NEELIMA SRIVASTAVA versus THE STATE OF UTTAR PRADESH & ORS.

[2021] 8 S.C.R. 167

NEELIMA SRIVASTAVA

THE STATE OF UTTAR PRADESH & ORS.

(Civil Appeal No. 4840 of 2021)

AUGUST 17, 2021

[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]

Service law: Regularisation of service – Entitlement to –Appellant appointed as temporary Music Teacher on leavevacancy – Appointment was to last till the permanent incumbentre-joined the service – Incumbent employee never returned andthe appellant continued in service from 1984 to 2021 – In between,the terms of the appointment order were modified by providing thatthe appointment was to last till the regular incumbent joined backor 20.05.1986, whichever was earlier and order was issueddispensing with the services of the appellant, however, the HighCourt stayed the operation of the said order – Appellant then soughtregularisation in accordance with the Regularisation Rules but noaction taken – Writ petition by the appellant – Single Judge heldthat the appellant would continue on her post and her case shall beconsidered for regularization – Said judgment attained finality –Subsequently, appellant’s claim for regularization rejected –Appellant filed another writ petition before the High Court, whereinthe Single Judge allowed her writ petition holding that since theearlier order of the Single Judge attained finality, refusal to applyRegularisation Rules, 2001 was unlawful – In terms thereof, theState regularised services of the appellant – In appeal, there against,the Division Bench held that since the appellant continued on thepost on the basis of the interim order passed by the High Court inearlier round of litigation, her appointment is litigious appointmentand thus she had no enforceable right to hold the post legally – Onappeal, held: Appointment of the appellant can only be construedas irregular and not illegal – Rejection of her claim forregularization on the ground of her appointment being illegal ispatently erroneous – Judgment which attained finality crystallizedthe right of the appellant for regularization – It is not permissiblefor the parties to re-open the concluded judgments of the Court asthe same tantamounts to an abuse of the process of the Court and

CDEF

Ahas far reaching adverse effect on the administration of justice –Further, the writ Petition cannot be filed collaterally to set asidethe judgment of the same High Court rendered in an earlier roundof litigation ignoring the principles of res-judicata and doctrine offinality – Thus, the judgment passed by the Division Bench notsustainable and set aside – Appellant entitled to be regularised withBall consequential benefits.

Judgment/Order:

Over-ruling principle and reversal of the judgment –Explanation of – Held: There is distinction between the two –CJudgment itself has to be assailed and got rid of in manner knownto or recognized by law – Mere over-ruling of the principles, onwhich the earlier judgment was passed, by subsequent judgmentof higher forum will not have the effect of uprooting the finaladjudication between the parties and set it at naught – Mere over-ruling of the principles by subsequent judgment will not dilute theDbinding effect of the decision on inter-parties.

Re-opening of concluded judgment – Permissibility of –Held: It is not permissible for the parties to re-open concludedjudgment of the Court – It may tantamount to an abuse of the processof the Court and also have far reaching adverse effect on theEadministration of justice.

Allowing the appeal, the Court

HELD: 1.1 Applying the tests laid down in *State ofKarnataka & Ors. vs. M.L. Kesari & Ors. the appointment of theFappellant can only be construed as irregular and not illegal. Thefinding recorded by the Division Bench of the High Court inrespect of nature of the appointment of the appellant being illegalis thus not liable to be sustained. Her rejection of the claim forregularization on the ground of her appointment being illegal bythe impugned order is patently erroneous. The other conditionGof having worked for 10 years or more also stands fully satisfiedas the appellant at the time of consideration of her regularizationhad completed almost 23 years of service. [Para 24][178-F-H;179-A]

State of Karnataka & Ors. v. M.L. Kesari & Ors. (2010)H9 SCC 247 : [2010] 9 SCR 543 – relied on.

