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Amarendra Kumar Mohapatra & Ors. Versus State of Orissa & Ors.

2014 (2) TMI 1300 - SUPREME COURT OF INDIA

Constitutional 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 al .....

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s, 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 c .....

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t 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 .....

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e 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 .....

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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 promot .....

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idation 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 have been validated, no matter all such appointments were in breach of the Orissa Service of Engineers Rules, 1941. The High Court of Orissa has in a batch of writ petitions filed before it struck down the impugned Legislation on the ground that the same violates the fundamental rights guaranteed to the writ peti .....

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a proposal for utilizing the manpower so available for the benefit of the State economy mooted. The proposal envisaged a twofold action plan for absorbing the unemployed graduate Engineers. The first part of the action plan provided for withdrawal of 127 posts of Assistant Engineers that had been referred to the Public Service Commission and advertised by it to be filled up by appointing unemployed degree holder Engineers in a nonclass II rank. The second part of the proposal envisaged creation .....

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that degree-holder Engineers could be recruited against all the 741 (127 + 614) posts mentioned above to be designated as Junior Engineers or Stipendiary Engineers in the first phase on a consolidated stipend of ₹ 2,000/- per month. The proposal further envisaged absorption of Engineers so appointed on regular basis after two years, after assessing their performance. 4. The Council of Ministers considered the proposal mooted before it and approved the same. Decision taken in the 2nd Meetin .....

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. ii) 314 posts of Stipendiary Engineers may be created one in each Block. iii) 100 posts of Stipendiary Engineers may be created in the Irrigation Department for survey and investigation. iv) 200 posts of Stipendiary Engineers may be created for the initial infrastructure work of Paradip Port-based Steel Plant. v) In all, 741 posts of Stipendiary Engineers will be available, for recruiting from the unemployed Degree Engineers. A Stipendiary Engineer may be paid a consolidated stipend of ₹ .....

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quel to the above decision, the Government invited applications from unemployed graduate Engineers of all disciplines for empanelment as Stipendiary Engineers for placement in different Government departments, projects, public sector undertakings, co-operative societies and industries etc. By another resolution dated 22nd September 1990, the Government stipulated the procedure to be adopted for discipline-wise empanelment of the unemployed graduate Engineers for appointment as Stipendiary Engine .....

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each batch starting from the batch of 1984 up to the batch of 1989. (2) A point system will be adopted for empanelment on merit basis, for which out of a total 100 marks the performance in HSC will be given 15 marks, the performance in I. Sc. and Diploma will be given 25 marks and the performance at the final Engineering Degree Examination will be given 60 marks. (3) After the empanelment on merit basis is done for 25% of the vacancies, empanelment will be done batch-wise starting from 1984 for .....

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. Similarly graduate Engineers who have passed out before 1984 or those who have obtained degree after 1989 will not be eligible for empanelment. (6) The following committee will undertake the work of scrutiny and empanelment of the unemployed graduate Engineers. d. Secretary Steel & Mines Chairman of the Committee di. Engineer-in-Chief and Secretary, Works Member dii. Engineer-in-Chief (Irrigation) Member diii. Chief Engineer Electricity and electrical Projects Member div. Chief Engineer, P .....

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requirement to Irrigation Department who will the panel names from P & C Department to fill up the vacancies. In case of these Engineers, the appointment orders will be issued by the Department of Irrigation and when required they will be sent on deputation to the other Departments. (9) If there is no candidate to be recommended against reserve vacancies for the reason that the panels of such candidates are exhausted, the Department of P & C will give a non-availability certificate to t .....

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of age limit for entry into Government service may have to be done and this will be attended to by the Employing Departments/Undertakings as a matter of course. ORDER Ordered that the Resolution be published in the Orissa Gazette for general information. Ordered also that copies of the Resolution be forwarded to all Departments of Government, Member, Board of Revenue, All Heads of Departments, All District Collectors, Secretary to Governor, Registrar, Orissa High Court Secretary, OPSC, Principa .....

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es found suitable for such appointments made between 1991 to 1994. Appointment orders issued to the candidates made it clear that degree holder Engineers were being engaged as Stipendiary Engineers in the concerned Department and shall be paid a consolidated stipend of ₹ 2000/- only. It further stated that the engagement was purely temporary and terminable at any time and without any notice. 7. In August 1992, Minister for Irrigation, Government of Orissa mooted a further proposal to the f .....

