R. MUTHUKUMAR & ORS. versus THE CHAIRMAN AND MANAGING DIRECTOR TANGEDCO & ORS. on 7 February 2022

1. Special leave granted. With consent of counsel for parties, theseappeals were heard finally. The appellants (hereby also referred to as“the aggrieved candidates”) in four sets of appeals[1] are aggrieved by acommon judgment and order dated 02.08.2018 of the Division Bench ofthe Madras High Court. In another appeal[2] the management of TamilNadu 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 whohad approached the court, hereby called “respondent applicants”) asITI Helpers based on a previous order dated 14.10.2015 in W.A. No.81/2015.

Brief facts

Brief facts

2. In proceedings before this court[3], orders were issued appointinglate Mr. Justice Khalid, a former Judge of this court, to consider andrecommend better methods for filling up of vacancies by accommodatingexisting workers on the one hand, and skilled workers on the other. JusticeKhalid’s report stated, inter alia, that:

“110. How to select the remaining workers and where to placethe ITI workers is the next question to be answered.Throughout my report, I have emphasized the fact that myfunction is to evolve a workable method to accommodate theexisting workers without seriously affecting the Board’sdecisions and activities. It is not my intention to completelyignore the skilled helpers. They should find a place in thescheme of things. 7,000 ITI helpers have already been 1 SLP(C) 19059/2019; SLP(C) 15629-39/2019; SLP(C) 22044-67/2019 and SLP(C)22036-43/2019 – directed against a common judgment and order dated 02.08.2018 (inWA 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 WANos. 1696-1702/ 2018), delivered by the Madras High Court.

2 Arising from SLP(C) 3183-3209/2020 (directed against a common judgment dated29.04.2019 of the Madras High Court in Writ Appeal Nos. 1071, 1072 of 2016, WritPetition Nos. 8150,10266, 10267, l7997, 17998, 29113, 29114, 29115, 29116, 33743,33744, 33745, 39292, 39673, 41609, 41610 of 2016, and Writ Petition Nos. 1394813949, 13950, 13951, 13952, 13953, of 2017, Writ Petition Nos. 1808, 18576, 18624of 2018.

3 S.L.P. No. 1820/1990

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Arecruited. Others are waiting. The Supreme Court hasappointed me to give a final decision which shall be bindingon the parties. It is therefore necessary in the interests of fairplay and justice that I take into account the claims of notonly the existing workers but also the skilled workers whoare not before me. After giving my anxious consideration, IBdecide that after the issue of appointment orders to 7,000existing workers, the Board shall thereafter appoint theremaining existing workers from the lists and skilled workersin the ratios of 1:1. The existing workers will be selected bythe Selection Committee and the ITI helpers by the Board.”

C3. Acting in compliance with the report, TANGEDCO, by orderdated 12.07.2012 called applications to fill up 4000 ITI Helper (Trainee)vacancies, by direct recruitment through Employment Exchange. Anotification was sent to the Commissioner, Employment Exchange, Guindy,to sponsor ITI Candidates in each category, according to their ratio withDthe Trade of Electrician and Wireman in the ratio of 1:5. The proceedingdated 12.07.2012 reads, inter alia, as follows:

“2. Accordingly, the TANGEDCO hereby approved thefollowing orders:

a) 4000 ITI Helper (Trainee) with NTC/NAC (ITI) qualificationEin the trade of Electrician and Wireman be appointed byDirect Recruitment through Employment Exchange, to minimizethe large number of Helper vacancies in TANGEDCO. The4000 ITI Helper (Trainee) will be given 2 years training withthe consolidated pay of Rs.3250/- per month and afterFcompletion of training they will come under the regular payband of Rs.5400-20200 - 1900 (Grade Pay)

b) Considering the large number of persons to be recruitedwithin the short span of time and that the fact the recruitmentis for the lowest level category in TANGEDCO, the BoardGdirects that there may not be any need for interview exceptingfor testing their job fitness criteria. Hence, the TANGEDCOdirects that a list may be drawn from the employmentexchanges and all eligible candidates subject to their physicalfitness required for the job specification, be recruited dulyfollowing other rules and regulations in force, so as to improveHfield level performance of the TANGEDCO.”

