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2014 (2) TMI 1300 - SUPREME COURT OF INDIA

2014 (2) TMI 1300 - SUPREME COURT OF INDIA - 2014 AIR 1716, 2014 (2) SCR 1031, 2014 (4) SCC 583, 2014 (3) JT 244, 2014 (2) SCALE 589 - 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 Val .....

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tment 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 b .....

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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 t .....

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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 provis .....

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ssistant 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 a .....

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ary issue that falls for determination touches the Constitutional validity of what is described as 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 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 .....

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olders in various branches of Engineering who had passed out from several Engineering colleges since the year 1984 was highlighted and 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 b .....

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e to be created for initial infrastructure work in connection with Paradip Steel Plant. 3. The note submitted to the Cabinet suggested 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 pe .....

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ere taken. i) All posts of Assistant Engineers referred to the Orissa Public Service Commission and advertised by them may be withdrawn. 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 .....

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y formation of Groups Companies and Cooperatives, which will get preference in award of work by the Department/Corporations. 5. As a sequel 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 .....

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nt and undertakings: (1) 25 percent of the posts shall be filled up on merit basis and for this purpose equal number will be taken from 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 .....

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f vacancies will apply to these appointments. (5) Applications received on or before 10.7.1990 will alone be considered for empanelment. 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 M .....

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the concerned Administrative Departments. (8) As regards Civil & Mechanical Engineers, the Government Departments will intimate the 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 .....

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he verification of these documents shall be the responsibility of the Employing Departments/Undertakings. (11) In some cases relaxation 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 Re .....

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were in terms of the above resolution and considered by the Committee constituted for the purpose and appointment of eligible candidates 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 .....

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ota will be 37%. Stipendiary Engineers can also compete against this quota. They may be allowed age relaxation up to five years. This will 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 Depar .....

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th Degree or equivalent qualification quotas for these categories will be added to direct recruitment quota. 8. It is evident from the 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 .....

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ck a discordant note. In its opinion, since the Stipendiary Engineers did not constitute a cadre in the formal sense it was not desirable 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 a .....

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r Engineers to the level of Assistant Engineers required to be higher than 33% in consideration of the larger body of Junior Engineers 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 E .....

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ipendiary Engineers who were working in different State Governments and statutory bodies were also proposed to be appointed to the post 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 ag .....

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performance. 11. The resolution notwithstanding, the Government does not appear to have appointed any Stipendiary Engineers as Assistant 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 .....

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tant is that pursuant to its initial proposal of allocating 5% vacancies for those working as degree holder Junior Engineers in different 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 p .....

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ment, two of the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of 1999 in which they complained about the non-implementation of 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 Notificatio .....

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It was in the above backdrop that the Government finally came up with a proposal for validation of the appointment of Stipendiary Engineers 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 limite .....

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the State in execution of several ongoing development works. The proposal further stated that having rendered more than 10 years of service, 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 .....

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ts under which they are working on ad hoc basis since the date of such appointment shall be deemed to be validly and regularly appointed 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 Recruitm .....

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to the commencement of this Act shall, subject to the provisions in sub-section (2), count for the purpose of their pension, leave and 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 al .....

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already appointed as Assistant Engineers on ad hoc basis against 5% quota disapproved by the Public Service Commission for such Engineers. 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 th .....

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ad hoc basis have been validated ignoring the other similarly situated persons working on ad hoc basis as Assistant Engineers. There cannot 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 200 .....

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nge the judgment of the High Court in OJC Nos.6354 and 6355 of 1999 directing the State Government to regularise the services of the writ-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 .....

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infirmity? 3. Does Section 3(2) of the impugned legislation suffer from any unconstitutionality, insofar as the same purports to grant 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 thi .....

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of anything which is or may be invalid . 23. The pre-requisite of a piece of legislation that purports to validate any act, rule, action 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 .....

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nder the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected 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 ade .....

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akes adequate provisions in the Validating Law for a valid imposition of the tax." (emphasis supplied) 25. Judicial pronouncements 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 .....

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(ii) whether the legislature was competent to validate the act, action, proceedings or rule declared invalid in the previous judgments 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 .....

