Delhi High Court
Shri Shankar Nath Tiwary And Ors., Smt. ... vs Delhi Subordinate Services Selection ... on 23 July, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. Whether recruitment of teachers on contract basis is valid is the question involved in this batch of writ petitions, which arise out of a judgment and order dated 27.10.2000 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (in short, 'the Tribunal') dismissing the original applications being O.A. Nos. 435, 482, 499, 500, 508, 513, 517, 571, 641, 722 and 860 of 2000 filed by the writ petitioners herein.
2. An Original Application was filed before the learned Tribunal entitled Dr. Jitender Singh and Ors. v. Union of India and Ors., which was marked as O.A. No. 1259 of 1990 seeking regularisation of the services of the applicants therein as a separate block and not by competing with other candidates in the open market. The said Original Application was allowed by an Order dated 08.10.1991. The writ petitioners herein filed the aforementioned Original Applications relying on or on the basis thereof.
3. The basic fact of the matter is not in dispute.
The appointment of Trained Graduate Teachers/Post Graduate Teachers (in short, TGTs/PGTs) are governed by rules regarding method of recruitment and qualifications necessary for appointment to the post of TGTs in the Directorate of Education of the Government of National Capital Territory of Delhi. The said Rules were issued by a notification dated 30th December, 1992. The said Rules framed under the proviso appended to Article 309 of the Constitution of India were annexed by a notification dated 17.01.1994.
According to the petitioners, they possessed requisite qualifications as laid down in the said statutory rules. The Government of National Capital Territory of Delhi (in short, 'Govt. of NCT of Delhi') proposed to conduct special recruitment for the said posts of TGTs/PGTs by issuing an appropriate advertisement in the newspapers in april, 1998 calling for applications for the said posts. The said advertisements categorically state that the appointments of teachers were to be made on contract basis; the relevant extracts whereof are:-
"APPOINTMENT OF TEACHERS ON CONTRACT Applications are invited from eligible candidates (who have passed from university of Delhi) by the Directorate of Education, Government of National Capital Territory of Delhi for posting in the schools located in the rural and interior area of Delhi. Applicants can chose one alternative from the following lists of special schools.
Appointment will be on contract basis for the period from the date of joining to 31st December, 1999 which can be extended up to 30th April, 1999. Consolidated salary of Rs. 7,000/- per month, Rs. 6,000/- for T.G.T. and Rs. 5,000/- for Assistant Teachers shall be paid. The period of contractual engagement will be lessened on filling up the vacancy on regular basis. No application for appointment in any other school than the schools mentioned in the list shall be entertained. The successful candidate will not have any right for regular appointment in this Directorate on the basis of this contractual engagement.
PGT/TGT/Assistant Teachers retired from any Government or recognised (aided or unaided) schools of Delhi, who have not attained the age of 65 years as on 31.3.1998, can also apply."
It is also not in dispute that in the meanwhile steps were being taken to constitute Delhi Subordinate Services Selection Board (in short, 'the Board'). Having regard to the fact that despite the recruitment process having been undertaken, 40% of the posts of TGTs/PGTs remained vacant for years resulting of the fall in standard in the school situated in the remote villages and slum areas.
The petitioners accept that the said advertisement had been issued containing the method of marketing recruitment pursuant to a policy decision taken by the Govt. of NCT of Delhi to fill up the posts without waiting to fill up the said posts in accordance with the statutory recruitment rules and through open competition. The procedure for implementing the said policy decision was based on the noting of the appropriate authority, which is in the following terms:-
Sub: Appointment of teachers on contractual basis The handling and scrutiny of applications or appointment of teachers on contractual basis was discussed today with the D.D.E. (South-West), D.D.E. (North-West) and D.D.E. (Vocational) and the following procedure was finalized:
1. Incomplete or wrongly filled applications will be rejected outrightly.
2. Applicants other than those who have passed from a University in Delhi will not be considered. For T.G.T. a candidate should have a Graduation Degree from Delhi for P.G.T. either a post-Graduate or a Graduate from Delhi and for Assistant teachers XII or JBT from Delhi.
3. The applicants not meeting the requirements of the R/Rs will not be considered. Only male candidates will be eligible for Boy's School and female candidates for Girl's School.
4. All applications not meeting the above criteria will be rejected.
5. Lists of eligible candidates would be drawn up School-wise, subject-wise and post-wise. For candidates other than retired teachers, merit list will be drawn up as per the approved marking scheme for recruitment of teachers, in a descending order. In case of retired teachers, merit list would be drawn up on the basis of age of the candidate giving preference to younger candidates. It was also decided that all eligible applications would be fed in the Computer. The DDEs' concerned will handover all such applications to the computer personnel deployed to their officers and a final list will be drawn up by 22-04-1998.
6. The list will then be scrutinized and authenticated by the DDE's office and sent to Headquarters on 24-04-1998.
It was stressed upon the DDEs that the deadline for display of lists of eligible candidates must be adhered to.
A decision would be taken as to the number of candidates to be called for interview for each vacancy, which can be held either in the office of the DDEs, concerned or at the Headquarters.
For approval please.
Sd/-
(Rakesh Bali) Jt. Director of EDN. (ADMN)"
The petitioners pursuant to the aforementioned advertisement applied for the posts and were selected. According to them, as they were appointed on the basis of open selection pursuant to the said advertisement and being possessed of all requisite qualifications as envisaged in the statutory recruitment rules, they should have been offered regular appointment and/or they should be regularized in services as a separate block irrespective of the method and nature of recruitment adopted therefore.
The appointment letter issued to one of the petitioners containing the terms and conditions of the appointment is as under:-
"Sub: Offer of appointment to the post of PGT/TGT/Assistant teacher on consolidated monthly remuneration for a period of six months.
