Supreme Court of India
UNION OF INDIA & ANR.versusARULMOZHI -INIARASU & ORS.
- Citation
- 2011 INSC 462
- Decided
- 6 July 2011
- Disposal
- Appeal(s) allowed
- Bench
- D K JAIN
Holding
Engagement as casual labourers, even for a long period, does not create any legal right to age‑relaxation or regularisation, and the doctrine of legitimate expectation is inapplicable; therefore the High Court order is set aside.
Summary
The respondents, who had worked as part‑time contingent casual labourers in the Central Excise Department for 8‑14 years, sought regularisation and a relaxation of the age limit for recruitment to the post of Sepoy. The Central Administrative Tribunal directed the department to relax the age limit, and the High Court modified this order, allowing a three‑year (OBC) and five‑year (SC/ST) relaxation for former employees. On appeal, the Supreme Court held that long service as a casual labourer does not create any legal right to age‑relaxation or regularisation, that the doctrine of legitimate expectation does not apply, and that the Nagendra Chandra decision is not a binding precedent for these facts. Consequently, the High Court’s order was set aside and the appeals were allowed.
Issues considered
- Whether long service as a part‑time contingent casual labourer confers a legal right to relaxation of the age limit for recruitment to a permanent post.
- Whether the doctrine of legitimate expectation applies to casual labourers seeking regularisation.
- Whether the High Court erred in treating the Nagendra Chandra case as binding precedent.
- Whether a writ of mandamus can be issued when no legal right exists.
- Whether the department’s action amounts to unlawful discrimination.
Legislation cited
- Constitution of Indias. Article 14, s. Article 141, s. Article 142, s. Article 16, s. Article 226
Subjects
service lawrecruitmentcasual labourtemporary employmentage relaxationlegitimate expectationwrit of mandamusadministrative lawprecedentequalitydiscrimination
Judgment
[2011] 9 S.C.R. 1
.-\
UNION OF !NOIA & ANR. A
.. v._ .·.: .. . . .
ARULMOZHI -INIARASlJ & ORS.· ·
(Civil Appeal Nos. 4990-4991 of 2011)
JULY 06, 2011
' B
[D.K. JAIN AND H.L. DATTU, JJ.]
Service Law - Recruitment - Part time contingent casual
labourers - On purely temporary basis - Engaged as required
-
j
'
on basis of need for which paid on hourly basis - Applications
invited for post of Sepoy in the Department prescribing certain
age limit - Casual labourers not allowed to participate in the
selection process - Application before the Tribunal - Direction
c
issued by the Tribunal to the Department to consider the case
of the labourers by relaxing the age limit prescribed - Said D
order challenged - High Court modified the order of the
Tribunal with regard to relaxation in the age limit with a
condition that it would be applicable to the actual erstwhile
employees of the Department - On appeal, held:
Engagement of employees as casual labourers even for E
considerable long duration did not confer any legal right on
them for seeking a mandamus for relaxation of age limit -
Also terms of letter of appointment in unambiguous terms
stated that appointments were temporary and would not confer
any right to claim any permanent post in the department -
F
Only because some similarly situated persons have been
appointed/absorbed as Sepoys, same cannot be directed to
be carried out - Thus, order of the High Court is set aside.
Constitution of India, 1950: · .
./ G
Article 141 - Precedent - Reliance on - Principles to be
followed - Held: While applying precedents the Court should
not place reliance on decisions without discussing as to how
the fact situation of the case before it fits in with the fact
1 H
2 SUPREME COURT REPORTS [2011] 9 S.C.R.
'
'
A situation of the decision on which reliance is placed -
Observations of courts .are neither to be read as Euclid's
theorems nor as provisions of Statute and that too taken out
of their context - These observations must be read in the
context in which they appear to have been stated - Disposal
B of cases by blindly placing reliance on a decision is not
proper because one additional or different fact may make a
world of difference between conclusions in two cases.
