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2017 DIGILAW 1490 (GAU)

Er. Fineson Pojar v. Er. Hokato Sema

2017-11-30

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2017
JUDGMENT : 1. Heard Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel appearing for the appellants, Mr. K. Sema, learned senior Addl. Advocate General assisted by Ms. Livika, learned counsel for the State respondents. Also heard Mr. C.T. Jamir, learned senior counsel assisted by Mr. N. Longkumer, learned counsel appearing for the private respondents. 2. All these appeals are being disposed of by this common judgment and order as the subject-matter in all these appeals are intricately connected. While the subject-matter in issue in WA No. 8(K)/2013 is different from all the other appeals, the subject-matter in issue in all the other appeals is the same. However, the decision made in respect of WA No. 8(K)/2013 will not be complete as the decision on all the other writ appeals will have a bearing on WA No. 8(K)/2013. 3. WA No. 8(K)/2013 is an appeal against the judgment dated 25.7.2013 passed by the Single Judge in WP(C) No. 169(K)/2012. 4. WA Nos. 9(K)/2013 to 14(K)/2013 are appeals against the impugned common judgment and order dated 25.7.2013 passed in WP(C) No. 1(K)/2011, WP(C) No. 2(K)/2011, WP(C) No. 3(K)/2011, WP(C) No. 201(K)/2010, WP(C) No. 202(K)/2010 and WP(C) No. 73(K)/2011. 5. The question to be decided in WA No. 8(K)/2013 is whether the State respondents could have considered and promoted the respondent No. 1 to the post of Executive Engineer in the Department of Works & Housing, Nagaland, while the interim orders dated 10.12.2010 and 01.7.2011, passed in WP(C) No. 201(K)/2010, directing the State respondents not to consider the respondent No. 1 for promotion to the post of Executive Engineer, were in force. 6. The facts of the case in WA No. 8(K)/2013 is that the appellants are degree holders who have been appointed as direct recruits to the posts of SDOs/Assistant Engineers in the Department of Works & Housing, Nagaland as per the Nagaland Engineering Service Rules, 1984 (Class-I and Class-II) and the subsequent Nagaland Engineering Service Rules, 1997 (Class-I and Class-II), herein after referred to as the “Rules”. They were appointed between 1995 to 2009. 7. The respondent No. 1 in WA No. 8(K)/2013 on the other hand, was appointed on contract basis as SDO/Assistant Engineer for a period of four months vide Notification dated 10.8.1994 and his service was extended from time-to-time. They were appointed between 1995 to 2009. 7. The respondent No. 1 in WA No. 8(K)/2013 on the other hand, was appointed on contract basis as SDO/Assistant Engineer for a period of four months vide Notification dated 10.8.1994 and his service was extended from time-to-time. The service of the respondent No. 1 was thereafter, regularized on the basis of a decision taken by the State Cabinet w.e.f. 6.12.1997, vide Order dated 21.01.1998. 8. The respondent No. 1 was thereafter promoted to the post of Executive Engineer on officiating basis on 5.12.2006 and the appellants being aggrieved by the same, the appellants filed WP(C) No. 8(K)/2007, praying for setting aside the officiating promotion of the respondent No. 1. WP(C) No. 8(K)/2007 was disposed of vide order dated 30.4.2009, whereby the promotion order of the respondent No. 1 was set aside. Being aggrieved, the respondent No. 1 thereafter filed WA No. 15(K)/2009 against the Order dated 30.4.2009 passed in WP(C) No. 8(K)/2007. 9. WA No. 15(K)/2009 was disposed of by the Division Bench vide Order dated 4.8.2010 as follows: “Since admittedly the DPC for regular promotion to the post of Executive Engineer, which is presently held by the appellant, has not been convened till dated, the present appeal is disposed of with a direction to the State respondents to hold the DPC for consideration of all the officers who come within the zone of consideration for promotion to the post of Executive Engineer within a period of 6 weeks. The Government of Nagaland shall, within the aforesaid period of six weeks, on the basis of the recommendation of the DPC, promote an officer on regular basis to the post of Executive Engineer, which is presently held by the appellant. As the appellant, in view of the interim order passed in the writ petition, is working on officiating promotion basis as Executive Engineer since 5th December, 2006, we allow the State respondents to allow the appellant to continue as such for the aforesaid period of six weeks only. In case regular promotion could not be made for any reason beyond the control of the State respondents, they shall pass fresh order of officiating promotion after considering the cases of all eligible persons as well as seniority, if such officiating arrangement is absolutely necessary.” 