STATE OF MAHARASHTRA & ORS. Vs. ANITA & ANR ETC.
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Civil), 6132-33 of 2016, Judgment Date: Jul 12, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6132-33 OF 2016
(Arising out of SLP(C) Nos. 34788-34789 of 2012)
STATE OF MAHARASHTRA & ORS. ..Appellants
Versus
ANITA & ANR ETC.. ...Respondents
With
CIVIL APPEAL NOS. 6134, 6135-36, 6137,6138,6139,6140,6141-
42,6143,6144,6145,6146,6147-48,6149, 6150,6151,6152-53,6154,6155,6156,6157
OF 2016
(Arising out of SLP(C) Nos. 34792/12, 35146-35147/12, 36965/12, 36967/12,
36968/12, 38636/12, 39133-39134/12, 4482/13, 4484/13, 4588/13, 4592/13,
4594-4595/13, 8580/13, 11864/13, 17329/13, 17331-17332/13, 36070/13,
9282/14, 13647/14 and 14974/16)
J U D G M E N T
R. BANUMATHI, J.
Delay condoned. Leave granted.
2. This batch of appeals has been filed against the order dated
28.03.2012 and other impugned orders passed by the High Court of Bombay
Bench at Aurangabad whereby 471 posts of Legal Advisors, Law Officers and
Law Instructors created by Government Resolutions dated 21.08.2006 and
15.09.2006 for appointment on contractual basis under the Director General
of Police and Commissioner of Police, Greater Mumbai, were held to be
permanent in nature. For convenience, appeals arising out of SLP(C)
No.34788-34789 of 2012 are taken as the lead case.
3. State of Maharashtra vide Government Resolution dated
21.08.2006 approved creation of 471 posts in various cadres including Legal
Advisors, Law Officers and Law Instructors under the establishment of
Director General of Police and Commissioner of Police, Greater Mumbai. As
per clause (3) of the said Government Resolution, the posts shall be filled
up on contractual basis as per the terms and conditions prescribed by the
Government. By a subsequent Resolution dated 15.09.2006, the Government
maintained that 471 posts created vide resolution dated 21.08.2006 shall be
filled up on contractual basis by payment of consolidated pay. As per the
conditions of service laid down in the Government Resolution dated
15.09.2006, the appointment was initially for eleven months and with a
provision of extension up to maximum of three terms each term being of
eleven months. After expiry of third term, the candidates are required to
face fresh selection process once again. After the expiry of the term of
respondents, their appointments automatically came to an end. In pursuance
of the expiry of terms of respondents, the State issued fresh
advertisements for recruitment of Legal Advisors, Law Officers and Law
Instructors on 05.12.2009, 13.01.2010 etc.
4. On expiry of the contractual period and being aggrieved by
publication of fresh advertisement, the respondents approached the
Maharashtra Administrative Tribunal challenging the conditions in the
Government Resolutions dated 21.08.2006 and 15.09.2006, which laid down
that the appointment of the law officers/law instructors shall be
contractual, is arbitrary and that the respondents should have been
appointed on regular pay scale and not on consolidated pay. The tribunal
partly allowed the claim of the respondents and the tribunal struck down
those provisions by holding that clause (3) of the Government Resolution
dated 21.08.2006 and the clauses 'A', 'B', and 'C' in the Government
Resolution dated 15.9.2006 suffered from arbitrariness and
unreasonableness. However, no direction was issued by the tribunal
directing the State Government to regularise the respondents.
5. Aggrieved thereof, respondents filed writ petitions before the
High Court seeking for a direction to the State Government to regularise
their services. State Government also filed writ petition challenging the
order of the tribunal striking down the clauses in the said Government
Resolutions as arbitrary and for setting aside the order of the tribunal.