Article 226 - Writ of mandamus - Issuance of - Held:
Writ of mandamus can be issued by the High Court only when
C there exists a legal right in the writ petitiorter and
corresponding legal obligation in the State - Only because
an illegality has been committed, the same cannot be
, l
directed to be perpetuated - There cannot be equality in
illegality - On facts, it cannot be said that the action of the
D appellants is highly discriminatory in as much as some
similarly situated persons have been appointed/absorbed as
Sepoys.
Administrative law - Doctrine of legitimate expectation -
E Applicability of - Plea of employees (part time contingent
casual labourers) for permanent absorption/regularisation in
the Department on account of their alleged uninterrupted
engagement for long durations ranging between 8-14 years
- Held: Doctrine of legitimate expectation is not applicable -
F Letter of appointment was to the effect that the appointments
were temporary and would not confer any right to claim any
permanent post in the department - Also no promise was
made to the employees that they would be absorbed as
regular employees of the Department.
G Respondents were engaged as part-time contingent
casual labourers, purely on temporary basis in the Excise
Department. They were engaged on basis of the need of
the office for which they were paid on hourly basis. In the
year 1999, most of the respondents were in continuous
H employment for a period ranging from 8 to 14 years. In
UNION OF INDIA & ANR. v. ARULMOZHI INIARASU & 3
. ORS.
the year 2005, the appellants dispensed with the services A
of all such casual labourers. The respondents filed an
application before the Tribunal seeking regularisation of
their services. and the same was dismissed. The
respondents filed a writ petition. The High Court directed
the appellants to consider the matter afresh in light of the B
circulars issued by the Department. The Excise
Department found that the respondents were not eligible
for regularization of their services as they did not satisfy
the criteria laid down in the case of *Umadevi (3) and .
Office Memorandum. Thereafter, the Excise Department c
invited applications for recruitment to the posts of Sepoy
prescribing the age limit. The applications of the
\
respondents were rejected as age barred. The
respondents filed applications before the Tribunal. The
Tribunal directed the appellants to consider the case of
0
the respondents for appointment by relaxing the age limit
prescribed, if necessary, in view. of the long service
rendered by them. The appellants challenged the order
of the Tribunal. The High Court disposed of the writ
.petition modifying of the order of Tribunal, holding that
relaxation in the age limit could be up to 3 years for OBC E
candidates and 5 years for SC/ST candidates, subject to
the condition that it would be applicable to those
candidates who were actually erstwhile employees of the
department. Therefore, the appellants filed the instant
appeals. F
Allowing the appeals, the Court
HELD: 1.1 In the matter of applying precedents the
Court should not place reliance on decisions without G
discussing as to how the fact situation of the case before
it fits in with the fact situation of the decision on which
reliance is placed. Observations of Courts are neither to
be read as Euclid's theorems nor as provisions of Statute
and that too taken out of their context. These
H
4 SUPREME COURT REPORTS [2011] 9 S.C.R.
A observations must be read in the context in which they
appear to have been stated. Disposal of cases by blindly
placing reliance on a decision is not proper because one
additional or different fact may make a world of difference
between conclusions in two cases. [Para 12) [12-C-E]
B
1.2 The observation in **Nagendra Chandra's case
cannot be said to be an exposition of general principle
of law on the point that a long length of service, dehors
the relevant recruitment rules for the post, is a relevant
factor for waiver or relaxation of any eligibility criterion,
C including age limit, for future regular selections for the
post. The observation, general in nature, was made by
this Court in exercise of its jurisdiction under Article 142
of the Constitution of India and, therefore, cannot be
treated as a binding precedent. It has to be confined to
D the peculiar facts of that case. [Para 13) [13-E-G]
**Nagendra Chandra and Ors. vs. State of Jharkhand
and0rs.(2008)1SCC 798: 2007 (12) SCR 608 -
distinguished.
E
*Secretary, State of Karnataka and Ors. vs. Umadevi (3)
and Ors. (2006) 4 SCC 1: 2006 (3) SCR 953; Bharat
Petroleum Corpn. Ltd. and Anr. vs. N.R. Vairamani and Anr.
