REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2090 OF 2007

UNION OF INDIA & ANR.        ……. Appellants

Versus

KARTICK CHANDRA MONDAL & ANR.        .... Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. By filing the present appeal, the appellants have challenged  

the  legality  and  validity  of  the  order  dated  17.08.2005  

passed by  the  Calcutta  High Court  whereby the Division  

Bench of the Calcutta High Court upheld the direction given  

by the Central Administrative Tribunal [for short ‘CAT’] to

absorb the respondents in any suitable post commensurate  

with their qualifications.  

2. The issue that is, therefore, canvassed before this Court by  

the  appellants  is  whether  such  direction  to  absorb  the  

respondents could have been issued by the CAT and the  

Calcutta High Court, particularly, in view of the fact that  

the  respondents  were  engaged  as  Peons  on  casual  basis  

without  having  been  recruited  through  the  proper  

procedure  and  having  not  been  sponsored  by  the  

Employment  Exchange  and  having  worked  with  the  

appellant no. 2 only for two years, i.e., from 1981 to 1983.  

3. The respondents  herein,  Shri  K.C.  Mondal  and Shri  S.K.  

Chakraborty, were engaged to work as casual labours in the  

office of the Ordnance Factory Board, Kolkata without going  

through the regular process of recruitment of their names  

being sponsored by the Employment Exchange, which was  

the extant policy at the relevant point of time. After their  

engagement as casual labours, they worked for two years  

with appellant no. 2, i.e., till 1983 and they were disengaged  

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from service in the month of April, 1983 on the ground that  

their  names  were  not  sponsored  by  the  Employment  

Exchange.  

4. The  respondents  thereupon  filed  an  Original  Application  

before the CAT, registered as O.A. No. 285 of 1990 seeking a  

direction to the appellant no. 1 for their re-engagement and  

also for regularisation of their service w.e.f. 1983 or 1985.  

In support of the said claim, the respondents relied upon  

the Government of India notification issued by the Ministry  

of  Personnel  and  Training,  Administrative  Reforms  and  

Public  Grievances  and  Pension  [Department  of  Pensions  

and  Training]  dated  07.05.1985  issued  under  Office  

Memorandum No. 49014/18/84-Estt.[G] on the subject of  

regularisation of the services of the casual workers in Group  

‘D’ posts by way of  relaxing the condition of recruitment of  

casual workers through Employment Exchanges only.  

5. The counsel for the respondents had, before the Tribunal,  

urged  that  the  office  memorandum  dated  07.05.1985  

cannot be said to apply only to those who were in service as  

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casual  workers  at  that  time  but  it  was  a  general  policy  

governing the regularisation of the service of causal workers  

who were recruited otherwise than through the Employment  

Exchange. It  was submitted that, therefore, the benefit  of  

the office  memorandum would belong to the respondents  

also.  

6. After  hearing  the  parties,  the  Tribunal  held  that  the  

contention of the learned counsel for the respondents with  

regard to the applicability of the said office memorandum to  

the respondents could not be accepted. While coming to the  

aforesaid conclusion, the Tribunal relied upon the language  

of the said Office Memorandum, the relevant part of which  

is extracted below: -

“Though these persons may have been continuing as   casual workers for a number of years, they are not  eligible  for  regular  appointment  and  their  services  may be terminated  any time.  Having regard to the   fact that casual workers belong to the worker section   of the society  and termination of their  services will   cause undue hardship to them, it has been decided,  as  a  one  time  measure,  in  consultation  with  the   DGE&T,  that  casual  workers  recruited  before  the   issue  of  these  instructions  may  be  considered  for  regular appointment to Group ‘D’ posts, in terms of   the  general  instructions  even  if  they  are  recruited  

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otherwise  than  through  the  employment  exchange,   provided they are eligible for regular appointment in  all other respects.”  

