Supreme Court of India
STATE OF UTTARANCHALversusALOK SHARMA & ORS.
- Citation
- 2009 INSC 502
- Decided
- 15 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The circular letters were not notified orders; the conditions of the 1991 Rules were not complied with, so the petitioners had no enforceable right to absorption and the High Court orders were set aside.
Summary
The Supreme Court examined whether circular letters issued by the Uttar Pradesh Government in 1995 and 1996 could be treated as the "notified orders" required under the Uttar Pradesh Absorption of Retrenched Employees of Government of Public Corporations in Government Services Rules, 1991, which mandated a cut‑off date of 1 October 1986 for eligibility. The Court held that the circulars were not notified orders and therefore did not create any legal right for the retrenched employees appointed after the cut‑off date to claim absorption. Consequently, the High Court judgments directing the State to appoint those employees were set aside, though any amounts already paid to them would not be recovered. The appeals were allowed and the orders directing absorption were recalled.
Issues considered
- Whether the circular letters of 30 December 1995 and 26 February 1996 constitute a "notified order" under Rule 3(1) of the 1991 Rules.
- Whether the cut‑off date of 1 October 1986 and the conditions precedent for absorption violate Article 14 of the Constitution.
- Whether employees appointed after the cut‑off date can claim a right to absorption under the Rules.
- Whether executive circulars can modify statutory rules framed under the proviso to Article 309 of the Constitution.
- Whether amounts paid to the respondents under the impugned orders can be recovered.
Legislation cited
- Constitution of Indias. 12, s. 13, s. 14, s. 142, s. 16, s. 162, s. 309
- Industrial Disputes Act, 1947
- U.P. Reorganisation Act, 2000s. 2(g)
Subjects
service lawretrenched employeesabsorptionstatutory rulescircularsmandamusArticle 14Article 309U.P. Reorganisation Actback wages
Judgment
(2009] 7 S.C.R. 1
j
STATE OF UTTARANCHAL A
V.
ALOK SHARMA & ORS.
Civil Appeal Nos. 2444-2445 of 2009
APRIL 15, 2009
B
(S.B. SINHA AND CYRIAC JOSEPH, JJ.)
1 Service Law:
Uttar Pradesh Absorption of Retrenched Employees of
Public Corporations in Government Service Rules, 1991: c
Rule 2(c), 3(1) - Retrenched employees -Absorption of
- Circular issued by the State Government - Subsequent
circular issued in continuation of the earlier one which provided
for a cut-off date - Both the Circulars to be read together- If
the respondents were kept outside the purview of the said D
circulars, indisputably they cannot be said to have derived
any legal right so as to enable them to pray for issuance of a
writ of mandamus - Impugned judgments set aside - Any
amount paid to the respondents not to be recovered - U.P
Reorganisation Act, 2000, Section 2(g) - Constitution of India, E
1950, Articles 12, 14, 142.
Secretary, State of Karnataka & Ors. Vs. Umadevi (3) and
~~
Ors. (2006) 4 SCC 1 - followed.
Post Master General, Kolkata & Ors. Vs. Tutu Das (Dutta)
F
(2007) 5 SCC 317; State of Punjab vs. Bahadur Singh & Ors.
2009 (1) SCALE 316; Official Liquidator vs. Dayanand & Ors.
(2008) 10 SCC 1; State of Bihar vs. Upendra Narayan Singh
& Ors. 2009 (4) SCALE 282; Punjab State Warehousing
Corpn., Chandigarh vs. Manmohan Singh & Anr. (2007) 9
SCC 337; Kendriya Vidyalaya Sangathan vs. Sajal Kumar G
Roy (2006) 8 SCC 671; State of Karnataka & Anr. Vs. R.
Vivekananda Swamy (2008) 5 SCC 328 and Punjab State
Electricity Board & Ors. Vs. Gurmail Singh (2008) 7 SCC 245
- relied on.
