2014 (2) TMI 1300 - SC - Indian Laws

Constitutional validity of Orissa Service of Engineers (Validation of Appointment) Act, 2002 - appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service - Held that - 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. 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. Regularization of in-service degree holder Junior Engineers who have been working for considerable length of time as Assistant Engineers on ad hoc basis - Held that - On a true and proper determination of the posts comprising the cadre strength of Assistant Engineers, some more vacancies could fall in the 5% quota proposed to be reserved for the degree holder Junior Engineers and no mandamus could be issued for filing up such vacancies. It is trite that existence of an enforceable right and a corresponding obligation is a condition precedent for the issue of a mandamus. We fail to locate any such right in favour of the writ petitioner degree holders who are still holding posts as Junior Engineers. They will have, therefore, to wait for their turn for promotion against the 33% quota reserved for them along with their diploma holder colleagues. We hardly need to emphasise that those appointed against 5% quota may also have had no such right, but since they have worked in the higher cadre for a long period and discharged duties attached to the posts of Assistant Engineers with the benefits attached thereto, their regularisation comes on a totally different juristic basis than the one sought to be urged on behalf of those who were left out. Appointments as Assistant Engineers were from out of Junior Engineers made strictly according to seniority. The fortuitous circumstance under which the appointments did not extend to the full quota of 5% would make no material difference when it comes to finding out whether the Junior Engineers can claim an enforceable legal right. Seniority position of those being regularized either under the Validation Act or in terms of the directions being issued by us in these appeals - Held that - Illegality or constitutional infirmity in the provisions of Section 3(2) or 3(3) of the impugned legislation. Having said so, there is no reason why a similar direction regarding the writ-petitioners degree holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr. Dhawan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the Legislation that such Stipendiary-ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would enbloc rank junior to such ad hoc Assistant Engineers from out of degree holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary Stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.

Summary

Issues Involved:
1. Constitutional validity of the Orissa Service of Engineers (Validation of Appointment) Act, 2002.
2. Whether the impugned enactment grants regularisation or validation.
3. Constitutionality of the regularisation process.
4. Validity of Section 3(2) of the impugned legislation regarding seniority.

Issue-wise Detailed Analysis:

1. Constitutional Validity of the Orissa Service of Engineers (Validation of Appointment) Act, 2002:
The primary issue was whether the Orissa Service of Engineers (Validation of Appointment) Act, 2002, which validated the appointment of 881 ad hoc Assistant Engineers, was constitutionally valid. The High Court of Orissa had struck down the legislation, stating it violated Articles 14 and 16 of the Constitution by discriminating against the writ petitioners. The Supreme Court examined the factual matrix, including the government's decision to appoint unemployed degree holders as Stipendiary Engineers, their subsequent ad hoc appointment as Assistant Engineers, and the legislative enactment aimed at validating these appointments. The Court concluded that the legislation aimed at regularising the services of those who had worked as Assistant Engineers for a long period, thus addressing the issue of their employment stability.

2. Whether the Impugned Enactment Grants Regularisation or Validation:
The Court distinguished between a Validation Act and a regularisation enactment. It noted that a Validation Act typically removes causes for ineffectiveness or invalidity of actions or proceedings, whereas the impugned legislation aimed at regularising the services of ad hoc Assistant Engineers. The Court held that the legislation was not a Validation Act but an enactment that regularised the appointment of graduate Stipendiary Engineers working as ad hoc Assistant Engineers. The Court emphasized that the true nature of the legislation should be determined by its substance rather than its label.

3. Constitutionality of the Regularisation Process:
The Court referred to the Constitution Bench decision in Secretary, State of Karnataka v. Umadevi (3), which ruled that regularisation of illegal or irregularly appointed persons could not be an alternative mode of recruitment. However, the Court noted that Umadevi's decision did not disturb regularisations already made and permitted a one-time exception for regularising services of employees who had worked for ten years or more. The Court found that the appellants, having served as ad hoc Assistant Engineers for nearly ten years, qualified for regularisation under the principles laid down in Umadevi. The Court also addressed the concerns of diploma holder Junior Engineers, stating that their seniority concerns would not invalidate the regularisation process.

4. Validity of Section 3(2) of the Impugned Legislation Regarding Seniority:
Section 3(2) of the legislation stipulated that the inter-se seniority of validated Assistant Engineers would be determined according to their dates of ad hoc appointment and that they would be en bloc junior to Assistant Engineers appointed under the Recruitment Rules. The Court referred to the principles laid down in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, which allowed for counting the period of officiating service for seniority if the appointee continued in the post uninterruptedly till regularisation. The Court upheld the provision, stating that the appointments, although not made according to the rules, continued uninterruptedly and were regularised by the legislation.

Conclusion:
The Supreme Court allowed the appeals filed by the State of Orissa and the Stipendiary Engineers, setting aside the High Court's judgment. The Court also directed the regularisation of in-service degree holder Junior Engineers who had been working as ad hoc Assistant Engineers, placing them below the promotees and above the Stipendiary Engineers in seniority. The Court disposed of the intervention applications, leaving other related issues open for appropriate proceedings.