PRATAP KISHORE PANDAversusAGNI CHARAN DAS

                        [2015] 14 S.C.R. 308


A                   PRATAP KISHORE PANDA
                                  v.
                        AGNI CHARAN DAS
               (Civil Appeal Nos. 6305-6307 of 2009)
B
                        OCTOBER 16, 2015
       [VIKRAMAJIT SEN AND PRAFULLA C. PANT, JJ.]
            Service Law - Seniority - Due to inadequate number
    of candidates in reserved category recommended by Public
C   Service Commission, State Government decided to fill the
    remaining seats on an ad hoc basis - Names of candidates
    were sponsored by the Employment Exchange and they were
    found suitable by a duly constituted Selection Committee
     which interviewed them - By State Resolutions, ad hoc
D   reserved candidates were deemed as regular appointments
    ..,. As a result, respondents-reserved category appointees
    not recruited by OPSC but through alternate method of regular
    recruitment became senior to appellants who were OPSC
    appointed general category candidates - Challenge against
E   - Held: It is well within the power of State to organise an
    alternative recruitment drive when insufficient SC/ST
    candidates are available and under Article 320(4), the OPSC
     was not required to be consulted- In the instant case, it was
    not a relaxation of the Rules in order to favour a few but was
F   a consequence of following an alternate method of selection
     intended to remedy a malady in the recruitrrent of SC/ST
     candidates - The sponsorship of names by the
     Employment Exchange and the subsequent interview by
     a duly constituted Selection Committee was thus a valid
G    alternative to recruitment by way of the OPSC competitive
     examination - Since respondents were appointed in
     legitimate manner, the merit list should not be disturbed to
     protect the rights of the OPSC candidates- Orissa Ministerial
     Service (Method of Recruitment and Conditions of Service
H
                                 308
     PRATAP Kl SHORE PANDA v. AGNI CHARAN DAS              309


  of Lower Division Assistant in the Office of Department of A
  Secretariat) Rules, 1951-rr.3, 9.
        Dismissing the appeals, the Court
        HELD: 1. The Umadevi doctrine is that if·
  employment of persons is contrary to or de hors the
  statutory provisioris and/or Rules and Regulations, then B
  equities will not have any play even if such persons have
  been rendering services for several years. The most that
  can be done for such employees is for the State
  Government to devise a scheme, as a one-time measure,
  for their absorption so long as the Governing Statute C
  or the Rules and Regulations are not infringed. In the
  words of the Constitution Bench - "When a person
  enters a temporary employment or gets engagement as
  a contractual or casual worker and the engagement is
  not based on a proper selection as recognised by the D
  relevant rules or procedure, he is aware of the
  consequences of the appointment being temporary,
  casual or contractual in nature. Such a person cannot
  invoke the theory of legitimate expectation for being
  confirmed in the post when an appointment to the post E
  could be made only by following a proper procedure
  for selection and in cases concerned, in consultation
· with the Public Service Commission. The State
  Government in the present case has carried out
  recruitment in a regular manner, albeit beyond the F
  OPSC which had presented a panel containing negligible
  number of SC/ST candidates. The subject challenged
  recruitment was neither capricious nor arbitrary but on
  the contrary was carried out in consonance with a
  known method of selection, viz. Rule 9(4). This was not G
  a case of ad hoc employees being selected in a
  whimsical, inconsistent or haphazard manner or in order
  to favour some individuals. The incumbents were
  sponsored by the Employment Exchange and over 400
  candidates were found suitable by a duly constituted· H
310         SUPREME COURT REPORTS               (2015] 14 S.C.R.


