1. Appeal against High Court order directing absorption of ad hoc employees based on a precedent where vacancies were conceded. (Para 2 )
Back
Next 
1999 Supreme(SC) 1440
SUPREME COURT OF INDIA
G.B.Pattanaik : U.C.Banerjee
Municipal Council, Ambala
Versus
Balwinder Singh
Case No. : 6975 of 1999
Date of Decision : 12/6/99
A Writ of Mandamus for employee absorption cannot be issued if the employer proves no vacancies exist and a seniority-based absorption policy is in place, particularly when the lower court's decision relied on a concession made in a different case.
Headnote:(A) Writ of Mandamus - Absorption of employees - Government Circular - Absorption of daily-wagers and ad hoc employees should be conducted seniority-wise against available vacancies as per government policy - Where the employer has filed a counter-affidavit stating that no vacancies exist and a scheme for absorption based on seniority has been prepared, a Writ of Mandamus for absorption cannot be issued - A court cannot dispose of a matter by following a previous decision where the outcome was based on a concession made by the party in that specific case, if such concession is absent in the present case. (Paras 3, 4)
Facts of the case:
The High Court directed the absorption of employees by following a previous decision where the employer had conceded the existence of vacancies. However, in the present case, the employer filed a counter-affidavit stating that no vacancies existed and a scheme for absorption based on seniority had been prepared. Furthermore, a government circular mandated that daily-wagers and ad hoc employees be absorbed seniority-wise against available vacancies.
Findings of Court:
The court found that the High Court's direction was unsustainable because it relied on a previous case's concession which did not apply to the current facts, and the employer had already committed to following the government circular for absorption as and when vacancies arise.
Issues: Whether the High Court was justified in issuing a Writ of Mandamus for absorption based on a previous case's concession when the employer in the current case denied the existence of vacancies.
Ratio Decidendi: A Writ of Mandamus for absorption cannot be issued if the employer demonstrates that no vacancies exist and that a policy for seniority-based absorption is being followed.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Respondent contended that no vacancies exist and absorption will occur seniority-wise as per government circulars when vacancies arise. (Para 3 , 4 , 5 )
3. High Court erred in applying a precedent based on a concession of vacancies to a case where the employer denied the existence of vacancies. (Para 3 , 4 )
4. A Writ of Mandamus cannot be issued to compel absorption when the employer demonstrates that no vacancies exist. (Para 4 , 5 )
5. Impugned direction of the High Court quashed and appeal allowed. (Para 5 , 6 )
6. Can a Writ of Mandamus be issued to compel absorption of employees if no vacancies exist?
No. If the employer has indicated through a counter-affidavit that no vacancies exist, the court cannot issue a Writ of Mandamus to compel absorption. (Para 4 )
7. What is the procedure for absorbing daily-wagers and ad hoc employees according to the government circular?
Daily-wagers and ad hoc employees recruited during the vacancy period should be absorbed seniority-wise against the available vacancies. (Para 4 , 5 )
8. Can a court follow a precedent based on a party's concession if that concession is absent in the current case?
No. The court found it improper to follow a decision based on a counsel's concession regarding the existence of vacancies when the current employer denied such vacancies. (Para 3 )
(1) LEAVE granted.
(2) THE appeal is directed against the judgment and order of the Punjab & Haryana High Court dated 27th April, 1999. The High Court in the impugned judgment without even indicating the facts, disposed of the matter following its earlier decision in the case of Arun Kumar & Ors. v. State of Haryana [in C.W.P. No. 8180/97]. In Arun Kumars case on the basis of the concession made by the counsel appearing for the Municipal Council that vacancies exist, the Court had passed certain orders and issued direction to accommodate the petitioners on ad hoc vacancies, to be regularised thereafter in accordance with the seniority.
(3) IN the present case, in the High Court itself on behalf of the Municipal Council, a counter-affidavit had been filed indicating therein that a scheme has been prepared for absorption of the employees like the petitioners keeping in view their seniority in question. We really fail to understand how the High Court disposed of the matter following the decision in Arun Kumars case where a counsel appearing for the Municipal Council has made the concession in question.
(4) THE learned counsel for the respondent brought to our notice a circular of the Financial Commissioner dated 13th May, 1997 wherein the Government had taken a decision that the daily-wagers and ad hoc employees recruited during the vacancy period should be absorbed seniority-wise against the available vacancies. This being the circular and the Municipality having filed the counter affidavit indicating that there does not exist any vacancy, we really fail to understand how the Court can issue a Writ of Mandamus in the nature issued in the present case.
(5) MR. Prem Malhotra, learned counsel appearing for the Municipal Council states that as and when the vacancies are available following the Government circular, absorption of the employees will be made in accordance with their seniority. In the aforesaid premises, we are unable to sustain the impugned direction of the High Court and the same is quashed.
(6) THIS appeal is allowed accordingly.
