Junior Engineers on an ad hoc basis as Assistant Engineers.
12. Five Stipendiary Engineers working in the Water Resources Department whose names had been recommended along with others for appointment as Assistant Engineers on ad hoc basis by the Screening Committee set up for the purpose in the meantime filed O.J.C. No.1563 of 1998 before the Orissa High Court making a grievance that despite the recommendations made in their favour, the Government had not appointed them as Assistant Engineers. That petition was allowed and disposed of by an order dated 6th May, 1998directing the State Government to consider the case of the writ-petitioners in the light of its earlier order passed in Jayant Kumar's case (supra).Since the said directions were not carried out by the Government, two of the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of 1999 in which they complained about the non-implementation of the directions issued by the High Court earlier and prayed for their regularisation.
This petition was disposed of by the High Court by a common order dated 2nd July, 2002 in which the High Court noted that the petitioners had been appointed as Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- by the Water Resources Department Notification dated 11th December, 1998. The High Court further held that since the Government was on principle committed to regularising the appointments of Stipendiary Engineers there was no reason why the Government should not treat them as direct recruits since the year 1991, in which they were appointed, and compute their service from that year for the purpose of in-service promotion, pension and other service benefits except financial benefits and to absorb them on regular basis according to law.
13. It was in the above backdrop that the Government finally came up with a proposal for validation of the appointment of Stipendiary Engineers as Assistant Engineers. Memorandum dated 28th November, 2002 referred to appointment of 846 Stipendiary Engineers in Civil, 61 Stipendiary Engineers in Mechanical and 25 Engineers in Electrical wings making a total of 932Stipendiary Engineers in different Departments. We are informed at the Bar that the present number of such Stipendiary Engineers is limited to 881only as the rest have either resigned, retired or died. The proposal made in the Memorandum also took note of the information given by the Orissa Public Service Commission and the repeated demands of ad hoc Assistant Engineers engaged from Stipendiary Engineers for regularization.
The proposal stated that no regular appointments were made by the Orissa Public Service Commission and that the validation of appointments of Stipendiary Engineers as Assistant Engineers will immensely benefit the State in execution of several ongoing development works. The proposal further stated that having rendered more than 10 years of service, these Stipendiary Engineers currently working as Assistant Engineers on ad hoc basis will have no avenues for employment as they had already gone beyond the upper age limit prescribed for direct recruitment.
14. It is in the above backdrop that the State Legislature eventually enacted Orissa Service of Engineers (Validation of Appointment) Act, 2002which comprises no more than three sections. Section 3 of the legislation reads as under:
"3(1) Notwithstanding anything contained in the Recruitment Rules, seven hundred ninety-nine Assistant Engineers belonging to the discipline of Civil, fifty-seven Assistant Engineers belonging to the discipline of Mechanical and twenty-five Assistant Engineers belonging to the discipline of Electrical as specified in the Schedule with their names, dates of birth, dates of appointment and the names of the Departments under which they are working on ad hoc basis since the date of such appointment shall be deemed to be validly and regularly appointed under their respective Department of the Government against the direct recruitment quota of the service with effect from the date of commencement of this Act and, accordingly, no such appointment shall be challenged in any court of law merely on the ground that such appointments were made otherwise than in accordance with the procedure laid down in the Recruitment Rules.
(2) The inter-se-seniority of the Assistant Engineers whose appointments are so validated shall be determined according to their dates of appointment on ad hoc basis as mentioned in the Schedule and they shall be enblock junior to the Assistant Engineers of that year appointed to the service in the respective discipline in their cadre in accordance with the provisions of the Recruitment Rules.
(3) The services rendered by the Assistant Engineers whose appointments are so validated, prior to the commencement of this Act shall, subject to the provisions in sub-section (2), count for the purpose of their pension, leave and increment and for no other purpose."