A Selection Committee which interviewed them. It was not
  a relaxation of the Rules in order to favour a few, but
  was the consequence of following an alternate method
  of selection intended to remedy a malady in the
  recruitment of SC/ST candidates. It is well within the
B powers of the State to organise an alternative
  recruitment drive when insufficient SC/ST candidates
  are available, and under Article 320(4) of the Constitution
  the OPSC was not required to be consulted. [Para
  11][323-A-H; 324-A-C]
C       · 2. The amendment was made to Rule 3 of the OMS
   Rules 1951. It was only on 10.10.1979 that the Rule
   was amended, introducing the requirement that in case
   the · requisite number of SC/ST candidates are not
   available for filling up reserved vacancies, a fresh
D competitive examination must be held only for SC/ST
   candidates. This furthers the case of the Respondents
   that the recruitment process through the Selection
   Committee was not violative of any existing Rule, in that
   the Rule it may be perceived to have violated did not
E exist at the time of their appointment. It seems that the
   reason this amendment was given prospective effect
   is that the State did not want to detrimentally affect the
   status of employees already recruited in a fair,
  ·transparent and regular manner albeit de hors to OPSC,
F or destabilize the legitimacy of that recruitment. This
   seems to have been the purpose sought to be
   achieved by the State Government in its Resolution
   dated 25.5.1982, which imparted permanence to the
   Respondents' valid recruitment rather than regularized
G their hithertofore ad hoc character. [Para 12][324-D-H]
            3. Till 31.10.1979, the method of filling up vacancies
      when successful candidates were not available was laid
      out in Rule 11, which required that the vacancies be
      filled up by successful candidates from the previous
H
    PRATAP KISHORE PANDAv. AGNI CHARAN DAS                      311


year who are within the age limit. The Government               A
Resolution dated 25.5.1982 which regularized the ad
hoc candidates set aside Rule 11, allowing Section 9(4)
of the O.R.V. Act to prevail over it. The Government
cannot be faulted for placing reliance on the Act as
opposed to the contradictory Rules, as the latter is            B
merely delegated legislation and deals with all vacancies,
as opposed to the Section of the Act which specifically
pertained to SC/ST candidates. Rule 30 of the OMS
Rules 1951 deals with scenarios where a sufficient
number of successful SC/ST candidates are not                   C
available. It directs that in such a situation, the vacancies
be filled up as unreserved vacancies and also be carried
forward for the subsequent years. Once again, this Rule
is in the face of Section 9(4), which prescribes a fresh
recruitment drive. Section 9(5) holds that if this fresh        D
recruitment fails to fill up the available seats, the
vacancies should be filled by general candidates. Rule
30 thus skips one of the steps postulated by statute, and
in light of the rules of statutory interpretation, must be
cast aside in favour of the method of recruitment laid          E
down by the O.R.V. Act. It is thus .clear that at the time of
appointment of the Respondents, the prevailing law
regarding appointment of SC/ST candidates to surplus
vacancies was contained in Section 9(4) of the O.R.V.
Act. The sponsorship of names by the Employment                 F
Exchange and the subsequent interview by a duly
constituted Selection Committee was thus a valid
alternative to recruitment by way of the OPSC
competitive examination. In fact, a fresh recruitment
would not have been possible by· means of a                     G
competitive examination as Rule 3 required that these
be conducted once a year, and the examination for 1974-
75 had already been conducted, yielding a meager
number of 20 SC/ST candidates. The method of
appointment ofthe Respondents to be valid in the eyes           H
312         SUPREME COURT REPORTS                [2015] 14 S.C.R.


A of the law; their regularization with effect from the date
  of appointment cannot be faulted. [Paras 13 to 15] [325·
  A·E, G·H; 326·A·B]
            4. In light of the fact that the Respondents were
      appointed in a legal and legitimate manner, the Merit
8     List should not have been disturbed to protect the rights
      of the OPSC recruits. [Para 17)(326-F]
           State of Karnataka v. Umadevi (2006) 4 SCC 1 :
           2006 (3) SCR 953 - relied on.
c          State of Orissa v. Smt. Sukanti Mohapatra (1993)
           2 sec 486 : 1993 (2) SCR 505; J&K Public
           Service Commission v. Dr. Narinder Mohan
           (1994) 2 sec 630: 1993 (3) Suppl. SCR 900;
           Ashok Kumar Uppa/ v. State of J&K (1998) 4 SCC ·           ..
D          179 : 1998 (1) SCR 164 - referred to.
                           Case Law Reference
           2006 (3) SCR 953              relied on     Para 10
           1993 (2) SCR 505              referred to   Para 1O
 E
           1993 (3) Suppl. SCR 900       referred to   Para 10
           1998(1)SCR164                 referredto    Para10
          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      6305-6307 of 2009.
 F
           From the Judgment and Order dated 08.08.2008 of the
      High Court of Orissa, Cuttack in W. P. (C) Nos. 5381 of 2002,
      13770 & 13771 of 2003.
       S. Balakrishnan, Sr. Adv., S. N. Jha, Subramonium
G Prasad, Advs. for the Appellants.
            Ashok Panigrahi, Santosh Kumar, Ms. Rashmi Mohan,
      Satya Mitra Garg, Sibo Sankar Mishra, Preetam Mishra,
      Umakant Mishra, Chitta Ranjan Mishra, Shivpati Pandey,
      R. P. S. Yadav, Ms. Shalu Sharma,Advs. forthe Respondents.
 H
     PRATAP Kl SHORE PANDA v. AGNI CHARAN DAS                 313