1.2 Writ Petition No. 3316 (SS) of 1986 filed by the appellantbefore the High Court challenging the modification in the termsof her appointment was stayed vide order dated 20.05.1986 duringthe pendency of this Writ Petition before the High Court. Sheagain approached the High Court by filing Writ Petition No. 7890of 2003 challenging the order passed by the Joint Director ofEducation rejecting her claim of regularization. The two pendingWrit Petitions were clubbed by the High Court and disposed ofvide common judgment and order dated 23.01.2006 with thefinding that the appellant is having all the requisite qualificationand has worked for 21 years and she might have been appointedin leave arrangement but by virtue of her satisfactory services,she has now acquired Right to hold the post and continued inthe institution and at this stage, it would not be appropriate totreat her as an appointee in stop-gap arrangement andaccordingly directed the State-respondent to consider forregularization under the relevant Regularization Rules. [Para26][179-B-E]

1.3 This Judgment attained finality inter-se between theparties as admittedly the State-respondent did not put the sameto challenge before any higher forum. The said judgment whichattained finality crystallized the right of the appellant forregularization. When the same was refused by the Joint Directorof Education, it was again challenged by filing Writ Petition No.8597 of 2010. Single Judge vide order dated 15.05.2014 allowedthe Writ Petition with the finding that in the earlier round oflitigation, the High Court had held that she was entitled to holdthe post and since the said judgment become final andunchallenged, the Regularization Rules, 2001 were applicable andrefusal to apply the said Rules was unlawful. [Para 27][179-E-G]

1.4 Admittedly, when the judgment dated 23.01.2006 waspassed by the High Court in the earlier two Writ Petitions filedby the appellant, the dictum of Umadevi (3) was not even inexistence as the said judgment was rendered subsequently on10.04.2006. The Division Bench of the High Court haserroneously understood the dictum of this Court in Umadevi (3).The Constitution Bench has nowhere directed that service

Amatters that stand concluded inter partes, ought to be re-opened.On the contrary, the Constitution Bench clarified as under thatthose decisions which run counter to the principle settled in thisdecision, or in which directions running counter to what has beenheld herein, will stand denuded of their status as precedents. Itbecomes absolutely clear from the above clarification that earlierBdecisions running counter to the principles settled in the decisionof Umadevi (3) will not be treated as precedents. It cannot meanthat the judgment of competent Court delivered prior to thedecision in Umadevi (3) and which has attained finality and isbinding inter se between the parties need not be implemented.CMere over-ruling of the principles, on which the earlier judgmentwas passed, by subsequent judgment of higher forum will nothave the effect of uprooting the final adjudication between theparties and set it at naught. There is distinction between over-ruling principle and reversal of the judgment. The judgment inquestion itself has to be assailed and got rid of in manner knownDto or recognized by law. Mere over-ruling of the principles by asubsequent judgment will not dilute the binding effect of thedecision 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.E

1.5 The Division Bench of the High Court proceeded as ifit was hearing an appeal against the judgment dated 23.01.2006of the Single Judge which had already attained finality. Appealfiled under the Rules of the Court was filed against the judgmentdated 15.05.2014 rendered in Writ Petition No. 8597 of 2010. ItFis well settled principle of law that Letters Patent Appealwhich is in continuation of Writ Petition cannot be filedcollaterally to set aside the judgment of the same High Courtrendered in an earlier round of litigation ignoring the principlesof res-judicata and doctrine of finality. [Para 32][181-F-H]G1.6 It is very well settled that it is not permissible for theparties to re-open the concluded judgments of the Court as thesame may not only tantamount to an abuse of the process of the

Court but would have far reaching adverse effect on theadministration of justice. [Para 36][182-F]

Naresh Shridhar Mirajkar & Ors. v. State ofMaharashtra & Anr. 1967 AIR SC 1 : [1966] 3SCR 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 ofthe learned Single Judge dated 15.05.2014 vide order dated31.10.2015 respondents regularized the services of appellantsubject to the outcome of the proceedings in the LPA and theappellant now stand superannuated having attained the age ofsuperannuation after about 33 years of continuous service. [Para37][182-F-G]

1.8 feeble attempt was made by the counsel for the State-respondent to persuade this Court not to interfere in the matteron the ground that the services of the appellant were terminatedvide letter dated 19.05.1986 which was never challenged as suchher services stood terminated. Such submission cannot beaccepted at this stage for the simple reason that it was open forthe State to have advanced this contention before the Single Judgein the two Writ Petitions decided vide judgment and order dated23.01.2006. Once this argument was never made before the SingleJudge in the proceedings which has attained finality, therespondent cannot be permitted to raise this argument in thisappeal. [Para 38][183-A-C]1.9 The impugned judgment passed by the Division Benchof High Court is not liable to be sustained and is hereby set aside.The appellant is held entitled to be regularized with allconsequential benefits which may be extended to her within thestipulated 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; ViceChancellor Anand Agriculture University v. KanubhaiNanubhai Vaghela and Anr. [2021] AIR 3529; GujaratAgricultural University v. Rathod Labhu Bechar & Ors.(2001) 3 SCC 574 : [2001] 1 SCR 413 – referred to.

