POST MASTER GENERAL, KOLKA TA AND ORS. versus TUTU DAS (DUTTA)

Citation: [2007] 5 S.C.R. 1117 · Decided: 02-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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POST MASTER GENERAL, KOLKA TA AND ORS. 
A 
V. 
TUTU DAS (DUTTA) 
MAY 2, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Service Law: 
Daily wager substitute to EDA-Claim for regularization-Held: Neither 
the Central Administrative Tribunal nor the High Court recorded a positive · C 
finding that the daily wager had completed 240 days in a year as substitute 
to EDA-No appointment should be made contrary to statutory provisions 
governing recruitment or the rules framed in that behalf under a statute by 
the proviso to Article 309 of the Constitution-Constitution of India-Arts. 
14, 16, 77, 162 and 309-Industrial Disputes Act, 1947-25F. 
D 
Respondent, a daily rated substitute to a regular EDA, claimed to have 
completed 240 days in one year prior to 7.5.1985. She was disengaged on 
10.9.1987. She approached the Central Administrative Tribunal claiming 
absorption on the basis of the circular dated 13.11.1987 of the PMG West 
Bengal, which provided for, as one time exception, appointment of daily rated E 
substitutes as EDA on vacant posts. The respondent also contended that in 
the case of some other similarly situated daily rated substitutes, the CAT 
directed the Department to give benefit of the Circular to the petitioners. The 
Tribunal directed that in case the respondent was found to have completed 
240 days of work, she should be regularized. The writ petition of the 
Department having been dismissed by the High Court, it filed the present F 
appeal 
Allowing the appeal, the Court 
HELD: 1.1. The respondent was asked to produce relevant documents 
showing the period during which she had worked as EDA substitute in G 
different post offices from time to time prior to 7.5.1985. There is nothing on 
record to show that she brought such materials on record. The Tribunal also 
did not come to a definite finding that the respondent had completed 240 days 
in a year as a substituted EDA prior to issuance of the circular letter dated 
1117 
H 
1118 
SUPREME COURT REPORTS 
[2007] 5 S. C.R. 
A 12th 13th November, 1987. Besides, the concept of240 days of continuous 
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service in a year would be attracted only in case where retrenchment has 
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been effected without complying with the provisions contained in Section 25F 
of the Industrial Disputes Act, but would not be relevant for regularization of 
service. [Paras 11 and 1611122-D-E; 1125-C-DI 
_., 
B 
Madhyamik Si~ha Parishad, U.P. v. Anil Kumar Mishra and Ors. etc., 
AIR (1994) SC 1638, referred to. 
1.2. Equality clause contained in Articles 14 and 16 of the Constitution 
of India must be ginn primacy. No policy decision can be taken in terms of 
c 
Article 77 or Article 162 of the Constitution oflndia which would run contrary 
to the constitutional or statutory schemes. [Para 131 [1122-G-HI 
1.3 In the instant case, there are two distinctive features, namely, (i) 
equality is a positive concept, therefore, it cannot be invoked where any 
illegality has been committed or where no legal right is established; and (ii) 
D according to the appellant, the respondent having not completed 240 days, does 
not fulfill the requisite criteria. A disputed question of fact has been raised. 
The High Court did not come to a positive finding that the respondent had 
worked for more than 240 days in a year. Even otherwise this Court is bound 
by the Constitution Bench decision in Uma Devi's case*. The statement of 
law contained in para 53 of the said judgment cannot also be invoked in this 
E case. The question has been considered by this Court in a large number of 
decisions. (Para 18 and 20) [1125-D-GI 
*Secretary State of Karnataka and Ors. v. Uma Devi and Ors., [2006) 3 
SCR 953= [2006) 4 SCC 1; Punjab Water Supply and Sewarage Board v. 
F 
Ranjodh Singh & Ors., [20061 13 SCALE 426; Punjab State Warehousing 
Corp., Chandigarh v. Manmohan Singh & Anr., [2007) 3 SCALE 401, relied 
on. 
y 
2. What was considered to be permissible at a given point of time, 
keeping in view the decisions of this Court which had then been operating in 
G the field, does no longer hold good. Indisputably, the situation has completely 
changed in view ofa large number of decisions rendered by this Court in the 
last 15 years or so. It was felt that no appointment should be made contrary 
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to the statutory provisions governing recruitment or the rules framed in that 
behalf under a statute or the proviso appended to Article 309 of the 
Constitution oflndia. [Para 12) [1122-F] 

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