Internal communications within Government Departments/Officer — Not govt. order unless issued in accordance with law.

[ UOI & Anr. v. Kartick Chandra Mondal and Another,
AIR 2010 SC 3455]

The respondents Shri K. C. Mondal and Shri S. K. Chakraborty,
were engaged to work as casual labours in the office of the Ordnance Factory
without going through the regular process of recruitment of their names being
sponsored by the Employment Exchange, which was the extant policy at the
relevant point of time. After their engagement as casual labours, they worked
for two years with appellant no. 2, i.e., till 1983 and they were
disengaged from service in the month of April, 1983 on the ground that their
names were not sponsored by the Employment Exchange.

The respondents thereupon filed an application before the
CAT. The Tribunal, granted the prayer of the respondents on the ground that 10
other similarly placed casual workers of the Ordnance Factory Board were
regularised. The Tribunal relying on a office memo issued a direction to the
appellants to re-engage the respondents as casual labours if there was
work/vacancy in preference to freshers and those who rendered lesser length of
service as casual labours.

The Court held that the said office memorandum stated that
the same would apply only to those persons who might have been continuing as
casual workers for a number of years and who were not eligible for regular
appointment and whose services might be terminated at any time. Therefore, it
envisaged and could be made applicable to only those persons who were in service
on the date when the aforesaid office memorandum was issued. Unless and until
there is a clear intention expressed in the notification that it would also
apply retrospectively, the same cannot be given a retrospective effect and would
always operate prospectively. Further the aforesaid communication were exchanged
between the officers at the level of board hierarchy only. An order would be
deemed to be a Government order as and when it is issued and publicised.
Internal communications while processing a matter cannot be said to be orders
issued by the competent authority unless they are issued in accordance with law.

The Court further observed that even assuming that the
similarly placed persons were ordered to be absorbed, the same if done
erroneously cannot become the foundation for perpetuating further illegality. If
an appointment is made illegally or irregularly, the same cannot be the basis of
further appointment. An erroneous decision cannot be permitted to perpetuate
further error to the detriment of the general welfare of the public or a
considerable section. This has been the consistent approach of the Court.