Ashwani
Kumar & Ors Vs. State of Bihar & Ors [1995] INSC 687 (16 November 1995)
Ramaswamy, K. Ramaswamy, K. Hansaria B.L. (J) K.
Ramaswamy, J.
CITATION:
JT 1995 (8) 563 1995 SCALE (6)779 ACT:
HEAD NOTE:
JUDGMENT:
WITH CIVIL
APPEAL NOs. 10760-11058, 11062-66 OF 1995 [Arising out of SLP [C]
Nos.13203-13/94, 13137-40/94, 13933-34/94, 14009-30/94, 14031-36/94,
14037-42/94,14050-61/94,16237-38/94, 15281-435/94, 17114/94, 17292-94/94,
17459/94,19408-94, 21949/94, 22649/94, 23059/94, 22650/69/94, 22671-77/94, 22678-87/94,
22688-92/94, 1041/95, 1243-45/95, SLP[C] No.26273-74 [CC 255]/95, SLP No.2/95,
7912/95, [C] No.26275 [CC 974]/95, SLP [C] No. 7095/95, 7912/95, SLP [C]
No.26276 [CC No. 1557]/95, SLP 66/95, 13548/95 and 8900/95]
J U D
G M E N T
Leave
granted.
This
bunch of appeals pertains to 1363 employees, viz., Clerks [Class III] and
Attendants [Class IV]. All the cases arise from judgment of Division Bench of
the Patna High Court dated May 6, 1994 in
C.W.J.C. No.5163/93 and batch. The principal villain behind the scene is
one Dr. A. A. Mallick, Deputy Director, Health Department of the Government
of Bihar, in charge of Tuberculosis. 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 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 Mallick in implementation of the programme. He was
made the Chairman of the Selection Committee constituted by the
Government consisting of himself, Assistant Director of Pilaria and the
senior officer representing Scheduled Castes/Scheduled Tribes to recruit
2250 posts of Class III and Class IV employee screated to implement the
Scheme in addition to around 800 to900 staff in Patna Centrein all
categories. Taking advantage thereof, the undisputed fact is that, he had 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 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 like musical chairs by turns. Another device adopted in
the sordid 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, of illegal appointments made by Mallick, the Government initially
swallowed the appointments to be legal and had 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. Due
to the agitation, the Director and Joint Secretary to the Government, Health department
had issued directions to regularise the services of daily-rated Class III and
Class IV employees. Taking aid thereof, it is claimed that regularization of
many of them including most of the appellants, was made. When alarming
bell srang around portals of Patna High Court, filling petition under
Article226 of the Constitution seeking payment of salaries, the High Court,
though initially in some cases directed to enquire into the cases and to
pay salaries, later found it difficult to cope up with the situation. So it
directed the Government to constitute an enquiry committee to find out whether
the appointments made by Mallick were valid and if so, to pay salary to such
employees. In the meanwhile, the Government also directed the VIgilance
Department to enquire into the matter and on May7, 1991, the Vigilance
department in its report pointed out that Mallick had violated the rules of
recruitment and in collusion with other officers had appointed daily-rated Class
III and Class IV employees. Pursuant to the direction of the High Court, a
Screening Committee was constituted which sought to serve notice on the
employees. When the Deputy Director went to the Centre at Patna to serve the notice on the
employees, he was man-handled resulting in anugly law and order situation. In
consequence, notices were published on two different dates in different
newspapers inviting submission of the claims by all the employees appointed
by Mallick, together with supporting material justifying their appointments.
Different dates of hearing by the Committee were staggered. About 987 employees
appeared before the Committee and submitted their statements. In the meanwhile,
relevant records were burnt out. The High Power Committee in the absence of
authentic record was constrained to depend upon the statements made by the
employees before it. After hearing them and considering the record placed before
it, the Committee found that Mallick did not make any order of appointment on
daily-wage basis. It found it difficult to accept even the orders of
confirmation. In that view, the Committee found that the initial appointments
made by Mallick were in violation of the instructions issued by the Government.
Therefore, they were found to be illegal appointments.
The
Committee also found that Mallick circumvented the rules by making
adjustment by transfer without verifying the qualifications, eligibility
or disclosing previous places whereat the candidates appointed had worked
and dates of their appointment and by transferring them to the
respective places by cyclostyled orders. He directed the District Medical
Officers to verify their credentials and then to appoint them temporarily. As stated
earlier, the 'Committee also noted that the third category of persons appointed
were by producing fabricated orders of appointment. Consequently, it directed
to cancel all the appointments made by Mallick. On receipt of there port and on
its consideration, the Government found them to be invalid and illegal and all
the appointments were cancelled. When their legality was questioned in the writ
petitions filed under Art.226, the High Court upheld the Government action.
Thus
these appeals by special leave. The main fervent thrust of Shri Shanti Bhushan,
learned senior counsel and his colleagues who echoed him with forceful
pursuation is that casual appointments are not to any posts. Eradication of
tuberculosis urgently required to be done on war-footing which relieved Mallick
to dispense with normal procedure of recruitment. Mallick, being exclusive
centralised authority to appoint Class III and Class IV casual employees,
he had picked up the candidates who applied for appointment pursuant to
notification put upon the office notice Board at Patna Centre. They had discharged
their duties, many of them meritoriously and were later promoted to higher
posts. Security of tenure is a Constitution alright and regularization of
service is inherent in it. The Director of Health Department-cum-Joint Secretary
to the Government had directed regularization of all those who had completed
three years' service, and of those with less than two years' service regularization
was to be done to the extent of available vacant posts on seniority basis.
