W.P.(C) No. 4061/2013 Page 1 of 17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) No. 4061/2013

% 11th

September, 2015

DHARMENDRA PRASAD SINGH & ORS. ..... Petitioners

Through: Ms.Adwaita Sharma and Mr. Junaid

Nahvi, Advocates.

versus

THE CHAIRMAN, STATE BANK OF INDIA & ORS.

..... Respondents

Through: Mr. Rajiv Kapur, Adv. for R-1/SBI.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Review Petition No. 301/2015

1. The main writ petition was dismissed by this Court by a

detailed judgment running into 45 pages on 9.2.2015. The judgment dated

9.2.2015 relied upon the Constitution Bench judgment of the Supreme Court

in the case of Secretary, State of Karnataka Vs. Umadevi & Ors. (2006) 4

SCC 1 for holding that after passing of this judgment by the Constitution

Bench of the Supreme Court, neither the Union of India or a State or any

arm of the State or any authority or entity of a State under Article 12 of the

W.P.(C) No. 4061/2013 Page 2 of 17

Constitution of India could take out a policy for regularization of contractual

employees who have been appointed without issuing of advertisements to

call candidates by open competition or advertisements have been issued only

for contractual periods/posts and not for regular/permanent posts.

2. The judgment passed by this Court on 9.2.2015 was set aside by

a Division Bench of this Court on 30.4.2015. The Division Bench while

passing the judgment dated 30.4.2015 did not notice and refer to the specific

paragraphs which were quoted by this Court (in its judgment dated 9.2.2015)

of the judgment of the Constitution Bench of the Supreme Court in

Umadevi’s case (supra) and which paras were the ratio of Umadevi’s case

(supra). The Division Bench by the judgment dated 30.4.2015 effectively

has held that the respondent no.1/State Bank of India though it is an arm of

the State as per Article 12 of the Constitution of India, can take out policy

for regularizing contractual employees. I may also note that the appeal

before the Division Bench was filed by the respondent no.1 ie State Bank of

India and whose policy of regularizing contractual employees was held by

this Court to be illegal and violative of the ratio of the Constitution Bench

judgment of the Supreme Court in the case of Umadevi (supra). The LPA

No. 260/2015 which was allowed by the Division Bench of this Court by its

W.P.(C) No. 4061/2013 Page 3 of 17

judgment dated 30.4.2015 was without issuing any notice to the petitioners

in the writ petition, and who were arrayed as respondents no.1, 2 and 3 in the

LPA, and the LPA was disposed of at the stage when it came up for

admission for the first time.

3. The facts of the present case are very peculiar, in that both the

petitioners and who are the review petitioners, as also the respondent

no.1/Bank, claimed right for regularization of contractual employees and

therefore both the review petitioners as also the respondent no.1/Bank were

interested in impugning the judgment passed by this Court on 9.2.2015.

Obviously, it is for this reason that there is no further challenge by any of the

parties to the judgment of the Division Bench dated 30.4.2015 in LPA No.

260/15. The Division Bench as per its judgment held that the policy of the

respondent no.1/Bank dated 20.7.2010 of regularizing contractually

appointed employees was not in violation of the ratio of the Constitution

Bench judgment of the Supreme Court in the case of Umadevi (supra),

however, since the Division Bench passed the judgment without issuing any

notice to the review petitioners/petitioners, and consequence of which

judgment would be a direction to this Court to decide the writ petition on

merits, hence the petitioners have filed the present review petition seeking

W.P.(C) No. 4061/2013 Page 4 of 17

their regularization on the posts in terms of the policy dated 20.7.2010 of the

respondent no.1/Bank.

4. When the review petition and the connected applications came

up before this Court for the first time on 29.5.2015, this Court passed the

following detailed order:-

“1. This writ petition was dismissed by this Court vide this

judgment dated 9.2.2015. The respondent no.1/State Bank of India

carried this judgment in appeal in LPA No.260/2015 and this appeal

was allowed by the Division Bench vide its judgment dated

30.4.2015 setting aside the judgment of this Court. By the judgment

dated 9.2.2015, this Court had held that the respondent no.1 cannot

bring out a policy to regularize contractual appointees/employees,

but, the Division Bench held that respondent no.1 is entitled to take

out a policy to regularize the contractual appointees.