     · The Judgment of the Court was delivered by              A
      VIKRAMAJIT SEN, J. 1. The Orissa Public Service
Commission (OPSC) issued an advertisement for a
Competitive Examination (1974-1975) for recruitment of
approximately 300 persons, of which 16% were reserved for
Schedule Castes and 24% for Schedule Tribes. The OPSC B
recommended names of 714 successful candidates which
included 20 in the reserved categories, which were approved
by the Home Department on 24.11.1977. Since a substantially
inadequate number of candidates in the reserved categories
had been recommended by the OPSC, the State Government C
decided to fill these remaining seats on an ad hoc basis.
Therefore, 403 reserved candidates including the Respondents
were appointed in four batches between 15.5.1978 and
30.3.1980. The names of these candidates had been
sponsored by the Employment Exchange and they were found D
suitable by a duly constituted Selection Committee which
interviewed them. However, they were appointed with the
stipulation that their services would be terminated as soon as
 reserved candidates selected by the OPSC became available.
                                                               E
         2. On 31.10.1979, the State Govemmentamended Rule
  3 of the Orissa Ministerial Service (Method of Recruitment and
  Conditions of Service of Lower Division Assistant in the Office
  of Department of Secretariat) Rules, 1951 empowering the
  OPSC to recruit candidates for the service by means of a F
  competitive examination. Subsequently, vide State Resolution
  dated 25.5.1982, the ad hoc reserved candidates recruited .
 .between 15.5.1978 and 31.10.1979, including the
· Respondents, were deemed as regular appointments. 52
  other reserved candidates who were appointed after the OMS G
  Rules 1951 amendment was effected were deemed to be
  employed on a temporary basis until a fresh competitive
  examination was held under the amended Rule 3 of the OMS
  Rules 1951. Vide another State Resolution dated 4.3.1983,
  the regularization of the ad hoc appointees affected by the H
314       SUPREME COURT REPORTS                  (2015] 14 S.C.R.


A  previous resolution was given retrospective effect from the date
   of initial appointment as Junior Assistants, with the stipulation
   that in terms of seniority, they were always to be placed below
   the OPSC selected candidates appointed on the same day.
   Promotions were made in accordance with the gradation list
B prepared by the government pursuant to this resolution dated
   4.3.1983. As a result of this, 145 reserved category appointees
  ·(including the Respondents) who had not been recruited by
   the OPSC but through an alternate method of regular
   recruitment became senior to the Appellants, who are OPSC
C appointed general category candidates.
        3. Some of the OPSC selected reserved category
  candidates challenged the fixation of their seniority in the cadre
  of Lower Division Assistant as well as the promotion of some
  of the regularized candidates to the rank of Senior Assistant
D in consequence of the alleged wrong fixation of seniority. These
  proceedings were transferred to the Orissa Administrative
  Tribunal, which, on 16.8.1989, declared the fixation of inter se
  seniority and promotions of regularized candidates over OPSC
  appointed recruits illegal and contrary to law. The Tribunal took
E note of the fact that the petitioners before it were appointed
  before the regularized candidates as well as the fact that as
  per the Resolution dated 4.3.1983, the seniority of the former
  was to be above the regularized candidates appointed on the
  same day. The Tribunal held that the gradation list made in
F consequence of the Government Resolution dated 25.5.1982
  was illegal, and the petitioners were er.titled to consideration
  for their promotion in view of their seniority.
        4. Some others of the OPSC selected general category
G candidates also challenged the fixation of seniority. The Orissa
  Administrative Tribunal held that a combined reading of Rule
  3 of the OMS Rules 1951 and Section 9(4) of the O.R.V. Act
  makes it clear that if a sufficient number of candidates
  belonging to the SC/ST candidates are not available, a fresh
  recruitment test is required and that no other mode of
H
    PRATAP KISH ORE PANDA v. AGNI CHARAN DAS                   315
               [VIKRAMAJIT SEN, J.]