7. The  Tribunal,  however,  granted  the  prayer  of  the  

respondents on the ground that 10 other similarly placed  

casual  workers  of  the  Ordnance  Factory  Board  were  

regularised w.e.f. 01.01.1987. It was held by the Tribunal  

that the aforesaid 10 employees were also casual workers  

and all of them were similarly situated as the respondents  

inasmuch  as  they  also  were  not  recruited  through  the  

Employment  Exchange.  Subsequently,  the  Tribunal  held  

that the respondents could not claim regularisation of their  

service w.e.f.  1983 or 1985, but keeping in view the fact  

that  they  had  served  the  Ordnance  Factory  Board  from  

1981 to 1983 with technical breaks, their cases deserved to  

be  considered  favourably  for  re-engagement  as  casual  

labours.  In  light  of  the  aforesaid  findings,  the  Tribunal  

issued  a  direction  to  the  appellants  to  re-engage  the  

respondents as casual labours if there was work/vacancy in  

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preference to freshers and those who rendered lesser length  

of service as casual labours.  

8. The  respondents,  thereafter,  making  an  allegation  that  

despite the said order passed by the CAT the appellants did  

not  pass  any  order  in  favour  of  the  respondents  filed  a  

Contempt  Application  before  the  Tribunal  which  was  

disposed of by the Tribunal stating that since no time limit  

was stipulated in the order of the Tribunal, therefore, the  

appellants  could  not  be  held  to  have  committed  any  

contempt  of  Court.  Since,  even  thereafter,  no  order  was  

passed by the appellants to re-engage the respondents in  

terms of the order of the Tribunal, a Writ Petition was filed  

by the respondents before the High Court which was again  

disposed  of  by  the  High  Court  with  a  liberty  to  the  

respondents to approach the Tribunal in terms of which the  

respondents filed a fresh petition before the Tribunal which  

was registered as O.A. No. 903 of 2000. The said O.A. was  

heard and disposed of by the impugned judgment and order  

dated 11.03.2004 passed by the Tribunal with a direction to  

the appellants to absorb the respondents in any suitable  

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post commensurate with their qualifications. The appellants  

being aggrieved by the aforesaid judgment and order filed a  

Writ  Petition  in  the  Calcutta  High  Court  which  was  

registered as WPCT No. 517 of 2004 for setting aside and  

quashing the aforesaid order passed by the Tribunal. The  

Calcutta  High  Court  heard  the  parties  in  the  said  Writ  

Petition and by its judgment and order dated 17.08.2005  

dismissed the said Writ Petition holding that the directions  

of  the  Tribunal  are  justified  and  that  there  is  no  valid  

ground for interfering with the aforesaid directions given by  

the CAT.  Being aggrieved by the said judgment and order,  

the  present  appeal  has  been  filed  by  the  appellants  on  

which we have heard the learned counsel appearing for the  

parties.  

9. Several  contentions were raised by the counsel appearing  

for  the  appellants  before  us to challenge the legality  and  

validity of the orders passed by the Calcutta High Court as  

also  by  the  CAT.  It  was  submitted  that  so  far  as  the  

directions issued by the CAT in O.A. No. 285 of 1990 are  

concerned, the only direction issued in the said order was to  

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re-engage the respondents as casual labours if  there was  

work/vacancy  in  preference  to  freshers  and  those  who  

rendered lesser length of service as casual labours. It was  

pointed out that the respondents could not be appointed as  

casual labours in terms of the aforesaid direction as there  

was a total ban on fresh appointments and, therefore, there  

was  no  occasion  of  giving  any  fresh  appointment  to  any  

person  and  that  no  fresh  engagement  was  made  of  any  

casual labour as against any work/vacancy. So far as the  

notes of Assistant Legal Adviser and Director General are  

concerned,  it  was submitted  that  no  reliance  could  have  

been placed on the same by the High Court as they were  

internal  communications  and  that  they  having  not  been  

publicized, the same could not have been treated as official  

communication  made  by  the  competent  authority.  It  was  

submitted  that  the  same  were  only  official  notes  in  the  

course of processing of the files of the respondents and that  

the same could not have been treated by the High Court as  

orders  issued  and  publicized  by  the  competent  authority  

and, therefore, the disposal of the Writ Petition on the said  

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notes  was  invalid  and  unjustified.  It  was  also  submitted  

that neither the CAT nor the High Court has any power to  

direct absorption of the respondents when they had worked  

only for two years and on the date when the O.A. No. 285 of  

1990 was filed before the CAT they were not even working  

as casual workers. The further submission of the counsel  

appearing  for  the  appellant  was  that  the  office  

memorandum which  was  issued  in  1985  could  not  have  

been relied upon or made the basis for issuing orders in  

favour of the respondents, particularly, in view of the fact  

that  on the  date  when the  aforesaid  office  memorandum  

was issued the respondents had already been disengaged  

from service and were not working with the appellant no. 2.  

