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State Of Orissa And Others v. Prasana Kumar Sahoo .
Factual and Procedural Background
The respondent was a temporary employee in the Union of India’s Census Organisation, engaged from time to time as work required. After the State of Orissa issued a Circular dated 21 March 1995 relaxing the upper-age limit for 147 retrenched census employees to facilitate their recruitment into State service, the Orissa Administrative Tribunal on 17 December 1998 directed the State to absorb remaining retrenched workers within six months.
Although many employees were subsequently appointed, the respondent was re-engaged by the Census Organisation on 7 February 2001. Anticipating termination, he obtained an interim Tribunal order on 17 April 2001 preventing such termination, yet his services were ended on 1 June 2001. Contempt proceedings followed, resulting in a Tribunal order of 28 January 2002 directing the State to appoint him temporarily as a junior clerk pending final adjudication.
The State challenged that order before the Orissa High Court, which on 19 January 2005 set aside the Tribunal’s specific direction but remarked that the Government should comply with its circulars concerning retrenched census employees. Relying on those observations, the Tribunal again ordered the respondent’s permanent absorption, and the High Court later dismissed the State’s writ petition against that decision. The present appeal by the State was therefore brought before the Supreme Court.
Legal Issues Presented
- Whether the State’s Circulars dated 21 March 1995 and 2 July 1999 constituted a binding policy decision requiring automatic absorption or regularisation of retrenched census employees.
- Whether the Tribunal and High Court could direct the respondent’s absorption in State service without compliance with the applicable recruitment rules under Articles 14, 16, and 309 of the Constitution.
Arguments of the Parties
Appellant (State of Orissa)
- The circular letters provided only for relaxation of the upper-age limit; they did not create a policy of regularisation or absorption.
- Any appointment must conform to existing recruitment rules; executive instructions cannot override statutory or constitutional provisions.
- The Tribunal and High Court therefore erred in treating the circulars as a mandate for permanent absorption.
Respondent
- The State had, in practice, adopted a policy of appointing retrenched census employees, and many similarly situated individuals had already been absorbed.
- Failure to accord the same treatment to the respondent amounted to discrimination, especially as his suitability for a Class III post was never questioned.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A. Umarani v. Registrar, Coop. Societies (2004) 7 SCC 112 | Regularisation cannot be ordered under Article 162 when appointments contravene statutory rules. | Cited to show that executive action cannot legitimise appointments made outside recruitment rules. |
| State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 | Appointments made in violation of constitutional or statutory provisions are nullities. | Relied upon as the governing authority barring regularisation without adherence to the prescribed process. |
| Gurbachan Lal v. Regional Engg. College (2007) 11 SCC 102 | Followed Umadevi on illegality of irregular appointments. | Referenced to reinforce the principle that courts cannot perpetuate illegality. |
| State of U.P. v. Desh Raj (2007) 1 SCC 257 | Umadevi followed; regularisation requires compliance with rules. | Cited as additional support for rejecting absorption without proper recruitment. |
| Punjab Water Supply & Sewerage Board v. Ranjodh Singh (2007) 2 SCC 491 | Umadevi followed on the same point. | Used illustratively to confirm prevailing jurisprudence. |
| National Institute of Technology v. Niraj Kumar Singh (2007) 2 SCC 481 | Umadevi followed; irregular appointments confer no right. | Reaffirmed the bar on court-ordered regularisation. |
| Punjab State Warehousing Corpn. v. Manmohan Singh (2007) 9 SCC 337 | Umadevi followed. | Cited for consistency with the governing precedent. |
| Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy (2006) 8 SCC 671 | Age relaxation must comply with all other recruitment conditions. | Applied to illustrate that mere age relaxation does not override remaining eligibility criteria. |
| Sushanta Tagore v. Union of India (2005) 3 SCC 16 | There can be no equality in illegality. | Used to reject the plea of parity with those wrongly appointed. |
| State v. Sashi Balasubramanian (2006) 13 SCC 252 | Reiterated “no equality in illegality.” | Further authority for denying a claim based on past irregularities. |
| U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh (2006) 9 SCC 82 | Same principle of no equality in illegality. | Supported the Court’s refusal to perpetuate earlier wrongful appointments. |
Court's Reasoning and Analysis
The Supreme Court held that Articles 14 and 16 obligate the State to ensure equality in public employment, which necessarily requires adherence to duly-framed recruitment rules. Executive circulars, issued under Article 162, are subordinate to those rules and cannot confer a right to regularisation or absorption.
