Jharkhand High Court
Sheo Kumar Tiwari vs Jharkhand State Electricity Board on 19 September, 2018
Author: D.N. Patel
Bench: D.N. Patel, Amitav K. Gupta
1 L.P.A. No.491 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 491 of 2016
Sheo Kumar Tiwari, son of late Indradeo Tiwary, resident of Village -
Babudumi, P.O. & P.S.- Lesliganj, District - Palamau
... ... ... ... Appellant
Versus
1. Jharkhand State Electricity Board, through its Chairman,
Engineering Building, P.O. & P.S.- Dhurwa, District - Ranchi
2. The General Manager-cum-Chief Engineer, Jharkhand State
Electricity Board, Electric Supply Circle, Medninagar, P.O. & P.S.-
Daltonganj, District - Palamau
3. The Electrical Superintendent Engineer, Chairman Cell, Jharkhand
State Electricity Board, P.O. & P.S.- Dhurwa, District - Ranchi
4. The Electrical Superintendent Engineer, Jharkhand State Electricity
Board, Electric Supply Circle, Daltonganj, P.O. & P.S.- Daltonganj,
District- Palamau
5. The Executive Engineer, Jharkhand State Electricity Board, Elecric
Supply Division, Daltonganj, P.O. & P.S.- Daltonganj, Dist- Palamau
... ... ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant: M/s Manoj Kumar Choubey, Advocate
For the Respondents: M/s Mukesh Kumar Sinha (Sr. Standing Counsel),
Dhiraj Kumar (Standing Counsel)
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07/ Dated: 19 September, 2018
th
(Oral order)
Per D.N. Patel, J.
1) This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being W.P. (S) No.5178 of 2014 was dismissed by the learned Single Judge vide judgment and order dated 27th July, 2016, whereby the prayer of this appellant for getting salary for the period running from August, 2009 till August, 2012 was not accepted and hence, the original petitioner has preferred the present Letters Patent Appeal.
2) Having heard learned counsel for both sides and looking to the facts and circumstances of the case, it appears that this appellant had preferred a representation before the respondents for getting salary for 2 L.P.A. No.491 of 2016 the period running from August, 2009 to August, 2012, which was disposed of by the respondents vide order dated 14th February, 2014 (Annexure 11).
3) It further appears from the facts of the case that as per this appellant, he has worked for the respondents as a Lineman, whereas, as per the order dated 14th February, 2014 (Annexure 11) of the respondents, this appellant has never worked as a Lineman. This disputed question of fact is involved in this case.
4) This disputed question of fact, can only be established and adjudicated upon, by adducing cogent and convincing evidences to be led before the competent trial Court. Moreover, there is no appointment letter with this appellant for the post of Lineman. He wanted to lead evidence.
5) It has been observed by the learned Single Judge while deciding the writ petition being W.P. (S) No.5178 of 2014 vide judgment and order dated 27th July, 2016 in paragraphs 7 and 8 as under: -
"7. Having heard learned counsels for both the parties and upon going through the record, I find that no document of any appointment or engagement on daily wages against any sanctioned / approved post has been brought on record by the petitioner even in the present writ application. The petitioner is claiming that by the order of the higher authorities, he was engaged in the Electricity Board and from time to time, works were taken from him and orders were also passed for making payment. However, this fact is clearly disputed in the impugned order dated 14.2.2014 passed by the Executive Engineer, Daltonganj, and it is stated in the impugned order that no work was taken from the petitioner and he was not entitled to any payment of salary.
8. In view of the fact that the petitioner has also not produced any order showing his appointment or engagement on daily wages against any sanctioned / approved post, I am of the view that this case is one of the back door engagement of the petitioner. As such, I do not find any illegality in the impugned order, as contained in Annexure-11 to the writ application, rejecting the claim of the petitioner."
(Emphasis supplied) 3 L.P.A. No.491 of 2016
6) In view of the aforesaid observations, it appears that no appointment letter was even annexed with the writ petition, nor the same is annexed with this Letters Patent Appeal. Thus, the post of Lineman, which is alleged to have been occupied by this appellant, was in fact never assigned to this appellant. Moreover, this appellant could not point out anything that there was any public advertisement or the process for recruitment of the post of Lineman was ever followed.
7) It has been held by Hon'ble The Supreme Court in the case of Mohd. Ashif v. State of Bihar reported in (2010) 5 SCC 475 at paragraphs 13 and 14 as under:
"13. Applying the test laid down by this Court in Umadevi (3) case and the cases referred to above, to the case at hand, there is no gainsaying that the appointments of the appellants as Primary Health Workers were totally illegal and violative of Articles 14 and 16 of the Constitution which guarantee equality of opportunity to all those who were otherwise eligible for such appointments. The Chief Medical Officer who had made the appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which the appellants were appointed, considered. Surprisingly, the appointments had come by way of absorption of the appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs 50 only.
14. The High Court has, in our opinion, correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State-run dispensaries. The very nature of the appointment given to the appellants as Voluntary Health Workers was honorary in nature which entitled them to the payment of not more than Rs 50 per month. It is difficult to appreciate how the Chief Medical Officer could have regularised/absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health Workers which carried a regular pay scale and which could be filled only in accordance with the procedure prescribed for that purpose. The appointment of the appellants against the said posts was thus manifestly illegal and wholly undeserved to say the least. Inasmuch as these appointments came 4 L.P.A. No.491 of 2016 to be cancelled pursuant to the said directions no matter nearly a decade and a half later the termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. The High Court was, in that view of the matter, justified in declining interference with the order of cancellation and dismissing the writ petitions.
(Emphasis supplied)
8) It has also been held by Hon'ble The Supreme Court in the case of State of Bihar v. Chandrashwar Pathak reported in (2014) 13 SCC 232 at paragraphs 10 to 13 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:
(SCC pp. 451-52, paras 35-36) "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 5 L.P.A. No.491 of 2016 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 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 6 L.P.A. No.491 of 2016 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)
9) It has further been held by Hon'ble The Supreme Court in the case of Renu v. District & Sessions Judge reported in (2014) 14 SCC 50 at paragraphs 6 to 13 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 7 L.P.A. No.491 of 2016 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 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 8 L.P.A. No.491 of 2016 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 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 9 L.P.A. No.491 of 2016 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 (3), 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)
10) Thus, without any advertisement, without any written test and/or without any interview, no public post could be given to anybody and if any person has worked on a public post without any advertisement and 10 L.P.A. No.491 of 2016 without following the procedures established by the law for recruitment, then such a person cannot claim any salary attached with that public post. At the highest, a suit for damages can be filed by such type of "backdoor entrants", which is the only remedy available with a backdoor entrant and such damages shall be paid by the person who has taken the work, from his personal salary or from the pension, but, certainly, the "State" shall not be responsible for the damages.
11) In view of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed, reserving the aforesaid liberty with this appellant.
(D. N. Patel, J)
Manoj/ (Amitav K. Gupta, J)