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ill ensure that Stipendiary Engineers have the facility of recruitment, both against the selection quota and direct recruitment quota. (d) Departments may not fill up vacancies in the post of Stipendiary Engineers caused by appointment of the incumbents as Assistant Engineers, if they want to do so, they may obtain candidates from the panel of the P & C Department. (e) This will be a transitional provision because appointment of Stipendiary Engineers may not be a permanent feature. After suc .....

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above that while the Government did not propose to reduce the 33% quota reserved for promotees, out of the remaining 67% meant for direct recruitment, it proposed to carve out what was described as selection quota of 30% for absorption of the Stipendiary Engineers to the extent of 25% of the vacancies and degree holder Junior Engineers against the remaining 5% of the vacancies. The balance of 37% of the vacancies was, however, left to be filled up by direct recruitment from the open market. 9. B .....

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le to treat it as a feeder grade for Assistant Engineers. So also the proposal to reserve 5% of the vacancies in the grade of Assistant Engineers to be filled by degree holder Junior Engineers from the Subordinate Service was also considered to be inadvisable. The Commission opined that since persons with higher qualifications serve practically in all fields of administration including technical services such as Medical and Engineering, it was neither necessary nor desirable to provide for them .....

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some of whom were degree holders, it could increase the same to 40%, but the fragmentation of the Junior Engineers into degree holders and non-degree holders was not advisable. The Commission suggested that the remainder of the 60% vacancies for direct recruitment could be utilized by recruiting degree holder Engineers from the open market including Stipendiary Engineers and that candidates could be given suitable weightage while judging their inter se relevant merit. 10. The Government had, in .....

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of Assistant Engineer or equivalent posts carrying the same scale, subject to their suitability and satisfactory performance. The relevant portion reads as under: In consideration of the above decision of the Government, the appointing authority of Departments of Government will appoint the Stipendiary Engineers of different disciplines as Assistant Engineers against existing vacancies of Assistant Engineers on ad hoc basis for a period of one year, except Civil & Mechanical, to be appointe .....

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t Engineers on ad hoc basis. Aggrieved, the Stipendiary Engineers filed O.J.C. Case No.8373 of 1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for a writ of mandamus 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 of Orissa at Cuttack by an order dated 18th December 1996. The High Court directed the Government to take expeditious steps to implement resolution dated 12th March 1996, pr .....

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nt departments, the Government had between 1996 and 1997 promoted 86 degree holder Junior Engineers on an ad hoc basis as Assistant Engineers. 12. Five Stipendiary Engineers working in the Water Resources Department whose names had been recommended along with others for appointment as Assistant Engineers on ad hoc basis by the Screening Committee set up for the purpose in the meantime filed O.J.C. No.1563 of 1998 before the Orissa High Court making a grievance that despite the recommendations ma .....

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the directions issued by the High Court earlier and prayed for their regularisation. This petition was disposed of by the High Court by a common order dated 2nd July, 2002 in which the High Court noted that the petitioners had been appointed as Assistant Engineers on ad hoc basis in the pay scale of ₹ 20003500/- by the Water Resources Department Notification dated 11th December, 1998. The High Court further held that since the Government was on principle committed to regularising the appoi .....

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eers as Assistant Engineers. Memorandum dated 28th November, 2002 referred to appointment of 846 Stipendiary Engineers in Civil, 61 Stipendiary Engineers in Mechanical and 25 Engineers in Electrical wings making a total of 932 Stipendiary Engineers in different Departments. We are informed at the Bar that the present number of such Stipendiary Engineers is limited to 881 only as the rest have either resigned, retired or died. The proposal made in the Memorandum also took note of the information .....

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rvice, these Stipendiary Engineers currently working as Assistant Engineers on ad hoc basis will have no avenues for employment as they had already gone beyond the upper age limit prescribed for direct recruitment. 14. It is in the above backdrop that the State Legislature eventually enacted Orissa Service of Engineers (Validation of Appointment) Act, 2002 which comprises no more than three sections. Section 3 of the legislation reads as under: 3(1) Notwithstanding anything contained in the Recr .....

