Patna High Court
Ravindra Pandey vs The State Of Bihar & Ors on 7 October, 2010
Author: Jayanandan Singh
Bench: Jayanandan Singh
CIVIL WRIT JURISDICTION CASE No.1564 OF 2002
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In the matter of an application under Article 226 of the
Constitution of India.
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Ravindra Pandey, aged about 37 years,
son of Late Saryu Pandey, resident of
village + P.O. Jhundo via Sono, P.S.-
Khaira, District- Jamui ------------- Petitioner
Versus
1.The State Of Bihar
2.The Secretary-cum-Commissioner, Department
of Education, Government of Bihar, patna
3.The Director, Secondary Education,
Government of Bihar, Patna
4.The District Education Officer, Buxar
----------- Respondents
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For The Petitioner : Mr.Ganesh Prasad Singh,Sr.Adv. with
Mr.Manish Kumar, Adv.
For The Respondents: Mr.Sunil Kumar Mandal, S.C.15 with
Mr.Bipin Kumar,Adv.
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P R E S E N T
THE HON'BLE MR. JUSTICE JAYANANDAN SINGH
Jayanandan Singh,J: In this writ application, petitioner has
challenged memo no.03 dated 4.1.2002 (Annexure-8),
containing an office order issued under the signature of
District Education Officer (hereinafter referred to as
`DEO‟), Buxar, by which services of the petitioner have
been terminated on the ground that his appointment was
made in violation provisions of letter No.16440 dated
3.12.1980of the Personnel & Administrative Reforms Department of the Government. A further prayer has been made for directing respondents to reinstate petitioner in service on the post of Clerk and pay him all consequential benefits thereof.
2. Factual aspects of the case of the petitioner are that, pursuant to a notice, pasted on the Notice -2- Board of the office of DEO, Bhojpur, petitioner submitted his application for appointment on the post of Clerk. He was having requisite qualification as he was a Graduate from Magadh University at that point of time. Hence, considering his eligibility for the post, after following due procedure, DEO, Bhojpur, issued appointment letter dated 3.8.1989 (Annexure-1), appointing him on the post of Clerk on ad hoc basis in K.P.High School, Dumri. Petitioner accordingly submitted his joining on 4.8.1989 in the School (Annexure-2), and started discharging his duties.
3. However, in the month of August, 1992, petitioner received a letter from the office of DEO, Bhojpur, dated 10.8.1992 (Annexure-3), asking him to explain as to why his services should not be terminated on account of his appointment having not been made in consonance with the procedure laid down for making appointments on Class III posts. This explanation was called for from the petitioner in view of memo no.1390 dated 8.7.1992 issued from the office of the Director, Secondary Education. It is contended that petitioner submitted his reply within one week. Thereafter, petitioner did not hear anything in this regard from the respondents and he continued in service. After some time, under the orders of DEO, Buxar, as contained in memo dated 10.1.1996 (Annexure-4), petitioner was transferred and posted as Clerk in the High School, Sikraul. About five years thereafter, petitioner again received a letter from the office of the DEO, Buxar, dated 21.9.2001 (Annexure-5), by which he was again asked to explain the -3- circumstances leading to his appointment, as the same was said to be not in consonance with the provisions of letter No.16440 dated 3.12.1980, and also to explain whether the post was advertised in newspapers; whether petitioner fulfilled requisite qualifications at the time of his appointment; whether interview letter was issued to him by any competent authority; whether he appeared before any Interview Board and whether reservation roster was followed in making his appointment. He was asked to submit his explanation on the above points within a week. Accordingly petitioner submitted his reply to the same on 8.10.2001 (Annexure-6) giving his explanation point wise.
4. Petitioner received another communication under the signature of DEO, Buxar, dated 31.10.2001 (Annexure-7), by which he was asked to submit further explanation within a week as his earlier explanation had not been found satisfactory. Petitioner, this time, submitted his reply with a stand that he had nothing more to say. Finally, petitioner received impugned office order under the signature of DEO, Buxar, dated 4.1.2002 (Annexure-8), by which his services were terminated with effect from the date of issue of the order. The order referred to some assurance no.46/108 of Legislative Council and the letter of the Director, Secondary Education dated 31.7.2001, and mentioned that his appointment was found illegal on account of non- compliance of procedure for appointment laid down in letter no.16440 dated 3.12.1980.
5. By filing a supplementary affidavit, it has been asserted that, at the time of his termination, -4- petitioner was being treated by the respondents as a regular Government employee, he was drawing salary in regular scale of a Clerk, and deductions were being made from his salary towards Group Insurance and G.P.F. Therefore, it is contended that, it was apparent that petitioner‟s services were regularized and he was a regular employee of the State Government.
6. Opening the case on behalf of the petitioner, Mr.Singh fairly accepted that, in the appointment of petitioner, there was no newspaper advertisement, there was no interview. However, he submitted that appointment on the basis of advertisement on Notice Board of the Office is not always bad and is valid in respect of appointments on less than five vacancies. He submitted that, normally, practice of advertisement in newspapers is to be followed, but in certain circumstances, appointments made on the basis of Notice Board advertisement can also be accepted as valid. He also submitted that as the petitioner was regularized, his services could not be terminated without following the procedure laid down for termination of services of regular employees and in terms of provisions of Article 311(2) of the Constitution of India. He further submitted that, since petitioner had the requisite qualification at the time of his appointment, he was appointed by the competent authority and had continued for 12 long years, he could not be terminated summarily, only by issue of show cause notice.
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In support of his submissions, learned senior counsel relied upon the following judgments and called upon this Court to consider them :-
(1) 1983 PLJR 667(FB) : Bijay Kumar Bharti Vs. State (2) 1987 PLJR 1074(FB) : Awadhesh Kumar Choudhary Vs. State of Bihar (3) AIR 1990 SC 1607 : Direct Recruit Class II Engg.
Officers‟ Association Vs. State of Maharastra (4) 1997(1) PLJR(SC) 59 : Ashwini Kumar Vs. State of (1997)2 SCC 1 Bihar (5) 2008(1) PLJR 841 : Ram Krishna Dubey Vs. State (6) 2009(2) PLJR 869 : State of Bihar Vs. Indra Mohan Rai (7) (2007)1 SCC 575 : State of M.P. Vs. Lalit Kr. Verma (8) 2009(3) PLJR 201 : Ashok Kumar Vs. State of Bihar (9) AIR 1990 SC 261 : Sundarajas Kanyalal Bhathija Vs. Collector, Thane (10) (1998)2 SCC 44 : Usha Kumar Vs. State.
