The Supreme Court of India, in a judgment delivered on 20 January 2025, held that public recruitment to government posts must strictly follow pre-established statutory rules and that a litigant cannot invoke the doctrine of negative discrimination to seek appointment in violation of those rules. Justice Rajesh Bindal set aside a Tribunal order that had directed the appointment of a peon to the post of Tracer in the Odisha government, finding that the post was required to be filled exclusively through direct recruitment.
Background
Jyostnamayee Mishra had been employed as a peon in the Works Department of the Government of Odisha since 1978. In 1999, she filed the first of three representations seeking appointment to the post of Tracer — a technical position in the department. Her claim was based on the fact that two other employees, Jhina Rani Mansingh and Lalatendu Rath, had earlier been moved from peon positions to Tracer posts.
The Central Administrative Tribunal, Cuttack, on the third occasion, directed her appointment. The State of Odisha challenged this order. The Orissa High Court set aside the Tribunal's direction, relying on a departmental letter from February 1980. The Supreme Court was called upon to determine whether the High Court was correct in overturning the Tribunal's order.
Key Holdings
The Supreme Court ruled as follows:
Direct recruitment mandate: Under the Orissa Subordinate Architectural Service Rules, 1979, the post of Tracer was required to be filled 100 per cent through direct recruitment. No promotional avenue existed from the peon cadre to the Tracer post, making the appellant ineligible for appointment by way of promotion.
Irregular past appointments do not create precedent: The earlier appointments of two other peons as Tracers were themselves irregular, as they were made through internal departmental circulars rather than through public advertisement and competitive examination as mandated by the 1979 Rules. Irregular past actions cannot form the basis for a claim to similar irregular treatment.
Negative discrimination doctrine inapplicable: The Court observed that a litigant approaching the court cannot claim negative discrimination — that is, seek a direction to the government to act in violation of law or statutory rules merely because such violation was committed in favour of others. The guarantee of equality under Articles 14 and 16 does not extend to perpetuating illegalities.
Public advertisement mandatory: The 1979 Rules required vacancies to be advertised in newspapers and filled through competitive testing open to all eligible candidates. Issuing a departmental circular inviting applications only from existing peons did not satisfy this requirement.
Implications for Practitioners
This judgment reinforces the settled principle that irregular appointments in government service do not create vested rights or binding precedents. Practitioners advising government employees seeking promotion or appointment to posts outside their cadre hierarchy must verify whether the recruitment rules for the target post permit such movement.
The ruling on negative discrimination has broader significance for service law litigation. It closes the argument that past irregularities committed in favour of others entitle a similarly situated person to the same irregular benefit. Courts will not direct the state to repeat an illegality in the name of equal treatment.
Administrative law practitioners should also note the Court's scrutiny of the documentary basis for the state's position — the so-called departmental "letter" was found to be a copy of the 1979 Rules with significant discrepancies, highlighting the importance of proper record-keeping in service disputes.