10.The aforesaid submissions of the counsel appearing for the  

appellants  were refuted by the  counsel  appearing for  the  

respondent  contending,  inter  alia,  that  since  the  note  

written by the Director General to which reference has been  

made  by  the  High  Court  as  also  the  aforesaid  

communications between the authorities were in favour of  

the respondents both the Tribunal and the High Court were  

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justified  in  relying  on  the  same  for  issuing  necessary  

directions to the appellants. It was also submitted by him  

as has been held by the High Court that there was a clear  

discrimination, for on the one hand ten persons who were  

similarly situated as the respondents were absorbed by the  

appellants  whereas  the  respondents  were  denied  similar  

benefits without any reasonable explanation for such hostile  

discrimination.  

11.In  light  of  the  aforesaid  submissions  of  the  counsel  

appearing  for  the  parties  we  have  considered  the  entire  

records.  So  far  as  the  Office  Memorandum  dated  

07.05.1985 is concerned, the same was issued by way of  

relaxation of the condition of recruitment of casual workers.  

But the fact remains that the respondents worked with the  

appellants only for two years, i.e., from 1981 to 1983 and  

admittedly  on  the  date  when  the  aforesaid  office  

memorandum was issued they were not working with the  

appellant no. 2.  There is nothing in the contents or in the  

language  of  the  said  office  memorandum  which  would  

indicate that there was an intention to give a retrospective  

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effect to the contents of the said notification. Instead, the  

language  used in  the  aforesaid  notification  clearly  shows  

that the same was intended to be prospective in nature and  

not  retrospective.  Even  otherwise,  it  is  a  well-settled  

principle in law that the court cannot read anything into a  

statutory provision which is plain and unambiguous. The  

language employed in a statute is  determinative factor of  

the legislative intent.  If  the language of  the enactment is  

clear  and  unambiguous,  it  would  not  be  proper  for  the  

courts to add any words thereto and evolve some legislative  

intent,  not found in the statute.  Reference in this  regard  

may be made to the recent decision of this Court in Ansal  

Properties  and Industries  Limited v.  State of  Haryana  

[(2009) 3 SCC 553].

12.As  has  been  noted  earlier,  the  said  office  memorandum  

stated that the same would apply only to those persons who  

might have been continuing as casual workers for a number  

of years and who were not eligible for regular appointment  

and  whose  services  might  be  terminated  at  any  time.  

Therefore, it envisaged and could be made applicable to only  

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those persons who were in service on the date when the  

aforesaid office memorandum was issued. Unless and until  

there is a clear intention expressed in the notification that it  

would also apply retrospectively, the same cannot be given  

a  retrospective  effect  and  would  always  operate  

prospectively.

