Ar. Lakshmanan, J. 1. Heard Mr. Pathrose Mathai for the appellants and Mr. P. Gopalakrishnan Nair for the respondent.
2. The above writ appeal is directed against the judgment of the learned single Judge in O.P. No. 7245 of 1994 dated January 14, 1998. Allowing the Original Petition filed by the respondent herein, the learned Judge directed the appellant Bank to consider the case of the respondent also in the same line as in the case of Alikutty with regard to the age and taking into account the casual service put in by the petitioner/respondent herein.
3. The respondent filed the above Original Petition to direct the appellant Bank to appoint her as Sweeper in Thiruvarppu Branch of the Bank in the existing vacancy and also to direct the appellant Bank not to appoint anybody else other than the respondent to the post of sweeper at State Bank of Travancore,' Thiruvarppu. A further direction was also sought for directing the appellant Bank not to relieve the respondent from the post of coolie labourer on daily wages employed as sweeper at their Treasury Branch and to appoint the petitioner in the post of Sweeper in the next available vacancy in any of the branches of the State Bank of Travancore in Kottayam under the jurisdiction of the respondents.
4. According to the respondent, she worked as sweeper on daily wages in the Vadavathoor Branch of the State Bank of Travancore (hereinafter referred to as 'the Bank') for 65 days in 1989, for 151 days in the Kanjikuzhy Branch during 1990-91 and thereafter in the Civil Station Branch, Kottayam for a period of 2 1/2 years during 1991 to 1994. She made a representation to the Zonal Manager of the Bank to consider her name for appointment as sweeper in any of the Branches of the Bank in Kottayam. The representation dated June 7, 1991 is marked as Ext. P5. A copy of the said representation was forwarded to the Regional Manager, the 3rd respondent in the Original Petition. The Regional Manager intimated the respondent herein that her representation could not be considered and hence rejected. The respondent made a further application on December 13, 1993 and pursuant to the said application, she was called for interview. She attended the interview on May 18, 1994, but was not selected on the ground that she had become over aged.
According to the respondent, another person who was over aged was selected and appointed as sweeper and, therefore, there is discrimination. Aggrieved by the refusal of the Bank authorities to appoint her as sweeper, the respondent filed the above writ petition.
5. According to the respondent, the very fact that she was called for interview shows that she was fully eligible to be considered for the post and there was no disqualification for her to be appointed to the post. She further submitted that the Bank have appointed one Alikutty as sweeper at the Civil Station Branch of the Bank at Kottayam who is aged more than 45 years. Therefore, she submitted that the discrimination meted out to the respondent is unreasonable and bad in-law. Along with the Original Petition the respondent has filed Exts. P. 1 to P9 which are copies of correspondences between the respondent and the Bank.
6. The appellant Bank resisted the claim of the respondent by filing a counter affidavit through its Manager, Industrial Relations. According to the Bank, the petition is not maintainable. It is stated that the respondent was not appointed since she did not satisfy the eligibility criteria to the post of part-time Sweeper as laid down by the Bank and that since at the time of interview it was found that the respondent was aged above 40 years, she was not appointed as part-time sweeper. In so far as the contention of the respondent that the Bank has appointed one Alikutty, who is over aged, is concerned, it is submitted that there is no person by name Alikutty appointed at the Civil Station Branch of the Bank, however, it is stated that one Alikutty who was empanelled for appointment to the post of part- time Sweeper in the year 1989 has been appointed at the Kottayam Main Branch, and that since the respondent is not in any manner similar to the said employee, there is absolutely no question of any discrimination. It is further stated that the fact that the respondent is over aged is very material and makes her ineligible to be appointed to the post of part-time Sweeper and that the petitioner has no right to be appointed to the post of part-time Sweeper in the bank.
7. The learned single Judge, by his judgment dated January 14, 1998, accepted the plea of discrimination of the respondent with reference to the case of one Alikutty and directed the Bank to consider the case of the respondent also in the same line as in the case of Alikutty with regard to the age and taking into account the casual service put in by her. Aggrieved by the (sic) direction issued by the learned single Judge, the Bank has preferred the writ appeal.
8. We have heard learned counsel appearing on either side. Both the counsel reiterated their stand before the learned single Judge. In so far as the plea of discrimination is concerned, Mr. Pathrose Mathai, learned counsel for the appellant Bank, submitted that the said plea of discrimination under Article 14 cannot be accepted by this Court in proceedings under Article 226 of the Constitution of India to perpetuate an irregularity or illegality, and that the learned Judge should have found that the respondent cannot claim as right the benefit arising out of an irregular or illegal act. Learned counsel for the respondent submitted that since there is discrimination in the matter of appointment in appointing one Alikutty, who is also over aged, and in denying such benefit to the respondent and, therefore, the direction issued by the learned single Judge does not call for any interference. We have been taken through the entire pleadings and exhibits filed.
We are of the opinion that the plea of the respondent that there is discrimination violative of Article 14 of the Constitution cannot be accepted by this Court. Even assuming that the Bank has committed an irregularity or illegality in appointing another person as part-time sweeper, the respondent cannot make a claim to perpetuate such illegality or irregularity. The respondent cannot claim any right arising out of a mistake or illegal act.