The procedure for recruitment prescribed in the instructions dated December 3, 1980 and November 25,1982 does not apply to regularization. No statutory rules need
to exist for initial appointment. The administrative instructions issued by
the Government in 1980, 1982, 1983 and 1986 circulars could be modified by
further administrative instructions. The instructions and directions contained
in letters dated October 10, 1985, January 19,1986 and February 12,1987
were special rules, which are exceptions to general directions for regularization
of the services of daily-rated employees. In compliance there with, their
services were duly regularised. The need, therefore, to follow the procedure
prescribed in 1980, 1982 and 1983circulars would not arise. They would be
applicable only for regular recruitment to other posts. Since the appointments
by Mallick have been made by regularization of their services, the same
were valid. Pursuant to a notice of motion given by M.L.As, the Government
admitted on the floor of the Legislative Assembly, that the appointments made
by Mallick were legal and valid. The appellants were in dark as to whether their
appointments were in accordance with the prescribed procedure. Even if the
instructions are considered mandatory, when their violation would visit with deprivation
of employment to the daily-rated employees, the appellants had no control over
the procedure for recruitmentor regularization and so the instructions
should be construed to be directory. Having accepted the appointments made by
mallick as valid, it would not be open to the Government to contend
that the appointments or regularization are invalid or in violation of
the procedure of inviting the applications by advertisement or calling the names
from employment exchange. The omission to adopt selection process is not
invalid. To regularise the serviceof the appellants and others, the procedure
prescribed for initial recruitment does not apply. The respondents were merely
required to regularise the services of the appellantsand others though the initial
appointments were made dehorse the rules. The regularization of the
services of the appellants is, therefore, legal and valid which cannot be given
a go-bye and the Court would not countenance the contention of the
Government thateitherthe initial appointments or regularization are invalid
and illegal. Since no notice was served personally on any of the appellants,
the procedure of publication of the notice in the daily newspapers informing
the appellants to come before the High Committee constituted by the
Government for scrutiny of the validity of appointments made by Mallick are violative
of the principles of natural justice. Many of the employees might not have
read the newspapers and nothing prevented the State to have the notice served
individually. Under these circumstances, many an appellant could not appear
before the Committee.
Those
persons whose appointments were regularised had weeded out their previous record
of appointment and service record. Statutory presumption under Section
114(e) of the Indian Evidence Act that official acts were regularly
performed by Mallick proves that the appointments by regularization were
valid it is for the Government to establish that all the appointments
were not made in accordance with the rules which burden the government
had failed to discharge. The appellants cannot be penalised for non-production
of the records. They had worked for sufficiently long time which itself
createsa right in their favour for regularization which was done and orders
had become final. It is no longer open for the State to contend that the
appointments of the appellants were not valid or legal. When regularization was
to be made, the need to publish the vacancies in a newspaper etc. and
advertisement in the newspaper or to call names from the employment exchange
was obviated lest it would amount to fresh recruitment which was not
contemplated under the instructions issued by the Government. When no
procedure was prescribed for appointment of casual employees, mere working
for long period as found in the muster rolls, would give them right
to regularization. There is no prescribed form for appointment.
There was
no need to issue letters of appointment. Appellants having worked for 6 to 8
years, their dismissal would amount to inflicting punishment without following
the procedure. It is not the case of the Government that the appellants are
neither qualified nor found unfit for appointment. Violation of the
procedure for appointment does not render the appointments, even assuming
they were illegally made, void. At best, they would be curable irregularity. Regularization
cured the defect. The appellants who worked for long period as clerks and
peons would acquire vested right for their regularization. Government can even
suo motto regularise their services which does not violate Articles 14
and 16(1) of the Constitution. Those who were awaiting regular recruitment could
challenge the procedure for appointment adopted by Mallick to be illegal. But
the same would not be a ground for the Government to take such a stand.
The indoor management between the government and its officers would be known
to them and its infraction would be only a ground for the Government to
proceed departmentally against concernederring officers under conduct and
discipline rules but the employees should not be penalised nor should the
security of service be jeopardised for violation of either the rules or the
procedure by the competent officer for making initial appointment or regularization.
Even if rules of reservation were not followed, appropriate directions might be
given to follow them and fill the posts reserved for the respectivequota of
Scheduled Castes, Scheduled Tribes and Backward Classes. The High Court,
therefore, had not considered these Constitutional perspectives in its
judgments in that proper compass before dismissing the writ petitions. Sri P.P.
Rao and others while supporting the above contentions, high-lighted them
with reference to the facets of cases in which they appeared. In two sets of individual
cases, the learned counsel, M/s. Sharan, L.R. Singh, Ranjit Kumar and Parag P.
Tripathi argued with reference to the special facts in their cases. In the first
set, it was contended that their initial appointments were in accordance
with the procedure followed by a committee constituted for selection. They
were later regularised. In support of the contention, they filed charts giving
the dates of initial appointments, regularization as open or reserved
candidates and among the latter, the prescribed categories thereof. They have
also placed on record certain daily-wage muster register said to have been
maintained by the Department. Shri Tripathi further stated that in writ
petitions filed by 63 appellants, the High Court had directed the Government to
enquire whether they were regularly and validly appointed and if they were
found to be so appointed, directed the Government to pay salary for the period
they had worked. Consequent thereto, another officer had enquired and certified
that their appointmentswere validly made. There was, therefore, no need for
them to appear before the Committee to justify the validity of their
appointments. The committee or the Government had not goneinto this question.
