Introduction:

In Francis Kujur v. State of Jharkhand, W.P. (S) No. 3008 of 2025, the Jharkhand High Court, through a detailed judgment delivered by Justice Ananda Sen, addressed an important question concerning the service rights of ex-servicemen engaged on a contractual basis under the State’s Special Auxiliary Police Force (SAP) battalions. The petitioners, all former army personnel, were appointed under a government scheme dated 7 June 2008, formulated to strengthen law and order, provide security at police stations and industrial establishments, and tackle anti-social and security-related challenges. The engagement was expressly contractual, governed entirely by the terms of the scheme, and did not provide for any age of superannuation. After completing seven years of engagement, the petitioners sought continuation in service by claiming parity with regular government employees, alleging discrimination and relying upon certain intra-departmental correspondence and past extensions granted to similarly placed personnel. The Court was thus called upon to determine whether contractual ex-servicemen could claim continuation of service beyond the tenure prescribed under the scheme and whether internal recommendations or past illegal extensions could create enforceable rights contrary to the scheme.

Arguments of Both Sides:

The petitioners argued that since the scheme did not expressly provide an age of superannuation, it should be presumed that their service conditions would mirror those of regular government servants, particularly with respect to retirement age. They contended that their appointment should either be co-terminous with the scheme itself or governed by general government policy on age of superannuation. A strong plea of discrimination was also raised, asserting that several ex-servicemen had been allowed to continue for as long as 15 years, while the petitioners were removed upon completion of seven years. According to them, this differential treatment violated Article 14 of the Constitution and entitled them to similar extensions. They further relied on certain intra-departmental communications and recommendations which, according to them, indicated an intention of the State to allow continued engagement beyond seven years, thereby creating a legitimate expectation. On the other hand, the State of Jharkhand, represented by the Advocate General, submitted that the engagement of the petitioners was strictly governed by the SAP Scheme of 2008, which clearly fixed the maximum tenure at seven years. Clause 3 of the scheme stipulated an initial contractual period of two years, extendable up to five years depending on necessity, making seven years the outer limit. The State argued that the absence of an age of superannuation was deliberate and that the scheme was never intended to create permanent or quasi-permanent employment. It was contended that any internal correspondence or recommendations had no statutory force and could not override or amend the scheme. The State further submitted that extensions granted beyond seven years were illegal and could not form the basis of a claim for parity, as equality cannot be claimed in illegality.

Court’s Judgment:

After an exhaustive examination of the scheme and the legal principles governing contractual employment, the Jharkhand High Court dismissed the writ petitions and upheld the State’s stand. The Court first noted that the Special Auxiliary Police Force was created purely by virtue of a government scheme, which operated as the governing rule for appointment, tenure, salary, and service conditions of the contractual ex-servicemen. Justice Ananda Sen categorically held that the scheme did not provide for any age of superannuation and instead consciously fixed the tenure of engagement. The Court observed that when a scheme or rule clearly prescribes the terms of engagement, courts cannot read into it provisions that do not exist. It held that contractual appointees cannot claim parity with regular government servants unless such parity is expressly provided by law. Emphasising strict adherence to statutory schemes, the Court observed that if an age of superannuation was intended to be included, it could only be done by a formal amendment of the scheme, and not by recommendatory letters or internal opinions. The Court rejected reliance on intra-departmental correspondence, holding that such communications have no force of law and cannot override the express provisions of a governing scheme. Justice Sen observed that such letters were merely opinions of individuals who had exceeded their jurisdiction and could not be treated as binding mandates. On the issue of discrimination, the Court held that allowing some personnel to continue beyond seven years was itself an illegality, and the petitioners could not claim equality based on such illegal acts. Reiterating the settled principle that there can be no equality in illegality, the Court held that wrongful extensions granted to others do not confer a legal right upon the petitioners. The Court further accepted the State’s justification that fixing a maximum tenure of seven years served a rational purpose, namely, rotation of personnel to meet the objectives of the scheme and avoid permanent absorption of contractual staff. Finding no ambiguity in the scheme and no violation of constitutional principles, the Court concluded that the petitioners had no legal right to continue beyond the prescribed tenure and accordingly dismissed all the writ petitions.