13.The next issue that we are required to consider pertains to  

internal  communications  which  are  relied  upon  by  the  

respondents  and  which  were  also  referred  to  by  the  

Tribunal  as  well  as  by  the  High  Court.  Ex  facie,  the  

aforesaid  communications  were  exchanged  between  the  

officers at the level of board hierarchy only. An order would  

be  deemed to  be  a  Government  order  as  and when  it  is  

issued  and  publicized.  Internal  communications  while  

processing a matter cannot be said to be orders issued by  

the  competent  authority  unless  they  are  issued  in  

accordance with law. In this regard, reliance may be placed  

on the decision of this Court in State of Bihar and Others  

v. Kripalu Shankar and Others [(1987) 3 SCC 34] wherein  

this Court observed, in paragraphs 16 and 17, as follows: -

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“16. Viewed in this light, can it be said that what is  contained in a notes file can ever be made the basis   of an action either in contempt or in defamation. The  notings in a notes file do not have behind them the  sanction of  law as an effective order.  It  is only an  expression of  a feeling by the  concerned officer on  the  subject  under  review.  To  examine  whether   contempt is committed or not, what has to be looked  into  is  the  ultimate  order.  A  mere  expression  of  a  view in notes file cannot be the sole basis for action  in  contempt.  Business of  a State  is not done by a  single officer. It involves a complicated process. In a  democratic set up, it is conducted through the agency  of  a  large  number  of  officers.  That  being  so,  the  noting by one officer, will not afford a valid ground to   initiate  action  in  contempt.  We  have  thus  no  hesitation  to  hold that  the  expression of  opinion in  notes file at different levels by concerned officers will   not constitute criminal contempt. It would not, in our  view,  constitute  civil  contempt  either  for  the  same  reason as above since mere expression of a view or   suggestion  will  not  bring it  within  the  vice  of  sub- section (c) of Section 2 of the Contempt of Courts Act,   1971, which defines civil contempt. Expression of a  view is only a part of the thinking process preceding  Government action.                     “emphasis supplied”

17. In the case of Bachhittar Singh v. State of Punjab   a Constitution  Bench of  this  Court  had to  consider   the effect of an order passed by a Minister on a file,   which  order  was  not  communicated.  This  Court,  relying upon Article 166(1) of the Constitution,  held  that the order of the Revenue Minister, PEPSU could  not  amount  to  an  order  by  the  State  Government  unless it was expressed in the name of Rajpramukh  as  required  by  the  said  article  and  was  then  communicated  to the  party  concerned.  This is  how  

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this  Court  dealt  with  the  effect of  the  noting  by a  Minister on the file:

“The question,  therefore, is  whether  he did in   fact  make  such  an  order.  Merely  writing   something  on  the  file  does  not  amount  to  an   order. Before something amounts to an order of   the State Government two things are necessary.   The order has to be expressed in the name of  the Governor as required by clause (1) of Article   166 and  then  it  has  to  be communicated.  As  already  indicated,  no  formal  order  modifying  the decision of the Revenue Secretary was ever  made.  Until  such  an  order  is  drawn  up  the   State  Government  cannot,  in  our  opinion,  be  regarded as bound by what was stated in the  file. As long as the matter rested with him the  Revenue  Minister  could  well  score  out  his   remarks or minutes on the file and write fresh  ones.””

Besides,  the  said  communications  were  exchanged  after  

disposal of the Original Application by the Tribunal. The note  

on  which  reliance  has  been  placed  by  the  High  Court  

specifically, was written by the Deputy Director, Headquarters  

for  Director  General,  Ordnance  Factories  dated  20.11.1997  

and it refers to the orders passed by the Tribunal as also the  

order passed in the contempt petition. From a bare perusal of  

the note it transpires that it was prepared on a representation  

of  Shri  K.C.  Mondal,  respondent  no.  1  herein,  and  was  

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submitted to the Ministry of Defence requesting to consider his  

case for  recruitment/absorption/regularisation of  services of  

casual workers in Group ‘D’ post. That itself indicates that the  

proper  and  competent  authority  to  pass  an  order  for  

recruitment, absorption and regularisation was the Ministry of  

Defence and not the Director General, Ordnance Factory. In  

the  said  note  itself  it  was  clearly  mentioned  that  an  early  

action in the matter was requested, which means that the said  

order was not  the official  communication which was issued  

from  the  Ordnance  Factory  Board  and  that  the  Director  

General,  Ordnance  Factory  was  himself  not  the  competent  

authority to pass an order regarding absorption, recruitment  

and regularisation of service of the respondents. In the said  

note it  was further stated that the Ministry of Defence may  

pass necessary orders to allow regularisation of the services of  

Shri K.C. Mondal and Shri S.K. Chakraborty in terms of the  

aforesaid office memorandum dated 07.05.1985 or to accord  

permission  to  recruit  Shri  K.C.  Mondal  and  Shri  S.K.  

Chakraborty  for  the  post  of  Peon  without  reference  to  the  

Employment Exchange in relaxation of ban. The note of the  

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Legal Adviser culminated in the aforesaid note of the Deputy  

Director  which  clearly  indicates  that  no  official  order  was  

passed  by  the  competent  authority  and  therefore  issuing  

directions to the appellants to absorb the respondents on the  

basis of the same was unjustified and uncalled for.