2. After I passed the judgment in this case on 9.2.2015 I have

passed two other judgments in the case of Keshav Dutt and Ors. Vs.

Delhi Tourism and Transport Development Corporation Limited &

Anr. in W.P.(C) No.3295/2015 decided on 7.4.2015 and a bunch of

cases with lead case being Dr. Parmod Kumar Dhailwal Vs. GNCT

of Delhi & Ors. W.P.(C) No.7942/2014 decided on 26.5.2015.

These cases decided by this Court of Keshav Dutt and Ors. (supra)

and Dr. Parmod Kumar Dhailwal (supra) refers to four judgments of

the Supreme Court and which judgments specifically lay down the

ratio that contractual employees even appointed through

advertisement cannot be regularized in services, inasmuch as, the

same would amount to violating Articles 14 and 16 of the

Constitution of India and the ratio of the judgment of the Constitution

Bench of the Supreme Court in the case of Secretary, State of

Karnataka and Others Vs. Umadevi and Others 2006 (4) SCC 1.

These four judgments of the Supreme Court are as under:-

(i) Official Liquidator Vs. Dayanand & Ors. (2008) 10 SCC 1.

(ii) National Fertilizers Ltd. and Others Vs. Somvir Singh (2006)

5 SCC 493.

W.P.(C) No. 4061/2013 Page 5 of 17

(iii) Kendriya Vidyalaya Sangathan and Others Vs. L.V.

Subramanyeswara and Another (2007) 5 SCC 326.

(iv) State of Orissa and Another Vs. Mamata Mohanty (2011) 3

SCC 436.

3. The relevant portions of the aforesaid four judgments directly

on the issue that contractual employees cannot be regularized in the

absence of appropriate advertisement i.e advertisement for permanent

posts, are as under:-

“(I) Relevant para from the case of Official Liquidator

(supra)

52. As mentioned above, while approving the reasons and

conclusions recorded by the two High Courts and dismissing

the appeals, this Court not only permitted the Government of

India to frame a scheme modeled on the 1978 Scheme but also

stayed implementation of the orders impugned in the appeal

and the one passed by itself in the transferred writ petition. If

the Court intended that all members of the company paid staff

working on the date of judgment i.e. 27.8.1999 should be

absorbed in the regular cadres against Group `C' and `D' posts,

then a simple direction to that effect would have been

sufficient and there was no occasion to stay the

implementation of the orders of the High Courts for six

months with liberty to the Government of India to frame a new

scheme within the same period. The absence of such a

direction shows that the Court was very much conscious of the

fact that recruitment to the regular cadres is governed by the

rules framed under Article 309 of the Constitution and it

would be highly detrimental to public interest to issue

direction for wholesale absorption/regularization of the

company paid staff and thereby abrogate/stultify opportunity

of competition to younger generation comprising more

meritorious persons who may be waiting for a chance to apply

for direct recruitment. Obviously, the Court did not want to

sacrifice the merit by showing undue sympathy with members

of the company paid staff who joined service with full

knowledge about their status, terms and conditions of their

employment and the fact that they were to be paid from the

company fund and not Consolidated Fund of India. In this

context, we may also mention that though the Official

Liquidators appear to have issued advertisements for

W.P.(C) No. 4061/2013 Page 6 of 17

appointing the company paid staff and made some sort of

selection, more qualified and meritorious persons must have

shunned from applying because they knew that the

employment will be for a fixed term on fixed salary and their

engagement will come to an end with the conclusion of

liquidation proceedings. As a result of this, only mediocres

must have responded to the advertisements and jointed as

company paid staff. In this scenario, a direction for

absorption of all the company paid staff has to be treated

as violative of the doctrine of equality enshrined in

Articles 14 and 16 of the Constitution.” (emphasis added)

II. “Relevant paras from the case of National Fertilizers

Ltd. and Others (supra)

20. The Constitution Bench opined that any appointment

made in violation of the Recruitment Rules as also in violation

of Articles 14 and 16 of the Constitution would be nullity. The

contention raised on behalf of the employees that those

temporary or ad hoc employees who had continued for a fairly

long spell, the authorities must consider their cases for

regularisation was answered, thus: [Umadevi (3) Case (supra),

SCC p.29, para 26]