10. In case regular promotion could not be made for any reason beyond the control of the State respondents, they shall pass fresh order of officiating promotion after considering the cases of all eligible persons as well as seniority, if such officiating arrangement is absolutely necessary.” 10. The State respondents not having complied with the order dated 4.8.2010 passed in WA No. 15(K)/2009, the appellants filed Civil Original Contempt Petition No. 16(K)/2010. The same was disposed of vide order dated 21.6.2011, wherein the State respondents were directed to comply with the order dated 4.8.2010 passed in WA No. 15(K)/2009. In the meanwhile, the appellants also filed WP(C) No. 201(K)/2010, with a prayer to keep out the respondent No. 1 from the cadre of Engineers recruited under the “Rules”, on the ground that, while the “Rules” provided recruitment only by two methods, i.e., direct recruitment and promotion, the respondent No. 1 had been appointed on contract basis and then regularized, which was de hors “the Rules” and, thus, illegal. This court by the interim orders dated 10.12.2010 and 1.7.2011 passed in WP(C) No. 201(K)/2010, directed the State respondents not to consider the respondent No. 1 for promotion to the post of Executive Engineer. 11. The State respondents thereafter constituted a DPC, which held its meeting on 23.1.2012, whereby it took a decision as follows: “3. Er. Hokato Serna in WP(C) No. 202(K)/2011, Er. P. Lanu Aier v. State of Nagaland As directed by judgment and order dated 2.11.2006, 9.8.2010, 30.4.2009 and 4.8.2010, on examination of all the documents, the DPC recommends that the regularization of Er. B. Menanglepden, Er. Tiamongba, Er. Imkongakum and Er. Hokato Sema in that order be regularized w.e.f. 23.1.2012. The regularization of other officers will be considered with retrospective effect as and when documents are made available by the Department.” It is stated at the Bar that WP(C) No. 202(K)/2011 was mistakenly reflected in the DPC meeting minutes dated 23.1.2012 and the same is to be read as WP(C) No. 202(K)/2012. 12. That in pursuance to the DPC meeting minutes held on 23.1.2012, the promotion of the respondent No. 1 to the post of Executive Engineer was regularized w.e.f. 23.1.2012 vide Order dated 2.04.2012. 13. The appellants being aggrieved by the DPC meeting minutes dated 23.1.2012 and the regularization order dated 2.4.2012 of the respondent No. 1, the appellants filed WP(C) No. 169(K)/2012 challenging the same. 13. The appellants being aggrieved by the DPC meeting minutes dated 23.1.2012 and the regularization order dated 2.4.2012 of the respondent No. 1, the appellants filed WP(C) No. 169(K)/2012 challenging the same. This court passed interim order dated 22.8.2012 in WP(C) No. 169(K)/2012, staying the operation of the DPC meeting minutes dated 23.1.2012 and the regularization order dated 2.4.2012 of the respondent No. 1. 14. The respondent No. 1 on the other hand, being aggrieved by the interim order dated 22.8.2012 passed in WP(C) No. 169(K)/2012, filed CMC No. 123(K)/2012 praying for vacating the interim Order dated 22.8.2012. CMC No. 123(K)/2012 was disposed of vide judgment and order dated 18.10.2012 by holding at paras 28 and 31 as follows: “28. As such, it is a case of clear violation of the order of the court and, therefore, this court must not vacate the order passed by this court on 22.8.2012. The vacation or even modification of the order dated 22.8.2012 passed in WP(C) No. 169 (K) 2012 would not only send a wrong signal but it would also jeopardize the case and career of officers who are committed to serve the country to the best of their ability. 31. In view of the above, I am inclined to accept the argument advanced by learned counsel for the opposite party and I hold that it is not a case where the interim order passed earlier needs to be interfered with at least in respect of respondent No. 5 in WP(C) No. 169(K) 2012. Consequently, I decline to interfere with the impugned DPC Minutes dated 23.1.2012 in respect of respondent No. 5 in WP(C) No. 169 (K) 2012.” 15. WP(C) No. 169(K)/2012 was subsequently dismissed vide Judgment & Order dated 25.7.2013 by holding at para 35 as follows: “35. Since the DPC has considered his case for promotion, since the DPC found him suitable to such promotional post and since he was promoted to the next higher rank as per the seniority position aforementioned, I have found that no wrong, whatsoever, was committed by either the DPC in recommending the promotion of respondent No. 5 to the post of Executive Engineer or the State respondents in promoting the respondent No. 5 to the post of Executive Engineers in the terms of the recommendations of the DPC.” 16. The appellant's counsel submits that while the appellants have been appointed as per the “Rules”, the respondent No. 1 was not appointed as per the “Rules”. He also submits that as the promotion of the respondent No. 1 has been made in violation of the interim orders of this court passed in WP(C) No. 201(K)/2010, the promotion/regularization as Executive Engineer of the respondent No. 1 should be set aside. 