STATE OF ORISSA AND ORS. versus PRASANA KUMAR SAHOO

Citation: [2007] 5 S.C.R. 697 · Decided: 26-04-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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STATE OF ORISSA AND AND ORS. 
A 
v. 
PRASANA KUMAR SAHOO 
APRIL 26, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
" 
Constitution of India, 1950: 
Arts. 162 & 309-Policy decision taken by State in exercise of its 
jurisdiction under Art. 162-Held: Would be subservient to the recruitment c 
rules framed by the State either in terms of a legislative act or the proviso 
appended to Art.309-A purported policy decision issued by way of an 
executive instruction cannot override the statute or statutory rules far less 
the constitutional provisions-A policy decision to absorb a person who is 
not in employment of the State without following the recruitment rules, would D 
not confer any legal right on him. 
,l. 
Art. 14-Scope of-Held: Art. 14 contains a positive concept-Only 
because an illegality has been committed, the same cannot be directed to be 
perpetuated by a Court of law-There cannot be equality in illegality. 
Art. 226-Writ of Mandamus-Held: Can be issued by the High Court E 
only when there exists a legal right in the Writ Petitioner and corresponding 
legal obligation in the State. 
Appellant State issued a circular relaxing upper age limit of the 
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retrenched employee of Census Organisation for appointment under the State. F 
No policy for regularization or for absorption of the employees working the 
Census Organisation was laid down. 
Disputes arose with regard to the entitlement of Respondent 
appointment/regularization in terms of the said circular. Respondent used to 
be appointed in the Census Organisation from time to time keeping in view G 
_.. 
,x 
of exigencies of work. His services had been allegedly terminated. 
It is contended by the appellant that the Tribunal and consequently the 
High Court committed a manifest error in treating the said purported circular 
697 
H 
698 
SUPREME COURT REPORTS 
(2007] 5 S.C.R. 
, 
A letters as a policy decision on the part of the State for regularization of the 
service of the Respondent It was contended that the circular letter in question 
only provided for relaxation of age and the same was subject to the provisions 
of the recruitment rules. 
Respondent, on the other hand, contended that it is not a case where the 
B prayer for regularization of services in the Census Department was made. 
According to him, the State adopted a policy decision pursuant whereto and 
in furtherance whereof a large number of census employees who had been 
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retrenched, having been appointed, there was absolutely no reason as to why 
he should have been discriminated against It was contended by the Respondent 
c that at no point of time, he was found to be unsuitable for appointment in a 
Class-III post 
Allowing the appeal, the Court 
HELD: 1. A State is bound by the constitutional scheme to treat all 
D persons equally in the matter of grant of public employment as envisaged 
under Articles 14 and 16 of the Constitution oflndia. [Para 13] [703-F-G] 
~ 
2. Even a policy decision taken by the State in exercise of its jurisdiction 
under Article 162 of the Constitution of India would be subservient to the 
recruitment rules framed by the State either in terms of a legislative act or 
E the proviso appended to Article 309 of the Constitution of India. A purported 
policy decision issued by way of an executive instruction cannot override the 
statute or statutory rules far less the constitutional provisions. 
[Para 14) [703-G, H; 704-A] 
A Umarani v. Registrar, Cooperative Societies and Ors., (2004] 7 SCC 
{, 
F 112, relied on 
3. The Circular letter dated 21.3.1995 even does not purport to lay a 
policy decision relating to regularization or absorption of the census 
employees. It only provided for relaxation of age. Such relaxation was also 
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subject to strict compliance of the recruitment rules. If by reason of some 
misconception or otherwise, the Tribunal had granted some relief in favour 
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of some census employees, the same by itself, would not confer any legal right 
upon a person for being absorbed in State services without compliance of the 
mandatory provisions of the recruitment rules and the constitutional scheme 
adumberated under Article 16 of the Constitution oflndia. 
H 
[Para 16] [704-B, C, D] 
STATE OF ORIS SA v. PRASANA KUMAR SAHOO 
699 
4. Regularisation is not a mode of recruitment. A policy decision to A 
absorb a person who is not in employment of the State without following the 
recruitment rules, would not confer any legal right on him. F

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