Union of India &
Anr. Vs. Arulmozhi Iniarasu & Ors.
J U D G M E N T
D.K. JAIN, J.:
two appeals, by special leave, are directed against the judgment and final order
dated 5th January, 2010 delivered by the High Court of Judicature at Madras,
whereby the High Court, in slight modification of the order passed by the
Central Administrative Tribunal, Madras Bench (for short "the
Tribunal"), has directed that the respondents shall be given a relaxation
of five years and three years respectively to SC/ST and OBC candidates in age
limit for being considered for selection to the post of Sepoy in the Central Excise
department, Ministry of Finance, Government of India. However, the High Court
has directed that the said relaxation would be applicable to those candidates who
were actually erstwhile employees of the said department.
of unnecessary details, the facts essential for adjudication of the present
appeals may be stated as follows: The respondents were engaged as part-time contingent
casual labourers-purely on temporary basis in the Office of the Commissioner of
Central Excise, Chennai Zone, in the year 1999. As per offer of appointment on record,
they were required to work on the basis of the need of the office, for which
they were to be paid @ `10/- per working hour with no guarantee as regards
minimum number of hours in a month. In para 7 of the said letter, it was stated
that the appointment letter would not confer any right to claim any permanent post
in the department as also any automatic right to be considered for selection to
any permanent post in the department. Most of them were in continuous
employment for a period ranging from 8 to 14 years. It is common ground that
none of the respondents fall within the purview of 1993 scheme, notified on
10th September, 1993, for conferring temporary status and regularisation of
casual workers, who were in employment on 1st September, 1993, all of them
having been engaged after the said date.
2nd May, 2005, in compliance with the directions issued by the Ministry of
Finance, the appellants dispensed with the services of all such 2casual
labourers and handed over the work done by them to contractors. Aggrieved by the
said action the respondents herein, approached the Tribunal by preferring an original
application, (O.A.No.764 of 2005) seeking regularisation of their services. The
said O.A. was dismissed by the Tribunal. Against the order of dismissal, the
respondents filed a writ petition before the High Court.
While disposing of
the writ petition, the High Court directed the appellants herein to consider
the matter afresh in light of the circulars issued by the Department of Personnel
in O.M.No.49019/1/2006-Estt(C) dated 11th December, 2006 as also the circulars
issued by the Ministry of Finance dated 7th September, 2007 and 13th September,
2007. These circulars were issued pursuant to the order passed by this Court in
the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors.1,
inter-alia directing the Union of India, State Governments and their
instrumentalities to take steps to regularise, as a one time measure, the
services of such irregularly appointed employees, who are duly qualified in
terms of the statutory recruitment rules for the post and who have worked for
ten years or more in duly sanctioned post but not under cover of orders of
Courts or Tribunals.
a fresh consideration in terms of the said direction, the Chief Commissioner of
Central Excise found that the respondents were not eligible for regularization of
their services as they did not satisfy the 1 (2006) 4 SCC 1 criteria laid down
in the case of Umadevi(3) (supra) and Office Memorandum dated 11th December, 2006,
issued by Department of Personnel & Training, Ministry of Personnel, Public
Grievances and Pensions.
14th January, 2008, the office of the Chief Commissioner of Central Excise, Chennai
Zone, issued a notice inviting applications for recruitment to 40 (37 GC & 3
OBC) posts of Sepoy (General Central Service Group D Post). As per the recruitment
rules, the age limit prescribed for the post as on 1st January, 2008, was 27
years for general candidate, 32 years for SC/ST candidates and 30 years for OBC
because of relaxation of age limit by five years and three years in the cases of
SC/ST candidates and OBC candidates respectively. In the recruitment process, thus
initiated, initially the respondents were permitted to participate but later on,
realising that the respondents (all SC/ST and OBC candidates) had crossed the
prescribed age, they were not called to participate in the further selection process.