17. Mr. C.T. Jamir, learned senior counsel for the respondent No. 1 submits that while the application filed by the respondent No. 1 to vacate the interim order dated 22.8.2012 was rejected vide judgment and order dated 18.10.2012 in CMC No. 123(K)/2012, the said judgment and order contained a rider, which was to the effect that any observation made in CMC No. 123(K)/2012 would not be construed as an observation made on merit on the proceedings in WP(C) No. 169(K)/2012. The further submission of the counsel for the respondent No. 1 is that the main writ petition, i.e., WP(C) No. 169(K)/2012 having been dismissed by the court, the interim orders passed earlier stood merged with the dismissal order of WP(C) No. 169(K)/2012. The counsel for the respondent No. 1 also submits that the DPC held on 23.1.2012 was held on the directions made by the Division Bench of this court in WA No. 182(K)/2009, which was re-numbered as WA No. 15(K)/2009. He also submits that the interim orders passed in WP(C) No. 201(K)/2010 stood merged with the final order dated 25.7.2013, by which WP(C) No. 201(K)/2010 was dismissed. Thus, according to him, there was no infirmity with the consideration and promotion/regularization of the respondent No. 1 to the post of Executive Engineer, vide the DPC meeting minutes dated 23.1.2012 and the consequential order dated 2.4.2012. 18. Mr. K. Sema, learned senior Addl. Advocate General submits that the DPC meeting minutes held on 23.1.2012 and the consequential order of promotion dated 2.4.2012 were made in compliance with the Judgment of the Division Bench of this court in WA No. 182(K)/2009 (Re-numbered as WA No. 15(K)/2009) and the order dated 21.6.2011 passed in Civil Original Contempt Petition No. 16(K)/2010. The learned senior Addl. Advocate General also submits that the interim Orders passed on 10.12.2010 and 1.7.2011 in WP(C) No. 201(K)/2010 stood merged with the final order dated 25.7.2013, by which WP(C) No. 201(K)/2010 was dismissed. 19. The learned senior Addl. Advocate General also submits that the interim Orders passed on 10.12.2010 and 1.7.2011 in WP(C) No. 201(K)/2010 stood merged with the final order dated 25.7.2013, by which WP(C) No. 201(K)/2010 was dismissed. 19. We have heard the learned counsels for the parties. 20. The basic question to be decided is whether the State respondents could have considered the respondent No. 1, for promotion to the post of Executive Engineer, during the subsistence of the interim orders dated 10.12.2010 and 1.7.2011, passed in WP(C) No. 201(K)/2010. 21. In the case of Christopher Nelson v. Uttar Pradesh Selection Commission, (2017) 4 SCC 585 , the Apex Court has held at para 2 as follows: “2. We, however, are not persuaded to accept this submission made on behalf of the appellant, as in our view, a competent authority having jurisdiction over the matter having stayed the process of selection, any selection made notwithstanding the continuance of the stay order must not be sustained. Consequently, we decline to interfere with the impugned order. These appeals fail and are accordingly dismissed. 3. Interim order stands vacated. Needless to mention if any party is aggrieved by the selection made, they have a right to approach the appropriate forum.” 22. The DPC meeting minutes dated 23.1.2012 and the regularization Order issued on 2.4.2012 clearly show that the directions issued by the Division Bench in WA No. 15(K)/2009 were not complied with, in the time frame given. The respondent No. 1 could not have been allowed to officiate as Executive Engineer beyond six weeks from the date of the Order dated 4.8.2010 passed in WA No. 15(K)/2009 unless a new/fresh order of officiating promotion was issued. No fresh order of officiating promotion of the respondent No. 1 “after 4.8.2010” has been produced. Accordingly, the question of regularization of the respondent No. 1's officiating service on the basis of the Order dated 5.12.2006 does not arise. Further, in view of the law laid down by the Apex Court in Christopher Nelson (supra), we are of the view that the consideration of the respondent No. 1 for promotion to the post of Executive Engineer and his consequential regularization order, during the subsistence of the interim orders passed in WP(C) No. 201(K)/2010 are