Arun
Kumar Rout & Ors Vs. State of Bihar & Ors [1997] INSC 837 (20 November
1997)
G.N.
RAY, S.P. BHARUCHA
ACT:
HEADNOTE:
THE
20TH DAY OF NOVEMBER, 1997 Present:
Hon'ble
Mr. Justice G.N. Ray Hon'ble Mr. Justice S.P. Bharucha Shanti Bhushan, Sr.
Adv., Jayant Bhushan, Adv. (M.C. Dhingra) Adv. (NP) of with him for the
appellants B.B. Singh, Adv. for the Respondents.
O R D
E R The following Order of the Court was delivered:
Leave
granted.
Heard
learned counsel for the parties. This appeal is directed against the order
dated 23.9.1994 passed by the Patna High Court in CWJC No. 13043 of 1993. The
writ petition filed by the appellants, 20 in number, claiming regularisation in
the Health Department of the Government Bihar was dismissed by the impugned
judgment. All the said 20 appellants were appointed on 1st of January 1980 by
the Civil Surgeon, Dumka in Class III and class IV posts as daily wager. On 30th March, 1989 the appointments of the +appellants
were regularised on the recommendation of the Appointment Committee. On
25.8.1993 the District Level Establishment Committee issued show cause notices
to the appellants asking them to show cause why their appointment s should not
be cancelled in view of the fact that they got irregular appointments
Ultimately on 14.10.93, the services of the appellants were terminated. It has
been found as a matter of fact that at the time initial appointment, no
advertisement had been given and he names of these appellants were also not
sponsored by the Employment exchange. There is, however, no dispute that they
are not lacking in requisite qualifications for appointment to the respective
posts in Class III or Class IV. there is also nothing on record to suggest that
in obtaining the said appointments the appellants were guilty of any fraud or
privy to any irregularity. Although in the matter of getting appointment in the
Government Service, the procedure required to be followed for such appointments
cannot be by passed and if the initial appointment was illegal on account of
not following the procedure for appointment, the incumbent obtaining
appointment without following due procedure cannot claim as a matter of right
to be regularised. This Curt, however, has looked with sympathy when question
of regulation came for consideration in cases of temporary or adhoc
appointments, even made improperly, if the incumbents had been allowed to
continue for a long time because of the human problem involved in such
continued service. In the instant case, all the appellants after getting
appointments continued for more than five years and it also appears from the
records of the case that they got salary initially for a few months and
thereafter continued in service without getting any salary whatsoever from 1989
up to some period of 1992. Thereafter the salary had been paid to them until
the services were terminated. It may be stated that there is nothing on record
to suggest that the service rendered by the appellants was otherwise
unsatisfactory. It may also be stated that such salaries had been paid to these
appellants after a departmental inquiry indicating that even though there were
irregularities in the appointment but the appellants had requisite
qualifications for the respective post to which they were appointed.
Although
the appellants had not been appointed by following the due procedure and
therefore, they cannot claim regularisation as a matter of course but
considering the fact that they had satisfactorily served the department even
without getting any salary for a long time and they were not guilty of any
fraud or sharp practice and also did not lack in requisite qualification and
they had been appointed against sanctioned posts, we feel that the appellants
deserve sympathetic consideration in guesting appointment against such
sanctioned posts on humane consideration.
Considering
the special facts of this appeal it appears to us that it will be just and
proper consistent with ends of justice to direct that 50 percent of the
sanctioned posts which were held by these appellants should be filled from
amongst the appellants on the basis of their inter se merit position by taking
into account their academic qualifications by waiving question f age bar if any
and usual procedures for such appointment. The remaining 50 per cent of the
said sanctioned posts, will be filed up on regular basis by throwing it open to
the members of the public and following the procedure prescribed for such
appointment in the State of Bihar. The
remaining appellants who will not be absorbed against 50 per cent of the said
sanctioned posts will be entitled to compete for appointment in the balance 50
per cent posts along with other eligible candidates but they will not be
treated unsuitable on account of age bar. On the contrary, in the matter of
assessment of merit they will be given a credit of 25 percent marks for the
experience they have gained for services rendered by them for the said long
period of 5 years or more. These directions are given on consideration of the
special facts of this case and this order being confined to the special facts
of this case is not to be treated as a precedent. The appeal is accordingly
disposed of without any order as to costs. We reasonably expect that the
concerned authorities will make the exercise as early as practicable for filling
up the vacant sanctioned posts preferably within a period of six months from
today.
Back