(2004) 8 SCC 579: 2004 (4) Suppl. SCR 923; Sarva
Shramiks anghatana (KV), Mumbai vs. State of Maharashtra
F and Ors. (2008) 1 SCC494: 2007 (12) SCR 645; Bhuwalka
Steel Industries Limited vs.Bombay Iron and Steel Labour
Board and Anr. (2010) 2 SCC 273: 2009 (16) SCR 618 -
referred to.
G 2.1 In the instant case, indubitably, the respondents
were engaged as part time contingent casual labourers
In the office of the Commissioner of Central Excise for
doing all types of work as may be assigned to them by
the office. Their part time engagement was need based
H for which they were to be paid on hourly basis. Though
UNION OF INDIA & ANR. v. ARULMOZHI INIARASU & 5
ORS.
their stand is that many a times they were required to A
work day and night but it is nowhere stated that they were
recruited or ever discharged the duties of a 'sepoy' for
which recruitment process was initiated vide public
notice dated 14th January 2008 and the Tribunal as also
the High Court directed the appellants to grant relaxation 8
in age limit over and above what is stipulated in the
recruitment rules/advertisement. In view of the facts, the
engagement of the respondents as casual labourers even
for considerable long duration did not confer any legal
right on them for seeking a mandamus for relaxation of C
age limit. The impugned direction by the Tribunal, as
affirmed by the High Court based on the **Nagendra
Chandra's case was clearly unwarranted. [Para 14] [14-A-
.(
E]
3.1 It is plain from the terms of the letter of D
appointment that the respondents were told in
unambiguous terms that their appointments were
temporary and would not confer any right to claim any
permanent post in the department. It is not the case of the
respondents that at any point of time, during their E
engagements with the appellants, a promise was held out
to them by the apRellants that they would be absorbed
as regular employees of the department. In fact, no such
promise could be held out in view of the Government O.M.
dated 7th June, 1988 banning the employment of persons F
in regular posts. [Para 20] [17-B-C]
3.2 The doctrine of legitimate expectation, is not
attracted in the instant case. The plea relating to the
legitimate expectation of the respondents of being G
permanently absorbed/regularised in the Excise
Department on account of their alleged uninterrupted
engagement for long durations ranging between 8-14
years is rejected. [Paras 15 and 22] [14-F; 18-A]
Sethi Auto Service Station and Anr. vs. Delhi H
6 SUPREME COURT REPORTS [2011] 9 S.C.R.
A Development Authority and Ors. (2009) 1 SCC 180: 2008 (14)
SCR 598 - relied on.
Council of Civil Service Unions vs. Minister for Civil
Service 1985 AC 374 : (1984) 3 All ER 935 (HL) - referred
B to. .
•
4. The submission that the action of the appellants
is highly discriminatory in as much as some similarly
situated persons have been appointed/absorbed as
Sepoys cannot be accepted. A writ of mandamus can be
C issued by the High Court only when there exists a legal
right in the writ petitioner and corresponding legal
obligation in the State. Only because an illegality has
been committed, the same cannot be directed to be
perpetuated. There cannot be equality in illegality. [Para
D 23) (18-B-C]
Sushanta Tagore and Ors. .s. Union of India and Ors.
(2005) 3 sec
16: 2005 (2) SCR 502; UP. State Sugar Corpn. Ltd. and
E Anr. vs. Sant Raj Singh and Ors. (2006) 9 SCC 82: 2006 (2)
Suppl. SCR 636; State, CBI vs. Sashi Balasubramanian and
Anr. (2006) 13 SCC 252: 2006 (7) Suppl. SCR 914; State
of Orissa and Ors. vs. Prasana Kumar Sahoo (2007) 15 SCC
129: 2007 (5) SCR 697 - referred to.
