Service law: Regularisation of service – Entitlement to – Appellant appointed as temporary Music Teacher on a leave vacancy – Appointment was to last till the permanent incumbent re-joined the service – Incumbent employee never returned and the appellant continued in service from 1984 to 2021 – In between, the terms of the appointment order were modified by providing that the appointment was to last till the regular incumbent joined back or 20.05.1986, whichever was earlier and order was issued dispensing with the services of the appellant, however, the High Court stayed the operation of the said order – Appellant then sought regularisation in accordance with the Regularisation Rules but no action taken – Writ petition by the appellant – Single Judge held that the appellant would continue on her post and her case shall be considered for regularization – Said judgment attained finality – Subsequently, appellant’s claim for regularization rejected – Appellant filed another writ petition before the High Court, wherein the Single Judge allowed her writ petition holding that since the earlier order of the Single Judge attained finality, refusal to apply Regularisation Rules, 2001 was unlawful – In terms thereof, the State regularised services of the appellant – In appeal, there against, the Division Bench held that since the appellant continued on the post on the basis of the interim order passed by the High Court in earlier round of litigation, her appointment is litigious appointment and thus she had no enforceable right to hold the post legally – On appeal, held: Appointment of the appellant can only be construed as irregular and not illegal – Rejection of her claim for regularization on the ground of her appointment being illegal is patently erroneous – Judgment which attained finality crystallized the right of the appellant for regularization – It is not permissible for the parties to re-open the concluded judgments of the Court as the same tantamounts to an abuse of the process of the Court and has far reaching adverse effect on the administration of justice – Further, the writ Petition cannot be filed collaterally to set aside the judgment of the same High Court rendered in an earlier round of litigation ignoring the principles of res-judicata and doctrine of finality – Thus, the judgment passed by the Division Bench not sustainable and set aside – Appellant entitled to be regularised with all consequential benefits.
Judgment/Order:
Over-ruling a principle and reversal of the judgment – Explanation of – Held: There is a distinction between the two – Judgment itself has to be assailed and got rid of in a manner known to or recognized by law – Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught – Mere overruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties.
Re-opening of a concluded judgment – Permissibility of – Held: It is not permissible for the parties to re-open a concluded judgment of the Court – It may tantamount to an abuse of the process of the Court and also have far reaching adverse effect on the administration of justice.
Allowing the appeal, the Court
HELD: 1.1 Applying the tests laid down in *State of Karnataka & Ors. vs. M.L. Kesari & Ors. the appointment of the appellant can only be construed as irregular and not illegal. The finding recorded by the Division Bench of the High Court in respect of nature of the appointment of the appellant being illegal is thus not liable to be sustained. Her rejection of the claim for regularization on the ground of her appointment being illegal by the impugned order is patently erroneous. The other condition of having worked for 10 years or more also stands fully satisfied as the appellant at the time of consideration of her regularization had completed almost 23 years of service. [Para 24][178-F-H; 179-A]
State of Karnataka & Ors. v. M.L. Kesari & Ors. (2010)
9 SCC 247 : [2010] 9 SCR 543 – relied on.
& ORS.