15. A batch of writ petitions being Writ Petitions No.9514 of 2003, 12495of 2005, 12495 of 2005, 12627 of 2005, 12706 of 2006 and 8630 of 2006, were then filed by the Degree holder Junior Engineers appointed as Assistant Engineers on ad hoc basis between 1996 and 1997 challenging the validity of the above legislation, inter alia, on the ground that the same suffered from the vice of discrimination inasmuch as while ad hoc Assistant Engineers, who were earlier appointed on stipendiary basis, had been regularised under the Validation Act, those appointed against 5% quota reserved for Junior Engineers holding a degree qualification were left out.
16. Writ Petition No.11093 of 2006 was similarly filed by Junior Engineers who had not been appointed as Assistant Engineers claiming parity with Degree holder Junior Engineers already appointed as Assistant Engineers on ad hoc basis against 5% quota disapproved by the Public Service Commission for such Engineers.
17. Writ Petition No.16742 of 2006 was filed by Junior Engineers promoted as Assistant Engineers against 33% quota reserved for such Engineers whose grievance primarily was that regularisation/validation of the appointments of Stipendiary Engineers in the cadre of Assistant Engineers was illegal and unconstitutional and adversely affected them in terms of their seniority.
18. The above writ petitions were heard by a Division Bench of the High Court of Orissa who allowed the same by its order dated 15th October, 2008striking down the impugned Legislation primarily on the ground that the same brought about discrimination between Assistant Engineers similarly situate and, therefore, fell foul of Articles 14 and 16 of the Constitution. The High Court observed: "There is no reason as to why appointments of a few persons working as Assistant Engineers on ad hoc basis have been validated ignoring the other similarly situated persons working on ad hoc basis as Assistant Engineers. There cannot be discrimination or classification amongst the persons working on ad hoc basis or the post of Assistant Engineers. Once unequal became equal, the State has no authority to discriminate them and make equals as unequal."
19. The present appeals assail the correctness of the above judgment and order of the High Court. While Civil Appeals No.8324 to 8331 of 2009 have been filed by the State of Orissa, Civil Appeals No.8322, 8323 of 2009 and1940 of 2010 have been preferred by Stipendiary Engineers who are adversely affected by the judgment of the High Court on account of striking down of the Validation Act under which they were regularized as Assistant Engineers. Civil Appeal No.1768 of 2006 has, however, been filed by the Degree holder Junior Engineers who have already been promoted as Assistant Engineers against 33% quota reserved for them to challenge the judgment of the High Court in OJC Nos.6354 and 6355 of 1999 directing the State Government to regularise the services of the writ-petitioners in those petitions as Assistant Engineers from the date of their appointment as Stipendiary Engineers with all consequential benefits except financialbenefits.
20. Several intervention applications have been filed in these appeals including intervention application filed by the SC/ST candidates who were directly recruited as Assistant Engineers in the year 2004 onwards.
21. We have heard learned counsel for the parties as also those appearing for the interveners. The following three questions of law arise for consideration:
1. What is the true nature and purport of the impugned legislation? More particularly is the impugned legislation a validation enactment or is it an enactment that grants regularisation to those appointed on ad hoc basis?
2. If the impugned enactment simply grants regularisation, does it suffer from any constitutional infirmity?
3. Does Section 3(2) of the impugned legislation suffer from any unconstitutionality, insofar as the same purports to grant Stipendiary Assistant Engineers seniority with effect from the date they were appointed on ad hoc basis?
Re. Question No.1
22. Black's Law Dictionary (9th Edition, Page No.1545) defines a Validation Act as "a law that is amended either to remove errors or to add provisions to conform to constitutional requirements". To the same effect is the view expressed by this Court in Hari Singh & Others v. The Military Estate Officer and Anr. (1972) 2 SCC 239, where this Court said "Themeaning of a Validating Act is to remove the causes for ineffectiveness or invalidating of actions or proceedings, which are validated by a legislative measure". In ITW Signode India Ltd. v. Collector of Central Excise (2004) 3 SCC 48, this Court described Validation Act to be an Act that "removes actual or possible voidness, disability or other defect by confirming the validity of anything which is or may be invalid".
