Ashwani
Kumar & Ors Vs. State of Bihar & Ors [1996] INSC 1619 (16 December 1996)
S.B.
Majmudar, Sujata V. Manohar S.B. Majmudar. J.
ACT:
HEAD NOTE:
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]
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.
Due to
the agitation, the Director an 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 regularisation
of many of them including most of the appellants, was made. When alarming bells
rang around portals of Patna High Court by filing petitions under Article 226
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 an Enquiry Committee
was constituted to find out whether the appointments made by Dr. Mallick were
valid and whether salaries could be paid to such employees.
In the
meanwhile, the Government also directed the Vigilance Department to enquire
into the matter and on 7th May 1991, the Vigilance Department in its report
pointed out that Dr. 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 min-handled resulting in an ugly 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 Dr. 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 Dr. Mallick did not make any order of appointment on daily
wage basis by following due procedure. It found it difficult to accept even the
orders of confirmation. In that view, the Committee found that the initial
appointments made by Dr. Mallick were in violation of the instructions issued
by the Government.
Therefore,
they were found to be illegal appointments. The Committee also found that Dr. Mallick
circumvented the rules by making adjustment by transfer without verifying the
qualifications, eligibility or disclosing previous places where at 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 the credentials and then to appoint them
temporarily. The Committee also noted that the third category was of persons
who were appointed by producing fabricated orders of appointment. Consequently,
it directed to cancel all the appointments made by Dr. Mallick.
On
receipt of the report and on its consideration, the Government found them to be
invalid and illegal and all the appointments were canceled. When their legality
was questioned in the writ petitions filed under Article 226, the High Court
upheld the Government action. Thus these appeals by special leave.
When
this group of appeals was finally heard by the Division Bench of this Court
consisting of K. Ramaswamy, J. and Hansaria, J., as noted earlier, on hearing
the arguments of learned counsel appearing for the contesting parties, there
arose a difference of opinion between the two learned judges. K. Ramaswamy, J.,
came to the following conclusions:
1.
Even though it was open to the Government to create posts or to fill up the
posts independently of existence of any law or statutory rules made under the
proviso to Article 309 of the Constitution to that effect, the said exercise
had to be consistent with the right guaranteed under Articles 14 and 16(1) of
the Constitution of India.
2.
When planned expenditure is required to be spent, budgetary sanction is
mandatory. In the present cases when some of the employees were sent for one
month's training posts were created and budgetary sanction was obtained. The
cases at hand were unique and the device adopted by Dr. Mallick was 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 6000 persons at his whim and wagery.
3.
Procedure for appointment to Class III and Class IV posts was given a go-by.
Instead casual appointments were made without any letters of appointment to
fill up even non-existing vacancies.
4.
Existence of post or vacancy was a sine qua non for making appointments to such
existing posts or vacancies and as there were no 6000 posts or vacancies
available, the recruitment made by Dr. Mallick to these posts was patently
illegal and without authority of law.
5.
When initial appointments were in violation or in negation of the rules or in
other words when there were no orders for appointment there would remain no
question of regularisation of such initially illegal appointments. To confer
permanency of appointment to the posts by regularisation in violation of the
executive instructions or rules is itself subversive of the procedure.
6.
Without following due procedure prescribed under the circulars, regularisation
of services of daily wage employees could not be effected.
7.
Principles of natural justice were not required to be followed in the present
cases. Even otherwise there was due compliance with these principles.
8. As
all the appointments were made in flagrant breach of the procedure and the
executive instructions and amounted to blatant abuse of the centralised power
held by Dr. Mallick and subversive of discipline, it was futile to issue writs
as prayed for.
9.
However Ramaswamy, J. was inclined to issue 11 directions in para 36 of his
judgment for future recruitment of class III and IV employees in the
Tuberculosis Eradication Programme, providing certain safeguards for
considering the feasibility of recruiting the present appellants on these
posts.
In
view of the aforesaid findings and conclusions K. Ramaswamy, J. was inclined to
dispose of the appeals by confirming, subject to the aforesaid directions, the
order of the High Court dismissing the writ petitions.
