Supreme Court of India

UNION OF INDIA AND ANR.versusKARTICK CHANDRA MONDAL AND ANR.

Citation: 2010 INSC 44
Decided: 15 January 2010
Disposal: Appeal(s) allowed
Bench: M PANCHALMUKUNDAKAM SHARMA

Holding

The 1985 notification was prospective, internal communications were not government orders, and the Tribunal and High Court could not direct the respondents' absorption; the appeal is allowed.

Summary

The respondents were engaged as casual labourers in the Ordnance Factory Board from 1981 to 1983 and were disengaged because they were not recruited through the Employment Exchange as required then. They filed petitions before the Central Administrative Tribunal (CAT) seeking re‑engagement and regularisation, relying on a Government of India notification dated 07‑05‑1985 that relaxed the recruitment condition. The CAT directed their absorption in suitable posts; the Calcutta High Court affirmed this order. On appeal, the Supreme Court held that the 1985 notification was intended to operate prospectively and could not be applied retrospectively to persons who were not in service at the time, and that internal notes exchanged between officials did not constitute a government order. Consequently, the Tribunal and High Court could not lawfully direct the respondents' absorption, and the appeal was allowed, setting aside the earlier orders.

Issues considered

The 1985 Government notification could be given retrospective effect to cover the respondents who were not in service when it was issued.
Whether internal communications/notes between officials constitute a valid government order for the purpose of directing absorption.
Whether the CAT and the High Court had jurisdiction to direct re‑engagement and regularisation of casual workers who were originally appointed irregularly.
Whether Article 14 of the Constitution imposes a duty to regularise such casual workers.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 166(1)
Contempt of Courts Act, 1971s. Section 2(c)
Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959

Subjects

service lawre‑engagementregularisationcasual labourprospective notificationinternal communicationsequality before lawArticle 14administrative lawappointmentabsorptionCentral Administrative Tribunal

Judgment

[2010] 1 S.C.R. 1099

UNION OF INDIA AND ANR. A
v.
KARTICK CHANDRA MONDAL AND ANR.
(Civil Appeal No. 2090 of 2007)

JANUARY 15, 2010
B
[J.M. PANCHAL AND DR. MUKUNDAKAM
SHARMA, JJ.]

Service Law - Re-engagement and regularization -
Absorption -Respondents recruited as casual labourers in C
1981 - Disengaged in 1983 on ground that they were not
recruited through Employment Exchange, the extant policy at
the relevant time - Application seeking re-engagement and
regularisation - Reliance placed on Government of India
notification dated 07-05-1985 which provided for relaxation of D
condition of .recruitment of casual workers through
Employment Exchanges - Tribunal directed absorption of
respondent in suitable post commensurate with their
qualifications - Directions affirmed by High Court - On
appeal, held: The notification dated 07-05-1985 was intended E
to operate prospectively and not with retrospective effect - It
could not be made applicable
I
to respondents since they ·ere
not working on the date the notification was issued - The
internal communications relied upon by respondents, were ex
facie, exchanged between officers at the level of board F
. hierarchy only - No official order was passed by competent
authority and therefore High Court was not justified in directing
absorption of respondents on the basis of said internal
communications - Misplaced sympathy was shown in case
of respondents though they worked only for two years - If an
appointment is made illegally or irregularly, the same cannot G
be the basis of further appointment - Re-appointment or
absorption of respondents would be in violation of the settled
law.

1099 H
1100 SUPREME COURT REPORTS [2010] 1 S.C.R.

A Constitution of India, 1950 - Article 14 - Guarantee of
equality before law enshrined in the Article is a positive
concept - It cannot be enforced in a negative manner.

Interpretation of Statutes - Courts cannot read anything
into a statutory provision which is plain and unambiguous -
8
When 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.

Circulars/Government Orders/Notification - Notification
C - Retrospective effect of - When permissible - Held: 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 - Administrative Law.
D
Circulars/Government Orders/Notification - Deemed
Government Order - Held: 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
E be said to be orders issued by the competent authority unless
they are issued in accordance with law - Administrative Law.

The respondents, engaged as casual labourers in
the Ordnance Factory Board, worked for two years (from
1981 to 1983) whereafter they were disengaged from
F service on the ground that they were not recruited
through the Employment Exchange, the extant policy at
the relevant time.

The respondents filed application before the Central
G Administrative Tribunal, seeking direction to appellant
no.1 for their re-engagement and also for regularisation
of their service, and in this regard placing reliance upon
Government of India notification dated 07-05-1985 issued
on the subject of regularisation of casual workers by way
H of relaxing the condition of recruitment through
UNION OF INDIA AND ANR, v. KARTICK CHANDRA 1101
MON DAL
Employment Exchanges only. A

The Tribunal directed the appellants to absorb the
respondents in any suitable post commensurate with
their qualifications. Aggrieved, the appellants flied writ
Petition in the High Court which affirmed the directions 8
passed by the Tribunal.