recruitment is provided for. Furthermore, it was of the opinion A
that services cannot be regularized by a Resolution, and
accordingly recruitment made by the State Government
contrary to the OMS Rules 1951 cannot be upheld. Vide order
dated 23.11.1996, the Tribunal held that irregularly appointed
candidates cannot have seniority over regularly recruited B
candidates, and directed the Secretary, Home Department to
reexamine and determine seniority according to law.
     5. Subsequently, the Government re-examined the
question of appointment of Junior Assistants and determined
the seniority by placing the Respondents and other reserved C
candidates selected by the Selection Committee below the
OPSC selected candidates, in the rank of Junior and Senior
Assistants.
      6. On 30.5.2001, a Government Order was passed D
calling for the Respondents' CCRs for consideration of their
further promotion to the rank of S.O. (Level II). The general
category OPSC recruits filed an application seeking to quash
this Order. The Orissa Administrative Tribunal, on 21.10.2002,
quashed the Order dated 30.5.2001 insofar as it related to E
calling for service particulars and CC Rs for consideration for
promotion. It directed that the Respondents' names be
removed from the active common gradation list and that the -
OPSC candidates including the Appellants be considered
instead, ifthey had come within the zone of consideration for F
promotion.
      7. Aggrieved by this order, three groups of regularized
Selection Committee appointees filed writ petitions before the
High Court. The High Court, vide common impugned judgment
dated 8.8.2008, allowed all three writ petitions. The Tribunal's G
order dated 21.10.02 was set aside, and the Resolutions dated
25.5.1982 and 4.3.1983 were upheld, albeit with some
modifications. The High Court observed that Rule 30 of the
OMS Rules 1951 postulated that notwithstanding anything
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316          SUPREME COURT REPORTS                   [2015] 14S.C.R.


A     contained in the said Rules, reservation of vacancies for direct
       recruitment are to be filled in the manner prescribed by the
      O.R.V. Act, Section 9(4) whereof contemplates that in the event
      that sufficient numbers of reserved category candidates are
       not available to fill-up the reserved vacancies, fresh recruitment
B      for only reserved category should take place. Reliance was
      placed onAshok Kumar Uppal v. State of J&KAIR 1998 SC
      2812, according to which the power to relax the Recruitment
       Rules or any other Rules made by State Government under
      Article 309 of the Constitution is conferred upon the
c      Government to meet any emergent situation where injustice
      might have been caused to any individual employee or class
      of employees. Since the State Government possesses the
       power to relax the requirement when it is just and equitable to
       do so, especially in cases of non-availability of candidates in
o     the reserved quotas, the State Government was justified in
       relaxing the requirement for recruitment to these classes.
       Furthermore, the provisions of Article 320 of the Constitution
       regarding recruitment to Civil Service through the Public
       Service Commission is directory and not mandatory in nature.
 E     The Hi_gh Court observed that Article 16(4) of the Constitution
       of India provides that nothing in that Article shall prevent the .
       State from making any provision for the reservation of
      ·appointments or posts in favour of any backward class of
       citizens which, in the opinion of the State, is not adequately
 F     represented in the services under the State. The Court held
       that since the quota for SC & ST was fixed but not. fully filled, if
       the State Government had devised ways of recruitment for
       filling up the reserved quota by relaxing requirements, thereby
       causing scime disadvantage or discrimination as vis-a-vis
 G     recruits belonging to general category, the same cannot be
       termed as illegal. The High Court also held that reserved
       candidates are in a distinct class from general candidates and
       therefore the general category has no locus standi to challenge
       the mode of recruitment employed to fill the quota meant for
 H
    PRATAP KISHORE PANDA v. AGNI CHARAN DAS                        317
               [VIKRAMAJIT SEN, J.]

