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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.6305-6307 OF 2009

PRATAP KISHORE PANDA      .. APPELLANT VERSUS

AGNI CHARAN DAS        .. RESPONDENT

J U D G M E N T

VIKRAMAJIT SEN, J.

1 The Orissa Public Service Commission (OPSC) issued an advertisement for a  

Competitive Examination (1974-1975) for recruitment of approximately 300 persons,  

of which 16% were reserved for Schedule Castes and 24% for Schedule Tribes.  The  

OPSC recommended names of 714 successful candidates which included 20 in the  

reserved categories, which were approved by the Home Department on 24.11.1977.  

Since a substantially inadequate number of candidates in the reserved categories had  

been  recommended  by  the  OPSC,  the  State  Government  decided  to  fill  these  

remaining seats on an ad hoc basis. Therefore, 403 reserved candidates including the  

Respondents were appointed in four batches between 15.5.1978 and 30.3.1980. The  

names of these candidates had been sponsored by the Employment Exchange and they  

were found suitable by a  duly constituted Selection Committee which interviewed

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them. However, they were appointed with the stipulation that their services would be  

terminated as soon as reserved candidates selected by the OPSC became available.

2 On 31.10.1979, the State Government amended Rule 3 of the Orissa Ministerial  

Service  (Method  of  Recruitment  and  Conditions  of  Service  of  Lower  Division  

Assistant  in the Office of  Department of Secretariat) Rules,  1951 empowering the  

OPSC to recruit candidates for the service by means of a competitive examination.  

Subsequently, vide State Resolution dated 25.5.1982, the ad hoc reserved candidates  

recruited  between  15.5.1978  and  31.10.1979,  including  the  Respondents,  were  

deemed as regular appointments. 52 other reserved candidates who were appointed  

after the OMS Rules 1951 amendment was effected were deemed to be employed on a  

temporary basis until a fresh competitive examination was held under the amended  

Rule 3 of the OMS Rules 1951. Vide another State Resolution dated 4.3.1983, the  

regularization of the ad hoc appointees affected by the previous resolution was given  

retrospective effect from the date of initial appointment as Junior Assistants, with the  

stipulation that in terms of seniority, they were always to be placed below the OPSC  

selected candidates appointed on the same day. Promotions were made in accordance  

with the gradation list prepared by the government pursuant to this resolution dated  

4.3.1983.   As  a  result  of  this,  145  reserved  category  appointees  (including  the  

Respondents)  who  had  not  been  recruited  by  the  OPSC but  through  an  alternate  

method  of  regular  recruitment  became  senior  to  the  Appellants,  who  are  OPSC  

appointed general category candidates.

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3 Some  of  the  OPSC  selected  reserved  category  candidates  challenged  the  

fixation of  their  seniority in the cadre of  Lower Division Assistant  as well  as  the  

promotion of some of the regularized candidates to the rank of Senior Assistant in  

consequence  of  the  alleged  wrong  fixation  of  seniority.   These  proceedings  were  

transferred to the Orissa Administrative Tribunal, which, on 16.8.1989, declared the  

fixation of inter se seniority and promotions of regularized candidates over OPSC  

appointed recruits illegal and contrary to law. The Tribunal took note of the fact that  

the petitioners before it were appointed before the regularized candidates as well as  

the fact that as per the Resolution dated 4.3.1983, the seniority of the former was to be  

above the regularized candidates appointed on the same day.  The Tribunal held that  

the gradation list made in consequence of the Government Resolution dated 25.5.1982  

was illegal, and the petitioners were entitled to consideration for their promotion in  

view of their seniority.

4 Some others of the OPSC selected general category candidates also challenged  

the fixation of seniority.  The Orissa Administrative Tribunal held that a combined  

reading of Rule 3 of the OMS Rules 1951 and Section 9(4) of the O.R.V. Act makes it   

clear that if a sufficient number of candidates belonging to the SC/ST candidates are  

not  available,  a  fresh  recruitment  test  is  required  and  that  no  other  mode  of  

recruitment is provided for.  Furthermore, it was of the opinion that services cannot be  

regularized  by  a  Resolution,  and  accordingly  recruitment  made  by  the  State  

Government contrary to the OMS Rules 1951 cannot be upheld.  Vide order dated  

23.11.1996,  the  Tribunal  held  that  irregularly  appointed  candidates  cannot  have

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seniority  over  regularly  recruited  candidates,  and directed  the  Secretary,  Home  

Department to reexamine and determine seniority according to law.

