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WITH [C.A. Nos. 10760-11058/95; 11062-66/95; C.A. No. 16746 of 1996 (arising out of S.L.P.(C) No.6174/92; C.A. No. 16747 of 1996 (arising out of S.L.P.(C) No.14275/94; C.A. No. 16748 of 1996 (arising out of S.L.P.(C) No.7410/95; and C.A., No. 16749 of 1996 (arising out of S.L.P.(C) No. 24553 (C.C. 4638/95] J U D G M E N T S.B. Majmudar. J.

Leave granted in S.L.P.(C) Nos.6174 of 1992, 14275 of 1994. 7410 of 1995 and S.L.P.(C) No. 24553 (CC 4638/95).

This group of appeals, on grant of special leave to appeal against the common judgment of Patna High Court in CWJC No.5163 of 1993 and batch decided on 6th May 1994, has been placed before this larger Bench by the orders of Hon'ble the Chief Justice on account of difference of opinion between two learned judges of this Court, K. Ramaswamy, J. and Hansaria, J., constituting the Division Bench which earlier heard this group of matters. Before the main points for difference are highlighted and the contentions of respective contesting parties are noted, it would be necessary to note at the outset the backdrop facts leading to these proceedings.

Backdrop Facts One Dr. A.A. Mallick, Deputy Director, Health Department of the Government of Bihar, was in charge of Tuberculosis for a number of years while he was working as a member of the medical service of the State of Bihar. He was Director of the Tuberculosis Centre at Patna. Eradication of Tuberculosis was taken up as a part of 20-Point Programme in planned expenditure. The activities in the Tuberculosis Centre at Patna were extended to various districts. Since Dr. Mallick happened to be the Director of the Centre, he was made Deputy Director of the Scheme. The Government had also issued directions to the District Medical Officers to abide by the instructions of Dr. Mallick in implementation of the programme. He was made the Chairman of Selection Committee constituted by the Government consisting of himself. Assistant Director of Pilaria and a senior officer representing Scheduled Castes/Scheduled Tribes to recruit 2250 class III and Class IV employees on posts created to implement the Scheme in addition to around 800 to 900 staff in Patna Centre in all categories. Taking advantage thereof, the undisputed fact is that, he appointed around 6000 (as found by the Committee) while the Government asserts them to be approximately 7000. Be that as it may, not less than 6000 persons were appointed by Dr. Mallick without any written orders. He directed many of them to be adjusted by transfer by District Medical Officers and some of them had produced fabricated appointment orders. He shuffled their payment of salaries by turns. Another device adopted in the macabre episode was to make the employees go on strike and when some sensitive M.L.As. raised the question, on the floor of the State Legislative Assembly, off illegal appointments made by Dr. Mallick, the Government initially posed the appointments to be legal and justified his action to be valid. Later, when facts themselves proved their faulty admission, they made amends before the Assembly and the Government made an elaborate statement apprising the House that the information furnished earlier was not correct.

4. What relief, if any, can be granted to the appellants.

We shall deal with these points seriatim.

