Md. Ashif
& Ors. Vs. State of Bihar & Ors. [2010] INSC 362 (6 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NOS.
4256-4257 2010 (Arising out of S.L.P. (C) Nos.21558-21559 OF 2003) Md. Ashif
& Ors. ...Appellants Versus State of Bihar & Ors. ...Respondents
T.S.
THAKUR, J.
1. Leave
granted.
2. These
appeals by special leave arise out of an order passed by a Division Bench of
the High Court of Patna whereby Letters Patent Appeal Nos.33 and 540 of 2002
have been allowed, the order passed by the learned Single Judge 2 set aside and
Writ Petitions No.11701 and 9024 of 2001 dismissed.
3. The
appellants in these appeals were in June 1985 appointed as Voluntary Health
Workers in State run dispensaries within the district of Darbhanga in the State
of Bihar. In lieu of their services they were paid a monthly honorarium of
Rs.50/- only. Less than five months after their initial appointment they were
absorbed as Primary Health Workers by the Chief Medical Officer which carried a
pay scale of Rs.535-765. It is not in dispute that the appellants continued to
work for nearly 15 years as Primary Health Workers, till their services were
terminated by an order dated 20th February, 2001 on the ground that their promotion/absorption
as Primary Health Workers was illegal and contrary to the rules. The
termination, it appears, came pursuant to an enquiry regarding procedure
followed in the making of the appointments to class III posts. The enquiry
revealed that the appointments were in breach of 3 circular/instructions dated
3rd December, 1980 issued by the Chief Secretary of the State of Bihar pointing
out that appointment to Class-3 posts had been made in violation of procedure
laid down by the State Government in terms of two circulars dated 10th July,
1980 and 26th September, 1980. The Government, therefore, directed all the
Heads of the Departments, Divisional Commissioners and the District Magistrates
to review the system and to send their reports to ensure that action for
filling up of the vacant posts is taken in accordance with the prescribed
procedure. It was further directed that appointments made in violation of the
prescribed procedure would not only call for action against those who make such
appointments but render the appointments liable to be cancelled.
4.
Aggrieved by the termination of their services as Primary Health Workers and
reversion to Voluntary Health Workers the appellants filed Writ Petitions
No.11701 and 9024 of 2001 in the High Court of Patna, inter alia, asserting 4
that the appointments of the petitioners (appellants herein) had been made
after a proper advertisement and that the termination of their services 15
years after the commission of the alleged irregularity in making the appointments
was unfair and legally impermissible. By an order dated 9th November, 2001 a
Single bench of the High Court of Patna held the termination of the services of
the appellants to be illegal inasmuch as the same was based on an alleged
irregularity committed 15 years earlier. Reliance in support was placed upon
the decisions of this Court in Roshni Devi (AIR 1999 SC 517).
5. The
order passed by the learned Single Judge was, assailed before a Division bench
in Letters Patent Appeal Nos.33 and 540 of 2000 filed by the State of Bihar.
The Division Bench opined that since the initial appointment of the appellants
herein was illegal the very fact that the appellants had worked for a long
period did not cure that 5 defect so as to justify their reinstatement in service.
In support of that view the Division Bench placed reliance upon State of Bihar
& Ors. (AIR 1997 SC 1628), State of Mirzapur & Anr. (AIR 2001 SC 201).
The present appeals call in question the correctness of the said order as
already noticed above.
6. We
have heard learned counsel for the parties at considerable length. The legal
position regarding the right of an employee to seek regularisation of his
services stands settled by a long line of the decisions of this Court. In
Ashwani Kumar's case (supra) this Court declared that the question of
regularisation of the services of an employee may arise in two contingencies.
It may arise firstly in situations where against an available clear vacancy an
appointment is made on ad hoc or daily-wage basis by an authority competent to
do so and such appointment is 6 continued from time to time without any
artificial break in service. Any such appointment may be regularized giving him
security of tenure. The all important condition precedent for such regularization
is that the initial entry of such an employee must be made against a sanctioned
vacancy and by following the rules and regulations governing such entry.
7. The
second situation in which regularization could be granted was where the initial
entry of the employee against an available vacancy was found suffering from
some flaws in the procedure in making the appointment though the person
appointing was competent to make such initial recruitment and had otherwise
followed the procedure prescribed for such recruitment. A need may then arise
for regularization of the initial appointment by the competent authority with a
view to curing the irregularity if any in the same and with a view to granting
security of tenure to the incumbent. It is necessary in such situations that
the initial entry of the 7 employee is not totally illegal or in breach of the
established rules and regulations governing such recruitment.
8. The
law regarding regularization of employees was on a comprehensive review
authoritatively declared by a Constitution Bench of this Court in Secretary,
State of SCC 1. This Court in that case drew a distinction between an
irregularity and an illegality in the making of an appointment and declared
that where the due process of appointment has been deviated from, the Court can
regularize the same. In cases where the process itself is completely violative
of the constitutional scheme underlying public employment and no procedure has
been followed while granting such appointments the Court cannot allow such an
illegality to continue irrespective of the length of time for which it has
continued. Relying upon the decision of this Court in Ashwani Kumar's case
(supra) this Court in Uma Devi's case (supra) observed:
8
"Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our Constitution and since the rule of law is
the core of our Constitution, a court would certainly be disabled from passing
an order upholding a violation of Article 14 or in ordering the overlooking of
the need to comply with the requirements of Article 14 read with Article 16 of
the Constitution.
Therefore,
consistent with the scheme for public employment, this Court while laying down
the law, has necessarily to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the contract, if it
were an engagement or appointment on daily wages or casual basis, the same
would come to an end when it is discontinued.
Similarly,
a temporary employee could not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in regular
service or made permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of selection as
envisaged by the relevant rules.