5 Subsequently,  the  Government  re-examined  the  question  of  appointment  of  

Junior Assistants and determined the seniority by placing the Respondents and other  

reserved candidates selected by the Selection Committee below the OPSC selected  

candidates, in the rank of Junior and Senior Assistants.  

6 On 30.5.2001, a Government Order was passed calling for the Respondents’  

CCRs for consideration of their further promotion to the rank of S.O. (Level II). The  

general category OPSC recruits filed an application seeking to quash this Order. The  

Orissa Administrative Tribunal,  on 21.10.2002, quashed the Order dated 30.5.2001  

insofar as it related to calling for service particulars and CCRs for consideration for  

promotion.  It  directed  that  the  Respondents’ names  be  removed  from  the  active  

common gradation  list  and that  the  OPSC candidates  including the  Appellants be  

considered instead, if they had come within the zone of consideration for promotion.  

7 Aggrieved  by  this  order,  three  groups  of  regularized  Selection  Committee  

appointees filed writ petitions before the High Court. The High Court, vide common  

impugned judgment dated 8.8.2008, allowed all three writ petitions. The Tribunal’s  

order dated 21.10.02 was set aside, and the Resolutions dated 25.5.1982 and 4.3.1983  

were upheld, albeit with some modifications. The High Court observed that Rule 30 of  

the OMS Rules 1951 postulated that notwithstanding anything contained in the said  

Rules, reservation of vacancies for direct recruitment are to be filled in the manner  

prescribed by the O.R.V. Act, Section 9(4) whereof contemplates that in the event that

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sufficient  numbers  of  reserved category  candidates  are  not  available  to  fill-up the  

reserved vacancies, fresh recruitment for only reserved category should take place.  

Reliance was placed on Ashok Kumar Uppal v. State of J&K AIR 1998 SC 2812,  

according to which the power to relax the Recruitment Rules or any other Rules made  

by State  Government  under  Article  309 of  the  Constitution  is  conferred upon the  

Government to meet any emergent situation where injustice might have been caused  

to  any  individual  employee  or  class  of  employees.   Since  the  State  Government  

possesses the power to relax the requirement when it is just and equitable to do so,  

especially in cases of non-availability of candidates in the reserved quotas, the State  

Government was justified in relaxing the requirement for recruitment to these classes.  

Furthermore, the provisions of Article 320 of the Constitution regarding recruitment to  

Civil Service through the Public Service Commission is directory and not mandatory  

in nature. The High Court observed that Article 16(4) of the Constitution of India  

provides that nothing in that Article shall prevent the State from making any provision  

for  the  reservation  of  appointments  or  posts  in  favour  of  any  backward  class  of  

citizens which, in the opinion of the State, is not adequately represented in the services  

under the State. The Court held that since the quota for SC & ST was fixed but not  

fully filled, if the State Government had devised ways of recruitment for filling up the  

reserved  quota  by  relaxing  requirements,  thereby  causing  some  disadvantage  or  

discrimination as vis-à-vis  recruits belonging to general category, the same cannot be  

termed as illegal. The High Court also held that reserved candidates are in a distinct  

class from general candidates and therefore the general category has no locus standi to

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challenge the mode of recruitment employed to fill  the quota meant for the others  

class, and reiterated the dictum that unequals cannot be treated as equals. However,  

the High Court  also held that  candidates  of  the  reserved class  were  competent  to  

challenge the decision of the government superseding them by appointing candidates  

of the same category through another mode of recruitment, as that would amount to  

discrimination. The High Court relied on State of Mysore v. P. Narasing Rao AIR  

1968 SC 349, stating that there is no denial of equal opportunity unless the person  

who complains of discrimination is equally situated with the person or persons who  

are alleged to have been favoured. The High Court observed that the Resolution dated  