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lidation enactments have subsequent to the pronouncement of competent Courts come about validating the existing legislation. Decisions 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 necessita .....

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M.P.V. Sundararamier & Co. v. State of A.P. & Anr. AIR 1958 SC 468 this Court was considering whether the impugned enactment was 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 p .....

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gned Act which is the only substantive enactment therein makes no mention of any validation. It only provides that no law of a State imposing 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 .....

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t under its full and descriptive title....Its object is identification and not description. (emphasis supplied) 29. Dr. Dhawan, learned 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 t .....

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ns filed by the Stipendiary Engineers. Validation of the ad hoc appointments of the Stipendiary Engineers as Assistant Engineers would 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, sub .....

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urate to describe the same as a validation enactment. 30. The matter can be viewed from yet another angle. The enactment came de hors any 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 .....

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egislation is a validating law. 31. There was in the above context some debate at the Bar whether or not the impugned enactment is a validating 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 .....

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done or that has yet to come in existence. No one can say that an illegality which has not yet been committed can or ought to be validated 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 Assi .....

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Validation Act as it purported to be but an enactment that regularised the appointment of graduate Stipendiary Engineers working as ad 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 significan .....

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ed on any such assumption in the instant case especially because learned counsel for some of the parties have argued that the legislation 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 regularisatio .....

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s. (2006) 4 SCC 1 ruled that regularisation of illegal or irregularly appointed persons could never be an alternative mode of recruitment 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 .....

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tutional scheme. 35. The above is a significant feature of the pronouncement of this Court in Umadevi s case (supra). The second and equally 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 .....

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to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the 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 appointe .....

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f these appeals argued, and in our opinion rightly so, that both the aspects referred to above bear considerable significance to the case 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 m .....

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o are benefitted from such orders of regularisation. There is no gainsaying that most of such persons who entered the public service initially 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 als .....

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nd even after deprecating the practice of appointing people by means other than legitimate, this Court felt that those who had served for 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 .....

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s as Assistant Engineers, who had worked for nearly ten years to the full satisfaction of the State Government would have been entitled 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 proc .....

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n seniority to the prejudice of the diploma holder Junior Engineers who may at their own turn be promoted in the cadre of Assistant Engineers. 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 a .....

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ed that although degree holder Junior Engineers are eligible for appointment against the vacancies in direct recruits quota, that opportunity 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 .....

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ed the benefit of regularisation to the Stipendiary Engineers later appointed on ad hoc basis as Assistant Engineers, there was no reason 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 illeg .....

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ri and Ors. (2010) 9 SCC 247, has examined that question and explained the principle regarding regularisation as enunciated in Umadevi 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 .....

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e concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any 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 .....

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they possess degrees from recognised institutions. It is also nobody s case that they were not appointed against the sanctioned post. There 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 .....

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y because in Umadevi s case (supra) this Court did not disturb the appointments already made or regularisation granted, but also because 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 .....

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ts as Stipendiary Engineers were made on the basis of a selection process and on the basis of merit no matter determined de hors the relevant 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 h .....

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process of appointment was at no stage questioned before the Court, a feature which is notable keeping in view the number of people appointed/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 appoi .....

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Engineers from the date they were employed. In the absence of any finding from the High Court on the subject and in the absence of any 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 cl .....

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that we cannot lose sight of the fact that the appointment of graduate engineers as Stipendiaries was on a clear representation that they 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 .....

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ment of Stipendiary Engineers on ad hoc basis and their subsequent regularisation came as a side wind or was inspired by any political 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 measu .....

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n promoted as Ad hoc Assistant Engineers against 5% quota reserved for them. It was argued that State could not have classified ad hoc 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 qua .....

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d the principles applicable to any forensic exercise aimed at examining the validity of a legislation on the touchstone of Article 14 of 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 .....

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S.R. Tendolkar and Ors. AIR 1958 SC 538). A comprehensive review of the law is, in our opinion, unnecessary at this stage in view of the 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 .....

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its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted 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 rule .....

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ir position is substantially the same. (5) By the process of classification, the State has the power of determining who should be regarded 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 perso .....

