REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NOS.4990-4991 0F 2011 (Arising Out of S.L.P. (C) Nos. 25200-25201 of  2010)

UNION OF INDIA & ANR. —    APPELLANTS

VERSUS

ARULMOZHI INIARASU &  ORS.

— RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

1.Leave granted.

2.These 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.  

3.Shorn 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.

4.On 2nd May,  2005,  in  compliance  with  the  directions  issued  by the  

Ministry of Finance, the appellants dispensed with the services of all such  

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casual 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.

5.Upon 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

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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.

6.On 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.

7. Being 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 &  

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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.

8.Aggrieved 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.

9.Mr.  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

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made  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.

10.Per  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  

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taking 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.  

11.Thus,  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?

12.Before 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  

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they 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.)

13.Bearing 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 579 4 (2008) 1 SCC 494 5 (2010) 2 SCC 273

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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.

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14.We 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 clearly unwarranted.

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15.We 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.

16.The  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.

17.In 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)

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ground 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 be withdrawn.

18.Recently,  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 fulfil 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.”

19.Bearing 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

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offer 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. 7.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

XXX

20.It  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  

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time, 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.  

21.At 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.”

22.Having 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.

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23.Lastly, 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 Sahoo11.)

24.In 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) 3 SCC 16 9 (2006) 9 SCC 82 10 (2006) 13 SCC 252 11 (2007) 15 SCC 129

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                             .…………………………………….              (H.L. DATTU, J.)

NEW DELHI; JULY 6, 2011. ARS

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