REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1144 OF 2022

(ARISING OUT OF SLP (C) NO. 19059 OF 2019)

R. MUTHUKUMAR & ORS. ...APPELLANT(S)

VERSUS

THE CHAIRMAN AND MANAGING DIRECTOR TANGEDCO & ORS.

...RESPONDENT(S)

WITH

CIVIL APPEAL NOS.1145-1155 OF 2022

(ARISING OUT OF SLP (C) NOS. 15629-15639/2019)

AND

CIVIL APPEAL NOS.1156-1179 OF 2022

(ARISING OUT OF SLP (C) NOS. 22044-22067/2019)

AND

CIVIL APPEAL NOS.1180-1187 OF 2022

(ARISING OUT OF SLP (C) NOS. 22036-22043/2019)

AND

CIVIL APPEAL NOS. 1188-1214 OF 2022

(ARISING OUT OF SLP (C) NOS. 3183-3209/2020)

Digitally signed by

Rajni Mukhi

Date: 2022.02.07

18:58:06 IST

Reason:

Signature Not Verified

ORDER

S. RAVINDRA BHAT, J.

1. Special leave granted. With consent of counsel for parties, these appeals were

heard finally. The appellants (hereby also referred to as “the aggrieved candidates”)

in four sets of appeals

are aggrieved by a common judgment and order dated

02.08.2018 of the Division Bench of the Madras High Court. In another appeal

the

management of Tamil Nadu Generation and Distribution Corporation Ltd. (hereafter

“TANGEDCO”) is aggrieved by another judgment of the said High Court, whereby it

was directed to appoint the respondents (writ petitioners who had approached the

court, hereby called “respondent applicants”) as ITI Helpers based on a previous

order dated 14.10.2015 in W.A. No. 81/2015.

Brief facts

2. In proceedings before this court

, orders were issued appointing late Mr. Justice

Khalid, a former Judge of this court, to consider and recommend better methods for

filling up of vacancies by accommodating existing workers on the one hand, and

skilled workers on the other. Justice Khalid’s report stated, inter alia, that:

"110. How to select the remaining workers and where to place the ITI workers is the

next question to be answered. Throughout my report, I have emphasized the fact that

my function is to evolve a workable method to accommodate the existing workers

without seriously affecting the Board's decisions and activities. It is not my intention

to completely ignore the skilled helpers. They should find a place in the scheme of

common judgment and order dated 02.08.2018 (in WA No.574/2017; WA Nos. 1450/ 2017, 1452/ 2017, and 1454-1462/

2017; W.P. Nos. 36656/ 2016, 36658/ 2016, 36890/ 2016, 42792-94/2016, 39782-85/ 2016, 42613-14/ 2016, 35135-37/

2016, 35926-30/ 2016, 35932-35/ 2016; WA Nos.990/ 2016 and WA Nos. 1696-1702/ 2018), delivered by the Madras

High Court.

Arising from SLP(C) 3183-3209/2020 (directed against a common judgment dated 29.04.2019 of the Madras High

Court in Writ Appeal Nos. 1071, 1072 of 2016, Writ Petition Nos. 8150,10266, 10267, l7997, 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.

S.L.P. No. 1820/1990

things. 7,000 ITI helpers have already been recruited. Others are waiting. The

Supreme Court has appointed me to give a final decision which shall be binding on

the parties. It is therefore necessary in the interests of fair play and justice that I take

into account the claims of not only the existing workers but also the skilled workers

who are not before me. After giving my anxious consideration, I decide that after the

issue of appointment orders to 7,000 existing workers, the Board shall thereafter

appoint the remaining existing workers from the lists and skilled workers in the ratios

of 1:1. The existing workers will be selected by the Selection Committee and the ITI

helpers by the Board."

