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CASE NO.: Appeal (civil)  2167 of 2007

PETITIONER: State of Orissa & Ors

RESPONDENT: Prasana Kumar Sahoo

DATE OF JUDGMENT: 26/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

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

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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 \026 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

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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

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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

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& 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.