25.5.1982 issued by the State Government can be termed as a rule under the proviso to  

Article 309 of the Constitution and held that the Resolution was legal.  According to  

the  Resolution  dated  4.3.1983,  if  the  reserved  category  candidate  selected  by  the  

OPSC joined or was appointed on a date later than the reserved category candidates  

selected  by  the  Selection  Committee,  the  former  would  become junior.  The High  

Court held that this situation would not be proper as the OPSC issued Merit List of  

selected candidates cannot be disturbed in respect of the same class i.e. SC & ST. The  

High Court thus partly modified the resolution, directing that the candidates selected  

by  Selection  Committee  and  subsequently  regularized  should  be  kept  below  the  

candidates selected by the OPSC under the reserved category quota, but should be  

placed in the Seniority List according to the then roster in accordance with the O.R.V.  

Act and Rules framed thereunder. The High Court ordered that in case incumbents  

have already been promoted and are found to be adversely affected by such correction,

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they shall not be reverted to their respective positions until their turn for promotion  

comes in accordance with the corrected gradation list.

8 It would be apposite to reproduce the relevant legal provisions for the facility of  

reference. The relevant provision of the OMS Rules 1951 are:  

3. Recruitment to the service shall be made by means of a competitive  examination to be held once every year.   

Rule 3 was subsequently amended by way of an Amendment dated 31.10.1979  

which was to apply prospectively. The amended version is reproduced below for  

the benefit of comparison:

3. Recruitment to the service shall be made by means of a competitive  examination to be held at such intervals as the State Government may, in  consultation with the Commission from time to time determine. In case  requisite number of Schedule Castes and Schedule Tribes candidates are  not available in the list of successful candidates of such examination for  filling up the reserved vacancies a fresh competitive examination may be  held only for  candidates belonging to Schedule Castes and/or Schedule  Tribes, as the case may be, for filling up the remaining reserved vacancies.  

Rule 11, which was set aside by the Government Resolution dated 25.5.1982, is  

as follows:

11. In  case  a  vacancy  occurs  after  the  list  of  successful  candidates  supplied by the Commission has been exhausted before announcement of  the result  of the next examination, such vacancy may be filled up by a  successful candidate of the previous year, provided that his age does not  exceed the maximum age limit laid down in the rules and failing that, by  any candidate who has the qualification prescribed in rule 20 of Part III. In  the latter event the appointment shall be made temporarily and shall not  continue beyond the date when the result of the next year’s examination is  declared.

The relevant Section of the O.R.V. Act is as follows:

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9 (4). If  the  required  number  of  Scheduled  Caste  and  Scheduled  Tribe candidates are not available for filling up the reserved vacancies, a  fresh recruitment may be made only from candidates belonging to the  Scheduled Castes or the Scheduled Tribes, as the case may be, for filling  up the remaining reserved vacancies.   

Various Articles of  the Constitution have also been referred to by the High Court  

which we have extracted for convenience.-  

16 (4). Nothing in this article shall  prevent the State from making any  provision for  the reservation of  appointments  or  posts  in  favor  of  any  backward  class  of  citizens  which,  in  the  opinion  of  the  State,  is  not  adequately represented in the services under the State.

309.  Recruitment  and conditions  of  service  of  persons  serving  the  Union or a State:    Subject to the provisions of this Constitution, Acts of  the appropriate Legislature may regulate the recruitment, and conditions  of service of persons appointed, to public services and posts in connection  with the affairs of the Union or of any State:  

Provided that it shall be competent for the President or such person  as he may direct in the case of services and posts in connection with the  affairs of the Union, and for the Governor of a State or such person as he  may direct in the case of services and posts in connection with the affairs  of the State, to make rules regulating the recruitment, and the conditions  of service of persons appointed, to such services and posts until provision  in that behalf is made by or under an Act of the appropriate Legislature  under this article, and any rules so made shall have effect subject to the  provisions of any such Act.