1 H
2 SUPREME COURT REPORTS [2009] 7 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. '\
2444-2445 of 2009
From the Judgement and Order dated 20.09.2005 of the
Hon'ble Hight Court of Uttaranchal at Nainital is Special Appeal
-B No. 56 and 57 of 2005
WITH
Civil Appeal Nos. 2453 of 2009 ~-
Civil Appeal Nos. 2463 of 2009
c Civil Appeal Nos. 2465 of 2009
Civil Appeal Nos. 2455 of 2009
Civil Appeal Nos. 2457 of 2009
D Civil Appeal Nos. 2459 of 2009
Civil Appeal Nos. 2461 of 2009
Civil Appeal Nos. 2448 of 2009
Civil Appeal Nos. 2463 of 2009
E
Civil Appeal Nos. 2451 of 2009
Civil Appeal Nos. 2466 of 2009
Civil Appeal Nos. 2450 of 2009
F Civil Appeal Nos. 2468 of 2009
Civil Appeal Nos. 2470 of 2009
Pinky Anand, M.N. Rao, Ratnakar Dash, Abhay Prakash
Sahay, Jatinder Kumar Bhatia, Rac;;hana Srivastava, Nurullah,
G Promila, Deba Prasad Mukherjee, Fuzail Khan, Anuvrat Sharma,
Nikilesh Ramachandran, Shirish Kumar Mishra, with them for
the Appearing Parties.
The Judgement of the Court was delivered by
H
STATE OF UTIARANCHAL V. ALOK SHARMA & ORS. 3
" S.B. SINHA, J. A
1. Leave granted.
2. Interpretation and/ or application of various circular
letters issued by the State of Uttar Pradesh which have been
adopted by the State of Uttarakhand after it was formed in terms B
of the U.P. State Reorganisation Act is in question in these
appeals.
1
3. Two government companies being M/s. Teletronix Ltd.
and Kumaon Television Ltd. were the subsidiary companies of
Kumaon Mandal Vikas Nigam Ltd. The employees of the said c
government companies were retrenched. The State of Uttar
Pradesh took a policy decision to appoint the employees of the
said government companies. For the said purpose, it framed
rules purported to be in exercise of its power under the proviso
appended to Article 309 of the Constitution of India, known as D
the Uttar Pradesh Absorption of Retrenched Employees of
Government of Public Corporations in Government Services
Rules, 1991 (for short "the Rules").
4. The term "retrenched employee" is defined in Rule 2(c)
E
of the Rules as under:
"(c) "retrenched employee" means a person who was
-j· appointed on a post under the Government or a public
corporation on or before October 1, 1986 in accordance
with the procedure laid down for recruitment to the post F
and was continuously working in any post under the
Government or such corporation upto the date of his
retrenchment due to reduction in, or winding up of, any
establishment of the Government or the public corporation,
as the case may be and in respect of whom a certificate
G
of being a retrenched employee has been issued by his
appointing
I
authority."
The charging provision is contained in Rule 3(1) of the ·
Rules, which reads as under:
H
4 SUPREME COURT REPORTS [2009] 7 S.C.R.
A "3(1) Notwithstanding anything to the contrary contained
in any other service rules for the time being in force, the
State Government may by notified order require the
absorption of the retrenched employees in any post or
service under the Government and may prescribe the
8 procedure for such absorption including relaxation in
various terms and conditions of recruitment in respect of
such retrenched employees."
5. Admittedly, except Karan Pal, respondent No. 1 in Civil
C Appeal arising out of SLP (C) No. 6451 of 2005 who was
appointed in the month of January, 1980 and Vijay Kumar Joshi,
respondent No. 1 in Civil Appeal arising out of SLP (C) No.
8239 of 2005 who was appointed on 1.07 .1983 (they were
absorbed in the services of the State on 14.12.2005), other
D respondents herein were appointed after the cut-off date
provided for in the Rules, viz., 1.10.1986.
6. It also does not appear that pursuant to or in furtherance
of the provisions contained in Rule 3(1) of the Rules, the State
Government has issued any notified order requiring absorption
E of retrenched employees in any post or service under the
Government or prescribed any procedure therefor including
relaxation in various terms and conditions of recruitment in
relation to the retrenched employees.