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d under their respective Department of the Government against the direct recruitment quota of the service with effect from the date of commencement of this Act and, accordingly, no such appointment shall be challenged in any court of law merely on the ground that such appointments were made otherwise than in accordance with the procedure laid down in the Recruitment Rules. The inter-se-seniority of the Assistant Engineers whose appointments are so validated shall be determined according to their .....

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increment and for no other purpose. 15. A batch of writ petitions being Writ Petitions No.9514 of 2003, 12495 of 2005, 12495 of 2005, 12627 of 2005, 12706 of 2006 and 8630 of 2006, were then filed by the Degree holder Junior Engineers appointed as Assistant Engineers on ad hoc basis between 1996 and 1997 challenging the validity of the above legislation, inter alia, on the ground that the same suffered from the vice of discrimination inasmuch as while ad hoc Assistant Engineers, who were earlier .....

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ers. 17. Writ Petition No.16742 of 2006 was filed by Junior Engineers promoted as Assistant Engineers against 33% quota reserved for such Engineers whose grievance primarily was that regularisation/validation of the appointments of Stipendiary Engineers in the cadre of Assistant Engineers was illegal and unconstitutional and adversely affected them in terms of their seniority. 18. The above writ petitions were heard by a Division Bench of the High Court of Orissa who allowed the same by its orde .....

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annot be discrimination or classification amongst the persons working on ad hoc basis or the post of Assistant Engineers. Once unequal became equal, the State has no authority to discriminate them and make equals as unequal. 19. The present appeals assail the correctness of the above judgment and order of the High Court. While Civil Appeals No.8324 to 8331 of 2009 have been filed by the State of Orissa, Civil Appeals No.8322, 8323 of 2009 and 1940 of 2010 have been preferred by Stipendiary Engin .....

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it-petitioners in those petitions as Assistant Engineers from the date of their appointment as Stipendiary Engineers with all consequential benefits except financial benefits. 20. Several intervention applications have been filed in these appeals including intervention application filed by the SC/ST candidates who were directly recruited as Assistant Engineers in the year 2004 onwards. 21. We have heard learned counsel for the parties as also those appearing for the interveners. The following th .....

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Stipendiary Assistant Engineers seniority with effect from the date they were appointed on ad hoc basis? Re. Question No.1 22. Black s Law Dictionary (9th Edition, Page No.1545) defines a Validation Act as a law that is amended either to remove errors or to add provisions to conform to constitutional requirements . To the same effect is the view expressed by this Court in Hari Singh & Others v. The Military Estate Officer and Anr. (1972) 2 SCC 239, where this Court said The meaning of a Val .....

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n or proceedings were considered by this Court in Shri Prithvi Cotton Mills Ltd. and Ann v. Broach Borough Municipality and Ors. (1969) 2 SCC 283. Two essentials were identified by this Court for any such legislation to be valid. These are: (a) The legislature enacting the Validation Act should be competent to enact the law and; (b) the cause for ineffectiveness or invalidity of the Act or the proceedings needs to be removed. 24. The Court went on to enumerate certain ways in which the objective .....

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d and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, .....

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regarding validation laws generally deal with situations in which an act, rule, action or proceedings has been found by a Court of competent jurisdiction to be invalid and the legislature has stepped in to validate the same. Decisions of this Court which are a legion take the view that while adjudication of rights is essentially a judicial function, 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 b .....

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and (iii) whether such validation is consistent with the rights guaranteed by Part III of the Constitution. It is only when the answer to all these three questions is in the affirmative that the Validation Act can be held to be effective and the consequences flowing from the adverse pronouncement of the Court held to have been neutralised. Decisions of this Court in Shri Prithvi Cotton Mills Ltd. and Anr. V. Broach Borough Municipality and Ors. (1969) 2 SCC 283, Hari Singh v. Military Estate Off .....

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of this Court in I.N. Saksena v. State of Madhya Pradesh (1976) 4 SCC 750, Virender Singh Hooda and Ors. v. State of Haryana and Anr. (2004) 12 SCC 588 and State of Bihar and Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 deal with that category of cases. 26. 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 Legisl .....