320(4). Functions of Public Service Commissions.-   Nothing in clause  (3) shall require a Public Service Commission to be consulted as respects  the manner in which any provision referred to in clause (4) of Article 16  may be made or as respects the manner in which effect may be given to  the provisions of Article 335

The relevant part of the Government Resolution dated 25.5.1982 regularising the ad  

hoc candidates recruited under the OMS Rules also deserves reproduction.

3. Government have been advised that Section 9(4) of the Orissa  Reservation of Vacancies in Posts and Services (For S.C. & S.T.) Act,  1975 which is  intended to confer  benefits  exclusively on S.C.  & S.T.  candidates should prevail over rules 11 of the O.M.S. Rules, 1951.  But

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recruitment made after 31.10.79 i.e. when Rule 3 of the O.M.S. Rules  1951 was amended for bringing about consistency with Section 9 of the  Reservation Act, are to conform to the provisions of the amended rules.  Accordingly  Government  have  been  pleased  to  decide  that  the  recruitment of 403 S.C. & S.T. candidates made in between the period  from 15.5.78 to 31.10.79 should be deemed as regular appointments.  52  S.C.  &  S.T.  candidates  who  were  appointed  on  6.2.80 i.e.  after  amendment  of  the O.M.S.  Rules,  1951 shall  continue on a  temporary  basis  until  fresh competitive examination is  held under  Rule 3 of  the  OMS Rules, 1951 as amended.

The relevant portion of the Resolution dated 4.3.1983 read as follows:

The Services of 403 S.C. & S.T. candidates who were recruited as  Junior Assistants for appointment against the reserved posts lying vacant  in different Departments of Secretariat in between the period from the  15th May  1978  to  the  31st October  1979,  were  regularized  in  Home  Department Resolution referred to above.   The question of fixation of  their inter se seniority vis-à-vis the P.S.C. passed general and S.C. & S.T.  candidates of the recruitment year 1974-1975 in order to regulate their  future  promotion,  was  under  consideration for  some time past.   After  careful examination, it has been decided that inter se seniority of these  candidates would be regulated according to their dates of appointment as  Junior Assistant.  But they will always be placed below the P.S.C. passed  candidates appointed in the same day.

9 Two questions of law have been raised by the Appellants in these Civil Appeals.  

The  first  is  whether  the  High  Court  erred  in  not  following  the  proposition  that  

regularisation  of  unsustainable  ad  hoc appointments  made  in  violation  of  Service  

Rules is not possible.  The second is whether the High Court has erred in ignoring the  

proposition that a power of relaxation does not tantamount to power of putting the  

entire Recruitment Rules on the shelf.  These two questions, we might clarify, have  

been raised by the group of OPSC recruits belonging to the general category. The few  

employees  from  the  SC/ST  quota  who  had  succeeded  in  qualifying  the  OPSC  

examinations and have been placed above other SC/ST candidates whose names had

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been  forwarded  by  the  Employment  Exchange   and   who  were  recruited  via  the  

Selection Committee had no subsisting grievances and that is why have not filed any  

Appeal.  The third group probably resigned themselves to the relatively minor setback  

to their seniority and has also not taken the matter further, presumably because the  

High Court has directed that they are not to be reverted to their earlier positions if they  

have already been promoted, and theybare thus marginally affected by the impugned  

decision.  

10 The impugned Judgment dated 8.8.2008 makes a reference a number of cases,  

but surprisingly its attention had not been drawn to the decision of the Constitution  

Bench in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 which had already  

been pronounced on 10.4.2006 and which is the conclusive authority on the subject.  

Had reference been made to Umadevi it would have obviated the need to refer to any  

earlier decisions.  We shall briefly discuss some of the decisions of this Court that  

were considered by the High Court.   A two Judge Bench in State of Orissa v. Smt.  