Their applications were rejected as age barred.
aggrieved by the decision of the department in not granting relaxation in age,
the respondents filed fresh Original Applications before the Tribunal. The
Tribunal was of the view that the ratio of the decision of this Court in Nagendra
Chandra & Ors. Vs. State of Jharkhand & Ors.2 was applicable to the case
of the respondents and therefore, they were entitled to the same relief as was
granted in that case. Accordingly, the Tribunal directed the appellants herein to
consider the case of the respondents for appointment by relaxing the age limit prescribed,
if necessary, in view of the long service rendered by them.
by the said direction, the appellants herein unsuccessfully questioned the
validity of the order of the Tribunal before the High Court. The High Court
disposed of both the writ petitions with modification of the order of Tribunal
to the effect that relaxation in the age limit could be up to 3 years for OBC candidates
and 5 years for SC/ST candidates, subject to the condition that it would be applicable
to those candidates who were actually erstwhile employees of the department. Hence,
the present appeals.
B. Bhattacharya, learned Additional Solicitor General of India, appearing for the
appellants strenuously urged that the High Court has committed a manifest error
in directing relaxation of age bar in the case of the respondents by treating the
decision in the case of Nagendra Chandra & Ors. (supra) as a binding precedent
on the point, without appreciating that: (i) the observation with regard to
relaxation in age bar in the penultimate paragraph of Nagendra Chandra's case (supra)
was 2 (2008) 1 SCC 798 5made by this Court in exercise of power under Article 142
of the Constitution of India, which is not possessed by either the High Court
or the Tribunal and (ii) the fact-situation in the instant case was entirely
different from the one obtaining in that case.
It was asserted that
unlike Nagendra Chandra's case (supra), where there was irregularity in the
appointment of Constables against the sanctioned posts, the present case
pertained to engagement of need based casual labourers without any recruitment
rules or sanctioned posts. It was thus, argued that the High Court failed to notice
distinction between the casual labourer and those whose appointment was
irregular because of non-compliance with some procedure in the selection
process, which is not the case here when none of the respondents had earlier
participated in recruitment for the post of Sepoys.
contra, Mr. P.B. Krishnan, learned counsel appearing for the respondents, in his
written submissions, has submitted that though the respondents were informed at
the time of the appointment about the nature of their work, many a times they
continued to work day and night and also on national holidays without any
monetary benefits only with the hope and expectation that they would be
absorbed on regular basis or at least conferred temporary status.
It has been further pleaded
that the action of the appellants in rejecting the request for age relaxation
without 6taking into account considerable years of their casual service, was
highly unjust and arbitrary. The learned counsel pleaded that by reason of the
impugned directions the respondents have only been given a right to compete and
not an appointment as such and therefore, this Court should be loathe to interfere
with a just and equitable order by the authorities below, particularly when similarly
placed labourers had been granted age relaxation.
in these appeals the first and the foremost question to be examined is whether
in the matter of relaxation of age limit, prescribed as eligibility criteria
for appointment on a particular post, any principle of law has been laid down in
the decision of this Court in Nagendra Chandra's case (supra)? If so, whether
it could be applied to the facts of the present case for directing the
afore-stated relaxation in age limit?
examining the first limb of the question, formulated above, it would be
instructive to note, as a preface, the well settled principle of law in the matter
of applying precedents that the Court should not place reliance on decisions without
discussing as to how the fact situation of the case before it fits in with the
fact situation of the decision on which reliance is placed. Observations of Courts
are neither to be read as Euclid's theorems nor as provisions of Statute and
that too taken out of their context. These observations must be read in the
context in which 7they appear to have been stated. Disposal of cases by blindly
placing reliance on a decision is not proper because one additional or different
fact may make a world of difference between conclusions in two cases. (Ref.: Bharat
Petroleum Corpn. Ltd. & Anr. Vs. N.R. Vairamani & Anr.3; Sarva Shramik Sanghatana
(KV), Mumbai Vs. State of Maharashtra & Ors.4 and Bhuwalka Steel Industries
Limited Vs. Bombay Iron & Steel Labour Board & Anr.5.)
in mind the aforenoted principle of law, we may now refer to the decision in Nagendra
Chandra (supra). It is plain from a bare reading of the said decision that the
question which fell for consideration before a bench of three learned Judges of
this Court was as to whether the appointments of the appellants in that case
were illegal or irregular. This Court opined that since the appointments made were
not only in infraction of the recruitment rules but also violative of Articles
14 and 16 of the Constitution of India, these were illegal.