F
5. The impugned judgment cannot be sustained and
is set aside. (Para 24] (18-E]
Case Law Reference:
G 2006 (3) SCR 953 Referred to Para 13,
14, 21
2007 (12) SCR 608 Distinguished Para 1,
14
H
UNION OF INDIA & ANR. v. ARULMOZHI INIARASU & 7
ORS.
2004 (4) Suppl. SCR 923 Referred to Para 12 A
2007 (12) SCR 645 Referred to Para 12
2009 (16) SCR 618 Referred to Para 12
{1984) 3 All ER 935 (HL) Referred to Para 17
"' B
2008 (14) $CR 598 Relied on Para 18
2005 (2) SCR 502 Referred to Para 23
2006 (2) Suppl. SCR 636 Referred to Para 23
2006 (7) Suppl. SCR 914 Referred to Para 23
c
2007 (5) SCR 697 Referred to Para 23
:,
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4990-4991 of 2011. D
From the Judgment & Order dated 05.01.2010 of the High
Court.of Judicature at Madras in W.P. Nos. 27605 & 27606
of2009.
B. Bhattacharya, Kiran Bhardadwaj, Rajiv Nanda, B. E
Krishna Prasad for the Appellants.
P.B. Krishnan, B. Raghunath, Vijay Kumar, P.B.
Subramaniyan, R. Gopalakrishnan for the Respondents.
The Judgment of the Court was delivered by F
D:K. JAIN, J.: 1. Leave granted.
2. These two appeals, by special leave, are directed
against the judgment and final order dated 5th January, 2010 G
delivered by the High Court of Judicature at Madras, whereby
the High Court, in slight modification of the order passed by
the Central Administrative Tribunal, Madras Bench (for short
"the Tribunal"), has directed that the respondents shall be given
a relaxation of five years and three years respectively to SC/
H
8 SUPREME COURT REPORTS [2011] 9 S.C.R.
A ST and OBC candidates in age limit for being considered for
selection to the post of Sepoy in the Central Excise department,
Ministry of Finance, Government of India. However, the High
Court has directed that the said relaxation would be applicable
to those candidates who were actually erstwhile employees of
B the said department.
3. Shorn of unnecessary details, the facts essential for
adjudication of the present appeals may be stated as follows:
The respondents were engaged as part-time contingent
C casual labourers-purely on temporary basis in the Office of
the Commissioner of Central Excise, Chennai Zone, in the
year 1999. As per offer of appointment on record, they were
required to work on the basis of the need of the office, for
which they were to be paid @ Rs. 10/- per working hour with
D no guarantee as regards minimum number of hours in a month.
In para 7 of the said letter, it was stated that the appointment
letter would not confer any right to claim any permanent post
in the department as also any automatic right to be considered
for selection to any permanent post in the department. Most of
E them.were in continuous employment for a period ranging from
8 to 14 years. It is common ground that none of the
respondents fall within the purview of 1993 scheme, notified
on 1Oth September, 1993, for conferring temporary status and
regularisation of casual workers, who were in employment on
F 1st September, 1993, all of them having been engaged after
the said date.
4. On 2nd May, 2005, in compliance with the directions
issued by the Ministry of Finance, the appellants dispensed
with the services of all such casual labourers and handed over
G the work done by them to contractors. Aggrieved by the said
action the respondents herein, approached the Tribunal by
preferring an original application, (O.A.No.764 of 2005)
seeking regularisation of their services. The said O.A. was
dismissed by the Tribunal. Against the order of dismissal, the
H
.
I
UNION OF INDIA & ANR. v. ARULMOZHI INIARASU & 9
ORS. [D.K. JAIN, J.]
respondents filed a writ petition before the High Court. While A
disposing of the writ petition, the High Court directed the
appellants herein to consider the matter afresh in light of the
circulars issued by the Department of Personnel in
O.M.No.49019/1/2006-Estt{C) dated 11th December, 2006 as
"" also the circulars issued by the Ministry of Finance dated 7th B
September, 2007 and 13th September, 2007. These circulars
were issued pursuant to the order passed by this Court in the
case of Secretary, State of Kamataka & Ors. Vs. Umadevi
(3) & Ors. 1, inter-alia directing the Union of India, State
Governments and their instrumentalities to take steps to c
regularise, as a one time measure, the services of such
irregularly appointed employees, who are duly qualified in terms
., of the statutory recruitment rules for the post and who have
worked for ten years or more in duly sanctioned post but not
under cover of orders of Courts or Tribunals.
