Satchidananda Mishra Vs.
State of Orissa & Ors [2004] Insc 549 (17 September 2004)
Y.K. Sabharwal & D.M.
Dharmadhikari [With Ca Nos.8058, 8059, 8061-8062, 8063, 8064, 8065, 8066, of
2003, Contempt Petition (C) No.419 of 2002, Ca Nos.8060 of 2003, 3015-16 of 2004
And Slp (C) Nos.13861-862 of 2004] Y.K. Sabharwal, J.
The present appeal by special leave is directed against the judgment dated
6th August, 2001 passed by the Orissa High Court declining to set aside order
of Orissa Administrative Tribunal whereby Orissa Medical Education Service
(Appointment of Junior Teachers Validation) Act, 1993 (for short, 'the
Validating Act') has been declared as ultra vires the Constitution of India.
The factual background which gives rise to the present controversy is narrated
as follows.
On 24th September, 1973, the Orissa Medical Health Services (Recruitment and
Promotion to Teaching Posts in the Medical Colleges) Rules, 1973 (hereinafter
referred to as the '1973 Rules') were framed under proviso to Article 309 of
the Constitution. These Rules provided that appointment to the posts of Junior
Teachers shall be made through a Selection Board by recruitment from amongst
the Assistant Surgeons with at least one year's experience as such, in
consultation with the Orissa Public Service Commission (hereinafter referred to
as 'OPSC'). Rule 3(f) defined 'Selection Board' to mean a Selection Board
appointed by the State Government to select persons for appointment to the
Junior or Senior teaching posts and shall consist of the Principals of Medical
Colleges in the State and such others as may be nominated by the Government.
The 1973 Rules came to be repealed by another set of Rules dated 13th August, 1979 made under proviso to Article 309 of the Constitution, called 'The
Orissa Medical Education Service (Recruitment) Rules, 1979 (for short, '1979
Rules'). Under these Rules, vide sub-rule (2) of Rule 4, minimum qualification
of postgraduate degree in the concerned specialty or any other equivalent
degree or qualification as prescribed by the Council was provided for
appointment of Junior Teachers. Rule 3(f) provided that Selection Board was to
be constituted with member of the OPSC as its Chairman. The Secretary to
Government in the Health and Family Welfare Department, DHET and Principals of
the Medical Colleges were to be its members. On 20th September, 1979, the Director of Medical Education and Training (DMET) issued advertisement-inviting
applications from eligible candidates for appointment as Junior Teachers in
various disciplines/specialties.
The Selection Board as per 1979 was, however, never constituted. According
to Government, as many posts of Junior Teachers remained vacant for long time,
the Chief Minister passed orders on 27th January, 1980 to fill up those posts
by ad hoc appointments without constituting a Selection Board under 1979 Rules.
Despite 1973 Rules having been repealed, the Selection Board appointed on 3rd August, 1979 under the repealed Rules was allowed to make the selections. After
obtaining orders of the Chief Minister on 4th August, 1980, orders were issued by the State Government to the selected candidates appointing them as
Junior Teachers on ad hoc basis. Some appointments were also made on 11th November, 1980. In all, 49 candidates came to be appointed as Junior Teachers on ad
hoc basis by the Government. On 9th February, 1982, the recommendations of the
Selection Board constituted under the 1973 Rules, were referred to the OPSC
along with the entire list of 145 candidates who had applied for the post pursuant
to the advertisement dated 20th September, 1979. The OPSC refused to concur
with the ad hoc appointments of these 49 Junior Teachers. This led to the
enactment of the Validating Act by which all the 49 Junior teachers appointed
on ad hoc basis by the Government were deemed to have been validly and
regularly appointed in the service from the date of their appointment as such.
The Administrative Tribunal by its order dated 30th November, 1998 declared
the Validating Act ultra vires and inoperative. The decision of the Tribunal
has been upheld by the Division Bench of the Orissa High Court by the impugned
judgment.