1.2 Writ Petition No. 3316 (SS) of 1986 filed by the appellant before the High Court challenging the modification in the terms of her appointment was stayed vide order dated 20.05.1986 during the pendency of this Writ Petition before the High Court. She again approached the High Court by filing Writ Petition No. 7890 of 2003 challenging the order passed by the Joint Director of Education rejecting her claim of regularization. The two pending Writ Petitions were clubbed by the High Court and disposed of vide common judgment and order dated 23.01.2006 with the finding that the appellant is having all the requisite qualification and has worked for 21 years and she might have been appointed in a leave arrangement but by virtue of her satisfactory services, she has now acquired a Right to hold the post and continued in the institution and at this stage, it would not be appropriate to treat her as an appointee in a stop-gap arrangement and accordingly directed the State-respondent to consider for regularization under the relevant Regularization Rules. [Para 26][179-B-E]
1.3 This Judgment attained finality inter-se between the parties as admittedly the State-respondent did not put the same to challenge before any higher forum. The said judgment which attained finality crystallized the right of the appellant for regularization. When the same was refused by the Joint Director of Education, it was again challenged by filing Writ Petition No. 8597 of 2010. A Single Judge vide order dated 15.05.2014 allowed the Writ Petition with the finding that in the earlier round of litigation, the High Court had held that she was entitled to hold the post and since the said judgment become final and unchallenged, the Regularization Rules, 2001 were applicable and refusal to apply the said Rules was unlawful. [Para 27][179-E-G]
1.4 Admittedly, when the judgment dated 23.01.2006 was passed by the High Court in the earlier two Writ Petitions filed by the appellant, the dictum of Umadevi (3) was not even in existence as the said judgment was rendered subsequently on 10.04.2006. The Division Bench of the High Court has erroneously understood the dictum of this Court in Umadevi (3). The Constitution Bench has nowhere directed that service matters that stand concluded inter partes, ought to be re-opened. On the contrary, the Constitution Bench clarified as under that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what has been held herein, will stand denuded of their status as precedents. It becomes absolutely clear from the above clarification that earlier decisions running counter to the principles settled in the decision of Umadevi (3) will not be treated as precedents. It cannot mean that the judgment of a competent Court delivered prior to the decision in Umadevi (3) and which has attained finality and is binding inter se between the parties need not be implemented. Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. There is a distinction between overruling a principle and reversal of the judgment. The judgment in question itself has to be assailed and got rid of in a manner known to or recognized by law. Mere over-ruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties. [Para 28-30][179-G-H; 180-A-E] Secretary, State of Karnataka & Ors. v. Umadevi & Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – referred to.
1.5 The Division Bench of the High Court proceeded as if it was hearing an appeal against the judgment dated 23.01.2006 of the Single Judge which had already attained finality. Appeal filed under the Rules of the Court was filed against the judgment dated 15.05.2014 rendered in Writ Petition No. 8597 of 2010. It is a well settled principle of law that a Letters Patent Appeal which is in continuation of a Writ Petition cannot be filed collaterally to set aside the judgment of the same High Court rendered in an earlier round of litigation ignoring the principles of res-judicata and doctrine of finality. [Para 32][181-F-H]
1.6 It is very well settled that it is not permissible for the parties to re-open the concluded judgments of the Court as the same may not only tantamount to an abuse of the process of the & ORS.
Court but would have far reaching adverse effect on the administration of justice. [Para 36][182-F]
Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr. 1967 AIR SC 1 : [1966] 3
SCR 744; Rupa Ashok Hurra v. Ashok Hurra & Anr. (1999) 2 SCC 10; Union of India & Ors. v. Major S.P. Sharma & Ors. (2014) 6 SCC 351 : [2014] 4 SCR 327 – relied on.
1.7 It is undisputed that in compliance of the judgment of the learned Single Judge dated 15.05.2014 vide order dated 31.10.2015 respondents regularized the services of appellant subject to the outcome of the proceedings in the LPA and the appellant now stand superannuated having attained the age of superannuation after about 33 years of continuous service. [Para 37][182-F-G]
1.8 A feeble attempt was made by the counsel for the Staterespondent to persuade this Court not to interfere in the matter on the ground that the services of the appellant were terminated vide letter dated 19.05.1986 which was never challenged as such her services stood terminated. Such submission cannot be accepted at this stage for the simple reason that it was open for the State to have advanced this contention before the Single Judge in the two Writ Petitions decided vide judgment and order dated 23.01.2006. Once this argument was never made before the Single Judge in the proceedings which has attained finality, the respondent cannot be permitted to raise this argument in this appeal. [Para 38][183-A-C]
1.9 The impugned judgment passed by the Division Bench of High Court is not liable to be sustained and is hereby set aside. The appellant is held entitled to be regularized with all consequential benefits which may be extended to her within the stipulated period. [Para 39][183-D]
Rudra Kumar Sain and Ors. v. Union of India and Ors. (2000) 8 SCC 25 : [2000] 2 Suppl. SCR 573; Vice Chancellor Anand Agriculture University v. Kanubhai Nanubhai Vaghela and Anr. [2021] AIR 3529; Gujarat Agricultural University v. Rathod Labhu Bechar & Ors. (2001) 3 SCC 574 : [2001] 1 SCR 413 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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