4. Some writ petitions[4] were preferred for a direction to relax theupper age limit while filling up the vacancies to the post of ITI Helper(Trainee) in TANGEDCO by direct recruitment. These writ petitionswere disposed of by the Madras High Court by a common order dated01.11.2012. The court was of the opinion that since the vacancies hadexisted for long, and an abortive attempt was made earlier to fill them, itwas in the interests of justice that TANGEDCO should relax the upperage limit. Accordingly, by the common order dated 01.11.2012,TANGEDCO was directed “to relax the upper age limit for theseI.T.I. Trade Certificate Holders so far as the current selection isconcerned.”

5. By an order/proceedings dated 04.07.2013, TANGEDCOrelaxed the upper age limit for the on-going selection process in relationto the said 4000 vacancies of ITI Helper (Trainee). As a result, a listwas drawn from the Employment Exchange and the selection was subjectto physical fitness required for job, and fulfilment of other requisitecriteria. Another order of this court[5] had directed grant of preference bycalling candidates who have undergone apprenticeship training in theTamil Nadu Electricity Board to attend only the interview for the post ofITI Helper (Trainee) along with the other candidates sponsored throughthe Employment Exchange. No marks were given to the candidateswho had undergone apprenticeship training by way of preference forselection. Accordingly, an advertisement was given in two dailynewspapers for apprenticeship candidates to enrol their names for thepurpose of attending the interview. In the said decision, Apprentices/Trainees were exempted from the requirement of having to appear inthe written examination as they had acquired training under the samemanagement. However, they had to go through the process of viva-voce test. The preference was exercisable “when other things beingequal”, over direct recruits. Consequently apprentice-trainees had noright per se, for appointment as a matter of course.

6. The Employment Exchange concerned sponsored about 13560ITI candidates, of which only the qualified candidates were called forinterview. TANGEDCO, by proceedings (No. 15), dated 04.07.2013,directed as follows:

“A list may be drawn from the Employment Exchange and alleligible Candidates subject to their physical fitness required 4 W.P. Nos. 24128/ 2012.

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

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Afor the job specification be recruited duly following otherrules and regulations in force.”

7. Candidates who appeared for interview were evaluated with85% weightage for academic marks and 15% towards performance inviva-voce/interview. The process of interview was for assessing theBcandidate’s ability to do pole climbing and cycling with respect to physicalfitness. The ratio of 1:5 was followed in terms of G.O.Ms. No. 18, Labourand Employment (N2) Department dated 25.02.2008, by which the listof ITI qualified candidates were called for, from the EmploymentExchange. The candidates were required to have the qualification ofITI (NTC/NAC). Appointments by direct recruitment were resorted toCby following the ratio of 1:1,in terms of the Justice Khalid CommissionReport, as between contract workers and qualified ITI holders. 1455candidates - who had completed one years’ apprentice training inTANGEDCO with ITI qualification - were called for the interview. Among15015 candidates, 10,728 candidates attended the interview. On scrutiny,Dbased on their ITI/National Trade Certificate, 10357 candidates werefound to be eligible and 351 candidates, rejected as ineligible since theydid not possess the ITI Electrician/ Wireman Trade qualification, apartfrom not possessing National Trade Certificate (NTC) issued by theNational Council for Vocational Training, New Delhi (NCVT).

E8. 4000 ITI Helpers (Trainee) were selected in terms of theGovernment Order in G.O.Ms. No. 65 Personnel and AdministrativeReforms (Personnel) Department, dated 27.05.2009. Appointment orderswere consequently issued to the selected candidates. Their selectionwas based on marks scored by such candidates in ITI National TradeCertificate/National Apprenticeship Certificate (85% weightage), andFinterview marks (15% weightage). The appointments also adhered tothe relevant prescribed reservation ratios and roster. The selectioncombined eligible candidates sponsored by the Employment Exchangeas well as Apprenticeship candidates.