“26. With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insist on the State making regular and

proper recruitments and is bound not to encourage or

shut its eyes to the persistent transgression of the rules

of regular recruitment. The direction to make

permanent -- the distinction between regularization and

making permanent, was not emphasized here -- can

only encourage the State, the model employer, to flout

its own rules and would confer undue benefits on a few

at the cost of many waiting to compete. With respect,

the direction made in paragraph 50 of State of Haryana

v. Piara Singh: (1992) 4 SCC 118 are to some extent

inconsistent with the conclusion in paragraph 45

therein. With great respect, it appears to us that the last

of the directions clearly runs counter to the

constitutional scheme of employment recognized in the

earlier part of the decision. Really, it cannot be said that

W.P.(C) No. 4061/2013 Page 7 of 17

this decision has laid down the law that all ad hoc,

temporary or casual employees engaged without

following the regular recruitment procedure should be

made permanent.”

21. It was furthermore opined: [Umadevi (3) Case (supra),

SCC p.32, para 33]

“33. It is not necessary to notice all the decisions of this

Court on this aspect. By and large what emerges is that

regular recruitment should be insisted upon, only in a

contingency an ad hoc appointment can be made in a

permanent vacancy, but the same should soon be

followed by a regular recruitment and that

appointments to non-available posts should not be taken

note of for regularization. The cases directing

regularization have mainly proceeded on the basis that

having permitted the employee to work for some

period, he should be absorbed, without really laying

down any law to that effect, after discussing the

constitutional scheme for public employment.”

22. Taking note of some recent decisions of this Court, it

was held that the State does not enjoy a power to make

appointments in terms of Article 162 of the Constitution of

India. It further quoted with approval a decision of this Court

in Union Public Service Commission v. Girish Jayanti Lal

Vaghela:(2006) 2 SCC 482 in the following terms: (SCC p.

490, para 12)

“The appointment to any post under the State can only

be made after a proper advertisement has been made

inviting applications from eligible candidates and

holding of selection by a body of experts or a specially

constituted committee whose members are fair and

impartial through a written examination or interview or

some other rational criteria for judging the inter se

merit of candidates who have applied in response to the

advertisement made. A regular appointment to a post

under the State or Union cannot be made without

issuing advertisement in the prescribed manner which may in some cases include inviting applications

from the employment exchange where eligible

W.P.(C) No. 4061/2013 Page 8 of 17

candidates get their names registered. Any regular

appointment made on a post under the State or Union

without issuing advertisement inviting applications

from eligible candidates and without holding a proper

selection where all eligible candidates get a fair chance

to compete would violate the guarantee enshrined under

Article 16 of the Constitution.”

It was clearly held: [Umadevi (3) case (supra), SCC

p.35, para 41]

“These binding decisions are clear imperatives that

adherence to Articles 14 and 16 of the Constitution is a

must in the process of public employment.”

(emphasis added)

III“ Relevant para from Kendriya Vidyalaya Sangathan

and Others (supra)

10. Had such regular vacancies been created, appellants

would have been directed to be appointed on All India Basis.

Respondents did not get their names registered in the Central

Employment Exchange. Keeping in view the nature of the job

and in particular that the posts are transferable throughout the

country, an opportunity within the meaning of

Articles 14 and 16 of the Constitution of India would mean an

opportunity to all who are eligible therefore. Advertisement

was issued for a limited purpose, namely, for leave vacancies,

local employment exchanges were contacted only for filling of

such posts and not regular posts.” (underlining added)

IV “Relevant paras 35 and 36 from the case of Mamata

Mohanty (supra)

35. At one time this Court had been of the view that calling

the names from Employment Exchange would curb to certain

extent the menace of nepotism and corruption in public

employment. But, later on, came to the conclusion that some

appropriate method consistent with the requirements of

Article 16 should be followed. In other words there must be a

notice published in the appropriate manner calling for

applications and all those who apply in response thereto

should be considered fairly. Even if the names of candidates

are requisitioned from Employment Exchange, in addition

W.P.(C) No. 4061/2013 Page 9 of 17

thereto it is mandatory on the part of the employer to invite

applications from all eligible candidates from the open market

by advertising the vacancies in newspapers having wide

circulation or by announcement in Radio and Television as

merely calling the names from the Employment Exchange

does not meet the requirement of the said Article of the

Constitution. (Vide Delhi Development Horticulture

Employees' Union v. Delhi Admn., : AIR 1992 SC 789, State of

Haryana v. Piara Singh : AIR 1992 SC 2130, Excise Supdt. v.