6. The High Court vide impugned judgment dismissed all the writ
petitions filed by the State Government as well as by the respondents. The
High Court took the view that 471 posts created by the State Government in
various cadres are permanent posts and thus the appointments thereon must
also be permanent. However, considering the fact that the appointment of
the respondents were not made in regular manner under the constitutional
scheme, the High Court held that the respondents/original applicants cannot
claim permanency and/or regularisation.
7. Being aggrieved, the State as well as the applicants have
preferred these appeals. Vide order dated 02.11.2012, this Court has
granted stay of operation of the impugned judgment dated 28.03.2012 passed
by the High Court as well as the order dated 06.05.2010 passed by the
Maharashtra Administrative Tribunal, Aurangabad Bench and this Court
directed that the respondents be permitted to continue in service until
further orders. Similar orders came to be passed in other appeals also.
However, this Court’s order dated 02.11.2012 was modified by a subsequent
order of this Court dated 19.08.2014 to the effect that “the Law
Officers/Law Advisers/Law Instructors, whose contractual appointments have
come to an end, shall not be continued beyond their contractual period. If
their appointments have been renewed, the same shall be continued till the
period comes to an end”.
8. On instructions, counsel for the State of Maharashtra submitted
that in view of the order dated 19.08.2014, presently none of the
respondents are continuing in service. Since none of the respondents are
continuing in service, the appeals have become infructuous. However, the
appeals ought to be decided to answer the contentious issues raised and to
settle the questions of law involved in the matter.
9. Learned counsel for the appellants contented that 471 posts
created by the Government Resolution dated 21.08.2006 were not permanent
posts and the appointments were made purely on contractual basis. It was
submitted that filling up of 471 posts on contractual basis and not on
permanent basis is a matter of government policy and that it was beyond the
purview of the tribunal to set aside the same. It was submitted that the
respondents had entered into a contract with the State Government thereby
accepting the terms of service laid down in Government Resolution dated
15.09.2006 and having accepted the appointment on contractual basis, the
respondents are estopped from challenging the validity of the said
Government Resolutions dated 21.08.2006 and 15.09.2006.
10. Per contra, the counsel for the respondents contended that
clause (3) in the Government Resolution dated 21.08.2006 and clause 'A',
'B' and 'C' in the Government Resolution dated 15.09.2006 are arbitrary and
unreasonable and rightly struck down by the tribunal as violative of
Articles 14 and 16 of the Constitution of India. It was further contended
that even though the respondents had entered into a contract with the
government accepting clause (3) in the Government Resolution dated
21.08.2006 and the clauses 'A', 'B' and 'C' in the Government Resolution
dated 15.09.2006, the same will not operate as estoppel.
11. We have carefully considered the rival submissions made by
learned counsel for the parties and perused the impugned judgment and the
material on record.
12. In the Government Resolution dated 21.08.2006 while creating
471 posts in various cadres including Legal Advisors, Law Officers and Law
Instructors in clause (3) of the said Resolution, it was made clear that
the posts created ought to be filled up on contractual basis. Clause (3)
reads as under:-
“The said posts instead of being filled in the regular manner should be
kept vacant and should be filled on the contract basis as per the terms and
conditions prescribed by the government or having prepared the Recruitment
Rules should be filled as per the provisions therein.”
13. Subsequently, the said Resolution was modified by Government
Resolution dated 15.09.2006. In the said Resolution, the column specifying
“Pay Scale” was substituted with column “Combined Permissible Monthly Pay +
Telephone & Travel Expenses”. However, there was no change in the decision
of the government on filling up the posts on contractual basis. Government
Resolution dated 15.09.2006 stipulates the terms and conditions of the
contractual appointments. Clauses 'A', 'B', 'C' and 'D' read as under:-
“A) The appointment of the said posts would be completely on contractual
basis. These officers/employees would not be counted as government
employees.
B) The said appointments should be made on contract basis firstly for 11
months. After 11 months the term of the agreement could be increased from
time to time if necessary. Whereas, the appointing authority would take the
precaution while extending the terms in this manner that, at one time this
term should not be more than 11 months. The appointment in this way could
be made maximum three times. Thereafter, if the competent authority is of
the opinion that the reappointment of such candidate is necessary then such
candidate would have to again face the selection process.