Their termination, therefore, is invalid in law. Shri Verma appearing for the
State resisted all these contentions. We have given our anxious and deep consideration
and carefully scanned the record placed before us.
In T.
Cajee vs. U. Jormanik Siem & Anr. [(1961) 1 SCR750 at 764] a Constitution
Bench of this Court held that the Government has the power to carry on the administration
including the power to appoint and remove the personnel for carrying on the
administration. It is not necessary that there should exist statutory
regulations so made or the laws so passed. The authorities concerned would at
all relevant times have the power to appoint or remove \ the personnel under
the general power of administration vested in them.
In
B.N. Nagarajan & Ors. vs. State of Mysore & Ors.[(1966) 3 SCR 682],
another Constitution Bench of this Court held that it was not obligatory under
proviso to Article 309of the Constitution to make rules of recruitment etc.
before a service could be constituted or a post created or filled. Consequently,
the State Government has executive power, in relation to all matters
with respect to which the Legislature of the State had power to make
laws and its power under Article 162, without a law, was not a breach.
In
P.C. Sethi & Ors. vs. Union of India
& Ors. [(1975)3 SCR 201], a three-Judge Bench of this Court held that
inthe absence of any statutory rules prior to the Central Secretariat
Service Rules, 1962, it was open to the Government, in exercise of its
executive power, to issue administrative instructions with regard to
constitution and reorganisation of the Service as long as there was no violation
of Articles 14 and 16 of the Constitution. In Ramesh Prasad Singh vs. State
of Bihar &Ors.[(1978) 1 SCC 37 at 41], a two-Judge Bench of this Court
held that in the absence of rules, qualifications for a post can validly be
laid down in the self-same executive order creating the service or post and
filling it up according to those qualifications. In Kamal Kanti Dutta &
Ors. vs. Union of India & Ors.[(1980) 3 SCR 811 at 849] yet another
Constitution Bench observed that the Government would prescribe procedure to fill
up any particular vacancy or vacancies as may be required during any
particular period.
In
State of Haryana &Ors. vs. Piara Singh &
Ors. [(1992) 4 SCC 118] a three-Judge Bench of this Court held in para 21 at
page 134that"creation and abolition of a post is the prerogative of the
Executive. It is the Executive again that lays down the conditions of service
subject, of course, to a law made by the appropriate legislature. This power
to prescribe the conditions of service can be exercised either by making rules
under the proviso to Article 309 of the Constitutionor [in the absence
of such rules]by issuing rules/instructions in exercise of its executive
power. The court comes into picture only to ensure observance of fundamental
rights, statutory provisions, rules and other instructions, if any,
governing the conditions of service. "This Court laid down elaborate
procedure for regularization of adhoc employees etc. It would thus besettled
law that existence of law or statutory rules made under proviso to Article
309 of the Constitution is not a pre-condition either to create a postor to
fill up that post; Government having legislative backing on the subject, has
executive power to lay down the conditions of service and prescribe
procedure for appointment to the post or vacancies in accordance there
with. Simultaneously, the Government would be entitled to create posts. The instructions
and the procedure thus laid down would be subject to law made by the
Legislature of rules made under proviso to Article 309. They could be amended
by subsequent instructions. They may supp land the rules. But they should be
consistent with the rights guaranteed under Articles 14 and 16 (1) of the
Constitution.
The
forceful contention of Shri Shanti Bhushan that the casual employees of Class
III and Class IV: Clerical and Attendant Cadres, are required to be
appointed onwar-footing to eradicate tuberculosis, does not carry conviction
for acceptance for the reason that 20-PointProgramme was initiated in
1976 while the appointment of causal employees came to be made in 1981
onwards. Therefore, the emphasis on immediacy and war-footing like floods lost
their forward push. The strong wind of the contention that employment of
daily-rated employees is not to a post loses from the sail when we peep into
the pleadings of the appellants themselves. In Sateyndra Kumar Singh's case,viz.,
C.A. @ SLP Nos.14009-30 of 1994, in
which Shri ShantiBhushan has appeared, the appellants themselves admitted that
they were appointed to the post as casual employees. Similar are the admissions
in all the appeals.
Therefore,
the need to make specific reference is obviated. It is also an admitted
position, though sought to be qualified in reply, that no dates were given
of creation of existing 2250Class III and Class IV: Clerical and Attendant
posts. As to when they were created was not in issue at any stage. So at this belated
stage it is difficult to adjudge as to when the posts were created. So we
proceed on the premise that posts in Class III & Class IV do exist when
they were filled up by casual employees. Strong reliance was placed by Sri
ShantiBhushan on the Constitution Bench decision of this Court in State of
Assam & Ors. vs. Shri Kanak Chandra Dutta [(1967) 1SCR 679 at 682] where
it was held that a post is a service or employment. A person holding a post
under a State is a person serving or employed under the State. A post may be created
before appointment or simultaneously with it. A post is an employment but every
employment is not a post. A casual laborer is not the holder of the post. A
post under State means a post under the administrative control of the State.
The
State may create or abolish the post and may regulate the conditions of service
of the persons appointed to the post. The emphasis was placed by the counsel on
the sentence "a casual laborer is not the holder of a post". Sri Verma
contended that in Union of India & Ors. vs. Deep Chand Pandey & Anr.