3. Acting in compliance with the report, 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. The proceeding dated 12.07.2012 reads, inter alia, as follows:

"2. Accordingly, the TANGEDCO hereby approved the following orders:

a) 4000 ITI Helper (Trainee) with NTC/NAC (ITI) qualification in the trade of

Electrician and Wireman be appointed by Direct Recruitment through Employment

Exchange, to minimize the large number of Helper vacancies in TANGEDCO. The

4000 ITI Helper (Trainee) will be given 2 years training with the consolidated pay of

Rs.3250/- per month and after completion of training they will come under the

regular pay band of Rs.5400-20200 - 1900 (Grade Pay)

b) Considering the large number of persons to be recruited within the short span of

time and that the fact the recruitment is for the lowest level category in TANGEDCO,

the Board directs that there may not be any need for interview excepting for testing

their job fitness criteria. Hence, the TANGEDCO directs that a list may be drawn

from the employment exchanges and all eligible candidates subject to their physical

fitness required for the job specification, be recruited duly following other rules and

regulations in force, so as to improve field level performance of the TANGEDCO."

4. Some writ petitions

were preferred for a direction to relax the upper age limit

while filling 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. The court was of the opinion that since the

vacancies had existed for long, and an abortive attempt was made earlier to fill them,

it was in the interests of justice that TANGEDCO should relax the upper age limit.

W.P. Nos. 24128/ 2012.

Accordingly, by the common order dated 01.11.2012, TANGEDCO was directed “to

relax the upper age limit for these I.T.I. Trade Certificate Holders so far as the

current selection is concerned.”

5. By an order/proceedings dated 04.07.2013, TANGEDCO relaxed the upper age

limit for the on-going selection process in relation to the said 4000 vacancies of ITI

Helper (Trainee). 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. Another order of this 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. No

marks were given to the candidates who had undergone apprenticeship training by

way of preference for selection. Accordingly, an advertisement was given in two

daily newspapers for apprenticeship candidates to enrol their names for the purpose

of attending the interview. In the said decision, Apprentices/Trainees were exempted

from the requirement of having to appear in the written examination as they had

acquired training under the same management. However, they had to go through the

process of viva-voce test. The preference was exercisable "when other things being

equal", over direct recruits. Consequently apprentice-trainees had no right per se, for

appointment as a matter of course.

6. The Employment Exchange concerned sponsored about 13560 ITI candidates,

of which only the qualified candidates were called for interview. TANGEDCO, by

proceedings (No. 15), dated 04.07.2013, directed as follows:

"A list may be drawn from the Employment Exchange and all eligible Candidates

subject to their physical fitness required for the job specification be recruited duly

following other rules and regulations in force."

In C.A. Nos. 5285-5328/1996 dated 03.10.1996.

7. Candidates who appeared for interview were evaluated with 85% weightage

for academic marks and 15% towards performance in viva-voce/interview. The

process of 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 in terms of

G.O.Ms. No. 18, Labour and Employment (N2) Department dated 25.02.2008, by

which the list of ITI qualified candidates were called for, from the Employment

Exchange. The candidates were required to have the qualification of ITI (NTC/NAC).

Appointments by direct recruitment were resorted to by following the ratio of 1:1,in

terms of the Justice Khalid Commission Report, as between contract workers and

qualified ITI holders. 1455 candidates - who had completed one years’ apprentice

training in TANGEDCO with ITI qualification - were called for the interview. Among

15015 candidates, 10,728 candidates attended the interview. On scrutiny, based on

their ITI/National Trade Certificate, 10357 candidates were found to be eligible and

351 candidates, rejected as ineligible since 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).

8. 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. Appointment orders were consequently issued to the selected

candidates. Their selection was based on marks scored by such candidates in ITI

National Trade Certificate/National Apprenticeship Certificate (85% weightage), and

interview marks (15% weightage). The appointments also adhered to the relevant

prescribed reservation ratios and roster. The selection combined eligible candidates

sponsored by the Employment Exchange as well as Apprenticeship candidates.

9. Candidates who were not selected approached the Madras High Court, in a

batch of writ petitions.

Their main grievance was that TANGEDCO acted contrary to

law, and arbitrarily, by introducing a viva-voce test, which it had in the first instance,

resolved not to follow. It was urged, in this regard, that introduction of interview/viva

W.P. Nos. 8829, 9125, 9126, 9319, 9923, 9927, 10589, 10598, 11785, 12003, 12004, 15512, 15636 & 15873/ 2014: S.

Vijayakumar vs. Tamil Nadu Generation and Distribution Corporation Limited.

voce amounted to changing the rules of the game after its commencement.