The Deputy Director of Education of Distt. North West, Directorate of Education, Govt. of N.C.T. of Delhi is pleased to appoint Shri Shankar Nath Tiwari to the post of TGT. Teacher in GBSSS Alipur on the following terms & conditions:
1. The appointment will be effective from the date of engagement of the teacher and up to 31.12.1998. It may be further extendable up to 30.4.1999 on the same or fresh terms & conditions. The appointment will stand terminated on 31.12.1998 or when the post is filled up on regular basis, which ever is earlier. It can be extended before 31.12.1998 up to 30.4.1999 and in no case beyond 30.4.1999 and will stand automatically terminated on that date.
2. This appointment can be terminated by giving one month's notice or one month's remuneration in lieu of the notice. For such termination of contract no reasons would need to be communicated.
3. The teacher will have to perform duties in school at par with regular teaching staff and as per the directions given by the Head of the school.
4. The teacher will receive a consolidated monthly remuneration of Rs. 6,000/- during the currency of the appointment or an extension thereof.
5. The teacher will employ himself/herself efficiently and diligently and will devote his whole time to the duties of the service and will not engage directly or indirectly in any trade or occupation on his own account.
6. The teacher is not entitled to any leave. He/She will be governed by the normal school holidays during the period. However, Casual leave as admissible to Govt. Servants is permitted.
7. At the termination of the appointment, the teacher is not entitled to any terminal benefits.
8. This appointment will not entitle the candidate to any right of regular appointment in the Directorate.
9. The appointee shall not be entitled to any benefit of provident fund, Gratuity, seniority and allowance of any other benefit available to Govt. servants appointments appointed on regular basis.
10. Only consolidated pay will be admissible. No dearness allowance and other allowance are admissible.
11. If any declaration given or information furnished by the appointee proves to be false or if he/she is found to have willfully suppressed any material information, he/she will be liable to remove from service and such other action as the Govt. may deem necessary."
The petitioners contend that whereas their appointments were made for a period of six (6) months, they had been asked to employ themselves efficiently and diligently and devote their whole time to the duties of the service, which is not an ordinary condition for employment on contract basis. Services of the petitioners were extended in December, 1998 till 30.04.1999, but the said tenure was preponed on 31.03.1999.
4. Questioning the same, the writ petitioners herein filed original applications questioning the stipulations in the offer of appointment containing automatic termination clause and inequitous service conditions in pay and other allowances. Therein interim direction to maintain status-quo was passed. In its judgment and order dated 07.05.1999, the learned Tribunal noticed:-
"(a) That as on date no candidate duly recommended by DSSSB, after holding final selection, is in the waiting for regular appointment.
(b) In some of the Schools for example at Nithi Hari and Block P. Mangolpur about 40% of the presently working teachers are those having been appointed on contract basis.
(c) Even in the month of March, 1999 there are sufficient number of regular vacancies in respect of male and female teachers in both TGT and PGT categories. The fact that such vacancies are available gets well confirmed when it is seen that the respondents themselves have notified to DSSSB on 01.03.1999 as many as 393 vacancies of teachers in different categories asking applications latest by 25.03.1999 (Hindustan Times dated 01.03.1999).
(d) The position as regards availability of regular vacancies gets again reconfirmed in the statement of Minister of Education/Govt. of NCT on 08.04.1999 in the State Assembly indicating vacancies as under:-
Lecturer = 650 T.G.T. = 2491 Other Category Teacher = 989 N.B. This was the position before termination orders were issued.
(e) Many of the teachers have worked for more than 240 days admittedly entitling them to claim temporary status.
(f) Occurrence of such vacancies in Education Department under the Government of NCT/Delhi is a continuing event every month in any year."
In the aforementioned premise, the learned Tribunal issued the following directions:-
"(a) Applicants shall be allowed to continue in the present posts till regular candidates duly selected by DSSSB ore appropriate authority are available to replace the applicants.
(b) Those selected regularly shall first be posted in the existing vacant positions and only if enough vacant posts are not available, they should be posted against the posts held by ad hoc appointees. Recruitment of the letter should be on the principle of 'last come first go'. Those so displaced should be accommodation in vacancies that may be existing in other districts.
(c) The ad hoc appointments shall be paid minimum pay in the pay scale of regular teachers plus DA in terms of law laid down by Hon'ble Supreme Court in the case of Daily Rated Casual Labourer v. UOI and Ors. (1998 (1) SCC 122).
(d) No ad hoc appointee shall be replaced by any newly appointed ad hoc employee.
(e) Those of applicants who have applied or may apply for regular selections necessary relaxation in age shall be given to the extent of the period of service put in by him."
5. The second and third respondents, however, filed writ petitions thereagainst, wherein an interim order of stay was obtained, but the same was vacated by a speaking Order, whereagainst a Special Leave Petition was filed before the Apex Court by the respondents, but the same was dismissed.
6. In the meantime, the first respondent herein invited applications for various posts of TGTs/PGTs in the month of June, 1998. However, the said advertisement was confined only for the posts belonging to Scheduled Tribes. Yet again an advertisement was issued in March, 1999 inviting applications from general candidates as well as from the candidates belonging to Scheduled Castes and Scheduled Tribes; the written examination wherefor was to be held on 8th and 20th August, 1999. Not only written examinations were to be conducted but also admittedly more subjects in addition to the concerned subjects had bern added.
The petitioners appeared at the written examination, but evidently did not succeed.
7. This Court, in the mean time, disposed of C.W.P. No. 6363 of 1999 with other connected matters by a judgment dated 20.12.1999 in terms whereof while upholding the directions contained in Clauses (a), (c), (d) and (e) issued by the Tribunal, it quashed Clause (b) thereof inter alia on the ground that modalities of the replacement of the petitioners were to be fixed by the respondents.
Questioning the said judgment, the petitioners moved the Apex Court by way of a S.L.P., which, however, was dismissed.
8. The petitioners, however, having come to learn about the decision of Dr. Jatinder Singh's case (Supra) filed various fresh original applications inter alia on the ground that the said relief was not available to them in the earlier proceedings. Therein the following reliefs were prayed for by the writ petitioners:-
"(i) Direct the respondent No. 2 and 3 to refer the cases of the applicants to the respondent No. 1, i.e., the Delhi Subordinate Service Selection Board for the purpose of regularisation of their services on the posts held by them regardless of the outcome of the impugned selection held in the month of August, 1999.
