Patna High Court
Ram Sevak Yadav vs The State Of Bihar & Ors on 1 February, 2013
Author: Navin Sinha
Bench: Navin Sinha, Samarendra Pratap Singh, V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.267 of 2010
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1. Ram Sevak Yadav W/O Late Shri Shivlal Yadav R/O Vill- Mahadeva, P.O.
Jageshwar Asthan, P.S. Phulparas, Distt. Madhubani
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar, Old
Secretariate, Patna
2. The Secretary Deptt. Of Health, Medical Education And Family Welfare, Govt.
Of Bihar, Patna
3. The Additional Secretary Deptt. Of Health, Govt. Of Bihar, Patna
4. The Director Health Services, Govt. Of Bihar, Patna
5. The Civil Surgeon-Cum-Chief Medical Officer Madhubani
6. The Incharge Medical Officer Primary Health Centre, Ghoghardiha, Distt.
Madhubani
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 472 of 2010
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1. Umesh Ram S/O Late Asharfi Ram R/O Village, Post Office And Police Station
Ghoghardiha, Distt. Madhubani
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Principal Secretary Department Of Health,
Government Of Bihar, Patna
2. The Director-In-Chief Health Services, Government Of Bihar, Patna
3. The Regional Deputy Director Health Service, Darbhanga Division, Darbhanga
4. The Civil Surgeon - Cum - Chief Medical Officer Distt.- Madhubani
5. The Incharge Medical Officer Primary Health Centre, Ghoghardiha, Distt.-
Madhubani
.... .... Respondent/s
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Appearance :
(In CWJC No. 267 of 2010)
For the Petitioner/s : Mr. L.K.YADAV
Mr. Prabhu Narayan Prabhakar
Mr. Binod Kumar Yadav
For the Respondent/s : Mr. (SC23)
(In CWJC No. 472 of 2010)
For the Petitioner/s : Mr. L.K.YADAV
Mr. Prabhu Narayan Prabhakar
For the Respondent/s : Mr. (GP4)
===========================================================
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 2
CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
and
HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
Date: 01-02-2013
The seminal reference to be answered is, if (2010) 9 SCC 247
(The State of Karnataka v. M. L. Kesari) makes a departure from the
distinction between an illegal and irregular appointment as held in (2006)
4 SCC 1 (State of Karnataka v. Uma Devi) for purposes of regularisation.
If it does, shall it constitute a precedent?
The petitioners in both applications were appointed on class
IV posts by the Civil Surgeon cum Chief Medical Officer on the
30.12.1989and 30.10.2001 respectively. The appointment letter of the former stated that on sympathetic consideration of his application he was being appointed in temporary capacity. That of the latter stated consequent to the letters of the In-Charge Medical Officer, he was being appointed in special circumstances and permitted to work as Sweeper (because he belonged to the same caste) but would have to face the selection committee at a subsequent date. They were terminated on 14.6.2001 and 30.10.2001 respectively on the ground that their appointments were illegal.
CWJC No. 11713 of 2003 was filed by the former. CWJC No. 11651 of 2002 by the latter was allowed on 8.9 2003 holding that termination after over a decade of service was unjustified. L. P. A. No 242 of 2004 preferred by the State, and the former writ application was heard together and disposed on 26. 6. 2006 with a batch of analogous applications led by L.P.A. no. 946 of 2003. The applications were not Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 3 tested on individual merits. They were disposed by a common order. The respondents were directed to reconsider after ascertainment of necessary facts, regularisation of the eligible under the directions contained in paragraph 53 of (Uma Devi) (supra). The authorities after reconsideration on 31.12.2008 declined regularisation holding that the appointments were forged. Thus the present writ applications.
Learned counsel for the petitioners contended that they had been appointed on sanctioned posts, and continued in service for over 11 years before termination. They were entitled to regularisation under the directions in paragraph 53 of (Uma Devi) (supra), and also on principles of sympathy and equity. Termination after 11 years of service preceded by a simple show cause notice was unjustified and insufficient. Their service book had been opened along with enhancement of salary. They were thus regular employees for all intents and purposes. Even if the respondents opined the appointment to be forged, they were required to hold a regular departmental proceeding and arrive at a determinate finding with opportunity of defence. In the inquiry held pursuant to the order of the Court, the petitioners were not associated or furnished opportunity to defend. The finding was ex parte and in violation of natural justice. The petitioners had originally questioned their termination and had not sought regularisation. If the latter writ petition was allowed, unless the order was set aside, he could not be denied the benefit by referring them to be considered for regularisation. The reference by the Court to consider them for regularisation in the facts of the case was itself improper and bad. Reliance was placed on 2008 [1) PLJR 841, 2009 (2) PLJR 869, 2011 (4) PLJR 1 and (2010 ) 9 SCC 247 [State of Karnataka v. M. L. Kesari).