9. In this context we may usefully refer to the judgment of a Division Bench of the Madras High Court, to which one of us (AR. lAKSHMANAN, J.) was a party, viz. Karuppan, R. v. Asst. Commr. of Customs. 1997 Writ L.R. 164. In that case the Court was considering the Baggage Rules, 1994 issued under the Customs Act and other allied provisions. In that case the appellant contended that since the respondent Customs authorities, on a few earlier occasions, have cleared the goods duty free or cleared certain goods on certain occasions against payment of concessional rate of duty, they are bound to release the goods without insisting upon the production of licence by the appellant. The appellant further contended that the Customs authorities cannot take a different view from the long standing practice resulting in confiscation and levy of penalty. This argument was opposed by the senior Standing Counsel for the Customs and contended that reliance placed by the appellant upon the earlier order by which fire arms brought by him were released, can be of no help to the appellant since the earlier orders of release were administrative ones and were not the result of quasi-judicial adjudicatory process. Even otherwise, according to the learned senior Standing Counsel, orders of authorities and the Tribunal cannot be equated to precedent. Further, one order cannot be judged with reference to earlier or later order. It will be that the impugned order is a right order and the earlier order or the later order is wrong, but each order has to be judged according to its own facts and circumstances and the provision of law in force at that time. It is the specific case of the respondents that the earlier order is bad. For the above proposition the learned Senior Standing Counsel sought support from the various rulings reported in Sri Rama Vilas Service (Private) Ltd. Kumbakonam v. Raman and Raman (Private) Limited, Kumbakonam 1959 (II) M.L.J. 1; A.C. Paul v. Tax Recovery Officer, Tirunelveli 1977 T.N.L.J.453 (DB) Harpal Kaul Chahal v. Director, Punjab Instructions 1995 Suppl. (4) SCC 706; Chandigarh Administration v. Jagjit Singh 1995 (1) SCC 745 and Gursharan Singh v. New Delhi Municipal A.I.R. 1996 SC 1175. All the above decisions are to the effect that Article 14 of the Constitution cannot be extended to legalise illegal orders though others have wrongly got the benefit of the orders.
10. In view of the above rulings, we are of the opinion that the claim of the respondent with reference to discrimination cannot at all be accepted. In the instant case, the Bank has specifically denied in their counter affidavit that no such appointment as alleged by the respondent has been made by the appellants and that one Alikutty who was empanelled in 1989 for appointment as part-time sweeper was appointed, who can in no manner be treated as a person similarly situated like the respondent. The respondent has no case that she was empanelled for appointment as part-time sweeper at any point of time. She is over aged and not qualified for the post of Part-time Sweeper. We, therefore, reject the plea of the respondent that there is discrimination in the matter of appointment, violative of Article 14 of the Constitution of India.
11. This apart, the said plea cannot be countenanced without impleading the candidate who has been selected and appointed in the vacancy. The learned Judge ought to have held that without impleading the candidate who was selected and appointed in the vacancy, the Original Petition was not maintainable and that the respondent could not have claimed any relief whatsoever. In this case, the learned Judge has found that the respondent was entitled to appointment. While holding so, the learned Judge ought to have set aside the appointment made earlier in the vacancy in question and without setting aside the appointment, it was impermissible to appoint the respondent as part-time Sweeper. As rightly pointed out by the counsel for the appellant, the direction given by the learned Judge would disrupt the settled procedure and rules in the matter of appointment of part-time Sweeper. The judgment of the learned single Judge is, therefore, erroneous and against the well settled principles of service law.
12. The contention of the petitioner/ respondent herein that she had worked for four years in various branches of the Bank as Sweeper on daily wages and that for three years previous to the filing of the Original Petition she was working continuously as Sweeper on daily wages for eight hours per day has been denied by the appellants as incorrect and misleading. It is submitted that the petitioner (respondent herein) was engaged as a casual coolie labourer for cleaning and sweeping work in certain branches of the Bank for intermittent periods by the respective Branch Managers and that such casual work of cleaning and sweeping was only for about one hour a day before the commencement of office hours of the Bank at 10 A.M. According to counsel for the appellants the respondent was engaged as a casual coolie labourer in different branches of the Bank by the respective Branch Managers for short periods when the regular hands went on leave or when there was some extra work to be done, and that too, for intermittent periods. When a vacanpy arose in the Thiruvarppu Branch of the Bank, it is submitted, the respondent could not be considered for appointment to that vacancy as she was over-aged and she was ineligible for consideration as per the recruitment rules and procedure.
13. It is argued by learned counsel for the respondent that the appellant Bank, being a 'State' under Article 12 of the Constitution of India, is bound to follow the procedures in accordance with law and should not discriminate persons in the matter of appointment. We are of the opinion that there is no statutory or contractual relationship between the respondent and the appellant Bank. The respondent has no manner of right, much less any fundamental right, to be appointed in the appellant Bank.
14. The respondent was engaged in the appellant Bank in its various branches only as a casual labourer as and when there was extra work or in the place of regular hands on their availing leave. No daily wage was fixed in her case and the payment was being made for the specific work done. The eligibility criteria adopted for recruitment to the post of part-time Sweepers are laid down by the appellant Bank and according to the eligibility criteria, candidates aged between 18 and 40 years and who have not studied beyond the 5th standard only are eligible to be appointed as Part-Time Sweepers. The respondent was aged above 40 years at the time of making the application, and hence, was not eligible for appointment as Part-Time Sweeper in any of the branches of the Bank. The respondent had not, at any point of time been appointed to the post of Part-time Sweeper. She has not rendered continuous service in the appellant Bank during any particular period. Her intermittent service in the Bank as a casual/coolie labourer does not confer any right on her to claim employment in the appellant Rank.
There are absolutely no merits in the claim made by the respondent herein. The writ appeal, therefore, succeeds and the judgment of the learned single Judge, rendered in O.P. No. 7245 of 1994-K is set aside. There will be no order as to costs.
C.M.P. No. 1996 of 1998 stands dismissed.