14.The  next  issue  that  we  are  now  required  to  consider  is  

whether the aforesaid respondents could have been directed  

to be so absorbed. Similar issues regarding absorption or  

regularisation of casual labours are raised time and again  

in various branches and offices of the Government and this  

Court has had the opportunity to deal with such issues in  

the  past  in  several  cases.  We  attempt  to  refer  to  two  

decisions of this Court which are considered to be the latest  

decisions and landmark decisions and which are binding on  

us. We may refer to the constitutional bench decision of this  

Court  in  Secretary,  State  of  Karnataka  and  Others v.  

Umadevi (3) and Others reported in (2006) 4 SCC 1. The  

relevant portion of the said judgment, viz., paragraphs 43 &  

45, are as follows:-

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“43. Thus,  it  is  clear  that  adherence  to  the  rule  of   equality  in public employment is a basic  feature of   our Constitution and since the rule of law is the core   of  our  Constitution,  a  court  would  certainly  be  disabled from passing an order upholding a violation  of  Article  14  or  in  ordering  the  overlooking  of  the  need to comply with  the requirements of Article 14  read with  Article  16 of  the  Constitution.  Therefore,  consistent  with  the  scheme for public  employment,   this  Court  while  laying  down  the  law,  has  necessarily to hold that unless the appointment is in   terms  of  the  relevant  rules  and  after  a  proper  competition  among  qualified  persons,  the  same  would not confer any right on the appointee. If it is a   contractual  appointment,  the  appointment  comes to  an  end  at  the  end  of  the  contract,  if  it  were  an  engagement  or  appointment  on  daily  wages  or  casual basis, the same would come to an end when  it  is discontinued.  Similarly,  a temporary  employee  could not claim to be made permanent on the expiry  of his term of appointment. It has also to be clarified  that  merely  because  a  temporary  employee  or  a  casual wage worker is continued for a time beyond  the term of his appointment, he 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. It is not open to the  court to prevent regular recruitment at the instance of  temporary  employees  whose  period  of  employment  has come to an end or of ad hoc employees who by  the very nature of their appointment, do not acquire   any right. ……………”

“45. While directing that appointments, temporary or  casual,  be  regularised  or  made  permanent,  the  courts  are  swayed  by  the  fact  that  the  person  

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concerned has worked  for some time  and in  some  cases for a considerable length of time. It is not as if   the  person  who  accepts  an  engagement  either   temporary or casual  in nature,  is not aware  of  the  nature  of  his  employment.  He  accepts  the   employment with open eyes. It may be true that he is   not in a position  to bargain—not at  arm’s  length— since  he  might  have  been  searching  for  some  employment  so  as  to  eke  out  his  livelihood  and  accepts whatever he gets. But on that ground alone,   it  would  not  be  appropriate  to  jettison  the  constitutional scheme of appointment and to take the   view that a person who has temporarily or casually  got  employed  should  be  directed  to  be  continued  permanently. By doing so, it will be creating another   mode of public appointment which is not permissible.   ……………………………………………. …………………… ……………………………………………..   ………………… …………………………..  It  is  in  that  context  that  one  has  to  proceed  on  the  basis  that  the  employment  was accepted fully knowing the nature of it and the  consequences flowing from it.  In  other words,  even  while  accepting  the  employment,  the  person  concerned knows the nature of his employment. It is   not an appointment to a post in the real sense of the   term. The claim acquired by him in the post in which   he  is  temporarily  employed  or  the  interest  in  that   post cannot be considered to be of such a magnitude   as  to  enable  the  giving  up  of  the  procedure  established,  for  making  regular  appointments  to   available  posts  in  the  services  of  the  State.  The  argument that since one has been working for some  time in the post, it will not be just to discontinue him,   even  though  he  was  aware  of  the  nature  of  the  employment when he first took it up, is not one that   would  enable  the  jettisoning  of  the  procedure  established by law for public employment and would  have  to  fail  when  tested  on  the  touchstone  of   constitutionality  and  equality  of  opportunity   

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enshrined in Article 14 of the Constitution.”

