Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 90 (UTT)

Hema Mehra v. State of Uttarakhand

2019-02-15

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. The validity of Rule 3 of the Weightage Point and Relaxation in Age Limit to the Personnel Regularized under Regulation (Amendment) Rules, 2016, in Direct Recruitment Rules, 2018 (for short ‘the 2018 Rules’) is questioned in this writ petition as being ultra vires and illegal. 2. The petitioners, seven in number, were appointed on contract basis on different dates between September and November, 2010. The Regularisation of Daily Wager, Work Charge, Contract, Fixed Salary, Part-time and Ad-hoc appointed employees Regularisation Rules, 2013 (for short ‘the 2013 Rules’) stipulated that all those candidates, who had put in five years’ service on or before 30.12.2008, were entitled to be considered for regularization of their services. The 2013 Rules were amended in the year 2016, and the cut-off date for regularization was extended from 30.12.2008 to 31.12.2011. Consequent to the amendment of the 2013 Rules, by the 2016 Amendment, the petitioners, who were all appointed between September & November, 2010, were entitled to have their services regularized and, accordingly, their services were regularized by proceedings dated 02.01.2017. 3. The validity of the 2016 amendment, to the 2013 Rules, was subjected to challenge before this Court in Writ Petition (S/S) Nos. 3. The validity of the 2016 amendment, to the 2013 Rules, was subjected to challenge before this Court in Writ Petition (S/S) Nos. 154 and 155 of 2017 and this Court, by order dated 17.04.2018 applying the law laid down by the Supreme Court, in Secretary, State of Karnataka vs. Umadevi: AIR 2006 SC 1806 , observed that regularization could be done only as a one-time measure; it was being resorted to, in the State of Uttarakhand, repeatedly, and this was in clear violation of the law declared by the Supreme Court in Umadevi; the first regularization was made under the 2011 Rules, where eligibility was fixed as 10 years of service in the post; later in the year 2013, new Rules came into force, which reduced this eligibility to 5 years, and finally the 2016 Amendment, whereby the period had been further reduced; this could not go on forever; it is settled law that regularisation cannot be a mode of recruitment; but this was being made so, by way of the amendment carried out in the year 2016; if this amendment was to be held good, it would then not only amount to an approval by the Court of the present amendment, but to any subsequent amendment as well; this ingenious method, of enlarging the scope of eligibility, had great potential for abuse in future; if this method continued then the irregular appointments would become regular, and regular appointments would become irregular; and, consequently, the impugned amendment (2016 Amendment to the 2013 Rules) was not only violative of Article 14 of the Constitution, but was also in clear violation of the directions given by the Supreme Court in Umadevi. The 2016 amendment, notified on 14.12.2016, was quashed and set aside. 4. In compliance with the above referred order of the learned Single Judge, the 2018 Rules were made whereby all the posts regularized, pursuant to the 2016 amendment to the 2013 Rules, were declared as deemed to be vacant, and weightage was given, in filling-up all these vacant posts, to employees who were already working in different posts under the Government. It is the validity of Rule 3 of the 2018 Rules which is put in issue in this writ petition by Sri Ganesh Kandpal, learned counsel for the petitioners. 5. It is the validity of Rule 3 of the 2018 Rules which is put in issue in this writ petition by Sri Ganesh Kandpal, learned counsel for the petitioners. 5. Sri Ganesh Kandpal, learned counsel for the petitioners, would submit that the 2018 Rules is based on the erroneous premise that the orders of regularization, made pursuant to the 2016 amendment to the 2013 Rules, have been set aside by the learned Single Judge; the order of the learned Single Judge would show that the various orders of regularization have not been interfered with; the said judgment of the learned Single Judge cannot, in any event, be applied to the petitioners who were not parties thereto; neither was the regularization of the services of the petitioners, made under the 2016 amendment to the 2013 Rules, subjected to challenge in the said writ petitions, nor had the learned Single Judge set aside the said orders of regularisation; the petitioners’ appointment on contractual basis was pursuant to a regular selection process; the order passed by the learned Single Judge, in Writ Petition (S/S) No. 154 and 155 of 2017, is therefore not applicable; even, in terms of the judgment of the Supreme Court in Umadevi, regularizations already made, and those who were appointed in accordance with law, were not to be disturbed; Rule 3 of the 2018 Rules, whereby the posts which the petitioners held were deemed to have become vacant, is illegal and is liable to be set aside; and the order of the learned Single Judge would apply only from the date on which the judgment was delivered, and has no application to the orders of regularization passed prior thereto. 