K.B.N. Visweshwara Rao : (1996) 6 SCC 216, Arun Tewari

v. Zila Mansavi Shikshak Sangh : AIR 1998 SC 331, Binod

Kumar Gupta v. Ram Ashray Mahoto : AIR 2005 SC

2103, National Fertilizers Ltd. v. Somvir Singh : AIR 2006 SC

2319, Telecom District Manager v. Keshab Deb : (2008) 8

SCC 402, State of Bihar v. Upendra Narayan Singh : (2009) 5

SCC 65 and State of M.P. v. Mohd. Abrahim : (2009) 15 SCC

214.)

36. Therefore, it is a settled legal proposition that no person

can be appointed even on a temporary or ad hoc basis without

inviting applications from all eligible candidates. If any

appointment is made by merely inviting names from the

Employment Exchange or putting a note on the Notice Board

etc. that will not meet the requirement of Articles 14 and 16 of

the Constitution. Such a course violates the mandates of

Articles 14 and 16 of the Constitution of India as it deprives

the candidates who are eligible for the post, from being

considered. A person employed in violation of these

provisions is not entitled to any relief including salary. For a

valid and legal appointment mandatory compliance of the said

Constitutional requirement is to be fulfilled. The equality

clause enshrined in Article 16requires that every such

appointment be made by an open advertisement as to enable

all eligible persons to compete on merit.” (underlining added)

4. No doubt, it would appear that I am bound by the judgment of

the Division Bench in this case by which the judgment passed by this

Court on 9.2.2015 has been set aside and thereby the Division Bench

has held that policy of regularization of contractual appointees by the

respondent no.1 is not illegal, however, the issue to be examined is

that whether the Division Bench judgment would bind this Court in

case the Division Bench has not noticed the direct ratios of the four

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judgments of the Supreme Court reproduced above, and especially in

the case of Official Liquidator (supra) which is identical to the issue

in hand of dis-entitlement of State or its organization to regularize

contractual appointees. By examining the case on merits of allowing

the writ petition, I would be following the judgment of the Division

Bench dated 30.4.2015 but possibly I may be violating the direct

ratios of the four judgments of the Supreme Court which have been

quoted above.

5. I have put my predicament to the counsel for the parties that if

I would be following the Division Bench judgment of this Court

dated 30.4.2015 in LPA No.260/2015, then, I may possibly be

violating the ratios of the four judgments of the Supreme Court stated

above and which categorically hold that contractual appointees

appointed after advertisement cannot be regularized if appointments

are pursuant to the advertisement which are issued only for

contractual term based appointments.

6. Counsel for the parties will assist the Court as to the procedure

to be followed by this Court in peculiar facts of this case as to

whether this Court should decide the matter or whether this Court

ought to refer the matter to a larger Bench than the Division Bench

which has passed the judgment dated 30.4.2015 in LPA No.260/2015

7. List on 1st July, 2015.”

5. A reference to the Order dated 29.5.2015 shows that the

predicament of this Court that the Division Bench judgment dated 30.4.2015

in LPA No. 260/2015 if was held to be binding, then the same would lead to

violation by this Court of the specific and direct ratios of as many as four

judgments of the Supreme Court which are referred to in sub-paras (i) to (iv)

of para 2 of the Order dated 29.5.2015 and none of which four judgments

find reference in the Division Bench judgment dated 30.4.2015, and which

four judgments followed the ratio laid down by the Supreme Court in the

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case of Umadevi (supra) by holding that no policy of regularization of

contractual employees can be taken out unless the contractual employees

were called in open competition through advertisements for posts which

were to be regular and not contractual period posts. I may note that it is an

admitted fact appearing on record that persons who are recruited through the

policy dated 20.7.2010 of the respondent no.1/Bank were recruited not by

advertisements of the posts as regular and permanent posts but

advertisements were only for appointment of persons for limited periods to

the contractual posts, and such a policy as per the four Supreme Court

judgments stated in para 2 of the Order dated 29.5.2015 could not have been

made by the respondent no.1/Bank.