unsustainable. Further, in view of the law laid down by the Apex Court in Christopher Nelson (supra), we are of the view that the consideration of the respondent No. 1 for promotion to the post of Executive Engineer and his consequential regularization order, during the subsistence of the interim orders passed in WP(C) No. 201(K)/2010 are unsustainable. Accordingly, the DPC meeting minutes held on 23.1.2012, regularizing the service of the respondent No. 1 as Executive Engineer and the consequential regularization Order dated 2.4.2012 of the respondent No. 1 are hereby set aside. The State respondents will have to constitute a review DPC for selection and promotion to the vacant post of Executive Engineer by including all the persons that are eligible for consideration. 23. The question that now arises is as to whether the respondent No. 1 in WA No. 8(K)/2013 can also be considered for promotion to the post of Executive Engineer in the review DPC to be constituted. This question will have to be decided on the basis of the decision to be made in WA Nos. 9(K)/2013 to 14(K)/2013, as the respondent No. 1 in WA Mo. 8(K)/2013 is also the respondent No. 4 in WA No. 9(K)/2013. 24. WA No. 9(K)/2013 to 14(K)/2013 are appeals against the impugned common judgment and order dated 25.7.2013 passed in WP(C) No. 1(K)/2011, WP(C) No. 2(K)/2011, WP(C) No. 3(K)/2011 WP(C) No. 201(K)/2010, WP(C) No. 202(K)/2010 and WP(C) No. 73(K)/2011. The above writ petitions being dismissed, vide the common judgment and order dated 25.7.2013, the appellants, who are the writ petitioners have filed these appeals. The basic controversy in these appeals is with regard to whether, persons who are not recruited as per the “Rules” in force could be included in the seniority list, along with those appointed as per the recruitment Rules. 25. The appellants herein are all degree holders directly recruited into the department of Works & Housing, Nagaland from the period from 1984 to 2010. The appellants were all directly recruited through the Nagaland Public Service Commission in accordance with the Nagaland Engineering Service Rules, 1984 (Class I and Class II) and the subsequent Service Rules known as the Nagaland Engineering Service Rules, 1997 (Class I and Class II), hereinafter referred to as the “Rules”. The appellants were all directly recruited through the Nagaland Public Service Commission in accordance with the Nagaland Engineering Service Rules, 1984 (Class I and Class II) and the subsequent Service Rules known as the Nagaland Engineering Service Rules, 1997 (Class I and Class II), hereinafter referred to as the “Rules”. As per the Rules, recruitment to the post of Assistant Engineer/SDO can be done only by way of direct recruitment or promotion from Junior Engineer. The private respondents have, however, been first appointed on contract basis and thereafter, their services regularized on the basis of a Cabinet decision. Thus, it is clear that the private respondents have been recruited into the service de hors the Rules. 26. The appellant's counsel submits that the private respondents, not having been recruited/encadred into the service as per the Rules, the private respondents could not have been included in the seniority list made by the State respondents. The counsel for the appellants also submits that in view of the above, the private respondents have to be kept outside the cadre and a separate seniority list will have to be made. He submits that the regularization not being a source of recruitment as per the Rules, the regularization of the private respondents did not enclothe them with any legal right within the provisions of the Rules. He submits that the Apex Court in the case of Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 and in the case of State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 , has held that there could be regularization of persons irregularly appointed. However, the appointments of the private respondents being illegal as it was de hors the Rules, the said illegal appointments could not have been regularized. He submits that as per the Judgment of the Apex Court in the case of State of U.P v. Rafiquddin, 1987 Supp SCC 401, the recruitment of the private respondents into the service by way of regularization was illegal, as they were appointed to the service in breach of the Rules. Accordingly, they belong to a different stream and have to form a separate class. They should not be included in the same seniority list along with the appellants. Accordingly, they belong to a different stream and have to form a separate class. They should not be included in the same seniority list along with the appellants. The appellant's counsel submits that there is no need for