[(1992) 4 SCC 432] under Section 14 (1) of the Administrative tribunals Act, it
was contended that a typist engaged on casual basis was not holding any civil
post under the Union of India and therefore, the Administrative tribunals
Act was not attracted. A three-Judge Bench of this Court repelled the
contention in paragraph 3 holding that "we do not find any merit in this
stand taken on behalf of the respondents." The argument of Shri Shanti
Bhushan is that there is no finding there in that the employees were the
holders of the civil post but the Court was concerned only with the
jurisdiction of the Tribunal who entertained the claims under the
Administrative Tribunals Act. In that context, the contention was to be of the
power of the Tribunal or the High Court which was negatived. We find no force
in the contention of Sri Shanti Bhushan. Unless he is a holder of a post, the
power to adjudicate the right to thepost by the Tribunal does not arise. The
Bench, therefore, arrived at a base finding that he holds a civil post for the purpose
of deciding the jurisdiction of the Tribunal.
In
R.N.A. Britto vs. Chief Executive Officer &Ors.[(1995) 4 SCC 8],
Secretaries of Panchayats established under the Karnataka Village and Local
Boards Act were held to hold civil posts and were Government servants. It is
common knowledge that the system of appointing several persons on ad hoc or
casual basis to civil posts has been considerably changed. In fact, the P.W.D.
Manual prescribes employment of casual labour, muster roll labour or contingent
labour - be it skilled or Manual. The Central Public Works Department Manual
itself prescribes such a procedure and the wages to them are paid from contingent
fund. The power to engage casual labour is conferred on the Executive
Engineer when the need exists for six months and if it is for more than
six months and less than a year ,prior approval would be taken from the
concerned Chief Engineer or the Director General, as the case may be. The
employment of the employees shall be of those drawn from employment exchange.
That is the common feature in all the State Public Works Departments. It is settled
law that part-time extra departmental agents are holder of a civil postvide
Superintendent of Post Offices etc. etc. vs. P.K. Rajamma etc. etc. [(1977) 3
SCR 678].
In
Kanak Chandra Dutta's case [supra] casual laborer appears to have meant with
reference to the emergent engagement of casual labourers which do not
last for more than six months. This Court had dealt with catena of cases in
which appointments to countless Class III and Class IV posts under the State
and Union Government had been made on daily-wage or casual basis. But in non of
the cases this Court came across that there was no posts existor no initial
letters of appointment given to the daily-rated or casual employment. We,
therefore, need not burden the judgment with copiouscitation of all the
decisions. Only in a few cases, appointments in accordance with Rules but in
excess of the sanctioned posts were made. Appointment on casual or ad hoc basis
was a phenomenon of last decade for back door entry into service. When planned expenditure
is required to be spent, budgetory sanction is mandatory. We have instrinsic
evidence in these cases. When some of the employees were sent for one month
training, posts were created and budgetory sanction was obtained. The cases at
hand are unique and the device adopted by Mallick is in flagrant violation of
all norms of administrative procedure known to law. He had given decent burial
to procedure prescribed by the Government. Abusing the absolute power secured in
his hands, he appointed 6000persons at his whim and wagery. A ceremonial send
off was given to the procedure for appointment to Class III & ClassIV
posts and resort was taken to their casual employment without any letters
of appointment to fill the existing vacancies. It would, therefore, be
difficult to give acceptance to the contention that appointment of Class III
and Class IV casual employees was not to a post. It is common knowledge that
existence of a post is a condition precedent for appointment whether it is created
by statutory rules or under the executive instructions. There cannot be an appointment
or employment with outpre-existing post. Therefore, we hold that a post is a
service or employment under the State and the post may be created before appointment
orsimultaneously with it. Though, therefore, employment is not a post, the
holder must be appointed to a post. A casual laborer who discharges transitory
or casual duties for emergent work, therefore, does not hold a post though
he may be under the administrative control of the State during the period
of his working. We hold that a person appointed, though on casual basis
to discharge the duties of the existing post of vacancies, needs to be appointed
to the post or vacancy according to rules and, if so, he and he alone is a
holder of the post. It is true that Kanak Chandra Dutta's case was not brought
to the notice of the bench that decided Deepchand Pandey's case.
The
learned Judges appear to have drawn the conclusion in Deepchand Pandey's
case from the experience this Court had gained in deciding several cases of
casual or ad hoc employees. The next contention is whether the
appointment should be in accordance with the procedure prescribed under the instructions
issued by the Government in 1980, 1982, 1983and 1986. Admittedly, these are
administrative instructions and no statutory rules are operating in the
field. Therefore, the administrative instructions consistent with the rights
guaranteed under Articles 14 and 16 (1) of the Constitution should regulate the
procedure for appointment to the posts. Admittedly, two circulars issued on
December3, 1980 regulate recruitment to Class III and Class IV employees. They
also envisage drawing the names of the candidates from the employment exchange
and also following the rules of reservation prescribed by the State Government to
the Scheduled Castes and Scheduled Tribes and the backward classes. The
25th March, 1982 circular prescribed constitution of a committee
consisting of the Deputy Director, Tuberculosis, the Assistant Director,
Pilaria and a senior officer in the Department belonging to Scheduled Castes
or Scheduled Tribes to be its members to select the candidates in the order
of merit on the basis of the marks secured in the qualifying examination
etc. and that appointments be made by the appointing authority, viz., the Deputy
Director from the merit list prepared by the Committee following the
roster points. Admittedly, no appointment orders were issued for initial
appointment for casual Class III or class IV employees. In appeals arising out
of S.L.P (C) NOs.12934-12935 of 1994, according to the appellants' own case,
a committee was constituted and recruitment was made from amongst the
candidates who had applied pursuant to the publication of vacancies on the notice
Board of the office at Patna Central and the rules were followed .Here itself
we would clear one ground, viz., a contention was raised that recruitment
was made at different places in the Districts and those records were not produced.