In the aforenoticed background, primary issue which comes up for our
consideration is about the validity of the Validating Act. It would be useful
to reproduce sub-sections (1) and (2) of Section 3 of the Validating Act, which
read as under:- " Sec.3 (1) Notwithstanding anything contained in the
Recruitment Rules 49 Junior Teachers appointed on ad hoc basis by the
Government of Orissa from out of the regularly recruited Assistant Surgeons and
posted in Medical Colleges of the State during the years 1980 and 1981 and are
continuing as such on the date of commencement of this Act, shall, for all
intends and purposes, be deemed to have been validly and regularly appointed in
the service from the date of their appointment as such and no such appointment
shall be challenged in any court of law merely on the ground that such
appointments were made otherwise than in accordance with the procedure laid down
in the Recruitment Rules.
Sec.3 (2) The inter se seniority of the Junior Teachers whose appointments
are so validated under Sub Section (1) shall be determined on the basis of
their respective date of appointment as such." On 29th November, 2001, while
issuing notice, this Court declined to interfere with the order to the extent
it struck down Section 3(2) of the Validating Act and only issued limited
notice concerning the validity of Section 3(1). Thus the only question that has
been urged by learned counsel is about the validity of Section 3(1).
In the objects and reasons of the Validating Act, it has been stated that
OPSC has turned down the panel of 49 Junior Teachers and if their services are
terminated they would face extreme financial hardships besides the State's
vacancies position. The Act has been brought to validate these appointments as
there is no scope to regularise their services within the framework of 1979
Rules.
Clearly, all the appointments were wholly illegal. They were not in accordance
with 1979 Rules. The Selection Board was not constituted in terms required by
the 1979 Rules which stipulates a member of OPSC to be the Chairman of the
Selection Board. The OPSC declined to concur with the illegal appointments. The
question is whether such appointments stood regularised on enactment of the
Validating Act under consideration.
In R.N.Nanjundappa v. T.Thimmiah and Anr. [ (1972) 1 SCC 409 ], this Court
held that "If the appointment itself is in infraction of the rules or if
it is in violation of the provisions of the Constitution illegality cannot be
regularized.
Ratification or regularization is possible of an act which is within the
power and province of the authority but there has been some non compliance with
procedure or manner which does not go to the root of the appointment." It
would be pertinent to note here that the irregularity in the appointment in the
above mentioned case was sought to be regularised by way of a Rule made under
proviso to Article 309 of the Constitution. The above observations were made in
that context. In the present case the appointments are sought to be regularised
by way of an Act of Legislature. In our view the safeguards mentioned above
would also be applicable in cases where the appointments are sought to be
regularised by way of an Act of the Legislature.
It is an admitted position that the provisions of 1979 Rules were not
followed and the appointments made in 1980 were after the said Rules had been
enforced. It seems that the State Government wanted to bypass the OPSC. The
Selection Board comprising of a member of OPSC as its Chairman was never
constituted, and the selections were sought to be made by the Board constituted
under the 1973 Rules. This, in our opinion, is an illegality which strikes at
the root of the appointment and, therefore, it is beyond the scope of the
Legislature to validate such illegal appointments as any such attempt would
violate Articles 14 and 16 of the Constitution. It may also be noted that the
ground that OPSC failed to appoint a member as the Chairman of the Selection
Board in accordance with 1979 Rules and in the light of the urgency to fill up
the vacancies, the said vacancies were filled up by the Selection Board
constituted under the 1973 Rules, does not appear to be correct. The facts on
record show a contrary position. By a letter dated 4th September, 1979, the
Chairman of the OPSC had offered himself to be the Chairman of the Selection
Board but no Selection Board was constituted under the 1979 Rules. A clarification
in this regard was sought by OPSC by its letter dated 24th March, 1982 wherein
the OPSC had specifically sought for an explanation in regard to the
circumstances under which a member of the OPSC was not associated in the
Selection Board meetings held on 04th July, 1980 and 10th November, 1980. In
reply dated 20th September, 1982 to the above letter, the Secretary to the
Government of Orissa, Health and Family Welfare Department did not clarify the
abovementioned query and vaguely stated that :
"A large number of Junior Teaching posts in different discipline were
lying vacant in the three Medical Colleges and their attached hospitals of the
State. In the interest of teaching it was considered absolutely necessary to
fill up the said posts on ad hoc basis immediately. As such it was decided to
fill up the available vacancies by way of ad hoc appointments after screening
the bio data of the eligible candidates at the Government level".