7. A counter affidavit has been filed in this case on behalf of respondent no.4. It is stated in the counter affidavit that the appointment of the petitioner would be governed by the Bihar State Secondary School (Service Conditions) Rules, 1993, which specifically provides for appointments on Class III posts to be made on the basis of panel prepared at the district level by a Committee headed by the concerned DEO, and after following the procedure as laid down in the said letter No.16440 dated 3.12.1980 of the Personnel & Administrative Reforms Department. As the said procedure was not adopted in the appointment of the petitioner, his appointment was rightly held illegal and, therefore, petitioner was rightly terminated from service. It is stated that appointment letter of the petitioner itself -6- shows that his appointment was on ad hoc basis and no procedure was followed as, admittedly, no advertisement was published in the newspapers and no interview was held. It is stated that, the stand of the petitioner that notice was pasted on the Notice Board of the office of the DEO was false and petitioner has not furnished any proof of the same. Learned counsel for the respondents submitted that, in fact, petitioner‟s appointment was out and out a back door appointment which would be evident from the fact that petitioner belongs to Jamui district, which situates in the eastern part of the State, whereas he was appointed against the alleged vacancy in Buxar district, which situates on the western end of the State. This shows that the alleged Notice Board advertisement, and petitioner‟s response to it by submitting application, was altogether a false story. It is also stated that before termination of his service, sufficient opportunity was given to the petitioner to submit his explanation. It is also stated that the DEO had no authority to appoint petitioner without following the procedure laid down in law and that the termination of the petitioner was in the light of instructions received from the Director, Secondary Education vide his said letter dated 31.07.2001. It is contended that, in view of authoritative pronouncements of the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi : (2006)4 S.C.C.1 : 2006(2) PLJR 363 and judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Lalit Kumar Verma : (2007)1 S.C.C. 575, petitioner had no right to continue in service on -7- the basis of such illegal appointment. In the counter affidavit, reliance was also placed on the judgment of this Court in the case of Chandrashekhar Vs. State of Bihar : 2007(4) BBCJ 134.
In support of his submissions, learned counsel for the State has relied upon the following judgments :-
(1) 2006(2) PLJR 363 : Secretary, State of Karnataka (2006)4 SCC 1 Vs. Uma Devi (3) (2) (2007)1 SCC 575 : State of M.P. Vs. Lalit Kr. Verma (3) 2009(4) PLJR(SC) 73 : State Vs. Upendra Narayan Singh;
(4)(2008)1 SCC 798 : Nagendra Chandra Vs. State of Jharkhand (5) 2007(4) BBCJ 134 : Chandrashekhar Vs. State of Bihar (6) (2008)1 SCC 98 : State of Maharastra Vs. Mana Adim Jamat Mandal (7) 1997(1) PLJR(SC) 59 : Ashwini Kumar (8) (2006)2 SCC 482 : UPSC Vs. Girish Jayantilal Vaghela (9) AIR 1996 SC 1565 : State of H.P. Vs. Suresh Kr.Verma (10) 2003(1) PLJR 657 : Upendra Kumar Vs. State of Bihar (11) 2006(3) PLJR 551 : Anil Kr.Singh Vs. State of Bihar (12) 2007(4) PLJR 373(SJ) : Ram Krishna Dubey Vs. State of Bihar (13) 2008(1) PLJR 841(DB) : Ram Krishna Dubey Vs. State of Bihar
8. Strong reliance has been placed by learned counsel for the respondents on the Constitution Bench judgment in Uma Devi's case (Supra) to contest the claim of the petitioner. It has been contended that, in view of the said Constitution Bench Judgment, appointment of the petitioner was totally illegal and hence he never got the status of a Government servant. Therefore, none of his claims, of having been treated as regular Government servant by conduct, or having continued in service for a -8- long period, or his appointment being only irregular, as having been made pursuant to a Notice Board advertisement, are of any help to the petitioner. He submitted that this aspect of the matter stands finally concluded by the said judgment of the Constitution Bench.
9. To the contrary, learned senior counsel for the petitioner, with equal force, has submitted that the judgment in Uma Devi‟s case (Supra) is not at all applicable in the case of the petitioner. He submitted that petitioner was appointed and was treated as a regular Government servant. It is his termination on the ground of his alleged illegal appointment which is presently under challenge before this Court, whereas in Uma Devi‟s case (Supra) question under consideration was confined only in respect of right of regularization or absorption of temporary/daily wages employees in service.
He submitted that the entire consideration in the case of Uma Devi (Supra) was confined around this question and no where question of validity of termination of a regular employee on the ground of his initial illegal appointment fell for consideration before the Constitution Bench.
10. since applicability or otherwise, of the law laid down by the Constitution Bench in Uma Devi (Supra) in the case of petitioner is being contested by learned counsel for the parties, it is appropriate for this Court to start consideration of judicial pronouncements from the said Constitution Bench Judgment itself. It may be noticed that case of Uma Devi (Supra) was initially listed before a two Judges Bench of the Apex Court. Considering the questions involved, and two -9- conflicting views appearing from two sets of judgments of the Court, reference was made to a three Judges Bench, vide order reported in 2003(9) SCALE 187. When the matter was listed before a three Judges Bench, it felt the need of getting the law authoritatively settled by a larger Bench. Hence, after hearing the arguments of learned Additional Solicitor General of India, by an order of reference reported in 2003(10) SCALE 388, same was referred to a Constitution Bench. The order of reference by the three Judges Bench of the Apex Court reads as follows :
"............ Apart from the conflicting opinions between the three Judges‟ Bench decisions in Ashwani Kumar and Ors. Vs. State of Bihar & Ors., reported in 1997(2) SCC 1, State of Haryana and Ors. Vs. Piara Singh and Ors., reported in 1992(4) SCC 118 and Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. Vs. State of Karnataka and Ors., Reported in 1990(2) SCC 396, on the one hand and State of Himachal Pradesh Vs. Suresh Kumar Verma & Anr., reported in AIR 1996 SC 1565, State of Punjab Vs. Surinder Kumar and Ors., reported in AIR 1992 SC 1593, and B.N.Nagarajan and Ors. Vs. State of Karnataka and Ors., reported in 1979(4) SCC 507 on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka Vs. H.Ganesh Rao, decided on 1.6.2000, reported in 2001(4) Karnataka Law Journal 466, learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench)............"
(SCC, Para-10)
11. In the circumstances, Constitution Bench observed as follows :
".......... We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should."
(SCC, Para-10)
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12. The Constitution Bench further made it clear, in the following words, that the law being laid down by it was meant to be followed by the High Courts:
".......... The very divergence in approach in this Court, the so called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down."
(SCC, Para-14)
13. Hence, the Constitution Bench delved into the matter from all angles, considered the judgments reflecting conflicting views, disagreed with the views reflected by the first set of judgments as noticed in the order of reference, and settled the law in clear terms. At the end, the Constitution Bench clarified the binding nature and overriding effect of its judgment, to give finality to the principles laid down, in the following words :
"It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
(SCC, Para-54)
14. Thus, in view of the above observations of the Constitution Bench, all decisions of Apex Court or any High Court of the Country, running counter to the principle settled in the judgment obviously stand impliedly overruled and become nullity.
15. While considering the issue, the Constitution Bench made detailed consideration of the situation which has emerged due to conflicting judgments
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and sympathetic or equitable approach by the Courts in the matter of entertaining the plea of temporary, ad hoc or daily wage employees for their regularization under various circumstances. It noticed that this difference in approach had developed a class of employment, which could be called „litigious employment‟, as a phoenix, which class benefited itself with such conflicting and contradictory approach of the Courts in the matter, many a times based on mistaken sympathy and equity. Approach of the Courts on the ground of equity in such matters was seriously disputed by the Constitution Bench in the following words :
".......... The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment?
..............." (SCC, Para-5)
16. In respect of powers of the High Courts under Article 226 of the Constitution of India in such matters, the Constitution Bench held as such :
"............ It has to be emphasized that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten."
