Case: Union Of India &amp; Another Vs. Kartick Chandra Mondal &amp; Another

3. The respondents herein, Shri K.C. Mondal and Shri S.K. Chakraborty, were engaged to work as casual labours in the office of the Ordnance Factory Board, Kolkata without going through the regular process of recruitment of their names being sponsored by the Employment Exchange, which was the extant policy at the relevant point of time. After their engagement as casual labours, they worked for two years with appellant no. 2, i.e., till 1983 and they were disengaged from service in the month of April, 1983 on the ground that their names were not sponsored by the Employment Exchange4. The respondents thereupon filed an Original Application before the CAT, registered as O.A. No. 285 of 1990 seeking a direction to the appellant no. 1 for their re-engagement and also for regularisation of their service w.e.f. 1983 or 1985. In support of the said claim, the respondents relied upon the Government of India notification issued by the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension [Department of Pensions and Training] dated 07.05.1985 issued under Office Memorandum No. 49014/18/84-Estt.[G] on the subject of regularisation of the services of the casual workers in Group `D posts by way of relaxing the condition of recruitment of casual workers through Employment Exchanges only5. The counsel for the respondents had, before the Tribunal, urged that the office memorandum dated 07.05.1985 cannot be said to apply only to those who were in service as casual workers at that time but it was a general policy governing the regularisation of the service of causal workers who were recruited otherwise than through the Employment Exchange. It was submitted that, therefore, the benefit of the office memorandum would belong to the respondents also6. After hearing the parties, the Tribunal held that the contention of the learned counsel for the respondents with regard to the applicability of the said office memorandum to the respondents could not be accepted. While coming to the aforesaid conclusion, the Tribunal relied upon the language of the said Office Memorandum, the relevant part of which is extracted below: -"Though these persons may have been continuing as casual workers for a number of years, they are not eligible for regular appointment and their services may be terminated any time. Having regard to the fact that casual workers belong to the worker section of the society and termination of their services will cause undue hardship to them, it has been decided, as a one time measure, in consultation with the DGE&T, that casual workers recruited before the issue of these instructions may be considered for regular appointment to Group `D posts, in terms of the general instructions even if they are recruited otherwise than through the employment exchange, provided they are eligible for regular appointment in all other respects."7. The Tribunal, however, granted the prayer of the respondents on the ground that 10 other similarly placed casual workers of the Ordnance Factory Board were regularised w.e.f. 01.01.1987. It was held by the Tribunal that the aforesaid 10 employees were also casual workers and all of them were similarly situated as the respondents inasmuch as they also were not recruited through the Employment Exchange. Subsequently, the Tribunal held that the respondents could not claim regularisation of their service w.e.f. 1983 or 1985, but keeping in view the fact that they had served the Ordnance Factory Board from 1981 to 1983 with technical breaks, their cases deserved to be considered favourably for re-engagement as casual labours. In light of the aforesaid findings, the Tribunal issued a direction to the appellants to re-engage the respondents as casual labours if there was work/vacancy in preference to freshers and those who rendered lesser length of service as casual labours8. The respondents, thereafter, making an allegation that despite the said order passed by the CAT the appellants did not pass any order in favour of the respondents filed a Contempt Application before the Tribunal which was disposed of by the Tribunal stating that since no time limit was stipulated in the order of the Tribunal, therefore, the appellants could not be held to have committed any contempt of Court. Since, even thereafter, no order was passed by the appellants to re-engage the respondents in terms of the order of the Tribunal, a Writ Petition was filed by the respondents before the High Court which was again disposed of by the High Court with a liberty to the respondents to approach the Tribunal in terms of which the respondents filed a fresh petition before the Tribunal which was registered as O.A. No. 903 of 2000. The said O.A. was heard and disposed of by the impugned judgment and order dated 11.03.2004 passed by the Tribunal with a direction to the appellants to absorb the respondents in any suitable post commensurate with their qualifications. The appellants being aggrieved by the aforesaid judgment and order filed a Writ Petition in the Calcutta High Court which was registered as WPCT No. 517 of 2004 for setting aside and quashing the aforesaid order passed by the Tribunal. The Calcutta High Court heard the parties in the said Writ Petition and by its judgment and order dated 17.08.2005 dismissed the said Writ Petition holding that the directions of the Tribunal are justified and that there is no valid ground for interfering with the aforesaid directions given by the CAT. Being aggrieved by the said judgment and order, the present appeal has been filed by the appellants on which we have heard the learned counsel appearing for the parties

Reasoning: 16. In our considered opinion, the ratio of both the aforesaid decisions are clearly applicable to the facts and circumstances of the present case. In our considered opinion, there is misplaced sympathy shown in the case of the respondents who have worked with the appellants only for two years, i.e., from 1981 to 1983. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & Others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow: -"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order"12. As has been noted earlier, the said office memorandum stated that the same would apply only to those persons who might have been continuing as casual workers for a number of years and who were not eligible for regular appointment and whose services might be terminated at any time. Therefore, it envisaged and could be made applicable to only those persons who were in service on the date when the aforesaid office memorandum was issued. Unless and until there is a clear intention expressed in the notification that it would also apply retrospectively, the same cannot be given a retrospective effect and would always operate prospectively.