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as a Validation Act in the true sense. This Court held that although the short title as also the marginal note described the Act to be a Validation Act, the substance of the legislation did not answer that description. This Court observed: It is argued that to validate is to confirm or ratify, and that can be only in respect of acts which one could have himself performed, and that if Parliament cannot enact a law relating to sales tax, it cannot validate such a law either, and that such a law is .....

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posing tax on sales shall be deemed to be invalid merely because such sales are in the course of inter-State trade or commerce. The effect of this provision is merely to liberate the State laws from the fetter placed on them by Art. 286(2) and to enable such laws to operate on their own terms. (emphasis supplied) 28. We may also refer to Maxwell on Interpretation of Statutes (12th Edn., page 6), where on the basis of authorities on the subject, short title of the Act has been held to be irreleva .....

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senior counsel appearing for the appellants fairly conceded that the impugned legislation could not be described as a simple Validation Act. According to him, the Act achieved a dual purpose of (a) validating the invalid ad hoc appointments and (b) appointing the Stipendiary Engineers working as ad hoc Assistant Engineers on a substantive basis by regularising their appointments. While we have no difficulty in agreeing with the latter part of the contention urged by Dr. Dhawan and holding that .....

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even otherwise have served no purpose. That is because whether the appointments were officiating/ad hoc/temporary or described by any other expression, the fact that the Stipendiary Engineers had worked for a long period of time as Assistant Engineers in temporary/ad hoc/officiating capacity would have in itself been a ground for the State to regularise them, subject of course to such regularisation otherwise meeting constitutional requirements. It was not as if any such regularisation was legal .....

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ny compulsion arising from a judicial pronouncement regarding the invalidity attached to the appointment of Assistant Engineers on ad hoc basis and only because of the State s anxiety to appoint/absorb the Stipendiary Engineers, subsequently appointed as ad hoc Assistant Engineers on a substantive/regular basis without following the route mandated by the Service Rules of 1941 applicable for making any such appointments. Having said that, we must hasten to add that a prior judicial pronouncement .....

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lidating enactment as it purports to be. As seen above, Dr. Rajiv Dhawan and even Shri Narasimha, did not see the impugned enactment as a validating legislation, no matter it carries a label to that effect. Mr. Patwalia & Mr. Sisodia, senior advocates, appearing for the opposite parties were also not supportive of the legislation being a validating enactment and in our opinion rightly so. That is because the essence of a validating enactment is a pre-existing act, proceeding or rule, being f .....

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ated by legislation. Existence of an illegal act, proceedings or rule or legislation is the sine qua non for any validating legislation to validate the same. There can be no validation of what has yet to be done, suffered or enacted. 32. Applying the above to the case at hand a Validation Act may have been necessary if the Government had appointed the ad hoc Assistant Engineers on a substantive basis in violation of the relevant recruitment Rules. For in that case, the Government would have done .....

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hoc Assistant Engineers as Assistant Engineers. Reliance upon the decision of this Court in Satchidananda Mishra v. State of Orissa and Ors. (2004) 8 SCC 599 is, in our opinion, of no assistance to the respondents. In Satchdinanda s case (supra) the High Court had struck down the validation act which order was confirmed by this Court in appeal. What is significant, however, is that while affirming the view taken by the High Court that the validation law was not constitutionally sound, this Court .....

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on under challenge is not a Validation Enactment. 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 o .....

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nt to public service. Such recruitments were, in the opinion of this Court, in complete negation of the guarantees contained in Articles 14 and 16 of the Constitution. Having said so, this Court did not upset the regularisations that had already taken place, regardless of whether such regularisations related to illegal or irregular appointments. The ratio of the decision in that sense was prospective in its application, leaving untouched that which had already happened before the pronouncement o .....

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ually significant feature is the exception which this Court made in para 53 of the decision permitting a one-time exception for regularising services of such employees as had been irregularly appointed and had served for ten years or more. The State Government and its instrumentalities were required to formulate schemes within a period of six months from the date of the decision for regularisation of such employees. This is evident from a reading of para 53 of the decision which is reproduced in .....

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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 courts or of tribunals and should fu .....