23. The pre-requisite of a piece of legislation that purports to validate any act, rule, action or proceedings were considered by this Court in Shri Prithvi Cotton Mills Ltd. and Ann v. Broach Borough Municipality and Ors.(1969) 2 SCC 283. Two essentials were identified by this Court for any such legislation to be valid. These are:
(a) The legislature enacting the Validation Act should be competent to enact the law and;
(b) the cause for ineffectiveness or invalidity of the Act or the proceedings needs to be removed.
24. The Court went on to enumerate certain ways in which the objective referred to in
(b) above could be achieved by the legislation and observed: "............. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts.
The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject- matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax."
(emphasis supplied)
25. Judicial pronouncements regarding validation laws generally deal with situations in which an act, rule, action or proceedings has been found by a Court of competent jurisdiction to be invalid and the legislature has stepped in to validate the same. Decisions of this Court which are a legion take the view that while adjudication of rights is essentially a judicial function, the power to validate an invalid law or to legalise an illegal action is within the exclusive province of the legislature. Exercise of that power by the legislature is not, therefore, an encroachment on the judicial power of the Court. But, when the validity of any such Validation Act is called in question, the Court would have to carefully examine the law and determine whether
(i) the vice of invalidity that rendered the act, rule, proceedings or action invalid has been cured by the validating legislation
(ii) whether the legislature was competent to validate the act, action, proceedings or rule declared invalid in the previous judgments and
(iii) whether such validation is consistent with the rights guaranteed by Part III of the Constitution.
It is only when the answer to all these three questions is in the affirmative that the Validation Act can be held to be effective and the consequences flowing from the adverse pronouncement of the Court held to have been neutralised. Decisions of this Court in ShriPrithvi Cotton Mills Ltd. and Anr. V. Broach Borough Municipality and Ors.(1969) 2 SCC 283, Hari Singh v. Military Estate Officer (1972) 2 SCC 239,Madan Mohan Pathak v. Union of India (1978) 2 SCC 50, Indian Aluminium Co.etc. v. State of Kerala and Ors. (1996) 7 SCC 637, Meerut Development Authority etc. v. Satbir Singh and Ors. etc. (1996) 11 SCC 462, and ITWS ignode India Ltd. v. Collector of Central Excise (2004) 3 SCC 48 fall in that category. Even in the realm of service law, validation enactments have subsequent to the pronouncement of competent Courts come about validating the existing legislation. Decisions of this Court in I.N. Saksena v. State of Madhya Pradesh (1976) 4 SCC 750, Virender Singh Hooda and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588 and State of Bihar and Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 deal with that category of cases.
26. In the case at hand, the State of Orissa had not suffered any adverse judicial pronouncement to necessitate a Validation Act, as has been the position in the generality of the cases dealt with by this Court. The title of the impugned Legislation all the same describes the legislation as a Validation Act. The title of a statute is no doubt an important part of an enactment and can be referred to for determining the general scope of the legislation. But the true nature of any such enactment has always to be determined not on the basis of the label given to it but on the basis of its substance.
27. In M.P.V. Sundararamier & Co. v. State of A.P. & Anr. AIR 1958 SC 468this Court was considering whether the impugned enactment was a Validation Act in the true sense. This Court held that although the short title as also the marginal note described the Act to be a Validation Act, the substance of the legislation did not answer that description. This Court observed: "It is argued that to validate is to confirm or ratify, and that can be only in respect of acts which one could have himself performed, and that if Parliament cannot enact a law relating to sales tax, it cannot validate such a law either, and that such a law is accordingly unauthorised and void.
The only basis for this contention in the Act is its description in the Short Title as the "Sales Tax Laws Validation Act" and the marginal note to s. 2, which is similarly worded. But the true nature of a law has to be determined not on the label given to it in the statute but on its substance. Section 2 of the impugned Act which is the only substantive enactment therein makes no mention of any validation. It only provides that no law of a State imposing tax on sales shall be deemed to be invalid merely because such sales are in the course of inter-State trade or commerce. The effect of this provision is merely to liberate the State laws from the fetter placed on them by Art. 286(2) and to enable such laws to operate on their own terms."
