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    There Cannot Be Equality in Illegality

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    mohit kumar
    This document is a summary of the Supreme Court of India case State Of Orissa & Ors vs. Prasana Kumar Sahoo. The key points are: 1) The Court held that the state is bound by the constitution to treat all persons equally in matters of public employment as per Articles 14 and 16. 2) A purported policy decision issued via executive instruction cannot override statute, statutory rules, or constitutional provisions relating to recruitment. 3) Regularization is not a valid mode of recruitment, and any appointment made in violation of constitutional provisions would be considered null.

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    There Cannot Be Equality in Illegality

    Uploaded by

    mohit kumar
    25 views2 pages
    This document is a summary of the Supreme Court of India case State Of Orissa & Ors vs. Prasana Kumar Sahoo. The key points are: 1) The Court held that the state is bound by the constitution to treat all persons equally in matters of public employment as per Articles 14 and 16. 2) A purported policy decision issued via executive instruction cannot override statute, statutory rules, or constitutional provisions relating to recruitment. 3) Regularization is not a valid mode of recruitment, and any appointment made in violation of constitutional provisions would be considered null.

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    There cannot be equality in illegality

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    This document is a summary of the Supreme Court of India case State Of Orissa & Ors vs. Prasana Kumar Sahoo. The key points are: 1) The Court held that the state is bound by the constitution to treat all persons equally in matters of public employment as per Articles 14 and 16. 2) A purported policy decision issued via executive instruction cannot override statute, statutory rules, or constitutional provisions relating to recruitment. 3) Regularization is not a valid mode of recruitment, and any appointment made in violation of constitutional provisions would be considered null.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    25 views2 pages

    There Cannot Be Equality in Illegality

    Uploaded by

    mohit kumar
    This document is a summary of the Supreme Court of India case State Of Orissa & Ors vs. Prasana Kumar Sahoo. The key points are: 1) The Court held that the state is bound by the constitution to treat all persons equally in matters of public employment as per Articles 14 and 16. 2) A purported policy decision issued via executive instruction cannot override statute, statutory rules, or constitutional provisions relating to recruitment. 3) Regularization is not a valid mode of recruitment, and any appointment made in violation of constitutional provisions would be considered null.

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    © All Rights Reserved
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    Supreme Court of India

    Citation: Appeal (civil) 2167 of 2007


    Titled: State Of Orissa & Ors vs. Prasana Kumar Sahoo
    Bench: 2 JJ. Author: S. B. Sinha J.

    Issue: There cannot be equality in illegality

    S. B. Sinha, J.

    “11. It is now well-settled that a State is bound by the constitutional scheme to


    treat all persons equally in the matter of grant of public employment as envisaged under
    Articles 14 and 16 of the Constitution of India.

    12. 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 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.

    13. In A. Umarani v Registrar, Cooperative Societies and Others [(2004) 7


    SCC 112], this Court has held; (SCC p. 126, para 45)

    "45. No regularisation is, thus, permissible in exercise of the statutory


    power conferred under Article 162 of the Constitution if the appointments have
    been made in contravention of the statutory rules."

    14. The circular letter dated 21.3.1995 even does not purport to lay a policy
    decision relating to regularisation or absorption of the census employees. It only provided
    for relaxation of age. Such relaxation was also subject to strict compliance of the
    recruitment rules. If by reason of some misconception or otherwise, the Tribunal had
    granted some relief in favour of some census employees, the same by itself, in our
    opinion, 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 adumbrated under Article 16 of the Constitution of India.

    ****

    ****

    17. Regularisation as is well known is not a mode of recruitment. A policy


    decision to absorb a person who is not in employment of the State without following the
    recruitment rules, would not confer any legal right on him. A Constitution Bench of this
    Court in Secretary, State of Karnataka and Others v Umadevi (3) and Others [(2006) 4
    SCC 1], categorically held that any appointment made in violation of the constitutional
    provisions would be a nullity. See also Gurbachan Lal v Regional Engineering College,
    Kurukshetra & Ors [2007 (4) SCALE 1].
    18. We may notice that in a large number of decisions, Umadevi (supra) has been
    followed by this Court e.g. State of U.P. & Ors. v Desh Raj [2006 (13) SCALE 382],
    Punjab Water Supply & Sewerage Board v Ranjodh Singh & Ors. [2006 (13) SCALE
    426] and National Institute of Technology & Ors. v Niraj Kumar Singh [2007(2) SCALE
    525], Punjab State Warehousing Corp., Chandigarh v Manmohan Singh & Anr. [2007(3)
    SCALE 401].

    19. Furthermore, a direction to grant relaxation in respect of the age must also
    receive strict compliance of other conditions specified therein. See Kendriya Vidyalaya
    Sangathan and Others v. Sajal Kumar Roy and Others [(2006) 8 SCC 671].

    20. It may be that some other persons similarly situated have been appointed. But
    Article 14 as is well known contains a positive concept. A Writ of Mandamus can be
    issued by the High Court only when there exists a legal right in the Writ Petitioner and
    corresponding legal obligation in the State. Only because an illegality has been
    committed, the same cannot be directed to be perpetuated by a court of law.

    21. It is also well settled that there cannot be equality in illegality. See Sushanta
    Tagore & Ors. v Union of India and Others [(2005) 3 SCC 16], State, CBI v Sashi
    Balasubramanian and Another [2006 (10) SCALE 541] and U.P. State Sugar Corp. Ltd.
    & Anr. v Sant Raj Singh & Ors. [2006 (6) SCALE 205].”

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