Pursuant to our direction, an affidavit was filed stating that the
appointments were made only at Patna Central. Thus it fortifies the stand
of the State that for appointment to Class III and Class IV posts, the
procedure prescribed in the circulars of December 3, 1980 etc. should be
followed and any appointment made in violation there of was clearly in
negation of the rules and such action is perse not only arbitrary but
defeats the very object of recruitment offending Articles 14 and 16(1)
of the Constitution. The contention, therefore, of Shri Shanti Bhushan that
the procedure prescribed in the said circulars does not apply for initial
recruitment is without any substance and clearly is untenable. Any action
taken by Mallick in violation of the procedure prescribed in the aforementioned
circulars is not only illegal but also subversive of the discipline. It is
true that Illustration [e] of Section 114 of the Indian Evidence Act permits
the court to presume that official acts have been regularly performed. But it
is only rebuttable presumption. It could be rebutted by adduction of evidence
or by attending refutable circumstances. In view of the admitted fact that no
letters of appointment were issued to as many as6000 odd employees by Mallick
including all the appellants to fill up 2250 posts, itself is a positive fact
which would conclusively establish that he had not kept up vacancy position in
mind nor followed the procedure prescribed in the aforementioned
circulars. the presumption under Section 114, Illustration [e] does not get
attracted to the facts of these cases.
Where
a statute imposes a public duty and lays down the manner in which the duty
shall be performed, injustice or inconvenience resulting fro rigid adherence
to the statutory prescription to those who have no control over the procedure,
maybe relevant factor to hold such prescription as directory. Application of
this rule to recruitment for appointment to a post under the State would be
fraught with grave danger and would be a field day for flagrant violation of
the rules and would seek legitimacy under the carpet of Section 114, Illustration
(e) of the Evidence Act. The next question is whether regularization said
to have been made by Mallick is in accordance with the prescribed
procedure. We have already noted the contentions .It is settled law that there
are two modes of recruitment. One is by direct recruitment and the other by
promotion.This Court in J.K. Public Service Commission etc. vs. Dr. Narinder
Mohan& Ors. etc. etc. [(1993) 4 SCALE597] considered whether
regularization by Court's direction to Public Service Commission was a mode of
recruitment provided under the statutory rules or the Constitution. This
Court held that direct recruitment and promotion are the two mode sand regularization
by placing the service record of the ad hoc employees before the Public Service
Commission and their selection is a hybrid procedure not contemplated under
the rules.
The
contention that the procedure prescribed in the aforementioned circulars
would not apply to the regularization, is also devoid of substance. We
can understand that if initial appointments were made in accordance with
the procedure prescribed under the rules or instructions following the rule
of reservation etc. and posts were filled up with temporary or ad hoc or
daily-wage employees and when their services are regularised, the need to
follow the self-same procedure would obviously be redundant. When initial
appointments are in violation or in negation of the rules, in other words, in
the eyes of law there is no order for appointment, for regularization also if
the procedure prescribed also is not followed, it would be a field day for
the appointing authority to buttress his arbitrary, corrupt and illegal acts
of appointment with out letters or orders of appointments and regularization
would be taken as a shield to cover up illegal or void actions or to
perpetrate further corrupt actions To confer permanency of appointment to the posts
by regularization in violation of the executive instructions or rules is itself
sub versive of the procedure. It would, therefore, be mandatory that the procedure
prescribed in the circulars should be followed for regularization of the
services of the daily-rated employees.
The
question then is whether the regularization of the appellants is in accordance
with the procedure prescribed under the aforementioned circulars. Though
some of the appellants have placed on record charts said to have been signed
by three members of the committee including Mallick, on their own admission,
the appellants have prepared those charts on the basis of alleged official
record. It is seen that admittedly that part of the Secretariat was burnt out. In
consequence, the Government claimed that no authentic record was available.
What was the cause for the fire is not material. Another contention raised was
that records in the District Offices could have been produced but the same have
not been placed on record. The affidavit now filed pursuant to our directions
belies that stand. No recruitment at District Head-quarters appears to have
been made to fill up these vacancies. It would be a matter for investigation
for cause of the fire. No one had raised this contention either before the Screening
Committee or before the High Court. It would, therefore, be difficult for us at
this stage, to investigate into this factual controversy. Pursuant to the
direction issued by this Court, letters of appointments by regularization have
been placed before us. A casual look at the contents of the cyclostyled letters
clearly shows that there is no reference
[1] Of
the dates on which the candidate were first appointed and the place at which
they were working; length of service put in by the candidates,
[2]Whether
the committee constituted had selected the candidates, and if so, on what date
they were regularised,
[3] Whether
those appointments were in furtherance of the regularization of the Committee.