The State of Uttar Pradesh, however, issued a letter to the
F Managing Director of Kumaon Manda! Vikas Nigam Ltd on
30.12.1995. While informing that approval has been granted
by the Governor for winding up of the aforementioned
companies, it was stated:
G "3. Order for adjustment of the employees retrenched in
resu It of the winding up of the aforesaid units and relaxation
in age will be issued separately by the Personnel
Department.
. 4. Retrenched employees will be adjusted/ re-appointed
H
STATE OF UTTARANCHAL V. ALOK SHARMA & ORS. 5
[S.B. SINHA, J.)
on their equivalent posts in view of their qualification in A
Kumaun Manda!."
7. It is contended that in terms of paragraph 3 of the said
circular letter, no such order had been issued by the Personnel
Department of the State of Uttar Pradesh. However, it appears
that the Secretary to the Government of Uttar Pradesh issued a B
letter addressed to all Principal Secretaries I Secretaries of
the Government of Uttar Pradesh, all Heads of the Departments
t
and all Commissioners, Uttar Pradesh stating that on
humanitarian ground a decision has been taken by the State for
adjustment of the employees/ officers retrenched from the said c
units, subject to the terms and conditions laid down therein;
some of which are inter alia being:
"(1) For the Government/ Corporations/ Enterprises
service only such employees will be eligible whose
D
services had been regularized with M/s. Teletronics and
Kumaun Television Limited, the sister units of Kumaun
Mandal Vikas Nigam Limited on or before 1st October
1986 and have been continuously working with the
aforesaid Teletronics and Kumaun Television· on the date
of its winding up." E
The said orders were issued with the consultation and
approval of the Personnel Department.
8. As despite framing of the aforementioned rules and
issuance of the aforementioned circulars, respondents had not F
been absorbed· in the services of the State, they filed writ
applications before the High Court of Uttaranchal.
9. The case ofVijay Kumar Joshi, respondent No. 1 in the
Civil Appeal arising out of SLP (C) No. 8239 of 2005 was
G
decided first wherein having regard to the fact that he was
appointed prior to the cut-off date, his writ petition was allowed
by an order dated 03.11.2004. Following the said judgment,
other writ petitions were also allowed by an order dated
6.06.2005, noticing:
H
6 SUPREME COURT REPORTS [2009]7 S.C.R.
A "Learned Counsel for the petitioners has filed the copy of
the judgment passed in Civil Writ Petition No. 6609 of
2001 (S/S) Vijay Kumar Joshi & others Vs. State of Uttar
Pradesh & others and has submitted that this Court has
allowed the writ petition of certain other retrenched
B employees with the directions that the State of Uttar
Pradesh and the counter part of respondent No. 1 and 2
i.e. Director, Training and Employment, Government of
U. P., Lucknow, in the State of Uttaranchal to give
appointment to the petitioners in suitable post in
c compliance of the Government Orders dated 30.12.1995
and 26.02.1996 with full salary w.e.f. 1st April, 1996."
10. Intra-court appeals preferred thereagainst were
dismissed by the High Court opining that this Court had issued
limited notice in the special leave petitions filed thereagainst. It
D was held: ~
"Similar controversy was involved in earlier Civil Writ
Petition No. 1322/2003 (S/S) which was decided by the
Court per judgment dated 26.10.2004 and the State
instead of preferring Special Appeal before the Division
E Bench went up in S.L.P. before the Hon'ble Supreme Court
S.L.P. (Civil) No. 6451/2005 was registered and by order
dated 7.3.2005 the Hon'ble Judges of the Apex Court
admitted the S.L.P. only on the point of direction of payment
of back wages to that petitioner. Learned Brief Holder for
F the State submits that the petitioners of the earlier Writ
Petition [(1322/2003(S/S)) had already been given
appointment in compliance of the order dated 26.10.2004.