9. Candidates who were not selected approached the MadrasGHigh Court, in a batch of writ petitions.[6] Their main grievance was thatTANGEDCO acted contrary to law, and arbitrarily, by introducing aviva-voce test, which it had in the first instance, resolved not to follow. It 6 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 DistributionHCorporation Limited.

was urged, in this regard, that introduction of interview/viva voceamounted 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 forassessing the candidates’ physical fitness, and was done in relation tothe job requirements. TANGEDCO said that the procedure was followedin all recruitments from 2005 onwards. In terms of its proceedings inPer.B.P.(FB) No. 40, dated 14.12.2005 and the Tamil Nadu ElectricityBoard, Administrative Branch Memo No. 100459/265/G.57/G.572/2007dated 03.02.2009, guidelines for the process of recruitment required vivavoce; 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 inthe 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 engagedas Contract Labourers in the Board, if sponsored by theEmployment Exchange.”

The single judge who heard the writ petitions, reasoned that theguidelines of 2005 had been followed previously; they were in accordwith the Khalid Commission Report, and that testing physical fitnesswas a part of the job requirement, which TANGEDCO was competentto insist. It was further held that the candidates had willingly participatedin the written test and interview, and therefore, could not allegearbitrariness. On the strength of this reasoning, the single judge, by acommon judgment[7], dismissed the writ petitions. The unsuccessfulcandidates appealed to the Division Bench. Other unsuccessfulcandidates, who had not approached by filing writ petitions, did so lateron. The appeals against the single judge’s order, as well as the fresh writpetitions, were taken up by the Division Bench.

10. Before the Division Bench, TANGEDCO indicated awillingness to accommodate all the writ petitioners. This resulted in a 7 Dated 04.12.2014

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Acompromise between the parties. The terms of the compromise areextracted below:

“MEMO OF COMPROMISE

The Appellants and petitioners filed writ petitions in W.P. Nos.9125, 9126, 9319, 9923, 9927, 10589, 10598, 11785, 12003,B12004, 15512, 15636 and 15873 of 2014 challenging theselection process to the post of 4000 ITI Helpers recruited bythe TANGEDCO Per (Per.) FB (TANGEDCO) Proceedings No.14, dated 12.07.2012 and the same were dismissed by thelearned single Judge by an order dated 04.12.2014.CAggrieved by the same the Appellants have filed the aboveWrit Appeals in W.A. Nos. 81, 193, 194, 195, 196, 197, 1018,1019, 1020, 1021, 1022, 1023 and 1301 of 2015. Furtherabovesaid 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 hasDdirected the registry to post the same along with the batch ofcases in W.P. No. 9125 of 2014 etc., But the said writ petitionswere not posted along with W.P. No. 9125 of 2014 etc., batchcases during final hearing and the same are pending andnow posted along with the above writ appeals.

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The above first writ appeal came up for hearing before thisHon’ble court on several occasions and finally on 02.09.2015and in view of the judgement of the Apex court, the respondentscorporation accepted the proposals of the Appellants andPetitioners numbering 84 who have filed the Writ Appeals/Writ Petitions before this Hon’ble court challenging the ITIHelper (Trainee) and have stated that they will beaccommodated in the post of ITI Helper (Trainee) in the 1st& 2nd respondents corporation under the following F

TERMS AND CONDITIONS

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1. The respondent corporation and the appellants &petitioners mutually agreed that the respondent corporationshall appoint the Appellants and Petitioners in the post of ITIHelper (Trainee) in TANGEDCO Service within a time framefixed by this Hon’ble court.

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2. The respondent corporation and the appellants &petitioners mutually agreed that the appointment to theappellants and petitioners shall be given only afterverification of the original certificates.