C) The concerned appointing authority at the time of the appointment
would execute an agreement with the concerned candidate in the prescribed
format. The prescribed format of the agreement is given in Appendix 'B'. It
would be the responsibility of the concerned office to preserve all the
documents of the agreement.
D) Except for the combined pay and permissible telephone and travel
expenses (more than the above mentioned limit) any other allowances would
not be admissible for the officers/employees being appointed on contract
basis.”
14. The intention of the State Government to fill up the posts of
Legal Advisors, Law Officers and Law Instructors on contractual basis is
manifest from the above clauses in Government Resolutions dated 21.08.2006
and 15.09.2006. While creating 471 posts vide Resolution dated 21.08.2006,
the Government made it clear that the posts should be filled up on
contractual basis as per terms and conditions prescribed by the Government.
As per clause 'B' of the Government Resolution dated 15.09.2006, the
initial contractual period of appointment is eleven months and there is a
provision for extension of contract for further eleven months. Clause 'B'
makes it clear that the appointment could be made maximum three times and
extension of contract beyond the third term is not allowed. If the
competent authority is of the opinion that the reappointment of such
candidates is necessary then such candidates would again have to face the
selection process.
15. It is relevant to note that the respondents at the time of
appointment have accepted an agreement in accordance with Appendix 'B'
attached to Government Resolution dated 15.09.2006. The terms of the
agreement specifically lay down that the appointment is purely contractual
and that the respondents will not be entitled to claim any rights, interest
and benefits whatsoever of the permanent service in the government. We may
usefully refer to the relevant clauses in the format of the agreement which
read as under:-
“1. The First Party hereby agrees to appoint Shri/Smt._________ (Party
No. II) as a ________ on contract basis for a period of 11 months
commencing from __________ to __________ (mention date) on consolidated
remuneration of Rs.___________ (Rupees _____________ only) per month, and
said remuneration will be payable at the end of each calendar month
according to British Calendar. It is agreed that IInd party shall not be
entitled for separate T.A. and D.A. during the contract period….
2. ….......
3. …......
4. …........
5. Assignment of 11 months contract is renewable for a further two terms
of 11 months (i.e. total 3 terms), subject to the satisfaction of Competent
Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights, interest,
benefits whatsoever of the permanent service in the Government.”
16. The above terms of the agreement further reiterate the stand of
the State that the appointments were purely contractual and that the
respondents shall not be entitled to claim any right or interest of
permanent service in the government. The appointments of respondents were
made initially for eleven months but were renewed twice and after serving
the maximum contractual period, the services of the respondents came to an
end and the Government initiated a fresh process of selection. Conditions
of respondents’ engagement is governed by the terms of agreement. After
having accepted contractual appointment, the respondents are estopped from
challenging the terms of their appointment. Furthermore, respondents are
not precluded from applying for the said posts afresh subject to the
satisfaction of other eligibility criteria.
17. The High Court did not keep in view the various clauses in the
Government Resolutions dated 21.08.2006 and 15.09.2006 and also the terms
of the agreement entered into by the respondents with the government.
Creation of posts was only for administrative purposes for sanction of the
amount towards expenditure incurred but merely because the posts were
created, they cannot be held to be permanent in nature. When the government
has taken a policy decision to fill up 471 posts of Legal Advisors, Law
Officers and Law Instructors on contractual basis, the tribunal and the
High Court ought not to have interfered with the policy decision to hold
that the appointments are permanent in nature.
18. In the result, the impugned judgment of the High Court is set
aside and these appeals are allowed.
19. Consequently, all other appeals are also allowed.
20. No costs.
….……...................CJI.
(T.S. THAKUR)
……….......................J.
(R. BANUMATHI)
………......................J.
(UDAY UMESH LALIT)
New Delhi;
July 12, 2016.
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