Sukanti Mohapatra (1993)  2  SCC  486  approved  the  striking  down  of  the  

regularisation of illegal entry into service contrary to the extant Rules. J&K Public  

Service Commission v. Dr. Narinder Mohan  (1994) 2 SCC 630 reached the same  

conclusion  even  without  adverting  to  Sukanti  Mohapatra.   Dr.  Surinder  Singh  

Jamwal v. State of J&K (1996) 9 SCC 619 is an Order of this Court which decided the  

dispute before it  and did not even attempt to or intend to expound the law and is  

therefore not in the nature of a binding precedent, as will be evident from the fact that  

the Court has actually applied  Dr. Narinder Mohan.   In  Ashok Kumar Uppal  v.

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State of J&K (1998) 4 SCC 179, this Court allowed the relaxation of the prevailing  

recruitment  rules  to  prevent  hardship  and injustice  to  the  appellants  therein.  With  

exponential  increase  in  the  decisions  delivered  by  this  Court  it  has  become  an  

imperative  for  Advocates  to  distinguish  between  orders  and  judgments  and  to  

correctly cull out the ratio of a judgment.  Learned Senior Counsel for the Appellants  

has sought support from the observations of the Constitution Bench in Direct Recruit  

Class II Engineering Officers Association v. State of Maharashtra (1990) 2 SCC 715  

without  appreciating  that  the  dispute  therein  revolved  around  the  never-ending  

disharmony between Direct recruits and promotees as regards inter se seniority.  The  

conundrum  before  us  is  essentially  different  making  it  untenable  to  read  every  

statement made therein automatically applicable.

11 These decisions, however, need not be adverted to in the exposition of the aspect  

of  the  law  which  arises  before  us.  The  prevailing  law  is  now  discernable  from  

Umadevi, which has correctly been cited before us in extenso.  The Umadevi doctrine  

is  that  if  employment of  persons is contrary to or  de hors the statutory provisions  

and/or Rules and Regulations, then equities will not have any play even if such persons  

have been rendering services for several years.   The most that can be done for such  

employees is for the State Government to devise a scheme, as a one-time measure, for  

their absorption so long as the Governing Statute or the Rules and Regulations are not  

infringed.   In  the  words  of  the  Constitution  Bench  –  “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

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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.” Reliance on paras 33, 36 and 47 however does not advance the case of the  

Appellant since the State Government in the present case has carried out recruitment in  

a regular manner, albeit  beyond the OPSC which had presented a panel containing  

negligible  number  of  SC/ST  candidates.  The  subject  challenged  recruitment  was  

neither capricious nor arbitrary but on the contrary was carried out in consonance with  

a known method of selection, viz. Rule 9(4).  This was not a case of ad hoc employees  

being selected in a whimsical, inconsistent or haphazard manner or in order to favour  

some individuals. The incumbents were sponsored by the Employment Exchange and  

over 400 candidates were found suitable by a duly constituted Selection Committee  

which interviewed them.  It was not a relaxation of the Rules in order to favour a few,  

but  was the consequence of following an alternate method of selection intended to  

remedy a malady in the recruitment of SC/ST candidates. It is well within the powers

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of  the  State  to  organise  an  alternative  recruitment  drive  when  insufficient  SC/ST  

candidates are available, and under Article 320(4) of the Constitution the OPSC was  

not required to be consulted.  

12 It would be pertinent to discuss the amendment made to Rule 3 of the OMS  

Rules 1951. It was only on 10.10.1979 that the Rule was amended, introducing the  

requirement that in case the requisite number of SC/ST candidates are not available for  

filling up reserved vacancies, a fresh competitive examination must be held only for  

SC/ST candidates. The implication that can be drawn from the amendment to this Rule  

especially  because it  has  prospective effect,  is  that  prior  to  10.10.1979,  it  was not  

mandatory to carry out recruitment only through the aegis of the OPSC for filling up  

vacancies even in the reserved categories.   This furthers the case of the Respondents  

that the recruitment process through the Selection Committee was not violative of any  

existing Rule, in that the Rule it may be perceived to have violated did not exist at the   

time of their appointment. It seems to us that the reason this amendment was given  

prospective effect is that the State did not want to detrimentally affect the status of  

employees already recruited in a fair, transparent and regular manner albeit de hors to  

OPSC, or destabilize the legitimacy of that recruitment.   This seems to have been the  

purpose  sought  to  be  achieved  by  the  State  Government  in  its  Resolution  dated  

25.5.1982, which we find imparted permanence to the Respondents’ valid recruitment  

rather than regularized their hithertofore ad hoc character.   