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se at hand. He submitted that regularisations granted by the State or its instrumentalities given in regard to appointments that were strictly speaking illegal had not been upset by this Court in Umadevi s case (supra). That being so, the impugned Enactment by which the appointment of the appellants- Stipendiary Engineers were regularised as Assistant Engineers must also be treated to have been saved from the rigour of the view taken in Umadevi s case (supra). There is merit in that contention. .....

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itially without going through any open competitive selection process would have lost by passage of time their prospects of entering public service by legal course even if vacancies were available for such appointments. In some of the decisions the continuance of employees on ad hoc, temporary or daily-wage basis for an indefinite period was seen by this Court also to be a violation of the fundamental right to life apart from being discriminatory. Considering the magnitude of the problem that wou .....

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or ten years or so may be put to extreme hardship if they were to be discharged from service and, therefore, directed the formulation of a scheme for their regularisation. This was no doubt a one-time measure, but so long as the appointment sought to be regularised was not illegal, the scheme envisaged by para 53 of the decision (supra) extracted above permitted the State to regularise such employees. Dr. Dhawan argued that the appellants- Stipendiary Engineers had, by the time the decision in U .....

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to regularisation of their services in terms of any such scheme. 37. On behalf of the diploma holder Junior Engineers, it was contended by Mr. Sisodia that the appointment of Stipendiary degree holders as ad hoc Assistant Engineers was not irregular but illegal. It was contended that Stipendiary Engineers were appointed on ad hoc basis without following the procedure permitted under the rules which, inter alia, entitled the degree holder Junior Engineers also to compete. He submitted that altho .....

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ineers. We have no hesitation in rejecting that contention. Diploma holder Junior Engineers were not, admittedly, eligible to be appointed as Assistant Engineers in the direct recruitment quota. They could not make a grievance against regularisation simply because of the fact that those regularised may figure above them in seniority. Seniority is an incident of appointment to the cadre which must be regulated by the relevant rules. Any possible prejudice to diploma holders in terms of seniority .....

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tunity was not available to his clients when the degree holder Junior Engineers were appointed as Assistant Engineers. He contended that Junior Engineer degree holders who were appointed as ad hoc Assistant Engineers against 5% quota reserved for them under the Government resolution would have no objection to the regularisation being upheld provided degree holder Junior Engineers who had served for a relatively longer period as Assistant Engineers on ad hoc basis were also given a similar treatm .....

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on why this Court could not extend the very same benefit to degree holder engineers who had similarly worked for over 15 years. 39. The decision in Umadevi s case (supra), as noticed earlier, permitted regularisation of regular appointments and not illegal appointments. Question, however, is whether the appointments in the instant case could be described as illegal and if they were not, whether the State could be directed to regularise the services of the degree holder Junior Engineers who have .....

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s case (supra). The decision in that case summed up the following three essentials for regularisation (1) the employees 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 sele .....

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ny 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 t .....

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here was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of time against sanctioned posts. The information provided by Mr. Nageshwar Rao, learned Additional Solicitor General, appearing for the State of Orissa, in fact, suggests that the number of vacancies was at all points of time more than the number of appointments made on ad hoc basis. It is also clear that each one of th .....

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e the decision itself permitted regularisation in case of irregular appointments, the legislative enactment granting such regularisation does not call for interference at this late stage when those appointed or regularised have already started retiring having served their respective departments, in some cases for as long as 22 years. 45. We need to advert to one other aspect which bears relevance to the issue whether regularisation under the impugned Enactment is legally valid. The appointment p .....

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levant rules which provided for appointments to the cadre to be made only through the Public Service Commission. A reference to the Public Service Commission was no doubt considered unnecessary but the fact remains that appointment of unemployed degree holders as Stipendiary Engineers were made pursuant to a notification by which everyone who was unemployed and held an Engineering degree in any discipline was free to make an application. A large number of unemployed engineers responded to the no .....

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ointed/empanelled and a larger number who were left out and who could have possibly made a grievance if there was any. It is not, therefore, wholly correct to suggest that the entry of the degree holder Junior Engineers as Stipendiary Engineers and later as Assistant Engineers was through the backdoor , an expression very often used in service matters where appointments are made de hors the rules. The process of selection and appointments may not have been as per the relevant rules as the same o .....