On the
other hand Hansaria, J., reached the following conclusions and findings :
1. For
the purpose of recruiting Class III and Class IV employees in the 20-Point Programme
the procedure prescribed by Office Memorandum dated 3rd December 1980 was not
required to be followed.
2. It
could not be said that the procedure visualised by Office Memorandum dated 3rd
December 1980 was not followed at all while regularising the appellants.
3.
Non-advertisement of posts in newspapers did not cause any infirmity to the regularisation.
4.
Non-information to the Employment Exchange had caused no dent to the
appointments.
5. The
question of illegality in appointment of general candidates on the ground of
non-reservation did not arise as the material showed that there was reservation
of SC/ST candidates.
6.
Material on record showed that in some cases regularisation was in pursuance of
the recommendations of a properly constituted Selection Committee.
7.
Merit list/panel was prepared in some cases pursuant to O.M. of 3rd December
1980. But it could not be said that it was done in all cases. However, there
was no justification in finding infirmity in all the appointments because of
lack of material on record.
8.
Principles of natural justice were not fully compelled with before terminating
the services of the appellants.
However,
that had no nullifying effect so far as the present proceedings are concerned
as they were heard by this Court and consequently on that ground termination
orders could not be set aside.
9.
Even though Dr. Mallick was not justified in giving direct appointment to about
6000 persons when there were only 2500 sanctioned posts, all the persons so
employed hand not abetted, aided or instigated Dr. Mallick in doing so, and,
therefore, even though a wrong doer or a sinner has to be punished and also
those who aid, abet or instigate them but not those regarding whom only a doubt
existed.
10.
About 2500 persons could have been appointed by Dr. Mallick and as there was
material on record to show that regular appointments had also been made (how
many, we do not know) and as it is not possible to know who the regularly
appointed persons were the appellants, whose number is 1363, may be among those
who were regularly appointed.
Consequently
in view of the aforesaid findings Hansaria, J. was inclined to hold that
justice had to be tempered with mercy in the light of Article 21 of the
Constitution of India and as it was doubtful whether these 1363 appellants
could be said to have been irregularly appointed, termination orders qua them
were required to be set aside. It was made clear by Hansaria, J., that the said
order would not in any way be taken advantage of except by the 1363 appellants
before the Court. As noted earlier it is this difference of opinion between the
two learned judges constituting the Division Bench, that has triggered off the
present proceedings before this larger Bench.
Rival
Contentions Learned counsel for the appellants vehemently submitted that there
was ample evidence on the record of these cases to show that Dr. Mallick was
the appointing authority and was duly empowered to appoint Class III and Class
IV employees on the programme regarding eradication of Tuberculosis which was
taken up as a part of 20-Point Programme in the Planned Expenditure by the
State of Bihar.
It was
further contended that the Government Order of 3rd December 1980 did not apply to such appointments. That looking to the
urgency of the Programme the appointments had to be made on a war-footing and
that is how 6000 appointments were made by Dr. Mallick in due exercise of his
authority so that the Tuberculosis Eradication Programme could be put on an
effective and strong footing. It was further submitted that these were not
posts born on any regular cadre in State Service and consequently the detailed
method of recruitment for filling up vacancies for such a Programme was not
required to be followed. It was next contended that Dr. Mallick had given due
importance to the policy of reservation as applied by the State while effecting
these appointments. That in any case these appointments on ad-hoc basis were
ultimately duly approved by the State when the Committee constituted for the
purpose had found them to be valid and accordingly the employees were regularised.