It was thus, held
that the appellants would not be entitled to get the benefit of the directions
contained in Umadevi(3) case (supra), which are applicable only to those
qualified employees who were appointed irregularly in a sanctioned post. Having
come to the conclusion that the subject appointments being illegal, the
competent authority was justified in terminating the services 3 (2004) 8 SCC
5794 (2008) 1 SCC 4945 (2010) 2 SCC 273 of the employees concerned and the High
Court was also justified in upholding the same, in our view, the relied upon observation
in the penultimate paragraph of the judgment in Nagendra Chandra (supra) does not
appear to be consistent with the ratio of the decision of the Constitution Bench
in Umadevi(3) case (supra).
In the said decision it
has clearly been held that the courts are not expected to issue any direction for
absorption/regularisation or permanent continuance of temporary, contractual,
casual, daily wagers or ad-hoc employees merely because such an employee is
continued for a long time beyond the term of his appointment. It has also been
held that such an employee would not be entitled to be absorbed in regular service
or made permanent, merely on the strength of such continuance, if the original
appointment was not made by following a due process of selection as envisaged
by the relevant rules.
Therefore, in our
opinion, the said observation cannot be said to be an exposition of general principle
of law on the point that a long length of service, dehors the relevant
recruitment rules for the post, is a relevant factor for waiver or relaxation of
any eligibility criterion, including age limit, for future regular selections
for the post. Obviously, the observation, general in nature, was made by this
Court in exercise of its jurisdiction under Article 142 of the Constitution of India
and, therefore, cannot be treated as a binding precedent. It has to be confined
to the peculiar facts of that case.
may now advert to the second limb of the question in para 11 (supra). The issue
need not detain us for long as in our view the factual position as obtaining in
the present case does not fit in with the fact situation in the case of Nagendra
Chandra (supra). In the instant case, indubitably, the respondents were engaged
as part time contingent casual labourers in the office of the Commissioner of
Central Excise for doing all types of work as may be assigned to them by the
office. Their part time engagement was need based for which they were to be paid
on hourly basis.
Though their stand is
that many a times they were required to work day and night but it is nowhere
stated that they were recruited or ever discharged the duties of a `sepoy' for
which recruitment process was initiated vide public notice dated 14th January
2008 and the Tribunal as also the High Court has directed the appellants to
grant relaxation in age limit over and above what is stipulated in the recruitment
rules/advertisement. In view of the stated factual scenario, in our opinion,
the engagement of the respondents as casual labourers even for considerable long
duration did not confer any legal right on them for seeking a mandamus for
relaxation of age limit. We have no hesitation in holding that Nagendra Chandra's
case (supra) has no application on facts in hand and the impugned direction by
the Tribunal, as affirmed by the High Court based on the said decision, was
may now consider the plea relating to the legitimate expectation of the
respondents of being permanently absorbed/regularised in the Excise Department on
account of their alleged uninterrupted engagement for long durations ranging
between 8-14 years.
doctrine of legitimate expectation and its impact in the administrative law has
been considered by this Court in a catena of decisions. However, for the sake
of brevity, we do not propose to refer to all these cases. Nevertheless, in
order to appreciate the concept, we shall refer to a few decisions.
Council of Civil Service Unions Vs. Minister for Civil Service6, a locus
classicus on the subject, for the first time an attempt was made by the House
of Lords to give a comprehensive definition to the principle of legitimate expectation.
Enunciating the basic principles relating to legitimate expectation, Lord Diplock
observed that for a legitimate expectation to arise, the decision of the administrative
authority must affect such person either (a) by altering rights or obligations of
that person which are enforceable by or against him in private law; or (b) by
depriving him of some benefit or advantage which either: (i) he has in the past
been permitted by the decision-maker to enjoy and which he can legitimately
expect to be permitted to continue to do until some rational 6 1985 AC 374 :
(1984) 3 All ER 935 (HL) 1ground for withdrawing it has been communicated to him
and he has been given an opportunity to comment thereon, or (ii) he has received
assurance from the decision-maker that they will not be withdrawn without first
giving him an opportunity of advancing reasons for contending that they should
in Sethi Auto Service Station & Anr. Vs. Delhi Development Authority &
Ors.7, one of us (D.K. Jain, J.), referring to a large number of authorities on
the point, summarised the nature and scope of the doctrine of legitimate
expectation as follows: "32. An examination of the aforenoted few
decisions shows that the golden thread running through all these decisions is
that a case for applicability of the doctrine of legitimate expectation, now accepted
in the subjective sense as part of our legal jurisprudence, arises when an
administrative body by reason of a representation or by past practice or conduct
aroused an expectation which it would be within its powers to fulfill unless some
overriding public interest comes in the way.
