State
of Orissa & Ors Vs.
Prasana Kumar Sahoo [2007] Insc 461 (26 April 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 2167 2007 [Arising out of S.L.P. (C) No. 16974 of 2006]
S.B. SINHA, J.
Leave granted.
Respondent herein was appointed by the Union of India in the Census
Organisation. His appointment was temporary in nature. He used to be appointed
from time to time keeping in view exigencies of work. The State of Orissa
issued a circular letter on or about 21.3.1995 relaxing upper age limit of the
retrenched census employees for appointment under the State.
The said circular letter related to 147 retrenched employees of the census
organization. Principally relaxation of age for appointment in the State
Service was contemplated thereby stating;
"Now after careful consideration in pursuance of Rule 52 of OSC
Government have been pleased to decide that in relaxation of upper age limit
prescribed u/r 52A ibid shall be applicable to these 147 retrenched Census
Employees of Census Organisations in Orissa as indicated below:
i) The age limit for entry into any post under any rule relating recruitment
may be relaxed in the above cases.
Relaxation in age may be granted equal to the period of service rendered in
the Census Organisation of Orissa prior to retrenchment.
All Departments of Government, all Heads of department and all Collectors
are requested to entertain the cases of these retrenched employees when they
apply for any post under them suit to their qualification provided they are
otherwise eligible for post under the relevant recruitment rules. Necessary
detail seeking particulars of these 147 retrenched employees may be obtained
from Director of Census Operation, Orissa, Bhubaneswar when necessary."
(Emphasis Supplied) By the said circular letter, no policy for
regularization or for absorption of the employees working in the census
organization was laid down.
Another circular letter was issued on or about 2.7.1999. The question as to
whether in terms of the said purported circular letters, the employees working
in the census organization were entitled to recruitment came up for
consideration before the Orissa Administrative Tribunal and by reason of
judgment and order dated 17.12.1998, it was directed;
"6. Be that as it may, the fact remains that these applicants and
others who were left out were not given any opportunity to compete with the
Respondents while being selected to be posts to which they have been appointed.
There is nothing on record to show that these applicants were intimated by any
office at any time about the existence of any vacancy nor were they called to
any selection test by any governmental authority for recruitment to the post
after they were retrenched. In the absence of any such intimation, it was not
possible for the applicants and others to know about the vacancy position and
to make any application for appointment. As it appears from the resolution that
it was the duty of various departments of the State Government to take suo moto
initiative to appoint such retrenched candidates. No obligation was cast on
these retrenched candidates. No obligation was cast on these retrenched
candidates to apply for the posts.
It is submitted that in the meantime hundred of posts fell vacant in the
Government departments including in the District Offices and Sub- Divisional
Offices. If that is so we are of the view that the present attitude taken by
the authorities in not considering the retrenched employees like the applicants
in preference to others in terms of the aforesaid resolution of the Government
is not proper and we may further say that they have committed acts of injustice
to the applicants as well as other retrenched candidates. However, it is
submitted by the learned counsel for Respondents that about 90 such retrenched
candidates have already been appointed in different offices and only about 50
candidates are left for appointment.
7. For the reasons stated above, we hold that the grievance of the
applicants is genuine. In view of the fact that the Respondents have been duly
selected and they appointed as retrenched candidates, we are not inclined to
interfere with the orders of their appointment after regularization.
Hence, the Respondents No. 4 to 13 wherever already in service shall
continue to work in their posts according to rules.
8. We direct the State Government and Respondent no. 1 & 2 in particular
to take immediate steps for absorption of the remaining retrenched candidates
within a period of six months from the date of receipt of a copy of this order
in any Government office located anywhere in the State or if no such immediate
vacancies are available in the Government Offices, in any of the public Sector
Undertaking located anywhere in the State in the post for which they are
eligible but not below the rank of Class III. This exercise should be
completed within a period of 6 months from the date of receipt of a copy of
this order irrespective of their present age subject to the condition that none
of them is aged more than 50 years."
Although a large number of employees were said to have been appointed
pursuant to the said policy decision, respondent herein was again appointed in
the census organization on or about 7.2.2001. Apprehending that his services
may be terminated, he approached the Orissa Administrative Tribunal and by an
interim order dated 17.4.2001, a direction was issued that his services should
not be terminated without the leave of the Tribunal.
As despite the said interim order, his services were allegedly terminated on
1.6.2001, he filed an application for contempt, whereupon a contempt
proceedings was initiated. By reason of an Order dated 28.1.2002, the State
Government was directed to appoint the respondent to any unfilled vacancy of
Junior Clerks on a temporary basis and subject to the final order of the
Tribunal.
A Writ Petition was filed by the State before the Orissa High Court
questioning the validity of the said order and by an Order dated 19.1.2005,
although the High Court opined that the Tribunal was not justified in issuing
the said direction, observed;
"Before parting with the matter, we feel that the State Government is
duty bound to comply with its policy and circulars when there is a direction to
appoint retrenched employees of the Census organization, we see no reason as to
why the Government is not complying with those directions.
Therefore, we feel that the petitioners should take steps to appoint the
retrenched employees of Census organization in accordance with the Government
circulars including the Government memo dated 21.3.1995 and in case the case of
the opposite party is also covered with the same, it goes without saying that
his case is also liable to be considered for permanent absorption against any
of the vacancies of Junior Clerk."