TANGEDCO resisted the petitions, contending that conduct of interview/viva voce

was not arbitrary. It urged that interview was conducted for assessing the candidates’

physical fitness, and was done in relation to the job requirements. TANGEDCO said

that the procedure was followed in all recruitments from 2005 onwards. In terms of

its proceedings in Per.B.P.(FB) No. 40, dated 14.12.2005 and the Tamil Nadu

Electricity Board, Administrative Branch Memo No. 100459/265/G.57/G.572/2007

dated 03.02.2009, guidelines for the process of recruitment required viva voce; the

extract of those guidelines are as follows:

"3) The following guidelines may be adopted in the interview.

a) Verification of ITI qualification NTC/NAC Certificates in the field of Electrician

and Wireman Trade.

b) Verification of Transfer Certificate for proof of age.

c) Proficiency test in Cycling and Pole Climbing.

d) Weightage may be given for those with 2 Wheeler licence.

e) Weightage may be given to those who are already engaged as Contract Labourers

in the Board, if sponsored by the Employment Exchange."

The single judge who heard the writ petitions, 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, which

TANGEDCO was competent to insist. It was further held that the candidates had

willingly participated in the written test and interview, and therefore, could not allege

arbitrariness. On the strength of this reasoning, the single judge, by a common

judgment

, dismissed the writ petitions. The unsuccessful candidates appealed to the

Division Bench. Other unsuccessful candidates, who had not approached by filing

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.

10. Before the Division Bench, TANGEDCO indicated a willingness to

accommodate all the writ petitioners. This resulted in a compromise between the

parties. The terms of the compromise are extracted below:

Dated 04.12.2014

"MEMO OF COMPROMISE

The Appellants and petitioners filed writ petitions in W.P. Nos. 9125, 9126, 9319,

9923, 9927, 10589, 10598, 11785, 12003, 12004, 15512, 15636 and 15873 of 2014

challenging the selection process to the post of 4000 ITI Helpers recruited by the

TANGEDCO Per (Per.) FB (TANGEDCO) Proceedings No. 14, dated 12.07.2012 and

the same were dismissed by the learned single Judge by an order dated 04.12.2014.

Aggrieved by the same the Appellants have filed the above Writ Appeals in W.A. Nos.

81, 193, 194, 195, 196, 197, 1018, 1019, 1020, 1021, 1022, 1023 and 1301 of 2015.

Further abovesaid three writ petitions in W.P. No. 22095, 33097 & 33098 of 2014,

challenging the same selection of ITI Helper (Trainee) came up for admission and

this Hon'ble court has directed the registry to post the same along with the batch of

cases in W.P. No. 9125 of 2014 etc., But the said writ petitions were not posted along

with W.P. No. 9125 of 2014 etc., batch cases during final hearing and the same are

pending and now posted along with the above writ appeals.

The above first writ appeal came up for hearing before this Hon'ble court on several

occasions and finally on 02.09.2015 and in view of the judgement of the Apex court,

the respondents corporation accepted the proposals of the Appellants and Petitioners

numbering 84 who have filed the Writ Appeals/Writ Petitions before this Hon'ble

court challenging the ITI Helper (Trainee) and have stated that they will be

accommodated in the post of ITI Helper (Trainee) in the 1st & 2nd respondents

corporation under the following

TERMS AND CONDITIONS

1. The respondent corporation and the appellants & petitioners mutually agreed that

the respondent corporation shall appoint the Appellants and Petitioners in the post of

ITI Helper (Trainee) in TANGEDCO Service within a time frame fixed by this

Hon'ble court.

2. The respondent corporation and the appellants & petitioners mutually agreed that

the appointment to the appellants and petitioners shall be given only after

verification of the original certificates.

3. The respondent corporation and the appellants & petitioners mutually agreed that

the Appellants and petitioners shall be appointed in the post of ITI Helper (Trainee)

on production of original certified copy of the judgment of the Hon'ble court along

with covering letter affixing the concerned appellant/Petitioner photograph from the

counsel on record in order to avoid any impersonation and future litigation. No

request for seniority, service & other benefits will be entertained.