(emphasis supplied)
28. We may also refer to Maxwell on Interpretation of Statutes (12thEdn., page 6), where on the basis of authorities on the subject, short title of the Act has been held to be irrelevant for the purpose of interpretation of statutes. Lord Moulton in Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107 described the short title of an Act as follows: "A title given to the act is solely for the purpose of facility of reference. If I may use the phrase, it is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title....Its object is identification and not description."
(emphasis supplied)
29. Dr. Dhawan, learned senior counsel appearing for the appellants fairly conceded that the impugned legislation could not be described as a simple Validation Act. According to him, the Act achieved a dual purpose of
(a) validating the invalid ad hoc appointments and
(b) appointing the Stipendiary Engineers working as ad hoc Assistant Engineers on a substantive basis by regularising their appointments. While we have no difficulty in agreeing with the latter part of the contention urged by Dr. Dhawan and holding that the legislation regularises the appointment of Stipendiary Engineers as Assistant Engineers, we have not been able to appreciate the rationale behind the Legislature considering it necessary to validate the ad hoc appointments, especially when such appointments had been made by the Government pursuant to the directions issued by the High Court in the writ petitions filed by the Stipendiary Engineers.
Validation of the ad hoc appointments of the Stipendiary Engineers as Assistant Engineers would even otherwise have served no purpose. That is because whether the appointments were officiating/ad hoc/temporary or described by any other expression, the fact that the Stipendiary Engineers had worked for a long period of time as Assistant Engineers in temporary/adhoc/officiating capacity would have in itself been a ground for the State to regularise them, subject of course to such regularisation otherwise meeting constitutional requirements.
It was not as if any such regularisation was legally impermissible unless the "ad hoc appointments "granted to Stipendiary Engineers were themselves validated. It is quite evident that the legislation with which we are concerned was in substance aimed at regularising the services of such persons as had worked in the capacity of Assistant Engineers. If that was the true purport of the legislation, it would be inaccurate to describe the same as a validation enactment.
30. The matter can be viewed from yet another angle. The enactment came dehors any compulsion arising from a judicial pronouncement regarding the invalidity attached to the appointment of Assistant Engineers on ad hoc basis and only because of the State's anxiety to appoint/absorb the Stipendiary Engineers, subsequently appointed as ad hoc Assistant Engineers on a substantive/regular basis without following the route mandated by the Service Rules of 1941 applicable for making any such appointments. Having said that, we must hasten to add that a prior judicial pronouncement declaring an act, proceedings or rule to be invalid is not a condition precedent for the enactment of a Validation Act. Such a piece of legislation may be enacted to remove even a perceived invalidity, which the Court has had no opportunity to adjudge. Absence of a judicial pronouncement is not, therefore, of much significance for determining whether or not the legislation is a validating law.
31. There was in the above context some debate at the Bar whether or not the impugned enactment is a validating enactment as it purports to be. Asseen above, Dr. Rajiv Dhawan and even Shri Narasimha, did not see the impugned enactment as a validating legislation, no matter it carries a label to that effect. Mr. Patwalia & Mr. Sisodia, senior advocates, appearing for the opposite parties were also not supportive of the legislation being a validating enactment and in our opinion rightly so.
That is because the essence of a validating enactment is a pre-existing act, proceeding or rule, being found to be void or illegal with or without a judicial pronouncement of the Court. It is only when an act committed or a rule in existence or a proceeding taken is found to be invalid that a validating act may validate the same by removing the defect or illegality which is the basis of such invalidity. There is no question of validating something that has not been done or that has yet to come in existence. Noone can say that an illegality which has not yet been committed can or ought to be validated by legislation. Existence of an illegal act, proceedings or rule or legislation is the sine qua non for any validating legislation to validate the same. There can be no validation of what has yet to be done, suffered or enacted.