(ii) Direct the Respondent No. 1 to treat the applicants as a separate block for the purpose of regularisation which should also take into account the work, performance and service record of the applicants; and
(iii) Direct the respondents to allow the applicants to hold the posts till they are so considered in terms of Prayer (i) and (ii) and
(iv) Pass such other and further orders as this Hon'ble Tribunal may deem fit and necessary in the circumstances of the case."
9. By reason of the impugned judgment dated 27.10.2000, however, the said original applications were dismissed.
10. Mr. G.D. Gupta, the learned senior counsel appearing on behalf of the petitioners, would contend that in a case of this nature where teachers had not been recruited through back door and, thus, are entitled to be treated as a separate class.
According to the learned senior counsel, the petitioners herein having undergone process of selection before recruitment their services should be directed to be regularized.
The learned senior counsel would further contend that ad hoc nature of their services would not be a bar for grant of the said relief in view of the aforementioned situation.
The petitioners, learned senior counsel would submit, having put in about four (4) years of service gained enough experience and if necessary their capability may be subjected to a separate qualifying test particularly when even now a large number of vacancies exist.
The learned senior counsel in this connection has relied upon a large number of decisions to which we shall advert a little later.
11. The questions which, inter alia, arise for consideration in this batch of writ petitions are:-
i) Whether the Original Applications filed by the petitioners herein were barred under the principles of constructive res judicata?
ii) Whether the Tribunal erred in not following the decision in Dr. Jitender Singh and Ors. v. Union of India, in O.A. No. 1259/1990?
iii) Whether, in any event, the petitioners are entitled to any relief?RE: QUESTION NO. 1
12. It stands admitted that the petitioners in the earlier Original Applications had not prayed for the reliefs which had been sought for in the Original Applications filed by them. Cause of action for the petitioners arose in March 1999 when their services were sought to be terminated in terms of their offers of appointment. The petitioners specifically sought for two reliefs which had been adjudicated upon; pursuant whereto they had been granted some relief. The judgment of the Tribunal, as modified by this court, has been upheld by the Apex Court.
The judgment of the Tribunal, thus, merged in the judgment of this court. In Kunhayammed and Ors. v. State of Kerala and Anr., , the Apex Court has clearly laid down the legal meaning of 'merger' in the following terms:-
"42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Jurisdiction Secundum, Vol. LVII, pp. 1067-68.)"
13. The grievances of the petitioners raised in the writ petition was the same; cause of action wherefor, as noticed hereinbefore, arose in March, 1999 itself which they could have raised at the earlier stage. It is not in dispute that the principles of res judicata/constructive res judicata apply to the proceedings under the Administrative Tribunals Act, 1985. New contentions, however, cannot be permitted to be raised in a subsequent Original Application filed under Section 19 of the Administrative Tribunal Act, if such contentions could have and ought to have been raised in the first application.
Furthermore, having regard to the principles contained in Order 2 Rule 2 of the Code of Civil Procedures, reliefs cannot be sought for in piecemeal unless leave therefore is sought for and granted. Once the principles of constructive res judicata are held to be applicable, the Tribunal had no jurisdiction to entertain the second application even on a question, which was not raised before it. Subsequent decision of a coordinate bench in a different matter on a question which was not raised, cannot clothe the Tribunal with the jurisdiction to entertain a second Original Application particularly when even a review on that ground would not have been maintainable. Furthermore, even an application for review would not have been maintainable having regard to the fact that the judgment of the Tribunal merged with the judgment of this Court and as such, even a review application could have been filed only before this court and not before the Tribunal. Question No. 1 is answered accordingly.
RE: QUESTION NO. 2:-
14. The petitioners were not appointed through Delhi Subordinate Services Selection Board (hereinafter called for the sake of brevity "the DSSSB"). They were appointed pursuant to a policy decision adopted by the Govt. of NCT of Delhi on a contract basis. They accepted the offer of appointment made to them without any demur whatsoever. They accepted even the order of extension of their services again without any demur. In terms of the recruitment rules, which were prevailing at the relevant time, recommendations for recruitment were required to be made by the DSSSB after going through the recruitment process and not by the Government of NCT of Delhi. Such a policy decision relating to recruitment was for a limited purpose in terms whereof the services of the petitioners were to continue only pending regular appointment through the DSSSB.
15. In Dr. Jitender Singh and Ors. (supra), the Tribunal noticed that in the advertisement published in newspapers, it was not mentioned that the recruitment was in the context of the strike. The recruitment was based on an interview and selection on all India basis. According to the Tribunal, as the applicants were appointed as the strike progressed, the respondents ought to have evolved a scheme of eventually regularizing them and continue on ad hoc basis in the available vacancies in the Central Health Services till regularisation. During their services, those appointees were exposed to considerable harassment and even were assaulted during the strike period as a result whereof, out of 500 ad hoc doctors, most of them had left except about 120. In the peculiar fact situation obtaining in that case, it was directed:
"20. The applications are, therefore, allowed and disposed to with the following orders and directions:-
(i) The respondents are directed to refer the cases of the applicants and those similarly situated to the Union Public Service Commission for the purpose of regularisation of their service as Medical Officers. They should be treated as forming a separate block for the purpose of regularisation. Regularisation should be based on the evaluation of work and service records of the applicants and those similarly situated. The respondents shall do the needful in the matter within a period of four months from the date of receipt of this order.
(ii) After the services of the applicants are regularized through the Union Public Service Commission, their seniority shall be reckoned from the dates of their initial appointment on ad hoc basis as Medical Officers, after condoning the technical breaks in their ad hoc service. The service rendered by them curing the period of operation of the stay order passed by the Tribunal shall also count as service for the purpose of regularisation.
(iii) After regularisation of the services of the applicants as indicated in (i) and (ii) above, the respondents will be at liberty to post the applicants as medical Officers at places where vacancies exists. Till they are so regularized, the respondents are directed to accommodated the applicants at their present places of posting in the Hospital at Delhi. The interim orders already passed in these cases are hereby made absolute.