Their suitability was not mentioned. We find an admission there in that the
material placed by the candidates was not scrutinised. On the other hand,
there is a direction by Mallick to the District Medical Offices to verify the qualifications
etc. and if found acceptable, to appoint the mon temporary basis. When the regularization
was made in furtherance of the procedure prescribed in the aforementioned
circulars, where was the need to appoint them temporarily? Where would be the
need to the District Medical Officer to further scrutinize the record of
qualifications etc. before appointing them. Where was the need for further appointment
by the District Medical Officer when Mallik himself was the appointing
authority?
They
should have been regularised on permanent basis. The contents of the order is
antithesis of regularization and was in negation of the procedure prescribed.
From this intrinsic evidence and in the absence of any authentic record of
the Government, it would be highly difficult and hazardous to countenance the
contentions raised by the counsel for the appellants that appointments of the
appellants, though initially not in writing, got crystallised into
confirmation by regularization; a right thus got vested in them and cannot be
taken away by arbitrary exercise of the power of termination on the
solitary ground that all those appointments were made by Mallick. The
contention that after the regularization the appellants must have weeded out
their record and the burdenof proof to show that regularization was not in
accordancewith the rules heavily lies on the State, cannot be given acceptance.
It is not the case of any of the appellants that after the regularization of
their services, they had weeded out their previous records. On the other hand,
some of them placed it before the Committee and this Court
The
presumption that regularization was in accordance with the procedure and is
valid cannot be drawn for the reasons given supra. 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. In Piara Singh's
case[supra], this Court reiterated that regularization should also be in
accordance with the procedure prescribed and after calling the names from
employment exchange and that the selection should be made by duly constituting
committee or by an open competition. The ad hoc employees should give place to
the candidates recruited and appointed from the open market. One ad hoc
employee cannot be replaced by another ad hoc employee. Regularization of the
casual labour was also directed to be done in accordance with the procedure
prescribed in the circulars issued by the Government. In other words, this
Court had not given countenance to any regularization other than the one done
in accordance with the procedure prescribed in the appropriate circulars or executive
instructions. The procedure adopted by Mallick either appointing or
directing to appoint persons who had applied for appointment pursuant to the
notification of vacancies put upon the notice Board was stage-managed by him
and isin flagrant breach of Articles 14 and 16[1] of the Constitution.
The next question is whether the procedure adopted by the Committee, viz.,
publication in the newspapers on two different dates informing all
candidates appointed by Mallick to appear before it, is in violation
of the principles of natural justice. A few admitted facts, at the cost of
repetition, require to be reiterated. More than6000 persons [7000 as per the
respondents' stand] were appointed to hold 2250 posts. The Scrutiny Committee
recorded three crucial facts. Initially, no letters of appointments were made
on daily-wage basis; secondly, adjustment by transfer did not mention
previous place of posting but directed the District Medical Officers to post
the candidates after verification of qualifications; and thirdly, fabricated
orders of appointment were produced. The record in the custody of the
Government was found burnt. When the Committee sought to serve the notices on
the Daily-rated employees at Patna Centre, the Deputy Director, Health Services
was man handled and Law and order situation had developed. Resultantly, wide
publicity was given in the press .the sittings of the Committee on different
dates were staggered to 10 days and large number of employees to whom salaries
were not paid had approached the High Court. In other words, the
constitution of the Committee and the enquiry made by it into the legality
and validity of the appointments made by Mallick were obviously facts
widelyknown to everyone. It is claimed that apart from the Centreat Patna, the
other Centres are situated at the respective District Headquarters. It is,
therefore, difficult to accept the appellants' contention that some of them had
not seen the newspapers and had thus not appeared before the Committee.
Admittedly, only 987 persons had appeared before it. In other words, even many
among the appellants did not appea rbefore the Committee. The appellants had an
opportunity to place all their records before the High Court when the had
challenged their orders of termination issued by the Government in letters
dated April 30, 1993 which the High Court was not prepared to accept them to
be authentic and acted upon. These facts give rise to the question whether
the termination orders are violative of the principles of natural justice
and if so, what purpose would it serve? With the aid of principles of
natural justice, the courts preserve rule of law keeping arbitrary action
by the executive or the legislature within the confines of law. Courts have
to examine in each case the balance of fairness, whether the violation of the principle
of audialterampartem visits with irremediable civil consequences and it sincursion
on administration, if action is invalidated. No set rule or standard of
universal application can possibly be laid for application to all set of
cases. Courts exercise their power of judicial review with circumspectionto
weigh in balance the fairness of action. Therefore though the principles of
natural justice are omni pervasive, in given circumstances their
non-application may also advance cause of justice to prevent misuse or abuse of
power or of the judicial process. It is settled law that post-decisional
opportunity is valid to cure the illegality complained of. Though been role of
precedents have copiously been cited by the counsel on either side, we are
relieved of referring them in extensor on the ultimate test: what purpose the
doctrine of audi alteram partem would ultimately serve to advance the cause of
justice. One decision of this Court is of necessity to be referred.
In Bihar School Examination Board vs. Subh as Chandra Sinha & Ors.
[(1970) 3SCR 963 at 967] this Court held that when the impugned direction
did not concern a single individual but at least large majority of them were
involved in adopting unfair means in writing the examinations, the question
arose whether cancellation of the examinations without giving an opportunity
was violation of principles of natural justice. It was held that if it was not
the case of charging any one individual with unfair means but to condemn the examination
as ineffective for the purpose it was held, must the Board give an opportunity
to all the candidates tore present their cases. We think not. It was not
necessary for the Board to give an opportunity to the candidates if the
examinations as a whole were being cancelled." It is seen that the
committee scrutinised the appointment letters made by Mallick to Class III and
Class IV posts in the tendency on the part of the employees. Notices
terminating the services of daily-rated employees were served on all of
them. Those who felt aggrieved had approached the High Court and placed before
the Court their cards and sought relief on that basis. The High Court did not
accept them nor acted upon. What purpose, there after, would it service to
extend the principles of natural justice is the question. In S.L. Kapoor vs.
