of Jharkhand and Ors Vs. Manshu Kumbhkar  Insc
941 (17 September 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO. 4310 OF 2007 (Arising out of S.L.P. (C) No. 18890 of 2005) Dr.
ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a Division Bench of the Jharkhand
High Court dismissing the Letters Patent Appeal filed by the appellant-State
and its functionaries.
Background facts in a nutshell are as follows:
Miss Suraj Mani Khalko, a few days before her retirement made many appointments
to the posts of Class III and Class IV employees without following the
procedure of appointment stipulated by instruction dated 3.12.1980. No records
were available in the office for such appointments, namely, advertisement,
requisition to employment exchange, committee for preparing panel to be chaired
by District Magistrate, with District Welfare Officer and three officers of
different district levels. According to the respondent advertisement was issued
for Class III and Class IV employees on 4.6.1993 and on 12.7.1993 interview
letters were issued.
to the appellants all these were signed by Miss Suraj Mani Khalko and were
fabricated and forged documents and were never issued by the department which is
manifest from the dispatch register. On 16.9.1993 the appointment letter was
purportedly issued and the respondent claimed to have joined on 21.9.1993, but
he was not paid his salary. A few days thereafter i.e. on 15.10.1993 illegal
appointments made by Miss Suraj Mani Khalko were cancelled by the Government.
The respondent filed a writ petition in the year 1995 before the Jharkhand High
Court. The High Court dismissed the writ petition by its order dated 28.8.1995
with the direction to the respondent to file fresh representation with all
materials i.e. letter of appointment etc. before the authority.
was also given to make payment of admitted dues since 21.9.1993 till date. The
respondent did not file any representation as was directed by the High Court.
On the basis of the direction given by the High Court in CWJC No.3878/1995,
Deputy Commissioner was appointed to make an inquiry. By report dated
10.4.1997, the Deputy Commissioner found all the appointments to be illegal. By
order dated 22.4.1997 the services of respondent, Sri Sanjay Kumar and three
others were terminated by the District Education Officer. Respondent filed CWJC
terminated employees filed writ petitions which were dismissed by the High
Court on the ground that the appointments were violative of Articles 14 and 16
of the Constitution of India, 1950 (in short 'the Constitution') as they had
been made without following the requisite procedure.
Single Judge allowed the writ petition filed by the respondent on the ground
that Sanjay Kumar had been appointed pursuant to the order passed by the High
Letters Patent Appeal filed as aforesaid was dismissed.
Learned counsel for the appellants submitted that on the basis of the norms
fixed for appointment, due procedure was not followed. Merely because somebody
else had granted appointment, that cannot be a ground to claim that wrong
should be perpetuated. On the basis of the norms fixed by the Department of
Personnel and Administrative Reforms dated 3.12.1980, specific modalities were
required to be followed. It is to be noted that in Sanjay Kumar's case LPA was
dismissed on the ground of delay and, therefore, was not a precedent to be
followed. Reference is made to the decision of this Court in Secretary, State
of Karnataka and Ors. v. Umadevi (3) and Ors. (2006
(4) SCC 1) to contend that the learned Single Judge could not have passed the
order for regularization.
response, learned counsel for the respondent stated that it is not a case of regularisation.
There was an advertisement, there was a vacancy, panel of selection was duly
constituted and, therefore, no interference is called for.
the instant case, the norms have been fixed not by any Rule but by
administrative instructions. As noted above, stand of the appellant is that
respondent was not sponsored by the employment exchange. There was no
advertisement and there was not even any properly constituted committee to make
the selection. The stand that letter of appointment was issued clearly gets negatived
when the entries from the dispatch register are noted. According to the
respondent interview letters were issued on 12.7.1993 and advertisement was
issued on 4.6.1993. There is no entry in the dispatch register for these two
dates. The details are annexed to P-9 to the rejoinder affidavit.
is to be noted that by order dated 4.9.1996 in CWJC No.3878/95 the High Court
noted as follows:
revealing fact has been disclosed that taking advantage of the orders passed by
this Court, as mentioned in Annexures-5 to 8, this Respondent No.4 is
squandering the government money and getting the back dated appointment letter
issued from regional Deputy Director of Education, North Chotanagpur Division, Hazaribagh,
now retired without the knowledge of the District Establishment Committee,
whose Chairman is Deputy Commissioner."
Reliance by the High Court on the order passed in Sanjay Kumar's case (supra)
was thoroughly misconceived. It is to be noted that LPA was dismissed on the
ground of delay.
otherwise, merely because mistake had been committed in one case, there is no
rational for perpetuating that mistake, even when the same is illegally
impermissible. It is to be noted that in terms of the executive instructions,
the following procedure was to be adopted:
On other category of class-4 posts the appointments will be made through
District employment exchange as far as practicable from local areas. Because
only one panel for the appointment of class-4 employees will be prepared for
appointment at district level which will be effective for one year, the
district officer will give extensive publicity to the advertisement calling for
applications and examine the applications. Every applicant will quote his
registration region/the district exchange. If due to any reason the District
employment officer does not recommend his name then the Collector will admit
his application on the ground of registration No. and will consider the
application and the District Magistrate will as per necessity, examine the list
as recommended by the Employment Exchange for appointment.
recruitment to such posts a committee will be formed to be chaired by the
District Magistrates and members of such a committee will be district welfare
officer, district employment officers and three senior officers of different
district levels working department as nominated by the district magistrates and
two officers from the department of district level developmental works. For
appointment to the class-4 posts in every district a list of suitable
candidates will be prepared finally by the said committee at the outset of the
financial year by the month of May and appointments through year by the
financial year would be made in all offices from this list. So far as the
current financial year is concerned, if a list of suitable candidate has
already been prepared in keeping with memo No.10747 dated 20th June in any
district, then the recruitment in the current year should be made from the list
but if there is no such list prepared in any district according to the above
memo then such a list should be got prepared by aforesaid district levels
committee by 31st December, 1980.
