S.J. Vazifdar, J.@mdashI have had the benefit of reading my learned Brothers judgment but regret my inability to agree with the same.
The petitions raise common questions of law arising from similar facts and are, therefore, disposed of by a common judgment and order.
2. The question that falls for consideration is whether the judgment of the Supreme Court in
3. For convenience, I will refer to the facts in Writ Petition No. 6460/2006.
4. Respondent Nos. 2, 3 and 4 are the Director General of Health Services, Mumbai, the Deputy Director of Health Services, Latur, and the Dean, S.R.T.R. Medical College, district Beed, respectively.
5. The petitioner has the requisite educational qualification necessary for the post of Medical Officer, Class II. The petitioners case is that when the said posts are required to be filled in, and it was not possible to appoint candidates by following the due procedure, the State of Maharashtra followed the practice of selecting eligible candidates, by conducting their interviews and making necessary appointments. It is further alleged that the practice is that applications are invited by the Director of Health Services, Mumbai and by the Deputy Director of Health Services, who have been delegated the authority to select and appoint such candidates at the Regional level, on an ad hoc basis.
6. There is no dispute that the petitioner is an ad hoc employee. The petitioner was appointed as an ad hoc employee pursuant to an appointment letter dated 5.9.2005. The subject of the letter states: "Subject: Temporary appointment with Maharashtra Medical and Health Services Group-A..." . The letter goes on to state that the appointment is in exercise of the powers conferred by the orders referred to therein, "for the period of one year on temporary basis, from the date of their joining". Clauses (1) to (5), (15) and (18) of the appointment letter read as under:
1. On availability of the candidates nominated by MPSC/by promotion/by regular transfer or the candidates selected for the post graduation course from the medical college and the candidates completing post graduation or the medical officers on leave their services shall automatically come to an end.
2. The candidates whose appointments are restricted for the period of one year as mentioned in the Bond, will not be entitled for re-appointment or their applications will not be considered after the bond period is over, in any case.
3. Salary of the candidates will be Rs. 8000/- per month for group A ( Class-2) and they will be entitled for pay scale of Rs. 8000-275-13,500/-and other allowances as permissible under the respective rules.
4. The appointment being temporary, he will not be entitled for permanent appointment on any permanent post under the Maharashtra Medical and Health Services Department. For permanent appointment, he will have to apply to the commission whenever the Maharashtra Public Service Commission issues advertisement to that effect. The candidate will have to apply to the commission and undergo examination along with other candidates and will have to be got selected.
5. Their appointment being temporary, can be terminated without giving any intimation....
15. After completion of one year from the date of acceptance of the appointment, their appointment shall automatically come to an end and they will be deemed to be relieved from the post and no separate order would be issued to that effect. If they continue to work after the said period they will not be paid salary or allowance for the said period, for which themselves will be responsible.
...
18. On acceptance of appointment or on joining on the nominated post, it would be presumed that all the conditions in the order are accepted by you.
7. Thus, under the terms of the said letter, the appointment would have come to an end on 5.9.2006. Basing himself on the necessity of Medical Officers in respondent No. 3, beyond the period of his appointment, the petitioner approached the Maharashtra Administrative Tribunal ( M.A.T.), by filing Original Application No. 683/2006. The petitioner restricted his prayer as under:
A) The respondents be directed to continue the applicant on present post till candidate selected from M.P.S.C. is made available and posted by following State level seniority as long (as) there be need of ad hoc arrangement.
The petitioners application for interim reliefs was that the respondents ought not to appoint another ad hoc employee in his place.
8. It appears that based on the judgment in Piara Singhs case ( supra), several applicants were protected by the orders of the M.A.T. and of this Court, to the extent that such ad hoc employees ought not to be replaced by other ad hoc employees.
9. O.A. No. 683/2006 filed by the petitioner was dismissed by an order dated 28.8.2006. This order was based on the judgment delivered by the M.A.T. in O.A. No. 684/2006 also dated 28.8.2006 which in turn, followed the judgment of the M.A.T. in O.A. No. 490/2006. It is, therefore, necessary to refer to the judgment of the M.A.T. in O.A. No. 490/2006.
10. O.A. No. 490/2006 was filed by one Dr. Chitra Premnath Birhade for similar reliefs based on facts similar to those in the above Writ Petitions. She had, however, not challenged the order of the M.A.T. as she was subsequently selected by the M.P.S.C. and has been appointed as a regular employee.