Jagmohan& Ors. [AIR1981 SC 136 at 147] without giving an opportunity,
the Municipal Committee was superseded on diverse grounds for violation of
the law. While holding that he law was violated as individual notices had
not been given to the members, this Court in para 16 held that requirements
of natural justice are met only if opportunity to represent is given in
view of proposed action. In paragraph 17 it was held that "whether
the failure to observe natural justice does at all matter if the observance of
natural justice would have made no difference when the admitted or indisputable
facts speak for themselves. Whereon the admitted or indisputable facts only one
conclusion is possible and under the law only one penalty is permissible, the
Court may not issue its writ to compel the observance of natural justice, not
because it approves the non-observance of natural justice but because Courts do
not issue futile writes". At page 147 it was reiterated that
"principles of natural justice know of no exclusionary rule dependent on whether
it would have made any difference if natural justice had been observed".
This Court in several cases applied the rule appropriate to the facts of each
case. It is seen that for 2250 posts more than 6000appointments were made. In
order words, for each post atleast three persons had been appointed. There are
no letters of appointment and we find that the so-called letters of regularization
are obviously illegal. The Government records were destroyed in fire. The
materials in the possession of the respective candidates were placed before the
Committee and the High Court but the same were not found acceptable. Under
these circumstances, what purpose the direction to issue notice would service those
who did not appear before the Committee. On a deeper consideration of the
factual matrix and after giving our most anxious consideration to the
respective contentions, we are of the considered view that principles of
natural justice were not violated. We are inclined to up hold the view taken bu
the Committee and accepted by the Government as correct. All the appointments were
made in flagrant breach of the procedure and the executive instructions and
amounted to latent abuse of the centralised power had by Mallick - and
subversive of discipline. It is, therefore, futile to issue write as prayed
for. It is next contended that security of service to an employee is a
Constitutional right, as declared by this Court, in socialistic polity
and that regularization ofservices of daily-rated employees who have put
in at least two years; continuous service, is the law laid down by this Court
under Article 141 of the Constitution. Only1369appellants as against 2250
posts are before the Court.
Therefore,
directions may be issued to treat the appellants as regularised Government
employees. It was stated that they have put in more than 7 to 8 years of
service. Shri Shanti Bhushan very fervently has pleaded for justice tempered
with mercy to regularize their Services. We have given very anxious
consideration to the contention of Shri ShantiBhushan. True, in given
circumstances when there existed permanent posts or even temporary posts for
longs years, an inference could be drawn as to the existence of the need to continue
such posts. But whether Court would be justified in directing the Government to
regularise the services of thedaily-rated or ad hoc employees. In this behalf,
it is apposite to recall the pertinent observations made by this Court in Delhi
Development Horticulture Employees' Union
vs. Delhi Administration, Delhi &Ors. [(1992) 4 SCC 99] at pages 111-12
in paragraph 23 to the following effect: "... The courts can take judicial
notice of the fact that such employment is sought and given directly for
various illegal considerations including money. The employment is given
first for temporary periods with technical breaks to circumvent the relevant
rules, and is continued for 240 or more days with a view to give the benefit
of regularization knowing the judicial trend that those who have completed
240 or more days are directed to be automatically regularised. A good
deal of illegal employment market has developed resulting in anew source or corruption
and frustration of those who are waiting at the Employment Exchanges for
years. Not all those who gain such back door entry in the employment are in
need of the particular jobs. Though already employed elsewhere, they
join the jobs for better and secured prospects. That is why most of
the cases which come to the courts are of employment in government
departments, public undertakings or agencies Ultimately, it is the people
who bear the heavy burden of the surplus labour. The othere qually
injurious effect of indiscriminate regularization has been that many of the
agencies have stopped undertaking casual or temporary works though
they are urgent and essential for fear that if those who are employed
on such works are required to be continued for 240 or more days they
have to be absorbed as regular employees although the works are
time-bound and there is no need of the workmen beyond the completion
of the works undertaken. The public interests are thus jeopardised on
both counts."
Mallick
who had centralised power in his hands blatantly abused the power and
appointed more than three persons to each post and the reasons are not far
to seek. Direction to regularise the services of those who approached the Court
would generate impetus for others who gain illegal and backdoor entry into
the service with the connivance of appointing authority and to remain in such
employment for considerable period to seek judicial processto the irillegitimate
entry into the Government service. They would in turn perpetrate the same
corrupt practice more vigorously, jeopardising public service and
public interests. Therefore, courts would be circumspect and charyto direct regularization
of the service of casual employees in given circumstances. Each case requires
to be examined in the backdrop of its own facts. Mere their approaching the
court and continuing the litigation would not be consideredto be a factor to
c the illegal actions. It is true that this Court in Dharwad Distt. P.W.D.