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cogent material before us to support that claim, we find it difficult to hold that the appointment of the Stipendiary Engineers was from the beginning itself as Assistant Engineers. The fact that the resolution of the State Government itself envisaged appointment of Stipendiary Engineers as ad hoc Assistant Engineers on the basis of performance makes it amply clear that the Stipendiary Engineers were not treated as Assistant Engineers for otherwise there would have been no question of appointin .....

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ey would be eventually absorbed in service as Assistant Engineers. That representation is evident from the resolution of the State Government where it stated: In all, therefore, 741 posts will be available for recruiting these Degree Engineers in the first instance. They may be designed as Junior Engineers or Stipendiary Engineers in the first phase. They may be paid salary in the scale of Junior Engineers or in a consolidated stipend of ₹ 2,000/- per month. Absorption into regular posts m .....

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or other consideration. The Government, it appears, was from the very beginning, keen to utilise the services of unemployed Graduate Engineers selected on their merit by the Selection Committee and, therefore, remained steadfast in its efforts for achieving that purpose and in the process going even to the extent of getting them regularised by a legislative measure. Suffice it to say that the question whether regularisation was justified cannot be viewed in isolation or divorced from the context .....

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Assistant Engineers who came from the Stipendiary Engineers stream, on one hand, and those appointed as ad hoc Assistant Engineers on account of their being in service as Junior Engineers holding a degree qualification. The degree holder Junior Engineers, it was contended, were in comparison better entitled to regularisation as they had not only the requisite qualification but had put in longer service as ad hoc Assistant Engineers vis-a-vis their Stipendiary counterparts. Alternatively, it was .....

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f the Constitution have been long since settled by several decisions of this Court. Restatement or repetition of those principles was, therefore, considered platitudinous. The real difficulty as often acknowledged by this Court lies not in stating the principles applicable but in applying them to varying fact situations that come up for consideration. Trite it is to say at the outset that a piece of legislation carries with it a presumption of constitutional validity. Also settled by now is the .....

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e Constitution Bench decision of this Court in Re: The Special Courts Bill, 1978 (1979) 1 SCC 380 where this Court undertook that exercise and noticed as many as thirteen propositions that bear relevance to any forensic determination of the validity of a law by reference to the equality clause enshrined in Article 14 of the Constitution. Some of those principles were stated by this Court in the following words: xxx xxx xxx (2) The State, in the exercise of its governmental power, has of necessit .....

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ituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. (4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irr .....

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ded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and character .....

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istics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be .....

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orbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned. xxx xxx xxx (11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, .....

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nexus with the object underlying the legislation. 51. The second and by no means less important is the question whether the impugned legislation is ultra vires of Article 14 because of under inclusion. That is because the argument of the writ petitioners in substance is that the legislation ought to have included even in-service Junior Engineers degree holders working as Ad hoc Assistant Engineers for the benefit of regularisation. 52. There is no difficulty in answering the first question. We .....

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he High Court no matter the direction itself was based on a resolution passed by the State Government that provided for such appointments upon proof of satisfactory performance. The object underlying the legislation evidently being to ensure continued utilisation of the services of such Stipendaries appointed on ad hoc basis as Assistant Engineers, there was a reasonable nexus between the classification and the object sought to be achieved. It is not the case of writ petitioners that Stipendiary .....

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on under inclusion but before we do so, we need to dispel the impression that the writ petitioners were similarly situated as the Stipendiaries only because they were also working as ad hoc Assistant Engineers. There is no gainsaying that the legislation does not aim at regularising all ad hoc Assistant Engineers regardless of the circumstances in which such appointments came about. If that were so, the writ petitioners could well argue that since the object underlying the enactment is to regul .....

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or in circumstances other than those in which Stipendiaries entered the service, cannot cry foul or invite the wrath of Article 14 upon the legislation. As a matter of fact, the State Government s resolve to give 5% vacancies to in service degree holder Junior Engineers itself brought about a classification between Stipendiaries on one hand and the in-service Junior Engineers on the other. The proposed reservation having run into rough waters because of the opposition of the Orissa Public Servic .....

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lso got appointed as ad hoc Assistant Engineers. 53. Coming then to the question of under inclusion we need to keep in mind that a challenge based on under inclusion is not readily accepted by Courts. Constitution Bench s decision of this Court in State of Gujarat and Anr. v. Shri Ambica Mills Ltd., Ahmedabad and Anr. (1974) 4 SCC 656, dealt with the question of a classification which was under inclusive and declared that having regard to the real difficulties under which legislatures operate, t .....