(SCC, Para-4)
17. It was further clarified by the Constitution Bench, in the following words, that the Courts were required to desist from giving so called equitable approach to temporary employment or engagement on daily
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wages and the continuance of such persons and be engaged in work for a certain length of time :
"......... It cannot also be forgotten that it is not the role of Courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution..........." (SCC, Para-13)
18. The distinction between regularization and conferment of permanence in service was considered by the Constitution Bench in reference to a judgment of the Court in the case of State of Mysore Vs. S.V.Narayanappa:
1967(1) SCR 128, and in the case of R.N.Nanjundappa Vs. T.Thimmiah & Anr.: (1972)2 SCR 799, and following observations of the Court made in the later case was noticed with approval :
" Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization 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 regularized. Ratification or regularization 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............."
(SCC, Para-15)
19. Referring to the case of B.N.Nagarajan Vs. State of Karnataka : 1979(4) SCC 507, the Constitution Bench observed as follows :
".......... this Court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of
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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 emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization 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 recognized 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......."
(SCC, Para-16) And thereafter, the Constitution Bench held as follows :
"........... 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization." (SCC, Para-16)
20. Although the Constitution Bench accepted that, in appropriate cases, the executive may have a right to regularize the appointments which may have been made following due procedure with some infraction in respect of non-fundamental element of the process, but limits of such right of the executives was clearly defined by the Constitution Bench in the following words:
"...........This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent." (SCC, Para-17)
21. Thereafter, the Court proceeded to consider its various earlier judgments, reflecting the conflicting
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views, including the judgments of cases noticed in the order of reference of the three Judge Bench (as quoted above) and clearly disproved the approach reflected from Piara Singh (Supra), Dharwad (Supra) and other cases. Finally, the Court quoted paragraphs 6 and 7 from Indra sawhney case [1992 Supp (2)SCR 454] and concluded as follows :
"........... These binding decisions are clear imperatives that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment." (SCC, Para-41)
22. Finally law was laid down by the Constitution Bench, for guidance of all Courts of the Country, in the following terms :
"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 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
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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, regularization, 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."
(SCC, Para-43)
23. Thereafter, pleas of „equal pay for equal work‟ of „legitimate expectations‟ of `violation of Article 21 in not making such appointees permanent‟ and claim of „right to equal treatment‟ raised at the instance of such employees were also considered by the Constitution Bench and negatived. It was only by way of exception to the rule that the Court allowed, as a one time measure, process to be started within six months from the date of judgment, for consideration of cases of such employees for regularization, who had continued on the post for ten years or more, without intervention of orders of the Court, and in whose appointment some irregularities only could be found to have been
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committed. But simultaneously, the Constitution Bench also put a lid on those cases which stood already regularized and not sub judice before any Court at any stage by observing thus :
" ..... We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
(SCC, Para 53)
24. Upon consideration of the Constitution Bench judgment, it appears to this court, that law has been laid down by it, for all courts to follow, while dealing with the issues from different angles, which may be crystallized as follows :-
A) - In matters of public employment the mandate of Constitution must be followed. Hence all appointments, against regular vacancies, on sanctioned posts or vacancies of long duration must be made following the rules holding the field in this regard and following the provisions of Articles 14 & 16 of the Constitution of India.
B) - Articles 14 & 16 are parts of basic feature of the Constitution. Therefore consistent with the Constitutional scheme of equality in public employment it is held 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.
C) - However, an employer is not precluded from making appointments on temporary posts by engaging workers on ad-hoc basis or on daily wages or as additional hands or taking them in, without following the required procedure, to discharge the duties in respect of the posts which are sanctioned or are of long duration, or to work in temporary posts or projects or under a valid scheme, that are not of permanent nature, or on contract basis for a fixed term. But this has to be done only to meet the needs of the situation, as per the contingency arising with the immediate object at hand, and the same should soon be followed by a regular appointment, if situation or contingency requires continuance the post beyond a time limit, and such appointments to non-available posts should not be taken note of or ground for regularization.
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D) - No Court, either under Article 32 or under article 226 of the Constitution, can ordinarily direct for absorption in permanent employment such appointees. It is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme and such appointments do not confer any right on the appointees and that the Courts cannot direct their absorption or regularization or re- engagement or making them permanent by upholding violation of Articles 14 & 16 and thus preventing regular appointments. In this respect "litigious employment"
would not entitle an appointee to be absorbed or made permanent and High Court may not be justified in issuing any interim directions, since the same would hold up regular procedure for selection.
E) - „Regularization‟ and „conferment of permanence‟ carry two distinct connotations in service jurisprudence.
Regularization can be only in respect of a thing which is irregular and it does not confer permanence in service. What is illegal and done against the constitutional mandate and in clear violation of the statutory rules cannot be regularized and it is not and cannot be a mode of recruitment by any State within the meaning of Article
12. F) - Regularization or ratification is possible only of an irregularity or defect which is within the power and province of the authority to regularize or ratify. Defects attributable to the methodology and of non- compliance of any element in the process of selection, which does not go to the root of the process and which the authority may have power to regularize, can only be termed as irregular. But where rules framed under Article 309 are in force, the breach of any provisions thereof cannot be regularized by any authority in exercise of powers under Article 162.
G) - The right of the executive to order for regularization an irregularity, within the above limits, and the power of the court in this regard would not extend to the executive or the court to being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules in that behalf, can be treated as permanent or can be directed to be treated as permanent.
H) - The concept of „equal pay for equal work‟, based on principles of equality, or plea of continuance for a considerable length of time, or doctrine of legitimate expectation, or claim for equitable considerations, or claim of violation of Article 14 & 16 (rendering same worked on less wages for a long time), or claim of fair treatment, or violations of principles of Article 21, cannot be invoked by such appointees so as to ask for a mandamus from a Court for making them permanent, as they cannot show that they have any enforceable legal right to
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be permanently absorbed or that the State has legal duty to make them permanent.
I) - Law, thus laid down, is to operate prospectively. Therefore, regularization already made, and not sub- judice, need not be reopened, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
25. In view of this authoritative pronouncement by the Constitution Bench, it is not, in fact, necessary to refer to and consider any earlier judgment of any Court which may appear to be expressing a different view than expressed by the Constitution Bench in the matter. To put it at rest, the Constitution Bench has also, in clear terms, held that all the decisions running counter to the principles settled by it would stand denuded of their status as precedents and thus by necessary implication has overruled them.
26. Learned senior counsel for the petitioner has very strongly advanced the argument that the Constitution Bench has not delved upon the issue of termination of confirmed or regularized employees from service, initially appointed illegally, and that the protection of Article 311(2) of the Constitution is available to them, or not.
27. It is true that this aspect of the matter has not been specifically dealt with by the Constitution Bench, but the Constitution Bench has held that no authority of the Government has the power to regularize or confirm an illegal appointee, appointed de hors the rules and contrary to the mandate of the Constitution contained in Articles 14 and 16. Petitioner of the present case has not brought on record any evidence to
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show that his services were regularized or confirmed. Hence, question of protection of Article 311(2) of the Constitution available to him, or not, does not arise in this case at all. But learned senior counsel for the petitioner has referred to a large number of decisions, as indicated above, and has called upon this Court to consider them. Learned State counsel has also, in reply, referred to certain decisions with a request to this Court to consider them also. Therefore, in all fairness, it is appropriate to notice and consider the judgments as referred to by learned counsels for the parties.
