2007 (4) TMI 759 - SC - Indian Laws

Legal Principle: Statutory Rules Trump Policy, Invalid Appointments Null

State of Orissa and Ors. Versus Prasana Kumar Sahoo

State of Orissa and Ors. Versus Prasana Kumar Sahoo - AIR 2007 SC 2588, JT 2007 (6) SC 182, 2007 (6) SCALE 236, (2007) 15 SCC 129, [2007] 5 SCR 697 ISSUES PRESENTED AND CONSIDERED 1. Whether an executive circular relaxing the upper age limit for retrenched census employees constitutes a policy of regularisation or absorption into State service that can override statutory recruitment rules and constitutional mandates under Articles 14 and 16. 2. Whether a Tribunal/High Court can direct permanent absorption/appointment of retrenched employees into State posts on the basis of such circulars or its own orders, without strict compliance with recruitment rules and constitutional requirements. 3. Whether appointments already made in breach of recruitment rules and constitutional provisions can be sustained, or whether equality requires perpetuation of earlier illegality. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Legal effect of executive circular relaxing upper age limit: does it amount to policy for regularisation/absorption overriding recruitment rules and Articles 14 & 16? Legal framework: Executive instructions and policy decisions issued under Article 162 must conform to statutory recruitment rules (Article 309) and the equal-opportunity guarantees of Articles 14 and 16. Regularisation/absorption into State service is a mode of recruitment and must obey recruitment rules and constitutional constraints. Precedent treatment: The Court relied on established precedents holding that executive policy cannot override statutory rules and that regularisation cannot be effected in contravention of statutory recruitment procedures (referencing the principle in Umadevi and subsequent authorities applying it). Interpretation and reasoning: The circular dated 21.3.1995 was examined and interpreted as providing only for relaxation of upper age limit for specified retrenched census employees, expressly subject to recruitment rules. It did not lay down any policy of regularisation or automatic absorption. Therefore the circular cannot be treated as conferring a right to appointment or as authorising contravention of the recruitment procedure or constitutional mandates. Ratio vs. Obiter: Ratio - Executive circulars that merely relax age limits, where expressly subject to recruitment rules, do not constitute a policy of regularisation that can override statutory recruitment rules or Articles 14 and 16. Obiter - Observations on perceived intent or practice of appointment of many retrenched employees do not alter the legal effect of the circular. Conclusion: The circular cannot be treated as a policy of regularisation or absorption that entitles persons to appointment without compliance with recruitment rules and constitutional requirements. Issue 2 - Validity of Tribunal/High Court directions for absorption based on the circular and interim orders; interplay of contempt/interim relief and final recruitment entitlement. Legal framework: Tribunals and courts can grant interim relief or direct consideration of cases, but substantive appointments must comply with statutory recruitment rules. A direction for appointment which effectively amounts to regularisation must be consistent with the constitutional and statutory scheme; interim or contempt-related orders do not create a substantive right to permanent absorption contrary to recruitment rules. Precedent treatment: Prior rulings (including Umadevi and later authorities) were followed to the extent that they hold appointments in violation of recruitment rules are nullities and that courts cannot perpetuate illegality by regularising appointments contrary to statutory procedure. Interpretation and reasoning: The Tribunal's orders directing consideration/absorption and the High Court's observations in writ proceedings were considered. The Court held that observations in earlier High Court order did not constitute a binding direction effecting permanent absorption because that order had set aside an earlier Tribunal direction. The Tribunal's direction to absorb certain retrenched candidates was impermissible to the extent it sought to bypass recruitment rules. Interim protection against termination does not convert into a substantive right to regularisation where recruitment rules are not complied with. Ratio vs. Obiter: Ratio - Judicial or quasi-judicial interim orders or directions cannot be used to sidestep recruitment rules and constitutional requirements to effect permanent absorption; substantive regularisation must follow prescribed statutory procedures. Obiter - Points regarding administrative convenience or compassion in individual cases. Conclusion: The Tribunal/High Court could not validly direct permanent absorption based solely on the circulars and interim orders; appointments must adhere to recruitment rules and constitutional guarantees. Issue 3 - Effect of prior irregular appointments and the principle of equality: can illegality be perpetuated because others similarly situated were irregularly appointed? Legal framework: Article 14 embodies a positive concept of equality; courts can issue mandamus only when a legal right exists and a corresponding legal duty on the State. The principle that there cannot be 'equality in illegality' prevents perpetuation of earlier unlawful appointments. Precedent treatment: The Court applied precedent holding that illegality cannot be sustained merely because others have been irregularly appointed; subsequent judicial relief cannot create new illegitimate rights that perpetuate earlier contraventions (citing authorities applying Umadevi and the maxim against equality in illegality). Interpretation and reasoning: The existence of earlier appointme nts of similarly situated persons, even if true, does not entitle other claimants to similar irregular relief where such appointments were in breach of recruitment rules. A writ of mandamus requires an existing legal right; mere disparate past administrative actions do not generate lawful entitlement if they were themselves illegal. Ratio vs. Obiter: Ratio - Illegality cannot be perpetuated; courts should not direct appointments that would perpetuate prior breaches of recruitment rules; absence of a legal right negates entitlement to mandamus. Obiter - Considerations of fairness or administrative lapse in notifying candidates. Conclusion: Past irregular appointments do not validate similar relief for others; the impugned order directing absorption on those grounds is impermissible and unsustainable. Final Disposition and Practical Consequence (Court's Conclusion) The impugned judicial order directing absorption based on the circulars was set aside. The Court held that executive circulars relaxing age, being expressly subject to recruitment rules, do not confer a legal right to regularisation or absorption in contravention of statutory rules and Articles 14 and 16; appointments made in violation of statutory recruitment provisions are nullities and cannot be perpetuated even if similarly unlawful appointments occurred earlier. No costs were awarded in the circumstances.