the others class, and reiterated the dictum that unequals cannot A
be treated as equals. However, the High Court also held that
candidates of the reserved class were competent to challenge
the decision of the government superseding them by
appointing candidates of the same category through another
mode of recruitment, as that would amount to discrimination. B
The High Court relied on State of Mysore v. P. Narasing Rao
AIR 1968 SC 349, stating that there is no denial of equal
opportunity unless the person who complains of discrimination
is equally situated with the person or persons who are alleged
to have been favoured. The High Court observed that the c
Resolution dated 25.5.1982 issued by the State Government
can be termed as a rule under the proviso to Article 309 of the
Constitution and held that the Resolution was legal. According
to the Resolution dated 4.3.1983, if the reserved category
candidate selected by the OPSC joined or was appointed on D
a date later than the reserved category candidates selected
by the Selection Committee, the former would become junior.
The High Co'urt held that this situation would not be proper as
the OPSC issued Merit List of selected candidates cannot be
 disturbed in respect of the same class i.e. SC & ST. The High E
 Court thus partly modified the resolution, directing that the
candidates selected by Selection Committee and
subsequently regularized should be kept below the candidates
selected by the OPSC under the. reserved category quota, but
should be placed in the Seniority List according to the then F
 roster in accordance with the O.R.V. Act and Rules framed
thereunder. The High Court ordered that in case incumbents
 have already been promoted and are found to be adversely
affected by such correction, they shall not be reverted to their
respective positions until their turn for promotion comes in G
accordance with the corrected gradation list.
      8. It would be apposite to reproduce the relevant legal
provisions for the facility of reference. The relevant provision
of the OMS Rules 1951 are:
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318         SUPREME COURT REPORTS                  [2015] 14 S.C.R.


 A         3. Recruitment to the service shall be made by means of
           a competitive examination to be held once every year.
           Rule 3 was subsequently amended by way of an
      Amendment dated 31.10.1979 which was to apply
      prospectively. The amended version is reproduced below for
 B    the benefit of comparison:
           3. Recruitment to the service shall be made by means of
           a competitive examination to be held at such intervals
           as the State Government may, in consultation with the
 c         Commission from time to time determine. In case
           requisite number of Schedule Castes and Schedule
           Tribes candidates are not available in the list of
           successful candidates of such examination for filling up
           the reserved vacancies a fresh competitive examination
 D         may be held only for candidates belonging to Schedule
           Castes and/or Schedule Tribes, as the case may be, for ·
           filling up the remaining reserved vacancies.
          Rule 11, which was set aside by the Government
      Resolution dated 25.5.1982, is as follows:
 E         11. In case a vacancy occurs after the list of successful
           candidates supplied by the Commission has been
           exhausted before announcement of the result of the next
           examination, such vacancy may be filled up by a
           successful candidate of the previous year, provided that
 F         his age does not exceed the maximum age limit laid
           down in the rules and failing that, by any candidate who
           has the qualification prescribed in rule 20 of Part 111. In
           the latte~ event the appointment shall be made temporarily
           and shall not continue beyond the date when the result of
 G         the next year's examination is declared.
           The relevant Section of the O.R.V. Act is as follows:
           9 (4 ). If the required number of Scheduled Caste and
           Scheduled Tribe candidates are not available for filling
. H
    PRATAP Kl SHORE PANDA v. AGNI CHARAN DAS                       319
                [VIKRAMAJIT SEN, J.]

     up the reserved vacancies, a fresh recruitment may be         A
     made only from candidates belonging to the Scheduled
     Castes or the Scheduled Tribes, as the case may be, for
     filling up the remaining reserved vacancies.
      Various Articles of the Constitution have also been
referred to by the High Court which we have extracted for          B
convenience.-
     16 (4). Nothing in this article shall preventthe State from
     making any provision for the reservation of appointments
     or posts in favor of any backward class of citizens which,    c
     in the opinion of the State, is not adequately represented
     in the services under the State.
     309. Recruitment and conditions of service of
     persons serving the Union or a State: Subject to the
     provisions of this Constitution, Acts of the appropriate D
     Legislature may regulate the recruitment, and conditions
     of service of persons appointed, to public services and
     posts in connection with the affairs of the Union or of any
     State:
     Provided that it shall be competent for the President or      E
     such person as he may direct in the case of services
     and posts in connection with the affairs of the Union, and
     for the Governor of a State or such person as he may
     direct in the case of services and posts in connection
     with the affairs of the State, to make rules regulating the   F
     recruitment, and the conditions of service of persons
     appointed, to such services and posts until provision in
     that behalf is made by or under an Act of the appropriate
     Legislature under this article, and any rules so made shall
     have effect subject to the provisions of any such Act.        G
     320(4 ). Functions of Public Service Commissions.-
     Nothing in clause (3) shall require a Public Service
     Commission to be consulted as respects the manner in
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. 320         SUPREME COURT REPORTS                   [2015) 14 S.C.R.