28. The first judgment, in point of time, as relied upon by learned senior counsel for the petitioner is a decision of a Full Bench of this Court in the case of Bijay Kumar Bharti (Supra). The judgment was delivered by the Full Bench in a batch of writ applications, wherein orders of termination of temporary employees were under challenge. The primary challenge of the petitioners‟ to their termination orders was on the ground that the Department, Agency or Corporation, where they were employed, was an `Industry‟ within the meaning of Industrial Disputes Act, 1947, and therefore, before their termination, provisions of section 25F of the Act was necessarily to be complied with, failing which termination orders were liable to be quashed. Another ground of challenge to the termination orders was that, even though their services were temporary in nature, prior to their termination, they were entitled for notice and opportunity of hearing. The question of respondent Departments, Agencies and Corporations falling within the
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definition of `Industry‟ was decided in respect of each of them separately and, in some cases, the Court held that there was infraction of section 25F in termination of individual petitioner. So far as question of notice and opportunity of hearing was concerned, learned Judges, in concurring but separate judgments held that, in cases of termination simpliciter, and termination on the ground of appointment being illegal and irregular, a temporary employee was not entitled for any notice and/or any opportunity of hearing. In the leading judgment, Hon'ble Mr.Justice S.Sarwar Ali, the then the Acting Chief Justice, made this position clear, in respect of appointees who had not acquired any future right, in the following words :
"........... The illegality or irregularity is at the level of the administrator/ appointing authority. No one has a right to be appointed irregularly. His position is that of a person who has no right to the post. There is no stigma attached in the removal..........."
(para-18) This was further clarified by his Lordship subsequently in the judgment in the following words :
"............ In my view, the effect of the impugned orders, where the termination is on the ground of illegality or irregularity in the initial appointment, is to declare that from the beginning there was no valid appointment.............." (Para-20) As against this, His Lordship clearly held (in para 19) that where right (of temporary appointees) to preferential treatment in the matter of future appointment and the legitimate expectation of the employees is wiped off, as a result of the order of termination, rules of natural justice would apply; so
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also in the case of termination of a temporary employee as a punishment or casting stigma, appearing from the order, or from foundation of the order, or the action being arbitrary (para-16) where provisions of Article 311 of the Constitution will be attracted.
N.P.Singh,J. in his separate but concurring judgment has supported the view of Sarwar Ali,J. in the following words :
" It cannot be disputed that whenever the service of a person appointed on temporary basis is terminated saying that the appointment in question had been made in an irregular or illegal manner, it does not amount to any stigma or penalty. In my view, such orders cannot be held to be invalid because before passing such orders opportunity to show cause was not given to the person concerned. Such employees know very well that their services could be terminated at any time even without notice. Merely because in the order there is reference to the nature of their appointment will not change the legal position................." (Para-59) and held that such termination for all practical purposes amounts to an order of termination simpliciter.
However, to the category of termination, attracting compliance of principles of Natural Justice and provisions of Article 311, his Lordship added one more type of termination in which the same was sought to be effected from the date of appointment itself.
29. The next decision, relied upon by learned senior counsel for the petitioner in chronology, is of another Full Bench judgment of this Court in the case of Awdhesh Kumar Choudhary (Supra). The majority judgment extensively referred to judgment of the earlier Full Bench in Vijay Kumar Bharti (Supra) and followed the ratio laid down therein, and agreed (para-10) with the
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observation of the Division Bench in the case of Diwakar Pd.Yadav Vs. State of Bihar : 1986 PLJR 873 which were as follows :
".......... that where the termination was on the ground of illegality or irregularity in the initial appointment it was only to declare that from the beginning there was no valid appointment and in such a situation, the petitioners were not entitled to any show cause and no question of any violation of principles of natural justice could arise.............." (Para-10)
30. The law laid down by these two Full Bench Judgments clearly demolishes the case of the present petitioner and the reliance placed on them by the learned senior counsel for the petitioner is wholly misconceived.
31. The next judgment relied upon by learned senior counsel for the petitioner, in chronology, is the Constitution Bench Judgment of the Apex Court in the case of Direct Recruit Class II Engg. Officers' Association (Supra). After discussing the various aspects of the issues involved in the backdrop of relevant judicial pronouncements made by the Court earlier, the Constitution Bench summed up its conclusions in paragraph 44 (AIR). Conclusions (A) and (B) of the Constitution Bench, which has some relevance for the purpose of present case, are as follows :
"44 (A). Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post
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uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted."
32. It may be relevant to note that, the issues before the said Constitution Bench in the case were in respect of inter se seniority between directly recruits and promotees, weightage of their period of officiation, the necessity to and breach in adherence to quota rule continuously for a number of years and its consequences and inferences arising from it etc., which were clarified by the Bench in the other conclusions mentioned under other heads in the said paragraph. It is significant to point out that the principles laid down by the Constitution Bench in the case were all in context of post confirmation and post regularization scenario and disputes arising at that stage. The Constitution Bench, delivering judgment in Uma Devi (supra), has also taken care of post confirmation and post regularization status of an illegal/irregular appointee by expressly prohibiting reopening of their cases, if not sub judice from before, as noticed in paragraph 23 above.
33. Another Apex Court Judgment, relied upon by learned senior counsel for the petitioner was of Ashwani Kumar (Supra). This was a case involving the question of termination of large number of employees appointed by one Dr. Mallick under the Health Department in this State. While considering the cases, three Judges Bench of the Apex Court held the termination orders as valid and legal as appointments were undisputedly established as illegal, void, made without following the
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rules, against non-existing post/vacancy, and the termination orders were found to have been passed after affording opportunity of hearing to the concerned employees. This judgment of a three Judge Bench has been considered by the Constitution Bench (SCC,Para 31-32). It extracted the following observation of the Bench wherein two situations were discussed where regularization may be permissible :
".......... In this connection it is pertinent to note that question of regularization in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the 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 regularization 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 regularized 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....." (SCC, Para-31) (emphasis is mine)
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Thereafter the Court also extracted the following passage from Ashwini Kumar (supra) wherein it was held that so called regularization or confirmation could not be relied on as a shield to cover up initial illegal and void actions :-
"On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Article 14 and 16(1) of the Constitution both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so-called regularization and confirmation could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme ...." (SCC, Para 32)
34. Learned senior counsel for the petitioner, next referred to the judgment of a Division Bench of this Court in the case of Ram Krishna Dubey (Supra). In this case, the Division Bench in a short judgment held that "a permanent employee‟s services can only be terminated by following the procedure laid in Rules for removal of permanent employees and that procedure must be accorded within Article 311(2) of the Constitution". The Division Bench held that in the case of termination of a permanent employee, judgments of the Apex Court in the case of Uma Devi (Supra) and Lalit Kumar Verma (Supra) were not applicable as the case at hand was not a case of claim of regularization, but the termination of a permanent employee. As will be noticed herein, later on, this judgment was held per incurium subsequently by another Division Bench. However, services of the present petitioner having not matured into permanent service in
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accordance with the rules and there being no specific orders of the competent authority in this regard available on reocrd, this judgment, as it is, is of no help to him.
35. Another judgment relied upon by learned senior counsel for the petitioner, is of another Division Bench of this Court in the case of Indra Mohan Rai (Supra). The Division Bench found, on fact, that petitioner was a permanent employee and also that termination order was issued in reference to entirely different circular which did not find mention in the show cause notice to the employee. The Division Bench also noticed that it was not alleged either in the show cause notice, or in the termination order or in the counter affidavit that petitioner had secured employment by perpetuating fraud or misrepresentation and that there is not even a whisper that any action has been taken against the officers who were responsible for not following Government circulars while giving appointment to the petitioner. In respect of procedure to be followed for termination of a permanent employee, the Division Bench observed as follows :
"............ It would be travesty of justice if a permanent employee in the Government service for many years, is terminated from service without following the procedure prescribed in Article 311(2) of the Constitution of India on a specious plea that the procedure for appointment prescribed by the Government circular was not followed, more so, in a case where appointee is not alleged to have committed any wrong or fraud or that he secured appointment by some misrepresentation. The position would be different where the appointee is a temporary employee."