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 4 The Additional Advocate General 1, opposing the writ application submitted that show cause notice was issued to the petitioners before termination. They did not reply the same. The petitioners have not placed correct facts before the Court either in the earlier writ application or the present. A truncated and distorted letter of termination has been placed by them to obtain advantage in Court proceedings by urging that no show cause notice was issued before termination. Their hands are soiled and unclean disentitling them to any relief. The appointment was illegal on the face of it. The issue of forgery as opined by the Committee subsequently loses its significance. The validity of the termination was not scrutinized on merits earlier. Relief came to be granted on the ground that the order was ex-parte, and they had continued for more than a decade and service books had been opened.
The reference by the Court to the authorities on the earlier occasion was accepted by the petitioners. They allowed the concerned committee to scrutinise their cases. After the fresh decision has gone against them, they cannot be permitted to rescile from their earlier stand and challenge the reference to the Committee itself.
There was no conflict between (Uma Devi) (supra) and (M.L.Kesari) (supra). The ratio decidendi in the former with regard to the distinction between an illegal and irregular appointment for purposes of regularisation had not been diluted or reinterpreted rather reaffirmed in the latter. The latter related to a claim for regularisation by daily wages. The petitioners were not appointed on daily wage. Exigency of circumstances may justify a daily wage appointment but for appointment of the present nature regular procedures in consonance with Article 14 Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 5 of the Constitution had to be followed. If there was any conflict between the two judgments, the Constitution Bench judgement shall prevail. To avail the benefit of any observation at paragraph 7 of M. L. Kesari (supra) it had to be demonstrated that the initial appointment was in accordance with Article 14 of the Constitution and on a sanctioned post.
Reliance in support of submissions was placed on A.I.R. 1976 SC 2547 and (2009) 7 SCC 751. (2008 ) 10 SCC 1, (2010) 4 SCC 179, 2011(4) PLJR(SC) 83, 2011(4) PLJR(SC) 90, 2011(3) PLJR 913, 2012(1) PLJR 366 and (2012) 6 SCC 502.
A litigant approaching the Court for relief has the foremost duty to honestly and faithfully present the correct facts. He cannot be permitted to distort and misrepresent essential facts. The stream of justice has to be kept clean and unpolluted. Any laxity can lead to complete subverting of judicial procedure with an unscrupulous litigant obtaining orders contrary to law, as observed in (2010) 4 SCC 728 (Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division) :
"20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."
The observations in (2012) 6 SCC 430 (A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 6 Sangam) are also apposite holding :
"43.1. It is the bounden duty of the court to uphold the truth and do justice.
43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."
The petitioners, in the earlier application as also the present, have filed typed copies of their termination orders. Any error in either of them only could have been considered inadvertent. But if the same error has persisted in both applications, it loses the quality of inadvertence. Reading the impugned orders, finding inconsistency of language, the Court requested Counsel for the petitioners to place the original letter of termination for perusal. The typed copy states that show cause notice was issued on 21.5.2001 which was replied by them. Both the writ applications nonetheless contended that the termination was ex parte in violation of the principles of natural justice. Reading the original termination letter, it reveals, show cause notice was issued on 21.5.2001 but the petitioners did not file any reply. Confronted with the correct facts in the present proceedings, the only explanation forthcoming during submissions was of an inadvertent error.
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 7 The presentation of a distorted official document and thereby obtaining advantage from the Court is a contemptuous act as held in (1995) 1 SCC 421 (Chandra Shashi v. Anil Kumar Verma). Awarding imprisonment it was held :
"14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt."
Once show cause notice had been issued, not replied to, the question for violation of the principles of natural justice or any prejudice does not arise. Counsel for the petitioner fairly acknowledged that show cause notice was issued but not replied. Natural justice is no abstract principle. Its applicability depends on the facts of each case. In (2004) 6 SCC 299 (N.K. Prasada v. Govt. of India) it was held :
"24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing."
The issue has been considered more recently in (2013)1 SCC 1 (Sahara India Real Estate Corp. Ltd v. Securities and Exchange Board of India) holding as follows :
"266. A person who has repulsed earlier opportunities(as the appellant companies have), has no right to demand any further opportunity under the rules of natural justice....one would therefore have no hesitation in concluding that a party which has not been fair, cannot demand a right based on a rule founded on fairness."
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 8 The aforesaid issues were sufficient to dismiss the writ application. But in view of the reference we are bound to answer the same.