3. The respondent corporation and the appellants &petitioners mutually agreed that the Appellants and petitionersshall be appointed in the post of ITI Helper (Trainee) onproduction of original certified copy of the judgment of theHon’ble court along with covering letter affixing theconcerned appellant/Petitioner photograph from the counselon record in order to avoid any impersonation and futurelitigation. No request for seniority, service & other benefitswill be entertained.

4. As per the respondent corporation’s request, this order willnot apply to the persons, who did not approach this Hon’blecourt in time challenging the selection process and that thiscompromise cannot be treated as a precedent as this order isbinding as between the parties on the basis of the consensusreached.

5. The respondent corporation and the appellants &petitioners mutually agreed to bear their respective cost inthe above cases.”

The above compromise became the basis of a direction by theDivision Bench which required the appellants and petitioners before it,to be offered employment. The order of the Division Bench[8] (hereafter“the compromise order”), thus did not decidethe lis or the dispute, on itsmerits; it merely recorded the terms of the compromise and directedTANGEDCO to recruit the appellants/petitioners. The compromise orderreads as follows:

“3. Having considered the facts and circumstances of the caseand the submissions made by both the learned counsel, wefind it just and reasonable to pass orders in terms of memo ofcompromise.

4. In view of the joint memo of compromise filed by both theparties, all these appeals and petitions are disposed of in 8 In W.A. No. 81/ 2015 and batch of cases dated 14.10.2015.

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Aterms of the compromise memo. The memo of compromise shallform part of the judgment and we direct the respondents 1and 2 to comply with the stipulations in the memo ofcompromise within a period of six weeks from the date ofreceipt of a copy of this order. No order as to costs.

BConsequently, connected MPs are closed.”

11. After the compromise order, several other unsuccessfulcandidates approached the High Court, claiming parity with the petitionersand appellants, who were parties to, and had benefited from the order. Asingle judge dismissed several of those writ petitions, holding that suchCcandidates could not avail the benefit of the compromise order. In anotherset of writ petitions, however, the single judge allowed the claims; thisled to TANGEDCO’s appeal before the Division Bench. By its commonjudgment and order dated 02.08.2018 (the first set of appeals herein)[9]the candidates’ appeals were dismissed and TANGEDCO’s appeals[10]were allowed. The first set of appeals by aggrieved candidates is directedDagainst that common order. The second set of appeals, by TANGEDCO,is directed against the order which required it to offer employment tosimilarly placed candidates who had not approached the court earlier,but filed writ petitions in 2016, 2017 and 2018.

Contentions of the aggrieved appellantsE

12. On behalf of the aggrieved appellants, Mr. Gautam Narayan,and Mr. T.B. Sivakumar, learned counsels urged that TANGEDCO actedunfairly and in a discriminatory manner, in refusing to employ those whowere not parties in the proceedings that led to the compromise order. Itwas highlighted that in terms of performance, the aggrieved candidatesFmight well have secured better ranking than those 84 unsuccessfulcandidates who were offered employment, by the compromise order.

13. The aggrieved appellants urge that there is no distinctionbetween them and those who were offered employment under thecompromise order. It was submitted that the only difference- and whollyGimmaterial one, is that the other candidates had approached the courtearlier. Counsel submitted that the initiation of litigation cannot be thebasis of any intelligible, or indeed legitimate differentia, as is sought to 9 In W.A. Nos. 574/ 2017, 990/ 2016 and 1696-1702/2018.H10 W.A. Nos. 1450-1462/ 2017.

be projected by TANGEDCO. Once it decided to offer employment tounsuccessful candidates, despite their alleged poor performance in theinterview, that policy decision had to be implemented fairly and evenly.Restricting the benefit of employment to those who approached the courtearlier, amounted to a violation of Article 14 of the Constitution.