There can be no controversy that the respondent -
petitioners shall also be placed on same footing by the
G State in regard to·the compliance to the direction of the
Court regarding appointment as contained in the
impugned judgment dated 6.6.2005 and the respondent
- petitioners have to be given appointment in the
establishments of the State as observed in the judgment
H under appeal."
STATE OF UTIARANCHAL V. ALOK SHARMA & ORS. 7
[S.S. SINHA, J.]
~ 11. Ms. Pinki Anand, learned Addi. Advocate General A
appearing on behalf of the• State, would submit that the
respondents herein having not fulfilled the conditions precedent
for application of the said circulars dated 30.12.1995 and
26.02.1996 as they were appointed after the cut-off date, and
as they had not been working continuously and furthermore as B
no notification was issued by the Personnel Department, the
impugned judgments cannot be sustained.
·I
1.t was furthermore contended that in terms of the Rules,
notified orders were required to be issued and the said condition
having not been complied with, the Rules could not be said to c
have come into force. Statutory rules, it was urged, could not
have been superseded, modified ·or altered by reason of
executive instructions as the procedures laid down for making
a rule were required to be followed therefor.
D
12. Ms. Rachana Srivastava, learned counsel appearing
on behalf of the Kumaon Mandal Vikas Nigam Ltd., would
contend that the names of the candidates should have been in
the rolls of the employment exchange. In any event, as the names ·
of the companies having not been mentioned in the IX Schedule
appended to the U.P. Reorganisation Act, 2000, as envisaged E
under Section 66 thereof, the State of Uttarakhand and for that
matter, her client had no liability to pay any amount in regard to
the dues of the companies.
13. Mr. M.N. Rao, learned senior counsel and Mr. Deba F
Prasad Mukherjee, learned counsel, appearing on behalf of the
respondents, on the other hand, urged:
(i) Notices having been issued limited to the payment
of back wages in two matters, this Court should not
exercise its discretionary jurisdiction as the G
·--1
respondents are ready and willing to forego their
claim for back wages.
(ii) In Civil Appeal arising out of SLP (C) No. 6451 of
2005 [State of U.P. & Anr. v. Karan Pal & Ors.], the
H
8 SUPREME COURT REPORTS [2009] 7 S.C.R.
A only objection taken by the State being that he did ~.
not possess the re~uisite educational qualification,
the contentions raised before this Court for the first
time should not be permitted to be raised.
(iii) A large number of retrenched employees having been
B absorbed in the services of the State pursuant to the
aforementioned circular letters although their initial
appointment took place after the cut-off date, viz.,
1.10.1986, respondents herein must be held to have f
been discriminated against.
c
(iv) The State itself having absorbed the employees in
its services despite fixation of cut-off date, the same
would amount to grant of suo motu relaxation by the
State and in that view of the matter respondents being
similarly situated are entitled to be treated alike.
D .
(v) Some of the respondents being respondent Nos. 5
and 6 in Civil Appeal arising out of SLP (C) No.
12526 of 2007, respondent Nos. 1 and 3 in Civil
Appeal arising out of SLP (C) No. 3241 of 2006
E having been appointed temporarily and working in
that post, the other respondents, in particular
respondent Nos. 1 and 2 in Civil Appeal arising out
of SLP (C) Nos. 2171-2172 of 2006, respondent in
Civil Appeal arising out of SLP (C) No. 3242 of 2006
F are out of job which itself go to show that the appellant
had not been taking the same stand in the case of
similarly situated persons.
(vi) Even if the circular letters are held to be not
applicable, the principles of industrial law, viz., last-
G cum-first-go should be applied in this case.
(vii) The employees of the erstwhile companies having .._
been subjected to gross injustice, this Court should
not exercise its discretionary jurisdiction under Article
136 of the Constitution of India.
H
STATE OF UTTARANCHAL V. ALOK SHARMA & ORS. 9
[S.B. SINHA, J.]