Mr. Misra contended that 49 Junior Teachers appointed in the year 1980 may
be deemed to be regularised, they having been in service for so many years.
Before we examine the decision in Narender Chadha and Ors. v. Union of India
and Ors. [ (1986) 2 SCC 157 ] relied upon by Mr.Misra, it may be noted that
right from the beginning OPSC has been objecting to the selection. The State
Government for the reasons best known to it was not interested in constituting
a Selection Board with a member of OPSC as its Chairman which was the
requirement of the 1979 Rules. In Narender Chadha's case the question that came
up for consideration was altogether different, namely, the determination of
seniority between the promotees and the direct recruits. Under Rule 8 (1) (a)
(ii) of the Rules under consideration in the said case, the quota of the promotees
was restricted to 25 per cent. The fact that the petitioners were not promoted
by following the actual procedure prescribed under Rule 8 (1) (a) (ii) was
accepted but this Court observed with the fact remained that they had been
working in the posts for number of years; appointments were made in the name of
the President by the competent authority; they have been continuously holding
these posts; they were paid all along the salaries and the allowances payable
to the incumbents of such posts and had not been asked to go back to the posts
from which they were promoted at any time since the dates of their appointments
and the order of promotion issued in some cases showed that they were promoted
in the direct line of their promotions and, therefore, this Court came to the
conclusion that it was idle to contend that the petitioners are not holding the
posts in Grade IV of the two services in question and further it would be
unjust at this distance of time on the facts and in the circumstances of the case
before the Court, to hold that the petitioners are not holding the posts in
Grade IV. The Court, however, added a note of caution by observing that it is
not a view of the Court that whenever a person is appointed in a post without
following the rules prescribed for appointment to that post, he should be
treated as a person regularly appointed to that post. In the present case, we
are considering the validity of the appointments that were admittedly made
without following 1979 Rules. The decision in Narender Chadha's case was
rendered having regard to the factual scenario in that case. It cannot be
pressed into service to support entirely illegal appointments.
Reliance has also been placed by learned counsel to Para 7 of the decision
in State of Orissa and Anr. v. Gopal Chandra Rath and Others [(1995) 6 SCC 242]
holding that the Validation Act has removed the lacuna by changing the
definition of the Selection Committee and consequently validating the
appointments made by such committee during the period in question. In the said
case, the basis for illegality pointed out by this Court was changed by
Validating Act. It was held that it is too well settled that the Legislature
has the power to validate an Act by removing the infirmity indicated in any
judgment and that too also retrospectively but they cannot merely set aside,
annul or override a judgment of the Court. The infirmity pointed out by the
Court therein was to the effect that the Selection Committee had not been
appointed by the State Government as required under the Rules and, therefore,
the process of selection was vitiated. The Validating Act changed the
definition of the Selection Committee unlike the case in hand. The decision
renders no assistance in the present case.
In celebrated Constitution Bench decision in the case of Shri Prithvi Cotton
Mills Ltd. and Another v. Broach Borough Municipality and Others [(1969) 2 SCC
283], the principles about validating statues were laid down. It was held that
if the legislature has the power over the subject-matter and competence to make
a valid law, it can at any time make such a valid law and make it
retrospectively so as to bind even past transaction. The validity of a
Validating Law, therefore, depends upon whether the Legislature possesses the
competence which it claims over the subject-matter and whether in making the
validation it removes the defect which the courts had found in the existing law
and makes adequate provisions in the Validating Law for a valid imposition of
the tax. In the present case, this decision cited by Mr.Misra will have no
application since neither the question of competence to make a valid law is in
issue nor is there any question about removal of defect pointed out by the
Court.
The question here is about the validity of the validating statute seeking to
regularise illegal appointments without either repealing 1979 Rules or changing
the definition of the Selection Board. Learned counsel for the appellant has
also placed reliance on the decision in the case of Vijay Mills Company Limited
and Ors. v. State of Gujarat and Ors. [(1993) 1 SCC 345]. The Court referred to
various decisions which considered the law of validation generally including
the decision in the case of Prithvi Cotton Mills (supra). The conclusions have
been set out in Para 18 that there are different modes of validating the
provisions of the Act retrospectively, depending upon the intention of the
Legislature in that behalf.