15.Subsequent to the aforesaid decision, the issue again arose  

for consideration before the 3-Judges Bench of this Court in  

the Official Liquidator v.  Dayanand and Others reported  

in  (2008) 10 SCC 1 wherein this Court in paragraphs 68  

and 116 observed as follows: -

“68.  The  abovenoted  judgments  and  orders  encouraged the  political  set-up and bureaucracy  to   violate  the  soul  of  Articles  14 and  16 as  also  the   provisions contained in the Employment Exchanges  (Compulsory  Notification  of  Vacancies)  Act,  1959  with impunity and the spoils system which prevailed  in the United States of America in the sixteenth and  seventeenth  centuries  got  a  firm  foothold  in  this   country.  Thousands  of  persons  were   employed/engaged  throughout  the  length  and  breadth of the country by backdoor methods. Those  who could pull strings in the power corridors at the  higher and lower levels managed to get the cake of   public  employment  by  trampling  over  the  rights  of  other  eligible  and  more  meritorious  persons  registered with  the employment exchanges. A huge  illegal  employment  market  developed  in  different  parts of the country and rampant corruption afflicted  the whole system.”

“116.  In our opinion, any direction by the Court for  absorption  of  all  company  -  paid  staff  would  be  detrimental to public interest in more than one ways.   Firstly, it will compel the Government to abandon the  policy decision of reducing the direct recruitment to   various  services.  Secondly,  this  will  be  virtual   

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abrogation  of  the  statutory  rules  which  envisage   appointment  to  different  cadres  by  direct  recruitment.”

16.In our considered opinion, the ratio of both the aforesaid  

decisions  are  clearly  applicable  to  the  facts  and  

circumstances  of  the  present  case.  In  our  considered  

opinion, there is misplaced sympathy shown in the case of  

the respondents who have worked with the appellants only  

for two years, i.e., from 1981 to 1983. Even assuming that  

the similarly placed persons were ordered to be absorbed,  

the same if done erroneously cannot become the foundation  

for perpetuating further illegality. If an appointment is made  

illegally  or  irregularly,  the  same  cannot  be  the  basis  of  

further  appointment.  An  erroneous  decision  cannot  be  

permitted to perpetuate further error to the detriment of the  

general welfare of the public or a considerable section. This  

has been the consistent approach of this Court. However,  

we intend to refer to a latest decision of this Court on this  

point  in the case of  State of Bihar v.  Upendra Narayan  

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Singh & Others [(2009) 5 SCC 69], the relevant portion of  

which is extracted hereinbelow: -

“67.  By  now  it  is  settled  that  the  guarantee  of   equality  before  law  enshrined  in  Article  14  is  a  positive  concept  and  it  cannot  be  enforced  by  a  citizen or court in a negative manner. If an illegality   or irregularity has been committed in favour of any  individual or a group of individuals or a wrong order   has been passed by a judicial forum, others cannot   invoke the jurisdiction of the higher or superior court   for repeating or multiplying the same irregularity or   illegality or for passing wrong order”

[A reference in this regard may also be made to the earlier  

decisions  of  this  Court.  See  also:  1)  Faridabad  CT.  Scan  

Centre v. D.G. Health Services and Others [(1997) 7 SCC  

752]; 2) South Eastern Coalfields Ltd. v. State of M.P. and  

Others   [(2003) 8 SCC 648] and 3)  Maharaj Krishan Bhatt  

and Another v. State of J&K and Others [(2008) 9 SCC 24]].

If  at  this  distant  date  an  order  is  passed  for  

reappointment  or  absorption  of  the  respondents,  the  same  

would be in violation of the settled law of the land reiterated in  

the decisions relied upon in this judgment.

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17.Counsels  for  the  parties  also  fairly  agree  that  the  

respondents have not been working with the appellants at  

any point of time after 1983. There was also a continuing  

ban on recruitment due to which there was no recruitment  

or  appointment  in  the  Group  ‘D’  posts  of  the  Ordnance  

Factory Board.  

18.In  view  of  the  aforesaid  discussions  and  conclusions  

arrived at, we are of the considered opinion, that this appeal  

should be allowed, which we hereby do. We set aside the  

orders passed by the Tribunal as also by the High Court.  

There will be no order as to costs.

…...........………………..J.          [J.M. Panchal]

       .....……………………….....      [Dr. Mukundakam Sharma]

New Delhi, January 15, 2010.

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