the appellants to challenge the contractual appointment orders and regularization orders of the private respondents as their recruitment into the Nagaland Engineering Service is in any event illegal. In support of his submission that the appointments of the private respondents being dehors the Rules and that they should form a separate class, he has also relied upon the judgments of the Apex Court in the case of Bhupendra Nath Hazarika v. State of Assam, (2013) 2 SCC 516 , where it has been held that appointments de hors the Rules is illegal and unsustainable. In support of his contention that the private respondents cannot be members of the service as they were not appointed as per the Rules, he has cited the case of State of Rajasthan v. Jagdish, (2009) 12 SCC 49 , wherein the Apex Court has held that in order to become a member of a service, a candidate must satisfy 4 conditions, namely: 1. the appointment must be in a substantive capacity. 2. to a post in the service, i.e., in a substantive vacancy. 3. made according to rules. 4. within the quoted prescribed for the source. The counsel for the appellants further submits that even if tire regularization of the private respondents is up held by this court, the seniority position of the private respondents should be below the appellants in the seniority list. The appellant's counsel submits that writ petitions have been filed against the private respondents only in the years 2010 and 2011, as the appellants came to know of the existence of a seniority list sometime in the month of September 2010, wherein the private respondents were included in the seniority list along with the appellants. 27. The appellant's counsel also submits that a policy decision to regularize the service of the private respondents cannot override the Rules, which are made under article 309 of the Constitution. He also submits that except for the private respondent in WA No. 11(K)/2013, none of the private respondents in all the other writ petitions had been working on contract basis for 10 years prior to their regularization. He also submits that except for the private respondent in WA No. 11(K)/2013, none of the private respondents in all the other writ petitions had been working on contract basis for 10 years prior to their regularization. Accordingly, those other private respondents, except for the private respondent in WA No. 11(K)/2013, could not have been regularized as per the eligibility criteria and directions passed by the Supreme Court in Umadevi (3) (supra). 28. The counsels for the respondents submit that the private respondents were appointed on contract basis between the years 1993 to 2003. Regularization of the services of the private respondents, i.e., Assistant Engineer/SDO were done between 1996 to 2005 except for one private respondent in WA No. 14(K)/2013, who was regularized in the year 2009. The counsels for the respondents also submit that the appellants did not challenge the appointment of the private respondents on contract basis nor the regularization orders in the writ petitions and as such, the regularization of the services of the private respondents as SDO/Assistant Engineer cannot be disturbed at this, stage. They submit that a settled position cannot be unsettled. They also submit that as the regularization orders of the private respondents have not been challenged by the appellants, the consequential order passed, i.e., the seniority list cannot be challenged by the appellants. They also submit that as per the decision of the Apex Court in Umadevi (3) (supra), regularizations already made prior to the passing of the judgment need not be reopened. They also submit that there was no requirement of 10 years of service for regularization of the private respondents, as the requirement of 10 years of service for regularization was laid down for the first time by Umadevi (3) (supra) which was decided on 10.4.2006. They also submit that the private respondents' services having been regularized, they became a member of the service, to be governed by the Rules. They also submit that all official decisions including the regularization orders have to be presumed to be valid, until the same is set aside or declared invalid by a court of competent jurisdiction. They also submit that the private respondents' services having been regularized, they became a member of the service, to be governed by the Rules. They also submit that all official decisions including the regularization orders have to be presumed to be valid, until the same is set aside or declared invalid by a court of competent jurisdiction. In this regard, they have relied upon the Judgment of the Apex Court in the case of State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead), (1996) 1 SCC 435 and in the case of Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 SCC 363 . 