' ). 14. The relationship between the respondents herein and A
the said government companies was that of employee and
employer. The companies under liquidation although were
incorporated and registered under the Companies Act, 1956,
they are 'State' within the meaning of Article 12 of the Constitution
of India. As a 'State', therefore, they were bound to comply with B
the equality clause contained in Articles 14 and 16 of the
Constitution of India; in terms whereof cases of all the eligible
~ candidates for appointment were required to be considered.
Recruitment in government service must be carried out in terms
of the Rules framed under a statute or the proviso appended to c
Article 109 of the Constitution of India.
15. In Secretary, State of Karnataka and Others v.
Umadevi (3) and Others [(2006) 4 SCC 1], a Constitution Bench
of this Court while laying emphasis on the strict application of
r the principles of equality clauses contained in Articles 14 and D
16 of the Constitution of India, held:
"37. It is not necessary to multiply authorities on this aspect.
It is only necessary to refer to one or two of the recent
decisions in this context. In State of U.P. v. Neeraj Awasthi
this Court after referring to a number of prior decisions E
held that there was no power in the State under Article 162
of the Constitution to make appointments and even if there
'"i, was any such power, no appointment could be made in
contravention of statutory rules. This Court also held that
past alleged regularisation or appointment does not . F
connote entitlement to further regularisation or
appointment. It was further held that the High Court has no
jurisdiction to frame a scheme by itself or direct the framing
of a scheme for regularisation. This view was reiterated in
State of Karnataka v. KGSD Canteen Employees' Welfare G
Assn."
...;
It was furthermore opined:
"43. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution· H
..
10 SUPREME COURT REPORTS [2009] 7 S.C.R.
A 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.
B 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
c 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
D
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
E 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
"
F employees who by the very nature of their appointment,
do not acquire any right. The High Courts acting under
Article 226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made
G regularly and in terms of the constitutional scheme. Merely
because an employee had continued under cover of an
~
. order of the court, which we have described as "litigious
employment" in the earlier part of the judgment, he would
not be entitled to any right to be absorbed or made
H permanent in the service. In fact, in such cases. the High
..
STATE OF UTTARANCHAL V. ALOK SHARMA & ORS. 11
[S.S. SINHA, J.]
J.:
Court may not be justified in issuing interim directions, A
since, after all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to mould
the relief in such a manner that ultimately no prejudice will
be caused to him, whereas an interim direction to continue
his employment would hold up the regular procedure for B
selection or impose on the State the burden of paying an
employee who is really not required. The courts must be
careful in ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to c
facilitate the bypassing of the constitutional and statutory
mandates."
It was, however, observed:
"53. One aspect needs to be clarified. There may be cases
D
where irregular appointments (not illegal appointments)
as explained in S.V. Narayanappa, R.N. Nanjundappa and
B.N. Nagarajan and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to
work for ten years or more but without the intervention of E
orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have
~
to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in
the light of this judgment. In that context, the Union of India, F
the State Governments and their instrumentalities should
take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals and G
·-'/ should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require
to be filled up, in cases where temporary employees or
daily wagers are being now employed. The process must
be set in motion within six months from this date. We also H
12 SUPREME COURT REPORTS [2009] 7 S.C.R.
A clarify that regularisation, if any already made, but not sub
judice, need not be reopened based on this judgment, but
"'
there should be no further bypassing of the constitutional
requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme.
B 54. It is also clarified that those decisions which run counter
to the principle settled in this decision, or in which
directions running counter to what we have held herein, f
will stand denuded of their status as precedents."
c The aforementioned dicta laid down in Umadevi (supra)
has been followed by this Court in a large number of cases.
[For example, see Post Master General, Kolkata and Others
v. Tutu Oas (Dutta) (2007) 5 SCC 317, State of Punjab v.