11. The two learned Members of the M.A.T. differed on the point which falls for our consideration. By an order dated 3.8.2006 the matter was, therefore, referred, u/s 16 of the Administrative Tribunals Act, 1985, on the point on which the Members had differed, to the Vice Chairman of the M.A.T. The Vice Chairman agreed with the Member (Judicial). In accordance with the judgment of the majority, the Original Application was dismissed.
12. The Vice Chairman ( Administrative) and the Member ( Judicial) agreed that a direction to continue an ad hoc appointee, after the term of his appointment was over, cannot be given. They also agreed that the respondents were always at liberty to keep the posts vacant. The Vice Chairman ( Administrative), however, held that if the exigencies required an ad hoc appointment to be continued the applicant ought not to be replaced by a fresh or junior ad hoc appointee. The learned Member held:
Having regard to the submissions addressed and having given my consideration to paragraph 20 of the judgments read with other relevant paragraphs I am of the view and would observe that the applicant cannot be replaced by a fresh or junior ad hoc appointee. She can be replaced by a regular selected/regular incumbent or even a senior ad hoc appointee. It would be open to the respondent to keep the post vacant. However, if the exigency requires, the ad hoc arrangement to be made/continued, in such an event, the applicant cannot be replaced by a fresh or junior ad hoc appointee. No other direction de hors the terms and conditions contained in the appointment order can be given. This would, however be subject to her performance being satisfactory.
13. The Member ( Judicial) differed with what was held by the Member (Administrative), in paragraph 6 quoted above. It appears that the learned Member was of the view that the judgment in Umadevis case had overruled the judgment in Piara Singhs case, even on the point under consideration.
14. The order of reference dated 3.8.2006 also makes it clear that the Member ( Judicial) was of the view that the reliefs sought could not be granted in view of the judgment in Umadevis case, implying thereby that the judgment in Piara Singhs case has been overruled by the judgment of the Supreme Court in Umadevis case.
15. The third Member / the Vice Chairman, agreed with the Member (Judicial) who rejected the petitioners contention that the decision in Piara Singhs case has not been disapproved or overruled by the Constitution Bench on the point under consideration. The learned Member concurred with the view expressed by the Member (Judicial). In view of the majority decision, u/s 26 of the said Act, the application came to be dismissed.
16. It is in view of the majority decision of the M.A.T. in O.A. No. 490/2006 that the similar matters, including the Original Applications filed by the petitioners herein were dismissed.
17. At the outset I must clarify my approach to the question that falls for determination. In my view it is not for this Court to consider independently of the judgments of the Supreme Court whether an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee and that he must be replaced by a regularly selected employee. There is no dispute that the question was decided by the Supreme Court in Piara Singhs case.
The question is whether the Constitution Bench in Umadevis case has impliedly overruled the judgment of the Supreme Court in Piara Singhs case.
I have therefore approached the matter, as indeed I believe I must, only on a consideration of whether the said ratio in Piara Singhs case is impliedly overruled by the Supreme Court in Umadevis case. In other words I have not, as I believe I am not entitled to, considered the question on principle independently of the judgments of the Supreme Court.
18. The ratio in Piara Singhs case is clear. It does not require any interpretation. In paragraph 46 the Supreme Court held:
46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
19. In order to ascertain whether the judgment in Piara Singhs case was overruled on the said point it is important to note what fell for the consideration of the Supreme Court and what the Supreme Court in fact decided in Umadevis case.