ACase Law Reference

From the Judgment and Order dated 07.05.2018 of the High CourtDof Judicature at Allahabad, Lucknow Bench, in Special Appeal No.743of 2014.

Nikhil Goel, Ms. Preetika Dwivedi, Santosh Krishnan, Advs. forthe Appellant.

Harish Pandey, Rajiv Yadav, Advs. for the Respondents.EThe Judgment of the Court was delivered by

KRISHNA MURARI, J.

1. Leave granted.

2. This appeal takes exception to the judgment and order datedF07.05.2018 passed by the Division Bench of Allahabad High Court(hereinafter referred to as ‘the High Court’) allowing the Special Appealfiled by the State-Respondent and setting aside the judgment and orderdated 15.05.2014 passed in Writ Petition filed by the appellant herein.

3. The appellant is Post Graduate from Kanpur University andGalso holds the certificate of Sangit Prabhakar and Senior Diploma fromthe Prayag Sangit Samiti, Allahabad. On 23.07.1984, she was appointedas Assistant Music Teacher in Government Inter College, Mahmoodabad,District Sitapur on leave vacancy as the regular incumbent went onleave without pay. The terms of the appointment order specified that theHappointment was temporary and meant to last till the permanent incumbent

rejoined the service. The educational qualifications of the appellantsatisfied the requirements prescribed under the relevant service rules.Vide letter dated 16.05.1986, the terms of the appointment order dated23.07.1984 was modified by providing that the appointment was to lasttill the regular incumbent joined back or 20.05.1986, whichever was earlier.

4. Aggrieved by the said modification in the terms of appointment,the appellant filed Writ Petition No. 3316 (SS) of 1986 before the HighCourt challenging the modified terms of the appointment. On 19.05.1986,the management of the College issued another order dispensing with theservices of the appellant w.e.f. 20.05.1986.

5. learned Single Judge vide order dated 20.05.1986 while issuingnotice to the respondents stayed the operation of the order dated16.05.1986 modifying the terms of the appointment order. It was furtherprovided that the interim order shall automatically lapse on return of thepermanent incumbent Smt. Safia Khatoon.

6. It so happened that Smt. Safia Khatoon did not rejoin the service,as result her services were terminated vide order dated 16.01.1988. Itis undisputed fact that the respondents never undertook any steps forfilling up the post and the appellant was continued on the said post withoutany interruption till 2020.

7. On 17.08.2001, the State of Uttar Pradesh Promulgated theUP Secondary Education Department Regularization of Ad hocappointments on the Post of Trained Graduate Teachers Rules, 2001(for short known as ‘Regularization Rules, 2001). On 02.11.2001, theappellant made representation to the authorities seeking regularizationin accordance with the said Rules. When no action was taken on arepresentation for substantial period of time, she approached the HighCourt again by filing Writ Petition No. 7890 (SS) of 2003. This WritPetition came to be clubbed with the earlier Writ Petition No. 3316 (SS)of 1986 filed by the appellant and were heard together and disposed ofby learned Single Judge of the High Court by making followingobservations :-“After hearing learned counsel for the parties and perusingthe record, it is abundantly clear that the petitioner has morethan 21 years experience working as Assistant Teacher Music,LT Grade in the Government Inter Collge, Mahmoodabad,Sitapur. As per documents placed on record, she is having all

Arequisite educational qualification as required in theIntermediate Education Act. She might have been appointedin leave arrangement but by virtue of his (sic her) continuoussatisfactory services, she has now acquired right to holdthe post and continue in the institution, and at this stage, itwould not be appropriate to treat her as an appointee in stop-Bgap arrangement.”

8. The operative portion of the aforesaid judgment reads as under:-

“In view of above, the Writ Petitions are allowed. Theconsequences shall follow. The petitioner shall be allowed toCcontinue on the post, held by her. Her case shall be consideredfor regularization under the relevant regularization Rules andappropriate orders shall be passed within three months fromthe date of presentation of certified copy of the judgmentand order.”

