Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2090 OF 2007
UNION OF INDIA & ANR. ……. Appellants
Versus
KARTICK CHANDRA MONDAL & ANR. .... Respondents
JUDGMENT
Dr. Mukundakam Sharma, J.
1. By filing the present appeal, the appellants have challenged
the legality and validity of the order dated 17.08.2005
passed by the Calcutta High Court whereby the Division
Bench of the Calcutta High Court upheld the direction given
by the Central Administrative Tribunal [for short ‘CAT’] to
absorb the respondents in any suitable post commensurate
with their qualifications.
2. The issue that is, therefore, canvassed before this Court by
the appellants is whether such direction to absorb the
respondents could have been issued by the CAT and the
Calcutta High Court, particularly, in view of the fact that
the respondents were engaged as Peons on casual basis
without having been recruited through the proper
procedure and having not been sponsored by the
Employment Exchange and having worked with the
appellant no. 2 only for two years, i.e., from 1981 to 1983.
3. The respondents herein, Shri K.C. Mondal and Shri S.K.
Chakraborty, were engaged to work as casual labours in the
office of the Ordnance Factory Board, Kolkata without going
through the regular process of recruitment of their names
being sponsored by the Employment Exchange, which was
the extant policy at the relevant point of time. After their
engagement as casual labours, they worked for two years
with appellant no. 2, i.e., till 1983 and they were disengaged
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from service in the month of April, 1983 on the ground that
their names were not sponsored by the Employment
Exchange.
4. The respondents thereupon filed an Original Application
before the CAT, registered as O.A. No. 285 of 1990 seeking a
direction to the appellant no. 1 for their re-engagement and
also for regularisation of their service w.e.f. 1983 or 1985.
In support of the said claim, the respondents relied upon
the Government of India notification issued by the Ministry
of Personnel and Training, Administrative Reforms and
Public Grievances and Pension [Department of Pensions
and Training] dated 07.05.1985 issued under Office
Memorandum No. 49014/18/84-Estt.[G] on the subject of
regularisation of the services of the casual workers in Group
‘D’ posts by way of relaxing the condition of recruitment of
casual workers through Employment Exchanges only.
5. The counsel for the respondents had, before the Tribunal,
urged that the office memorandum dated 07.05.1985
cannot be said to apply only to those who were in service as
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casual workers at that time but it was a general policy
governing the regularisation of the service of causal workers
who were recruited otherwise than through the Employment
Exchange. It was submitted that, therefore, the benefit of
the office memorandum would belong to the respondents
also.
6. After hearing the parties, the Tribunal held that the
contention of the learned counsel for the respondents with
regard to the applicability of the said office memorandum to
the respondents could not be accepted. While coming to the
aforesaid conclusion, the Tribunal relied upon the language
of the said Office Memorandum, the relevant part of which
is extracted below: -
“Though these persons may have been continuing as
casual workers for a number of years, they are not
eligible for regular appointment and their services
may be terminated any time. Having regard to the
fact that casual workers belong to the worker section
of the society and termination of their services will
cause undue hardship to them, it has been decided,
as a one time measure, in consultation with the
DGE&T, that casual workers recruited before the
issue of these instructions may be considered for
regular appointment to Group ‘D’ posts, in terms of
the general instructions even if they are recruited
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otherwise than through the employment exchange,
provided they are eligible for regular appointment in
all other respects.”
7. The Tribunal, however, granted the prayer of the
respondents on the ground that 10 other similarly placed
casual workers of the Ordnance Factory Board were
regularised w.e.f. 01.01.1987. It was held by the Tribunal
that the aforesaid 10 employees were also casual workers
and all of them were similarly situated as the respondents
inasmuch as they also were not recruited through the
Employment Exchange. Subsequently, the Tribunal held
that the respondents could not claim regularisation of their
service w.e.f. 1983 or 1985, but keeping in view the fact
that they had served the Ordnance Factory Board from
1981 to 1983 with technical breaks, their cases deserved to
be considered favourably for re-engagement as casual
labours. In light of the aforesaid findings, the Tribunal
issued a direction to the appellants to re-engage the
respondents as casual labours if there was work/vacancy in
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preference to freshers and those who rendered lesser length
of service as casual labours.
