CIVIL WRIT JURISDICTION CASE No.1564 OF 2002 ----------- In the matter of an application under Article 226 of the Constitution of India. ----------- Ravindra Pandey, aged about 37 years, son of Late Saryu Pandey, resident of village + P.O. Jhundo via Sono, P.S.- Khaira, District- Jamui ------------- Petitioner Versus 1.The State Of Bihar 2.The Secretary-cum-Commissioner, Department of Education, Government of Bihar, patna 3.The Director, Secondary Education, Government of Bihar, Patna 4.The District Education Officer, Buxar ----------- Respondents ----------- For The Petitioner : Mr.Ganesh Prasad Singh,Sr.Adv. with Mr.Manish Kumar, Adv. For The Respondents: Mr.Sunil Kumar Mandal, S.C.15 with Mr.Bipin Kumar,Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh,J: In this writ application, petitioner has challenged memo no.03 dated 4.1.2002 (Annexure-8), containing an office order issued under the signature of District Education Officer (hereinafter referred to as `DEO‟), Buxar, by which services of the petitioner have been terminated on the ground that his appointment was made in violation provisions of letter No.16440 dated 3.12.1980 of the Personnel & Administrative Reforms Department of the Government. A further prayer has been made for directing respondents to reinstate petitioner in service on the post of Clerk and pay him all consequential benefits thereof. 2. Factual aspects of the case of the petitioner are that, pursuant to a notice, pasted on the Notice - 2 - Board of the office of DEO, Bhojpur, petitioner submitted his application for appointment on the post of Clerk. He was having requisite qualification as he was a Graduate from Magadh University at that point of time. Hence, considering his eligibility for the post, after following due procedure, DEO, Bhojpur, issued appointment letter dated 3.8.1989 (Annexure-1), appointing him on the post of Clerk on ad hoc basis in K.P.High School, Dumri. Petitioner accordingly submitted his joining on 4.8.1989 in the School (Annexure-2), and started discharging his duties. 3. However, in the month of August, 1992, petitioner received a letter from the office of DEO, Bhojpur, dated 10.8.1992 (Annexure-3), asking him to explain as to why his services should not be terminated on account of his appointment having not been made in consonance with the procedure laid down for making appointments on Class III posts. This explanation was called for from the petitioner in view of memo no.1390 dated 8.7.1992 issued from the office of the Director, Secondary Education. It is contended that petitioner submitted his reply within one week. Thereafter, petitioner did not hear anything in this regard from the respondents and he continued in service. After some time, under the orders of DEO, Buxar, as contained in memo dated 10.1.1996 (Annexure-4), petitioner was transferred and posted as Clerk in the High School, Sikraul. About five years thereafter, petitioner again received a letter from the office of the DEO, Buxar, dated 21.9.2001 (Annexure-5), by which he was again asked to explain the - 3 - circumstances leading to his appointment, as the same was said to be not in consonance with the provisions of letter No.16440 dated 3.12.1980, and also to explain whether the post was advertised in newspapers; whether petitioner fulfilled requisite qualifications at the time of his appointment; whether interview letter was issued to him by any competent authority; whether he appeared before any Interview Board and whether reservation roster was followed in making his appointment. He was asked to submit his explanation on the above points within a week. Accordingly petitioner submitted his reply to the same on 8.10.2001 (Annexure-6) giving his explanation point wise. 4. Petitioner received another communication under the signature of DEO, Buxar, dated 31.10.2001 (Annexure-7), by which he was asked to submit further explanation within a week as his earlier explanation had not been found satisfactory. Petitioner, this time, submitted his reply with a stand that he had nothing more to say. Finally, petitioner received impugned office order under the signature of DEO, Buxar, dated 4.1.2002 (Annexure-8), by which his services were terminated with effect from the date of issue of the order. The order referred to some assurance no.46/108 of Legislative Council and the letter of the Director, Secondary Education dated 31.7.2001, and mentioned that his appointment was found illegal on account of non- compliance of procedure for appointment laid down in letter no.16440 dated 3.12.1980. 