32. Applying the above to the case at hand a Validation Act may have been necessary if the Government had appointed the ad hoc Assistant Engineers on a substantive basis in violation of the relevant recruitment Rules. For in that case, the Government would have done an act which was legally invalid requiring validation by a legislative measure. But a legislation that did not validate any such non-existent act, but simply appointed the ad hoc Assistant Engineers as substantive employees of the State by resort to a fiction, could not be described as a validating law.
33. The legislation under challenge was in that view not a Validation Act as it purported to be but an enactment that regularised the appointment of graduate Stipendiary Engineers working as ad hoc Assistant Engineers as Assistant Engineers. Reliance upon the decision of this Court in Satchidananda Mishra v. State of Orissa and Ors. (2004) 8 SCC 599 is, in our opinion, of no assistance to the respondents. In Satchdinanda's case(supra) the High Court had struck down the validation act which order was confirmed by this Court in appeal. What is significant, however, is that while affirming the view taken by the High Court that the validation law was not constitutionally sound, this Court proceeded on the assumption that the legislation with which it was dealing with was a validation act in the true sense.
It was on that assumption that this Court looked into the invalidity and held that the validation act did nothing except validating the appointments without removing the basis on which such appointments could be invalidated. We have not proceeded on any such assumption in the instant case especially because learned counsel for some of the parties have argued that the legislation under challenge is not a Validation Enactment.
The Enactment in the case at hand deals with the law relating to regularisation of incumbents holding public office on ad hoc or temporary basis, much in the same way as regularisation of such temporary appointments is ordered in terms of a scheme for that purpose. The only difference is that while a regularisation scheme can be framed by the Government in exercise of its executive power, the regularisation ordered in the case at hand is by way of a legislation. It is trite that what could be achieved by the Government by exercise of its executive power could certainly be achieved by legislation, as indeed it has been achieved in the case at hand. Question No.1 is answered accordingly.
Re. Question No.2
34. A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 ruled that regularization of illegal or irregularly appointed persons could never be an alternative mode of recruitment to public service. Such recruitments were, in the opinion of this Court, in complete negation of the guarantees contained in Articles 14 and 16 of the Constitution. Having said so, this Court did not upset the regularisations that had already taken place, regardless of whether such regularisations related to illegal or irregular appointments.
The ratio of the decision in that sense was prospective in its application, leaving untouched that which had already happened before the pronouncement of that decision. This is evident from the following passage appearing in the decision: "We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
35. The above is a significant feature of the pronouncement of this Court in Umadevi's case (supra). The second and equally significant feature is the exception which this Court made in para 53 of the decision permitting a one-time exception for regularising services of such employees as had been irregularly appointed and had served for ten years or more. The State Government and its instrumentalities were required to formulate schemeswithin a period of six months from the date of the decision for regularisation of such employees. This is evident from a reading of para53 of the decision which is reproduced in extenso:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment.
In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date..."
(emphasis supplied)
36. Dr. Dhawan, learned senior counsel, appearing for the appellants in some of these appeals argued, and in our opinion rightly so, that both the aspects referred to above bear considerable significance to the case at hand. He submitted that regularisations granted by the State or its instrumentalities given in regard to appointments that were strictly speaking illegal had not been upset by this Court in Umadevi's case(supra). That being so, the impugned Enactment by which the appointment of the appellants- Stipendiary Engineers were regularised as Assistant Engineers must also be treated to have been saved from the rigour of the view taken in Umadevi's case (supra).
There is merit in that contention. The decision in Umadevi's case (supra) stated the true legal position on the subject but having regard to the fact that several earlier decisions of this Court had sanctioned regularisation of those not regularly appointed, this Court was of the view that upsetting such regularisations would not only unsettle what stood settled but also gravely prejudice those who are benefitted from such orders of regularisation.