Bahadur Singh and Ors., 2009 (1) SCALE 316 Official
Liquidator v. Dayanand and Others (2008) 10 SCC 1, State of -~
D
Bihar v. Upendra Narayan Singh & Others 2009 (4) SCALE
282]
16. In case of liquidation of the companies, the employees
were entitled to back wages and other amounts by way of
E compensation as may be admissible to them under the Industrial
Disputes Act, 1947. The State, however, framed the Rules
purported to be in exercise of its power under the proviso to
Article 309 of the Constitution of India. Validity of the said Rules ~
is not under challenge. For the purpose of invoking the
F provisions of the Rules, however, the employee concerned must
be a retrenched employee. In view of the definition of retrenched
employee, as contained in Rule 2(c) of the Rules, appointment
should have taken place on or before 1.10.1986.
17. The conditions for application of the Rules do not stop
G there. The Rules envisage issuance of notified order notifying
absorption of the retrenched employee. The procedures therefor >-
including relaxation of various terms and conditions of
recruitment, if any, were required to be prescribed. It is
conceded at the bar that a statutory rule cannot be modified or
H altered by reason of an executive instruction far less by way of a
STATE OF UTTARANCHAL V. ALOK SHARMA & ORS. 13
'=1 [S.B. SINHA, J.]
~ circular letter. It has been so held in Punjab State Warehousing A
Corpn., Chandigarh v. Manmohan Singh and Another [(2007)
9 sec 337], stating:
"12. Furthermore, when the terms and conditions of the
services of an employee are governed by the rules made
under a statute or the proviso appended to Article 309 of B
the Constitution of India laying down the mode and manner
el
in which the recruitment would be given effect to, even no
order under Article 162 of the Constitution of India can be
made by way of alterations or amendments of the said
- rules. A fortiori if the recruitment rules could not be
amended even by issuing a notification under Article 162
c
of the Constitution of India the same cannot be done by
way of a circular letter."
18. Keeping in view the principles laid down by the
D
Constitution Bench of this Court in Umadevi (supra), there
cannot be any doubt whatsoever that any condition laid down in
any rules which is in derogation of the recruitment rules framed
by the State, should receive strict construction.
19. The learned Single Judge committed an error insofar E
as it proceeded on the basis that the decision of the High' Court
in Vijay Kumar Joshi was not under challenge. Vijay Kumar Joshi
-; is subject matter of the Civil Appeal arising out of SLP(C) No.
8239 of 2005. The High Court also failed to take into
consideration that the circular letters dated 30.12.1995 arid F
26.02.1996 being not notified orders as envisaged in the Rules
would not be law within the meaning of Article 13 of the
Constitution of India.
20. The High Court did not find that the cut-off date to be
arbitrary or discriminatory and was, thus, liable to be struck G
·-'I
down being ultra vires Article 14 of the Constitution of India. It
did not hold that the conditions precedent contained in the Rules
prescribing procedure for such recruitment and/ or grant of
power of relaxation have been complied with. An authority, unless
a power is conferred on it expressly, cannot exercise a statutory H
14 SUPREME COURT REPORTS [2009] 7 S.C:R.
A power. Power of relaxation must be specifically conferred. Such
power having been envisaged to be conferred by reason of a
rule made under the proviso appended to Article 309 of the
Constitution of India, the contention of the learned counsel for
the respondents that relaxation must be deemed to have been
B granted cannot be accepted.
In Kendriya Vidya/aya Sangathan v. Saja/ Kumar Roy
[(2006) 8 sec 671], this Court held: I
"11. The respondents are not members of the Scheduled
c Caste or Scheduled Tribe. Age-limit is prescribed for
appointment to the general category of employees. The
upper age-limit for appointment to the post of LDC is 25
-
years. The advertisement also says so. The Rules, as
noticed hereinbefore, are in two parts. The first part talks
about the age-limit. The second part provides for
D
relaxation. Such relaxation can be granted for the purpose
specified i.e. in favour of those who answered the
descriptions stated therein. Relaxation of age-limit even
in relation to the Scheduled Caste and the Scheduled
Tribe candidates or the retrenched Central Government
E employees, including the defence personnel is, however,
not automatic. The appointing authorities are required to
apply their mind while exercising their discretionary
jurisdiction to relax the age-limits. Discretion of the
authorities is required to be exercised only for deserving
F candidates and upon recommendations of the Appointing
Committee/Selection Committee. The requirements to
comply with the rules, it is trite, were required to be
complied with fairly and reasonably. They were bound by
the rules. The discretionary jurisdiction could be exercised
G for relaxation of age provided for in the rules and within
the four corners thereof. As the respondents do not come
within the purview of the exception contained in Article 45
of the Education Code, in our opinion, the Tribunal and
consequently, the High Court committed a manifest error
H in issuing the aforementioned directions."