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me burden on others who are similarly situated. A classification is overinclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day .....

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larly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate - difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re-shape - and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration. Mr. Justice H .....

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sacrifice of absolute equality may be required in order that legal system may preserve the flexibility to evolve new solutions to social and economic problems. This Court said: 8. Often times the courts hold that under-inclusion does not deny the equal protection of laws under Article 14. In strict theory, this involves an abandonment of the principle that classification must include all who are similarly situated with respect to the purpose. This under-inclusion is often explained by saying th .....

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the opportunity of a State to make experiment. These techniques would show that some sacrifice of absolute equality may be required in order that the legal system may preserve the flexibility to evolve new solutions to social and economic problems. The gradual and piecemeal change is often regarded as desirable and legitimate though in principle it is achieved at the cost of some equality. It would seem that in fiscal and regulatory matters the court not only entertains a greater presumption of .....

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assification of selection can be sustained on historical reasons or reasons of administrative exigency or piecemeal method of introducing reforms. The law need not apply to all the persons in the sense of having a universal application to all persons. A law can be sustained if it deals equally with the people of well-defined class-employees of insurance companies as such and such a law is not open to the charge of denial of equal protection on the ground that it had no application to other perso .....

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regard to the fact that they have rendered long years of service as Assistant Engineers on ad hoc basis for 17 to 18 years in some cases. While it is true that those in service degree holders working as Junior Engineers were not the beneficiaries of the legislation under challenge, the fact remains, that they were eligible for appointment as Assistant Engineers on account of their being degree holders. It is also not in dispute that they were appointed against substantive vacancies in the cadre .....

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e holders who are still working as Junior Engineers was that the remainder of vacancies comprising 5% of the cadre strength should be utilised to appoint the eligible degree holder Junior Engineers. We shall presently deal with that contention. Suffice it to say for the present that the appointments granted to degree holder Junior Engineers as Assistant Engineers on ad hoc basis were pursuant to a Government decision whereunder such degree holders as were already in-service as Junior Engineers, .....

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a. All told, the Junior Engineers have served for almost a lifetime and held substantive vacancies no matter on ad hoc basis. To revert them at this distant point of time would work hardship to them. Besides, we cannot ignore the march of events especially the fact that Stipendaries appointed at a later point of time with the same qualifications and pursuant to the very same Government policy as took shape for both the categories, have been regularised by the Government through the medium of a l .....

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we take up question No.3. But before we turn to question No.3 we need to briefly deal with the contention urged on behalf of some of the degree holder Junior Engineers represented by Mr. Dholakia who contended that since the Government resolution had provided for 5% quota for degree holder Junior Engineers the Government was duty bound to make appointments against that quota. It was urged that the cadre strength of the Assistant Engineers had not been presently determined by the Government nor .....

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rnment resolution proposed to carve out never fructified by a corresponding amendment of the Service Rules. As noticed in the earlier part of this order, the Orissa Public Service Commission was not agreeable to the reservation of a quota for the subordinate engineering service members who held a degree qualification. No such classification was, therefore, made or could be made by the Government, nor was the Government resolution translated into a binding rule that could be enforced by a Court o .....

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titioner 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 regula .....

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Re. Question No.3 61. Section 3(2) of the impugned legislation deals entirely with the inter se seniority of Assistant Engineers whose appointments are validated/regularised by the said enactment and stipulates that such inter se seniority shall be determined according to the dates of appointment of the officers concerned on ad hoc basis as mentioned in the schedule. It further stipulates that all those regularised under the legislation shall be enbloc junior to the Assistant Engineers of that y .....

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ted on ad hoc basis was legally permissible especially when the ad hoc appointments had continued without any interruption till their regularisation. Reliance in support was placed by Mr. Rao upon a Constitution Bench decision of this Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra and Ors. (1990) 2 SCC 715. The case at hand, according to the learned counsel, fell under proposition (B) formulated in the said decision. Grant of seniority from the date of .....