D
5. Upon a fresh .consideration in terms of the said
direction, the Chief Commissioner of Central Excise found
that the respondents were not eligible for regularization of their
services as they did not satisfy the criteria laid down in the
case of Umadevi(3) (supra) and Office Memorandum dated E
;
11th December, 2006, issued by Department of Personnel &
Training, Ministry of Personnel, Public Grievances ahd
Pensions.
6. On 14th January, 2008, the office of the Chief F
Commissioner of Central Excise, Chennai Zone, issued a
notice inviting applications for recruitment to 40 (37 GC & 3
OBC) posts of Sepoy (General Central Service Group D Post).
As per the recruitment rules, the age limit prescribed for the
:<
. post as on 1st January, 2008, was 27 years for general
G
candidate, 32 years for SC/ST candidates and 30 years for
OBC because of relaxation of age limit by five years and three
years in the cases of SC/ST candidates and OBC candidates
'..:respectively. In the recruitment process, thus initiated, initially
1. c2oos) 4 sec 1. H
10 SUPREME COURT REPORTS [2011) 9 S.C.R.
A the respondents were permitted to participate but later on,
realising that the respondents (all SC/ST and OBC candidates)
had crossed the prescribed age, they were not called to
participate in the further selection process. Their applications
were rejected as age barred.
B r
7. Being aggrieved by the decision of the department in
not granting relaxation in age, the respondents filed fresh
Original Applications before the Tribunal. The Tribunal was of
the view that the ratio of the decision of this Court in Nagendra
Chandra & Ors. Vs. State of Jharkhand & Ors. 2 was applicable
C to the case of the respondents and therefore, they were entitled
to the same relief as was granted in that case. Accordingly,
the Tribunal directed the appellants herein to consider the case
of the respondents for appointment by relaxing the age limit
prescribed, if necessary, in view of the long service rendered
D bythem.
8. Aggrieved by the said direction, the appellants herein
unsuccessfully questioned the validity of the order of the Tribunal
before the High Court. The High Court disposed of both the
E writ petitions with modification of the order of Tribunal to the
effect that relaxation in the age limit could be up to 3 years for
OBC candidates and 5 years for SC/ST candidates, subject
to the condition that it would be applicable to those candidates
who were actually erstwhile employees of the department.
•
F Hence, the present appeals.
9. Mr. B. Bhattacharya, learned Additional Solicitor
General of India, appearing for the appellants strenuously urged
that the High Court has committed a manifest error in directing
relaxation of age bar in the case of the respondents by treating
G the decision in the case of Nagendra Chandra & Ors. (supra)
as a binding precedent on the point, without appreciating that:
(i) the observation with regard to relaxation in age bar in the
penultimate paragraph of Nagendra Chandra's case (supra)
H 2. c2008) 1 sec 798.
UNION OF INDIA & ANR. v. ARULMOZHI INIARASU & 11
ORS. [D.K. JAIN, J.]
"
· was made by this Court in exercise of power under Article A
142 of the Constitution of India, which is not possessed by
either the High Court or the Tribunal and (ii) the fact-situation
in the instant case was entirely different from the one obtaining
in that case. It was asserted that unlike Nagendra Chandra's
~ case (supra), where there was irregularity in the appointment B
of Constables against the sanctioned posts, the present case
pertained to engagement of need based casual labourers
without any recruitment rules or sanctioned posts. It was thus,
argued that the High Court failed to notice distinction between
the casual labourer and those whose appointment was irregular c
because of non-compliance with some procedure in the
selection process, which is not the case here when none of
~
~
the respondents had earlier participated in recruitment for the
post of Sepoys.