(iv) Till the applicants are to regularized, they should be entitled to the same pay scales, allowances and benefits of leave, increments etc., and other benefits of service conditions as are admissible to regularly appointed Medical Officers. In the facts and circumstances, we do not direct the respondents to pay them arrears of pay and allowances for the Post Period.
(v) There will be no order as to costs.
Let a copy of this order be placed in all the seven case filed."
The Apex Court did not interfere with the said order except as regards para 20(ii) that is relating to fixation of seniority.
By reason of the afore-mentioned decision, the Apex Court did not lay down any law within the meaning of Article 141 of the Constitution of India.
16. In Dr. (Smt) Rekha Khare v. Union of India and Ors., which had also been relied upon by the learned counsel for the petitioners, no law has been laid down by the Apex Court and Civil Appeal No. 2969/1997 was disposed of on 21st April, 1997 only on the ground that the Tribunal had passed similar orders in other cases. The Apex Court, however, directed:
"Keeping in view, the aforementioned submissions, it is directed that if a permanent post of Obst. & Gynecologist if available for regular appointment at present, the matter of regularisation of the appellant on the said post shall be considered by the Commission and if she is found suitable for such regularisation by the Commission, she be regularized on the said post. For the purpose of regularisation of the appellant, the Commission shall consider the suitability of the appellant for such regularisation without requiring her to compete with other applicants for the posts."
17. In that case, no rival contentions had been considered. The learned counsel for the parties were remiss in bringing to the Apex Court's notice its earlier decisions as regards the right of an ad hoc employee to be regularized in service. In that view of the matter, we are of the opinion that the aforementioned decisions of the Apex Court cannot be said to have laid down any law within the meaning of Article 141 of the Constitution of India.
18. Regularisation, as is well-known, is not a mode of recruitment. Recruitment must be made only in terms of the statutory recruitment rules. The petitioners have themselves admitted that while undergoing the recruitment process of DSSSB, they were required to appear at a written examination and in two more papers. They, prior to their recruitment on a contract basis, were not required to undergo such written examination. A scheme of regularisation must have the statutory backing.
19. In Union of India and Ors. v. Ms. Anshul Sharma and Ors., CWP No. 319/2001 decided on 13th February 2002, this court has held:-
"A scheme of regularization can be evolved or a statute or statutory rules can be made for regularization of the casual employees, who would answer the criteria of holding a civil post in terms of Article 309 of the Constitution. A person who renders service on 6 days a month cannot be a holder of a civil post.
In R.N. Nanjundappa v. T. Timmaiah and Anr., it has been held:-
"... Regularization cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act, which is within the power and province of the authority but there has been some non-compliance with procedure or manner, which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
yet again in B.N. Nagarajan and Ors. etc. v. State of Karnataka and Ors. etc., the Apex Court in no uncertain terms has held that regularization cannot be a mode or recruitment in absence of a Statue or statutory rules. It was observed:-
"... It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st November 1956. The argument however is unacceptable to us for two reasons. Firstly, the words "regular" or "regularization" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. In this connection reference may with advantage be made to State of Mysore v. S.V. Narayanappa, and R.N. Nanjundappa v. T. Thimmaiah, . In the former, this Court observed:
"Before we proceed to consider the construction placed by the High Court on the provisions of the said order, we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularization meant permanence. Consequently, it was never contended before the High Court that the effect of the application of the said order would mean only regularizing the appointment and no more and that regularization would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties, the High Court equated regularization with permanence."
Furthermore, the petitioner is a 'State' within the meaning of Article 12 of the Constitution. It, thus, in the matter of recruitment was bound to comply with the constitutional mandates as adumbrated under Articles 14 and 16 of the Constitution. The respondents herein were appointed for a specific purpose and for performing peculiar nature of duties, which cannot be performed by a holder of a civil post. Their status in absence of any Statute or statutory rules cannot be changed.
In State of M.P. and Anr. v. Dharam Bir , the Apex Court held that:-
"23. It is not disputed that the respondent was promoted to the post of Principal Class Ii for a short period of six months or till the availability of candidates duly selected by the Commission, whichever was earlier. It is also not disputed and the Tribunal itself has found it as a fact that the respondent was placed on the post of Principal only in an ad hoc capacity. Consequently, the post, having not been filled up on a regular basis in accordance with the Rules, was rightly treated by the appellant to be vacant. That being so, the respondent had only ad hoc status, which he would continue to hold till it was altered by the appointing authority.
24. Government service is essentially a matter of status rather than a contract.
....."
20. It was further noticed that in State of Haryana and Ors. etc. etc. v. Piara Singh and Ors. etc. etc. , the Apex Court laid down the parameters for evolving a scheme of regularization. It held that a cut off date fixed in such scheme would be valid in the following terms:-
"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
In State of West Bengal and Ors. v. Krishnan Kumar Majumdar & Ors. reported in 2001 (2) CHN 31, a Division Bench of the Calcutta High Court distinguishing the decision of the Apex Court in Arun Kumar Rout v. State of Bihar , held as follows:-
"15. In Arun Kumar Rout & Ors. v. State of Bihar, , the Apex Court:-
'Although in the matter of getting appointment in the Government Service, the procedure required to be followed for such appointment cannot be by-passed and if the initial appointment was illegal on account of not following the procedure for appointment, the incumbent obtaining appointment without following the procedure cannot claim as a matter of right to be regularized. This Court, however, has looked with sympathy when question of regularization came for consideration in cases of temporary or ad hoc appointments, even made improperly, if the incumbents had been allowed to continue for a long time because of the human problem involved in such continued service.'
16. In the said decision, the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution of India has been directed that the 50 per cent of the sanctioned posts, which were held by these appellants should be filled from amongst the appellants on the basis of their inter se merit position by taking into account their academic qualifications by waiving question of age bar, if any and usual procedures for such appointment. Thus, illegal appointments even in that case had not been and could not be set aside evidently in view of the decision of the Apex Court in various decisions as for example in Ashwani Kumar and Ors. v. State of Bihar and Ors. , ; Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and Ors. ; State of West Bengal and Ors. v. Tapan Kumar Saha, reported in 1999 (2) CHN 519; J&K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. , ; State of Madhya Pradesh v. Dharambir, and Dr. Surindar Singh and Anr. v. State of Jammu & Kashmir and Ors., reported in 1996 SC 2775.