There is no gainsaying that most of such persons who entered the public service initially without going through any open competitive selection process would have lost by passage of time their prospects of entering public service by legal course even if vacancies were available for such appointments. In some of the decisions the continuance of employees on ad hoc, temporary or daily-wage basis for an indefinite period was seen by this Court also to be a violation of the fundamental right to life apart from being discriminatory. Considering the magnitude of the problem that would arise if all such appointments were to be unsettled, this Court in Umadevi's case (supra) left such regularization alone and declared that in the future such orders of appointments dehors rules would not qualify for the grant of regularisation in public employment.
37. Equally important is the fact that even after declaring the true legal position on the subject and even after deprecating the practice of appointing people by means other than legitimate, this Court felt that those who had served for ten years or so may be put to extreme hardship if they were to be discharged from service and, therefore, directed the formulation of a scheme for their regularisation. This was no doubt a one-time measure, but so long as the appointment sought to be regularised was not illegal, the scheme envisaged by para 53 of the decision (supra)extracted above permitted the State to regularise such employees.
Dr. Dhawan argued that the appellants- Stipendiary Engineers had, by the time the decision in Umadevi's case (supra) was pronounced, qualified for the benefit of a scheme of regularisation having put in ten years as ad hoc Assistant Engineers and fifteen years if their tenure was to be counted from the date of their employment as Stipendiary Engineers. He contended that even in the absence of a Validation Act, Stipendiary Engineers appointed on ad hoc basis as Assistant Engineers, who had worked for nearly ten years to the full satisfaction of the State Government would have been entitled to regularisation of their services in terms of any such scheme.
38. On behalf of the diploma holder Junior Engineers, it was contended by Mr. Sisodia that the appointment of Stipendiary degree holders as ad hoc Assistant Engineers was not irregular but illegal. It was contended that Stipendiary Engineers were appointed on ad hoc basis without following the procedure permitted under the rules which, inter alia, entitled the degree holder Junior Engineers also to compete. He submitted that although diploma holder Junior Engineers were not entitled to compete against the vacancies on the direct recruitment quota in the cadre of Assistant Engineers, yet they were entitled to argue that any appointment to the cadre ought to be made in accordance with the rules especially when regularisation of degree holder Stipendiary Engineers would give them advantage in seniority to the prejudice of the diploma holder Junior Engineers who may at their own turn be promoted in the cadre of Assistant Engineers.
We have no hesitation in rejecting that contention. Diploma holder Junior Engineers were not, admittedly, eligible to be appointed as Assistant Engineers in the direct recruitment quota. They could not make a grievance against regularization simply because of the fact that those regularised may figure above them in seniority. Seniority is an incident of appointment to the cadre which must be regulated by the relevant rules. Any possible prejudice to diploma holders in terms of seniority would not, therefore, make the regularization unconstitutional or illegal and hence beyond the purview of para 53 in Umadevi's case (supra).
39. Mr. Patwalia, learned senior counsel appearing for the degree holder Junior Engineers who were also appointed on ad hoc basis as Assistant Engineers against 5% quota which the Government resolution had provided for, argued that although degree holder Junior Engineers are eligible for appointment against the vacancies in direct recruits quota, that opportunity was not available to his clients when the degree holder Junior Engineers were appointed as Assistant Engineers. He contended that Junior Engineer degree holders who were appointed as ad hoc Assistant Engineers against 5% quota reserved for them under the Government resolution would have no objection to the regularisation being upheld provided degree holder Junior Engineers who had served for a relatively longer period as Assistant Engineers on ad hoc basis were also given a similar treatment.
He submitted that the exclusion of degree holder Junior Engineers from the legislative measure aimed at regularising the Stipendiary degree holders was clearly discriminatory and that the High Court was on that count justified in holding that the Validation Act itself was ultra vires. It was contended by Mr. Patwalia that even if the legislature had restricted the benefit of regularisation to the Stipendiary Engineers later appointed on ad hoc basis as Assistant Engineers, there was no reason why this Court could not extend the very same benefit to degree holder engineers who had similarly worked for over 15 years.