10. Per contra, Mr. P.B. Krishnan, learned counsel D
appearing for the respondents, in his written submissions, has
submitted that though the respondents were informed at the
time of the appointment about the nature of their work, many
a times they continued to work day and night and also on
national holidays without any monetary benefits only with the E
hope and expectation that they would be absorbed on regu1ar
basis or at least conferred temporary status. It has been further
pleaded that the action of the appellants in rejecting the request
., for age relaxation without taking into account considerable
years of their casual service, was highly unjust and arbitrary. F
The learned counsel pleaded that by reason of the impugned
directions the respondents have only been given a right to
compete and not an appointment as such and therefore, this
Court should be loathe to interfere with a just and equitable
order by the authorities below, particularly when similarly placed G
. labourers had been granted age relaxation.
11. Thus, in these appeals the first and the foremost
question to be examined is whether in the matter of relaxation
of age limit, prescribed as eligibility criteria for appointment
H
12 SUPREME COURT REPORTS [2011] 9 S.C.R.
A on a particular post, any principle of law has been laid down
in the decision of this Court in Nagendra Chandra's case
(supra)? If so, whether it could be applied to the facts of the
present case for directing the afore-stated relaxation in age
limit?
B
12. Before examining the first limb of the question,
formulated above, it would be instructive to11ote, as a preface,
the well settled principle of law in the matter of applying
precedents that the Court should not place reliance on
C decisions without discussing as to how the fact situation of the '
case before it fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts are neither
to be read as Euclid's theorems nor as provisions of Statute . -
and that too taken out of their context. These observations
must be read in the context in which they appear to have been
D stated. Disposal of cases by blindly placing reliance on a
decision is not proper because one additional or different fact
may make a world of difference between conclusions in two
cases. (Ref.: Bharat Petroleum Corpn. Ltd. &Anr. Vs. N.R.
Vairamani & Anr. 3; Sarva Shramik Sanghatana (KV), Mumbai
E Vs. State of Maharashtra & Ors. 4 and Bhuwalka Steel
Industries Limited Vs. Bombay Iron & Steel Labour Board &
Anr. 5.)
13. Bearing in mind the aforenoted principle of law, we
F may now refer to the decision in Nagendra Chandra (supra).
It is plain from a bare reading of the said decision that the
question which fell for consideration before a bench of three •
learned Judges of this Court was as to whether the
appointments of the appellants in that case were illegal or
G irregular. This Court opined that since the appointments made
were not only in infraction of the recruitment rules but also
violative of Articles 14 and 16 of the Constitution of India,
3. (2004) s sec 579.
4. c2oos) 1 sec 494.
H 5. c2010) 2 sec 273.
•
UNION OF INDIA &ANR. v. ARULMOZHI INIARASU & 13
ORS. [D.K. JAIN, J.]