  A          which any provision referred to in clause (4) of Article 16
             may be made or as respects the manner in which effect
             may be given to the provisions of Article 335
             The relevant part of the Government Resolution dated
        25.5.1982 regularising the ad hoc candidates recruited under
  8     the OMS Rules also deserves reproduction.
             3. Government have been advised that Section 9(4) of
             the Orissa Reservation of Vacancies in Posts and
             Services (For S.C. & S.T.)Act, 1975 which is intended
  c          to confer benefits exclusively on S.C. & S.T. candidates
             should prevail over rules 11 of the O.M.S. Rules, 1951.
             But recruitment made after31.10.79 i.e. when Rule 3 of
             the O.M.S. Rules 1951 was amended for bringing about
             consistency with Section 9 of the Reservation Act, are to
  D          conform to the provisions of the amended rules.·
             Accordingly Government have been pleased to decide
             that the recruitment of 403 S.C. & S. T. candidates made
             in between the period from 15.5.78 to 31.10.79 should
             be deemed as regular appointments. 52 S.C. & S.T.
             candidates who were appointed on 6.2.80 i.e. after
  E
             amendment of the O.M.S. Rules, 1951 shall continue on
             a temporary basis until fresh competitive examination is
             held under Rule 3 of the OMS Rules, 1951 as amended.
           / The relevant portion of the Resolution dated 4.3.1983
  F     read as follows:
             The Services of 403 S.C. & S.T. candidates who were
             recruited as Junior Assistants for appointment against
             the reserved posts lying vacant in different Departments
             of Secretariat in between the period from the 15'h May
  G          1978to the 31"0ctober 1979, were regularized in Home
             Department Resolution referred to above. The question
             of fixation of their inter se seniority vis-a-vis the P.S.C.
             passed general and S.C. & S.T. candidates of the

  H
     PRATAP KISHORE PANDAv.AGNI CHARAN DAS                       321
                [VIKRAMAJIT SEN, J.]

      recruitment year 1974-1975 in order to regulate their A
      future promotion, was under consideration for some time
      past. After careful examination, it has been decided that
      inter se seniority of these candidates would be regulated
      according to their dates of appointment as Junior
      Assistant. But they will always be placed below the P.S.C. · B
      passed candidates appointed in the same day.
         9. Two questions of law have been raised by the
  Appellants in these Civil Appeals. The first is whether the High
· Court erred in not following the proposition that regularisation
  of uns1,.1stainable ad hoc appointments made in violation of C
  Service Rules is not possible. The second is whether the High
  Court has erred in ignoring the proposition that a power of
  relaxation does not tantamount to power of putting the entire
  Recruitment Rules on the shelf. These two questions, we might
  clarify, have been raised by the group of OPSC recruits D
  belonging to the general category. The few employees from
  the SC/ST quota who had.succeeded in qualifying the OPSC
  examinations and have been placed above other SC/ST
  candidates whose names had been forwarded by the
  Employment Exchange and who were recruited via the E
  Selection Committee had no subsisting grievances and.that
  is why have not filed any Appeal. The third group probably
  resigned themselves to the relatively minor setback to their
  seniority and has also not taken the matter further, presumably
  because the High Court has directed that they are not to be F
  reverted to their earlier positions if they have already been
  promoted, and theybare thus marginally affected by the·
  impugned decision.
       10. The impugned Judgment dated 8.8.2008 makes a
 reference a number of cases, but surprisingly its attention had G
 not been drawn to the decision of the Constitution Bench in
 Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1
 which had already been pronounced on 10.4.2006 and which

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322         SUPREME COURT REPORTS                 [2015) 14 S.C.R.