So far as the initial appointments of 6000 Class III and Class IV employees by Dr. Mallick are concerned it has to be kept in view that Dr. Mallick was Director, Tuberculosis Centre at Patna. Eradication of tuberculosis was taken up as a part of 20-Point Programme under the Planned Expenditure. The activities of the Programme were extended to various districts. It cannot be disputed that Dr. Mallick was the appointing authority for these classes of employees who had to work on the Scheme. He was duly made Chairman of the Selection Committee constituted by the Bihar State Government. The Committee consisted of Dr. Mallick, Assistant Director of Pilaria and a senior officer representing Scheduled Castes/Scheduled Tribes. This Committee was entrusted with the task of recruiting 2250 Class III and Class IV employees. These posts were created to implement the Scheme in addition to 800-900 staff in Patna Centre in all categories. It goes without saying that the budgeted expenditure for recruitment of 2250 employees on these sanctioned posts was a planned expenditure. As these were the only sanctioned posts under the Scheme it passes one's comprehension as to how Dr. Mallick could persuade himself to recruit 6000 employees on these 2250 sanctioned posts. Learned counsel for the appellants in written submissions tried to urge that there were more sanctioned posts while the learned counsel for the State of Bihar tried to assert that Dr. Mallick had appointed approximately 7000 persons. But as both the learned judges constituting the Division Bench, namely, K. Ramaswamy, J. and Hansaria, J. proceeded on the accepted position on record that Dr. Mallick unauthorisedly appointed 6000 employees on the sanctioned 2250 posts we will proceed on that basis. It becomes, therefore, clear that at least 3750 employees were drafted in the Scheme by Dr. Mallick without there being any vacancies to receive them. Under these circumstances their initial entry must be held to be totally unauthorised, incompetent and void. It is axiomatic that when these recruitments were not supported by any budgetary grants there will be no occasion to make available finances to meet their salary expenses. Even apart from that, Dr. Mallick threw all the discretion to the winds, acted as monarch of what he surveyed and in a most arbitrary fashion adopting the principle of 'pick and choose', recruited these 6000 employees completely violating the established norms and procedures for recruiting Class III and Class IV employees as laid down by the State government from time to time. We agree with the contention of Shri Singh, learned counsel for the respondent-State that all these recruitments made by Dr. Mallick were arbitrary, capricious and were null and void as he did violence to the established norms and procedures for recruiting such employees, Dr. Mallick was not giving appointments to these employees on his private establishment. He was recruiting them in a government Programme which was supported by Planned Expenditure. Such recruitment to Public services could not have been effected in such a cavalier fashion in which it was done by Dr. Mallick. We are not in a position to persuade ourselves to agree with the contention of learned counsel for the appellants that the Government Order of 3rd December 1980 would not apply to these recruitments as this was a unique and distinct Scheme under 20-Point Programme. Even if it was a scheme under 20-Point Programme it was to be carried out as per planned expenditure. It is obvious that when planned expenditure is required to be incurred, budgetary sanction is a sine qua non. unfortunately Dr. Mallick treated this Scheme as his private property. The device adopted by him was in flagrant violation of all norms of administrative procedure known to law. In this connection we may profitably refer to Government Order dated 3rd December 1980 which is found at page 344 of the Paper Book in Civil Appeal Nos. 10758-59 of 1995. This Government Order deals with the procedure of appointment to Class-3 Posts in Government offices. There is a similar Government Order of even date for recruitment of Class-4 servants. That is annexed at page 352 in this very Paper Book. it is issued by the Department of Personnel and Administrative reforms, Bihar State. As this recruitment was done in a centralised manner at Patna for different districts under Tuberculosis Eradication Scheme to be carried out in all the districts in a phased manner, we may refer only to that part of this Government Order which referred to the procedure to be adopted for recruitment in Secretarial Services at Patna. it has been in terms laid down that in the Secretariat and its attached offices, a Selection committee shall be constituted. It will be chaired by the head of the concerned establishment and one of the members of this committee will be any senior officer as nominated by the Head of the Establishment. Other members of the committee will be officers belonging to SC/ST working in the same department. As per this G.O. so far as recruitment to Class III posts is concerned a merit list has to be prepared on the basis of marks obtained by the candidates at school or college examinations and appointment to the vacant posts will be made according to the instructions enclosed