UNION OF INDIA Vs ARULMOZHI INIARASU .
Bench: D.K. JAIN,H.L. DATTU, , ,
Case number: C.A. No.-004990-004991 / 2011
Diary number: 23765 / 2010
Advocates: B. KRISHNA PRASAD Vs
VIJAY KUMAR
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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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