2014 Supreme(SC) 123

SUPREME COURT OF INDIA
T.S. THAKUR, VIKRAMAJIT SEN, JJ.
Amarendra Kumar Mohapatra & Ors. – Appellants
Versus
State of Orissa & Ors. – Respondents
CIVIL APPEAL NO.8322 OF 2009 WITH Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940 of 2010
Decided On : 19-02-2014

IMPORTANT POINTS
The Orissa Service of Engineers (Validation of Appointment) Act, 2002 is valid.
Validating legislation is not an encroachment on the judicial power of the Court.
Government Resolution proposing quota for promotion of in-service degree holder Junior Engineers never fructified by amendment of service rules; not binding on Government.
Uma Devi(3) considered and explained.

Headnote:(a) Validation Act – Nature and requirements – Pre-requisite – Purports to validate any act – Removes actual or possible voidness, disability or other defect by confirming the validity of anything which is or may be invalid – Void may be in the matter of jurisdiction or retrospectivity etc. (Para 22 to 24)

       (1972) 2 SCC 239; (2004) 3 SCC 48; (1969) 2 SCC 283 – Relied upon

       (b) Administration of Justice – Judicial Review – Validating laws – Adjudication of rights is essentially judicial function – While doping so Court may find an act, rule, action or proceedings to be invalid – Legislature may therefore step in to validate the same – The power to validate an invalid law or to legalise an illegal action is within the exclusive province of the legislature – Exercise of that power by the legislature is not, therefore, an encroachment on the judicial power of the Court. (Para 25)

       (1969) 2 SCC 283; (1972) 2 SCC 239; (1978) 2 SCC 50; (1996) 7 SCC 637; (1996) 11 SCC 462; (2004) 3 SCC 48; (1976) 4 SCC 750; (2004) 12 SCC 588; (2006) 5 SCC 65 – Relied upon

       (c) Orissa Service of Engineers (Validation of Appointment) Act, 2002 – Validity – State not suffering any adverse judicial pronouncement necessitating a Validating Act – Impugned Act titled ‘Validating Act’ – Impugned legislation in substance aimed at regularising services of such persons as had worked in the capacity of Assistant Engineers – Not a validation enactment. (Para 26, 29)

       AIR 1958 SC 468; [1913] AC 107 – Relied upon

       (d) Validating Enactment – Prior judicial pronouncement declaring an act, proceedings or rule to be invalid is not a condition precedent for the enactment of a Validation Act – Validation Act may be enacted to remove even a perceived invalidity, which the Court has had no opportunity to adjudge – Absence of a judicial pronouncement is not of much significance for determining whether or not the legislation is a validating law – There can be no validation of what has yet to be done, suffered or enacted – Act under challenge is not Validation Act. (Para 30, 31)

       (2004) 8 SCC 599 – Relied upon

       (e) Service Law – Regularisation – Umadevi (3) distinguishing between irregular and illegal appointments ruling out regularization of illegal appointments – However making the decision prospective – Not disturbing regularization already made of employees – Also allowing regularization of such appointees having long periods of ten years or so as one time measure – Requiring authorities to formulate schemes – Impugned Act regularising Stipendiary Engineers as ad hoc Assistant Engineers so appointed ten years back – Held valid. (Para 36, 37)

       (2006) 4 SCC 1 – Relied upon

       (f) Service law – Regularisation – Stipendiary Engineers – Regularisation as ad hoc Assistant Engineers – Were qualified for appointment as Assistant Engineer – Number of vacancies moiré than the persons appointed – Had worked for more than 10 years – Appointment not illegal but irregular – Covered by Uma Devi(3) – Validating Act – Held valid. (Para 43)

       (2010) 9 SCC 247 – Relied upon

       (g) Service Law – Regularisation – Stipendiary Engineers – From the very beginning intending to utilize services of unemployed graduate engineers as Assistant Engineers – High Court also directing so – Validity of regularisation should be considered in the context. (Para 47)

       (h) Constitution of India – Article 14 – Unemployed degree holder – Appointed as Stipendiary Engineers on consolidated pay – Method of employment also different – Appointment pursuant to High Court direction – Object of Validating Act to ensure continued utilization of their services – A class in themselves – Reasonable nexus between classification and the object sought to be achieved existing – In service Degree holder Junior Engineers not similarly situated as Stipendiary Engineers except similar length of service – They enjoy 5% quota in vacancies – Orissa Service of Engineers (Validation of Appointment) Act, 2002 not violative of Article 14. (Para 52)