8. The respondents, thereafter, making an allegation that
despite the said order passed by the CAT the appellants did
not pass any order in favour of the respondents filed a
Contempt Application before the Tribunal which was
disposed of by the Tribunal stating that since no time limit
was stipulated in the order of the Tribunal, therefore, the
appellants could not be held to have committed any
contempt of Court. Since, even thereafter, no order was
passed by the appellants to re-engage the respondents in
terms of the order of the Tribunal, a Writ Petition was filed
by the respondents before the High Court which was again
disposed of by the High Court with a liberty to the
respondents to approach the Tribunal in terms of which the
respondents filed a fresh petition before the Tribunal which
was registered as O.A. No. 903 of 2000. The said O.A. was
heard and disposed of by the impugned judgment and order
dated 11.03.2004 passed by the Tribunal with a direction to
the appellants to absorb the respondents in any suitable
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post commensurate with their qualifications. The appellants
being aggrieved by the aforesaid judgment and order filed a
Writ Petition in the Calcutta High Court which was
registered as WPCT No. 517 of 2004 for setting aside and
quashing the aforesaid order passed by the Tribunal. The
Calcutta High Court heard the parties in the said Writ
Petition and by its judgment and order dated 17.08.2005
dismissed the said Writ Petition holding that the directions
of the Tribunal are justified and that there is no valid
ground for interfering with the aforesaid directions given by
the CAT. Being aggrieved by the said judgment and order,
the present appeal has been filed by the appellants on
which we have heard the learned counsel appearing for the
parties.
9. Several contentions were raised by the counsel appearing
for the appellants before us to challenge the legality and
validity of the orders passed by the Calcutta High Court as
also by the CAT. It was submitted that so far as the
directions issued by the CAT in O.A. No. 285 of 1990 are
concerned, the only direction issued in the said order was to
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re-engage the respondents as casual labours if there was
work/vacancy in preference to freshers and those who
rendered lesser length of service as casual labours. It was
pointed out that the respondents could not be appointed as
casual labours in terms of the aforesaid direction as there
was a total ban on fresh appointments and, therefore, there
was no occasion of giving any fresh appointment to any
person and that no fresh engagement was made of any
casual labour as against any work/vacancy. So far as the
notes of Assistant Legal Adviser and Director General are
concerned, it was submitted that no reliance could have
been placed on the same by the High Court as they were
internal communications and that they having not been
publicized, the same could not have been treated as official
communication made by the competent authority. It was
submitted that the same were only official notes in the
course of processing of the files of the respondents and that
the same could not have been treated by the High Court as
orders issued and publicized by the competent authority
and, therefore, the disposal of the Writ Petition on the said
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notes was invalid and unjustified. It was also submitted
that neither the CAT nor the High Court has any power to
direct absorption of the respondents when they had worked
only for two years and on the date when the O.A. No. 285 of
1990 was filed before the CAT they were not even working
as casual workers. The further submission of the counsel
appearing for the appellant was that the office
memorandum which was issued in 1985 could not have
been relied upon or made the basis for issuing orders in
favour of the respondents, particularly, in view of the fact
that on the date when the aforesaid office memorandum
was issued the respondents had already been disengaged
from service and were not working with the appellant no. 2.
10. The aforesaid submissions of the counsel appearing for the
appellants were refuted by the counsel appearing for the
respondent contending, inter alia, that since the note
written by the Director General to which reference has been
made by the High Court as also the aforesaid
communications between the authorities were in favour of
the respondents both the Tribunal and the High Court were
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justified in relying on the same for issuing necessary
directions to the appellants. It was also submitted by him
as has been held by the High Court that there was a clear
discrimination, for on the one hand ten persons who were
similarly situated as the respondents were absorbed by the
appellants whereas the respondents were denied similar
benefits without any reasonable explanation for such hostile
discrimination.
11. In light of the aforesaid submissions of the counsel
appearing for the parties we have considered the entire
records. So far as the Office Memorandum dated
07.05.1985 is concerned, the same was issued by way of
relaxation of the condition of recruitment of casual workers.