17. Arun Kumar Rout (Supra) has also been distinguished by a Division Bench of this Court in Swapan Kumar Banerjee v. Union of India, reported in 1999 (5) SLR 807."
It was further observed:-
"9. This aspect of the matter has again recently been considered by a Division Bench of this Court in the case Rama Dutta and Anr. v. State of West Bengal, reported in 2000 CWN 671.
Decisions on this question are galore. It is not necessary to refer to the said decisions having regard to the fact that the aforementioned question came up for consideration before the Apex Court recently in Suraj Prakash Gupta v. State of J&K reported in 2000 (4) SLR 486, wherein the Apex Court has noticed the recent trend in the decision of the Supreme Court holding:-
"25. The decision of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental Rules of Recruitment. In Keshab Chandra Joshi v. Union of India, 1992 (Supp.) 1 SCC 272 : 1998 (7) SLR 469 (SC) , the Rule permitted relaxation of conditions of service and it was held by the three-Judge Bench that the Rule did not permit relaxation of Recruitment Rules. The words 'may consult the PSC' were, it was observed to be read as 'shall consult PSC' and the Rule was treated mandatory. In Syed Khalid Rizvi v. Union of India, , decided by a three-Judge Bench, a similar strict principle was laid down. The relevant Rule - Rule 3 of the Residuary Rules (see p.603) (para 33) in that case did permit relaxation of 'Rule'. Even so, this Court refused to imply relaxation of Recruitment Rule and observed:
"The condition precedent, therefore, is that there should be appointment to the service in accordance with Rules and by operation of the Rule, undue hardship has been caused... It is already held that condition of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed."
In W.B. Essential Commodities Supply Corporation v. MD Sarif reported in 2000 (2) SLR 229 (Cal.) , Ruma Pal, J., as the learned Judge then was, held:-
"The respondent was given a temporary appointment on 17th October, 1996 on contractual basis temporarily for six months till the pleasure of the Chairman. This order was subsequently extended from time to time. The respondent No. 1 filed a writ application asking for regularization of his service. In a judgment delivered by us today, viz. State of West Bengal and Ors. v. Ashoke Ranjan Chandra, (WP TT No. 188 of 1999) dated 18th August, 1999 in a similar situation this Court held on the basis of the decision of the Supreme Court in J&K Public Service Commission v. Narinder Mohan and Ors., ; Surinder Singh Jamuel v. State of J&K, as well as the decision in State of Madhya Pradesh v. Dharambir, that an ad hoc appointee has no right to be regularized unless the Recruitment Rules so specifically provide."
In Director of Public Instructions, W.B. v. Dr. Krishna Prasad Ghosh and Anr. reported in 2000 (2) CAL LT 141, it was held:-
"12. In the aforementioned situation, the writ petitioner could not have been directed to be absorbed as his appointment was merely ad-hoc in nature made by the Governing Body of the College and not by the competent authority upon obtaining the recommendations of the College Service Commission. The writ petitioner, thus, was not appointed as a 'Principal' upon following the statutory requirements.
13. In Smt. Debirani Bhattacharjee and Anr. v. District Inspector of Schools (SE), Burdwan and Ors. , reported in 1996 (2) CHN 415, a Division Bench of this Court of which one of us (S.B. Sinha, J.) was a member, held:-
"The Apex Court has further stated the law clearly that those who enter through the back door must go by the door. Reference in this connection may also be made to the decision . The submission of Mr. Roy to the effect that the action of the respondents in terminating the service of the petitioner would be hit by the doctrine of acquiescence is stated to the rejected, in as much as such procedural rules cannot have any application whatsoever when the same against a mandatory provisions of the statute. It is not in dispute that the Director of School Education in exercise of his jurisdiction conferred upon him under the provisions of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 have laid down the recruitment rules. A teaching or a non-teaching staff must be appointed in an aided school strictly in accordance with the provisions of the said recruitment rules. On the petitioner's own showing, he filed an application before the Managing Committee and the said Committee appointed him. This Court in a recent decision in Ram Saran Shastri v. State of West Bengal reported in 1995 (1) CHN 419 categorically held that appointment de hors the statute is a nullity and no contract of employment can be enforced by taking recourse to the writ jurisdiction of this Court when the service of such a person granted to him by the Managing Committee of the school is not protected by any statute."
It was further held:-
"The third submission to Mr. Roy that even in equity, the petitioner is entitled to got an employment can not be acceded to for more than one reasons. Although we have all the sympathies for the petitioners in the event their assertions are correct, it is now well known that a sympathy cannot override the rule of law."
In Managing Committee, Dinhata High School v. Sri Ram Chandra Saha and Ors. , reported in 1997 (1) CHN 105, a Division Bench of this Court upon taking into consideration a large number of decisions held that any appointment made in violation of the statutory provisions would be ultra vires. It was further held that a continuous service by itself do not give rise to the claim of regularization.
In Director of Public Instructions of W.B. and Ors. v. Ashish Pal and Ors. , reported in 1998 (2) CHN 241, this Court upon taking into consideration the provisions of Sections 7 & 8 of the 1978 Act as also the provision of Clause 101-A of the Calcutta University First Statute, inter alia, held:-
Regularization cannot be a mode of recruitment.
High Court has no jurisdiction to issue an order directing regularization of service contrary to mandatory provisions of the relevant statute.
An appointment made in violation of recruitment rules is illegal and is violative of Articles 14 & 16 of the Constitution of India.