It is not
open to the court to prevent regular recruitment at the instance of temporary
employees whose period of employment has come to an end or of ad hoc employees
who by the very nature of their appointment, do not acquire any right. The High
Courts acting under Article 226 of the Constitution, should not ordinarily
issue directions for absorption, regularisation, or permanent continuance
unless the recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because an employee had continued under cover of
an order of the court, which we have described as "litigious
employment" in the earlier part of the judgment, he would not be entitled
to any right to be absorbed or made permanent in the service. In fact, in such
cases, the High Court may not be justified in issuing interim 9 directions,
since, after all, if ultimately the employee approaching it is found entitled
to relief, it may be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an interim direction to
continue his employment would hold up the regular procedure for selection or
impose on the State the burden of paying an employee who is really not
required. The courts must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to facilitate the
bypassing of the constitutional and statutory mandates."
9. The
above decision has been followed by this Court in Police, Assam & Ors.
(2009) 6 SCC 611, where this Court held that employees who were recruited in
connection with a scheme could not claim continuance or regularization in
service even when they may have worked on ad hoc basis for as long as two
decades. The decision of this Court in (2009) 4 SCC 342, once more reiterated
the legal position and declared that the observations made by a three-Judge
Pooran Chandra Pandey and Ors. (2007) 11 SCC 92, 10 were only in the nature of
obiter dicta. In Pooran Chandra Pandey's case (supra) a two-Judge Bench of this
Court had tried to distinguish the ratio of the decision of this Court in Uma
Devi's case (supra) and held that the said decision had to be read in
conformity with Article 14 of the Constitution and that the same could not be
applied mechanically. The decision in G.V. Chandrashekar's case (supra) did not
find that reasoning to be correct as is evident from the following passage
appearing in the said decision:
"90.
We are distressed to note that despite several pronouncements on the subject,
there is substantial increase in the number of cases involving violation of the
basics of judicial discipline. The learned Single Judges and Benches of the
High Courts refuse to follow and accept the verdict and law laid down by
coordinate and even larger Benches by citing minor difference in the facts as
the ground for doing so. Therefore, it has become necessary to reiterate that
disrespect to the constitutional ethos and breach of discipline have grave
impact on the credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and certainty is an
important hallmark of judicial jurisprudence developed in this country in the
last six decades and increase in the frequency of conflicting judgments of the
superior judiciary will do incalculable harm to the system inasmuch as the
courts at the grass roots will not be able to decide as to which of the
judgments lay 11 down the correct law and which one should be followed.
91. We
may add that in our constitutional set up every citizen is under a duty to
abide by the Constitution and respect its ideals and institutions. Those who
have been entrusted with the task of administering the system and operating
various constituents of the State and who take oath to act in accordance with
the Constitution and uphold the same, have to set an example by exhibiting
total commitment to the constitutional ideals. This principle is required to be
observed with greater rigour by the members of judicial fraternity who have
been bestowed with the power to adjudicate upon important constitutional and
legal issues and protect and preserve rights of the individuals and society as
a whole. Discipline is sine qua non for effective and efficient functioning of
the judicial system. If the courts command others to act in accordance with the
provisions of the Constitution and the rule of law, it is not possible to
countenance violation of the constitutional principle by those who are required
to lay down the law.
92. In
the light of what has been stated above, we deem it proper to clarify that the
comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran
Chandra Pandey (2007) 11 SCC 92 should be read as obiter and the same should
neither be treated as binding by the High Courts, tribunals and other judicial
foras nor they should be relied upon or made basis for bypassing the principles
laid down by the Constitution Bench."
10.
Reference at this stage may also be made to the India & Ors. (2009) 5 SCC
193 and General Manager, 12 7 SCC 205 where this Court has followed Uma Devi's
case (supra) and declared that regularization cannot be granted if the same
would have the effect of violating Articles 14 and 16 of the Constitution.
11.
Applying the test laid down by this Court in Uma Devi's case (supra) and the
cases referred to above, to the case at hand, there is no gainsaying that the
appointments of the appellants as Primary Health Workers were totally illegal
and violative of Articles 14 and 16 of the Constitution which guarantee
equality of opportunity to all those who were otherwise eligible for such
appointments. The Chief Medical Officer who had made the appointments was not
vested with the power to do so nor were the claims of other candidates eligible
for appointments against the posts to which the appellants were appointed,
considered.
Surprisingly,
the appointments had come by way of absorption of the appellants who were
working as Voluntary 13 Health Workers on a monthly honorarium of Rs.50/- only.
The High
Court has, in our opinion, correctly held that there was no cadre of Voluntary
Health Workers who were working on an honorarium in State run dispensaries. The
very nature of the appointment given to the appellants as Voluntary Health
Workers was honorary in nature which entitled them to the payment of not more
than Rs.50/- per month. It is difficult to appreciate how the Chief Medical
Officer could have regularized/absorbed such Voluntary Health Workers doing
honorary service against the post of Primary Health Workers which carried a
regular pay-scale and which could be filled only in accordance with the
procedure prescribed for that purpose. The appointment of the appellants
against the said posts was thus manifestly illegal and wholly undeserved to say
the least. Inasmuch as these appointments came to be cancelled pursuant to the
said directions no matter nearly a decade and a half later the termination
could not be said to be illegal so as to warrant interference of a writ court
for reinstatement of those illegally appointed. The High Court 14 was, in that
view of the matter, justified in declining interference with the order of
cancellation and dismissing the writ petitions.
12. We
see no reason to interfere with the order of Division Bench of the High Court.
These appeals accordingly fail and are hereby dismissed. No costs.
.................................J. (J.M. PANCHAL)
.................................J.
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