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endered by the Engineers appointed otherwise than in accordance with the rules could not count for the purposes of seniority and that even if Section 3(1) of the Validation Act was held to be valid, Section 3(2) which gave retrospective seniority from the date they were first appointed on ad hoc basis must go. 64. In Direct Recruit s case (supra) this Court reviewed and summed up the law on the subject by formulating as many as 11 propositions out of which propositions A and B stated in Para 47 .....

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the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. 65. There was some debate at the bar whether the case at hand is covered by corollary to proposition A or by proposition B (supra). But having given our consideration to the submissions at the Bar we are inclined to .....

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her benefits referred to in Section 3(3) of the impugned Act were legally impermissible or violated any vested right of the in service Assistant Engineers appointed from any other source. Proposition A, in our opinion, deals with a situation where an incumbent is appointed to a post according to the rules but the question that arises for determination is whether his seniority should be counted from the date of his appointment or from the date of his confirmation in the said service. The corollar .....

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the case at hand. 66. We may also refer to a three-Judge Bench of this Court in Union of India and Anr. etc. etc. v. Lalita S. Rao and Ors. etc. etc. (2001) 5 SCC 384 where doctors appointed by Railway Administration on ad hoc basis had been upon regularisation granted seniority from the date of their ad hoc appointment. This Court held that proposition B stated in Direct Recruits case (supra) permitted such seniority being granted. This Court observed: Obviously the Court had in mind the princi .....

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justification in not applying the principle 'B' of the Direct Recruit Class II Engineering Officers Association case (supra) and denying the period of officiating services for being counted for the purpose of seniority. 67. Reference may also be made to the decision of this Court in State of Andhra Pradesh & Anr. V. K.S. Muralidhar & Ors. (1992) 2 SCC 241 where the Government of India gave weightage to service rendered by employees prior to their regularisation. The dispute in th .....

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tage of four years' service should be given to the upgraded Junior Engineers namely the Supervisors. Is it the date of acquiring the degree qualification or the date of their appointment? Having given our earnest consideration and for the reasons stated above we hold that the weightage can be given only from the date of their appointment. The Tribunal in the course of its order, however, observed that in accordance with the existing rules the appointments of these Junior Engineers from the n .....

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their inter-se seniority has to be fixed; (iii) The regularisation of the degree-holder Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT; (iv) The Government shall prepare a common seniority list of the degree-holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be .....

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that case were not promoted by following the actual procedure prescribed by the relevant Service Rules even though the appointments were made in the name of the President by the competent authority. They had based on such appointments, continuously held the post to which they were appointed and received salary and allowances payable to incumbent of such post. The incumbents were entered in the direct line of their promotion. The question, however, was whether it would be just and proper to hold .....

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we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reversed from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts .....

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he petitioners and the direct recruits and such a question can arise only where there is no dispute regarding the entry of the officers concerned into the same Grade. In the instant case there is no impediment even under the Rules to treat these petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in the Rule 16 thereof. Rule 16 as it stood at the relevant time read as follows : 16. The Government may rel .....

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moted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous offici .....

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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 fir .....

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in these appeals to which we may briefly refer at this stage. In IA No.5 of 2012 filed in Civil Appeal No.8324 of 2009, the interveners have sought permission for the State Government to complete the re-structuring process and to fill up the vacancies subject to a final decision of this Court in these appeals. In IA Nos.6 and 7 of 2012 also filed in Civil Appeal No.8324 of 2009, the interveners seek a direction to the State of Orissa to upgrade the post of Assistant Engineers Class II (Group B) .....

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P No.29765 of 2008, the interveners seek permission to support the judgment of the High Court whereby the impugned legislation has been struck down as unconstitutional. Similarly, IAs filed in some other appeals either seek to support the judgment passed by the High Court or pray for permission to argue the case on behalf of one or the other party. 74. We have heard counsel for the interveners also at some length. We, however, do not consider it necessary to enlarge the scope of these proceeding .....

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ssued by us in these appeals. Other issues which the interveners seek to raise especially issues regarding grant or denial of the benefit of reservation to SC and ST candidates, have not been touched by us in these proceedings for want of proper pleadings on the subject and also for want of any pronouncement by the High Court on the said questions. In the circumstances, this order shall be taken to have settled only what we have specifically dealt with or what would logically follow therefrom. A .....

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