Where the Legislature intends that the provisions of the Act themselves
should be deemed to have been in existence from a particular date in the past
and thus to validate the actions taken in the past as if the provisions
concerned were in existence from the earlier date, the Legislature makes the
said intention clear by the specific language of the Validating Act. It is open
for the Legislature to change the very basis of the provisions retrospectively
and to validate the actions on the changed basis. In the said case, it was held
that the Legislature had changed the very basis of the provisions
retrospectively as was apparent from the provisions of the Amending Act. In the
present case as already noticed, the validating statute has done nothing of the
kind and only sought to regularise illegal appointments without repealing the
rules that were applicable at the relevant time or amending the definition of
the Selection Board with retrospective effect.
Reliance was also placed by Mr. Misra on Para 32 of the decision in the case
of I.N. Saksena v. State of Madhya Pradesh [(1976) 4 SCC 750] holding that the
State Legislature had legislative competence not only to change the service
conditions of the State civil servants with retrospective effect but also to
validate with retrospective force invalid executive orders retiring the
servants, because such validating legislation must be regarded as subsidiary or
ancillary to the power of legislation on the subject covered by Entry 41.
We are unable to see the relevance on the aforesaid decision for the present
purpose. As already stated, no one has questioned here the legislative
competence to change the service conditions of State civil servants with
retrospective effect.
The question is whether the change has been effected at all. We have already
noted that the legislation did not effect any change. It only states that
irregular appointments will be legal. The basis of illegality has not at all
been changed by the legislation.
It was also contended that 1973 Rules will be applicable and not 1979 Rules.
We cannot permit the appellants to urge this point since it was not urged
earlier and is sought to be put forth for the first time during the course of
hearing.
Further, as already noted, the advertisement was issued after 1979 Rules had
been enforced. In fact, in terms of 1979 Rules, the State Government desired
OPSC to regularise the illegal appointments. Since OPSC did not concur, the
validating statute was enacted. Reliance placed on B.L.Gupta and Anr. v. M.C.D.
[(1998) 9 SCC 223] for the proposition that 1973 Rules will be applicable and
not 1979 Rules is misplaced. The said decision is not relevant on the issue of
constitution of Selection Board as per requirements of 1979 Rules.
Drawing support from the observation made in H.C. Puttaswamy and Ors.
v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors.
[1991 Supp. (2) SCC 421], it was contended that the illegal appointees can
also be treated to be regularly appointed. In the relied upon decision, this
Court, after having reached the conclusion about the invalidity of the impugned
appointments made by the Chief Justice, but, having regard to the circumstances
of the case, since the consequence would have been to uproot the employees,
adopted a humanitarian approach and held on facts that appointees deserved
mercy. True, this Court has ample powers in a given case to direct
regularisation of illegal and unsupportable appointments, if the justice of any
particular case so demands but it cannot be taken as a rule of general
application to perpetuate illegalities. Such a course is to be resorted to in
exceptional circumstances. We do not think that the present case falls in that
category. The OPSC was sought to be deliberately bypassed. There are no
equities in favour of appellant who cannot be placed on a higher pedestal over
those who were selected by OPSC and stood the test of merits, became successful
and were appointed as per relevant Rules. We may also note that on 4th October,
1982, 1979 Rules were amended and selection through Selection Board was done
away with and it was prescribed that the selection shall be made through OPSC.