14. It was further argued by the aggrieved appellants, thatTANGEDCO did not fill the vacancies in question for an inordinatelylong period. The ratio of 1:1 prescribed by the Khalid Commission alsomeant that timely recruitment had to be undertaken. The appellants wereplaced at a disadvantage; some of them had to approach the court earlier,to challenge TANGEDCO’s refusal to grant relaxation of the upper agelimit. That relief granted, TANGEDCO resorted to recruitment byintroducing the alien procedure of interview, which it had committedearlier to not following. Counsel relied on the decision of this court, inState of Uttar Pradesh & Ors. v. Aravind Kumar Srivastava &others[11] where it was held that a public employer is bound to extendnon-discriminatory treatment to all candidates, regardless of whetherthey approach the court or not, and offer employment to similarly situatedcandidates and employees.

TANGEDCO’s arguments

15. TANGEDCO, which was represented by Mr. Joydeep Gupta,learned senior counsel, submitted that the compromise order was notbased on the merits of the case. The Division Bench merely followedthe compromise memo, and embodied it in its order. Thus, the ordercould not have any precedential value; it was binding only on the parties,and not those who had not approached the court. It was submitted thatthough interviews were conducted in 2013 and the present appellants’candidature was rejected, they waited till the compromise order, andthen approached the court belatedly.

16. It was urged that the compromise order was based on anaberration, because TANGEDCO was bound to appoint only thosecandidates who were successful. It could not have conceded and issuedappointment to the 84 candidates. That error could not be the basis for amandamus or direction in a later case. Counsel stressed that courts canonly grant relief, based on legal provisions and their application of theconcerned laws and rules. In the present case, the compromise order A

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Awas not based on any rule or law, but on a mere concession. It did nothave any precedential value. Mr Gupta stressed upon the fact that thecompromise order was not one in rem; thus, it was devoid of any legalbasis. The rejection of the appellants’ representation, which was purelybased on the compromise order, was justified.B17. Counsel urged that unless it is shown that the concession madebefore the court was based on merit, and the court upon its independentconsideration, was satisfied that such concession was justified, such anorder could not be the basis to compel a public employer to extend identicalrelief. It was also urged that this court has held in numerous decisionsthat a wrong committed on the basis of a wrong order, cannot compelCthe performance of an act which is not justified in law: there is no questionof parity or negative equality.

Analysis and conclusions

Analysis

Analysis and conclusions

18. The facts of this case show that the advertisement orDnotification, calling for eligible candidates, to apply for the post of Helper/trainee was issued in 2012. The first round of litigation, as it were, wasinitiated on the ground that TANGEDCO wrongly denied relaxation ofupper age limit (to apply, for the candidates). This grievance was held tobe justified; the High Court directed grant of such exemption, whichTANGEDCO in turn, complied. When the recruitment process started,ETANGEDCO clarified that it would conduct an interview, for which itproposed to grant 15% weightage. Candidates including the presentappellants, and respondent applicants, participated. Those eligible, andfound to be suitable on a combined assessment of the marks obtainedand the viva voce, were appointed. Now, for the first time, someFunsuccessful candidates approached the High Court. The single judgerejected their writ petitions. The candidates appealed; others who hadnot filed writ petitions in the court, did so, at that stage (in 2015). TheDivision Bench, by its compromise order dated 14.10.2015, purely basedon the compromise terms between the aggrieved candidates andTANGEDCO, directed appointment of 84 persons. The compromise orderGwas not based on the merits, nor based on an independent assessmentof the merits of the case.

19. The present aggrieved candidates and several others soughtpiggyback on the basis of the compromise order, arguing that they weresimilarly situated. They approached the High Court, from 2016 onwards.HThese aggrieved candidates’ petitions were rejected, and their claim for