The Circular dated 21 March 1995, on its face, provided only for relaxation of the upper-age limit and expressly made such relaxation subject to the applicable recruitment rules. It did not announce a policy of automatic absorption. Consequently, the Tribunal’s and High Court’s directions—premised on treating the circulars as a regularisation scheme—lacked legal foundation.
Reliance on the fact that other retrenched census employees had been appointed could not aid the respondent: consistent with Umadevi and subsequent cases, illegal appointments do not create enforceable rights, and courts cannot command the continuation or repetition of illegality. Age relaxation, moreover, does not dispense with the requirement to satisfy all other eligibility conditions.
The observations made by the High Court in earlier proceedings were declaratory, not mandatory; they did not bind the State to absorb the respondent. Regularisation is not a mode of recruitment, and without a statutory basis or selection under the rules, the respondent had no legal right to State employment.
Holding and Implications
Appeal Allowed; Impugned Judgment Set Aside.
The respondent’s claim to permanent absorption was rejected, and the orders of the Tribunal and High Court were nullified. The decision reaffirms that executive instructions cannot override recruitment rules and that courts will not perpetuate appointments made in disregard of constitutional and statutory requirements. No costs were awarded, and the ruling creates no new exception to the principles established in Umadevi and related cases.
S.B Sinha, J.— Leave granted. The 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.
2. 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 Organisation. 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, the Government have been pleased to decide that in relaxation of upper age-limit prescribed under Rule 52-A 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 the Government, all Heads of Departments and all Collectors are requested to entertain the cases of these retrenched employees when they apply for any post under them suited to their qualification provided they are otherwise eligible for post under the relevant recruitment rules. Necessary details seeking particulars of these 147 retrenched employees may be obtained from Director of Census Organisation, Orissa, Bhubaneshwar when necessary.”
(emphasis supplied)
By the said circular letter, no policy for regularisation or for absorption of the employees working in the Census Organisation was laid down.
3. 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 Organisation were entitled to recruitment came up for consideration before the Orissa Administrative Tribunal and by reason of the 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 the 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 motu 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 hundreds of posts fell vacant in the government departments including 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 the 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 regularisation. Hence, Respondents 4 to 13 wherever already in service shall continue to work in their posts according to rules.
8. We direct the State Government and Respondents 1 and 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.”
4. Although a large number of employees were said to have been appointed pursuant to the said policy decision, the respondent herein was again appointed in the Census Organisation 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.
5. 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 clerk on a temporary basis and subject to the final order of the Tribunal.
6. 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 Organisation, 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 Organisation 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.”
7. The Tribunal thereafter allowed the original application filed by the respondent directing:
“In view of the said observations of the Hon'ble High Court coupled with the policy decision and order of the Government as at Annexures 2 and 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 Respondent 3 if his case is covered with the conditions mentioned in Annexures 2 and 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 within the said period.”
8. 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.
9. 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 regularisation 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.
10. Mr Bharat Sangal, 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 to a Class III post.
11. 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.
12. 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.
13. In A. Umarani v. Registrar, Coop. Societies (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.”
14. 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 with 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 with the mandatory provisions of the recruitment rules and the constitutional scheme adumbrated under Article 16 of the Constitution of India.
15. Submission of Mr Bharat Sangal, 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 proceedings.
16. We have noticed hereinbefore that the High Court had set aside the order of the Tribunal directing the petitioner to reinstate 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.
17. 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 State of Karnataka v. Umadevi (3) (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 Engg. College (2007) 11 SCC 102, (2007) 4 Scale 1.
18. We may notice that in a large number of decisions, Umadevi (2006) 4 SCC 1 has been followed by this Court e.g State of U.P v. Desh Raj (2007) 1 SCC 257, (2006) 13 Scale 382, Punjab Water Supply & Sewerage Board v. Ranjodh Singh (2007) 2 SCC 491, (2006) 13 Scale 426, National Institute of Technology v. Niraj Kumar Singh (2007) 2 SCC 481, (2007) 2 Scale 525 and Punjab State Warehousing Corpn. v. Manmohan Singh (2007) 9 SCC 337, (2007) 3 Scale 401.
19. 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 v. Sajal Kumar Roy (2006) 8 SCC 671.
20. 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.
21. It is also well settled that there cannot be equality in illegality. See Sushanta Tagore v. Union of India (2005) 3 SCC 16, State v. Sashi Balasubramanian (2006) 13 SCC 252, (2006) 10 Scale 541 and U.P State Sugar Corpn. Ltd. v. Sant Raj Singh (2006) 9 SCC 82, (2006) 6 Scale 205.
22. 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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