20. I would preface the consideration of this aspect by a reference to two judgments of the Supreme Court. In
12. A case is a precedent and binding for what it explicitly decides and no more. The words used by judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
In
13. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on an earlier decision of the Court held that reinstatement was mandated. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a judge while giving judgment that constitutes a precedent. The only thing in a judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedens, every decision contains three basic postulates:
(i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the judge draws from the direct, or perceptible facts;
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa V.Sudhansu Sekhar Misra and Union of India v. Dhanwanti Devi). A case is a precedent and binding for what it explicitly decides and no more. The words used by judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem, Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
21. What fell for consideration is clear from paragraph 10 of the judgment of Umadevis case where the Supreme Court has set out the circumstances in which the matter came before the Constitution Bench. Paragraph 10 reads as under: 10) When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in Secy., State of Karnataka v. Umadevi. This Court noticed that in the matter of regularisation of ad hoc employees, there were conflicting decisions by three-Judge Benches of this Court and by two-Judge Benches and hence the question required to be considered by a larger Bench. When the matters came up before a three-Judge Bench, the Bench in turn felt that the matter required consideration by a Constitution Bench in view of the conflict and in the light of the arguments raised by the Additional Solicitor General. The order of reference is reported in Secy., State of Karnataka v. Umadevi. It appears to be proper to quote that order of reference at this stage. It reads: (SCC p. 45, paras 1-5)
1. Apart from the conflicting opinions between the three-Judge Bench decisions in Ashwani Kumar v. State of Bihar, State of Haryana v. Piara Singh and Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka on the one hand and State of H.P. v. Suresh Kumar Verma, State of Punjab v. Surinder Kumar and B.N. Nagarajan v. State of Karnataka on the other, which have been brought out in one of the judgments under appeal of the Karnataka High Court in State of Karnataka v. H. Ganesh Rao, decided on 1-6-2001 the learned Additional Solicitor General urged that the scheme for regularisation is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution and, therefore, these cases are required to be heard by a Bench of five learned Judges (Constitution Bench).
(2) On the other hand, Mr M.C. Bhandare, learned Senior Counsel, appearing for the employees urged that such a scheme for regularisation is consistent with the provisions of Articles 14 and 21 of the Constitution. . We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should.
22. It is thus clear that what fell for the consideration of the Supreme Court was the question of regularisation of ad hoc employees. It is also clear that what was urged before the Supreme Court by the learned Additional Solicitor General was that the scheme of regularisation of ad hoc or temporary employees was repugnant to the Constitution.
23. Reading the judgment as a whole it is also clear that the Constitution Bench dealt with and considered the propriety and legality of the absorption/regularisation and the grant of permanency of employment in respect of ad hoc or temporary employees and held the same to be contrary to the Constitutional scheme of public employment as it bypassed the regular process of recruitment or appointment in respect of regular vacancies in posts. The Supreme Court held that the passing of the orders for continuance tend to defeat the very Constitutional scheme of public employment. This is clear inter-alia from paragraphs 3 and 4 of the judgment in Umadevis case which reads as under:
3) A sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, the National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in a year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4) But, sometimes this process is not adhered to and the constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment" , has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
24. Paragraph 7 of the judgment in Umadevis case makes it clearer still that what the Supreme Court considered was the question of making permanent/absorbing ad hoc or temporary employees in the posts in which they had worked. Paragraph 7 reads as under:
(7) These two sets of appeals reflect the cleavage of opinion in the High Court of Karnataka based on the difference in approach in two sets of decisions of this Court leading to a reference of these appeals to the Constitution Bench for decision. The conflict relates to the right, if any, of employees appointed by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be made permanent in appropriate posts, the work of which they were otherwise doing. The claim is essentially based on the fact that they having continued in employment or engaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned. There are also more ambitious claims that even if they were not working against a sanctioned post, even if they do not possess the requisite qualification, even if they were not appointed in terms of the procedure prescribed for appointment, and had only recently been engaged, they are entitled to continue and should be directed to be absorbed.
25. Similarly the paragraphs thereafter in the judgment in Umadevis case deal not with the question whether an ad hoc or a temporary employee may be replaced by another ad hoc or temporary employee but only whether an ad hoc or a temporary employee has a right to absorption or permanency in his post by virtue of having served in it for any length of time.
26. In paragraph 12 of the judgment in Umadevis case the right of the Government to make ad hoc or temporary appointments is recognised. The Supreme Court held that this right cannot but be recognised and there is nothing in the Constitution which prohibits engaging persons temporarily or on daily wages to meet the needs of the situation. The Supreme Court however further held that the fact that such engagements are resorted to cannot be used to defeat the very purpose of the scheme of public employment. Having stated so the Supreme Court held that it is ordinarily not proper while acting under Article 226 or Article 32 of the Constitution "to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the Constitutional scheme". Thus here again it is clear that what was considered was the question of direct absorption in permanent employment of ad hoc or temporary employees which is not the question that falls for our consideration in the present Writ Petitions.