(Para-9)
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and thereafter the Division Bench held the case of that petitioner covered by Ram Krishna Dubey (Supra) and it reproduced the observations made therein. This judgment is also of no help to the petitioner for the same reason that there is nothing on record to establish his claim that his services had become permanent.
36. Learned senior counsel for the petitioner has also relied upon the judgment of Apex Court in Lalit Kumar Verma (Supra) to contend that as the petitioner was appointed pursuant to a Notice Board Advertisement, at best, his case could fall in the category of irregular appointment and not illegal appointment. However, this Court has failed to find any passage in the said judgment of the Apex Court in Lalit Kumar Verma (Supra) which could be held to be in support of this proposition advanced by him.
37. Lastly, learned senior counsel for the petitioner referred to the judgment of another Division Bench of this Court in Ashok Kumar (Supra) in respect of the matter presently under consideration. As per his submission, even if the Division Bench in this case has held the judgment of Ram Krishna Dubey (Supra) as per incurium, it still extracted the clarification made in para 44 (PLJR) and accepted the same as useful guide in following words :
"......... In this context, the aforesaid `clarification‟ by the Constitution Bench becomes relevant and useful as a guide otherwise the judgment in the case of Umadevi (supra) could be used as a basis for reopening of any appointments made at any point of time, may be even in relation to retired employees.
......................" (Para-15)
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38. However, from another angle, learned senior counsel for the petitioner challenged the said order of the Division Bench in Ashok Kumar (Supra) on the ground that the Division Bench had not followed the judicial decorum and legal propriety. As per his submissions, if the Division Bench was not in agreement with the views of the Division Bench in Ram Krishna Dubey (Supra), it was not open to it to differ from the same and hold the same as per incurium. Relying upon the following passages from the cases of Sundarajas Kanyalal Bhathija (Supra) and Usha Kumar (Supra), he submitted that the only course open to the Division Bench in Ashok Kumar (Supra) was to refer the matter to a larger Bench :
"............ One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a large Bench. It is a subversion of judicial process not to follow this procedure." (Sundarjas- Para- 17) "Judicial discipline requires that if two Division Benches of the same High Court take different views, the matter should be referred to a larger Bench. One Division Bench cannot ignore or refuse to follow the decision of an earlier Division Bench of the same Court and proceed to give its decision contrary to the decision given by the earlier Division Bench."
(Usha Kumar- Para 17)
39. In a befitting reply to the efforts of learned senior counsel to defend the case of the petitioner, learned counsel for the State has also relied on a fleet of judgments in defence of action taken by the
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respondents in terminating the services of the petitioner, using the judgment of Constitution Bench in Uma Devi (Supra) as a flagship. On the question of judicial discipline required by the Division Bench in the case of Ashok Kumar (Supra), learned counsel for the respondents submitted that in case of Ashok Kumar (Supra), the Division Bench had clearly found the judgment of the Division Bench in Ram Krishna Dubey (Supra) in teeth of a Full Bench judgment of this Court as well as in teeth of Apex Court judgments. He submitted that it was not on the basis of its own different opinion that the Division Bench in Ashok Kumar (Supra) held Ram Krishna Dubey (Supra) as per incurrium. He submitted that, as a fact, it was found by the Division Bench in Ashok Kumar (Supra) that Full Bench judgment of this Court in Vijay Kumar Bharti (Supra) and Apex Court judgment in Ashwini Kumar (Supra) and other cases were not referred to and brought to the notice of learned Division Bench in Ram Krishna Dubey (Supra). The Court also found that as per said judgments and settled law, availability of protection under Article 311 (2) of the Constitution could be claimed only if an employee had entered into arena of civil service validly and lawfully. It referred to the observations of the Apex Court in Ashwini Kumar (Supra) wherein it was clearly observed that regularization or confirmation to an illegal appointee would be an exercise in futility and "it would amount to decorating a still born baby". Hence, in the circumstances, the Bench held the judgment of co-ordinate
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Bench in Ram Krishna Dubey (Supra) per incurium in the following terms :
"..........judgment of the Division Bench in the case of Ram Krishna Dubey was per incurium of the aforesaid judgments. If those judgments had been cited by counsel for the parties, the distinction would have been clear between an issue which involves validity of very entry into civil service and other issues which may attract Article 311(2) of the Constitution when the status of an employee as civil servant is not in dispute."
(para-11)
40. Learned counsel for the respondents also referred to the Judgment of learned single Judge in the case of Ram Krishna Dubey (supra), to contend that, in fact, the said petitioner had not been confirmed in service and his appointment had been found to have been made without advertisement and on a forged appointment letter, which fact was not noticed by the Division Bench and it proceeded only on the submissions of learned counsel for the appellant that services of petitioner were confirmed.
41. By referring to the case of State of H.P. Vs. Suresh Kumar Verma (Supra), he also submitted that the Courts should heavily come down upon illegal appointments and should not in any way allow to generate nepotism and corruption in the ranks of the Government by blatant ignorance and defiance to the rules in this regard. In particular, he referred to the following observations made by the Apex Court in the judgment :
"........... The appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. .........."
(Para-4)
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42. Learned counsel for the respondents also referred to the case of Lalit Kumar Verma (Supra) to submit that, as noticed in this case also, the legal position in respect of illegal appointments viz-a-viz irregular appointments was somewhat uncertain before the judgment of Constitution Bench in Uma Devi (Supra). After going through the judgment, this Court finds that in this case distinction between illegal and irregular appointment has been discussed in detail and, on the lines of Uma Devi (Supra). It has been held that illegal appointees were neither entitled to regular scale of pay nor regularization. This Bench also noticed B.N.Nagarajan (supra), which was referred to by the Constitution Bench in Uma Devi (Supra) also, to lay down distinction between illegal appointment and irregular appointment.
43. Reliance was next placed by learned counsel for the State on the judgment of the Apex Court in the case of Upendra Narayan Singh (Supra). In this case, termination of large number of appointments made by one Dr.Darogi Razak, Regional Director, Animal Husbandry, Gaya was in question. In context of the issues raised in the case, the Court discussed, in detail, the spirit and mandate of Articles 14 and 16 of the Constitution; once prevalent spoil system in USA; deterioration in the matters of public employment specially to lower strata in the country; the development of illegal employment market; expanded meaning given to equality clause enshrined in Articles 14 and 16 in some judgments of the Courts of 1980s and 1990s leading to the spread of spoil
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system in this Country. Thereafter, the proposition laid down in Piara Singh (Supra), casting a duty on all authorities to regularize eligible ad hoc and temporary employees continuing for a fairly long spell with satisfactory service, and its adverse effects was noticed by the Court in following words :
"............ The propositions laid down in Piara Singh‟s case (Supra) were followed by almost all High Courts for directing the concerned State Governments and public authorities to regularize the services of ad hoc/temporary/daily wage employees only on the ground that they have continued for a particular length of time. In some cases, the schemes framed for regularization of the services of the backdoor entrants were also approved. As a result of this, beneficiaries of spoil system and corruption garnered substantial share of Class III and Class IV posts and thereby caused irreparable damage to the service structure at the lower levels. Those appointed by backdoor methods or as a result of favoritism, nepotism or corruption do not show any commitment to their duty as public servant. Not only this, majority of them are found to be totally incompetent or inefficient." (Para-21) The Court thereafter noticed large number of judgments to the contrary, denying reinstatement and regularization of illegal appointees/back door entrants and heavily relied on and extensively referred to the Constitution Bench Judgment of Uma Devi (Supra) and held that the approach of the Division Bench of the High Court, by not going into the question of legality or legitimacy of initial appointment, only on the ground that the State had not challenged the dismissal of L.P.As. filed in other cases, was not correct. The Apex Court held that the guarantee of equality before law as enshrined under Article 14 of the Constitution is a positive concept and cannot be enforced by a citizen or
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Court in a negative manner. The Court also noticed large number of decisions of the Court laying down that "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 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" (Para-34). The Court, therefore, did not find the orders of learned single Judge, as well as orders of learned Division Bench, as correct, and set it aside, and dismissed the writ applications of the petitioners finding, as a fact, that the appointments of all the writ petitioners were glaringly illegal.