STATE OF UTTARANCHAL V. ALOK SHARMA & ORS. 15
[S.B. SINHA, J.]
[See also State of Karnataka and Another v. A
R. Vivekananda Swamy (2008) 5 SCC 328]
21. It is in the aforementioned backdrop, the circular letters
dated 30.12.1995 and 26.02.1996 are required to be construed.
Although in the former, no cut-off date as such has been
8
mentioned and paragraph 4 thereof refers to retrenched
employees, by reason whereof they were to be adjusted/ re-
appointed on their equivalent posts in view of their qualification
in Kumaun Mandal, the term 'retrenched employees' would carry ·
the same meaning as contained in the rules. Furthermore, the
circular letter dated 26.02.1996 was issued in continuation of C
the earlier letter dated 30.12.1995, which provided for a cut-off
date. Both the circular letters are to be read together. If, thus,
the respondents were kept outside the purview of the said
circular letters, indisputably, they cannot be said to have derived
0
any legal right so as to enable them to pray for issuance of a
writ of or in the nature of mandamus.
22. Our attention has been drawn to an additional affidavit
filed by the respondents wherein inter alia it has been shown
that a large number of employees who had been absorbed were E
initially appointed after 1.10.1986.
Article 14 carries with it a positive concept. It would have
no application in the matter of enforcement of an order which
has its source in illegality. In other words, equality cannot be
applied in illegality. [See Post Master General, Kolkata (supra) F
and Punjab State Electn"city Board and Others v. Gurmai/ Singh
(2008) 7 sec 245]
23. Moreover, the matter relating to division of assets of a
government company which had been functioning in the State G
-" of Uttar Pradesh as also in the territories forming the State of
Uttarakhand could be given effect to only in terms of notified
order as contemplated in Section 2(g) of the U.P. Reorganisation
Act, 2000 defining it to mean "an order published in the Official
Gazette". It has not been denied or disputed that the name of H
16 SUPREME COURT REPORTS [2009] 7 S.C.R.
A the two companies do not find place in the IXth Schedule
appended to the U.P. Reorganisation Act, 2000.
24. We may furthermore notice that in Civil Appeal arising
out of SLP (C) No. 8708 of 2006,. the post in which the
respondent was working has to be filled up on the basis of the
B recommendations of the Public Service Commission. Public
Service Commission being a constitutional authority, it cannot
be by-passed by way of a circular letter or otherwise. It, f
furthermore, appears that he was employed in another concern.
In most of the other cases, orders had been passed ex-parte.
c He had also been paid a huge amount pursuant thereto.
25. For the reasons aforementioned, the impugned
judgments cannot be sustained, which are set aside accordingly.
-
However, if any amount has been paid to the respondents, the
same shall not be recovered from them. "
D
26. So far as Civil Appeal arising out of SLP (C) No. 6451
of 2005 and Civil Appeal arising out of SLP (C) No. 8239 of
2005 are concerned, although limited notice having been issued
confining the case to back wages, but keeping in view the order
E passed in the other cases, we are of the opinion that the said
order shall be recalled and leave on all points should be granted.
Respondents being placed similarly should not, in our opinion,
be treated differently. This order is being passed in exercise of #
our jurisdiction under Article 142 of the Constitution of India.
F However, we make clear that if any amount has been paid to
the said respondents, the same should not be recovered. The
appeals are allowed with the aforementioned directions. No
costs.
G.N. Appeals allowed.
._
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