Neelima Srivastava Vs The State Of UP And Ors (2021): Mere Overruling Of Principles By A Subsequent Judgement Will Not Dilute Binding Effect Of Decision On Inter-Parties

Date Of Decision:
17.08.2021

Coram:
Justice S. Abdul Nazeer and Justice Krishna Murari

Parties To The Case:
Appellant: Neelima Srivastava
Respondent: The State of UP and Ors.

Subject

Regularization of a teacher employed on ad-hoc basis

Issue

Can the services of an ad-hoc employee be regularized under rules framed after the appointment, if all the conditions are fulfilled?

OVERVIEW

• The appellant was a Post Graduate and held prestigious certificates in the field of music.
• She was appointed as a music teacher in a government school on a temporary basis on 23.07.1984, since the original teacher had gone on a leave. Her appointment was to last till the original teacher joined.
• On 16.05.1986, a letter was issued to alter her terms of service. Under it, the term of appointment of the appellant was to be till the return of the original teacher or till 20.05.1986, whichever came earlier.
• Aggrieved by this, she filed a writ petition in the Allahabad High Court. The Court issued a notice on 20.05.1986 and ordered a stay on the execution of the updated terms of service, till the original teacher re-joined.
• Meanwhile, the original teacher never re-joined the service and her services were discontinued w.e.f.16.01.1988.
• On 17.08.2001, the State Government issued new rules to regularize the services of ad-hoc appointees. The appellant made a representation for the regularization of her services, but her no decision was taken on her application.
• Consequently, the appellant again filed a writ petition in the High Court. The single-judge clubbed the instant and the previous writ petitions of the appellant and ordered that the appellant be allowed to continue on her post and that she should be considered for regularization of services, as she possessed all the necessary qualifications and had served on that post for almost 20 years.
• This order was not challenged by the Government. Therefore, the order attained finality.
• In 2007, after the order was passed by the HC, the Joint Director of Education examined the application of the appellant and rejected it on the grounds that she was appointed on a leave vacancy for which there was no provision in the 2001 rules. Therefore, she could not be considered for the appointment.
• The appellant again filed a writ petition before the High Court in 2010. The Single Judge passed an order in 2014 in favour of the appellant and held that the refusal of regularization by the authorities was unlawful. The Single Judge based his decision on the decision given by the Constitutional Bench of the Supreme Court in Rudra Kumar Sain and Ors. Vs. Union of India and Ors.
• The State Government regularized the services of the appellant in 2015, but also made a Special Appeal before the Division Bench of the High Court.
• The Division Bench of the High Court, in 2018, set aside the order of the Single Judge and held that since the appointment of the appellant was made on a leave vacancy, with no provision for such appointment during the rules applicable then, it was an illegal appointment and she was not entitled to regularization of services. For this decision, the Bench referred to the decision of the Supreme Court in Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors
• The appellant filed a special leave petition before the Supreme Court, where the appeal now lies.

JUDGEMENT OF THE SUPREME COURT

• The Supreme Court analysed its decision in the Uma Devi case and found that as per the decision given in that case, while deciding that if the initial appointment was not in consonance with the rules, it would be deemed illegal.
• The decision also laid down an exception that if the person was present on the post for more than 10 years without any Court order, such appointment would be irregular, but not authorised.
• The Bench further looked into another case State of Karnataka & Ors. Vs. M.L. Kesari &Ors in which the rules laid down in Uma Devi case were further clarified. In that case, the SC held that if the person had worked for more than 10 years and they had the required qualifications, they can be considered for regularization as their employment would not be illegal.
• On the basis of the above decisions, the Supreme Court found the order of the Division Bench of the High Court to be untenable.
• On another question that whether the condition of more than 10 years of service without a court order would debar the appellant from regularization, the Court observed that the judgement given by the Single Judge of the High Court in 2006 expressly held that the appellant has a right to be regularized. Further, this judgement was not contested by the State, giving it finality, which meant that the right also became concrete.
• Further, in the Uma Devi case, the Supreme Court held that all orders not in consonance with the order in Uma Devi shall not be precedent. But the order by the Single Judge was passed before the Uma Devi order and the High Court order being a final order; it was held that the order in the Uma Devi case won’t be applicable to that order.
• The Court further used the reference of Rupa Ashok Hurra Vs. Ashok Hurra & Anr, in which it was held by the Supreme Court that, as a general rule, a decision of the court which has achieved finality cannot be reconsidered.
• The Court set aside the order of the Division Bench of the Allahabad High Court as being violative of the principles of res judicata and doctrine of finality and ordered that the services of the appellant be regularized with consequential benefits.

CONCLUSION

In conclusion, it can be said that mere over ruling of principles by a subsequent judgement will not dilute binding effect of decision on inter-parties. This case brought to fore one of the characteristic features of the Indian judiciary: the delay in justice. The appellant started the litigation in 1986, which finally after 35 years, concluded in the year 2021. While in the end justice was served, this factor remains a constant issue. This case gave finality to a very important discussion, that every overruling of principles decided in a previous case does not give rise to a new precedent and does not alter the liabilities of the parties of the previous case if that judgement had reached finality.

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