Magistrates are hereby requested that they should sent by 15th Feb., 1981 a
detailed statement in the enclosed proforma about appointments made in every
district level officers uptill 31st January, 1981 keeping in view the above
procedure. The report regarding the appointment made from the list prepared for
next financial year in accordance with the above procedure should be sent to
the department of personnel till 15th July, 1981."
9. In Ashwani
Kumar and Ors. v. State of Bihar and Ors.
(1997 (2) SCC 1), it was noted in paras 13 and 14 as follows:
So far as the question of confirmation of these employees whose entry itself
was illegal and void, is concerned, it is to be noted that question of
confirmation or regularisation of an irregularly appointed candidate would
arise if the candidate concerned is appointed in an irregular manner or on ad
hoc basis against an available vacancy which is already sanctioned. But if the
initial entry itself is unauthorised and is not against any sanctioned vacancy,
question of regularising the incumbent on such a non-existing vacancy would
never survive for consideration and even if such purported regularisation or
confirmation is given it would be an exercise in futility. It would amount to
decorating a still-born baby. Under these circumstances there was no occasion
to regularise them or to give them valid confirmation. The so-called exercise
of confirming these employees, therefore, remained a nullity.
xxx As we have seen earlier when the initial appointments by Dr Mallick so far
as these daily-wagers were concerned, were illegal there was no question of regularising
such employees and no right accrued to them as they were not confirmed on
available clear vacancies under the Scheme. It passes one's comprehension as to
how against 2500 sanctioned vacancies confirmation could have been given to
6000 employees. The whole exercise remained in the realm of an unauthorised
adventure. Nothing could come out of nothing.
xxx Zero multiplied by zero remains zero.
no sustenance can be drawn by the appellants from these confirmation orders
issued to them by Dr Mallick on the basis of the directions issued by the
authorities concerned at the relevant time. It would amount to regularisation
of back-door entries which were vitiated from the very inception.
xxx Whether they are posts or vacancies they must be backed up by budgetary
provisions so as to be included within the permissible infrastructure of the
Scheme. Any posting which is dehors the budgetary grant and on a non-existing
vacancy would be outside the sanctioned scheme and would remain totally unauthorised.
No right would accrue to the incumbent of such an imaginary or shadow vacancy.
this connection it is pertinent to note that question of regularisation 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 regularise 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 a situation in which the question of regularisation
may arise would be when the initial entry of the employee against an available
vacancy is found to have suffered from some flaw in the procedural exercise
though the person appointing is competent to effect such initial recruitment
and has otherwise followed due procedure for such recruitment. A need may then
arise in the light of the exigency of administrative requirement for waiving
such irregularity in the initial appointment by a competent authority and the
irregular initial appointment may be regularised and security of tenure may be
made available to the incumbent concerned. But even in such a case the initial
entry must not be found to be totally illegal or in blatant disregard of all
the established rules and regulations governing such recruitment. In any case
back-door entries for filling up such vacancies have got to be strictly
avoided. However, there would never arise any occasion for regularising the
appointment of an employee whose initial entry itself is tainted and is in
total breach of the requisite procedure of recruitment and especially when
there is no vacancy on which such an initial entry of the candidate could ever
be effected. Such an entry of an employee would remain tainted from the very
beginning and no question of regularising such an illegal entrant would ever
survive for consideration, however competent the recruiting agency may be. The
appellants fall in this latter class of cases. They had no case for regularisation
and whatever purported regularisation was effected in their favour remained an
exercise in futility. The learned counsel for the appellants, therefore, could
not justifiably fall back upon the orders of regularisation passed in their favour
by Dr Mallick. Even otherwise for a regularising such employees well-
established procedure had to be followed.
xxx Even this letter clearly indicates that the posts had to be filled up by
following the prescribed procedure. Despite all these communications neither
the initial appointments nor the confirmations were done by following the
contrary all efforts were made to bypass the recruitment procedure known to law
which resulted in clear violation of Articles 14 and 16(1) of the Constitution
of India both at the initial stage as well as at the stage of confirmation of
these illegal entrants.
so-called regularisations and confirmations 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 by Dr Mallick.
For all these reasons, therefore, it is not possible to agree with the
contention of the learned counsel for the appellants that in any case the
confirmations given to these employees gave them sufficient cloak of protection
against future termination from services. On the contrary all the cobwebs
created by Dr Mallick by bringing in this army of 6000 employees under the
Scheme had got to be cleared lock, stock and barrel so that public confidence
in Government administration would not get shattered and arbitrary actions
would not get sanctified."
This decision was noted in para 31 of Uma Devi's case (supra).
Above being the position, the order of the learned Single Judge, as maintained
by the Division Bench cannot be sustained.
The appeal is allowed without any order as to costs.