But the fact remains that the respondents worked with the
appellants only for two years, i.e., from 1981 to 1983 and
admittedly on the date when the aforesaid office
memorandum was issued they were not working with the
appellant no. 2. There is nothing in the contents or in the
language of the said office memorandum which would
indicate that there was an intention to give a retrospective
10
effect to the contents of the said notification. Instead, the
language used in the aforesaid notification clearly shows
that the same was intended to be prospective in nature and
not retrospective. Even otherwise, it is a well-settled
principle in law that the court cannot read anything into a
statutory provision which is plain and unambiguous. The
language employed in a statute is determinative factor of
the legislative intent. If the language of the enactment is
clear and unambiguous, it would not be proper for the
courts to add any words thereto and evolve some legislative
intent, not found in the statute. Reference in this regard
may be made to the recent decision of this Court in Ansal
Properties and Industries Limited v. State of Haryana
[(2009) 3 SCC 553] .
12.As has been noted earlier, the said office memorandum
stated that the same would apply only to those persons who
might have been continuing as casual workers for a number
of years and who were not eligible for regular appointment
and whose services might be terminated at any time.
Therefore, it envisaged and could be made applicable to only
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those persons who were in service on the date when the
aforesaid office memorandum was issued. Unless and until
there is a clear intention expressed in the notification that it
would also apply retrospectively, the same cannot be given
a retrospective effect and would always operate
prospectively.
13. The next issue that we are required to consider pertains to
internal communications which are relied upon by the
respondents and which were also referred to by the
Tribunal as well as by the High Court. Ex facie , the
aforesaid communications were exchanged between the
officers at the level of board hierarchy only. An order would
be deemed to be a Government order as and when it is
issued and publicized. Internal communications while
processing a matter cannot be said to be orders issued by
the competent authority unless they are issued in
accordance with law. In this regard, reliance may be placed
on the decision of this Court in State of Bihar and Others
v. Kripalu Shankar and Others [(1987) 3 SCC 34] wherein
this Court observed, in paragraphs 16 and 17, as follows: -
12
“16. Viewed in this light, can it be said that what is
contained in a notes file can ever be made the basis
of an action either in contempt or in defamation. The
notings in a notes file do not have behind them the
sanction of law as an effective order. It is only an
expression of a feeling by the concerned officer on
the subject under review. To examine whether
contempt is committed or not, what has to be looked
into is the ultimate order. A mere expression of a
view in notes file cannot be the sole basis for action
in contempt. Business of a State is not done by a
single officer. It involves a complicated process. In a
democratic set up, it is conducted through the agency
of a large number of officers. That being so, the
noting by one officer, will not afford a valid ground to
initiate action in contempt. We have thus no
hesitation to hold that the expression of opinion in
notes file at different levels by concerned officers will
not constitute criminal contempt. It would not, in our
view, constitute civil contempt either for the same
reason as above since mere expression of a view or
suggestion will not bring it within the vice of sub-
section (c) of Section 2 of the Contempt of Courts Act,
1971, which defines civil contempt. Expression of a
view is only a part of the thinking process preceding
Government action. “emphasis supplied”
17. In the case of Bachhittar Singh v. State of Punjab
a Constitution Bench of this Court had to consider
the effect of an order passed by a Minister on a file,
which order was not communicated. This Court,
relying upon Article 166(1) of the Constitution, held
that the order of the Revenue Minister, PEPSU could
not amount to an order by the State Government
unless it was expressed in the name of Rajpramukh
as required by the said article and was then
communicated to the party concerned. This is how
13
this Court dealt with the effect of the noting by a
Minister on the file:
“The question, therefore, is whether he did in
fact make such an order. Merely writing
something on the file does not amount to an
order. Before something amounts to an order of
the State Government two things are necessary.
The order has to be expressed in the name of
the Governor as required by clause (1) of Article
166 and then it has to be communicated. As
already indicated, no formal order modifying
the decision of the Revenue Secretary was ever
made. Until such an order is drawn up the
State Government cannot, in our opinion, be
regarded as bound by what was stated in the
file. As long as the matter rested with him the
Revenue Minister could well score out his
remarks or minutes on the file and write fresh
ones.””