40. The decision in Umadevi's case (supra), as noticed earlier, permitted regularisation of regular appointments and not illegal appointments. Question, however, is whether the appointments in the instant case could be described as illegal and if they were not, whether the State could be directed to regularise the services of the degree holder Junior Engineers who have worked as ad hoc Assistant Engineers for such a long period, not only on the analogy of the legislative enactment for regularisation but also on the principle underlying para 53 of the decision in Umadevi's case(supra).
41. As to what would constitute an irregular appointment is no longer resintegra. The decision of this Court in State of Karnataka v. M.L. Kesariand Ors. (2010) 9 SCC 247, has examined that question and explained the principle regarding regularisation as enunciated in Umadevi's case (supra). The decision in that case summed up the following three essentials for regularisation (1) the employees worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage:
"7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
42. It is nobody's case that the degree holder Junior Engineers were not qualified for appointment as Assistant Engineers as even they possess degrees from recognised institutions. It is also nobody's case that they were not appointed against the sanctioned post. There was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of time against sanctioned posts.
The information provided by Mr. Nageshwar Rao, learned Additional Solicitor General, appearing for the State of Orissa, in fact, suggests that the number of vacancies was at all points of time more than the number of appointments made on ad hoc basis. It is also clear that each one of the degree holders has worked for more than 10 years ever since his appointment as ad hoc Assistant Engineer. It is in that view difficult to describe these appointments of the Stipendiary Engineers on ad hoc basis to be illegal so as to fall beyond the purview of the scheme envisaged in Umadevi's case (supra).
43. The upshot of the above discussion is that not only because in Umadevi's case (supra) this Court did not disturb the appointments already made or regularisation granted, but also because the decision itself permitted regularisation in case of irregular appointments, the legislative enactment granting such regularisation does not call for interference at this late stage when those appointed or regularised have already started retiring having served their respective departments, in some cases for as long as 22 years.
44. We need to advert to one other aspect which bears relevance to the issue whether regularisation under the impugned Enactment is legally valid. The appointment process of unemployed degree holders, as noticed earlier, started with the resolution passed by the State Government which envisaged appointments of such unemployed Graduate Engineers as Stipendiaries on a consolidated stipend of Rs.2,000/- p.m. The resolution further envisaged their absorption in service after a period of two years. Not only that, appointments as Stipendiary Engineers were made on the basis of a selection process and on the basis of merit no matter determined de hors the relevant rules which provided for appointments to the cadre to be made only through the Public Service Commission.
A reference to the Public Service Commission was no doubt considered unnecessary but the fact remains that appointment of unemployed degree holders as Stipendiary Engineers were made pursuant to a notification by which everyone who was unemployed and held an Engineering degree in any discipline was free to make an application. A large number of unemployed engineers responded to the notification inviting applications out of whom nearly 932 were selected by a Selection Committee constituted for the purpose. What is significant is that the empanelment of the unemployed degree holders for appointment as Stipendiaries did not invite any criticism from any quarter either as to the method of appointment or the fairness of the selection process.
The process of appointment was at no stage questioned before the Court, a feature which is notable keeping in view the number of people appointed/empanelled and a larger number who were left out and who could have possibly made a grievance if there was any. It is not, therefore, wholly correct to suggest that the entry of the degree holder Junior Engineers as Stipendiary Engineers and later as Assistant Engineers was through "the backdoor", an expression very often used in service matters where appointments are made de hors the rules. The process of selection and appointments may not have been as per the relevant rules as the same ought to have been, but it is far from saying that there was complete arbitrariness in the manner of such appointments so as to violate Articles 14 and 16 of the Constitution of India.
45. That apart the appointment of Stipendiary Engineers was at the level of Junior Engineers although it was argued on their behalf that they were discharging the functions of Assistant Engineers from the date they were employed. In the absence of any finding from the High Court on the subject and in the absence of any cogent material before us to support that claim, we find it difficult to hold that the appointment of the Stipendiary Engineers was from the beginning itself as Assistant Engineers. The fact that the resolution of the State Government itself envisaged appointment of Stipendiary Engineers as ad hoc Assistant Engineers on the basis of performance makes it amply clear that the Stipendiary Engineers were not treated as Assistant Engineers for otherwise there would have been no question of appointing them as Assistant Engineers on ad hoc or any other basis.
