Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2014 (2) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (2) TMI 1300 - SC - Indian LawsConstitutional validity of Orissa Service of Engineers (Validation of Appointment) Act, 2002 - appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service - Held that:- In the case at hand, the State of Orissa had not suffered any adverse judicial pronouncement to necessitate a Validation Act, as has been the position in the generality of the cases dealt with by this Court. The title of the impugned Legislation all the same describes the legislation as a Validation Act. The title of a statute is no doubt an important part of an enactment and can be referred to for determining the general scope of the legislation. But the true nature of any such enactment has always to be determined not on the basis of the label given to it but on the basis of its substance. The Enactment in the case at hand deals with the law relating to regularisation of incumbents holding public office on ad hoc or temporary basis, much in the same way as regularisation of such temporary appointments is ordered in terms of a scheme for that purpose. The only difference is that while a regularisation scheme can be framed by the Government in exercise of its executive power, the regularisation ordered in the case at hand is by way of a legislation. It is trite that what could be achieved by the Government by exercise of its executive power could certainly be achieved by legislation, as indeed it has been achieved in the case at hand. Question No.1 is answered accordingly. Regularization of in-service degree holder Junior Engineers who have been working for considerable length of time as Assistant Engineers on ad hoc basis - Held that:- On a true and proper determination of the posts comprising the cadre strength of Assistant Engineers, some more vacancies could fall in the 5% quota proposed to be reserved for the degree holder Junior Engineers and no mandamus could be issued for filing up such vacancies. It is trite that existence of an enforceable right and a corresponding obligation is a condition precedent for the issue of a mandamus. We fail to locate any such right in favour of the writ petitioner degree holders who are still holding posts as Junior Engineers. They will have, therefore, to wait for their turn for promotion against the 33% quota reserved for them along with their diploma holder colleagues. We hardly need to emphasise that those appointed against 5% quota may also have had no such right, but since they have worked in the higher cadre for a long period and discharged duties attached to the posts of Assistant Engineers with the benefits attached thereto, their regularisation comes on a totally different juristic basis than the one sought to be urged on behalf of those who were left out. Appointments as Assistant Engineers were from out of Junior Engineers made strictly according to seniority. The fortuitous circumstance under which the appointments did not extend to the full quota of 5% would make no material difference when it comes to finding out whether the Junior Engineers can claim an enforceable legal right. Seniority position of those being regularized either under the Validation Act or in terms of the directions being issued by us in these appeals - Held that:- Illegality or constitutional infirmity in the provisions of Section 3(2) or 3(3) of the impugned legislation. Having said so, there is no reason why a similar direction regarding the writ-petitioners degree holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr. Dhawan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the Legislation that such Stipendiary-ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would enbloc rank junior to such ad hoc Assistant Engineers from out of degree holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary Stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.
|