Learned Counsel for the petitioners acknowledged that their initial appointment was not preceded by any advertisement or competitive merit selection. It is not their case that they were registered with the Employment Exchange. There is nothing to suggest that it was made against a sanctioned vacant post. On the contrary the language of the appointment letter more than sufficiently and inevitably manifests that it was a backdoor appointment doled out to them as an individual favour, treating them as blue eyed boys, reminiscent of the spoils system noticed in (2009) 5 SCC 65 (State of Bihar v. Upendra Narayan Singh). The opening of a Service Book and enhancement of salary cannot confer the camouflage of legality on such an illegal appointment. Considering such illegal appointments it was observed in (1992) 4 SCC 99 (Delhi Development Horticulture Employees' Union v. Delhi Admn.) :
"23.....The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money."
A person appointed in rank illegality cannot complain that the termination procedure was arbitrary. Those who came in through the back door must go out through the same door as observed in (1994) 2 SCC 204 (State of U.P. v. U.P. State Law Officers' Assn):
"19....This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door."
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 9 Employment under the State constitutes a national wealth. Every person eligible has a right to apply and be considered under Article 14 of the Constitution. The selection therefore has to be by open advertisement, equal opportunity for participation to the eligible and competitive merit selection. To dilute the requirement in any manner, shall not only be subverting the entire Constitutional scheme but shall also open the flood gates of favouritism, nepotism and corruption reducing public employment to pocket boroughs.
The word "illegal and irregular" have different connotations. The former denotes an action contrary to law from the very inception making it void ab-initio. The latter denotes rudimentary compliance with some procedures but with infractions which could be remedied. Reiterating the same in (Uma Devi)(supra) it was held :
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This Court stated:
"Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 10 convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation."
The impermissibility for regularisation of a rank illegal appointment was observed far back in (1997) 2 SCC 1 (Ashwani Kumar v. State of Bihar) (paragraph 13 & 14) and has been reaffirmed at paragraph 31 & 32 in Uma Devi (supra) :
"13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity. ...........It would amount to regularisation of back-door entries which were vitiated from the very inception. .........Whether they are posts or vacancies they must be backed up by budgetary provisions so as to be included within the permissible infrastructure of the Scheme. Any posting which is dehors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised. No right would accrue to the incumbent of such an imaginary or shadow vacancy.
14. In this connection it is pertinent to note that question of regularisation in any service including any government service may arise....... But this would require one precondition that the Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 11 initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be."
If an appointment was a rank illegality, even 15 years of service was considered inconsequential and claim for regularisation was denied in (2010) 5 SCC 475 (Mohd. Ashif v. State of Bihar) holding :
"7.....The all important condition precedent for such regularisation is that the initial entry of such an employee must be made against a sanctioned vacancy and by following the rules and regulations governing such entry."
The origin of the present appointments in rank illegality manifested from the language of the appointment letters has been taken notice of earlier. Appointments made in similar manner were denied the claim for regularisation in (2006) 5 SCC 493 (National Fertilizers Ltd. v. Somvir Singh) observing :
"13. The respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor was the employment exchange notified as regards existence of vacancies. It is Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 12 now trite law that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities...."
The unjustifiability of making temporary appointments against permanent post in a manner contrary to the law was noticed in (Uma Devi) (supra) as follows:
"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent--the distinction between regularisation and making permanent, was not emphasised here--can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete....."
The Constitution Bench in (Uma Devi)(supra) denying the right of automatic regularisation to daily wage, casual and temporary employees held at paragraph 43 as follows :
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 13 would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment"
in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.(Emphasis added by us)"
It was further observed at paragraph 45 & 47 in (Uma Devi) (supra) that the person obtaining such precarious appointment does so consciously aware of the peril and that he may have had no option in the matter in view of his need for employment or poor bargaining position are inconsequential issues. That such employees held no post and therefore had no claim for regularisation was observed in paragraph 48 as follows :
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 14 "48..... Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
The observations in paragraph 53 of the judgement in (Uma Devi) (supra) has therefore to be read, appreciated and understood in the background of the law as reiterated by the Supreme Court time and again consistently. Those taking a contrary view earlier stood denuded of their status as precedents under paragraph 54. The observations in the former paragraph cannot be simply read down to hold that irrespective of the nature of appointment the day ten years of service is completed regularisation can be claimed.
An interpretation at variance from (Uma Devi)(supra) was attempted on facts in (2007) 11 SCC 92 (U. P. State Electricity Board v. Pooran Chandra Pandey) by a Division Bench. It was not approved in (2008)10 SCC 1 (Official Liquidator v. Dayanand) by a bench of three Hon'ble Judges.