44. learned counsel for the respondents also referred to Division Bench judgments of this Court in the cases of Chandra Shekhar (Supra) and Upendra Kumar (Supra) to point out that in the cases of illegal appointments this Court has repeatedly declined relief to the petitioners, finding the appointments as illegal and in teeth of mandate of Articles 14 and 16 of the Constitution and also declined any consequential relief. He submitted that, the Bench in Upendra Kumar (Supra), noticed in the judgment some of the circumstances which go in making of what is known in the State as "Naukri Scam"
45. Learned counsel for the State further referred to the judgment of a learned single Judge in Anil Kumar Singh (Supra), wherein this Court, relying upon judgment of the Constitution Bench in Uma Devi
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(Supra), has held that "long continuance in irregular or illegal public employment cannot sustain a claim to permanence".
46. Lastly, on this issue, learned counsel for the State put heavy reliance on a judgment of the Apex Court in the case of UPSC Vs. Girish Jayantilal Vaghela (Supra). In this judgment, Apex Court has very elaborately discussed the concept of „civil post‟ and member of civil service in the background of language of Article 311 of the Constitution. In the judgment, relationship of employer and employee, in the field of public employment as well as private employment, distinction between contract of service and contract for service, relationship of master and servant and status of a Government employee have been elaborately discussed. The Court found that the writ petitioner was appointed as Drug Inspector on contract basis for a fixed term of six months, or till candidate appointed by the UPSC joined the post, whichever was to be earlier. However, his appointment was renewed after every six months, with short breaks and it continued for over five years. Ultimately when advertisement was issued for regular appointment, writ petitioner had become overage by two years. Hence, he applied for age relaxation which was not granted, leading to filing of applications before the Administrative Tribunal, where he ultimately failed. Petitioner thereafter moved the Bombay High Court which directed the Administrator to issue age relaxation certificate and directed the UPSC to consider his case for appointment as Sub-Inspector. After considering the
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issues raised in the case, the Apex Court held that, since appointment of the writ petitioner was contractual and it was made de hors the rules, he could not be held to be holding a „civil post‟ and to have become a member of civil service of Union Territory so as to claim protection under Article 311(2) of the Constitution. While considering the mandate of Article 16 of the Constitution, the Court held as follows :-
"................ A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on the 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." (Para-12)
47. In respect of submissions of learned senior counsel for the petitioner that Notice Board Advertisement was valid in law, and at best it may be an irregularity, learned counsel for the State referred to judgment of Ashwini Kumar (Supra) as well as judgment of Nagendra Chandra (Supra) to point out that Notice Board Advertisement has been clearly held by the Apex Court as not sufficient compliance to the mandate of Article 16 of the Constitution. In the case of Nagendra Chandra (Supra), question of appointment of constables, following recruitment process as laid down in Rule 663 of Bihar Police Manual, was under consideration. The Court held that the vacancies had not been advertised in newspapers and through Employment Exchange and had been notified
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only through notice displayed on the Notice Board, which was not sufficient compliance of the Rule and therefore, appointments made on that basis were in infraction of recruitment rules and violative of Articles 14 and 16 of the Constitution, and thus being nullity, was liable to be cancelled.
48. Reliance was placed by the Court in Nagendra Chandra (supra) on the earlier judgment of the Court in Ashwini Kumar (Supra) in the following manner :
"7. In Ashwani Kumar V. State of Bihar[(1996)7 SCC 577] large number of appointments were made by Dr.Mallick, Deputy Director, Health Department, Government of Bihar, by notifying the vacancies on the notice board. When the illegality was brought to the notice of the Government, the appointments were cancelled which necessitated filing of writ petitions before the High Court which were dismissed and when the matter was brought to this Court, the cases were placed before a two-Judge Bench consisting of K.Ramaswamy and B.L.Hansaria,JJ. There was difference of opinion between the two learned Judges. K.Ramaswamy,J. (as His Lordship then was), held that the vacancies having been put up on the notice board, there was flagrant breach of Articles 14 and 16 of the Constitution. The learned Judge observed in SCC para 26 at p.594 thus:
"26. Admittedly, except putting up the vacancies on the notice board of the Tuberculosis Centre at Patna, no advertisement inviting applications from the open market was made nor were the names called from the employment exchange ....... The procedure adopted by Mallick in either appointing or directing to appoint persons who had applied for appointment pursuant to the notification of vacancies put up on the notice board was stage- managed by him and is in flagrant breach of Articles 14 and 16(1) of the Constitution."
Hansaria,J. dissented from the aforesaid view expressed by Ramaswamy,J., and, therefore, the matter was placed before a three-Judge Bench in Ashwani Kumar V. State of Bihar [(1997) 2 SCC 1] in which order of the High Court was upheld and directions were given, inter alia, for making appointments by publishing notice in all the newspapers having circulation in the State
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of Bihar inviting applications for filling up the vacancies." (Para-7)
49. In this context, this Court may also usefully refer to a Full Bench judgment of this Court in the case of Rita Mishra Vs. Director, Primary Education, Bihar [1987 PLJR 1090 (FB)]. In this case primarily a mandamus was sought from this Court for payment of salary of the petitioners for the periods they had actually worked prior to their terminations on the ground of having got into service on the basis of forged, bogus and fraudulent letters of appointment. The findings of the majority view, on the issues considered by it may be usefully reproduced as here below :
"45. In this somewhat exhaustive judgment it is indeed apt, if not necessary, to collate the basic conclusions arrived at. In the light of the aforesaid discussion it is consequently held-
(1) Where the letter of appointment is a forged one and the appointee is either a party or a privy thereto, then no substantive right to salary can accrue there from.
(2) Where the letter of appointment is forged, but the appointee is neither a party nor a privy to the same, even then, no substantive right to statutory salary can arise from a document which is non-est or a nullity. It is neither necessary nor desirable to pronounce on the aspect, whether a civil suit for compensation under section 70 of the Contract Act for services rendered not gratuitously or any other analogous law would be successfully maintainable.
(3) Where the letter of appointment has been obtained by the appointee fraudulently or for dubious considerations, no substantive right to salary stricto sensu would arise. (4) Where the letter of appointment is flagrantly violative of the prescribed statutory procedure for selection and appointment to the post, the same would be illegal and there being no valid appointment in the eye of law, no substantive right to salary would arise.
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(5) On the procedural aspect, where the basic and material facts are categorically controverted and traversed, the exercise of writ jurisdiction would be inapt and this would be doubly so in the case of a writ of mandamus which cannot possibly issue on such a slippery base.