5. By filing a supplementary affidavit, it has been asserted that, at the time of his termination, - 4 - petitioner was being treated by the respondents as a regular Government employee, he was drawing salary in regular scale of a Clerk, and deductions were being made from his salary towards Group Insurance and G.P.F. Therefore, it is contended that, it was apparent that petitioner‟s services were regularized and he was a regular employee of the State Government. 6. Opening the case on behalf of the petitioner, Mr.Singh fairly accepted that, in the appointment of petitioner, there was no newspaper advertisement, there was no interview. However, he submitted that appointment on the basis of advertisement on Notice Board of the Office is not always bad and is valid in respect of appointments on less than five vacancies. He submitted that, normally, practice of advertisement in newspapers is to be followed, but in certain circumstances, appointments made on the basis of Notice Board advertisement can also be accepted as valid. He also submitted that as the petitioner was regularized, his services could not be terminated without following the procedure laid down for termination of services of regular employees and in terms of provisions of Article 311(2) of the Constitution of India. He further submitted that, since petitioner had the requisite qualification at the time of his appointment, he was appointed by the competent authority and had continued for 12 long years, he could not be terminated summarily, only by issue of show cause notice. - 5 - In support of his submissions, learned senior counsel relied upon the following judgments and called upon this Court to consider them :- (1) 1983 PLJR 667(FB) : Bijay Kumar Bharti Vs. State (2) 1987 PLJR 1074(FB) : Awadhesh Kumar Choudhary Vs. State of Bihar (3) AIR 1990 SC 1607 : Direct Recruit Class II Engg. Officers‟ Association Vs. State of Maharastra (4) 1997(1) PLJR(SC) 59 : Ashwini Kumar Vs. State of (1997)2 SCC 1 Bihar (5) 2008(1) PLJR 841 : Ram Krishna Dubey Vs. State (6) 2009(2) PLJR 869 : State of Bihar Vs. Indra Mohan Rai (7) (2007)1 SCC 575 : State of M.P. Vs. Lalit Kr. Verma (8) 2009(3) PLJR 201 : Ashok Kumar Vs. State of Bihar (9) AIR 1990 SC 261 : Sundarajas Kanyalal Bhathija Vs. Collector, Thane (10) (1998)2 SCC 44 : Usha Kumar Vs. State. 7. A counter affidavit has been filed in this case on behalf of respondent no.4. It is stated in the counter affidavit that the appointment of the petitioner would be governed by the Bihar State Secondary School (Service Conditions) Rules, 1993, which specifically provides for appointments on Class III posts to be made on the basis of panel prepared at the district level by a Committee headed by the concerned DEO, and after following the procedure as laid down in the said letter No.16440 dated 3.12.1980 of the Personnel & Administrative Reforms Department. As the said procedure was not adopted in the appointment of the petitioner, his appointment was rightly held illegal and, therefore, petitioner was rightly terminated from service. It is stated that appointment letter of the petitioner itself - 6 - shows that his appointment was on ad hoc basis and no procedure was followed as, admittedly, no advertisement was published in the newspapers and no interview was held. It is stated that, the stand of the petitioner that notice was pasted on the Notice Board of the office of the DEO was false and petitioner has not furnished any proof of the same. Learned counsel for the respondents submitted that, in fact, petitioner‟s appointment was out and out a back door appointment which would be evident from the fact that petitioner belongs to Jamui district, which situates in the eastern part of the State, whereas he was appointed against the alleged vacancy in Buxar district, which situates on the western end of the State. This shows that the alleged Notice Board advertisement, and petitioner‟s response to it by submitting application, was altogether a false story. It is also stated that before termination of his service, sufficient opportunity was given to the petitioner to submit his explanation. It is also stated that the DEO had no authority to appoint petitioner without following