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 15 A claim for regularisation by daily wagers simplicitor on completion of ten years' service was denied in (2010) 3 SCC 115) (State of Karnataka v. Ganapathi Chaya Nayak). In (2010)4 SCC 179 (Satya Prakash v. State of Bihar) the claim for regularisation by a daily wager on completion of ten years' service without court intervention under paragraph 53(Uma Devi) (supra) was denied on the ground that the appointment itself was not in consonance with Article 14 and upon a sanctioned vacant post. That (Uma Devi) (supra) has been the subject of diverse interpretations has been noticed in (2008) 5 SCC 241 (Government of Andhra Pradesh v. K. Brahmanandam )also holding that claims originated in litigation before the Constitution bench decision ( as is the case presently also) could not be given the benefit of paragraph 53 observing as follows:
"20. In the light of the decision of this Court in Umadevi (3), para 53 thereof would be applicable subject to the condition that the matter had not been pending before any court or tribunal. Indisputably, the litigation between the parties was pending since January 2000. The institution's application for approval of the said appointments had been rejected. Therefore, para 53 of Umadevi (3) has no application."
Yet again in (2009) 17 SCC 184 (Veer Kunwar Singh University Ad Hoc Teachers Association v. Bihar State University (C.C.) Service Commission) it was observed :
"28. There has been a sea change in the legal position in view of the decision in Umadevi (3) and a large number of decisions of this Court following it. In a situation of this nature, when a subsequent event has occurred and when there exists a dispute as to whether order of this Court has substantially been complied with or not, it would not be proper for us to put the parties to the same position to which they were in 1989."
In (2009) 4 SCC 342 (State of Karnataka v. G.V. Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 16 Chandrashekar) the direction to regularise on completion of ten years of service was set aside holding at page 354 :
"32.........Initial recruitment of the respondents being wholly illegal and contrary to the constitutional scheme of this country, the impugned judgment of the High Court cannot be upheld."
In (2006) 2 SCC 702 (M.P. Housing Board v. Manoj Shrivastava) it was observed :
"10. It is one thing to say that a person was appointed on an ad hoc basis or as a daily-wager but it is another thing to say that he is appointed in a sanctioned post which was lying vacant upon following the due procedure prescribed therefor."
In M.L.Kesari (supra) it was observed at paragraph 7 as follows :-
"7. It is evident from the above that there is an exception to the general principles against "regularisation"
enunciated in Umadevi (3), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."(Emphasis added by us) As we read the paragraph, in our humble opinion, and to the best of our appreciation and understanding, a person not appointed Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 17 against a sanctioned post and not possessing the requisite qualification for the post is not entitled to regularisation even if he has worked for over ten years. But a person possessing the requisite qualifications appointed against a sanctioned post and who has continued over ten years without aid of Court orders is eligible for regularisation even if the appointment was made without the process of open competitive selection. The catena of decisions noticed by us of the Apex Court in no uncertain terms provide that if the appointment was in violation of Article 14 without advertisement and equal opportunity to all eligible for being considered, the question of regularisation does not arise. Only if some rudimentary compliance even by registration with and calling of names from the employment exchange was followed, could regularisation be considered if it was made against a sanctioned post. Mere appointment against a sanctioned post without furthermore shall not suffice. With all the humility at our command, again in our humble opinion a competitive selection even in such a case is the mandate of the Constitution bench at paragraph 43 extracted above.
Learned Additional Advocate General 1 has relied upon (2011) 2 SCC 429 (State of Rajasthan v. Daya Lal) holding :
"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme.
While something that is irregular for want of compliance with one of the elements in the process of selection which Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 18 does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.(Emphasis added by us) Learned Additional Advocate General 1 has also invited our attention to the observation in (1976) 4 SCC 52 (State of U.P. v. Ram Chandra Trivedi) holding :
"22. Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to anyone to urge with any show of force that the constitutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
Our attention has also been invited to (2009) 7 SCC 751 (Modern Dental College and Research Centre v. State of Madhya Pradesh) holding :
"8........It is well-settled that a larger Bench decision prevails over the decision of a smaller Bench."
In answering the reference we are also guided by the observations in (2001) 7 SCC 469, (Indian Petrochemicals Corpn. Ltd. v. Shramik Sena) "8. We have perused the impugned order of the High Court. We are unable to appreciate the approach of the High Court. Even when it was faced with diametrically apposite (sic opposite) interpretation of the judgment of this Court, it was expected of the High Court to decide the case (writ petition) on merit according to its own interpretation of the said judgment."
Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 19 Once the petitioners accepted the reference to the Committee, they are precluded from challenging the same after the Committee has rejected their claims.
The Additional Advocate General 1 has aptly relied on 2011(3) PLJR (DB) (Sunaina Devi v. State of Bihar) holding as follows :-
"13. Let it be noted that the present appellant did not challenge the order in appeal and she did submit to the authority of the Committee appointed by the Bench. In our opinion, it is not open to the appellant to challenge the constitution of the committee by the Bench."
Reliance by the Appellants on 2008(1) PLJR 841 (Ram Krishna Dubey v. State of Bihar) (DB) is misplaced on facts. It related to a termination for alleged illegal appointment much after regularisation without calling into question the latter act. Likewise 2009 (2) PLJR 869 (DB) is again distinguishable on its facts. It related to an earlier termination for unsatisfactory conduct set aside by the Court. The respondents raised no issues of illegal appointment. Having reinstated him, the respondents granted him increments and pay revisions also. As an afterthought years later the question of the original appointment being illegal was sought to be raised. In 2011 (4) PLJR 1 (State of Bihar v. Krishna Prasad Srivastava) the facts were entirely different. It related to a first termination itself on grounds of a forged appointment letter.
The public power to make appointment on public posts is conferred for public good. The power is given to the officer concerned by the government in trust, that it shall be used and not abused. If the trust is belied, the protection conferred upon a government servant stands denuded. The answerability and accountability is then individual of the Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 20 officer. The government is duty bound to take appropriate civil/ criminal action against the officer. The illegality in the appointment is not a one way street. If there was someone willing to pay a price for the job, there was another waiting to take advantage of the same by fixing a price. It is not without reason that majority of such appointments relate to class III and IV posts. The standard by which the government professes to act is the same standard by which its actions shall be judged. Therefore whenever the government terminates an appointment being illegal, it is the constitutional duty of the government to simultaneously take action against the officials who belied the trust of the government. Those who made hay while the sun shined must see the darker cloudy days also. In 1995(2)PLJR 573(DB) (Bimal Kishore Rai v. State of Bihar) it was directed :
"16. In cases where an appointment is found to have been illegally made, the courts quash the appointment and, therefore the appointee suffers the consequence. However, the real guilty person, namely, the appointing authority does scot free. The result is that even though large number of such appointments have been quashed by the courts, the appointing authorities have showed total indifference to the orders passed by the courts, and they continue to make such appointments. It is a well-known fact, so far as this state is concerned, that appointment in majority of cases has to be bought. The ordinary citizen who has concern for the law and morality, must suffer, even if in terms of capability and merit he is far superior to the unscrupulous ones, who managed the appointments. We have, therefore, felt the need to issue some directions in this regard, so that the appointing authorities, who are primarily guilty in such matters, and who exploit the jobseekers taking advantage of their hardship, are equally punished when such illegal appointments are brought to the notice of the government. I, therefore direct that in each and every case where an appointment is said to have been illegally made, in the sense that the rules governing the appointment have not been followed, and the appointment is made by flouting the law in such a manner that the motive of the appointing authority becomes suspect, simultaneously with the cancellation of such illegal appointment, action must be initiated against the appointing authority, and in appropriate cases they should Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 21 be immediately suspended pending departmental proceedings. If such action is not taken, courts will doubt the genuineness of the reason shown by the government for cancellation of such appointment. I direct that this should be complied with by the government in each and every case where an appointment is sought to be cancelled on the ground that it was illegally made in circumstances which give rise to a suspicion that the appointment was made on extraneous consideration, including money."
Court orders are not mere platitudes or idealistic rhetoric incantation. They are meant to be complied with. We therefore direct the State Government to identify the officials concerned with the present appointments and take appropriate action against them in accordance with law and expeditiousness. Let a report be then submitted within eight weeks.
We therefore sum up our conclusions and answer the reference as follows :-
A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;
B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances.
C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 22 regular appointment to the post.
D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.
The petitioners were appointed in temporary capacity by a process contrary to Article 14 of the Constitution without competitive selection as an individual favour doled out to them. There is no material to hold that they were appointed against vacant sanctioned post and possessed qualifications for the same. They were terminated before (Uma Devi) (supra) and have sought to retain their status by virtue of Court proceedings and are therefore not entitled to the benefits of paragraph 53. The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant.
The writ petitions are dismissed as devoid of merit.
(Navin Sinha, J) Samarendra Pratap Singh, J (Samarendra Pratap Singh, J) V. Nath, J (V. Nath, J) Patna High Court The lst February 2013 SNKumar/- (NAFR)