parity was turned down. They are now here before this court. Anotherset 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 thiscourt, is that the Division Bench, in its compromise order, proceeded toaccept the terms proposed by the parties. The court did not examine - atleast its order does not disclose any such consideration - the merits ofthe case, and why such proposal was justified in the facts of the case. Itis 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. Fairnessdemands that public bodies, as model employers, do not pursue untenablesubmissions. In such cases, a concession, which is based on law, andaccords to a just interpretation of the concerned law and/or rules, issustainable. However, it is altogether another thing for a public employer,whose conduct is questioned, and who has succeeded on the merits ofthe case before the lower forum (in this case, the single judge) tovoluntarily agree, in an unreasoned manner, to a compromise. Theharm and deleterious effect of such conduct is to prioritize the claim ofthose before the court, when it is apparent that a large body of others,waiting with a similar grievance (and some of whom probably have abetter or legitimate claim on merits to be appointed) are not parties tothe proceedings. In such cases, a compromise is not only unjustified, it iscontrary to law and public interest.

21. This court, many years ago, in C. Channabasavaiah v. Stateof Mysore[12 ]faced a somewhat analogous situation. In that case, thestate government had appointed sixteen persons pursuant to acompromise, which invited a charge of unfairness by it, from others whodid not secure such a benefit. The court held that:

”1. By a notification dated September 26, 1959, the MysorePublic Service Commission announced that a competitiveexamination would be held for direct recruitment for Class Iand Class II posts relating to certain Administrative Servicesand numerous applicants including the petitioners themselvesas candidates. On September 5, 1960, the Public ServiceCommission modified the earlier notification and instead ofholding an examination announced that the selection would AB

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be made solely on the results of a viva voce test. Thepetitioners characterised this change as opposed to theMysore Administrative Service Recruitment Rules, 1957 butduring the hearing of these petitions this ground of attackwas abandoned perhaps in view of what happened later.

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B2. The Public Service Commission duly held the viva voceinterviews and on July 29, 1961 they published a list of ninety-eight candidates who they announced were selected. Afterthe announcement of the results the State Government sentfor the consideration of the Commission a list of twenty-fourcandidates and as the Commission approved of them they wereCalso appointed on March 7, 1962. In giving their concurrencethe Commission purported to take power from a foot-noteadded to sub-rule (3) of r. 4 of the Mysore Public ServiceCommission (Functions) Rules, 1957. Sixteen candidates, whowere not selected, filed petitions under Articles 14, 15 and 16Dof the Constitution in the High Court of Mysore. On November26, 1962 there was a compromise and the Governmentundertook to appoint the petitioners before the High Court.Of these thirteen had attended the viva voce test but threehad not been called for it. In this way there were three sets ofappointments: the first of ninety-eight candidates, the secondEof twenty-four candidates and the third of sixteen candidates.There were in all 1,777 applicants who were called for theviva voce test. A very large number of the applicants was notcalled for the test and the High Court of Mysore in the petitionof the three petitioners who had not been called for the vivavoce test directed the Commission to call them and theFCommission then called 203 candidates who were in the samecategory as the three petitioners in the High Court. It may bepointed out that at the first viva voce test eighty-eightcandidates and at the second test ten candidates were selected,thus making the total number ninety-eight.

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3. Encouraged by what had happened to those who hadpetitioned to the High Court, the other candidates who hadnot succeeded applied for writs under Articles 14, 15 and 16of the Constitution. Their petitions were summarily dismissedby the High Court.

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9. Taking the case of the sixteen candidates first, it appearsto us, that since most of these candidates had obtained fewermarks than some of the rejected candidates it is impossible tosustain their selection. To begin with it was wrong of the HighCourt to allow a compromise of this kind to be effected whenit was patently obvious that three candidates had not attendedthe viva voce test at all and there was nothing before theHigh Court for comparing the remaining thirteen candidateswith those who had failed in the selection. There wereallegations of nepotism which had not been abandoned andfind now that most of these candidates do not rank as high assome of the rejected candidates. In such a case the courtshould be slow to accept compromises unless it is made clearthat what is being done dose not prejudice anybody else. Toact otherwise opens the court itself to the charge that it didsomething just as bad as what was complained against. Inour opinion, the appointment of these sixteen candidatescannot be accepted and the petitioners are entitled to claimthat their marks should be compared with those obtained bythe petitioners and the selection made on merit and merit alone.For this purpose, of course, the three candidates who werenot called for the test would have to be called and marksgiven to them. Otherwise they cannot be considered at all.”