It is also noteworthy that the appointment of the Stipendiary Engineers on ad hoc basis came pursuant to the direction from the High Court which is yet another reason why it is not open to the Stipendiary Engineers to claim that they were at all points of time working as Assistant Engineers. Having said that we cannot lose sight of the fact that the appointment of graduate engineers as Stipendiaries was on a clear representation that they would be eventually absorbed in service as Assistant Engineers. That representation is evident from the resolution of the State Government where it stated:
"In all, therefore, 741 posts will be available for recruiting these Degree Engineers in the first instance. They may be designed as Junior Engineers or Stipendiary Engineers in the first phase. They may be paid salary in the scale of Junior Engineers or in a consolidated stipend of Rs.2,000/- per month. Absorption into regular posts may be done after two years on the basis of their performance."
46. In the counter-affidavit filed by the State Government before the High Court the State re-affirmed its commitment to the appointment of Stipendiary Engineers as Assistant Engineers on ad hoc basis.
47. In the circumstances and taking a holistic view of the matter, it cannot be said that the appointment of Stipendiary Engineers on ad hoc basis and their subsequent regularisation came as a side wind or was inspired by any political or other consideration. The Government, it appears, was from the very beginning, keen to utilise the services of unemployed Graduate Engineers selected on their merit by the Selection Committee and, therefore, remained steadfast in its efforts for achieving that purpose and in the process going even to the extent of getting them regularised by a legislative measure. Suffice it to say that the question whether regularisation was justified cannot be viewed in isolation or divorced from the context in which the same arises.
48. We may now turn to the contention urged by Mr. Patwalia, that the impugned Legislation was discriminatory in as much as it granted regularisation to persons similarly situated while denying such benefit to his client who not only held a degree qualification like the Stipendiary Engineers but were in terms of the Government resolution promoted as Ad hoc Assistant Engineers against 5% quota reserved for them.
It was argued that State could not have classified ad hoc Assistant Engineers who came from the Stipendiary Engineers stream, on one hand, and those appointed as adhoc Assistant Engineers on account of their being in service as Junior Engineers holding a degree qualification. The degree holder Junior Engineers, it was contended, were in comparison better entitled to regularisation as they had not only the requisite qualification but had put in longer service as ad hoc Assistant Engineers vis-a-vis their Stipendiary counterparts.
Alternatively, it was contended that the degree holder Junior Engineers who too had put in more than 15 years service, were entitled to a direction for their regularisation as Assistant Engineers not only on account of the length of service rendered by them but also on the an alogy of the legislative benefit extended to their counterpart Stipendiaries.
49. The approach to be adopted and the principles applicable to any forensic exercise aimed at examining the validity of a legislation on the touchstone of Article 14 of the Constitution have been long since settled by several decisions of this Court. Restatement or repetition of those principles was, therefore, considered platitudinous. The real difficulty as often acknowledged by this Court lies not in stating the principles applicable but in applying them to varying fact situations that come up for consideration. Trite it is to say at the outset that a piece of legislation carries with it a presumption of constitutional validity. Also settled by now is the principle that Article 14 does not forbid reasonable classification.
A classification is valid on the anvil of Article 14, if the same is reasonable that is it is based on a reasonable and rational differentia and has a nexus with the object sought to be achieved. (SeeState of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 and Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538). A comprehensive review of the law is, in our opinion, unnecessary at this stage in view of the Constitution Bench decision of this Court in Re: The Special Courts Bill, 1978 (1979) 1 SCC 380 where this Court undertook that exercise and noticed as many as thirteen propositions that bear relevance to any forensic determination of the validity of a law by reference to the equality clause enshrined in Article 14 of the Constitution. Some of those principles were stated by this Court in the following words: "xxx xxx xxx
(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or