That thereafter it was not open to the State of Bihar to nullify these appointments by one stroke of pen. Even
that apart all the appointments effected by Dr. Mallick which were about 6000,
could not have been invalidated in a wholesale manner which was contrary to the
basic principles of the natural justice. That the so-called hearing given by
the Committee even prior to its constitution could not be said to be a hearing
at all and hence termination orders were null and void. It was ultimately
submitted that for no fault of theirs these employees who had continued for
more than 10 years in service in many cases and who were even subsequently
promoted could not have been removed wholesale and hence on the principle of
fairness, equity and even invoking mercy jurisdiction of the Court they should
have been continued in service. That, if at all, they were victims at the hands
of Dr. Mallick but could not be said to be abetters and should have been dealt
with in a humanitarian manner. It was contended that on the same lines on which
this Court in the case of H.C. Puttaswamy & Ors. v. The Hon'ble Chief
Justice of Karnataka High Court. Bangalore & Ors. JT 1990 (4) S 474 permitted
the irregularly appointed employees to continue in service without a break, the
present appellants also should be directed to be so continued in service after
giving them reinstatement with all consequential benefits. Dr. Dhavan, learned
senior counsel appearing for the appellants in appeals which were earlier delinked
from this group but which were subsequently placed along with the group for
disposal, namely, civil appeal arising out of S.L.P.(C) No.14275 of 1994 and
C.A. Nos. 10811-28 of 1995, submitted that 8 employees in civil appeal arising
out of S.L.P.(C) No. 14275 of 1994 were not appointed by Dr. Mallick but were
appointed by Dr. Mithilesh Kumar and, therefore, their appointments stood on a
separate footing and could not have been nullified by adopting the general
yardstick for voiding all the appointments made by Dr. Mallick. So far as the
Civil Appeals Nos. 10811-28 of 1995 were concerned Dr. Dhavan submitted that
appointments made by Dr. Mallick were in two phases, the first phase was reflected
by the Government Order dated 25th March 1983
wherein Dr. Mallick had appointed number of employees under the Scheme. But the
second phase started pursuant to the Government Order dated 31st January 1987 whereunder
a programme was instituted for training Tuberculosis Attendants and
Tuberculosis Assistants and once they were given training such candidates
became entitled to be appointed on regular basis in the Programme and as they
had been so trained there was nothing wrong in continuing them in service. Dr. Dhavan
also submitted that the Tuberculosis Eradication Scheme under 20-point Programme
was entirely a separate Scheme undertaken by the State of Bihar in
collaboration with the Central Government wherein the expenses for the
infrastructure were to be shared by the State Government as well as Central
Government and there was no question of any posts being created in the regular
service of the State. Under these circumstances the regiour of the procedure of
recruitment to State service as laid down by the Notification to State service
as laid down by the Notification of 3rd December 1980 could not be applied to fill up the
vacancies on this Scheme. Consequently no fault could be found with the manner
of recruitment adopted by Dr. Mallick especially when a Committee, duly
constituted under the Scheme by the State Government, had cleared these
appointments and directed regularisation of these ad hoc employees as initially
appointed by Dr. Mallick, Dr. Dhavan further submitted that these posts where
sanctioned from time to time by State Government. That there was nothing wrong
with the regularisation of these employees and all of them could not have been
terminated by one stroke of pen contrary to all the basic established
principles of natural justice and fairplay. Ultimately it was contended that in
any case by tempering justice with mercy these employees who have now become
age-barred should not be thrown out of service after number of years when they
had been recruited in service for no fault of theirs. It was, therefore,
submitted by Dr. Dhavan towing the line of other learned advocates for the
appellants that the appeals should be allowed and all the prayers put forward
in the writ petitions filed in the High Court should be granted. In the written
submissions filed in Civil appeal Nos. 10831-10985 of 1995 it was submitted
that the 20-point programme announced by Government of India underscored the
need for eradicating the dreaded disease Tuberculosis (T.B.). In Bihar State alone as per Government information in 1976 about half the
population (current population 10 crores) was striken with T.B. and the annual
death toll was feared to be in excess of 1 lakh with 3 Lakh new cases reported
every year. It was in this background that the S.L.P. petitioners who numbered
581 were all appointed (initially ad-hoc/daily wagers) in Class III and Class
IV posts in connection with the T.B. Eradication programme in the State of
Bihar from the year 1980 onwards and were regularised on various dates
thereafter (p. 146-166 S.L.P. paper book). By the additional affidavit dated
4.9.1994 particulars of the petitioners, their dates of ad-hoc/daily-rated
appointments and their dates of regularisation, and (in many cases) subsequent
promotion have been set out (pages 146-169 S.L.P. paper book). It was submitted
that the initial appointments and regularisation of these employees were valid
and proper. It was next submitted that by a letter dated 25th March 1988 the Joint Secretary (Health)
confirmed and appointed Dr. A.A. Mallick as ex-officio Chairman of the
Selection Committee and by a directive dated 24th July 1984 the Joint Secretary
had directed the said Dr. Mallick to regularise the appointments made by him
and to the same effect was the subsequent letter dated 17th October 1984 to the Chairman, T.B. Hospital
directing regularisation of the daily wagers.