In appeal to this Court, the question which arose for
consideration was whether the direction to absorb the
respondents could have been issued by the Tribunal and
the High Court, particularly, in view of the fact that the C
respondents were engaged 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. D

Allowing the appeal, the Court

HELD: 1.1. The respondents worked with the
appellants only for two years, i:e., from 1981 to 1983 .and E
admittedly on the date when the Notification dated 07-:05-
1985 was issued, they were not working with the
appellant no.2. There is nothing in the contents or in the
language of the said notification which would indicate
that there was an intention to give a retrospective effect
to the contents thereof. Instead, the language used in the F
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 . G
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. [Para 11] [1110-C-F] H
1102 SUPREME COURT REPORTS [201 O] 1 S.C.R.

A 1.2. The said notification 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
B envisaged and could be made applicable to only those
persons who were in service on the date when the
aforesaid notification was issued. Unless and until there
is a clear intention expressed in the notification that it
would also apply retrospectively, the same cannot be
c given a retrospective effect and would always operate
prospectively. [Para 12) [1110-G-H; 1111-A-B]

Ansal Properties and Industries Limited v. State of
Haryana (2009) 3 SCC 553, relied on.

D 2. As regards the issue pertaining to internal
communications relied upon by the respondents and
referred to by the Tribunal as well as the High Court, ex
facie, the said communications were exchanged between
the officers at the level of board hierarchy only. An order
E 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. Besides, the said
F 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
G 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 respondent no.1, and was submitted
to the Ministry of Defence requesting to consider his case

H
UNION OF INDIA AND ANR. v. KARTICK CHANDRA 1103
MON DAL

for recruitmenUabsorption/regularisation of services of A
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 B
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 c
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 respondent nos.1 and 2
0
in terms of the aforesaid notification dated 07-05-1985 or
to accord permission to recruit the respondent nos.1 and
2 for the post of Peon without reference to the
Employment Exchange in relaxation of ban. The note of
the Legal Adviser culminated in the aforesaid note of the
Deputy Director which clearly indicates that no official E
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. [Para 13) (1111-8-D]
F
State of Bihar and Others v. Kripa/u Shankar and Others
(1987) 3 sec 34, relied on.

3. There is misplaced sympathy shown in the case
of the respondents who have worked with the appellants G
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
H
1104 SUPREME COURT REPORTS (2010) 1 S.C.R.

A 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
B approach of this Court. 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. The parties also fairly agree that the
respondents have not been working with the appellants
c 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. The orders passed by the
Tribunal as also by the High Co.urt are accordingly set
aside. [Paras 16, 17 and 18) [1117-8-C; 1118-A-B; 1118-
0
C]
Secretary, State of Kamataka and Others v. Umadevi (3J
and Others (2006) 4 SCC 1, followed.

E Official Liquidator v. Dayanand and Others (2008) 10
SCC 1; State of Bihar v. Upendra Narayan Singh & Others
(2009) 5 SCC 69; Faridabad CT. Scan Centre v. D. G. Health
Services and Others (1997) 7 SCC 752; 2) South Eastern
Coalfields Ltd. v. State of MP. and Others (2003) 8 SCC 648
F and Maharaj Krishan Bhatt and Another v. State of J&K and
Others (2008) 9 sec 24, relied on.

Case Law Reference:
(2009) 3 sec 553 relied on Para 11
G (1987) 3 sec 34 relied on Para 13
(2006) 4 sec 1 followed Para 14
(2008) 1o sec 1 relied on Para 15

H
UNION OF INDIA AND ANR. v. KARTICK CHANDRA 1105
MON DAL

(2009) 5 sec 69 relied on Para 15 A

(1997) 1 sec 752 relied on Para 15

(2003) 8 sec 648 . relied on Para 15

(2008) 9 sec 24 relied on Para 15 B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2090 of 2007. ·

From the Judgment & Order dated 17.8.2005 of the High
Court.of Calcutta in WPCT No. 517 of 2004. c
June Choudhary, Ajay Sharma, Anil Katiyar for the
Appellants.

Somnath Mukherjee for the Respondents.
D
The Judgment of the Court was delivered by

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 E
upheld the direction given by the Central Administrative Tribunal
[for short 'CAT'] toabsorb the respondents in any suitable post
commensurate with their qualifications.

2. The issue that is, therefore, canvassed before this Court F
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 G
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. Monda! and Shri S.K. H
1106 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 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
B casual labours, they worked for two years with appellant no. 2,
i.e., till 1983 and they were disengaged from service in the
month of April, 1983 on the ground that their names were not
sponsored by the Employment Exchange.