27. There is another aspect which emerges from the judgment in Umadevis case. As we have already seen the Supreme Court held that granting absorption or permanency to ad hoc or temporary employees defeats the very scheme of public employment by by-passing the Constitutional scheme. The question which falls for our consideration is whether an ad hoc or temporary employee can be replaced by another ad hoc or temporary employee and not whether such an employee can be replaced by an employee appointed pursuant to the Constitutional scheme of public employment. The engagement of an ad hoc or temporary employee, albeit to replace an ad hoc or temporary employee, is itself not a regular employment in accordance with or pursuant to the Constitutional scheme of public employment referred to in Umadevis case. There would be no question therefore of the said ratio in Piara Singhs case defeating the Constitutional scheme of public employment. The petitioners have not sought absorption or permanency in their posts. In fact they admit that if a person is regularly appointed they would not be entitled to continue. Nor have the Petitioners sought an order permitting them to continue in the posts even if the respondents desire to keep the same vacant. The respondents are always at liberty to do so.
28. This brings us to paragraphs 23 to 26 of the judgment in Umadevis case which expressly deal with the judgment in Piara Singhs case. In these paragraphs the Constitution Bench has also set out the relevant paragraphs in Piara Singhs case. It is necessary therefore to set out these paragraphs which read as under:
23) We may now consider State of Haryana v. Piara Singh. There, the Court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily-wagers or casual labour. This Court started by saying: (SCC 134, para 21)
21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the executive. It is the executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service.
24. This Court then referred to some of the earlier decisions of this Court while stating: (SCC p. 134, para 21)
The main concern of the court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above.
25. This Court then concluded in paras 45 to 49: (SCC p.152)
45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -the distinction between regularisation and making permanent, was not emphasised here - can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
29. It is clear and indeed was admitted that the judgment in Umadevis case does not expressly overrule paragraph 46 of the judgment in Piara Singhs case which is set out in paragraph 25 in the judgment of Umadevis case.
30. The question is whether paragraph 46 of the judgment in Piara Singhs case is impliedly overruled by the judgment in Umadevis case. The answer essentially lies in paragraph 26 of the judgment in Umadevis case. It is important to note three things about what is stated in paragraph 26.
31. Firstly the Supreme Court once again held that the direction to make permanent can only encourage the State to flout its own rules by making temporary employment in permanent posts. In other words once again what the Supreme Court considered and dealt with was the grant of permanency to temporary employees without following the Constitutional scheme of public employment.
32. Secondly, and this is important, the Supreme Court held that the direction in paragraph 50 of Piara Singhs case was inconsistent with the conclusion in paragraph 45 therein. Paragraph 50 of Piara Singhs case reads as under:
50. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be. Paragraph 50 in Piara Singhs case thus also deals only with the question of regularisation of ad hoc employees. It does not deal with the question whether an ad hoc employee can replace another ad hoc employee.
33. Further, and this is even more important, in paragraph 26 the Supreme Court expressly held : that "the last of the directions clearly runs contrary to the Constitutional scheme of employment recognised in the earlier part of the judgment".
34. Whether the expression "the last of the directions" is a reference to paragraphs 49 or 50 of the judgment in Piara Singhs case makes no difference.
Paragraphs 49 and 50 of the judgment in Piara Singhs case deal with the question of regularisation of ad hoc employees and not with the question whether an ad hoc employee can replace another ad hoc employee.
35. Thus in paragraph 26 of the judgment in Umadevis case the Supreme Court expressly overruled Piara Singhs case only to the extent that it recognised a right in ad hoc or temporary employees to absorption or permanency or regularization and required the State to prepare a scheme in that regard. The Supreme Court neither considered nor overruled the ratio contained in paragraph 46 of the judgment in Piara Singhs case.
36. The subsequent paragraphs of the judgment in Umadevis case also deal only with the question of the claim to permanency or absorption or regularisation by ad hoc or temporary employees. The observations of the Supreme Court therefore pertain to such claims and not to the contentions urged before us. This is clear inter-alia from paragraphs 42 to 46 of the judgment.
37. Mr. Khandare however placed considerable reliance upon a conjoint reading of paragraphs 39 and 52 of the judgment in Umadevis case in support of his contention that Piara Singhs case stands impliedly overruled even in respect of the question under consideration. Paragraph Nos. 39 and 52 of the judgment in Umadevis case read as under:
39. There have been decisions which have taken the cue from Dharwad case and given directions for regularisation, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in Workmen v. Bhurkunda Colliery of Central Coalfields Ltd. though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularisation or re-engagement or making them permanent.
52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
Mr.Khandare relied only upon the word "re-engagement" in paragraph No. 39 to contend that Piara Singhs case has been overruled on the question under consideration.