21. This aspect of the matter has also been considered by a Division bench recently in State of West Bengal and Ors. v. Ashoke Ranjan Chandra and Ors., reported in 1999 (2) CHN 387 wherein strong reliance had been placed on J&K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. , , and State of Madhya Pradesh v. Dharam Bir, . Similar view has also been taken in The Calcutta Tramways Company (1978) Limited and Ors. v. Ramesh and 17 Ors. , reported in 1999 (1) CHN 513, Ziaul Islam with 202 Ors. v. State of West Bengal and Ors. , reported in Cal LT 1999 (1) HC 509 and a Full Bench decision of this Court in Debasish Dutta v. State of West Bengal, reported in 1998 (2) Cal. LJ 1. "
In Union of India v. Registrar, Central Administrative Tribunal reported in 2001 (3) SLR 148 (Cal.) , a Division Bench of the Calcutta High Court, of which one of us was a Member, has held thus:-
"9. ... It appears from a judgment of this Court in Biman Kumar Roy and Ors. v. Union of India and Ors. (W.P.C.T. No. 393 (W) of 1993 disposed of on 30.06.1999) that claim made by persons, who were similarly situated to the effect that the job performed by them being perennial in nature, they were entitled to be regularized in service was (sic). It appears that the said judgment also arose out of the judgment impugned herein. In this case also the petitioners had, inter alia, prayed for quashing of the orders dated 06.01.1993 and 06.04.1993 as contained in Annexure 'A' and 'A-1' to the writ application, whereby and where under the names of the petitioners were not empanelled in the list of workmen who had been regularized in service. By getting the said list quashed, the petitioners would not get any relief. The only question, which could be raised and in fact has been raised before us by the learned counsel appearing on behalf of the petitioners was that they are entitled to be regularized in services.
10. The question as to whether the petitioners had fulfillled the essential conditions for regularization or not, is essentially a question of fact. In law, nobody is entitled to claim regularization unless there exists any statutory provision in this regard. Only because a person has worked for more than 240 days, the same by itself would not be a ground for direction to regularize the service of the concerned employee. This aspect of the matter has been considered by a Division Bench of this Court in the aforementioned case of Biman Kumar Roy upon placing reliance on various Supreme Court decisions as also the decisions of this Court. This aspect of the matter has also been considered recently by several other Division Benches, including W.B. Essential Commodities Supply Corporation v. MD Sarif reported in 2000 (1) CHN 240 : [2000 (2) SLR 229 (Cal.)] , Director of Public Instructions, W.B. v. Dr. Krishna Prasad Ghosh and Anr. reported in 2000 (2) CLT 141, and Swapan Kumar Benerjee v. Union of India, reported in 2000 Labour & Industrial Cases 255 : [1999 (5) SLR 807 Cal.)] .
In Ranjit Kumar Chanda (Sri) and Ors. v. The State of West Bengal and Ors. reported in 2001 (3) SLR 181 (Cal.) , the Court referred to and relied upon the decisions of the Apex Court delivered in R.N. Nanjundappa (Supra) and B.N. Nagarajan (Supra).
In Tarak Chowdhary v. State of West Bengal and Ors. reported in 2000 (2) SLR 445, the Calcutta High Court noticed various judgments of the Apex Court and the Calcutta High Court itself, i.e., Dr. Arundhati Ajit Pargaonkar (Supra); R.N. Nanjundappa (Supra); B.N. Nagarajan (Supra); Sreenivasa Reddy and Ors. v. Government of Andhra Pradesh and Ors. ; Dharam Bir (Supra); Biman Ch. Karmakar v. State of West Bengal reported in 1999 (2) CHN 289; and W.B. Essential Commodities Supply Corporation (Supra) .
22. This aspect of the matter has also been considered by this Court recently in C.W.P. No. 3056 of 1996 wherein again reference has been made to a recent decision of a Division Bench of the Andhra Pradesh High Court, of which one of us was a Member, in Superintending Engineer CPWD, Hyderabad v. Tekmalla Raj Shekhar and Ors. reported in 2001 (6) ALT 39.
23. Yet again in State of Karnataka and Ors. v. G. Halappa and Ors., 2002 IV AD (SC) 644, the Apex Court observed as under:-
"6+. The picture that emerges before the Court in these matters is that there were a large number of vacancies available in the State of Karnataka and those posts could not be filled up for one reason or the other. Pending direct recruitment, steps were taken to fill up those vacancies either by engaging the services of stipendiary graduates or by engaging the services of contract employees. In the case of either of these categories, they were to draw a minimum emolument, which is less than the minimum of the pay scale attached to the post. Further, it was made clear that the period of service rendered will not be counted for any purpose. The expression "local candidate" and Rule 41A of the Karnataka Civil Services Rules and Note 7 to Rule 41 was however interpreted in a very strained manner by the Tribunal to uphold the contention raised on behalf of the petitioners.
7. The appointments to which the contract employees or the stipendiary graduates joined are very precarious appointments, the same being terminable at the end of one year or earlier than even before the regular recruitment takes places. It was made clear that their salary is fixed at the emolument which is less than the minimum of the pay scale attached to the post and their service as rendered will not be counted for the purpose of further service in the Government, if this position is clear as to how an analogy could have been drawn between contract employees and the local candidates whose services are regularly absorbed is difficult to understand. Subsequently, the local candidate is appointed to a post, which is vacant, and he will be absorbed in the same post and appropriate benefits will be given to him. To invoke Rule 41A of the Karnataka Civil Services Rules would be out of place in a case of this nature because the intendment of of the said Rule is that if a person has been appointed as a local candidate and if he is likely to be absorbed in the regular service but in a different post, certain benefits are given to him. That is not the situation in the present case. Similarly, in the case of a regularly appointed candidate if he is appointed in another post, continuity would be maintained so far as emoluments are concerned. Such a situation in the present case will not arise at all because it is not the continuation of the original appointment made which is on a contract basis and contract comes to an end either on the expiry of the term or on a regular candidate reporting to duty. Particularly when the contract itself makes it clear that the service shall not be counted for any purpose the claim, of the respondents could not have been brought under Rule 41A at all.