In
short similar contentions were sought to be raised in the written submissions
as were advanced by learned advocates appearing for other appellants.
Shri
Singh, learned counsel appearing for the respondent-State on the other hand
submitted that all the initial appointments on ad hoc or daily-rated basis made
by Dr. Mallick were patently unauthorised and illegal for the simple reason
that though there were in all 2500 sanctioned posts, Dr. Mallick for the
reasons best known to him thought it fit to appoint 6000 Class III and Class IV
employees. He threw the established procedure for recruitment of such employees
to the winds and in a most arbitrary manner adopting a policy of 'pick and
choose appointed these persons. These appointments were not backed up by
financial budgets. They were totally unauthorised and could not have been
countenanced at all. As there was nothing to show as to who could be fitted in
against the sanctioned posts the State was justified on the recommendation of
the Enquiry Committee to set aside all these appointments which were ex-
officio contrary to the established norms of recruitment.
That
as these appointments were illegal and void from their inception there was no
question of regularising them and the so-called regularisation was wholly
arbitrary, null and void and of no legal effect. That ample opportunity was
given to these employees to put forward their contentions before the committee.
Public notices were given inviting them to have their say be submitting all
necessary datas before the Committee. Not only that but even 987 persons did
appear before the committee. Therefore, there was no question of violation of
principles of natural justice. It was next contended by Shri Singh that there
is no question of tempering justice with mercy s all these incumbents were
illegally appointed by Dr. Mallick and that it was impossible to decide in the
absence of relevant material or data on record as to who were senior enough to
be adjusted against the sanctioned 2500 posts out of the 6000 employees.
Hence
the only solution to the problem was to nullify all the appointments and to
start on a clean slate de novo. In reference to the contentions of learned counsel
for the appellants placing reliance on decision of this Court in H.C. Puttaswamy
(supra) it was submitted that in that case the initial appointments by the
Chief Justice of Karnataka High Court were not illegal or unauthorised as the
Chief Justice had enough financial power to create any number of posts on the
High Court establishment. That what was voided was the method by which the
employees recruited on the High Court establishment were subsequently
transferred to the establishments of subordinate courts and under these
peculiar circumstances the appointees were permitted to continue in service
without break. That in the present case though Dr. Mallick was authorised to
recruit staff on the Tuberculosis Eradication Scheme, as there were only 2500
sanctioned posts, the wholesale appointments of 6000 persons made by him were
clearly illegal and an exercise in futility. It was next contended that even
though these posts may not be posts born on the regular cadres in the State
service they were certainly to be vacancies which were required to be supported
by sufficient financial budgets and unless there were vacancies covered by the
planned expenditure budgeted for the purpose, no such appointments could be
effected. Under these circumstances such appointees who were illegal appointees
from the very beginning could not have been regularised. So far as the
submissions of Dr. Dhavan were concerned it was submitted that there were no
two phases in which appointments were made by Dr. Mallick.
So far
as he was concerned there was only one phase of recruiting persons at his whims
and fancies on vacancies which did not really exist and whatever training was
given to these employees also remained an exercise in futility. So far as 8
employees covered by Civil Appeal arising out of S.L.P. (C) No. 14275 of 1994
were concerned it was submitted that Dr. Mithilesh Kumar was also directed to
effect appointments under instructions of Dr. Mallick and hence their
appointments also stood on the same footing on which direct appointees of Dr. Mallick
stood and, therefore, suffered from the same vitiating consequences. It was
accordingly submitted by Shri Singh that the appeals were required to be
dismissed.
In the
light of the aforesaid rival contentions the following points arise for our
determination:
Points
for determination
1.
Whether the appointments of Class III and Class IV employees on the
Tuberculosis Eradication Scheme as a part of 20-Point programme were legal and
valid.
