* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO: 31610 OF 1997 % 22.06.2007 # K. Ganesh ….. Petitioner Vs. $ The Tirumala Tirupathi Devasthanam rep., by its Executive Officer, Tirupathi, Chittoor District. ….Respondent ! Counsel for the Petitioner: Sri Shiva. ^ Counsel for the Respondents: Standing Counsel for T.T.D. < Gist: >Head Note ? Citations: [1] AIR 1994 SC 1638 2 (2006(4) SCC 1 3 AIR 1965 SC 1887 4 (2002)4 SCC 234 5 (2004) 5 SCC 568 6 (2002)4 SCC 638 7 1997(1) SCC 35 8 2000(4) SCC 186 9 AIR 1995 SC 705 10 1996(2) SCC 459 11 AIR 1967 SC 1427 12 2004(5) ALT 1 13 (2002) 1 SCC 100 14 AIR 1955 SC 425 15 AIR 1987 SC 2335 16 AIR 1987 SC 1972 THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.31610 of 1997 ORDER: This writ petition is filed seeking a declaration that the respondent-Tirumala Tirupathi Devasthanam (for short ‘the Devasthanam) has acted arbitrarily and illegally in not implementing the orders of the Government in G.O.Rt.No.172 Revenue (Endowments-III) Department dated 7-2-1997. The petitioner also seeks a direction to the respondent Devasthanam to reinduct and absorb him with effect from 7.2.1997, (i.e., from the date of issuance of G.O.Rt.No.172 dated 7.2.1997), with all consequential benefits from that date. The petitioner claims to have been continuously engaged as a volunteer by the respondent Devasthanam from 6.11.1984 for a period of 376 days. Petitioner submits that he had sought for regularization of his services and, since his request was not acceded to, he along with other similarly placed volunteers had invoked the jurisdiction of this Court in W.P.No.3579 of 1991, seeking regularization of their services. This Court, by order dated 3.4.1991, disposed off the writ petition directing the respondents to give the petitioners therein an opportunity to prove their claims before the Executive Officer of the Devasthanam and, in the event they were able to establish their claims, to consider their case for appointment. Pursuant thereto, the Devasthanam issued memo dated 10.1.1992 informing that the petitioner did not work in the Devasthanam from April 1985 to November, 1985. The petitioner then submitted a representation pointing out that many of his juniors with lesser qualifications, and having worked for lesser number of days, were continued and absorbed in the services of the Devasthanam and that he was discriminated against on unreasonable grounds. The petitioner was given a personal hearing by the Executive Officer of the Devasthanam on 9.11.1993. Petitioner would contend that he met the Executive Officer and produced documentary evidence to show that he had rendered 376 days continuous and uninterrupted service and that he had also furnished a list of juniors permanently absorbed in the Devasthanam, some of whom were even promoted to higher posts. The petitioner claims to have also referred to the proceedings of the Devasthanam dated 9.3.1993 wherein backwages are said to have been paid to 75 volunteers even after their services were disengaged. Pursuant thereto, the matter is said to have been placed before the TTD Trust Board which, according to the petitioner, did not take any decision in the matter. The petitioner submitted a representation on 15.4.1994 seeking his reinduction into the Devasthanam’s service and was informed, vide proceedings dated 3.5.1994, that the T.T.D.Trust Board, in its resolution No.1208 dated 30/31-3-1994, had examined and rejected his case in view of Act 2 of 1994. Thereafter, the petitioner submitted a representation, (which he claims to be an appeal under Section 120 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, hereinafter referred to as Act 30 of 1987), to the Principal Secretary, Revenue Endowments-III Department on 16.8.1994 who, vide order dated 26.5.1995, rejected the petitioner’s request. Thereafter, on a representation being submitted by the petitioner on 13.11.1996, (which he claims to be a review under Section 122 of Act 30 of 1987), requesting reconsideration of their order dated 26.10.1995, the Government, in its order in G.O.Rt. No. 172 dated 07.02.1997, took note of the report of the Executive Officer that the petitioner had worked as a paid volunteer from November, 1984 to November, 1985 and that his juniors were continued in T.T.D some of whom were permanently absorbed in T.T.D. service as they were continuing on the date of absorption. The Government, on careful examination of the petitioner’s case, observed that he had worked as a volunteer in 1985, that it would result in injustice if he was not re-inducted into service and that the provisions of Act 2 of 1994 would not apply to his case as it could not be treated as a fresh appointment. Considering the petitioner’s past service and the hardship caused to him the government directed that he be re- inducted and absorbed