these were illegal. It was thus, held that the appellants would A
not be entitled to get the benefit of the directions contained in
Umadevi(3) case (supra), which are applicable only to those
qualified employees who were appointed irregularly in a
sanctioned post. Having come to the conclusion that the subject
appointments being illegal, the competent authority was justified B
in terminating the services of the employees concerned and
the High Court was also justified in upholding the same, in our
view, the relied upon observation in the penultimate paragraph
of the judgment in Nagendra Chandra (supra) does not appear
to be consistent with the ratio of the decision of the Constitution c
Bench in Umadevi(3) case (supra). In the said decision it has
clearly been held that the courts are not expected to issue any
direction for absorption/regularisation or permanent
continuance of temporary, contractual, casual, daily wagers or
ad-hoc employees merely . because such an employee is
continued for a long time beyond the term of his appointment. D
It has also been held that such an employee would not be
entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original ·
appointment was not made by following a due process of
selection as envisaged by the relevant rules. Therefore, in our E
opinion, the said observation cannot be said to be an
exposition of general principle of law.on the point that a long
length of service, dehors the relevant recruitment rules for the
post, is a relevant factor for waiver or relaxation of any eligibility
criterion, including age limit, for future regular selections for F
the post. Obviously, the observation, general in nature, was
made by this Court in exercise of its jurisdiction under Article
142 of the Constitution of India and, therefore, cannot be treated
.as a binding precedent. It has to be confined to the peculiar
facts of that case. G
14. We may now advert to the second limb of the question
in para 11 (supra). The issue need not detain us for long as
in our view the factual position as obtaining in the present
case does not fit in with the fact situation in the case of H
14 SUPREME COURT REPORTS [2011] 9 S.C.R.
A Nagendra Chandra (supra). In the instant case. indubitably,
the respondents were engaged as part time contingent casual
labourers in the office of the Commissioner of Central Excise
for doing all types of work as may be assigned to them by the
office. Their part time engagement was need based for which
B they were to be paid on hourly basis. Though their stand is
that many a times they were required to work day and night
but it is 1;owhere stated that they were recruited or ever
discharged the duties of a 'sepoy' for which recruitment process
was initiated vide public notice dated 14th January 2008 and
c the Tribunal as aiso the High Court has directed the appellants
to grant relaxation in age limit over and above what is
stipulated in the recruitment rules/advertisement. In view of the
stated factual scenario, in our opinion, the engagement of the
respondents as casual labourers even for considerable long
0 duration did not confer any legal right on them for seeking a
mandamus for relaxation of age limit. We have no hesitation
in holding that Nagendra Chandra's case (supra) has no
application on facts in hand and the impugned direction by the
Tribunal, as affirmed by the High Court based on the said
E decision, was clearly unwarranted.
15. We may now consider the plea relating to the legitimate
expectation of the respondents of being permanently absorbed/
regularised in the Excise Department on account of their
alleged uninterrupted engagement for long durations ranging
F between 8-14 years.
16. The doctrine of legitimate expectation and its impact
in the administrative law has been considered by this Court in
a catena of decisions. However, for the sake of brevity, we do
G not propose to refer to all these cases. Nevertheless, in order
to appreciate the concept, we shall refer to a few decisions.
17. In Council of Civil Service Unions Vs. Minister for
Civil Service6, a locus classicus on the subject, for the first
H 6. 1985 AC 374 : (1984) 3 All ER 935 (HL).
UNION OF INDIA & ANR. v. ARULMOZHI INIARASU & 15
~ ORS. [D.K. JAIN, J.]
time an attempt was made by the House of Lords to give a A
comprehensive definition to the principle of legitimate
expectation. Enunciating the basic principles relating to
legitimate expectation, Lord Diplock observed that for a
legitimate expectation to arise, the decision of the
administrative authority must affect such person either (a) by B
altering rights or obligations of that person which are
enforceable by or against him in private law; or (b) by depriving
him of some benefit or advantage which either: (1) he has in
the past been permitted by the decision-maker to enjoy and
which he can legitimately expect to be permitted to continue c
to do until some rational ground for withdrawing it has been
communicated to him and he has been given an opportunity
to comment thereon, or (ii) he has received assurance from
the decision-maker that they will not be withdrawn without first
giving him an opportunity of advancing reasons for contending
D
that they should be withdrawn.
18. Recently, in Sethi Auto Service Station & Anr. Vs.
Delhi Development Authority & Ors. 7, one of us (D.K. Jain,
J.), referring to a large number of authorities on the point,
summarised the nature and scope of the doctrine of legitimate E
expectation as follows:
"32. An examination of the aforenoted few decisions shows
·.~
that the golden thread running through all these decisions
is that a case for applicability of the doctrine of legitimate
F
expectation, now accepted in the subjective sense as part
of our legal jurisprudence, arises when an administrative
body by reason of a representation or by past practice or
conduct aroused an expectation which it would be within
its powers to fulfil unless some overriding public interest
G
comes in the way. However, a person who bases his claim
on the doctrine of legitimate expectation, in the first
instance, has to satisfy that he has· relied on the said
r~presentation and ~he denial of that expectation has
7. c2009) 1 sec 1so. H
16 SUPREME COURT REPORTS (2011J 9 S.C.R.
A worked to his detriment. The Court could interfere only if
the decision taken by the authority was found to be
arbitrary, unreasonable or in gross abuse of power or in
violation of principles of natural justice and not taken in
public interest. But a claim based on mere legitimate
s expectation without anything more cannot ipso facto give
a right to invoke these principles. n
19. Bearing in mind the afore-stated legal position, we 1
may now advert to the facts at hand. For the sake of ready \
reference, the relevant portions of offer of appointment issued
C by Commissioner of Central Excise, Chennai, to the
respondents on 6th August 1999 are extracted below:
"The under mentioned candidates who have been applied
in response to the advertisement given by this department
o in the "Daily Thanthi" & who are appeared in Interview
conducted by this office on 10.04.99 are offered
appointment provisionally in "part time contigent casual
labourers" Purely on temporary basis on the basis of
payment for the number of hours actually worked in a
E month. They will be paid Rs. 10.00 for every working hour.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. The candidates should note that they will be asked to
work on the basis of the need of the office and there is no
F guarantee as regards minimum number in a month.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
6. The offer of appointment is purely on temporary basis
only. In case the work and conduct of the candidates is not
G found to be satisfactory. Their services will be terminated
without any intimation/notice.
7.This appointment letter does not confer any right to claim
any permanent post in this department and does not also
H vest any automatic right to be considered for selection to
UNION OF INDIA & ANR. v. ARULMOZHI INIARAs·u & 17
ORS. [D.K. JAIN, J.]
·"
any permanent post in the Department. A
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
20. It is plain from the terms of the letter of appointment
that the respondents were told in unambiguous terms that their
appointments were temporary and would not confer any right B
to claim any permanent post in the department. It is not the
case of the respondents that at any point of time, during their
engagements with the appellants, a promise was held out to
them by the appellants that they would be absorbed as regular
employees of the department. In fact, no such promise could c
be held out in view of the Government O.M. dated 7th June,
1988 banning the employment of persons in regular posts.
~
21. At this juncture, it would be apposite to note that a
similar plea was negatived by the Constitution Bench in D
Umadevi(3) (supra) by observing thus:
"47. 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 relevant rules or procedure, he is aware E
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
.j confirmed in the post when an appointment to the post
could be made only by following a proper procedure for F
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 while G
engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make 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." H
18 SUPREME COURT REPORTS [2011] 9 S.C.R.
A 22. Having bestowed our anxious consideration to the
facts of the case, in our opinion, the doctrine of legitimate
expectation, as explained above, is not attracted in the instant
case. The argument is rejected accordingly.
B 23. Lastly, as regards the submission that the action of
the appellants is highly discriminatory in as much as some
similarly situated persons have been appointed/absorbed as
Sepoys, the argument is stated to be rejected. It is well settled
that a writ of mandamus can be issued by the High Court only
c when there exists a legal right in the writ petitioner and
corresponding legal obligation in the State. Only because an
illegality has been committed, the same cannot be directed to
be perpetuated. It is trite law that there cannot be equality in
illegality. (Ref.: Sushanta Tagore & Ors. Vs. Union of India &
8
0 Ors. ; U. P. State Sugar Corpn. Ltd. & Anr. Vs. Sant Raj Singh
& Ors. ; State, CBI Vs. Sashi Balasubramanian & Anr. 10 and
9
State of Orissa & Ors. Vs. Prasana Kumar Sahoo 11 .)
24. In view of the foregoing discussion, the impugned
judgment cannot be sustained. It is set aside and the appeals
E are allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
N.J. Appeals allowed.
8. (2005) 3 sec 16.
9. (2006) 9 sec 82.
10. (2006) 13 sec 252.
11. (2007) 15 sec 129.
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