2.
Whether the confirmation of these employees was legally justified.
3.
Whether principles of natural justice were violated while terminating services
of all these 6000 employees appointed by Dr. Mallick.
4.
What relief, if any, can be granted to the appellants.
We
shall deal with these points seriatim.
Point
No. 1 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. 2 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 of regularisation of an irregularly appointed candidate would
arise if the concerned candidate is appointed in an irregular manner or on adhoc
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 service for consideration and even if such purposed 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.
Learned
counsel for the appellants invited our attention to the chart showing the
details of appointments of the concerned appellants as found at Annexure XXII
at pages 243 to 255 of the Paper Book and also as a specimen a subsequent order
of confirmation as found at page 256 in the case of Ashwani Kumar. It was
submitted that such confirmation orders were also given to number of employees
who were initially appointed as daily wagers/T.B. Assistants by Dr. Mallick.
Our attention was also invited to the letter of Joint Secretary Shri Anant Shukla
written to the Superintendent, T.B. Hospital, Koelwar, Bhojpur on 17th October
1984 which is found as Annexure-X at page 147 of the Paper Book to show that
steps were taken for ratification of the orders of appointment of the daily
wage employees as per the direction of Deputy Director, T.B./Health Services,
Bihar. 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.
Ex nihilo
nihil fit. Zero multiplied by zero remained zero.
consequently
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
concerned authorities at the relevant time. It would amount to regularisation
of back door entries which were vitiated from the very inception of learned
counsel for appellants that the vacancies on the Scheme had nothing to do with
regular posts. 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.
In
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
concerned incumbents 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 concerned employees
can give their best by being assured security of tenure. But this would require
one pre-condition that the initial entry of such an employees 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 regularisation
may arise would be when the initial entry of the employee against an available
vacancy is found to have suffered from some flow 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 competent authority and the
irregular initial appointment may be regularised and security of tenure may be
made available to the concerned incumbent. 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. 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 regularising such employees will established
procedure had to be followed. In the present case it was totally by-passed. In
this connection we may profitably refer to Government Order dated 31st December 1986 to which our attention was invited
by learned counsel for the appellants. The said government Order is found in
the additional documents submitted in C.A. Nos. 10758-59 of 1995 at
Annexure-IV. Secretary to Government of Bihar, Health Department, by
communication dated 31.12.1986 had informed all regional deputy directors,
health Services;
Tuberculosis
civil surgeon-cum-Chief Medical officer; and other concerned authorities in
connection with the compliance and implementation of the orders passed and
instructions issued by Deputy director (Tuberculosis) Bihar, Patna under the
Tuberculosis control Programme covered under the 20-Point programme. It was
stated in the said Communication that steps will be taken to fill up sanctioned
Third and fourth Grade posts as soon as possible according to the prescribed
procedure and all possible efforts should be made to achieve the fixed targets
in a planned and phased manner. 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 prescribed procedure. On 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.
The 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 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.
We may
also at this stage to additional written submissions filed on behalf of the
appellants in C.A. Nos. 10831-10985 of 1995. In these written submissions
reliance is placed on the judgment of one of us, A.M. Ahmade, J. (as His
Lordship then was), in the case of Jacob M. Puthuparambil & Ors. etc. etc.
v. Kerala Water Authority & Ors. etc. etc. (1991) 1 SCC 28. In the said
decision it was held that when ad hoc employees who were continued for two
years or more (in some cases one year or more) were entitled to be regularised
subject to availability of vacancies. The aforesaid decision cannot be of any
avail to the appellants for the simple reason that once we find that there were
no vacancies at all on which the appellants could be regularised there was no
occasion to undertake such an exercise especially when the initial entries of
these appellants in the service were found to be illegal and vitiated.
Before
we leave discussion on point no. 2 it is necessary to mention two additional
aspects placed for our consideration by Dr. Dhavan in support of the
appellants. In Civil Appeal Nos. 10811-28 of 1995 Dr. Dhavan submitted that
there were two phases in connection with recruitment for Tuberculosis
Eradication Programme. One phase was as per Government Order of 25th March 1983 wherein the committee of
recruitment headed by Dr. Mallick was entrusted with the task of recruitment.
