IMPORTANT POINT
A policy decision to absorb a person who is not in employment of the State without following the recruitment rules would not confer any legal right on him.

Headnote:SERVICE LAW — Appointment to a post — State is bound by constitutional scheme to treat all persons equally in matter of grant of public employment — A purported policy decision issued by way of executive instruction can not override statute or statutory rules — A policy decision to absorb a person who was not in employment of the State without following recruitment rules, would not confer any legal right on him — Respondent was appointed in Census Organisation and was temporary in nature — State Govt. issued a circular and large number of employees were appointed pursuant to that but respondent was appointed in Census Organization — Respondent approach Administrative Tribunal — Tribunal allowed the application — High Court upheld the order in writ — Appeal — Circular did not purport to lay a policy decision relating to regularisation or absorption of census employees — If Tribunal by some misconception or otherwise had granted some relief to some employees of census, same would not confer legal right upon a person to be absorbed in State service without compliance of mandatory provisions of recruitment rules — Impugned judgment could not be sustained.
       Held : It is well-settled that a State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution of India. (Para 13)
       Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions. (Para 14)
       The circular letter dated 21.3.1995 even does not purport to lay a policy decision relating to regularisation or absorption of the census employees. It only provided for relaxation of age. Such relaxation was also subject to strict compliance of the recruitment rules. If by reason of some misconception or otherwise, the Tribunal had granted some relief in favour of some census employees, the same by itself, in our opinion, would not confer any legal right upon a person for being absorbed in State services without compliance of the mandatory provisions of the recruitment rules and the constitutional scheme adumberated under Article 16 of the Constitution of India. (Para 16)
       Regularisation as is well known is not a mode of recruitment. A policy decision to absorb a person who is not in employment of the State without following the recruitment rules, would not confer any legal right on him. A Constitution Bench of this Court in Secretary, State of Karnataka and Others v. Umadevi (3) and Others [(2006) 4 SCC 1], categorically held that any appointment made in violation of the constitutional provisions would be a nullity. (Para 19)
       It may be that some other persons similarly situated have been appointed. But Article 14 as is well known contains a positive concept. 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 by a court of law. It is also well settled that there cannot be equality in illegality. (Paras 24 and 25)
       For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The Appeal is allowed. (Para 26)

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. Respondent herein was appointed by the Union of India in the Census Organisation. His appointment was temporary in nature. He used to be appointed from time to time keeping in view exigencies of work. The State of Orissa issued a circular letter on or about 21.3.1995 relaxing upper age limit of the retrenched census employees for appointment under the State. The said circular letter related to 147 retrenched employees of the census organization. Principally relaxation of age for appointment in the State Service was contemplated thereby stating;

“Now after careful consideration in pursuance of Rule 52 of OSC Government have been pleased to decide that in relaxation of upper age limit prescribed u/r 52A ibid shall be applicable to these 147 retrenched Census Employees of Census Organisations in Orissa as indicated below:

i) The age limit for entry into any post under any rule relating recruitment may be relaxed in the above cases. Relaxation in age may be granted equal to the period of service rendered in the Census Organisation of Orissa prior to retrenchment.

All Departments of Government, all Heads of department and all Collectors are requested to entertain the cases of these retrenched employees when they apply for any post under them suit to their qualification provided they are otherwise eligible for post under the relevant recruitment rules. Necessary detail seeking particulars of these 147 retrenched employees may be obtained from Director of Census Operation, Orissa, Bhubaneswar when necessary.” (Emphasis Supplied)

3. By the said circular letter, no policy for regularization or for absorption of the employees working in the census organization was laid down.

4. Another circular letter was issued on or about 2.7.1999. The question as to whether in terms of the said purported circular letters, the employees working in the census organization were entitled to recruitment came up for consideration before the Orissa Administrative Tribunal and by reason of judgment and order dated 17.12.1998, it was directed;

“6. Be that as it may, the fact remains that these applicants and others who were left out were not given any opportunity to compete with the Respondents while being selected to be posts to which they have been appointed. There is nothing on record to show that these applicants were intimated by any office at any time about the existence of any vacancy nor were they called to any selection test by any governmental authority for recruitment to the post after they were retrenched. In the absence of any such intimation, it was not possible for the applicants and others to know about the vacancy position and to make any application for appointment. As it appears from the resolution that it was the duty of various departments of the State Government to take suo moto initiative to appoint such retrenched candidates. No obligation was cast on these retrenched candidates. No obligation was cast on these retrenched candidates to apply for the posts. It is submitted that in the meantime hundred of posts fell vacant in the Government departments including in the District Offices and Sub-Divisional Offices. If that is so we are of the view that the present attitude taken by the authorities in not considering the retrenched employees like the applicants in preference to others in terms of the aforesaid resolution of the Government is not proper and we may further say that they have committed acts of injustice to the applicants as well as other retrenched candidates. However, it is submitted by the learned counsel for Respondents that about 90 such retrenched candidates have already been appointed in different offices and only about 50 candidates are left for appointment.

7. For the reasons stated above, we hold that the grievance of the applicants is genuine. In view of the fact that the Respondents have been duly selected and they appointed as retrenched candidates, we are not inclined to inter

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2007 Supreme(SC) 584

IMPORTANT POINTA policy decision to absorb a person who is not in employment of the State without following the recruitment rules would not confer any legal right on him.

Cases Referred (9)

IMPORTANT POINT
A policy decision to absorb a person who is not in employment of the State without following the recruitment rules would not confer any legal right on him.