A is the conclusive authority on the subject. Had reference been
  made to Umadevi it would have obviated the need to refer to
  any earlier decisions. We shall briefly discuss some of the
  decisions of this Court that were considered by the High Court.
  A two Judge Bench in State of Orissa v. Smt. Sukanti
B Mohapatra ( 1993) 2 SCC 486 approved the striking down of
  the regularisation of illegal entry into service contrary to the
  extant Rules. J&K Public Service Commission v. Dr. Narinder
  Mohan ( 1994) 2 SCC 630 reached the same conclusion even
  without adverting to Sukanti Mohapatra. Dr. Surinder Singh
C Jamwal v. State of J&K (1996) 9 SCC 619 is an Order of this
  Court which decided the dispute before it and did not even
  attempt to or intend to expound the law and is therefore not in
  the nature of a binding precedent, as will be evident from the
  fact that the Court has actually applied Dr. Narinder Mohan.
D In Ashok Kumar Uppal v. State of J&K (1998) 4 SCC 179,
  this Court allowed the relaxation of the prevailing recruitment
  rules to prevent hardship and injustice to the appellants therein.
  With exponential increase in the decisions delivered by this
  Court it has become an imperative for Advocates to distinguish
E between orders and judgments and to correctly cull out the
  ratio of a judgment. Learned Senior Counsel for the Appellants
  has sought support from the observations of the Constitution
  Bench in Direct Recruit Class II Engineering Officers
  Association v. State of Maharashtra (1990) 2 SCC 715 without
F appreciating that the dispute therein revolved around the never-
  ending disharmony between Direct recruits and promotees
  as regards inter se seniority. The conundrum before us is
  essentially different making it untenable to read every statement
  made therein automatically applicable.
G           11. These decisions, however, need not be adverted to
      in the exposition of the aspect of the law which arises before
      us. The prevailing law is now discemable from Umadevi, which
      has correctly been cited before us in extenso. The Umadevi

 H
    PRATAP KISHORE PANDAv.AGNI CHARAN DAS                     323
               [VIKRAMAJIT SEN, J.]

doctrine is that if employment of persons is contrary to or de A
hors the statutory provisions and/or Rules and Regulations,
then equities will not have any play even if such persons have .
been rendering services for several years. The most that can
be done for such employees is for the State Government to
devise a scheme, as a one-time measure, for their absorption· B
so long as the Governing Statute or the Rules and Regulations
are not infringed. In the words of the Constitution Bench- 'When
a person enters a temporary employment or g~ts engagement
as a contractual or casual worker and the engagement is not
based on a proper selection as recognised by the relevant C
rules or procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in nature.
Such a person cannot invoke the theory of legitimate
expectation for being confirmed in the post when an
appointment to the post could be made only by following a     o
 proper procedure for selection and in cases concerned, in
 consultation with the Public Service Commission. Therefore,
the theory of legitimate expectation cannot be successfully
 advanced by temporary, contractual or casual employees. It
 cannot also be held that the State has held out any promise E
 while engaging these persons either to continue them where
 they are or to make them permanent. The State cannot
 constitutionally rnake such a promise. It is also obvious that
 the theory cannot be invoked to seek a positive relief of being
 made permanent in the post." Reliance on paras 33, 36 and F
 4 7 however does not advance the case of the Appellant since
 the State Government in the present case has carried out
 recruitment in a regular manner, albeit beyond the OPSC which
 had presented a panel containing negligible number of SC/
 ST candidates. The subject challenged recruitment was neither G
 capricious nor arbitrary but on the contrary was carried out in
 consonance with a known method of selection, :viz. Rule 9(4 ).
This was not a case of ad hoc employees being selected in a
whimsical, inconsistent or haphazard manner or in order to
                                                              H
324         SUPREME COURT REPORTS                 [2015] 14 S.C.R.


A     favour some individuals. The incumbents were sponsored by_
      the Employment Exchange and over 400 candidates were
      found suitable by a duly constituted Selection Committee which
      interviewed them. It was not a relaxation of the Rules in order
      to favour a few, but was the consequence of following an
B     alternate method of selection intended to remedy a malady in
      the recruitment of SC/ST candidates. It is well within the powers
      of the State to organise an alternative recruitment drive when
      insufficient SC/ST candidates are available, and under Article
      320(4) of the Constitution the OPSC was not required to be
C     consulted.
         12. It would be pertinent to discuss the amendment made
  to Rule 3 of the OMS Rules 1951. It was only on 10.10.1979
  that the Rule was amended, introducing the requirement that
  in case the requisite number of SC/ST candidates are not
D available for filling up reserved vacancies, a fresh competitive
  examination must be held only for SC/ST candidates. The
  implication that can be drawn from the amendment to this Rule
  especially because it has prospective effect, is that prior to
  10.10.1979, it was not mandatory to carry out recruitment only
E through the aegis of the OPSC for filling up vacancies even in
  the reserved categories. This furthers the case of the
  Respondents that the recruitment process through the
  Selection Committee was not violative of any existing Rule, in
  that the Rule it may be perceived to have violated did not exist
F at the time of their appointment. It seems to us that the reason
  this amendment was given prospective effect is that the State
  did not want to detrimentally affect the status of employees
  already recruited in a fair, transparent and regular manner
  albeit de hors to. OPSC, or destabilize the legitimacy of that
G recruitment. This seems to have been the purpose sought to
  be achieved by the State Government in its Resolution dated
  25.5.1982, which we find imparted permanence to the
  Respondents' valid recruitment rather than regularized their
  hithertofore ad hoc character.
H
    PRATAP Kl SHORE PANDA v. AGNI CHARAN DAS                       325
                [VIKRAMAJIT SEN, J.]

