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TMI Blog2021 (9) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the petitioner (appellant herein) was dehors the Rules and thus was illegal and her appointment was litigious appointment and she continued on the strength of an interim order passed by the High Court on 20.05.1986, she was not entitled for regularization? - HELD THAT:- It is very well settled that it is not permissible for the parties to re-open the concluded judgments of the Court as the same may not only tantamount to an abuse of the process of the Court but would have far reaching adverse effect on the administration of justice. A feeble attempt was made by the learned counsel for the Staterespondent to persuade us not to interfere in the matter on the ground that the services of the appellant were terminated vide letter dated 19.05.1986 which was never challenged as such her services stood terminated - We are not ready to accept the proposition canvased by learned counsel for the respondent at this stage for the simple reason that it was open for the State to have advanced this contention before the learned Single Judge in the two Writ Petitions decided vide judgment and order dated 23.01.2006. Once this argument was never made before the learned Single Judge in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that the interim order shall automatically lapse on return of the permanent incumbent Smt. Safia Khatoon. 6. It so happened that Smt. Safia Khatoon did not rejoin the service, as a result her services were terminated vide order dated 16.01.1988. It is undisputed fact that the respondents never undertook any steps for filling up the post and the appellant was continued on the said post without any interruption till 2020. 7. On 17.08.2001, the State of Uttar Pradesh Promulgated the UP Secondary Education Department Regularization of Ad hoc appointments on the Post of Trained Graduate Teachers Rules, 2001 ( for short known as Regularization Rules, 2001). On 02.11.2001, the appellant made a representation to the authorities seeking regularization in accordance with the said Rules. When no action was taken on a representation for a substantial period of time, she approached the High Court again by filing Writ Petition No. 7890 (SS) of 2003. This Writ Petition came to be clubbed with the earlier Writ Petition No. 3316 (SS) of 1986 filed by the appellant and were heard together and disposed of by a learned Single Judge of the High Court by making following observations :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to the petitioner. The earlier judgment had found petitioner to be entitled to hold the post. Respondents refusal to apply the Regularization Rules, 2001 was accordingly unlawful. iii. A quietus needs to be given to long drawn litigation and the petitioner is entitled for regularization. 12. The learned Single Judge placed reliance upon the Constitution Bench Judgment of this Court in the case of Rudra Kumar Sain and Ors. Vs. Union of India and Ors (2000) 8 SCC 25 . and in particular the following observations made in paragraph 20 of the said Constitution Bench Judgment :- In the service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be stopgap or fortuitous or purely ad hoc . 13. The learned Single Judge found that the appellant has been teaching since 23.07.1984 and in an earlier judgment, the High Court has already held her appointment not being a stopgap arrangement and further she has a right to the post which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, she was not entitled for regularization. 19. The Constitution Bench of this Court in the case of Umadevi (3) has held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless the appointment has been made in accordance with the terms of the relevant service rules governing the said appointment and in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above by observing in paragraph 53 of the reports as under :- 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L S) 4 : (1979) 3 SCR 937] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 7 from the said report, which reads as under:- It is evident from the above that there is an exception to the general principles against `regularization' 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. 23. In the case of the appellant, it is undisputed that she w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the parties as admittedly the State-respondent did not put the same to challenge before any higher forum. The aforesaid judgment which attained finality crystallized the right of the appellant for regularization. When the same was refused by the Joint Director of Education, it was again challenged by filing Writ Petition No. 8597 of 2010. A learned Single Judge vide order dated 15.05.2014 allowed the Writ Petition with the finding that in the earlier round of litigation, the High Court had held that she was entitled to hold the post and since the said judgment become final and unchallenged, the Regularization Rules, 2001 were applicable and refusal to apply the said Rules was unlawful. 28. Admittedly, when the judgment dated 23.01.2006 was passed by the High Court in the earlier two Writ Petitions filed by the appellant, the dictum of Umadevi (3) was not even in existence as the said judgment was rendered subsequently on 10.04.2006. 29. The Division Bench of the High Court has erroneously understood the dictum of this Court in Umadevi (3). The Constitution Bench has nowhere directed that service matters that stand concluded inter partes, ought to be re-opened. On the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt true that in Umadevi s case, it has been held that regularization as a one-time measure can only be in respect of those who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts. However, in the instant case the respondents are covered by the judgment of this Court in Gujarat Agricultural University (supra). This Court approved the proposed scheme of the State of Gujarat and directed regularization of all those daily wagers who were eligible in accordance with the scheme phase-wise. The right to be regularized in accordance with the scheme continues till all the eligible dailywagers are absorbed. Creation of additional posts for absorption was staggered by this Court permitting the appellant and the State of Gujarat to implement the scheme phase-wise. We are not impressed with the submissions made on behalf of the university that the judgment of this Court in Umadevi s case overruled the judgment in Gujarat Agricultural University (supra). The judgment of this Court in Gujarat Agricultural University (supra) inter partes has become final and is binding on the university. Even according to Para 54 of Umadevi s case, any judgment which is contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded judgments of the Court as the same may not only tantamount to an abuse of the process of the Court but would have far reaching adverse effect on the administration of justice. 37. It is undisputed that in compliance of the judgment of the learned Single Judge dated 15.05.2014 vide order dated 31.10.2015 respondents regularized the services of appellant subject to the outcome of the proceedings in the LPA and the appellant now stand superannuated having attained the age of superannuation after about 33 years of continuous service. 38. In the end, a feeble attempt was made by the learned counsel for the Staterespondent to persuade us not to interfere in the matter on the ground that the services of the appellant were terminated vide letter dated 19.05.1986 which was never challenged as such her services stood terminated. We are not ready to accept the proposition canvased by learned counsel for the respondent at this stage for the simple reason that it was open for the State to have advanced this contention before the learned Single Judge in the two Writ Petitions decided vide judgment and order dated 23.01.2006. Once this argument was never made before the learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X
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