(6) Where the petitioners had not come to the portals of a writ Court with clean hands, they must be relegated to their ordinary remedies.
(7) That Article 23 of the Constitution is not attracted in a situation of statutory service, where the letter of appointment is forged, fraudulent or illegal.
(8) That the doctrine of equal pay for equal work is not at all attracted to the case.
(9) That Article 21 of the Constitution or the right of livelihood there under has not the remotest analogy to the particular context. (10) That the de facto doctrine of working on a post is distinct and separate and cannot possibly be invoked to sustain any claim for salary stricto sensu where the very appointment thereto is in serious doubt."
50. Having noticed the law laid down by the Constitution Bench as well as the judgments referred to by learned counsels for the parties, it is clear that it was never in dispute that illegal appointments, made in flagrant breach of the provisions of the rules and the mandate of Articles 14 and 16 of the Constitution were totally illegal and never created any right in the appointee to continue on the post and claim benefits of the same. It is appropriate for this Court to point out that, as far back as in 1983 itself, a Full Bench of this Court in the case of Bijay Kumar Bharti (Supra) had clearly held that termination of service, on the ground of appointment being illegal or irregular, did not call for compliance of Principles of Natural Justice even. In fact, it held that termination of such employees, on the ground of illegality or irregularity, was only a
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declaration that from the very beginning there was no valid appointment. This view was reiterated in subsequent Full Bench decisions also as discussed above. Therefore, it can be fairly claimed, to the credit of this Court that, the approach of this Court, from early 1980s, had been in consonance with the law laid down by the Constitution Bench now.
51. It is true that, as noticed by the Apex court in the case of Uma Devi (Supra) and again in Lalit Kumar Verma (Supra), earlier there was some uncertainty in judicial approach due to consideration of the claims of such appointees in individual cases on account of equity, hardship, balance of convenience etc. due to their long continuance. But this uncertainty now stands cleared by authoritative pronouncement of the Constitution Bench in the case of Uma Devi (Supra) and, in clear terms, it now stands laid down that no right accrues to such appointees and no relief can be granted to them merely on account of their long continuance in service. The findings of the judgment, as noticed earlier, clearly establish that, to claim any benefit of a public post as of right, the entry in the arena of public service has to be legal and valid. The protection of Article 311(2) of the Constitution can also be successfully claimed only if claimant is found to be holding a civil post validly. The right to hold the post includes necessarily right to hold it validly. Hence, only in case of valid appointment, constitutional safeguards, such as laid down under Article 311(2) of the
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Constitution, are available to a party alleging breach of the same.
52. Constitution Bench was alive to the situation that, due to uncertainty in judicial approach, there may be cases in which such appointees may have continued for a long time and may have also got regularized or confirmed. But it was also conscious that in view of the law laid down, an employee appointed in clear breach of rules and constitutional mandate of Article 14 and 16 could never get a right to be considered for continuance on the post with consequential benefits. Hence, it was only by way of exception that the Constitution Bench (SCC, Para 53 : PLJR, Para 44) allowed the employers to consider the cases of those incumbents for regularization, process to be started within six months from the date of judgment, as one time measure, in whose cases some irregularity (as distinguished from illegality in the judgment) only was committed in the process of their appointment, which did not go to the root of the legality of their appointment, if they had continued for ten years or more as such.
53. The Constitution Bench also did not intend to allow the employers to use its judgment as a tool to open settled cases in which the employees may have already been regularized/absorbed. Hence, in express words, the Constitution Bench clarified the position in the same paragraph (SCC, Para 53 : PLJR, Para 44) that the cases of those employees, who, (even though may have been appointed in breach of the rules and against the constitutional mandate), may have already been
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regularized in service, where, as an exception, not to be opened by applying the law laid down in the judgment in their cases.
54. However, exceptions are always exception to the rule and general law applicable in given circumstances. They are, therefore, required to be construed strictly. No liberal interpretation can be made to an exception to widen its scope so as to allow a judgment, rule or principle to get diluted or relaxed. Hence, in the opinion of this Court, unless the act of regularization already done, could be established in very clear and definite terms, this protection granted by the Constitution Bench (in SCC, Para 53 : PLJR, Para 44) cannot be available to any employee. In other words, in absence of specific categorical order in writing of regularization or confirmation of service, by a competent authority, on due application of mind, with follow up action of grant of benefits thereof, the protection as above, granted by the Constitution Bench, may not be available to an employee to claim a relief from the Court on that basis. In the opinion of this Court, there can be no inference in this regard and such benefit clearly cannot be claimed on the basis of presumptions, inferences, conducts or on the basis of collateral evidence. An employee, claiming protection under the said observations of the Constitution Bench, against any action by his employer on the basis of the law laid down in the judgment, has to conclusively establish beyond any reasonable doubts that he is covered by the exception laid down by the Constitution Bench, for grant of relief
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by a Court. So far as present case is concerned, except for the averments made, that too, through supplementary affidavit, that deductions towards Group Insurance and G.P.F. were made from his salary, nothing has been brought on record by the petitioner to show that he was entitled to the protection of the exception laid down by the Constitution Bench, as of right.
55. Now, if the said observations (clarification) of the Constitution Bench (in SCC, Para 53 : PLJR, Para 44) are kept in mind, it appears to this Court that there is not much conflict between the law laid down by the Constitution Bench and the observations of the Division Bench of this Court in the case of Ram Krishna Dubey (supra) and Indra Mohan Rai (supra). The Constitution Bench has clearly drawn a line, between those who already stand regularized and/or confirmed, may be on account of illegal acts of their employers, and thus already stand entered in the arena of public employment and to have become holder of a civil post, and those who still are found placed out side the arena. In the latter‟s case, the law laid down by the Constitution Bench has to be strictly applied and there has to be no further bypassing of Constitutional requirements and regularizing or making permanent, those not duly appointed as per the Constitutional scheme. On the other hand, in the former‟s case, such regularization and/or conferment if already made may not be reopened now, on the basis of the judgment. The Constitution Bench made this distinction, obviously because those already regularized and/or confirmed, get a right to hold the
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post and security of tenure as per the statutory rules of the State, and are open to any action, including any action to end their tenure by termination, only in accordance with the rules and constitutional safeguard laid down in Article 311(2). This protection given to the regularized employees by the „clarification‟ made by the Constitution Bench has been noticed by the Division Bench in Ashok Kumar (supra) also, as extracted above. In the circumstances, the observations made in Ram Krishna Dubey (supra) and Indra Mohan Rai (supra), in the opinion of this Court, does not appear to be in direct conflict with the law laid down by the Constitution Bench, subject, of course, to the limitation that any regularization and/or confirmation, post Constitution Bench Judgment in Uma Devi (supra), of appointments made in violation of statutory rules and against the mandate of Article 14 & 16 of the Constitution, will be against the law laid down therein and hence clearly illegal and void and no protection of Article 311(2) will be available to the concerned employee on the basis of such regularization and/or conferment, thus, in a way, endorsing the harsh expression of the Court used in Ashwini Kumar (Supra) that "it would amount to decorating a still born baby" .