D9. It is pertinent to point out at this stage that the aforesaid commonjudgment rendered in the two Writ Petitions filed by the appellant attainedfinality as it was not put to challenge before any higher forum.

10. Vide order dated 29.01.2007, the Joint Director of Educationconsidered the case of the petitioner (appellant herein) and despiteEobservations contained in the judgment of the learned Single Judgerejected her claim for regularization. Her claim for regularization wasmainly rejected on the ground that since her initial appointment was onleave vacancy for which there was no provision under the 2001 Rules,as such she cannot be held to be entitled to the benefit conferred byRegularization Rules, 2001.F

11. This order was again put to challenge by the appellant by filingyet another Writ Petition No. 8597 of 2010. After hearing learned counselfor the parties, learned Single Judge vide judgment and order dated15.05.2014 allowed the same on the following reasonings :-i.Petitioner has been working since 23.07.1984 and in the earlierGround of litigation, the High Court had held her entitled tohold the post. The judgment dated 23.01.2006 had becomefinal and was unchallenged.

ii.Regularization Rules, 2001 were applicable to the petitioner.The earlier judgment had found petitioner to be entitled toH

hold the post. Respondents’ refusal to apply the RegularizationRules, 2001 was accordingly unlawful.

iii.A quietus needs to be given to long drawn litigation and thepetitioner is entitled for regularization.

12. The learned Single Judge placed reliance upon the ConstitutionBench Judgment of this Court in the case of Rudra Kumar Sain andOrs. vs. Union of India and Ors.[1 ]and in particular the followingobservations made in paragraph 20 of the said Constitution BenchJudgment :-

“In the service jurisprudence, person who possesses the requisitequalification for being appointed to particular post and then he isappointed with the approval and consultation of the appropriateauthority and continues in the post for fairly long period, thensuch an appointment cannot be held to be ‘stopgap or fortuitousor purely ad hoc’.”

13. The learned Single Judge found that the appellant has beenteaching since 23.07.1984 and in an earlier judgment, the High Courthas already held her appointment not being stopgap arrangement andfurther she has right to the post which has attained finality having notbeen challenged the Regularization Rules, 2001 are applicable to suchcases and refusal to give benefit of the said Rules is not lawful exerciseof the power by Joint Director and since no regular appointment hasbeen made, she is fully eligible and qualified to be appointed as such.

14. Vide order dated 31.10.2015, in terms of the judgment of thelearned Single Judge dated 15.05.2014, the respondent regularized theservices of the appellant and simultaneously also filed Special Appealbefore Division Bench.

15. Vide order dated 07.05.2018, impugned in this appeal theDivision Bench allowed the Special Appeal preferred by the respondentsherein and set aside the judgment of the learned Single Judge. The DivisionBench was of the view that since the appellant herein was appointed inleave vacancy on 23.07.1984 and her services came to an end on20.05.1986 and she continued on the post on the basis of the interimorder passed by the High Court in earlier round of litigation and herappointment is litigious appointment and thus she has no enforceableright to hold this post legally in her favour.

A16. Heard Shri Nikhil Goel, learned counsel for the appellant andShri Harish Pandey, learned counsel for the State-Respondent. We havealso gone through the impugned judgment as also the record of the casewith the assistance of the learned counsel for the parties.

17. The Special Appeal filed by the State was allowed by theBDivision Bench of the High Court mainly on the reasoning that thepetitioner (appellant herein) was employed on temporary basis againstthe leave vacancy and since the Service Rules, 1983 did not permit anyappointment on leave vacancy, the appointment of the petitioner (appellantherein) was illegal appointment of ‘stop-gap nature’. Analyzing theRegularization Rules, 2001 the Division Bench found that there was noCprovision for regularization of an appointment made against the leavevacancy.

18. Relying upon the observations made by this Court in the caseof Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.[2]whereinit was held that since the initial appointment of the petitioner (appellantDherein) was dehors the Rules and thus was illegal and her appointmentwas litigious appointment and she continued on the strength of an interimorder passed by the High Court on 20.05.1986, she was not entitled forregularization.