8. In State of Maharashtra v. Digambar, AND Union of India and Anr., v. K.N. Sivadas and Ors., this Court has held that even in cases where a large number of petitions have been filed by different categories of persons and the question to be answered in the same, if some of which have been decided and which reached this Court have been dismissed by this Court at the SLP stage and the burden upon the State falls too heavy on its coffers, it may become necessary for the Court to set it right appropriately. Therefore, the arguments advanced on behalf of the appellants that if we interfere with the order of the Tribunal; it may lead to anomalous situation in respect of some of the persons who have already been given benefit on the basis of Parmeshwarappa's case and not in case of some others need not detain us.
24. In Post Doctoral Research Associates of S.V. University, Dr. K. Krishna Reddy and Ors. v. Union of India, 2002 IV A.D. (SC) 627, the Apex Court has clearly held that no direction can be given to the respondent to allow the petitioner to continue to work during the contractual period in the following terms:-
"9. The fact remains that in none of these cases the petitioners have worked for a period of 10 to 15 years. They have no doubt worked under different schemes on tenure basis. Now what is sought for in these writ petitions is not regularisation and that position was made clear by the learned counsel for the petitioners. On the other hand what was submitted was that the UGC and CSIR must frame appropriate scheme to support scientific advancement providing a healthy climate for the research fellow to carry on such work and these research fellows who are petitioners before us can carry on such work only with a sense of security for their continuity in the work done by them which would be beneficial to the country as a whole and also to these individual. The scheme evolved by UGC or CSIR is only a supportive programme for the research fellows during the period of unemployment initially for a period of five years. Such scheme will allow research fellows who have done their Ph.D. and have a waiting period of five years when they have got no jobs to keep them active in their work, facilities are provided to them to carry on research on tenure basis. If that is so, it may not be accurate to state that is only to encourage research that these research fellows have been engaged and not by way of support of them during the period of their unemployment and if that aspect is borne in mind that the UGC or the CSIR have framed scheme to give support to such candidates for a particular period during which they can obtain job in appropriate University or institution or in any other organisation, it cannot be stated that such scheme is faulty. It is more by way of a social welfare measure such action is being taken and not merely to promote scientific research which may be an incidental fall out under the Scheme. Therefore, it would be very difficult for us to direct any scheme being framed by the UGC or the CSIR in this regard. All that this Court can hope is that the UGC or the CSIR would bear in mind research work done by these scholars and provide them appropriate opportunities whenever an occasion arises.
25. Yet again in State of Karnataka and Ors. v. G. Halappa and Ors., 2002 IV AD (SC) 644, the Apex Court observed as under:-
"6. The picture that emerges before the Court in these matters is that there were a large number of vacancies available in the State of Karnataka and those posts could not be filled up for one reason or the other. Pending direct recruitment, steps were taken to fill up those vacancies either by engaging the services of stipendiary graduates or by engaging the services of contract employees. In the case of either of these categories, they were to draw a minimum emolument, which is less than the minimum of the pay scale attached to the post. Further, it was made clear that the period of service rendered will not be counted for any purpose. The expression "local candidate" and Rule 41A of the Karnataka Civil Services Rules and Note 7 to Rule 41 was however interpreted in a very strained manner by the Tribunal to uphold the contention raised on behalf of the petitioners.
7. The appointments to which the contract employees or the stipendiary graduates joined are very precarious appointments, the same being terminable at the end of one year or earlier than even before the regular recruitment takes place. It was made clear that their salary is fixed at the emoluments which is less than the minimum of the pay scale attached to the post and their service as rendered will not be counted for the purpose of further service in the Government, if this position is clear as to how an analogy could have been drawn between contract employees and the local candidates whose services are regularly absorbed is difficult to understand. Subsequently, the local candidate is appointed to a post, which is vacant, and he will be absorbed in the same post and appropriate benefits will be given to him. To invoke Rule 41A of the Karnataka Civil Services Rules would be out of place in a case of this nature because the intendment of the said Rule is that if a person has been appointed as a local candidate and if he is likely to be absorbed in the regular service but in a different post, certain benefits are given to him. That is not the situation in the present case. Similarly, in the case of a regularly appointed candidate if he is appointed in another post, continuity would be maintained so far as emoluments are concerned. Such a situation in the present case will not arise at all because it is not the continuation of the original appointment made which is on a contract basis and contract comes to an end either on the expiry of the term or on a regular candidate reporting to duty. Particularly when the contract itself makes it clear that the service shall not be counted for any purpose the claim, of the respondents could not have been brought under Rule 41A at all.
8. In State of Maharashtra v. Digambar, AND Union of India and Anr. v. K.N. Sivadas and Ors., this Court has held that even in cases where a large number of petitions have been filed by different categories of persons and the question to be answered in the same, if some of which have been decided and which reached this Court have been dismissed by this Court at the SLP stage and the burden upon the State falls too heavy on its coffers, it may become necessary for the Court to set it right appropriately. Therefore, the arguments advanced on behalf of the appellants that if we interfere with the order of the Tribunal; it may lead to anomalous situation in respect of some of the persons who have already been given benefit on the basis of Parmeshwarappa's case and not in case of some others need not detain us.
26. It is interesting to note that recently in Vinodan T. and Ors. v. University of Calicut and Ors. 2002 IV AD (SC) 618 while upholding the contention that by mere empanelment does not crete indefeasible right, the Apex Court distinguished its earlier decision in State of Haryana v. Piara Singh, on the ground that therein the Government itself had come out with a scheme to regularize the employees stating:
25. The facts of this case are totally at variance with those in Piara Singh. In this case there was a complete statutory ban on appointments by the University from 1997 till 2000. The appellants were appointed provisionally only pursuant to orders of court purely by way of interim relief because of the then existing need of the University. There is no scheme for regularisation formulated by the University. Besides regularisation in the appointment of the appellants would mean appointment contrary to the order of merit in the Rank List. There also nothing to show that such regularisation would be in keeping with the reservation rules. The appellants cannot stand in the way of the candidates who successfully completed in the 2001 selections for the post of Assistants. The alternative prayer of the appellants is, therefore unsustainable.