However, a person who
bases his claim on the doctrine of legitimate expectation, in the first
instance, has to satisfy that he has relied on the said representation and the
denial of that expectation has worked to his detriment. The Court could
interfere only if the decision taken by the authority was found to be arbitrary,
unreasonable or in gross abuse of power or in violation of principles of
natural justice and not taken in public interest. But a claim based on mere
legitimate expectation without anything more cannot ipso facto give a right to
invoke these principles."
in mind the afore-stated legal position, we may now advert to the facts at
hand. For the sake of ready reference, the relevant portions of 7 (2009) 1 SCC
180 1offer of appointment issued by Commissioner of Central Excise, Chennai, to
the respondents on 6th August 1999 are extracted below: "The under
mentioned candidates who have been applied in response to the advertisement given
by this department in the "Daily Thanthi" & who are appeared in Interview
conducted by this office on 10.04.99 are offered appointment provisionally in "part
time contigent casual labourers"
Purely on temporary basis
on the basis of payment for the number of hours actually worked in a month.
They will be paid Rs. 10.00 for every working hour. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXX 3. The candidates should note that they will be asked to work on the basis
of the need of the office and there is no guarantee as regards minimum number
in a month. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXX 6. The offer of appointment is
purely on temporary basis only. In case the work and conduct of the candidates
is not found to be satisfactory. Their services will be terminated without any intimation/notice.
This appointment letter does not confer any right to claim any permanent post
in this department and does not also vest any automatic right to be considered for
selection to any permanent post in the Department. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
is plain from the terms of the letter of appointment that the respondents were
told in unambiguous terms that their appointments were temporary and would not
confer any right to claim any permanent post in the department. It is not the
case of the respondents that at any point of 1time, during their engagements with
the appellants, a promise was held out to them by the appellants that they would
be absorbed as regular employees of the department. In fact, no such promise
could be held out in view of the Government O.M. dated 7th June, 1988 banning the
employment of persons in regular posts.
this juncture, it would be apposite to note that a similar plea was negatived
by the Constitution Bench in Umadevi(3) (supra) by observing thus: "47.
When a person enters a temporary employment or gets engagement as a contractual
or casual worker and the engagement is not based on a proper selection as
recognised by the relevant rules or procedure, he is aware of the consequences
of the appointment being temporary, casual or contractual in nature. Such a person
cannot invoke the theory of legitimate expectation for being confirmed in the post
when an appointment to the post could be made only by following a proper procedure
for selection and in cases concerned, in consultation with the Public Service Commission.
Therefore, the theory
of legitimate expectation cannot be successfully advanced by temporary, contractual
or casual employees. It cannot also be held that the State has held out any
promise while engaging these persons either to continue them where they are or
to make them permanent. The State cannot constitutionally make such a promise.
It is also obvious that the theory cannot be invoked to seek a positive relief
of being made permanent in the post."
bestowed our anxious consideration to the facts of the case, in our opinion,
the doctrine of legitimate expectation, as explained above, is not attracted in
the instant case. The argument is rejected accordingly.
as regards the submission that the action of the appellants is highly
discriminatory in as much as some similarly situated persons have been
appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well
settled that a writ of mandamus can be issued by the High Court only when there
exists a legal right in the writ petitioner and corresponding legal obligation in
the State. Only because an illegality has been committed, the same cannot be
directed to be perpetuated. It is trite law that there cannot be equality in illegality.
(Ref.: Sushanta Tagore & Ors. Vs. Union of India & Ors.8; U.P. State Sugar
Corpn. Ltd. & Anr. Vs. Sant Raj Singh & Ors.9; State, CBI Vs. Sashi Balasubramanian
& Anr.10 and State of Orissa & Ors. Vs. Prasana Kumar Sahoo)
view of the foregoing discussion, the impugned judgment cannot be sustained. It
is set aside and the appeals are allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
(D.K. JAIN, J.) 8 (2005)
(H.L. DATTU, J.)