We may further note that Section 3(1) amounts to deeming of a legal position
without deeming of a fact. It was observed in the case of Delhi Cloth and
General Mills Co. Ltd. v. State of Rajasthan & Ors. [(1996) 2 SCC 449] that
"a legal consequence cannot be deemed nor, therefrom, can the events that
should have preceded it. Facts may be deemed and, therefrom, the legal
consequences that follow." In this case the procedure as prescribed under
Sections 4 to 7 of Rajasthan Municipalities Act, 1959, for inclusion of the
villages of Raipura and Ummedganj in Kota Municipality was not followed. Under
the Courts order and Judgment, Kota Municipality was restrained from imposing
tax on the petitioner Company, which was situated in the said villages, on the
ground that the said villages were not validly included in the Kota
Municipality. Sections 4 to 7 of the Rajasthan Municipalities Act, 1959
remained on statute book unamended when the Kota Municipal Limits (Continued
Existence) Validating Act, 1975 was passed. Section 3 of the Validating Act
provided that:- "Notwithstanding anything contained in Sections 4 to 7 of
the 1959 Act or in any judgment, decree, order or direction of any court, the
villages of Raipura and Ummedganj should be deemed always to have continued to
exist and they continue to exist within the limits of the Kota Municipality, to
all intents and for all purposes" The validity of the Validating Act was
in question. This Court observed that "the Validating Act provides that,
notwithstanding anything contained in Sections 4 to 7 of 1959 Act or in any
judgment, decree, order or direction of any court, the villages of Raipura and
Ummedganj should be deemed always to have continued to exist and they continue to
exist within the limits of the Kota Municipality, to all intents and for all
purposes. This provision requires the deeming of the legal position that the
villages of Raipura and Ummedganj fall within the limits of the Kota
Municipality, not the deeming of facts from which this legal consequence would
flow. A legal consequence cannot be deemed nor, therefrom, can the events that
should have preceded it. Facts may be deemed and, therefrom, the legal
consequences that follow." (Emphasis supplied). For the reasons and on the
ground that the Validating Act did not cure the defect leading to the
invalidity of the inclusion of the said villages in Kota Municipality, the
validating Act was held to be invalid.
The deeming clause in the present case is to the same effect as that of the
above mentioned case. The legal consequences of appointments being regular has
been deemed without deeming facts either of repealing 1979 Rules and making
1973 Rules operative or changing the basis, namely, definition of Selection of
Board. In this view, we have no hesitation in holding that Section 3(1) has to
meet the same fate as was met by Validating statute in Delhi Cloth Mills case.
The validity of the Validating Act is further assailed on the ground that it
by mere declaration validates the invalid appointments without removing the
basis of invalidity of the appointments made. Black's Law Dictionary (7th
Edition, Page no.1421) defines Validation Acts as "a law that is amended
either to remove errors or to add provisions to confirm to constitutional
requirements". In the case of Hari Singh & Ors. v. The Military Estate
Officer & Anr. [(1972) 2 SCC 239] the Supreme Court held that "The
meaning of a Validating Act is to remove the causes for ineffectiveness or invalidating
of actions or proceedings, which are validated by a legislative measure".
The Supreme Court in the case of ITW Signode India Limited vs. Collector of
Central Excise [(2004) 3 SCC 48] observed that "A Validation Act removes
actual or possible voidness, disability or other defect by confirming the
validity of anything, which is or may be invalid." The purpose of a
Validating Act is to remove the cause of ineffectiveness or invalidity. A
Validating Act presupposes a positive act, on the part of the legislature, of
removing the cause of ineffectiveness or invalidity. In the present case
nothing has been done.
Before concluding, we may notice another aspect that was pointed out by
learned counsel. The Tribunal in its order observed that rightly or wrongly,
Dr.
K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the
higher rank since a long time and they have been holding such higher position
on the basis of the recommendation of the OPSC and in such circumstances, it
would be unjust to pass any orders to disturb them from their present
positions. Learned counsel for Dr. Satchidananda Misra contended that the High
Court has not disturbed the aforesaid directions of the Tribunal. On the other
hand, learned counsel for Dr. Rama Raman Saranji (Respondent No.4 in CA
No.8039/03) contended that the writ petition filed by his client challenging
the aforesaid direction of the Tribunal is pending before the High Court. In
this view, on this aspect, we express no opinion leaving it to be decided by
the High Court in accordance with law.
In the light of the above discussion, the judgment and order of the Orissa
High Court is upheld and accordingly the appeals are dismissed but leaving the
parties to bear their own costs. The contempt petition and Special Leave
Petitions are also disposed of in terms of this judgment.
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