38. The judgment in Umadevis case must be read as a whole especially while considering whether an earlier judgment of a three Judge bench of the Supreme Court has been impliedly overruled. It is difficult to come to this conclusion relying merely on certain sentences or words without considering the backdrop and the context in which they appear and without considering the entire judgment. This is more so when the judgment under consideration has in fact been referred to by the subsequent judgment of the Supreme Court, overruled on one aspect but not overruled on the other despite the fact that the same was expressly noticed and extracted in the subsequent judgment.
39. The Supreme Court in Umadevis case did not consider this aspect at all. The Supreme Court in Umadevis case considered the question of absorption or regularisation or permanency and it is in that context that the term "re-engagement" has been used. In paragraph 52 again the restriction on the issuance of a Mandamus in favour of ad hoc employees is in the context of directing the Government to make them permanent since such employees could not show that they had an enforceable legal right to be permanently absorbed or that the State had a duty to make them permanent.
40. Mr.Khandare further submitted that the said ratio in paragraph 46 of the judgment in Piara Singhs case must be viewed in the context of paragraph 44 of the judgment in that case which reads as under:
44. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/temporary employees in Government service.
He submitted that the directions in paragraphs 45 to 50 were, therefore, part of a scheme for the regularisation of the services of ad hoc employees. According to him, the right of regularization having been overruled by the Constitution Bench, it logically follows that every direction in aid thereof must necessarily be held to have been impliedly overruled.
41. I am unable to agree with this approach in principle. It is now a settled principle that a judgment is an authority for it decides and cannot be quoted for a proposition that may seem to follow logically from it. In Quinn versus Leathem 1901 AC 495 Lord Halsbury observed:
...there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
These observations have been cited with approval in several judgments of this Court and the Supreme Court. ( See
42. Mr. Khandare relied upon three further judgments of the Supreme Court. They do not carry the matter any further.
43. In
31. The learned senior counsel placed strong reliance upon a decision of this Court in
It will be noticed that what the petitioner sought therein was regularization. Further it must be noticed that it was squarely on the question of appointment of a person in service that the Supreme Court stated that Piara Singhs case has been overruled.
The Supreme Court thus, neither in the judgment generally nor while dealing with Piara Singhs case dealt with the question that falls for our consideration. I do not read this judgment as having interpreted Umadevis case to have overruled the judgment in Piara Singhs case on the point under consideration.
44. Mr. Khandare then relied upon the judgment of the Supreme Court in
In paragraph 31 which was relied upon by Mr. Khandare the Supreme Court observed that it was not necessary to dilate on the decision in Piara Singhs case in view of the observations in paragraph 26 of the judgment in Umadevis case. In this case also therefore the question that falls for our consideration was neither considered nor decided.
45. The next decision relied upon by Mr. Khandare was the judgment of the Supreme Court in Gurbachan Lal v. Regional Engineering College, Kurushetra and ors. 2007 (2) Sup 745. . Nowhere in the judgment is it observed that Piara Singhs case has been overruled by the judgment of the Constitution Bench in Umadevis case on the point under consideration. In fact in paragraph 38, 39 and 43 the Supreme Court held that in Umadevis case, the earlier decisions of the Supreme Court directing regularization and granting permanency to temporary employees recruited under a scheme had been overruled. The Supreme Court further observed that in Umadevis case it had been made clear that a Mandamus cannot be issued in favour of the employees directing the Government to make those employees permanent since they could not show that they had a legally enforceable right to be absorbed or that the Government was duty bound to make them permanent.
46. In the circumstances I am unable to come to the conclusion that the judgment of the Supreme Court in Piara Singhs case in so far as it held that an ad hoc employee can be replaced only by a regularly selected employee and not by another ad hoc or temporary employee has been impliedly overruled by the judgment of the Constitution bench in Umadevis case.
47. In the circumstances I would set aside the majority judgment of the Maharashtra Administrative Tribunal and make the Rule absolute in terms of prayer (B) and (C) with the clarification that there is no obligation on the respondents to continue the petitioners in their posts if they are otherwise not to be filled in.
S.J. Vazifdar and P.R. Borkar, JJ.
48. We have today delivered our separate judgments in the above Writ Petitions. As we have differed on the question of law which falls for our consideration it will be necessary to have the matter heard by another judge. The point of law upon which we have differed is as under:
Whether the judgment of the Supreme Court in the case of
49. The Office is directed to place the papers of the matter before the learned Chief Justice for appropriate orders under Chapter I Rule 6 of the Bombay High Court (Appellate Side) Rules, 1960.