19. The Constitution Bench of this Court in the case of UmadeviE(3) has held that temporary, contractual, casual or daily-wageemployee does not have legal right to be made permanent unless theappointment has been made in accordance with the terms of the relevantservice rules governing the said appointment and in adherence of Articles14 and 16 of the Constitution. This Court however made one exceptionFto the above by observing in paragraph 53 of the reports as under :-

“53. One aspect needs to be clarified. There may be cases whereirregular appointments (not illegal appointments) as explained inS.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N.Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N.GNagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3SCR 937] and referred to in paragraph 15 above, of duly qualifiedpersons in duly sanctioned vacant posts might have been madeand the employees have continued to work for ten years or morebut without the intervention of orders of courts or of tribunals.The question of regularization of the services of such employeesmay have to be considered on merits in the light of the principlessettled by this Court in the cases above referred to and in the lightof this judgment. In that context, the Union of India, the StateGovernments and their instrumentalities should take steps toregularize as one time measure, the services of such irregularlyappointed, who have worked for ten years or more in dulysanctioned posts but not under cover of orders of courts or oftribunals and should further ensure that regular recruitments areundertaken to fill those vacant sanctioned posts that require to befilled up, in cases where temporary employees or daily wagersare being now employed. The process must be set in motion withinsix months from this date. We also clarify that regularization, ifany already made, but not subjudice, need not be reopened basedon this judgment, but there should be no further by-passing of theconstitutional requirement and regularizing or making permanent,those not duly appointed as per the constitutional scheme.”

20. The above quoted paragraph 53 from the pronouncement inthe case of Umadevi(3) has carved out an exception to the generalprinciples against ‘regularization’ in case, the following conditions arefulfilled :

i.The incumbent should have worked for 10 years or more on aduly sanctioned post without the benefit or protection of theinterim order of any Court or Tribunal.

ii.The appointment of such employee should not be illegal, evenif irregular.

21. Applying the above tests laid down in the judgment of Umadevi(3), carving an exception to the general principles against ‘regularization’,the Division Bench of the High Court has held that since the appointmentof the appellant was dehors the rules and without undergoing the processof open competitive selection, as such the same is illegal and since shecontinued in service under the cover of the order passed by the learnedSingle Judge of the High Court, her appointment is litigious and thus isnot covered by exception carved out in the case of Umadevi(3).

22. Referring to the observations made in the case of Umadevi(3) paragraph 53 quoted herein above, this Court in the case of State of

ABC

AKarnataka & Ors. vs. M.L. Kesari & Ors.[3 ]has laid down the conditionsto test when the appointment will be considered illegal and when it shallbe considered to be irregular. It may be relevant to extract paragraph 7from the said report, which reads as under:-

“It is evident from the above that there is an exception to theBgeneral principles against `regularization’ enunciated in Umadevi,if the following conditions are fulfilled :

(i) The employee concerned should have worked for 10 years ormore in duly sanctioned post without the benefit or protection ofthe interim order of any court or tribunal. In other words, theCState Government or its instrumentality should have employedthe employee and continued him in service voluntarily andcontinuously for more than ten years.

(ii) The appointment of such employee should not be illegal, evenif irregular. Where the appointments are not made or continuedDagainst sanctioned posts or where the persons appointed do notpossess the prescribed minimum qualifications, the appointmentswill be considered to be illegal. But where the person employedpossessed the prescribed qualifications and was working againstsanctioned posts, but had been selected without undergoing theprocess of open competitive selection, such appointments areEconsidered to be irregular.”

23. In the case of the appellant, it is undisputed that she wasappointed by the Regional Inspectress of Girls Schools, who is theprescribed appointing authority under the Uttar Pradesh SubordinateEducational (Trained Graduates Grade) Service Rules, 1983. EquallyFundisputed is the fact that she was appointed on sanctioned post andpossessed all the necessary prescribed qualifications under 1983, Rules.

24. Applying the tests laid down in State of Karnataka & Ors.Vs. M.L. Kesari & Ors. (Supra) the appointment of the appellant canonly be construed as irregular and not illegal. The finding recorded byGthe Division Bench of the High Court in respect of nature of theappointment of the appellant being illegal is thus not liable to be sustained.Her rejection of the claim for regularization on the ground of herappointment being illegal by the impugned order is patently erroneous.The other condition of having worked for 10 years or more also stands

H3 (2010) 9 SCC 247

fully satisfied as the appellant at the time of consideration of herregularization had completed almost 23 years of service.

25. The only question which now requires consideration is whetherher continuation on the post on the strength of the interim order passedby the High Court would dis-entitle her from regularization in view ofthe dictum in the case of Umadevi(3).