56. The submission of learned senior counsel for the petitioner that the Constitution Bench judgment in the case of Uma Devi (Supra) will not be applicable in the case of the petitioner is apparently devoid of merits. It is true that in Uma Devi (Supra), the Constitution Bench was not dealing with termination of an illegal appointee, but, it has held that an illegal
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appointee has no right to continue on the post, even if he may have remained in service for a considerable length of period. It has also been clearly laid down that daily wages, ad hoc and temporary appointment, de hors the rules, can be made only for a short period and in the light of needs of the situation. In case of likelihood of continuance of the post or work, such appointees have to give way to regular appointments following the rules and procedure in consonance with mandate of Articles 14 and 16 of the Constitution. This clearly shows that once an appointment is found to have been made in violation of rules and against the mandate of Article 14 and 16, the same has to be terminated. Termination of such appointee is natural corollary to the law laid down by the Constitution Bench. Therefore, act of the respondents, terminating the services of the petitioner, is in consonance with the ratio of the Constitution Bench. As held earlier, petitioner clearly does not fall in the category of said exception, carved out by the Constitution Bench by way of „clarification‟, to get any relief from this Court.
57. One issue raised by learned senior counsel for the petitioner requires some independent consideration. He has submitted that since appointment was to be made on Class III post and for lesser number of vacancies, advertisement published on Notice Board of the office of the DEO, Bhojpur was sufficient compliance of law in this respect. Right of a citizen to compete, get selected and appointed on public posts flows from Article 16 of the Constitution. Once appointed, he is to be
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governed by the rules framed under Article 309 of the Constitution and is entitled to protection as laid down under Article 311 thereof. It is only appropriate to produce here the expression used by the framers of the Constitution in Article 16(1) for proper appreciation :
"Article 16(1). There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State."
58. It is significant to note that this Article of the Constitution mandates equality of opportunity - for all citizens - in matters relating to - employment or appointment. Hence, as per mandate of Article 16(1), information in respect of an opportunity available for appointment on availability of vacant posts, has to be made known to the maximum number of citizens, which is possible only if this information is made to reach to them at their normal place of living. This necessitates advertisement in respect of such opportunity in media most accessible to and accessed by the Citizens. Therefore, Courts have been insisting for publication of such advertisement in newspapers with wide circulation and easily available in every corner of the State or the Country, as necessary. This requirement is clearly not fulfilled by a notice on Notice Board of the office concerned. The notice on the Notice Board is viewed only by the employees of the office or by people who visit the office and pass on the information to the person(s) in whose engagement or employment they may be interested. This information reaches to only minuscule citizens. Those, who do not have people to inform them or who do
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not visit the offices remain in dark about such opportunity. This clearly negates the mandate of "equality of opportunity for all citizens" enshrined in Article 16. In a given situation, it may be that for engagement for a few days for a particular requirement at local level, some appointments on the basis of Notice Board Advertisement, or only by calling names from the local Employment Exchange only, may suffice. As accepted by the Constitution Bench also, such appointments, by way of ad hoc appointment, may not require compliance of the rules and the constitutional mandate. But this has to be established as a fact. Continuance of such appointee for longer period will create presumption that in the appointment there was breach of rules and of constitutional mandate. Additionally, mandate of the Constitution providing equality of opportunity in matters relating to employment and guaranteed under Article 16 requires, in no uncertain terms, equal opportunity to apply against available vacancy and equal treatment in consideration of candidature in the process of selection, denial of which can, by no stretch of imagination, be termed as irregularity and can only be held as gross illegality violating Articles 14 and 16 of the Constitution.
59. Now coming to the present case, it is apparent that, in spite of legal position having been clarified by this Court repeatedly, since 1983 at least, and clear procedure to be followed in the matter laid down by the Government under Personnel and Administrative Reforms Department‟s letter nos.16440 dated 3.12.1980, the
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DEO concerned appointed the petitioner, in 1989, on his alleged response to a Notice Board advertisement. Although petitioner was appointed, but only after about three years, his appointment came under cloud, when notice was issued to him to explain the circumstances connected with his appointment. It may be that the file containing notice and reply of the petitioner remained ignored, overlooked or suppressed for a number of years, due to which petitioner continued for about nine years more, but this cannot legitimize his appointment so as to make him entitled for any relief from this Court.
60. Although, merely on facts, the writ application was fit to be dismissed, but for the insistence of learned senior counsel for the petitioner calling upon this Court to consider decisions referred to and relied upon by him, which this Court has done. The result of the said consideration of the judgments of this Court further fortifies the opinion of this Court that there is no merit in the case of the petitioner and the same is fit to be dismissed which is accordingly dismissed.
61. However, before parting with the judgment, this Court will like to deal with one more aspect of the matter. The earliest judgment of this Court relied upon in this case, i.e. judgment in the case of Bijay Kumar Bharti (Supra), and the elaborate guidelines for making appointment on public post by the Personnel and Administrative Reforms Department issued in 1980, show that the incidents of illegal and back-door appointments by the functionaries of the State Government had already
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started in the State and had become very rampant. Government did issue clear cut instructions, directions and warnings, but apparently the same remained ignored by the functionaries of the Government and the same were violated by them with impunity. The appointees were in fact at receiving end. They were unemployed, facing difficulty in even arranging for two square meals a day for their family, not to talk of other bare necessities of clothing for their family, upbringing of their children, their education, etc. They did need an employment urgently. It was not their concern as to how the same was provided by the authorities who were in a position to offer engagement to them. It was hardly their concern whether rules of the Government and the constitutional mandate were complied with by the public functionaries, or not. They were offered appointment and they grabbed it with both hands. It was the duty of the public functionaries to comply with the rules and constitutional requirements and it was duty of the Government to see to it that its functionaries act in accordance with law and not otherwise. However, it appears that the State Government lacked the will and courage to take stern action in the matter from the very beginning. Hence, except for issuing directions and orders on paper, and issuing warnings, nothing apparently was done to stop this practice by its functionaries. The result was that illegal appointments continued and, at times, with the change in the office, illegal appointees also changed as per the choice of the holder of the office. This Court as far back as in 1983 was alive to the situation and in so many words
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had observed that the State and its authorities shall be failing in their duty if they do not take appropriate action against such persons. This Court can do no better than to reproduce following observations of Sarwar Ali.J (the then Hon‟ble the Acting Chief Justice) while delivering his leading judgment in the Full Bench in Bijay Kumar Bharti (Supra) in this regard :
"25. The other general observation that I would like to make is that we have found that in a number of cases, perhaps, numbering over hundred by now, temporary employments have been terminated by the various departments of the Government or by Corporations like Biscomaun, Food Corporation and the like. In most of these cases we have found that there is no allegation against the petitioners. The guilty parties, if any, are the appointing authorities who are officers of the State or the Corporations. In such a situation the minimum that is expected is that the Government or the authorities concerned should take appropriate action against those who are guilty of the alleged illegality or irregularity. If the error is bona fide they may be excused. But where there are motives or considerations other than legal and proper considerations, not to take appropriate action against the delinquent persons, however high they may be, is to encourage illegal and invalid appointments. I am, therefore, firmly of the view that the State or the authorities concerned would be failing in their duty if they do not take appropriate action against the persons concerned. Some cases may even invite investigation by agency like C.B.I., and the launching of criminal prosecutions. Even in cases of officers retiring after
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making the appointments, the hands of the authorities are not tied. In the case of Government servants for instance, action for reduction or stoppage of pension can be taken after starting proceedings in accordance with law."
62. In last more than twenty years, the State Government and its authorities have not risen to the expectations of this Court voiced as above. Will they now?
(Jayanandan Singh,J.) Patna High Court The 7th October, 2010 A.F.R./ Pradeep/