4. As per the respondent corporation's request, this order will not apply to the

persons, who did not approach this Hon'ble court in time challenging the selection

process and that this compromise cannot be treated as a precedent as this order is

binding as between the parties on the basis of the consensus reached.

5. The respondent corporation and the appellants & petitioners mutually agreed to

bear their respective cost in the above cases."

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

(hereafter “the compromise order”), 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. The compromise order

reads as follows:

“3. Having considered the facts and circumstances of the case and the submissions

made by both the learned counsel, we find it just and reasonable to pass orders in

terms of memo of compromise.

4. In view of the joint memo of compromise filed by both the parties, all these appeals

and petitions are disposed of in terms of the compromise memo. The memo of

compromise shall form part of the judgment and we direct the respondents 1 and 2 to

comply with the stipulations in the memo of compromise within a period of six weeks

from the date of receipt of a copy of this order. No order as to costs.

Consequently, connected MPs are closed.”

11. 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 benefited from the order. A single judge dismissed several of those writ

petitions, holding that such candidates could not avail the benefit of the compromise

order. In another set of writ petitions, however, the single judge allowed the claims;

this led to TANGEDCO’s appeal before the Division Bench. By its common

judgment and order dated 02.08.2018 (the first set of appeals herein)

the candidates’

appeals were dismissed and TANGEDCO’s appeals

were allowed. The first set of

appeals by aggrieved candidates is directed against that common order. The second

set of appeals, by TANGEDCO, is 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.

Contentions of the aggrieved appellants

In W.A. No. 81/ 2015 and batch of cases dated 14.10.2015.

In W.A. Nos. 574/ 2017, 990/ 2016 and 1696-1702/2018.

W.A. Nos. 1450-1462/ 2017.

12. On behalf of the aggrieved appellants, Mr. Gautam Narayan, and Mr. T.B.

Sivakumar, learned counsels urged that TANGEDCO acted unfairly and in a

discriminatory manner, in refusing to employ those who were not parties in the

proceedings that led to the compromise order. It was highlighted that in terms of

performance, the aggrieved candidates might well have secured better ranking than

those 84 unsuccessful candidates who were offered employment, by the compromise

order.

13. The aggrieved appellants urge that there is no distinction between them and

those who were offered employment under the compromise order. It was submitted

that the only difference- and wholly immaterial one, is that the other candidates had

approached the court earlier. Counsel submitted that the initiation of litigation cannot

be the basis of any intelligible, or indeed legitimate differentia, as is sought to be

projected by TANGEDCO. Once it decided to offer employment to unsuccessful

candidates, despite their alleged poor performance in the interview, that policy

decision had to be implemented fairly and evenly. Restricting the benefit of

employment to those who approached the court earlier, amounted to a violation of

Article 14 of the Constitution.

14. It was further argued by the aggrieved appellants, that TANGEDCO did not

fill the vacancies in question for an inordinately long period. The ratio of 1:1

prescribed by the Khalid Commission also meant that timely recruitment had to be

undertaken. The appellants were placed at a disadvantage; some of them had to

approach the court earlier, to challenge TANGEDCO’s refusal to grant relaxation of

the upper age limit. That relief granted, TANGEDCO resorted to recruitment by

introducing the alien procedure of interview, which it had committed earlier to not

following. Counsel relied on the decision of this court, in State of Uttar Pradesh &

Ors. v. Aravind Kumar Srivastava & others

where it was held that a public employer

is bound to extend non-discriminatory treatment to all candidates, regardless of

(2015) 1 SCC 347

whether they approach the court or not, and offer employment to similarly situated

candidates and employees.

TANGEDCO’s arguments

15. TANGEDCO, which was represented by Mr. Joydeep Gupta, learned senior

counsel, submitted that the compromise order was not based on the merits of the case.

The Division Bench merely followed the compromise memo, and embodied it in its

order. Thus, the order could not have any precedential value; it was binding only on

the parties, and not those who had not approached the court. It was submitted that

though interviews were conducted in 2013 and the present appellants’ candidature

was rejected, they waited till the compromise order, and then approached the court

belatedly.

