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
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.
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 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 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 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, 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:
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 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 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. 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 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 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 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
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
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.