Besides, the said communications were exchanged after
disposal of the Original Application by the Tribunal. The note
on which reliance has been placed by the High Court
specifically, was written by the Deputy Director, Headquarters
for Director General, Ordnance Factories dated 20.11.1997
and it refers to the orders passed by the Tribunal as also the
order passed in the contempt petition. From a bare perusal of
the note it transpires that it was prepared on a representation
of Shri K.C. Mondal, respondent no. 1 herein, and was
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submitted to the Ministry of Defence requesting to consider his
case for recruitment/absorption/regularisation of services of
casual workers in Group ‘D’ post. That itself indicates that the
proper and competent authority to pass an order for
recruitment, absorption and regularisation was the Ministry of
Defence and not the Director General, Ordnance Factory. In
the said note itself it was clearly mentioned that an early
action in the matter was requested, which means that the said
order was not the official communication which was issued
from the Ordnance Factory Board and that the Director
General, Ordnance Factory was himself not the competent
authority to pass an order regarding absorption, recruitment
and regularisation of service of the respondents. In the said
note it was further stated that the Ministry of Defence may
pass necessary orders to allow regularisation of the services of
Shri K.C. Mondal and Shri S.K. Chakraborty in terms of the
aforesaid office memorandum dated 07.05.1985 or to accord
permission to recruit Shri K.C. Mondal and Shri S.K.
Chakraborty for the post of Peon without reference to the
Employment Exchange in relaxation of ban. The note of the
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Legal Adviser culminated in the aforesaid note of the Deputy
Director which clearly indicates that no official order was
passed by the competent authority and therefore issuing
directions to the appellants to absorb the respondents on the
basis of the same was unjustified and uncalled for.
14. The next issue that we are now required to consider is
whether the aforesaid respondents could have been directed
to be so absorbed. Similar issues regarding absorption or
regularisation of casual labours are raised time and again
in various branches and offices of the Government and this
Court has had the opportunity to deal with such issues in
the past in several cases. We attempt to refer to two
decisions of this Court which are considered to be the latest
decisions and landmark decisions and which are binding on
us. We may refer to the constitutional bench decision of this
Court in Secretary, State of Karnataka and Others v.
Umadevi (3) and Others reported in (2006) 4 SCC 1. The
relevant portion of the said judgment, viz., paragraphs 43 &
45, are as follows:-
16
“ 43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of
our Constitution and since the rule of law is the core
of our Constitution, a court would certainly be
disabled from passing an order upholding a violation
of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14
read with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment,
this Court while laying down the law, has
necessarily to hold that unless the appointment is in
terms of the relevant rules and after a proper
competition among qualified persons, the same
would not confer any right on the appointee. If it is a
contractual appointment, the appointment comes to
an end at the end of the contract, if it were an
engagement or appointment on daily wages or
casual basis, the same would come to an end when
it is discontinued. Similarly, a temporary employee
could not claim to be made permanent on the expiry
of his term of appointment. It has also to be clarified
that merely because a temporary employee or a
casual wage worker is continued for a time beyond
the term of his appointment, he 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. It is not open to the
court to prevent regular recruitment at the instance of
temporary employees whose period of employment
has come to an end or of ad hoc employees who by
the very nature of their appointment, do not acquire
any right. ……………”
“45. While directing that appointments, temporary or
casual, be regularised or made permanent, the
courts are swayed by the fact that the person
17
concerned has worked for some time and in some
cases for a considerable length of time. It is not as if
the person who accepts an engagement either
temporary or casual in nature, is not aware of the
nature of his employment. He accepts the
employment with open eyes. It may be true that he is
not in a position to bargain—not at arm’s length—
since he might have been searching for some
employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground alone,
it would not be appropriate to jettison the
constitutional scheme of appointment and to take the
view that a person who has temporarily or casually
got employed should be directed to be continued
permanently. By doing so, it will be creating another
mode of public appointment which is not permissible.