But the second phase started on 31.1.1987 when Joint Secretary to Government of
Bihar, Health Department addressed a communication to the Deputy Director,
Tuberculosis, Dr. Mallick. The said communication is found as Annexure V to the
Paper Book in civil Appeal no. 10811-28 of 1995. it mentions that the signatory
to the communication was directed to say that keeping in view the necessity of
one T.B. Assistant and T.B. Attendant for each of the 627 Primary Health
centers, a training programme should be launched for training the candidates in
proportion to the number of primary Health centres, which will have to compulsorily
participate in the final examination conducted by the Director, State T.B.
Demonstration and Training Centre and shall have to pass such examination so
that they may be posted in the Primary Health centres in order of merit from
the list of trained candidates after approval of sanction of a posts by the
Government in phases. Dr. Dhavan contended that pursuant to the said direction
Dr. Mallick appointed number of candidates under the Training Programme and
these candidates were trained for being ultimately absorbed in primary health centres
under the Scheme. We fail to appreciate how this communication which is styled
as beginning of the second phase by Dr. Dhavan, can change the situation. Even
though some training was given under the direction of the Government to certain
candidates the recruitment made by Dr. Mallick in excess of the available
vacancies would still remain unauthorised and illegal and cannot improve the
situation for the said trainees in any manner. Even after training when recruitment
is to be made it must be made on available vacancies or sanctioned posts under
the Scheme and that too after following due procedure of recruitment. That was
never done by Dr. Mallick.
Therefore,
the so-called second phase cannot improve the position for the appellants in
any manner. Dr. Dhavan then submitted that at least so far as 8 appellants in
Civil Appeal arising out of S.L.P (C) No. 14275 of 1994 ar concerned, they were
not appointed by Dr. Mallick but were appointed by Dr. Mithilesh Kumar. In para
3 of S.L.P. (C) No. 14275 of 1994 it has been stated that one letter was issued
by the then Deputy Director (T.B.), Dr. Mallick on 23rd November 1989 by which
the Civil Surgeon-cum-chief Medical Officer, Madhubani was directed to absorb
petitioner no. 2 according to his qualification against a Class III post and
accordingly he was appointed. At page 83 is found the recital as regards
petitioner nos. 7 and 8, to the effect that with respect to them Dr. Mallick,
the then Deputy Director (T.B.) Health Services issued one letter dated 12th
January 1990 recommending for their absorption against class III posts
according to their qualification and that is how they were appointed by Dr. Mithilesh
Kumar. It was next submitted with reference to paragraph 13 of the same special
Leave Petition that with respect to the appointments which were made by then
Civil Surgeon-cum-Chief Medical Officer, Madhubani, like the petitioners a
separate letter was issued on 6th March 1993 wherein the incharge Medical
Officers of Primary health Centres were directed to issue show cause notices to
such persons, who were appointed/absorbed by the order of the then civil
Surgeon- cum-Chief Medical Officer, but such show cause notices were never
issued. In our view these averments cannot improve the case of the appellants.
Even though these concerned petitioners might have been actually appointed by
Dr. Mithilesh Kumar their appointments were recommended by Dr. Mallick who,
therefore, remained the prime mover in their cases also as in cases all other
appellants. It is the hand of Dr. Mallick that brought them under the
Tuberculosis Eradication Scheme and but for him they would not have got their
entry. Therefore, actual appointments might have been made by Dr. Mithilesh
Kumar but the real appointing agency remained that of Dr. Mallick. Consequently
the effort made by Dr. Dhavan to separate their cases from the cases of other
appellants who are tracing their direct linkage with Dr. Mallick remained an
abortive one. Similarly whether show cause notices were issued to them or not
also would be besides the point as we will see while deciding point no.3 that
public notices were given to appointees to have their say before the competent
authority in connection with their appointments and basic principles of natural
justice were followed in these cases also. The second point, therefore, is
answered in the negative. This takes to the consideration of Point No.3 for
determination.
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.