6. In view of the aspect that no doubt the judgment of the Division

Bench of this Court would be binding on me, but I would in fact be bound

equally by the four judgments of the Supreme Court noted in para 2 of the

Order dated 29.5.2015 and which have not been referred to by the Division

Bench in its judgment dated 30.4.2015, hence after noticing of the aspect I

request assistance of the counsels for the parties as to what should be the

course of action which has to be adopted by this Court. Today, the review

petitioners/petitioners state that they agree that the matter be referred to a

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Full Bench of this Court as to whether this Court is bound and must decide

the writ petition on merits because of the judgment of the Division Bench

dated 30.4.2015 or this Court is not bound ie the Division Bench judgment

dated 30.4.2015 is per incuriam in view of the four direct judgments of the

Supreme Court on this subject/aspect and as referred to in para 2 of the

Order dated 29.5.2015.

7. Counsel for respondent no.1/Bank very vehemently argues that

this Court is bound by the judgment of the Division Bench dated 30.4.2015

and therefore this matter cannot be referred to the Full Bench, however, I

have already narrated the facts in detail above and it is noted that by

deciding the writ petition on merits though I would be following the

judgment of the Division Bench dated 30.4.2015, but I will be definitely

violating the direct and categorical ratios of the four judgments of the

Supreme Court as stated in para 2 of the Order dated 29.5.2015, and

therefore, I do not agree with the counsel for the respondent no.1/Bank that

the present matter so far as the issue of law is concerned cannot be referred

to a Full Bench. Counsel for the respondent no.1/Bank in support of his

arguments refers to a judgment of the Supreme Court in the case of Bharat

Petroleum Corpn. Ltd. Vs. Mumbai Shramik Sangha and Ors. (2001) 4

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SCC 448. In this judgment the Supreme Court has held that a bench of a

lesser number of judges of the Supreme Court cannot go against a judgment

of a larger number of judges even if the judgment of the larger number of

judges is doubted by the Division Bench of lesser number of judges. In this

judgment the Supreme Court holds that Two-Judge Bench is bound by the

Constitution Bench of Five Judges even if the judgment of the Constitution

Bench of Five Judges is doubted by the Division Bench of Two Judges.

8. In my opinion, the contention urged on behalf of respondent

no.1/Bank is unsound by placing reliance on the judgment of Bharat

Petroleum’s case (supra) for various reasons. Firstly, in the present case, it

is not the issue that a judgment of a larger bench is not held to be binding on

this Court, but what is in issue is whether the categorical ratios laid down in

four Supreme Court judgments prevail or the ratio of the judgment of a

Division Bench of a High Court prevails though the Division Bench

judgment of the High Court does not notice the ratios of the four categorical

judgments of the Supreme Court laying down the ratio that contractual

employees cannot be regularized if contractual employees have been

appointed against posts which were not advertised as regular and permanent

posts. Also, in fact, the judgment relied upon by the respondent no.1/Bank

W.P.(C) No. 4061/2013 Page 14 of 17

goes against the respondent no.1/Bank because it says that a Division Bench

of lesser number of judges of the Supreme Court cannot violate the ratio of a

Constitution Bench judgment of the Supreme Court, and if that is so, then

surely a Division Bench of a High Court cannot cause violation of the four

judgments of the Supreme Court as referred to in para 2 of the Order dated

29.5.2015.

9. The procedural provisions which are applicable to this Court for

referring the matter to a larger bench are contained in Punjab High Court

Rules Volume 5 as applicable to this Court and the relevant provision in this

regard is contained in Chapter 3 Part-B, Rule 1 last proviso (b) and which

provision reads as under:-

“1. Cases ordinarily to be heard by a single Judge-Subject to the

proviso hereinafter set forth the following classes of cases shall

ordinarily be heard and disposed of by a Judge setting alone:

……..