6. It is not in dispute that regularization of the services of the petitioners on 02.01.2017 was in terms of the 2016 amendment to the 2013 Rules. As noted hereinabove, the 2013 Rules provided for the regularization of services of employees appointed, on contractual or daily wage basis, on or before 30.12.2008. As the petitioners were all appointed between September & November 2010, they would not have been entitled to seek regularization in terms of the 2013 Rules. It is only because the 2016 amendment to the 2013 Rules shifted the cut-off date, from 30.12.2008 to 31.12.2011, were the petitioners entitled to be considered for regularisation and, consequently, their services were regularized. As the petitioners were all appointed between September & November 2010, they would not have been entitled to seek regularization in terms of the 2013 Rules. It is only because the 2016 amendment to the 2013 Rules shifted the cut-off date, from 30.12.2008 to 31.12.2011, were the petitioners entitled to be considered for regularisation and, consequently, their services were regularized. The very Rule, in terms of which the petitioners’ services were regularized, was struck down by this Court as being arbitrary and ultra vires Article 14 of the Constitution of India, and as being contrary to the law declared by the Supreme Court in Umadevi. Once it has been set aside as ultra vires Article 14 of the Constitution of India, by the order passed by the learned Single Judge, the 2016 Rules must be held never to have been in existence; and, consequently, all appointments made in terms of the 2016 amendment to the 2013 Rules, would automatically stand set aside. 7. The contention that, in the absence of any challenge thereto, regularization of the services of the petitioners must be held to be valid does not merit acceptance. While the learned Single Judge may not have set aside each and every order of regularization, made in terms of the 2016 amendment to the 2013 Rules, he has held the very Rule, in terms of which the services of persons, who were appointed on contractual or on daily wages, after 30.12.2008 but before 31.12.2011, were regularized, as arbitrary and violative of Article 14 of the Constitution of India. Once a Rule is declared ultra vires Part-III of the Constitution (including, in the present case, under Article 14 of the Constitution), the Rule, which has been struck down, stands effaced, and all appointments made in terms thereof stand, automatically, set aside. Accepting the petitioners’ contention would result in an incongruous situation as even though the Rule, in terms of which the services of a person are regularized, has been declared ultra vires Article 14 of the Constitution, employees regularized in terms of the said Rule would still be entitled to claim that regularization of their services, made under a non-existent rule, is nonetheless valid. Such a far-fetched submission does not merit acceptance. 8. Such a far-fetched submission does not merit acceptance. 8. In his order, in Writ Petition (S/S) No. 154 of 155 of 2017 dated 17.04.2018, the learned Single Judge relied on the clarification issued by the Supreme Court, in Umadevi, that regularisation, if any already made, but not sub-judice, need not be reopened based on the said judgment, but there should be no further bypassing of the constitutional requirement, and regularizing and making permanent those not duly appointed as per the constitutional scheme. 9. The judgment of the Supreme Court, in Umadevi, was delivered on 10.04.2006, and reference therein to regularization already made is to those whose services were regularized prior to 10.04.2006, and not thereafter. The petitioners were, admittedly, regularized only on 02.01.2017 more than ten years after the date of the judgment of the Supreme Court in Umadevi. Reliance placed by Sri Ganesh Kandpal, learned counsel for the petitioners, on the aforesaid observations, of the Supreme Court in Umadevi, is therefore of no avail. 