C 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
D 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
E 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
F cannot be said to apply only to those who were in service as
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
G 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
H aforesaid conclusion, the Tribunal relied upon the language of
UNION OF INDIA AND ANR. v. KARTICK CHANDRA 1107
. MONDAL [DR. MUKUNDAKAM SHARMA, J.]

the said Office Memorandum, the relevant part of which is A
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
8
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 C
for regular appointment to Group 'D' posts, in terms of the
general instructions even if they are recruited otherwise
than through the employment exchange, provided they are
eligible for regular appointment in all other respects."
D
· 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 E
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 F
Factory Board from 1981 to 1983 with technical breaks, their
cases deserved to be considered favourably for r~
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 G
in 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 H
1108 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 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
B 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
c 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 post
commensurate with their qualifications. The appellants being
aggrieved by the aforesaid judgment and order filed a Writ
0
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
E 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 beeri filed by the
appellants on which we have heard the learned counsel
F 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
G 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
re-engage the respondents as casual labours if there was work/
vacancy in preference to freshers and those who rendered
H lesser length of service as casual labours. It was pointed out
'
UNION OP INDIA AND ANR. v. KARTICK CHANDRA 1109
MONDAL [OR. MUKUNDAKAM SHARMA, J.]
that the respondents could not be appointed as casual labours A
in terms of the aforesaid direction as there was a total ban on
fresh appointments and, therefore, there was 110 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 B.
and Olrector 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 c
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 notes was invalid and D
unjustified. U 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 forthe appellant was that E
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 F
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 a/ia, that since the note written by G
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 justified in relying on the same for .
issuing necessary directions to the appellants. It was also H
1110 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 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
B 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
C 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
D or in the language of the said office memorandum which would
indicate that there was an intention to give a retrospective 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.
E 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
F 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
Ansa/ Properlies and Industries Limited v. State of Haryana
[(2009) 3 sec 553].
G
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
H
UNION OF INDIA AND ANR. v. KARTICK CHANDRA 1111
MONDAL [DR. MUKUNDAKAM SHARMA, J.]

time. Therefore, it envisaged and,could be made applicable to . A
only 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. B

13. The next issue that we are required to consider
pertains to internal communications which are relied upon by
the respondents and which were a.Isa referred to by the Tribunal
as well as by the High Court. Ex facie, the aforesaid
communications were exchanged between the officers at the C
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 D
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: -
E
"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 F
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 G
a single officer. It involves a complicated process. In a
democratic set up, it is conducted through the agency of
a large number bf 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
H
1112 ~UPREME COURT REPORTS (2010) 1 S.C.R.

A 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-
B 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
c 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
D 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 this
Court dealt with the effect of the noting by a Minister on
the file:
E
'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.
F 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
G
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
H disposal of the Original Application by the Tribunal. The note
UNION OF INDIAAND ANR. v. KARTICK CHANDRA 1113
MONDAL [DR. MUKUNDAKAM SHARMA, J.]

on which reliance has been placed by the High Court A
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 B
of Shri K.C. Mondal, respondent no. 1 herein, and was
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, c
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 D
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. E
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 Legal Adviser culminated in the aforesaid note F
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.
G
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 H
1114 SUPREME COURT REPORTS [2010] 1 S.C.R.

A 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,
B 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:-

"43. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution
c 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.
D 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
E 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
F 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
G 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
H period of employment has come to an end or of ad hoc
UNION OF INDIA AND ANR. v. KARTICK CHANDRA 1115
MONDAL [DR. MUKUNDAKAM SHARMA, J.]

employees who by the very nature of their appointment, do · A
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 concerned has worked 8
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 C
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 D
employed should be directed to be continued permanently.
By doing so, it will be creating another mode of public
appointment which is not permissible.

E
... . . . ... .. . .. . . .. .. . ... .. . ... .. . . .. . . . . . . ... . .. . . . . . 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 F
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 G
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 H
1116 SUPREME COURT REPORTS (2010] 1 S.C.R.

A 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
enshrined in Article 14 of the Constitution."
B
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: -
c
"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
D 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
E 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
F 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
G compel the Government to abandon the policy decision of
reducing the direct recruitment to various services.
Secondly, this will be virtual abrogation of the statutory rules
which envisage appointment to different cadres by direct
recruitment."
H
UNION OF INDIA AND ANF-t v. KARTICK CHANDRA 1117
MONDAL [DR. MUKUNDAKAM SHARMA, J.)

16. In our considered opinion, the ratio of both the A
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 B
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 c
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 Singh & Others [(2009) 5 SCC 69], the D
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 E
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" F

[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 G
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 H
1118 SUPREME COURT REPORTS [2010) 1 S.C.R.

A upon in this judgment.

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
8
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
C 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.

B.B.B. Appeal allowed.

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