29. We have heard the learned counsels for the parties. 30. The learned Single Judge in the impugned common judgment and order dated 25.7.2013 passed in WP(C) No. 1(K)/2011 and others had framed 6 issues for deciding the present controversy in question. The 6 issues are as follows: 1. Whether the proceedings in hand are maintainable. 2. Whether the appointment of the private respondents as well as subsequent orders regularizing their service are illegal as claimed by the petitioners requiring this court to set aside the impugned seniority list. 3. Whether the consequential order can be questioned when the basic order is not challenged. 4. Whether the order/notification/publication said to be illegal/void are to be followed until and unless they are declared so by the competent authority. 5. Whether the relief which is not sought for, can be granted by the court exercising power of judicial review. 6. Whether there was in ordinate delay in preferring the proceedings at hand. 7. Whether the settled position can be allowed to be unsettled. 31. The learned Single Judge held that the writ petitions filed by the appellants were maintainable. However, in respect to all other issues, the learned Single Judge ruled against the petitioner-appellants. 32. Before going further into the merits of the appeal, we would like to point out an inadvertent error that has occurred in para 89 of the impugned Judgment, wherein the impugned judgment and order reflects the case of Nachar Singh v. State of U.P, (1996) 1 SCC 434 . The same should be read as M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) (supra). The same should be read as M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) (supra). Also an error has occurred in para 105 of the impugned judgment and order, wherein the case of Shitka Prasad Shukla v. State of U.P., 1986 Supp SCC 185 has been reflected. It should be read as 1986 Supp SCC 185 and not 1986 Supp SCC 185. 33. In the case of Umadevi (3) (supra), the Apex Court in para 53 has held as follows: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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 the 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 the 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. 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 bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 34. The process must be set in motion within six months from this date. 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 bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 34. The Apex Court in the case of M.L. Kesari (supra) has clarified para 53 of Umadevi (3) (supra) by stating that though the Apex Court in Umadevi (3) (supra) had held that a temporary, contractual, casual or a daily wage employee did not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules in adherence to articles 14 and 16 of the Constitution, an exception to the general principles had been made, if the following conditions were 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.” 35. In the case of Amarendra Kumar Mohapatra v. State of Orissa, (2014) 4 SCC 583 , the Apex Court has held at paras 43 and 45 as follows: “43. As to what would constitute an irregular appointment is no longer res integra. The decision of this court in State of Karnataka v. M.L. Kesari, has examined that question and explained the principle regarding regularization as enunciated in Umadevi (3) case. As to what would constitute an irregular appointment is no longer res integra. The decision of this court in State of Karnataka v. M.L. Kesari, has examined that question and explained the principle regarding regularization as enunciated in Umadevi (3) case. The decision in that case summed up the following three essentials for regularization : (1) the employees have 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 regularization.………… 45. The upshot of the above discussion is that not only because in Umadevi (3) case this court did not disturb the appointments already made or regularization granted, but also because the decision itself permitted regularization in case of irregular appointments, the legislative enactment granting such regularization does not call for interference at this late stage when those appointed or regularized have already started retiring having served their respective departments, in some cases for as long as 22 years.” 