10. The contention that the initial appointment of the petitioners was in accordance with the constitutional scheme, and they were appointed, on a contractual basis, pursuant to a regular process of selection, does not necessitate examination in the present writ proceedings where the challenge is to the validity of the 2018 Rules whereby posts, which were regularized pursuant to the 2016 amendment to the 2013 Rules, were deemed to be vacant. If, as is now contended before us by Sri Ganesh Kandpal, learned counsel for the petitioners, the petitioners’ initial appointment, on contractual basis in the year 2010, is a regular appointment and accords with the constitutional scheme, their right to hold the said posts would be based on their claim that their initial appointment is a regular appointment, and such a claim would be independent of their claim that Rule 3 of the 2018 Rules is ultra vires Part III of the Constitution, and regularization of their services, under the 2016 amendment to the 2013 Rules, still continues to remain in force. Such a contention can only be urged by the petitioners, in independent legal proceedings wherein a declaration is sought that their initial appointment was itself regular, and not that the order of regularization of their services, passed on 02.01.2017, is valid. 11. The contention that the judgment of the learned Single Judge, in Writ Petition (S/S) Nos. Such a contention can only be urged by the petitioners, in independent legal proceedings wherein a declaration is sought that their initial appointment was itself regular, and not that the order of regularization of their services, passed on 02.01.2017, is valid. 11. The contention that the judgment of the learned Single Judge, in Writ Petition (S/S) Nos. 154 and 155 of 2017 dated 17.04.2018 has prospective application, and would not apply to orders of regularization passed earlier, is not tenable. A declaration of law by this Court would operate from the date on which the 2016 amendment to the 2013 Rules were made on 14.12.2016, as a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a ‘new rule’ but to maintain and expound the ‘old one’. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make a new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court has operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. [Asstt. Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd., 2008 (230) E.L.T. 385 (S.C.)]. The law declared by the learned Single Judge, in Writ Petition Nos. 154 and 155 of 2017 dated 17.04.2018, would apply retrospectively from the date on which the 2016 amendment, to the 2013 Rules, came into force on 14.12.2016. Even otherwise, the petitioners’ services were regularized under the 2016 amendment to the 2013 Rules, which Rules, on its being declared ultra vires Article 14 of the Constitution of India, must be held to be non-existent. 12. The petitioners’ contention that they were not parties to Writ Petition (S/S) Nos. 154 and 155 of 2017, and the said judgment has no application to their case, is also of no avail. As the judgment, in Writ Petition (S/S) Nos. 12. The petitioners’ contention that they were not parties to Writ Petition (S/S) Nos. 154 and 155 of 2017, and the said judgment has no application to their case, is also of no avail. As the judgment, in Writ Petition (S/S) Nos. 154 and 155 of 2017 dated 17.04.2018, has attained finality, the law declared therein, striking down the 2016 amendment to the 2013 Rules, would apply to all those whose services were regularized in terms of the 2016 amendment to the 2013 Rules, irrespective of whether or not they were parties to the said Writ Petitions. 13. The contention that the order of the learned Single Judge has not disturbed the orders, whereby the petitioners’ services were regularized, does not merit acceptance. The very Rule, under which the petitioners’ services were regularized, has been declared ultra vires Article 14 of the Constitution of India and since the very Rule, in terms of which the petitioners’ services were regularized, has been struck down, the petitioners are no longer entitled to claim the benefit of regularization of their services made there under. 14. The petitioners’ claim for protection under Article 311 of the Constitution of India is wholly unfounded. It is only if regularization of the petitioners’ services on 02.01.2017, in terms of the 2016 amendment to the 2013 Rules, is held valid, would they be entitled to claim to be a member of a civil service of a State; and as the very Rule, in terms of which their services have been regularized, has been quashed, the petitioners cannot claim to be holding civil posts under the State or seek the protection of Article 311 of the Constitution of India. 15. We see no reason, therefore, to declare Rule 3 of the 2018 Rules ultra vires Part III of the Constitution or as illegal. The writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.