with the concerned Resolution. The vacancies will have to be communicated to the nearest employment Exchange of respective areas wherein the concerned offices exist. so far s G.O. concerning recruitment to Class IV servants is concerned, the Committee appointed for the purpose has to publish the advertisement through the Employment Exchange as per the direction contained in appointment Department Circular No. 8160 dated 21st June 1966. Government instructions regarding reservation for SC/ST also have to be adhered to. It is not in dispute that none of these instructions and the procedure laid down for recruiting Class III and class IV employees were followed by Dr. Mallick while recruiting adhoc/daily wage employees at the initial stage in the Tuberculosis Eradication Scheme supervised and monitored by him. However, learned counsel for the appellants vehemently submitted that these two Government orders would not apply and what applied for these recruitments was the government Resolution dated 25th March 1983. It is found at page 404 of the Paper Book in these civil appeals. The said Resolution of the Bihar Government in the Health Department issued under the signature of Joint Secretary to the Government shows that in super session of all the previous orders, the State Government had decided to constitute Selection Committee for regular appointment against the posts of class III and class IV under Malaria, filaria and T.B. Programme. The officers noted against their names would function as Chairman and members. A mere look at this Resolution shows that it indicates the appointing authorities who have to recruit staff on the concerned programme mentioned therein. Dr. Mallick would necessarily, therefore, be the Chairman of the Tuberculosis Control Programme Recruitment Committee. But the very Resolution indicates that recruitment had to be for regular appointments to be made by the Selection committees to Class III and Class IV posts under Malaria, filaria and T.B. Programme. Therefore, recruitment was to be done in a regular manner against available posts. It never gave a blanket power to Dr. Mallick to create new posts which were not sanctioned and to make recruitment thereon. Nor did it give any authority to throw the recruitment procedure for recruiting such class III and Class IV employees to the winds and to make recruitment in an arbitrary manner at his whims and fancies. Nowhere this Resolution indicates that the earlier Government Orders laying down the procedure regarding recruitment to Class III and Class IV posts were to be given a go-by. Consequently the Resolution of 25th March 1983 has to be read along with the government Orders dated 3rd December 180 and not de hors them. The supersession of the previous orders as contemplated by the Resolution of 25 March 1983 was only to the limited extent that the Selection committee mentioned in the said Resolution will be the committee for appointing such persons on the concerned programmes and to that extent the recruiting authority as mentioned in the earlier Government Orders would stand superseded but it did nothing more than that. The procedure for recruitment, however, would remain the same even for the newly constituted Selection committee as per the resolution of 25th March 183. consequently it is not possible to agree with the contention of learned counsel for the appellants that this Resolution of 25th March 1983 displaced and gave a send-off to the recruitment procedure laid down by the Government Orders of 3rd December 1980. It is also equally not possible to agree with the contention of learned counsel for the appellants that s the recruitment was to be made on Tuberculosis Eradication Scheme under 20- Point Programme and the appointments were not to be made to posts on any regular order of Bihar State Service the recruitment procedure laid down by earlier government Orders of 3rd December 1980 would not stand attracted. It is easy to visualise that though the vacancies or posts as the case may be, may not be in the regular Bihar State Service but would be in the concerned programmes or schemes, nonetheless there would have to be recruitment to the sanctioned vacancies necessarily backed up by the financial budget support, to be made available by the State as per 20-Point Programme under its liability to contribute towards the same along with Central Government. It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions. It appears that Dr. Mallick suffering from wrong nations of power and authority under the said Government Resolution and without bothering to find out whether there were vacancies or not under the Scheme indulged in self-help to recruit as many class III and Class IV employees as suited him and the result was that he loaded a dead weight of burden of these employees on the State exchequer by resorting to a completely unauthorised exercise. The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome guests. They were all persons non grata and were not employees in the real sense of the term. It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facis illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary, they were not binding on the State of Bihar. The first point for determination, therefore, will have to be answered in the negative.

