ADVANTAGE WITHOUT LEGAL BASIS CANNOT BE RELIED UPON AS A PRINCIPLE OF PARITY OR EQUALITY: SC

A BENEFIT OR ADVANTAGE WITHOUT LEGAL BASIS OR JUSTIFICATION CANNOT MULTIPLY, OR BE RELIED UPON AS A PRINCIPLE OF PARITY OR EQUALITY: SC

Cause Title: R. Muthukumar and Others v. The Chairman and Managing Director TANGEDCO and Others

Case Number: Civil Appeal No. 1144/ 2022, 1145-1155/ 2022, 1156-1179/ 2022, 1180-1187/ 2022 and 1188-1214/ 2022 (Arising Out of SLP (C) No. 19059/ 2019, 15629-15639/ 2019, 22044-22067/ 2019, 22036-22043/2019 and 3183-3209/ 2020)

Quorum: Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela. M. Trivedi

Judgment Date: 07/02/2022

Counsel for Appellants: Mr. Gautam Narayan and Mr. T.B. Sivakumar

Counsel for Respondent: Mr. Joydeep Gupta

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

Background of the Case

The appellants in four sets of appeals are aggrieved by a common judgment and order dated 02.08.2018 of the Division Bench of the Honourable Madras High Court. In another appeal. The management of Tamil Nadu Generation and Distribution Corporation Ltd. (“TANGEDCO”) is aggrieved by another judgment of the Madras High Court, whereby it was directed to appoint the respondents as ITI Helpers based on a previous order dated 14.10.2015 in W.A. No. 81/2015.

In SLP No. 1820/1990, the Honourable Supreme Court of India, appointed late Mr. Justice Khalid, a former Supreme Court Judge to consider and recommend better methods for filling up of vacancies by accommodating existing workers on one hand and skilled workers on the other. Acting in compliance with the report submitted by Justice. Khalid, TANGEDCO, by order dated 12.07.2012 called applications to fill up 4000 ITI Helper (Trainee) vacancies, by direct recruitment through Employment Exchange. A notification was sent to the Commissioner, Employment Exchange, Guindy, to sponsor ITI Candidates in each category, according to their ratio with the Trade of Electrician and Wireman in the ratio of 1:5.

Some writ petitions were preferred for a direction to relax the upper age limit while filing up the vacancies to the post of ITI Helper (Trainee) in TANGEDCO by direct recruitment. These writ petitions were disposed of by the Madras High Court by a common order dated 01.11.2012 in which the Court directed TANGEDCO to relax the upper age limit for these ITI Trade Certificate Holders so far as the current selection is concerned. By order/ proceedings dated 04.07.2013, TANGEDCO relaxed the upper age limit for the on-going selection process. As a result, a list was drawn from the Employment Exchange and the selection was subject to physical fitness required for job, and fulfilment of other requisite criteria.

In C.A. Nos. 5285-5328/ 1996 dated 03.10.1996, the Honourable Apex Court had directed grant of preference by calling candidates who have undergone apprenticeship training in the Tamil Nadu Electricity Board to attend only the interview for the post of ITI Helper (Trainee) along with the other candidates sponsored through the Employment Exchange and in accordance subsequent advertisements have been given in two daily newspapers. These candidates are exempted from the Written Examination but must go through the process of Viva-voce test. Consequently apprentice-trainees had no right per se, for appointment as a matter of course.

The candidates were evaluated with 85% weightage for academic marks and 15% towards performance in viva-voce. The interview was for assessing the candidate’s ability to do pole climbing and cycling with respect to physical fitness. The ratio of 1:5 was followed for ITI qualified candidates from the Employment Exchange and the candidates were required to have the qualification of ITI (NTC/NAC). Appointments by direct requirement followed the ratio of 1:1 based on Justice Khalid Commission Report. 1455 candidates who completed apprentice training in TANGEDCO with ITI qualification were called for interview. Out of 15015 candidates, 10,728 attended the interview and 10,357 were found to be eligible. 351 candidates were rejected as they did not possess the ITI Electrician/ Wireman Trade qualification, apart from not possessing National Trade Certificate (NTC) issued by the National Council for Vocational Training, New Delhi (NCVT).

4000 ITI Helpers (Trainee) were selected in terms of the Government Order in G.O.Ms. No. 65 personnel and Administrative Reforms (Personnel) Department dated 27.05.2009 and the appointment orders were consequently issued to the selected candidates. Candidates who were not selected approached the Madras High Court in a batch of writ petitions with their main grievance that TANGEDCO acted arbitrarily and against law by introducing viva-voce test which was resolved not to follow and the same amounted to changing the rules of the game after its commencement. The TANGEDCO resisted the same and contented that the selection procedure is in accordance with Per.B.P. (FB) No. 40 dated 14.12.2005 and the Tamil Nadu Electricity Board, Administrative Bench Memo No. 100459/265/G.57/G.572/2007 dates 03.02.2009.