Point
No.4 Now is the tie for us to take stock of the situation in the light of our
answers to the aforesaid three points. As a logical corollary to these answers
the appeals are liable to be dismissed as the decision of the High Court is
found to be well sustained. The submission made by learned counsel for the
appellants to sustain services of these appellants on humanitarian grounds
cannot be countenanced. When 6000 appointees are found to have been illegally
loaded on the State exchequer by Dr. Mallick and when there were only 2250
sanctioned posts, in the absence of clear data as to who were the senior most
and which were the sanctioned posts available at the relevant time against
which they could be fitted it would be impossible to undertake even a
jettisoning operation to off load the removable load of excess employees
amounting to 3750 by resorting to any judicial surgery. Once the source of
their recruitment is found to be tainted all of them have to go by the board.
Nor can we say tat benefit can be made available only to 1363 appellants before
us as the other employees similarly circumscribed and who might not have
approached the High Court or this Court earlier and who may be waiting in the
wings would also be entitled to claim similar relief against the State which
has to give equal treatment to all of them otherwise it would be held guilty of
discriminatory treatment which could not be countenanced under Articles 14 and
16(1) of the Constitution of India. Everything, therefore, must start on a
clean slate. Reliance placed by learned counsel for the appellants on the
doctrine of tempering justice with mercy also cannot be pressed in service on
the peculiar facts of these cases as mercy also has to be based on justice. The
decision of this Court in the case of H.C. Puttaswamy (supra) also can be of no
assistance to the appellants on the facts of the present cases as in that case
the Chief Justice of the High Court had full financial powers to create any
number of vacancies on the establishment of the High Court as required and to
fill them up. There was no ceiling on his such powers.
Therefore,
the initial entry of the appointees could not be said to be unauthorised or
vitiated or tainted. The fault that was found was the manner in which after
recruitment they were passed on to the establishments of subordinate courts.
That exercise remained vitiated. But as the original entries in High Court
service were not unauthorised these candidates/employees were permitted to be regularised.
Such is not the present case. The initial entry of the employees is itself unauthorised
being not against sanctioned vacancies nor was Dr. Mallick entrusted with the
power of creating vacancies or posts for the schemes under the Tuberculosis
Eradication Programme. Consequently the termination of the services of all
these appellants cannot be found fault with. Nor any relief as claimed by them
of reinstatement with continued service can be made available to them.
However
there is one human aspect which calls for our attention on the facts of the
present cases. These 6000 employees got employed by Dr. Mallick over at least a
decade. Many of them served for number of years and got confirmed. They would
naturally have their families to support. For no fault of theirs they found
themselves stranded in life midstream. Many might have got over aged.
As Dr.
Dhavan pointed out, many of them also got trained under the second phase of the
Programme, as he would like to style it, pursuant to the Government Order dated
31.1.1987 referred to by us earlier. Under these circumstances justice would
require that some effort to salvage their situation if possible may be made
when the State undertakes a fresh exercise to fill up the sanctioned posts
under the Tuberculosis Eradication Programme which has come to stay.
We are
informed that tuberculosis is still not eradicated in the State of Bihar and
the Programme is to last for couple of more years and may be it may assume a
semi-permanent status. It was also not disputed that there are 2250 sanctioned
posts or it may be that some more sanctioned posts may see the light of the day
in near future. Shri Singh learned counsel for the respondent-State informed us
that the State proposes to start on a clean slate and after following due
procedure of recruitment would certainly recruit Class III and Class IV
employees on the sanctioned vacancies and posts which will have to be filled up
for making the Tuberculosis Eradication Scheme effective and fully operative.
When that is the need of the day, it would be appropriate to direct the State
to undertake that exercise at the earliest and while doing so after following
the due procedure of recruitment and the rules governing the same, given an
opportunity to these 6000 unfortunate creatures of Dr. Mallick to compete for
the said posts in the future recruitment that may be undertaken by the State
and in the process because of the experience which they have gathered in their
past service under the Tuberculosis Programme and the training which they might
have received pursuant to the Government Order dated 31.1.1987, due weight age
also be given to them while considering their eligibility for being recruited
in service as and when such future exercise is undertaken. Consequently we deem
it fit to issue the following directions to the respondent State of Bihar in
this connection :
1.