Point No.3 So far as the principles of natural justice are concerned it has to be stated at the outset that principles of natural justice cannot be subjected to any straight jacket formula. They will very from case to case, from circumstance to circumstance and from situation to situation. Here is a case in which 6000 employees were found squatting in the Tuberculosis Scheme controlled and monitored by Dr. Mallick for the entire State of Bihar and there was no budgetary sanction for defraying their expenditure. At least our of the 6000 employees as seen earlier 3750 were totally unauthorised and were squatting against non-existing vacancies. A grave situation had arisen which required immediate action for clearing the stables and for eradicating the evil effects of these vitiated recruitments so that the Tuberculosis Eradication Scheme could be put on a sound footing. When such a grave situation had arisen and when matters had gone up to the High Court wherein the State was directed to appoint a Committee to thoroughly investigate the entire matter, the State of Bihar had to appoint a committee to scrutinies these appointments and to filter them as directed by the High court of Patna. For undertaking the said exercise public notices were issued by the Director-in-Chief, Health Services, Bihar, Patna by Communication dated 4th July 1992. The said communication which s found at page 147 of the Paper Book recites that Dr. Mallick, the then Deputy Director (T.B.) presently retired, issued orders of appointment/posting/transfer/absorption on a large scale against the Class III and Class IV posts in the T.B. Eradication Programme under the Directorate of Health Services without following the procedure for appointments/without publication of advertisement and by openly violating reservation policy in contravention of Article 16. While distributing such appointment letters, Dr. Mallick in many cases did not even care to see whether even the posts were sanctioned or not. Reference was made to the order passed by High Court of Patna which had directed the Government to require in all such matters and after considering the representations, pass a final order within 6 weeks. It was in the light of the Patna High Court's direction that the Government called upon all the concerned persons to submit their representations, show cause replies before the signatory to the communication positively by 25th July 1992 so that appropriate decision might be taken after examining the legality of their appointments. Six types of informations were sought for from the concerned persons. The employees appointed from 1980 to 1987 were called upon to appear before the Director in Chief, Health Services, Bihar. Patna in his office situated at Vikas Bhawan, Secretariat at 11.00 a.m. positively with a copy of show-cause reply on different dates ranging from 17th august 1992 to 19th September 1992 and the employees appointed from May 1988 to December 1988 and from January 1989 to December 1989-1990 were to appear in person on 29th September 1992. It is not in dispute that pursuant to the aforesaid communication duly published, out of 6000 employees who were the creatures of Dr. Mallick, 987 did appear. The appellants in C.A. Nos. 10758-59 of 1995 and others did submit details of their service bio-data to the concerned authority as per the said communication. A sample copy of the show cause reply sent to the Director-in-Chief, Health Services, in response to the said communication is at page 151 of the Paper Book. Query wise replies are found in the said return. It was thereafter that a written order was passed by Director-in-chief on 12th November 1992 appointing a committee of officers for scrutinising these replies and for coming to the correct conclusion in the light of the data supplied by the concerned employees who remained present for personal hearing before the authority in response to the earlier communication. The said order dated 12th November 1992 is at page 402 of the Paper Book. it clearly recites that after due consideration of all the facts, the Government had decided that the validity of all the appointments made by Dr. Mallick after 1.1.1980 should be examined. Accordingly all the concerned officials were given opportunity to submit show cause replies before the director-in-chief, Health Services Bihar, Patna by 25.7.92, after getting the notice to show cause advertised on 4.7.92 and also were given opportunity for personal hearing after fixing separate dates for officials appointed year wise from 1980 till August- September 1992. A committee of the officers mentioned in paragraph 4 was appointed to review the show cause replies mentioned in paragraph 3 and information received in course of personal hearings. The committee had to review the merits/demerits of the appointments under question in the light of policy and procedures prescribed by Government from time to time for appointment in Public Service and submit its recommendation to the Government. the learned counsel for the appellants submitted that appointment of this review committees was after the personal hearing before the Director-in-Chief, Health Services, Bihar, Patna and, therefore, this violated the basic principles of natural justice. It is difficult to agree. all the concerned appointees whose appointments by Dr. Mallick were to be filtered were given personal hearing by the Director-in- Chief. The data which they had to submit was duly received and it was thereafter that the Review committee was entrusted with the task of going through the data submitted by these employees along with their replies and their say during the personal hearing. Therefore, the said review Committed was only to scrutinies the data collected during the personal hearing by the Director-in-Chief, Health Services and on that bases the Committee decided the question of legality and validity of their appointments. Thus the basic principles of natural justice cannot be said to have been violated by the Committee which ultimately took decision on the basis of the personal hearing given to the concerned employees and after considering what they had to say regarding their appointments. Whatever was submitted by the concerned employees was taken into consideration and than the committee came to a firm decision to the effect that all these appointments made by Dr. Mallick were vitiated from the inception and were required to be set aside and that is how the impugned termination orders were passed against the appellants. On the facts of these cases, therefore, it cannot be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter before their appointments were recalled and terminated. Point no.3 is, therefore, is answered in the negative.