Provided that-

(a) a Judge may, if he thinks fit, refer any matter mentioned in any of

the clauses of this rule other than clauses (x), (xviii) or (xx) and

with the sanction of the Chief Justice, any matter mentioned in

clauses (xvii) and (xx) to a Division Bench of two judges;

(b) a Judge before whom any proceeding mentioned in clause (xviii) is

pending, may, with the sanction of the Chief Justice, obtain the

assistance of any other Judge or Judges for the hearing and

determination of such proceeding or of any question or questions

arising therein.” (underlining added)

W.P.(C) No. 4061/2013 Page 15 of 17

10. A reference to the aforesaid Rule as applicable to this Court

shows that on issues such as the present, as to whether this Court should

decide cases which would result in direct violation of the ratios laid down by

the Supreme Court in its judgment, and which would be done if this Court

has to decide the writ petition on merits pursuant to the judgment of the

Division Bench dated 30.4.2015, is an issue which has necessarily to be

determined by a Full Bench of this Court inasmuch as, the direct and

categorical ratios of the four judgments of the Supreme Court stated in para

2 of the Order dated 29.5.2015 have escaped the notice of the Division

Bench which decided LPA No. 260/2015 by its judgment dated 30.4.2015.

At the cost of repetition, it may be noted that the Supreme Court in the four

judgments referred to in para 2 of the Order dated 29.5.2015 has

categorically laid down the ratio that contractual employees who are

appointed not by means of advertisements for their employment to regular

and permanent posts, cannot be regularized by means of an administrative

policy and such a direction for regularization would clearly be violative of

the provisions of Articles 14 and 16 of the Constitution of India. The

relevant paras of the four judgments of the Supreme Court stated in para 2 of

the Order dated 29.5.2015 are contained in para 3 of the said Order dated

29.5.2015, and which para has already been reproduced above.

W.P.(C) No. 4061/2013 Page 16 of 17

11. The following issues are thus framed for decision by a Full

Bench of this Court in terms of the provision contained in Chapter 3 Part-B,

Rule 1 last proviso (b) of the Punjab High Court Rules Volume 5:-

(i) “Whether a Single Judge of this Court is bound to decide a writ

petition on merits on the basis of a judgment of a Division

Bench of this Court setting aside the judgment of the Single

Judge, although, the decision of the case on merits would have

the effect of a Single Judge of this Court causing a violation of

the direct and the categorical ratios of various judgments of the

Supreme Court as referred to in paras 2 and 3 of the Order

passed by this Court dated 29.5.2015. The specific issue is

whether the Government or arm of the Government or an

authority of the Government under Article 12 of the

Constitution of India can frame a policy to regularize

contractual employees and which contractual employees though

have been called by advertisements, but, the advertisements

were not for employment to regular and permanent posts but

were for employment only for contractual periods in contractual

posts.?”

AND

(ii) “Whether a Division Bench judgment of this Court which does

not deal with the direct and categorical ratios of the judgments

of the Supreme Court in the cases of (i) Official Liquidator Vs.

Dayanand & Ors. (2008) 10 SCC 1; (ii) National Fertilizers

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Ltd. and Others Vs. Somvir Singh (2006) 5 SCC 493; (iii)

Kendriya Vidyalaya Sangathan and Others Vs. L.V.

Subramanyeswara and Another (2007) 5 SCC 326; (iv) State

of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC

436, is not per incuriam with respect to its ratio and operation

/conclusion, and which judgment if followed will result in a

Single Judge of this Court violating the ratios of the aforesaid

four judgments of the Supreme Court?”

12. Let this file be placed before Hon’ble the Chief Justice for

constitution of the Full Bench for answering the questions as stated above

and since the Full Bench will be deciding the validity of the ratio laid down

by the Division Bench of this Court in the judgment dated 30.4.2015 in LPA

No. 260/2015, Hon’ble the Chief Justice may kindly be pleased to constitute

the Full Bench having Hon’ble Judges who are not the Hon’ble Judges who

constituted the Benches which passed the judgments dated 30.4.2015 and

9.2.2015. Pursuant to the orders of Hon’ble the Chief Justice, let the file of

this writ petition be placed before the Full Bench of this Court on 30th

October, 2015.

SEPTEMBER 11, 2015 VALMIKI J. MEHTA, J.

ib