into the service of the T.T.D. on humanitarian grounds on par with his juniors. However the intervening period, from the date of termination till his reappointment, was not to be counted for any purpose like salary, seniority, promotion, pension etc. The petitioner’s representation dated 10.2.1997, requesting the Devasthanam to issue suitable posting orders, pursuant to G.O.Rt.No.172 dated 17.2.1995, was of no avail necessitating his having to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Sri Shiva, learned counsel for the petitioner, contends that, since G.O.Rt. No.172 dated 7.2.1997 was an order passed by the Government under Section 122 of Act 30 of 1987, the said order was binding on the respondent and that it was not open to the Devasthanam to act in defiance thereof. Learned counsel would submit that if a quasi judicial order, passed by the Government in exercise of the statutory power conferred under Section 122 of Act 30 of 1987, was permitted to be defied by an authority subordinate to the Government, it would sound the death knell to the rule of law. Learned counsel would submit that what the petitioner seeks in this writ petition is not execution of the order of the Government but for a direction to the Devasthanam to adhere and give effect to the quasi judicial orders passed by the Government under Section 122 of Act 30 of 1987. Learned counsel would seek to place reliance on certain subsequent events including that the Devasthanam had requested the Government not to give effect to the orders passed in G.O.Rt.No.172 dated 7.2.1997, that the Government had initially issued notice to the petitioner and thereafter, while rejecting their request, had directed the Devasthanam to comply with the orders passed in G.O.Rt.No.172 dated 7.2.1997. Learned counsel would further submit that the Devasthanam, instead of complying with the order of the Government, in letter and spirit, had appointed the petitioner as a volunteer (unabsorbed) and had denied him the benefits which he was entitled to by virtue of G.O.Rt.No.172 dated 7.2.1997. That the T.T.D. has not implemented this order of the Government, in G.O.Rt. No. 172 dated 07.02.1997, is the petitioner’s grievance before this Court. While the relief sought for in the writ petition is carefully couched, shorn of verbiage what the petitioner, in effect, seeks is that this Court execute the orders passed by the Government. Even if the petitioner’s contention, as stated in his representation to the Government dated 18.06.1994, that he worked for a period of 376 days from 06.11.1984 to November, 1985 were to be accepted that, by itself, would not entitle him to seek regularisation. Completion of 240 days work does not, even under the Industrial Disputes Act, import the right of regularization. It merely imposes certain obligations on the employer at the time of termination of the service of the employee. (Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra[1]). I n Secretary, State of Karnataka Vs. Umadevi [2] , the Supreme Court held that employees, appointed on daily wages or casual basis, could not claim regularization in service merely on account of their being employed for certain duration. The Supreme Court held that unless appointment was made in terms of the relevant rules, and after proper competition among qualified persons, the same would not confer any right on the appointee. It is not in dispute that the petitioner, hitherto engaged as a volunteer on daily wages of Rs.10/-, was neither appointed pursuant to a regular process of selection nor in accordance with the rules governing appoint to posts in the Tirumala-Tirupati Devastanams. The order of the Government, in G.O.Rt. No. 172 dated 07.02.1997, in directing the T.T.D. to re-induct the petitioner and absorb him into T.T.D. service on humanitarian grounds is exfacie illegal and contrary to the law laid down by the Supreme Court. The law declared by the Supreme Court binds Courts in India (Rajeswar Prasad Misra Vs. State of W.B[3]). It is well to remember that on the law having been declared by the Supreme Court, it is the duty of the High Court, whatever be its view, to act in accordance with Article 141 of the Constitution of India and to apply the law laid down by the Supreme Court. Judicial discipline to abide by the declaration of law, of the Supreme Court, cannot be forsaken by any Court, be it even the highest Court in a State, oblivious of Article 141 of the Constitution of India. (Chandra Prakash Vs. State of U.P.[4]; State of Orissa Vs. Dhaniram Luhar[5]). The decisions of the Supreme Court are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the disputes between them but also because in doing so they embody a declaration of law operating as a binding principle in future cases. The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. (Chandra Prakash4). In Director of Settlements, A.P. Vs. M.R. Apparao[6] the Supreme Court observed: “…..Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law” it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur: AIR 1970 SC 1002 and AIR 1973 SC 794AIR 1973 SC 794). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See Narinder Singh v. Surjit Singh: (1984)2 SCC 402) and Kausalya Devi Bogra v. Land Acquisition Officer: (1984) 2 SCC 324)…… (emphasis supplied) Along with the writ petition the petitioner has filed copies of G.O.Ms. No. 391 dated 06.05.1991 wherein the government had accorded sanction for creation of 1235 posts in various departments in T.T.D. as on that date so as to enable regularization/absorption of persons working as unit workers, volunteers, guides etc. Admittedly the petitioner was not working during the said period and was therefore not absorbed whereas his juniors, whose services were regularized, were working when the proposal for absorption of the specified 1235 persons, and for creation of 1235 posts to enable them to be absorbed, was submitted to the government. As to whether the T.T.D. was justified in regularizing those who were appointed subsequent to the petitioner, by way of G.O.Ms. No. 391 dated 06.05.1991, cannot be gone into in the present proceedings as none of those who were extended the benefit of regularization are before this Court. In any event such orders of regularization of persons, appointed contrary to the rules, would not entitle the petitioner to claim parity and for extension of similar benefits of regularisation/absorption as acceding to such a request would entail perpetuating an illegality. If some persons had derived benefit by an illegality, and had escaped the clutches of law, similar persons cannot plead, nor can the court countenance that the benefit, had from an infraction of law, must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? The answer is obviously no. (Secretary, Jaipur Development Authority, Jaipur V s . Daulat Mal Jain[7]) If something wrong has been done in violation of the rules, we cannot use that as an example to perpetuate an illegality. In any event those cases are not before this Court and it is difficult to comment if there was violation of any rules regarding those employees. (C.S.I.R. Vs. Dr. Ajay Kumar Jain[8]) In Chandigarh Administration Vs. Jagjit Singh[9] the Supreme court held:- “………Generally speaking, the mere fact that the respondent- authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal / unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again. The illegal / unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act / order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into correctness of the order made or action taken in another person's case, which other person is not before the Court nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles…….” (emphasis supplied). In Gursharan Singh Vs. New Delhi Municipal Committee[10], the Supreme Court observed:- “……….There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination……..” (emphasis supplied) Upholding the rule of law may justify this Court’s intervention where a legal and valid order, passed in exercise of a statutory power, is transgressed by an authority subordinate to the authority which passed the order, and not those which are exfacie illegal and are contrary to the law laid down by the Supreme Court. In S.G. Jaisinghani Vs. Union of India[11], the Supreme Court held:- “……In a system governed by rule of law, discretion, when conferred upon the executive, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the Rule of law. (See Dicey — Law of the Constitution — 10th Edn., Introduction ex). “Law has reached its finest moments,” stated Douglas, J. in United States v. Wunderuck 2 , “when it has freed man from the unlimited discretion of some ruler.... Where discretion, is absolute, man has always suffered.” It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield slated it in classic terms in the case o f John Wilkes 3 , “means sound discretion guided by law. It must be governed by Rule, not by humour: it must not be arbitrary, vague, and fanciful……” In Umadevi2, the Supreme Court observed:- “…….While answering an objection to the locus standi of the writ petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasised, Bhagwati, C.J., speaking on behalf of the Constitution Bench in D.C. Wadhwa (Dr.) v. State of Bihar 28 stated: (SCC p. 384, para 3) “The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the constitutional limitations and if any practice is adopted by the executive which is in flagrant and systematic violation of its constitutional limitations, Petitioner 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.” Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end