The Legal Scenario

The Single Judge of the Honourable Madras High Court reasoned that the guidelines of 2005 had been followed previously; they were in accord with the Khalid Commission Report and that testing physical fitness was a part of the job requirement. It was further held that the candidates had willingly participated in the written test and interview, and therefore, could not allege arbitrariness. The Single Judge by a common judgment dated 04.12.2014, dismissed the writ petitions and the petitioners appealed to the Division Bench. Other unsuccessful candidates, who had not approached by filing the writ petitions, did so later on. The appeals against the single judge’s order, as well as the fresh writ petitions, were taken up by the Division Bench. Before the Division Bench, TANGEDCO indicated a willingness to accommodate all the writ petitioners. This resulted in a compromise between the parties.

The above compromise became the basis of a direction by the Division Bench which required the appellants and petitioners before it, to be offered employment. The order of the Division Bench in W.A. No. 81/2015 and batch of cases dated 14.10.2015, thus did not decide the lis or the dispute, on its merits; it merely recorded the terms of the compromise and directed TANGEDCO to recruit the appellants/ petitioners.

After the compromise order, several other unsuccessful candidates approached the High Court, claiming parity with the petitioners and appellants, who were parties to, and had benefitted from the order. A Single Judge dismissed several of those writ petitions holding that such candidates cannot avail benefit of the compromise other and in another set of writ petitions, however, the Single Judge allowed the claims which led to TANGEDCO’s appeal before the Division Bench. By its common judgment and order dated 02.08.2018 the candidates’ appeals were dismissed and TANGEDCO’s appeals were allowed and in the second set of appeals by TANGEDCO, it was directed against the order which required it to offer employment to similarly placed candidates who had not approached the court earlier, but filed writ petitions in 2016, 2017 and 2018.

Findings of the Court

The Honourable Supreme Court of India observed that

“A feature that stares at the face of the record before this court, is that the Division Bench, in its compromise order, proceeded to accept the terms proposed by the parties. The Court did not examine – at least its order does not disclose any such consideration – the merits of the case, and why such proposal was justified in the facts of the case….. However, it is altogether another thing for a public employer, whose conduct is questioned, and who has succeeded on the merits of the case before the lower forum (in this case, the single judge) to voluntarily agree, in an unreasoned manner, to a compromise. The harm and deleterious effect of such conduct is to prioritize the claim of those before the court, when it is apparent that a large body of others, waiting with a similar grievance (and some of whom probably have a better or legitimate claim on merits to be appointed) are not parties to the proceedings. In such cases, a compromise is not only unjustified, it is contrary to law and public interest.” (Para 20)

A principle, axiomatic in this country’s constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. (Para 24) This principle is adopted by the Honourable Court in deciding the case at hand.

The Court stated that

“It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders of the tribunal and the court were based on merits adjudication, and not based on concession; certainly not based on compromise. It was in the background of such facts that denial of relief to similarly situated claims, was held to be unjustified. Most importantly, for the purpose of this case, the court carved out an exception: that subsequent litigants, wishing to benefit from orders made in others’ cases, had to approach the courts in time, without delay or laches. In the facts of this case, there is no question of any finality to the compromise order: it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the aggrieved appellants, and the contesting candidates (in TANGEDCO’s appeal) did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order.” (Para 23)

In the view of the foregoing, it is held that the aggrieved appellants, and the respondent applicants (in TANGEDCO’s appeal) could not claim the benefit of parity; their writ petitions were founded on the compromise order, which cannot be justified in law. The appeals of the aggrieved appellants, against the judgment and order of the Division Bench of the Madras High Court dated 02.08.2018, has to fail, it is accordingly dismissed. For the same reasons, TANGEDCO’s appeals, (against the order of 29.04.2019 of the Madras High Court in Writ Appeal Nos. 1071, 1072 of 2016, Writ Petition Nos. 8150, 10266, 10267, 17997, 17998, 29113, 29114, 29115, 29116, 33743, 33744, 33745, 39292, 39673, 41609, 41610 of 2016 and Writ Petition Nos. 13948, 13949, 13950, 13951, 13952, 13953, of 2017, Writ Petition Nos. 1808, 18576, 18624 of 2018) succeed and are allowed. In the circumstances of this case, there shall be no order as to costs.

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Cases Referred

1. State of Uttar Pradesh and Others v. Aravind Kumar Srivastava and Others, (2015) 1 SCC 347.

2. C. Channabasavaiah v. State of Mysore, 1965 (1) SCR 360.

3. Ahmedabad Municipal Corporation and Others v. Rajubhai Somabhai Bharwad and Others, 2015 (7) SCC 663.

4. Basawaraj and Another v. Special Land Acquisition Officer, (2013) 14 SCC 81.

5. Chandigarh Administration v. Jagit Singh, (1995) 1 SCC 745.

6. Anand Buttons Limited v. State of Haryana (2005) 9 SCC 164.

7. K.K. Bhalla v. State of M.P, (2006) 3 SCC 581.

8. Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.

9. Chaman Lal v. State of Punjab, (2014) 15 SCC 715.

10. The State of Odisha v. Anup Kumar Senapati, 2019 SCC Online SC 1207.