Jharkhand High Court
Sunil Dutt Mishra And Anr vs The State Of Jharkhand Through The ... on 11 August, 2017
Author: D.N.Patel
Bench: Ratnaker Bhengra, D.N.Patel
IN THE HIGH COURT OF JHARKHAND, RANCHI
L.P.A. No. 104 of 2017
1. Sunil Dutt Mishra, son of late Bhagwan Dutt Mishra, resident of
Makey Road, Sivaliya, PO Upper Bazar, PS Kotwali, District-
Ranchi;
2. Anil Dutt Mishra, son of late Bhagwan Dutt Mishra, resident of
Makey Road, Sivaliya, PO Upper Bazar, PS Kotwali, District-Ranchi.
...Appellants
Versus
1. The State of Jharkhand through the Secretary of Human
Resources Department, Project Building, Dhurwa, Ranchi;
2. The Director, Higher Education, Human Resources Department,
Department of Education, Dhurwa, Ranchi;
3. The State of Bihar through the Secretary, Department of
Education, Secretariat, PO & PS Sachiwalya, Dist. Patna;
4. The Kameshwar Singh Darbhangha Sanskrit University,
Kameshwar Nagar, Darbhangha;
5. The Vice Chancellor, Kameshwar Singh Darbhangha Sanskrit
University, Kameshwar Nagar, Darbhangha;
6. The Registrar, Kameshwar Singh Darbhangha Sanskrit
University, Kameshwar Nagar, Darbhangha;
7. The Vinoba Bhave University, Hazaribagh;
8. The Vice Chancellor, Vinoba Bhave University, Hazaribagh;
9. The Registrar, Vinoba Bhave University, Hazaribag;
10. The Principal, Government Sanskrit College, Kumhartoli (Near
Pahari), Hehal, Sukhdeonagar, Ranchi.
...Respondents
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CORAM :- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : M/s. Sanjay Kumar Dwivedi & Rajesh Kr. Singh, Advocates.
For the Respondents : Mr. D.K. Dubey, Sr.S.C.-I;
Mr. (Dr.) Ashok Kr. Singh, Advocate & Mr. Ramit Satender, Advocate.
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05/ Dated 11.8.2017:
(Oral Order) Per D.N.Patel, A.C.J.
1. This Letters Patent Appeal has been preferred by the original petitioners, being aggrieved and dissatisfied by the judgment and order, delivered by the learned Single Judge in W.P.(S) No. 4875 of 2003 dated 03.02.2017, whereby, petition preferred by these -2- appellants was dismissed and hence, the original petitioners have preferred the Letters Patent Appeal.
2. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that these appellants are back door entrants without there being any public advertisement, any test, oral or writing and without there being any competition with the public at large. As "fortunate few", these appellants were given appointment as Temporary Assistant Librarian and Temporary Clerk respectively by the Registrar, Kameshwar Singh Darbhangha Sanskrit University, Darbhangha.
3. It has become fashion in the country that those who are adorning high-ranking administrative posts, they are appointing on public posts few persons, may be kith and kin thereof or may be known to them. They are not issuing the public notice for such public posts. Efficient persons in this country are not getting public employment because of such type of favouritism shown to few persons. These appellants have been appointed, being known persons to the concerned high-ranking administrative officers, directly on the post of Librarian and Clerk in the University.
Constitutional mandate has not been properly appreciated and illegal appointments have been made.
4. It is high time for the Court not to allow such type of illegal appointees or the back door entrants in the Government services. Their services ought to be brought to an end. Back door entrants must go out, by the same entry i.e. when they are appointed without any public advertisement, without any interview, in the similar fashion, their services can be brought to an end, even without any notice, if the facts of the case so requires, so as to bring to an end, such menace in the society. Enough is enough. Time and again this Court has been flooded by such type of litigations. They are more influential than the intelligent; they are more influential than their efficiency.
5. It has been held by Hon'ble Supreme Court in the case of State of Bihar Versus Upendra Narayan Singh & others reported -3- in (2009) 5 SCC 65, paragraph nos. 32, 44, 45, 65 & 67 thereof read as under:
"32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, the spoils system which prevailed in America in the 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together.
44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution.