16. It was urged that the compromise order was based on an aberration, because

TANGEDCO was bound to appoint only those candidates who were successful. It

could not have conceded and issued appointment to the 84 candidates. That error

could not be the basis for a mandamus or direction in a later case. Counsel stressed

that courts can only grant relief, based on legal provisions and their application of the

concerned laws and rules. In the present case, the compromise order was not based on

any rule or law, but on a mere concession. It did not have any precedential value. Mr

Gupta stressed upon the fact that the compromise order was not one in rem; thus, it

was devoid of any legal basis. The rejection of the appellants’ representation, which

was purely based on the compromise order, was justified.

17. Counsel urged that unless it is shown that the concession made before the court

was based on merit, and the court upon its independent consideration, was satisfied

that such concession was justified, such an order could not be the basis to compel a

public employer to extend identical relief. It was also urged that this court has held in

numerous decisions that a wrong committed on the basis of a wrong order, cannot

compel the performance of an act which is not justified in law: there is no question of

parity or negative equality.

Analysis and conclusions

18. The facts of this case show that the advertisement or notification, calling for

eligible candidates, to apply for the post of Helper/trainee was issued in 2012. The

first round of litigation, as it were, was initiated on the ground that TANGEDCO

wrongly denied relaxation of upper age limit (to apply, for the candidates). This

grievance was held to be justified; the High Court directed grant of such exemption,

which TANGEDCO in turn, complied. When the recruitment process started,

TANGEDCO clarified that it would conduct an interview, for which it proposed to

grant 15% weightage. Candidates including the present appellants, and respondent

applicants, participated. Those eligible, and found to be suitable on a combined

assessment of the marks obtained and the viva voce, were appointed. Now, for the

first time, some unsuccessful candidates approached the High Court. The single judge

rejected their writ petitions. The candidates appealed; others who had not filed writ

petitions in the court, did so, at that stage (in 2015). The Division Bench, by its

compromise order dated 14.10.2015, purely based on the compromise terms between

the aggrieved candidates and TANGEDCO, directed appointment of 84 persons. The

compromise order was not based on the merits, nor based on an independent

assessment of the merits of the case.

19. The present aggrieved candidates and several others sought piggyback on the

basis of the compromise order, arguing that they were similarly situated. They

approached the High Court, from 2016 onwards. These aggrieved candidates’

petitions were rejected, and their claim for parity was turned down. They are now

here before this court. Another set of candidates was more successful; their petitions

were allowed; TANGEDCO is here before this court, in its appeal.

20. 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. It is one thing for a public employer, to concede in the course of

proceedings, to an argument, which it had hitherto clung to, but was untenable.

Fairness demands that public bodies, as model employers, do not pursue untenable

submissions. In such cases, a concession, which is based on law, and accords to a just

interpretation of the concerned law and/or rules, is sustainable. 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.

21. This court, many years ago, in C. Channabasavaiah v. State of Mysore

faced

a somewhat analogous situation. In that case, the state government had appointed

sixteen persons pursuant to a compromise, which invited a charge of unfairness by it,

from others who did not secure such a benefit. The court held that:

"1. By a notification dated September 26, 1959, the Mysore Public Service

Commission announced that a competitive examination would be held for direct

recruitment for Class I and Class II posts relating to certain Administrative Services

and numerous applicants including the petitioners themselves as candidates. On

September 5, 1960, the Public Service Commission modified the earlier notification

and instead of holding an examination announced that the selection would be made

solely on the results of a viva voce test. The petitioners characterised this change as

opposed to the Mysore Administrative Service Recruitment Rules, 1957 but during the

hearing of these petitions this ground of attack was abandoned perhaps in view of

what happened later.

2. The Public Service Commission duly held the viva voce interviews and on July 29,

1961 they published a list of ninety-eight candidates who they announced were

selected. After the announcement of the results the State Government sent for the

consideration of the Commission a list of twenty-four candidates and as the

Commission approved of them they were also appointed on March 7, 1962. In giving

their concurrence the Commission purported to take power from a foot-note added to

sub-rule (3) of r. 4 of the Mysore Public Service Commission (Functions) Rules, 1957.