In a more recent judgment, Ahmedabad Municipal Corporation& Ors. v. Rajubhai Somabhai Bharwad & Ors.[13] the question waswhether a sarpanch could enter into a compromise and agree to takeback an employee. This court decisively held that such a compromisewas not legal:

“17. The purpose of our referring to the same is that theparliament by the Constitutional amendment required the StateLegislature to bring their State laws in conformity with PartIX of the Constitution, Power has been conferred on thePanchayats so that they are able to function as an institutionof self-Government. The State Legislature has also beenempowered to make provisions by which powers are given tothe Gram Panchayats. Once responsibility is given they are A

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to be carried out with sanguine responsibility. A Sarpanch,as we perceive in this case, by entering into a settlement hasnot only acted contrary to the provisions of the Act and butalso the spirit of the responsibility cast on the local self-Government.

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B18. In this context, we cannot be oblivious of a very significantfacet. The Labour Court as we find in a single line order hasaccepted the settlement and has not made any endeavour toeven find out whether the Sarpanch was authorised with anykind of resolution to enter into compromise/settlement by thevillage panchayat. He should have borne in mind that it isCnot the Sarpanch who was the employer; that much of scrutinywas required on the part of the Labour Court. It will not be ahyperbole if it is said that it is the bounden duty on the partof the presiding officer of the Labour Court to do so and wesay so without any hesitation, for court has a sacred duty toDscrutinize whether a valid compromise has been entered intoor not. He has to be satisfied that the compromise is lawful.

19. In view of the aforesaid analysis, we allow the appealsset aside the order passed by the learned Single Judge andthat of the Labour Court and remit the matter to the LabourCourt for fresh adjudication.”

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22. The lynchpin of the appellant’s submission was their relianceon Aravind Kumar Srivastava (supra). In that case, this court afterreviewing several cases cited by the parties, had summarized the correctapproach in matters where concession-based orders could (or could not)Fbe treated as precedent:

“23. The legal principles which emerge from the reading ofthe aforesaid judgments, cited both by the Appellants as wellas the Respondents, can be summed up as under:

(1) Normal rule is that when a particular set of employees isgiven relief by the Court, all other identically situated personsneed to be treated alike by extending that benefit. Not doingso would amount to discrimination and would be violative ofArticle 14 of the Constitution of India. This principle needsto be applied in service matters more emphatically as theservice jurisprudence evolved by this Court from time to time G

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postulates that all similarly situated persons should be treatedsimilarly. Therefore, the normal rule would be that merelybecause other similarly situated persons did not approachthe Court earlier, they are not to be treated differently.

(2) However, this principle is subject to well recognizedexceptions in the form of laches and delays as well asacquiescence. Those persons who did not challenge thewrongful action in their cases and acquiesced into the sameand woke up after long delay only because of the reason thattheir counterparts who had approached the Court earlier intime succeeded in their efforts, then such employees cannotclaim that the benefit of the judgment rendered in the case ofsimilarly situated persons be extended to them. They wouldbe treated as fence-sitters and laches and delays, and/or theacquiescence, would be a valid ground to dismiss their claim.

(3) However, this exception may not apply in those cases wherethe judgment pronounced by the Court was judgment in remwith intention to give benefit to all similarly situated persons,whether they approached the Court or not. With such apronouncement the obligation is cast upon the authorities toitself extend the benefit thereof to all similarly situated person.Such a situation can occur when the subject matter of thedecision touches upon the policy matters, like scheme ofregularisation and the like (see K.C. Sharma and Ors. v. Unionof India (supra). On the other hand, if the judgment of theCourt was in personam holding that benefit of the saidjudgment shall accrue to the parties before the Court andsuch an intention is stated expressly in the judgment or it canbe impliedly found out from the tenor and language of thejudgment, those who want to get the benefit of the saidjudgment extended to them shall have to satisfy that theirpetition does not suffer from either laches and delays oracquiescence.”