27. We may notice that in Union of India and Ors. v. Kishan Gopal Vyas , it has been held:-
"7. Appointment to the post of a Storekeeper/Store Issuer/Clerk is regulated by certain rules governing recruitment to the post in the Department. The respondent, if eligible, is entitled to be considered for the same along with all others who may be candidates for the appointment. That is the only correct way of filling these posts which would ensure equal opportunity in the matter of employment as required by Articles 14 and 16 of the Constitution of India to all eligible persons who are candidates for these posts. A direction like the one given by the Tribunal in favor of the respondent equal opportunity to the other eligible candidates by appointing a person not in accordance with the rules. Any order for absorption and regularisation of a person not appointed in accordance with the rules, given in the manner contained in the impugned order of the Tribunal would result in denial of equal opportunity in the manner of employment to the other eligible candidates for the public offices. Such a course must be obviously be eschewed. The Tribunal's order is, therefore, set aside."
28. We may now advert to the decisions relied upon by the learned counsel for the petitioners. In Subhash Chander Sharma and Ors. v. The Director of Education and Anr., Writ Petition (Civil) No. 1350/1990 decided on 30th April 1991, no law has been laid down. The Apex Court issued certain directions in exercise of its jurisdiction under Article 142 of the Constitution of India.
29. In Baseruddin M. Madari and Ors. v. State of Karnataka and Ors., (1996) 32 ATC 102, the Apex Court merely followed its earlier decision in Karnataka State Private College Stop-Gap Lecturers' Association v. State of Karnataka, and issued certain directions.
30. In Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors. , , there existed a statutory rule for regularisation. Directions had been issued in the said case only in terms of Rule 9(a) of the Kerala State and Subordinate Service Rule, 1958. In the instant case, there does not exist any such statutory rules. In fact, such statutory rules provide for recruitment only through the DSSSB.
31. In Sushil Kumar Sehgal v. Union of India and Ors., Civil Appeal No. 3009/1989 disposed of on 13th September 1994, the Apex Court issued certain directions without going into the controversies involved therein.
32. In Dr. G.P. Sarabhai and Ors. v. Union of India and Ors., 1983 Lab. I.C. 910, the question which arose for consideration was as to whether the petitioners therein were appointed as doctors in the ESI Corporation who had been continuing for about seven years, could be asked to compete with the new entrants upon appearing at the interview for selection. In the facts and circumstances of the said case, it was held that the petitioners therein were not required to re-apply for the said posts keeping in view the statute and the statutory rules operating in the field in that case. Interpreting the provisions of the ESIC Act and the Rules and Regulations framed there under, it was noticed:-
"24. The second sub-section provides that the Corporation has to make regulations regarding the method of recruitment, pay and allowances, etc. In fact, regulations were made in 1959, which are called the Employees' State Insurance Corporation (Staff and Conditions of Service) Regulations 1959. These Regulations stated that the appointing authority is the Director General and all employees will be on probation for two years. It also appears to be the common ground between the parties that these Regulations did not make provisions for the method of appointment of Junior Medical Officers.
25. The third sub-section is the important sub-section as far as the present case is concerned. It specifically states that appointments to posts corresponding to Class I or Class II posts under the Central Government have to be made in consultation with the Union Public Service Commission. But, the proviso states that this sub-section will not apply to officiating or temporary appointment made for an aggregate period not exceeding one year. The important words in this proviso are that the aggregate period of the officiating or temporary appointment cannot exceed one year. It is submitted on behalf of the petitioners that this proviso shows that after one year period was completed and the petitioners continued to serve, and this was only after consulting the Union Public Service Commission, the appointments ceased to be temporary or officiating and had to be considered as being on a permanent basis.
26. Having had this provision read and re-read during the hearing of the case, we have been unable to give any other meaning to the proviso. It is plainly stated that the period of officiating or temporary appointment cannot exceed one year. The appointment cannot exceed one year. The proviso has to be read in conjunction with the principal part of the sub-section which the principal part of the sub-section which states that appointments have to be made in consultation with the Union Public Service Commission. In short, what this means is that all appointments have to be made in consultation with the Union Public Service Commission except those which are officiating or temporary posts for an aggregate period of less than one year. As soon as any of the petitioners completed the period of one year, their appointment could not continue without consultation with the Union Public Service Commission. The precise case of the respondents is that the petitioners were allowed to continue over a period of one year in consultation with the Union Public Service Commission, but only till regular appointments were made. Regular appointments could not be made, as there was no regulation governing Junior Medical Officers. So, the petitioners were allowed to continue."
33. Such is not the position here, particularly when in this case the petitioners had, without any demur, undergone the selection process together with the new entrants.
34. In Dr. Raman Kumar Attrey v. Employees' State Insurance Corporation and Anr., CWP No. 1409/2001 decided on 16th May 2002, this Bench has noticed various decisions including Managing Director, A.P. State Meat and Poultry Development Corporation Ltd. Hyderabad v. S. Yadaiah and Ors., 2001 (6) ALT 534 (FB) and took the same view.
35. It is now a well-settled principle of law that a decision is an authority for what it decides and not what can logically be deduced there from. It is also well settled that a little difference in facts or additional facts may bring in a lot of difference in arriving at a conclusion. A decision, as is well known, is not to be read as a statute. Directions issued by the Supreme Court under Article 142 of the Constitution of India are not to be treated as precedent.
36. In The Regional Manager and Anr. v. Pawan Kumar Dubey, (1976) SCC 334 (341) , it has been held:
"13. We do not think that State of U.P. v. Sughar Singh , in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution. We would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one government servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact". As we have explained acting on a legally extraneous or obviously misconceived ground of action would be a case of "malice in law". Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by Sughar Singh's case. They are not vitiated merely because some other government servants, juniors in the substantive rank, have not been reverted."
37. Further, in Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. , , it was held:
"19. Courts should not place reliance on decisions without discussion as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrase and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willies, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech..... is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
20. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
xxx xxx xxx "Precedent should be followed only so far as ti marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
38. For the foregoing reasons, we find no merit in these cases. These writ petitions are dismissed accordingly without any orders as to costs.