Sixteen candidates, who were not selected, filed petitions under Articles 14, 15 and

1965 (1) SCR 360

16 of the Constitution in the High Court of Mysore. On November 26, 1962 there was

a compromise and the Government undertook to appoint the petitioners before the

High Court. Of these thirteen had attended the viva voce test but three had not been

called for it. In this way there were three sets of appointments: the first of ninety-eight

candidates, the second of twenty-four candidates and the third of sixteen candidates.

There were in all 1,777 applicants who were called for the viva voce test. A very large

number of the applicants was not called for the test and the High Court of Mysore in

the petition of the three petitioners who had not been called for the viva voce test

directed the Commission to call them and the Commission then called 203 candidates

who were in the same category as the three petitioners in the High Court. It may be

pointed out that at the first viva voce test eighty-eight candidates and at the second

test ten candidates were selected, thus making the total number ninety-eight.

3. Encouraged by what had happened to those who had petitioned to the High Court,

the other candidates who had not succeeded applied for writs under Articles 14, 15

and 16 of the Constitution. Their petitions were summarily dismissed by the High

Court.

********* ********* ******

9. Taking the case of the sixteen candidates first, it appears to us, that since most of

these candidates had obtained fewer marks than some of the rejected candidates it is

impossible to sustain their selection. To begin with it was wrong of the High Court to

allow a compromise of this kind to be effected when it was patently obvious that three

candidates had not attended the viva voce test at all and there was nothing before the

High Court for comparing the remaining thirteen candidates with those who had

failed in the selection. There were allegations of nepotism which had not been

abandoned and find now that most of these candidates do not rank as high as some of

the rejected candidates. In such a case the court should be slow to accept

compromises unless it is made clear that what is being done dose not prejudice

anybody else. To act otherwise opens the court itself to the charge that it did

something just as bad as what was complained against. In our opinion, the

appointment of these sixteen candidates cannot be accepted and the petitioners are

entitled to claim that their marks should be compared with those obtained by the

petitioners and the selection made on merit and merit alone. For this purpose, of

course, the three candidates who were not called for the test would have to be called

and marks given to them. Otherwise they cannot be considered at all.”

In a more recent judgment, Ahmedabad Municipal Corporation & Ors. v. Rajubhai

Somabhai Bharwad & Ors.

the question was whether a sarpanch could enter into a

compromise and agree to take back an employee. This court decisively held that such

a compromise was not legal:

“17. The purpose of our referring to the same is that the parliament by the

Constitutional amendment required the State Legislature to bring their State laws in

conformity with Part IX of the Constitution, Power has been conferred on the

Panchayats so that they are able to function as an institution of self-Government. The

State Legislature has also been empowered to make provisions by which powers are

2015 (7) SCC 663

given to the Gram Panchayats. Once responsibility is given they are to be carried out

with sanguine responsibility. A Sarpanch, as we perceive in this case, by entering into

a settlement has not only acted contrary to the provisions of the Act and but also the

spirit of the responsibility cast on the local self-Government.

18. In this context, we cannot be oblivious of a very significant facet. The Labour

Court as we find in a single line order has accepted the settlement and has not made

any endeavour to even find out whether the Sarpanch was authorised with any kind of

resolution to enter into compromise/settlement by the village panchayat. He should

have borne in mind that it is not the Sarpanch who was the employer; that much of

scrutiny was required on the part of the Labour Court. It will not be a hyperbole if it

is said that it is the bounden duty on the part of the presiding officer of the Labour

Court to do so and we say so without any hesitation, for court has a sacred duty to

scrutinize whether a valid compromise has been entered into or not. He has to be

satisfied that the compromise is lawful.

19. In view of the aforesaid analysis, we allow the appeals set aside the order passed

by the learned Single Judge and that of the Labour Court and remit the matter to the

Labour Court for fresh adjudication.”

22. The lynchpin of the appellant’s submission was their reliance on Aravind

Kumar Srivastava (supra). In that case, this court after reviewing several cases cited

by the parties, had summarized the correct approach in matters where concession-

based orders could (or could not) be treated as precedent:

“23. The legal principles which emerge from the reading of the aforesaid judgments,

cited both by the Appellants as well as the Respondents, can be summed up as under:

(1) Normal rule is that when a particular set of employees is given relief by the

Court, all other identically situated persons need to be treated alike by extending that

benefit. Not doing so would amount to discrimination and would be violative of

Article 14 of the Constitution of India. This principle needs to be applied in service

matters more emphatically as the service jurisprudence evolved by this Court from

time to time postulates that all similarly situated persons should be treated similarly.