……………………………………………. ……………………
…………………………………………….. …………………
………………………….. It is in that context that one
has to proceed on the basis that the employment
was accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person
concerned knows the nature of his employment. It is
not an appointment to a post in the real sense of the
term. The claim acquired by him in the post in which
he is temporarily employed or the interest in that
post cannot be considered to be of such a magnitude
as to enable the giving up of the procedure
established, for making regular appointments to
available posts in the services of the State. The
argument that since one has been working for some
time in the post, it will not be just to discontinue him,
even though he was aware of the nature of the
employment when he first took it up, is not one that
would enable the jettisoning of the procedure
established by law for public employment and would
have to fail when tested on the touchstone of
constitutionality and equality of opportunity
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enshrined in Article 14 of the Constitution.”
15. Subsequent to the aforesaid decision, the issue again arose
for consideration before the 3-Judges Bench of this Court in
the Official Liquidator v. Dayanand and Others reported
in (2008) 10 SCC 1 wherein this Court in paragraphs 68
and 116 observed as follows: -
“68. The abovenoted judgments and orders
encouraged the political set-up and bureaucracy to
violate the soul of Articles 14 and 16 as also the
provisions contained in the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959
with impunity and the spoils system which prevailed
in the United States of America in the sixteenth and
seventeenth centuries got a firm foothold in this
country. Thousands of persons were
employed/engaged throughout the length and
breadth of the country by backdoor methods. Those
who could pull strings in the power corridors at the
higher and lower levels managed to get the cake of
public employment by trampling over the rights of
other eligible and more meritorious persons
registered with the employment exchanges. A huge
illegal employment market developed in different
parts of the country and rampant corruption afflicted
the whole system.”
“116. In our opinion, any direction by the Court for
absorption of all company - paid staff would be
detrimental to public interest in more than one ways.
Firstly, it will compel the Government to abandon the
policy decision of reducing the direct recruitment to
various services. Secondly, this will be virtual
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abrogation of the statutory rules which envisage
appointment to different cadres by direct
recruitment.”
16. In our considered opinion, the ratio of both the aforesaid
decisions are clearly applicable to the facts and
circumstances of the present case. In our considered
opinion, there is misplaced sympathy shown in the case of
the respondents who have worked with the appellants only
for two years, i.e., from 1981 to 1983. Even assuming that
the similarly placed persons were ordered to be absorbed,
the same if done erroneously cannot become the foundation
for perpetuating further illegality. If an appointment is made
illegally or irregularly, the same cannot be the basis of
further appointment. An erroneous decision cannot be
permitted to perpetuate further error to the detriment of the
general welfare of the public or a considerable section. This
has been the consistent approach of this Court. However,
we intend to refer to a latest decision of this Court on this
point in the case of State of Bihar v. Upendra Narayan
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Singh & Others [(2009) 5 SCC 69] , the relevant portion of
which is extracted hereinbelow: -
“67. By now it is settled that the guarantee of
equality before law enshrined in Article 14 is a
positive concept and it cannot be enforced by a
citizen or court in a negative manner. If an illegality
or irregularity has been committed in favour of any
individual or a group of individuals or a wrong order
has been passed by a judicial forum, others cannot
invoke the jurisdiction of the higher or superior court
for repeating or multiplying the same irregularity or
illegality or for passing wrong order”
[A reference in this regard may also be made to the earlier
decisions of this Court. See also: 1) Faridabad CT. Scan
Centre v. D.G. Health Services and Others [(1997) 7 SCC
752]; 2) South Eastern Coalfields Ltd. v. State of M.P. and
Others [(2003) 8 SCC 648] and 3) Maharaj Krishan Bhatt
and Another v. State of J&K and Others [(2008) 9 SCC 24]].
If at this distant date an order is passed for
reappointment or absorption of the respondents, the same
would be in violation of the settled law of the land reiterated in
the decisions relied upon in this judgment.
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17.Counsels for the parties also fairly agree that the
respondents have not been working with the appellants at
any point of time after 1983. There was also a continuing
ban on recruitment due to which there was no recruitment
or appointment in the Group ‘D’ posts of the Ordnance
Factory Board.
18.In view of the aforesaid discussions and conclusions
arrived at, we are of the considered opinion, that this appeal
should be allowed, which we hereby do. We set aside the
orders passed by the Tribunal as also by the High Court.
There will be no order as to costs.
…...........………………..J.
[J.M. Panchal]
.....……………………….....
[Dr. Mukundakam Sharma]
New Delhi,
January 15, 2010.
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