45.Thousands of cases have been filed in the courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by the virus of spoils system in different dimensions and selections have been made for considerations other than merit.
65. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.
67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a -4- judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order-- Chandigarh Admn. v. Jagjit Singh, Jaipur Development Authority v. Daulat Mal Jain, Union of India v. J.V. Subhaiah, Gursharan Singh v. NDMC, State of Haryana v. Ram Kumar Mann, Faridabad CT. Scan Centre v. D.G. Health Services, Style (Dress Land) v. UT, Chandigarh, State of Bihar v. Kameshwar Prasad Singh, Union of India v. International Trading Co. and Directorate of Film Festivals v. Gaurav Ashwin Jain."
(Emphasis supplied)
6. It has been held by Hon'ble Supreme Court of India in the case of State of Bihar and Others Versus Chandreshwar Pathak reported in (2014) 13 SCC 232, paragraph nos. 10, 11, 12 and 13 thereof read as under:
"10. The order of appointment, in the present case, is as follows:
"In the light of the order passed by the Inspector General of Police, Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86 F3 Shri Chandeshwar Pathak, s/o Shri Devnarayam Pathak of Village Haraji, PO Haraji, PS Dimbara, District Chhapra was appointed as Constable temporarily from 14-1-1988 afternoon on the condition that his previous character found satisfactory and as and when necessary, his service shall be terminated without assigning any reason or show cause. His pay scale shall be Rs 425-10, 565 EB-10-605 with the basic pay of Rs 425. He has been allotted CT No. 390."
It is clear from the above order that the appointment has been given only on the asking of the Inspector General of Police. There is nothing to show that any advertisement was issued giving opportunity to all eligible candidates to compete or any selection process was undertaken before appointment of the respondent.
11. In State of Orissa v. Mamata Mohanty, it was observed as under:
"Appointment/employment without advertisement
35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered -5- fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Excise Supt. v. K.B.N. Visweshwara Rao, Arun Tewari v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Deptt. of Telecommunications v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State of M.P. v. Mohd. Abrahim.)
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
12. No contrary view of this Court has been cited on behalf of the respondent. Moreover, another Division Bench of the same High Court has upheld termination in similar matter as noted earlier against which SLP has been dismissed by this Court as mentioned earlier.
13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."
(Emphasis Supplied)
7. It has been held by Hon'ble Supreme Court in the case of Renu & others Versus District and Sessions Judge Tis Hazari Courts, Delhi & Another reported in (2014) 14 SCC 50, paragraph -6- nos. 6, 7, 8, 9, 10, 11, 12 & 13 thereof read as under:
"6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution.
7. In I.R. Coelho v. State of T.N., the doctrine of basic features has been explained by this Court as under:(SCC p.108, para 141) "141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III."
8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Prabhat Kumar Sharma v. State of U.P., J.A.S. Inter College v. State of U.P., M.P. Housing Board v. Manoj Shrivastava, M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey and State of M.P. v. Sandhya Tomar.
9. In Excise Supt. v. K.B.N. Visweshwara Rao, a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal, wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution.However, due to the possibility of non- sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the Constitution and even if the names of candidates are requisitioned from employment exchange, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the employment exchange does not meet the requirement of the said articles of the Constitution. The Court further observed:(K.B.N. Visweshwara Rao -7- case, SCC p. 218 para 6) "6. ... In addition, the appropriate department ... should call for the names by publication in the newspapers having wider circulation and also display on their office notice ... and employment news bulletins; and then consider the cases of all candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates (emphasis supplied) (See also Arun Tewari v. Zila Mansavi Shikshak Sangh and Kishore K. Pati v. District Inspector of Schools, Midnapore.)
10. In Suresh Kumar v. State of Haryana this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
11. In UPSC v. Girish Jayanti Lal Vaghela this Court held: (SCC p. 490, para 12) "12. ... The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made ... Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution ."
(emphasis supplied)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav as under: (SCC pp. 274-75, para 24) "(1) The appointments made without following the -8- appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi, observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity .
"Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
(Emphasis Supplied)
8. Hon'ble Supreme Court has stated that those who are illegal entrants, they are not even entitled for salary. Thus the word "salary"-9-
goes always with the regularly appointed employees and not with illegal appointees. Those who are illegally appointed at the highest, if they have worked, they can file suit for damages, but, in no circumstance, can get the salary of the posts. Salary of such post is attached with legally appointed employees. The word "salary" cannot go with work done by illegally appointed person. Thus, illegal appointees or back door entrants, those who have got governmental job on the public post without there being any advertisement and without following recruitment procedure are not entitled for salary at all. At the highest, if they have done some work, they can get compensation or damages. In such type of cases, the amount, which is found payable to the illegal appointees, must be recovered from the officer or authority, who has given appointment, either from his salary or from his pension or from his properties. It is now high time for the State to start recovery from such type of officer or authority, who is giving illegal appointments. At least in few cases, Government should initiate recovery of the amount, which is found payable to the illegal appointees from the persons/ authorities, who have made illegal appointments so that such type of illegal appointments can be brought to an end. Such type of illegal appointments is like a disease, brought in by the high-ranking administrative officers and only medicine is to recover the amount from the salary, pension or property of the appointing authority.
9. Aforesaid aspects of the matter have been properly appreciated by the learned Single Judge while deciding W.P.(S) No. 4875 of 2003 vide judgment and order dated 03.02.2017.
10. Much has been argued by the counsel for the appellants that they were working on the sanctioned posts. This argument is of no help to these appellants. Assuming without admitting there are sanctioned posts, these appellants cannot be appointed without any public advertisement. Assuming without admitting there are sanctioned posts, no person can be appointed without following rules and regulations for the appointment. Assuming without admitting there are sanctioned posts, the public at large must be -10- given opportunity to compete with each other so that the best, suitable and most eligible candidate can get the public post. Neither the appointing authority have got courage to give public advertisement nor the illegal appointments have courage to compete with the public at large. Both, those who are giving appointments and those who are getting appointments are equally responsible for such type of illegal appointment and the only remedy now available is to recover the amount from those who are giving illegal appointments.
11. Much has been argued by the counsel for the appellants that Hon'ble Patna High Court has decided that in such type of cases, regularization and the payment of salary should be made.
12. Looking to the peculiar facts of the present case, it appears that in the educational institutions, illegal appointments have been made without public advertisement. If such type of appointments are regularized, it will open floodgate for those who are adorning the high administrative posts and today's illegal appointments will come to the courts in 2025-30 and they will ask for their regularization. This cannot be allowed by this Court, especially, in the light of the aforesaid decisions rendered by the Hon'ble Supreme Court.
13. Counsel appearing for the appellants has also prayed for payment of salary from July, 1999. This contention is also not accepted by this Court mainly for the reason that those who are back door entrants or illegally appointed employees, they are not entitled for salary. At the highest, they can file a suit for damages. The word "salary" always goes with the remuneration payable to the legally appointed employees. Salary can be paid to the legally appointed employees and damages/ compensation can be paid to illegally appointed persons, looking to the work done by them.
14. It appears that appointing authorities sometimes are more charitable than the law. Charity beyond law is cruelty to others. This aspects of the matter, ought to be kept in mind, by those who are adorning high-ranking administrative posts.
15. In view of the aforesaid facts, reasons and judicial -11- pronouncements, no error has been committed by the learned Single Judge while deciding W.P.(S) No. 4875 of 2003 vide judgment and order dated 03.02.2017. We are in agreement with the reasons given by the learned Single Judge. We cannot take any other view than what has been taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed.
16. We direct the Registrar General of this Court to send the copy of this order to,
(a) Chief Secretary, Government of Jharkhand, Ranchi, who will issue Circular, in light of aforesaid judgment to be circulated to all the Secretaries & Deputy Commissioners of all the Districts;
(b) Secretary, Higher, Technical Education and Skill Development Department, Government of Jharkhand, Ranchi;
(c) Secretary, School Education and Literacy Development Department, Government of Jharkhand, Ranchi;
(d) All the Vice Chancellors of the Universities of the State of Jharkhand;
(e) All the Deputy Commissioners of the State of Jharkhand.
(D.N. Patel, A.C.J.) (Ratnaker Bhengra,J.) AFR SD/SB