       AIR 1952 SC 75; AIR 1958 SC 538; (1979) 1 SCC 380 – Relied upon

       (i) Constitution of India – Article 14 – Under inclusion is not good ground for striking down legislation for violation of Article 14 – Impugned Validating Act – Not including in-service degree holder Junior Engineers – Validating Act not ultra vires. (Para 56)

       (1974) 4 SCC 656; (1975) 4 SCC 754; (1984) 3 SCC 127 – Relied upon

       (j) Service Law – Regularisation – Degree holder Junior Engineers – Serving for 17-18 years in ad hoc capacity – Being eligible and appointed against substantive vacancies – Stipendiary Engineers appointed at a later point of time with the same qualifications and pursuant to the very same Government policy already regularised through the Validating Act – In-service degree holder junuor engineers held entitled to regularization as Assistant Engineers. (Para 57)

       (1974) 4 SCC 656; (1975) 4 SCC 754; (1984) 3 SCC 127 – Relied upon

       (k) Service Law – Quota – Government Resolution proposing quota for promotion of in-service degree holder Junior Engineers – Never fructified by amendment of service rules – Resolution not binding on Government. (Para 59)

       (l) Orissa Service of Engineers (Validation of Appointment) Act, 2002 – Section 3(3) – Seniority – Stipendiary Engineers initially appointed as ad hoc Assistant Engineers not following the procedure laid down by the Rules – They have continued in the posts uninterruptedly till the Validation Act regularised their service – Instant case covered by proposition B (Para 47) of (1990) 2 SCC 715 – Stipendiary Engineers entitled to seniority w.e.f. the date of their ad hoc appointment. (Para 65, 70)

       (1990) 2 SCC 715; (2001) 5 SCC 384; (1992) 2 SCC 241; (1986) 2 SCC 157 – Relied upon

       Facts of the case:

       Constitutional validity of the Orissa Service of Engineers (Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service made in breach of the Orissa Service of Engineers’ Rules, 1941 have been validated, is under challenge in these appeals.

       The Government of Orissa passed a resolution stating that the Stipendiary Engineers could be appointed as Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- or any similar post on ad hoc basis against regular vacancies. It also resolved to regularize the service of such ad hoc Assistant Engineers through a Validation Act.

       Despite the resolution no stipendiary Engineer was appointed as Assistant engineer.

       Aggrieved, the Stipendiary Engineers filed O.J.C. Case Jayanta Kumar Dey v. State of Orissa directing the Government to comply with the resolution and the order issued by it. This petition was allowed by the Division Bench of the High Court. The High Court directed the Government to take expeditious steps to implement resolution dated 12th March 1996, preferably within a period of four months.

       Five Stipendiary Engineers working in the Water Resources Department who were not appointed as Assistant Engineers on ad hoc basis filed O.J.C. before the High Court.

       That petition was allowed and disposed of directing the State Government to consider the case of the writ-petitioners in the light of its earlier order passed in Jayant Kumar’s case.

       On non-compliance of this direction more cases were filed.

       In the light of directions of High Court in these cases the Government finally came up with a proposal for validation of the appointment of Stipendiary Engineers as Assistant Engineers.

       The State Legislature eventually enacted Orissa Service of Engineers (Validation of Appointment) Act, 2002 which comprises no more than three sections.

       This legislation was challenged in a number of writ petitions on various grounds mainly being discriminatory.

       A Division Bench of the High Court allowing the petitions struck down the impugned Legislation.

       Finding of the Court:

       The Orissa Service of Engineers (Validation of Appointment) Act, 2002 is not a validating Act.

       The impugned Act is valid.

       Result: Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa; Civil Appeals No.8322-8323 of 2009 and 1940 of 2010 filed by the Stipendiary Engineers; Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005, 12706/2006 and 8630/2006 filed by the degree holders Junior Engineers working as Assistant Engineers on ad hoc basis; Civil Appeal No.1768 of 2006 allowed.

       Intervention applications filed in these appeals disposed of.