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The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics 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 distinguis .....

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ersons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid 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 .....

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gether for the grant of the benefit from those left out and if there is such a differentia, whether the classification has a reasonable 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 w .....

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nducted by the Public Service Commission. Their appointment as ad hoc Assistant Engineers also came pursuant to a direction issued by the 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 re .....

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as bad for under inclusion. We shall presently deal with the test applicable to cases where the challenge to the legislation is founded 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 app .....

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ces and dealing with the unemployment problem in the State. That being the object, ad hoc Assistant Engineers appointed by other modes 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 Jun .....

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ould not be grudged by in-service Junior Engineers no matter the latter had in anticipation of the amendment to the recruitment rules also 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 .....

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a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same 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 mis .....

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of the law is to get in unpaid accumulations for the welfare of the labour. Since the classification does not include all who are similarly 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 .....

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dent and Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and Ors. (1975) 4 SCC 754 where this Court held that some 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 class .....

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pts will be fully successful or wise. Thus to demand application of the policy to all whom it might logically encompass would restrict 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 .....

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.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification 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 .....

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older Junior Engineers currently working as ad hoc Assistant Engineers are entitled to the relief of regularisation in service, having 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 o .....

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s not been assailed either before the High Court or before us. On the contrary the contention urged on behalf of Junior Engineers degree 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 .....

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ent of the degree holders as Assistant Engineers brightened the chances of the rest to get promoted at their turn in the promotees quota. 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 t .....

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regularisation to the Stipendiary Engineers. 58. We shall advert to the question of inter se seniority between the two categories while 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 again .....

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in the submissions urged by Mr. Dholakia and by learned counsel for some of the interveners. We say so because the quota which the Government 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 o .....

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orresponding 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 cadr .....

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it comes to finding out whether the Junior Engineers can claim an enforceable legal right. 60. Question No.2 is answered accordingly. 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 sched .....

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Rao contended that grant of seniority to ad hoc Assistant Engineers regularised under the legislation w.e.f. the date they were appointed 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 h .....

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pted that contention, including Ms. Aishwarya appearing for some of the diploma holder Junior Engineers and urged that ad hoc service rendered 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 revie .....

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nd not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering 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 coro .....

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regularised their service. There is, in the light of those two significant aspects, no room for holding that grant of seniority and other 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 .....

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mits grant of seniority w.e.f. the date the appointees first started officiating followed by the regularisation of their service as in 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 .....

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n test conducted by the Union Public Service Commission, and on being selected their services stood regularised then there would be no 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 .....

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the upgraded Supervisors in the light of their experience. This Court said: The question to be considered is from which date the weightage 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 .....

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ed from the date of appointment and not the date of their acquiring the degree qualification; (ii) On the basis of that notional date, 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 co .....

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; Ors. v. Union of India & Ors. (1986) 2 SCC 157, this Court was dealing with a somewhat similar fact situation. The petitioners in 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. Th .....

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cumstances of this case the petitioners are not holding the posts n Grade IV. The above contention is therefore without sub-stance. But 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 hi .....

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d that the petitioners should be sent out of the said posts. The only question agitated before us relates to the seniority as between the 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 ena .....

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was force in the view taken by this Court in that case. This Court observed: In Narender Chadha v. Union of India the officers were promoted 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 c .....

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rding 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 cur .....

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low the promotee Assistant Engineers. 72. Question No.3 is answered accordingly. 73. Several intervention applications have been filed 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 .....

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unior Engineers who are otherwise eligible for appointment against the vacancies reserved for direct recruits. In IA No.3 of 2009 in SLP 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 he .....

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c basis and (c) the seniority position of those being regularized either under the Validation Act or in terms of the directions being issued 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 circums .....

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riate proceedings. To the extent any such questions or aspects have not been dealt with by us in this order, may be dealt with in any such proceedings. Beyond that we do not consider it proper or necessary to say anything at this stage. 75. In the result we pass the following order: (1) Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and Civil Appeals No.8322-8323 of 2009 and 1940 of 2010 filed by the Stipendiary Engineers are allowed and the impugned judgment and order dated 15t .....

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