Before discussing the ratio of the judgment, it would be useful toextract the factual context from which the dispute arose:

“9. The moot question which requires determination is as towhether in the given case, approach of the Tribunal and the A

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AHigh Court was correct in extending the benefit of earlierjudgment of the Tribunal, which had attained finality as itwas affirmed till the Supreme Court. Whereas the Appellantscontend that the Respondents herein did not approach theCourt in time and were fence-sitters and, therefore, not entitledto the benefit of the said judgment by approaching the judicialBforum belatedly. They also plead some distinguishing featureson the basis of which it is contended that the case of theRespondents herein is not at par with the matter which wasdealt with by the Tribunal in which order dated June 22, 1987were passed giving benefit to those candidates who hadCapproached the Court at that time.”

23. It is thus, evident that in Aravind Kumar Srivastava (supra)theprevious orders of the tribunal and the court were based on meritsadjudication, and not based on concession; certainly not based oncompromise.It was in the background of such facts that denial of reliefDto similarly situated claims, was held to be unjustified. Most importantly, for the purpose of this case, the court carved out an exception: thatsubsequent litigants, wishing to benefit from orders made in others’ cases,had to approach the courts in time, without delay or laches. In the factsof 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 inErem, or as a binding precedent. Also, the aggrieved appellants, and thecontesting candidates (in TANGEDCO’s appeal) did not approach thecourt in time. They woke up after the compromise order, claiming parity,and filed petitions in the court. Clearly, therefore, they cannot claim anybenefit from the compromise order.F

24. A principle, axiomatic in this country’s constitutional lore isthat there is no negative equality. In other words, if there has been abenefit or advantage conferred on one or a set of people, without legalbasis or justification, that benefit cannot multiply, or be relied upon as aprinciple of parity or equality. In Basawaraj & Anr. v. Special LandGAcquisition Officer[14], this court ruled that:

“8. It is a settled legal proposition that Article 14 of theConstitution 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 buthas only a positive aspect. Thus, if some other similarlysituated persons have been granted some relief/benefitinadvertently or by mistake, such an order does not conferany legal right on others to get the same relief as well. If awrong is committed in an earlier case, it cannot beperpetuated.”

Other decisions have enunciated or applied this principle (Ref:Chandigarh Admn. v. Jagjit Singh[15], Anand Buttons Ltd. v State ofHaryana[16], K.K. Bhalla v. State of M.P.[17]; Fuljit Kaur v. State ofPunjab[18], and Chaman Lal v. State of Punjab[19] ). Recently, in TheState of Odisha v. Anup Kumar Senapati[20] this court observed asfollows:

“If an illegality and irregularity has been committed in favourof an individual or a group of individuals or a wrong orderhas been passed by a judicial forum, others cannot invokethe jurisdiction of the higher or superior court for repeatingor multiplying the same irregularity or illegality or for passinga similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claimbenefits 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 claimthe benefit of parity; their writ petitions were founded on the compromiseorder, which cannot be justified in law. The appeals of the aggrievedappellants, against the judgment and order of the Division Bench of theMadras High Court dated 02.08.2018, has to fail; it is accordinglydismissed. For the same reasons, TANGEDCO’s appeals, (against theorder 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, 15 (1995) 1 SCC 745

16 (2005) 9 SCC 164

17 (2006) 3 SCC 581

18 (2010) 11 SCC 455

19 (2014) 15 SCC 715

20 2019 SCC Online SC 1207

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A41610 of 2016, and Writ Petition Nos. 13948 13949, 13950, 13951, 13952,13953, of 2017, Writ Petition Nos. 1808, 18576, 18624 of 2018) succeedand are allowed. In the circumstances of this case, there shall be noorder as to costs.

BDevika Gujral

Directions issued.

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