36. In the present case, except for the private respondents in WA No. 11(K)/2013 and WA No. 14(K)/2013, all the other private respondents in the other writ appeals were regularized prior to the Judgment delivered by the Apex Court in Umadevi (3) (supra). Accordingly, in view of the clarification made by the Apex Court in Umadevi (3) (supra), that regularization already made, by bypassing the constitutional requirement, need not be reopened, based on the judgment of Umadevi (3) (supra), though it is an admitted fact that the appointment of the private respondents were de hors the Rules, the regularization of 4 (four) of the private respondents in WA No. 9 (K)/2013, WA No. 10 (K)/2013, WA No. 12 (K)/2013, WA No. 13 (K)/2013 had already been made prior to the Judgment passed by the Apex Court in Umadevi (3) (supra) and accordingly they are protected by the clarification made in para 53, especially when there is no challenge to the regularization orders. 37. 37. In respect of the private respondent in WA No. 11 (K)/2013, he had been appointed on contract basis on 31.2.1994 and regularized on 29.11.2006, i.e., after 12 years of contract service. In respect of the private respondent in WA No. 14(K)/2013, he had been appointed on contract basis on 25.6.2003 and regularized on 15.10.2009. It may be stated here that the Government of Nagaland had made a regulation/scheme for regularization of contract appointments, vide memorandum dated 18.2.2007 and memorandum dated 23.8.2007, wherein contract employees having 5 to 10 years or more of contract service could be regularized. There is no averment made that the appointment process adopted for the contract appointment of the private respondents and the subsequent regularization was tainted on account of lack of a fair process of selection. The appointment of the private respondent in WA No. 11(K)/2013 having being made after being in contract service for 12 years, his regularization would come within the one time measure for regularization as allowed by the Apex Court in para 53 of Umadevi (3) (supra). Further, the regularization schemes made by the Government in the years 2004 and 2007 was also applicable at that time. They also have not been put to challenge by the appellants. 38. The regularization of the private respondent in WA No. 14(K)/2013 on 15.10.2009, after 6 years of contract service cannot come within para 53 of Umadevi (3) (supra), as the said private respondent did not have 10 years of contract service. However, the regularization of the private respondent in WA No. 14(K)/2013 would come within the regularization schemes made by the Government of Nagaland. In any event, the appellants have not made a challenge to the regularization orders of the private respondents even till today. 39. In the case of M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) (supra), the Apex Court has reflected the following: “8. In Halsbury's Laws of England, 4th Edn., (Re-issue) Vol. 1(1) in para 26, p. 31, it is stated, thus: “if an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes: and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved.” In the Judicial Review of Administrative Action, De smith, Woolf and Jowell, 1995 edn., at pp. 259-60 the law is stated, thus: “The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarized as follows: (1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.” Similarly, Wade and Forsyth in Administrative Law, Seventh Edn., 1994, have stated the law, thus, at pp. 341-342: “…every unlawful administrative act, however, invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe said: “An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects.” The above statement of the law supports our view that the order of the Board dated 28.6.1977, declining to implead respondents 3 and 4 (which stood confirmed in revision) concludes the matter against respondents 3 and 4”. 40. In the case of Krishnadevi Malchand Kamathia (supra), the Apex Court has held at paras 16, 17 and 19 as follows: “16. 40. In the case of Krishnadevi Malchand Kamathia (supra), the Apex Court has held at paras 16, 17 and 19 as follows: “16. It is a settled legal proposition that even if an order is void, it requires to be so dedared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P.) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. 17. In State of Punjab v. Gurdev Singh this court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and, therefore, not binding upon him. While deciding the said case, this court placed reliance upon the judgment in Smith v. East Elloe RDC, wherein Lord Radcliffe observed: “… An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”……… 19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person”. 41. The order may be void for one purpose or for one person, it may not be so for another purpose or another person”. 