Respondent-State of Bihar may start at the earliest a fresh exercise for
recruiting Class III and Class IV employees in the Tuberculosis Eradication Programme
undertaken by the State as a part of 20-Point Programme on the available 2250
vacancies or even more vacancies, as the case may be, preferably within three
months from the receipt of a copy of this order.
2.
Towards the said exercise the State will publish a notice in all the newspapers
having circulation in the State inviting applications for direct recruitment to
Class III and Class IV posts for filling up these vacancies in the said Programme.
3.
Similarly names may also be called for from the concerned Employment Exchange
for such recruitment.
4. If
no statutory body composed of high-ranked 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 Service Commission;
(b) a
senior IAS officer, 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.
The
Additional or Joint Secretary of Health Department shall be the Chairman of the
Committee.
5. The
respondent-State will constitute such a committee preferably within three
months of the receipt of this order.
6. It
would be open to all the appellants or those appointed by Dr. Mallick who might
not have challenged their termination orders before any competent court up till
now, to apply for selection to the concerned Class III and Class IV posts. The
committee would in their cases as first step, verify and satisfy itself of the
credentials of such candidates whether they were appointed by Dr. Mallick and
had worked a least for three years continuously. The committee would also
satisfy itself that such candidate or candidates honestly and meritoriously
discharged their duties as Class III and Class IV appointees, at least for the
said period.
7. The
committee may fix total number of marks to be obtained by the candidates for
being treated to have passed the selection test. Any relaxation in the minimum
eligibility marks to be obtained by the Scheduled Casts, Scheduled Tribes and
Other Backward Classes candidates as found necessary may also be decided by the
committee. The committee if satisfied about the credentials and other
particulars of the appellants or those appointed by Dr. Mallick as mentioned in
paragraph (6) above, may allot additional marks to them for each of the three
years and more for which they might have worked, at the rate of 2 marks for
each completed year of continuous working, upto the maximum of 6 marks, for
each candidate. Candidates appointed by Dr. Mallick who are found to have
undertaken training pursuant to the Government direction dated 31.1.1987 may be
awarded 2 additional marks for the training so received. Those 2 marks will be
in addition to the 6 marks which are to be awarded on completion of meritorious
and honest service by the concerned employees as mentioned above.
8. If
the concerned candidates who were earlier appointed by Dr. Mallick are found by
the committee to be otherwise eligible for being appointed to Class III and
Class IV posts as per the relevant rules and regulations and if on the basis of
the marks allotted to them as aforesaid they become eligible to be appointed
besides other competing candidates, then if they are found to have become age
barred the condition of age for recruitment of such candidates should be
relaxed appropriately so as to entitle such candidates to be considered for
selection.
9. The
State Government shall arrange sittings of the Selection Committee preferably
within two months from the last date prescribed for submitting the applications
and for completion of the preliminary scrutiny of such applications. The
committee shall select all candidates on merits following the prescribed
procedure in the appropriate circulars and rules and shall also follow the
rules of reservation as in vogue and prepare the merit list and should submit
it to the Government. While doing so the eligible candidates who were earlier
appointed by Dr. Mallick and who received the marks for their past meritorious
service and training as aforesaid will be considered for selection qua the
other candidates in the light of the weight age of the marks as aforesaid and
in that light the committee will select all the candidates on merits and will
prepare the select list of candidates found fit to be appointed to the
concerned posts.
10.
The committee will complete the process of selection preferably within three
months from the date of its sittings for selection.
11. An
appropriate authority or the government, as the case may be, will appoint
preferably within three months from the date of the receipt of the merit list
from the committee, the selected candidates as per roster and the merit list,
on available vacancies, after due identification of the credentials of the
candidates concerned as per its legally permissible procedure.
12. In
the event of selection and appointment of erstwhile daily-rated employee or
employees, who were inducted by Dr. Mallick, the entire proved period during
which they had worked as daily wager and/or confirmed employees will be
computed for the purpose of pensionary and other retrial benefits but they will
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 disposed of in the above terms. In the facts and circumstances of
the case there will be no order as to costs.
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