13 Till 31.10.1979, the method of filling up vacancies when successful candidates  

were not available was laid out in Rule 11, which required that the vacancies by filled

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up by successful candidates from the previous year who are within the age limit. The  

Government Resolution dated 25.5.1982 which regularized the  ad hoc  candidates set  

aside  Rule  11,  allowing  Section  9(4)  of  the  O.R.V.  Act  to  prevail  over  it.  The  

Government  cannot  be  faulted  for  placing  reliance  on  the  Act  as  opposed  to  the  

contradictory Rules,  as  the latter  is  merely delegated legislation and deals  with all  

vacancies, as opposed to the Section of the Act which specifically pertained to SC/ST  

candidates.   

14 Rule 30 of the OMS Rules 1951 deals with scenarios where a sufficient number  

of successful SC/ST candidates are not available. It directs that in such a situation, the  

vacancies be filled up as unreserved vacancies and also be carried forward for  the  

subsequent years. Once again, this Rule is in the face of Section 9(4), which prescribes  

a fresh recruitment drive. Section 9(5) holds that if this fresh recruitment fails to fill up  

the available seats, the vacancies should be filled by general candidates. Rule 30 thus  

skips  one  of  the  steps  postulated  by statute,  and  in  light  of  the  rules  of  statutory  

interpretation, must be cast aside in favour of the method of recruitment laid down by  

the O.R.V. Act.  

15 It is thus clear that at the time of appointment of the Respondents, the prevailing  

law regarding appointment of SC/ST candidates to surplus vacancies was contained in  

Section 9(4) of the O.R.V. Act. This Section does contain or prescribe any limitation  

regarding  the  method  of  fresh  recruitment  except  that  it  be  restricted  to  SC/ST  

candidates.  The  sponsorship  of  names  by  the  Employment  Exchange  and  the  

subsequent  interview by  a  duly  constituted  Selection  Committee  was  thus  a  valid

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alternative to recruitment by way of the OPSC competitive examination.  In fact, a  

fresh recruitment would not have been possible by means of a competitive examination  

as Rule 3 required that these be conducted once a year, and the examination for 1974-

75 had already been conducted, yielding a meager number of 20 SC/ST candidates. We  

therefore find the method of appointment of the Respondents to be valid in the eyes of  

the law; their regularization with effect from the date of appointment cannot be faulted.

16 The other question to which we must turn our attention is whether the Appellants  

had the  locus standi to challenge the mode of recruitment of the Respondents. The  

High Court has held that since they were not of the reserved class, they did not have  

the locus standi to challenge mode of recruitment of the Respondents who were of the  

reserved class, on the principle that unequals cannot be treated as equals. While we  

accept the principle itself, we do not find it pertinent to the factual scenario before us.  

The unrefuted factual position is that by virtue of their retrospective regularization,  

several of the Respondents gained seniority over the Appellants. In light of the direct  

impact on them, the Appellants would have the locus standi to challenge the validity of  

the appointment of the Respondents. However, for the reasons discussed above, the  

challenge while allowed is not successful.

17 It also seems to us that the High Court may not have been justified in allowing  

the challenge by the OPSC reserved category candidates. In light of the fact that the  

Respondents were appointed in a legal and legitimate manner, the Merit List should not  

have been disturbed to protect the rights of the OPSC recruits. It is certainly arguable  

that there was no justification to destabilize seniority by departing from the general

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principle of service law that seniority is determined by the date of joining.   However,  

this contention has not been raised before us,  so we shall  refrain from any further  

discussion on the matter, which hereafter stands closed for not having been pressed till  

date.

18 We see it fit to uphold the impugned Judgment.  We dismiss the Appeals before  

us, but with no order as to costs.  

        ......................................................J.         (VIKRAMAJIT SEN)

      ......................................................J.       (PRAFULLA C. PANT)

New Delhi, October 16, 2015.