26. Writ Petition No. 3316 (SS) of 1986 filed by the appellantbefore the High Court challenging the modification in the terms of herappointment was stayed vide order dated 20.05.1986 during the pendencyof this Writ Petition before the High Court. She again approached theHigh Court by filing Writ Petition No. 7890 of 2003 challenging the orderpassed by the Joint Director of Education rejecting her claim ofregularization. The two pending Writ Petitions were clubbed by the HighCourt and disposed of vide common judgment and order dated 23.01.2006with the finding that the appellant is having all the requisite qualificationand has worked for 21 years and she might have been appointed in aleave arrangement but by virtue of her satisfactory services, she hasnow acquired Right to hold the post and continued in the institution andat this stage, it would not be appropriate to treat her as an appointee in astop-gap arrangement and accordingly directed the State-respondent toconsider for regularization under the relevant Regularization Rules.

27. This Judgment attained finality inter-se between the partiesas admittedly the State-respondent did not put the same to challengebefore any higher forum. The aforesaid judgment which attained finalitycrystallized the right of the appellant for regularization. When the samewas refused by the Joint Director of Education, it was again challengedby filing Writ Petition No. 8597 of 2010. learned Single Judge videorder dated 15.05.2014 allowed the Writ Petition with the finding that inthe earlier round of litigation, the High Court had held that she wasentitled to hold the post and since the said judgment become final andunchallenged, the Regularization Rules, 2001 were applicable and refusalto apply the said Rules was unlawful.

28. Admittedly, when the judgment dated 23.01.2006 was passedby 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 judgmentwas rendered subsequently on 10.04.2006.

A29. The Division Bench of the High Court has erroneouslyunderstood the dictum of this Court in Umadevi (3). The ConstitutionBench has nowhere directed that service matters that stand concludedinter partes, ought to be re-opened. On the contrary, in paragraph 54of the said decision, the Constitution Bench clarified as under:-

B“It is also clarified that those decisions which run counter to theprinciple settled in this decision, or in which directions runningcounter to what we have held herein, will stand denuded of theirstatus as precedents.”

30. It becomes absolutely clear from the above clarification thatCearlier decisions running counter to the principles settled in the decisionof Umadevi (3) will not be treated as precedents. It cannot mean thatthe judgment of competent Court delivered prior to the decision inUmadevi (3) and which has attained finality and is binding inter sebetween the parties need not be implemented. Mere over-ruling of theprinciples, on which the earlier judgment was passed, by subsequentDjudgment of higher forum will not have the effect of uprooting the finaladjudication between the parties and set it at naught. There is distinctionbetween over-ruling principle and reversal of the judgment. Thejudgment in question itself has to be assailed and got rid of in mannerknown to or recognized by law. Mere over-ruling of the principles by aEsubsequent judgment will not dilute the binding effect of the decision oninter-parties.

31. In an identical situation, this Court in Civil Appeal No. 4443 of2021 with Civil Appeal Nos. 4444 & 4445 of 2021 decided on 26.07.2021(Vice Chancellor Anand Agriculture University vs. KanubhaiFNanubhai Vaghela and Anr.) has rejected the argument advanced bythe appellant in the said case that the judgment of this Court dated18.01.2001 in Gujarat Agricultural University vs. Rathod LabhuBechar & Ors.[4]does not survive after the judgment of this Court inUmadevi(3). It was held in paragraph 11 as under:-

G“11. We have heard Mr. P.S. Patwalia, learned senior counsel forthe university and Mr. Nachiketa Joshi, learned counsel for therespondents. The main contention of the university is that afterthe judgment of this Court in Secretary, State of Karnataka andOrs. vs. Umadevi and Ors. 2, the respondents are not entitled for