      13. Till 31.10.1979, the method of filling up vacancies A
when successful candidates were not available was laid out in
Rule 11, which required that the vacancies by filled up by
successful candidates from the previous year who are within
the age limit. The Government Resolution dated 25.5.1982
which regularized the ad hoc candidates set aside Rule 11, B
allowing Section 9(4) of the O.R.V. Act to prevail over it. The
Government cannot be faulted for placing reliance on the Act
as opposed to the contradictory Rules, as the latter is merely
delegated legislation and deals with all vacancies, as opposed
to the Section of the Act which specifically pertained to SC/ST c
candidates.
       14. Rule 30 of the OMS Rules 1951 deals with scenarios
where a sufficient number of successful SC/ST candidates are
not available. It directs that in such a situation, the vacancies
be filled up as unreserved vacancies and also be carried D
forward forthe subsequent years. Once again, this Rule is in
the face of Section 9(4 ), which prescribes a fresh recruitment
drive. Section 9(5) holds that if this fresh recruitment fails to fill
up the available. seats, the vacancies should be filled by
general candidates. Rule 30 thus skips one of the steps E
postulated by statute, and in light of the rules of statutory
interpretation, must be cast aside in favour of the method of
recruitment laid down by the 0. R. V. Act.
       15. It is thus clear that at the time of appointment of the F
Respondents, the prevailing law regarding appointment of SC/
ST candidates to surplus vacancies was contained· in Section
9(4) of the 0. R. V. Act. This Section does contain or prescribe
any limitation regarding the method of fresh recruitment except
that it be restricted to SC/ST candidates. The sponsorship of G
names by the Employment Exchange and the subsequent
interview by a duly constituted Selection Committee was thus
a valid alternative to recruitment by way of the OPSC
competitive examination. In fact, a fresh recruitment would not

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326          SUPREME COURT REPORTS                    [2015] 14S.C.R.


A     have been possible by means of a competitive examination
      as Rule 3 required that these be conducted once a year, and
      the examination for 1974-75 had already been conducted,
      yielding a meag.er number of 20 SC/ST candidates. We
      therefore find the method of appointment of the Respondents
B     to be valid in the eyes of the law; their regularization with effect
      from the date of appointment cannot be faulted.
        16. The other question to which we must tum our attention
  is whether the Appellants had the locus standi to challenge
  the mode of recruitment of the Respondents. The High Court
C has held that since they were not of the reserved class, they
  did not have the locus standito challenge mode of recruitment
  of the Respondents who were of the reserved class, on the
  principle that unequals cannot be treated as equals. While we
  accept the principle itself, we do not find it pertinent to the factual
D scenario before us. The unrefuted factual position is that by
  virtue of their retrospective regularization, several of the
  Respondents gained seniority over the Appellants. In light of
  the direct impact on them, the Appellants would have the locus
  standi to challenge the validity of the appointment of the
E Respondents. However, for the reasons discussed above, the
  challenge while allowed is not successful.
         17. It also seems to us that the High Court may not have
  been justified in allowing the challenge by the OPSC reserved
F category candidates. In light of the fact that the Respondents
  were appointed in a legal and legitimate manner, the Merit
  List should not have been disturbed to protect the rights of the
  OPSC recruits. It is certainly arguable that there was no
  justification to destabilize seniority by departing from· the
G general principle of service law that seniority is determined by
  the date of joining. However, this contention has not been raised
  before us, so we shall refrain from any further discussion on
  the matter, which hereafter stands closed for not having been
  pressed till date.

H
     PRATAP KISHORE PANDAv. AGNI CHARAN DAS                       327
                [VIKRAMAJIT SEN, J.]

     18. We see it fit to uphold the impugned Judgment. We        A
dismiss the Appeals before us, but with no order as to costs.


Devika Gujral                                Appeals dismissed.