41. The law laid down by the Apex Court in the cases cited above clearly goes to show that unless the order is set aside or held to be invalid by a court of competent jurisdiction, the official decision has to be presumed to be valid. In the present case, the appellants have not challenged or prayed for setting aside the regularization orders of the private respondents. As such the regularization orders of the private respondents are valid till date. 42. In the case of S. Sumnyan v. Limi Niri, (2010) 6 SCC 791 , the Apex Court had taken note of the fact that initial appointment orders of the appellants therein as Assistant Engineers on temporary and ad hoc basis and the regularization of the services of the appellants as Assistant Engineers had not been challenged. The Apex Court, thus, held that the same not being challenged, the orders had become final and binding on all concerned. The Apex Court in the above case also held at para 33 that as the order of regularization has become final and binding on all concerned, the same could not have been ignored and implicitly set aside by the High Court, on the ground that the initial appointment of the appellants was de hors the rules, which was a totally non-existent ground. In the present case, the appellants have also not made any challenge to the appointments of the private respondents on contract basis and also to the regularization orders. Accordingly, the said orders having become final and binding on all concerned. 43. In respect to the appellant's counsel submission that a policy decision taken by the Cabinet to regularize the private respondents could not have been given effect to as it cannot over ride the Rules made under article 309 of the Constitution, the absence of a challenge to the regularization orders takes the wind out of the sails of the appellant's counsel submission. Even if it is assumed that the regularization order is an illegal order, the same remains a valid order till it is cancelled or modified by the competent authority or set aside by a court of competent jurisdiction. 44. Even if it is assumed that the regularization order is an illegal order, the same remains a valid order till it is cancelled or modified by the competent authority or set aside by a court of competent jurisdiction. 44. We are well aware of the law laid down by the Apex Court with regard to the facts of those cases cited by the appellants counsel. However, it must be remembered that the ratio of any decision must be understood in the background of the facts of that case and that a case is only an authority for what it actually decides and not from what logically follows from it. 45. In the present case, the appointment of the private respondents on contract basis was de hors the rules. However, they were regularized in pursuance to a Cabinet decision. The contractual appointments of the private respondents and the regularization not having been challenged, the cases cited by the appellant's counsel are not applicable to the facts of this case. The private respondents have to be accordingly considered to be members of the Nagaland Engineering Service and will be governed by the Rules. 46. In view of the reasons stated above, we find that the appellant has not made out a case for interfering with the Judgment of the learned Single Judge. We also find that the dates of appointments of the appellants herein were between 1984 and 2010. We fail to understand how some of the appellants who were appointed to the service, prior to the appointments of the private respondents would have been affected by the regularization of the private respondents. As such, in respect of those appellants who were appointed to the service, prior to the appointments of the private respondents on contract basis, they cannot claim that any of the rights have been violated and accordingly, they have no locus standi to file the writ petition. However, as there are other appellants who have been purportedly effected by the regularization of the private respondents in the seniority list issued in 2010, the present matter is being decided. 47. Accordingly, in view of the reasons stated above, WA No. 8(K)/2013 is allowed, while WA No. 9(K)/2013 to WA No. 14(K)/2013 are dismissed. 48. However, as there are other appellants who have been purportedly effected by the regularization of the private respondents in the seniority list issued in 2010, the present matter is being decided. 47. Accordingly, in view of the reasons stated above, WA No. 8(K)/2013 is allowed, while WA No. 9(K)/2013 to WA No. 14(K)/2013 are dismissed. 48. The dismissal of WA No. 9(K)/2013 to WA No. 14(K)/2013, thus, allows for the private respondent No. 1 in WA No. 8(K)/2013 to be considered by the Review DPC for promotion to the post of Executive Engineer, along with all other eligible candidates.