H4 (2001) 3 SCC 574

regularization as there are no sanctioned posts available. Anothersubmission made on behalf of the appellant is that the judgment ofthis Court dated 18.01.2001 in Gujarat Agricultural University(supra) does not survive after the judgment of this Court inUmadevi. It is no doubt true that in Umadevi’s case, it has beenheld that regularization as one-time measure can only be inrespect of those who were irregularly appointed and have workedfor 10 years or more in duly sanctioned posts. However, in theinstant case the respondents are covered by the judgment of thisCourt in Gujarat Agricultural University (supra). This Courtapproved the proposed scheme of the State of Gujarat and directedregularization of all those daily wagers who were eligible inaccordance with the scheme phase-wise. The right to beregularized in accordance with the scheme continues till all theeligible daily-wagers are absorbed. Creation of additional postsfor absorption was staggered by this Court permitting the appellantand the State of Gujarat to implement the scheme phase-wise.We are not impressed with the submissions made on behalf of theuniversity that the judgment of this Court in Umadevi’s caseoverruled the judgment in Gujarat Agricultural University (supra).The judgment of this Court in Gujarat Agricultural University(supra) inter partes has become final and is binding on theuniversity. Even according to Para 54 of Umadevi’s case, anyjudgment which is contrary to the principles settled in Umadevishall be denuded of status as precedent. This observation at Para54 in Uma Devi’s case does not absolve the university of its dutyto comply with the directions of this Court in Gujarat AgriculturalUniversity (Supra).”32. The Division Bench of the High Court proceeded as if it washearing an appeal against the judgment dated 23.01.2006 of the learnedSingle Judge which had already attained finality. Appeal filed under theRules of the Court was filed against the judgment dated 15.05.2014rendered in Writ Petition No. 8597 of 2010. It is well settled principleof law that Letters Patent Appeal which is in continuation of WritPetition cannot be filed collaterally to set aside the judgment of the sameHigh Court rendered in an earlier round of litigation ignoring the principlesof res-judicata and doctrine of finality.

A33.By majority decision in Naresh Shridhar Mirajkar & Ors.vs. State of Maharashtra & Anr.[5]has laid down the law in this regardas under:-

“When Judge deals with matters brought before him for hisadjudication, he first decides questions, of fact on which the partiesBare at issue, and then applies the relevant law to the said facts.Whether the findings of fact recorded by the Judge are right orwrong, and whether the conclusion of law drawn by him suffersfrom any infirmity, can be considered and decided if the partyaggrieved by the decision of the Judge takes the matter up beforethe appellate Court.”C

34. In Rupa Ashok Hurra vs. Ashok Hurra & Anr.[6], whiledealing with an identical issue this Court held that reconsideration of thejudgment of this Court which has attained finality is not normallypermissible. The decision upon question of law rendered by this Courtwas conclusive and would bind the Court in subsequent cases. The CourtDcannot sit in appeal against its own judgment.

35. In Union of India & Ors. vs. Major S.P. Sharma & Ors.[7],a three-judge bench of this Court has held as under:-

“A decision rendered by competent court cannot be challengedEin collateral proceedings for the reason that if it is permitted to doso there would be “confusion and chaos and the finality ofproceedings would cease to have any meaning.”

36. Thus, it is very well settled that it is not permissible for theparties to re-open the concluded judgments of the Court as the sameFmay not only tantamount to an abuse of the process of the Court butwould have far reaching adverse effect on the administration of justice.

37. It is undisputed that in compliance of the judgment of thelearned Single Judge dated 15.05.2014 vide order dated 31.10.2015respondents regularized the services of appellant subject to the outcomeof the proceedings in the LPA and the appellant now stand superannuatedGhaving attained the age of superannuation after about 33 years ofcontinuous service.

5 1967 AIR SC 16 (1999) 2 SCC 103H7 (2014) 6 SCC 351

38. In the end, feeble attempt was made by the learned counselfor the State-respondent to persuade us not to interfere in the matter onthe ground that the services of the appellant were terminated vide letterdated 19.05.1986 which was never challenged as such her services stoodterminated. We are not ready to accept the proposition canvased bylearned counsel for the respondent at this stage for the simple reasonthat it was open for the State to have advanced this contention beforethe learned Single Judge in the two Writ Petitions decided vide judgmentand order dated 23.01.2006. Once this argument was never madebefore the learned Single Judge in the proceedings which has attainedfinality, the respondent cannot be permitted to raise this argument in thisappeal.

39. Analyzing the entire facts of the case and upon considerationof the matter and settled legal position, we are of the considered viewthat the impugned judgment passed by the Division Bench of High Courtis not liable to be sustained and is hereby set aside. The appeal, accordingly,stands allowed. The appellant is held entitled to be regularized with allconsequential benefits which may be extended to her within period ofthree months from today.

40. In the facts and circumstances, we, however, do not makeany order as to costs.

Nidhi Jain

Appeal allowed.