The Tribunal thereafter allowed the original application filed by the
respondent directing;
"In view of the said observations on the Hon. High Court coupled with
the policy decision and order of the Govt. as at Annexure-2 & 5, we dispose
of the Original Application with a direction to the respondents to consider the
case of the applicant for his permanent absorption against any of the vacancies
of junior clerk under the respondent no. 3 if his case is covered with the
conditions mentioned in Annexure-2 & 5 and this exercise shall be completed
within six months from the date of receipt of a copy of this order and
communicate the order to the applicant with the said period."
A Writ Petition filed before the High Court by the appellant against the
said Order of the Tribunal has been dismissed by the High Court by reason of
the impugned judgment.
Submission of Mr. Janaranjan Das, learned counsel appearing on behalf of the
appellant in support of the appeal, is that the Tribunal and consequently the
High Court committed a manifest error in treating the said purported circular
letters as a policy decision on the part of the State for regularization of the
services of the respondents.
Circular letters, the learned counsel would contend, only provided for
relaxation of age and a bare perusal thereof would clearly show that the same
was subject to the provisions of the recruitment rules.
Mr. Bharat Sanghal, learned counsel appearing on behalf of the respondent,
on the other hand, would submit that it is not a case where the respondent
prayed for regularisation of services in the Census Department.
According to the learned counsel, the State adopted a policy decision
pursuant whereto and in furtherance whereof a large number of census employees
who had been retrenched, having been appointed, there was absolutely no reason
as to why the respondent should have been discriminated against. It was
contended that at no point of time, the respondent was found to be unsuitable
for appointment in a Class-III post.
It is now well-settled that a State is bound by the constitutional scheme to
treat all persons equally in the matter of grant of public employment as
envisaged under Articles 14 and 16 of the Constitution of India.
Even a policy decision taken by the State in exercise of its jurisdiction
under Article 162 of the Constitution of India would be subservient to the
recruitment rules framed by the State either in terms of a legislative act or
the proviso appended to Article 309 of the Constitution of India. A purported
policy decision issued by way of an executive instruction cannot override the
statute or statutory rules far less the constitutional provisions.
In A. Umarani v Registrar, Cooperative Societies and Others [(2004) 7 SCC
112], this Court has held;
"45. No regularisation is, thus, permissible in exercise of the
statutory power conferred under Article 162 of the Constitution if the
appointments have been made in contravention of the statutory rules."
The circular letter dated 21.3.1995 even does not purport to lay a policy
decision relating to regularisation or absorption of the census employees. It
only provided for relaxation of age. Such relaxation was also subject to strict
compliance of the recruitment rules. If by reason of some misconception or
otherwise, the Tribunal had granted some relief in favour of some census
employees, the same by itself, in our opinion, would not confer any legal right
upon a person for being absorbed in State services without compliance of the
mandatory provisions of the recruitment rules and the constitutional scheme
adumberated under Article 16 of the Constitution of India.
Submission of Mr. Bharat Sanghal, learned counsel is that the High Court had
made certain observations in regard to the recruitment of the respondent while
disposing of the Writ Petition from an Order dated 28.1.2002 passed by the
Tribunal in the contempt proceeding.
We have noticed hereinbefore that the High Court had set aside the Order of
the Tribunal directing the petitioner to re-instate the respondent in service.
Observations made therein did not constitute a binding direction.
The Tribunal passed an order to that effect, but the same had been in
question before the High Court.
Regularisation as is well known is not a mode of recruitment. A policy
decision to absorb a person who is not in employment of the State without
following the recruitment rules, would not confer any legal right on him. A
Constitution Bench of this Court in Secretary, State of Karnataka and Others v
Umadevi (3) and Others [(2006) 4 SCC 1], categorically held that any
appointment made in violation of the constitutional provisions would be a
nullity.
See also Gurbachan Lal v Regional Engineering College, Kurukshetra & Ors
[2007 (4) SCALE 1] We may notice that in a large number of decisions, Umadevi
(supra) has been followed by this Court.
e.g. State of U.P. & Ors. v Desh Raj [2006 (13) SCALE 382], Punjab Water
Supply & Sewerage Board v Ranjodh Singh & Ors. [2006 (13) SCALE 426]
and National Institute of Technology & Ors. v Niraj Kumar Singh [2007(2)
SCALE 525], Punjab State Warehousing Corp., Chandigarh v Manmohan Singh &
Anr. [2007(3) SCALE 401].
Furthermore, a direction to grant relaxation in respect of the age must also
receive strict compliance of other conditions specified therein.
See Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others
[(2006) 8 SCC 671].
It may be that some other persons similarly situated have been appointed.
But Article 14 as is well known contains a positive concept. 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
by a court of law.
It is also well settled that there cannot be equality in illegality.
See Sushanta Tagore & Ors. v Union of India and Others [(2005) 3 SCC
16], State, CBI v Sashi Balasubramanian and Another [2006 (10) SCALE 541] and
U.P. State Sugar Corp. Ltd. & Anr. v Sant Raj Singh &
Ors. [2006 (6) SCALE 205].
For the reasons aforementioned, the impugned judgment cannot be sustained.
It is set aside accordingly. The Appeal is allowed. However, in the facts and
circumstances of this case, there shall be no order as to costs.
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