Therefore, the normal rule would be that merely because other similarly situated

persons did not approach the Court earlier, they are not to be treated differently.

(2) However, this principle is subject to well recognized exceptions in the form of

laches and delays as well as acquiescence. Those persons who did not challenge the

wrongful action in their cases and acquiesced into the same and woke up after long

delay only because of the reason that their counterparts who had approached the

Court earlier in time succeeded in their efforts, then such employees cannot claim

that the benefit of the judgment rendered in the case of similarly situated persons be

extended to them. They would be treated as fence-sitters and laches and delays,

and/or the acquiescence, would be a valid ground to dismiss their claim.

(3) However, this exception may not apply in those cases where the judgment

pronounced by the Court was judgment in rem with intention to give benefit to all

similarly situated persons, whether they approached the Court or not. With such a

pronouncement the obligation is cast upon the authorities to itself extend the benefit

thereof to all similarly situated person. Such a situation can occur when the subject

matter of the decision touches upon the policy matters, like scheme of regularisation

and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand,

if the judgment of the Court was in personam holding that benefit of the said

judgment shall accrue to the parties before the Court and such an intention is stated

expressly in the judgment or it can be impliedly found out from the tenor and

language of the judgment, those who want to get the benefit of the said judgment

extended to them shall have to satisfy that their petition does not suffer from either

laches and delays or acquiescence.”

Before discussing the ratio of the judgment, it would be useful to extract the factual

context from which the dispute arose:

“9. The moot question which requires determination is as to whether in the given

case, approach of the Tribunal and the High Court was correct in extending the

benefit of earlier judgment of the Tribunal, which had attained finality as it was

affirmed till the Supreme Court. Whereas the Appellants contend that the

Respondents herein did not approach the Court in time and were fence-sitters and,

therefore, not entitled to the benefit of the said judgment by approaching the judicial

forum belatedly. They also plead some distinguishing features on the basis of which it

is contended that the case of the Respondents herein is not at par with the matter

which was dealt with by the Tribunal in which order dated June 22, 1987 were passed

giving benefit to those candidates who had approached the Court at that time.”

23. 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.

24. 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. In Basawaraj & Anr.

v. Special Land Acquisition Officer

, this court ruled that:

“8. It is a settled legal proposition that Article 14 of the Constitution is not meant to

perpetuate illegality or fraud, even by extending the wrong decisions made in other

cases. The said provision does not envisage negative equality but has only a positive

aspect. Thus, if some other similarly situated persons have been granted some

relief/benefit inadvertently or by mistake, such an order does not confer any legal right

on others to get the same relief as well. If a wrong is committed in an earlier case, it

cannot be perpetuated.”

Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v.

Jagjit Singh

, Anand Buttons Ltd. v State of Haryana

, K.K. Bhalla v. State of

M.P.

; Fuljit Kaur v. State of Punjab

, and Chaman Lal v. State of Punjab

Recently, in The State of Odisha v. Anup Kumar Senapati

this court observed as

follows:

“If an illegality and irregularity has been committed in favour of an individual or a

group of individuals or a wrong order has been passed by a judicial forum, others

cannot invoke the jurisdiction of the higher or superior court for repeating or

multiplying the same irregularity or illegality or for passing a similarly wrong order.

A wrong order/decision in favour of any particular party does not entitle any other

party to claim benefits on the basis of the wrong decision.”

25. In 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

(2013) 14 SCC 81

(1995) 1 SCC 745

(2005) 9 SCC 164

(2006) 3 SCC 581

(2010) 11 SCC 455

(2014) 15 SCC 715

2019 SCC Online SC 1207

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, l7997, 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.

.......................................................J

[UDAY UMESH LALIT]

.......................................................J

[S. RAVINDRA BHAT]

.......................................................J

[BELA. M. TRIVEDI]

New Delhi,

February 07, 2022.