Literate Daily Wage Employees Association & Ors. vs. State of Karnataka
& Ors.[(1990) 2 SCC 396] while holding that security of ser vice by
regularising casual employee within a reasonable periodis an acceptable horn to
achieve Constitutional goal in socialistic polity, gave directions to the
State to absorball the daily-rated employees in different Departments ofthe
Government who worked for several years. There is nofinding that their
initial appointments were tainted with illegality or abuse of the power or
not according to rules and yet the directions were given. In H.C. Puttaswamy
vs. Chief Justice of Karnataka High Court, Bangalore &Ors.[(1990) Supp. 2 SCR 552], this Court directed
the excess staff to be regularised. But that was also not a case that there
was no letters of initial appointments. The appointments were not tainted
with flagrant violation of the rules. Equallyin Sardara Singh & Ors. vs
State of Punjab &Ors. [(1991) 4 SCC 555],
this Court did not approve of putting up on the notice Board in the office
of the Deputy Collector but yet it was held that the unsuccessful party could
not challenge the procedure.
The
respondent did notsuo motto take up the action for cancelling massive illegal appointments.
Equally in Probodh Verma & Ors. etc. vs. Stateof Uttar Pradesh & Ors.
etc.[(1985) 1 SCR 216] the U.P. Legislature recognized good service rendered
by untrained teachers during the period of strike; law was made treating them
regular employees without the process of selection. Though the High Court declared
it to be ultea vires under Articles 14 and 16 (1) of the Constitution,
this Court up held the class legislation as valid. But in view of the
finding on facts of this case, it is difficult to temper justice with mercy
to direct the Government to regularize the services of the appellants on
humanitarian ground. We are, therefore, constrained to reject the prayer.
In Appeals arising out of SLP Nos.12934-35, 14050-67 of1994 and 21949 of
1995, the counsel have placed before us the charts of the initial
appointments and the subsequent regularization stated to be made by following
the procedure prescribed in Circulars dated December 3, 1980 etc. and also following
the rule of reservation and appointments to various categories were said
to have been made. Though initially, we were impressed with the argument, on
deeper consideration we find it difficult to give acceptance to their
contention. It is seen that the documents placed before us except letters
of appointments, are only the charts prepared by them. Some of the monthly
acquittance registers showing payment of the salary have been placed on record.
This Court has come across in some cases, attendance registers placed on record
in support of proof of their working on casual basis in Gopal Gunj District
Collector'soffice, Bihar. When this Court summoned the
originals of the attendance registers, to its utmost surprise, this Court found
the attendance register placed before the Court to be fabricated. In the absence
of official record, it is difficult to rely on the material prepared by the
appellants and placed before this Court. Under these circumstances, it is also
difficult to countenance the contention that their appointments were made in
accordance with the prescribed procedure. In appeals arising out of SLP Nos.
15281-15435 of1995, for about 63 persons, the High Court had directed the Deputy
Director to verify whether appointments were validly made and on recording
positive finding, directed there spondents to pay the salary. The learned
counsel, Shri Tripathi had placed before us a copy of the report given by the
Deputy Director with the finding that they were legally appointed. Their
appointments were also cancelled since they had not appeared before the
committee. Though prima facie we are satisfied that the contention of Shri
Tripathi isplausible, it is not possible to accept the same since they failed
to avail of the opportunity to appear before the Committee which could have
got verified and examined the matter on merits. Some of them appeared
before the Committee. Now the affidavit filed on behalf of the State shows that
there was no record of any such enquiry.
We are
constrained to hold that it is difficult to give the relief of regularization
of their services. But that is not the end of the journey. The question is
what would be the appropriate direction that could be issued, in these
given facts and circumstances. Since we have held that all the
appointments or so-called regularizations have been made by Mallick in
flagrant breach of the instructions which pursuaded us not to accede to the fervent
appeals made by Shri Shanti Bhushan and his colleagues to direct the
respondents to regularise their services to the extent of the available
posts within the limit, we decline to accede to the same. We direct as under:
[i]
the respondent-State will publish a notice in all the newspapers inviting
applications for direct recruitment as well as to call names from the
concerned employment exchanges;
[ii]
if no statutory body composed of high-rank officials for recruitment
to Class III and Class IV employees is in vogue, the State is directed to
constitute a committee consisting of three members, viz.,
(a)
a member of the Public Servicers, i.e., the Additional or Joint Secretary
of the Health Department; and
(c) a
senior officer, i.e., the Director or Additional Director of Health Services,
to select the candidates;
[iii]
the respondent-Government will constitute the Committee within six weeks
from the date of the receipt of this order;
[iv]
it would be open to all the appellants or all those appointed by Mallick
to apply for selection.
The
Committee would, in their case, as first step verify and satisfy itself of
the credentials of such candidates whether they were appointed by Mallick
and had worked at least for three years continuously. The in the
appropriate circulars and follow rule of reservation as is in vogue and
prepare the merit list and should submit it to the Government;
[xi]
the committee will complete the process of selection within six months from
the date of its sitting for selection.
[x]
within four months from the date of receipt of the merit list, the
appropriate appointing authority or the Government, as the case may be, will
appoint the candidates as per roster and the merit list after due
verification of the credentials as per its procedure; and
[xi]
in the event of selection and appointment of erstwhile daily-rated
employee or employees, the entire proved period during which they have
worked as daily-waged employees will be computed for purpose of
pensionary and other benefits but they would not be entitled to claim any
inter se higher seniority in the selection made by the committee or for
any promotion on the basis of their previous service. The appeals are
accordingly disposed of in the above terms. In the circumstances, however, there
will be no order as to costs.
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