the procedure laid down in law and that the termination of the petitioner was in the light of instructions received from the Director, Secondary Education vide his said letter dated 31.07.2001. It is contended that, in view of authoritative pronouncements of the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi : (2006)4 S.C.C.1 : 2006(2) PLJR 363 and judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Lalit Kumar Verma : (2007)1 S.C.C. 575, petitioner had no right to continue in service on - 7 - the basis of such illegal appointment. In the counter affidavit, reliance was also placed on the judgment of this Court in the case of Chandrashekhar Vs. State of Bihar : 2007(4) BBCJ 134. In support of his submissions, learned counsel for the State has relied upon the following judgments :- (1) 2006(2) PLJR 363 : Secretary, State of Karnataka (2006)4 SCC 1 Vs. Uma Devi (3) (2) (2007)1 SCC 575 : State of M.P. Vs. Lalit Kr. Verma (3) 2009(4) PLJR(SC) 73 : State Vs. Upendra Narayan Singh; (4)(2008)1 SCC 798 : Nagendra Chandra Vs. State of Jharkhand (5) 2007(4) BBCJ 134 : Chandrashekhar Vs. State of Bihar (6) (2008)1 SCC 98 : State of Maharastra Vs. Mana Adim Jamat Mandal (7) 1997(1) PLJR(SC) 59 : Ashwini Kumar (8) (2006)2 SCC 482 : UPSC Vs. Girish Jayantilal Vaghela (9) AIR 1996 SC 1565 : State of H.P. Vs. Suresh Kr.Verma (10) 2003(1) PLJR 657 : Upendra Kumar Vs. State of Bihar (11) 2006(3) PLJR 551 : Anil Kr.Singh Vs. State of Bihar (12) 2007(4) PLJR 373(SJ) : Ram Krishna Dubey Vs. State of Bihar (13) 2008(1) PLJR 841(DB) : Ram Krishna Dubey Vs. State of Bihar 8. Strong reliance has been placed by learned counsel for the respondents on the Constitution Bench judgment in Uma Devi’s case (Supra) to contest the claim of the petitioner. It has been contended that, in view of the said Constitution Bench Judgment, appointment of the petitioner was totally illegal and hence he never got the status of a Government servant. Therefore, none of his claims, of having been treated as regular Government servant by conduct, or having continued in service for a - 8 - long period, or his appointment being only irregular, as having been made pursuant to a Notice Board advertisement, are of any help to the petitioner. He submitted that this aspect of the matter stands finally concluded by the said judgment of the Constitution Bench. 9. To the contrary, learned senior counsel for the petitioner, with equal force, has submitted that the judgment in Uma Devi‟s case (Supra) is not at all applicable in the case of the petitioner. He submitted that petitioner was appointed and was treated as a regular Government servant. It is his termination on the ground of his alleged illegal appointment which is presently under challenge before this Court, whereas in Uma Devi‟s case (Supra) question under consideration was confined only in respect of right of regularization or absorption of temporary/daily wages employees in service. He submitted that the entire consideration in the case of Uma Devi (Supra) was confined around this question and no where question of validity of termination of a regular employee on the ground of his initial illegal appointment fell for consideration before the Constitution Bench. 10. since applicability or otherwise, of the law laid down by the Constitution Bench in Uma Devi (Supra) in the case of petitioner is being contested by learned counsel for the parties, it is appropriate for this Court to start consideration of judicial pronouncements from the said Constitution Bench Judgment itself. It may be noticed that case of Uma Devi (Supra) was initially listed before a two Judges Bench of the Apex Court. Considering the questions involved, and two - 9 - conflicting views appearing from two sets of judgments of the Court, reference was made to a three Judges Bench, vide order reported in 2003(9) SCALE 187. When the matter was listed before a three Judges Bench, it felt the need of getting the law authoritatively settled by a larger Bench. Hence, after hearing the arguments of learned Additional Solicitor General of India, by an order of reference reported in 2003(10) SCALE 388, same was referred to a Constitution Bench. The order of reference by the three Judges Bench of the Apex Court reads as follows : “………… Apart from the conflicting opinions between the three Judges‟ Bench decisions in Ashwani Kumar and Ors. Vs. State of Bihar & Ors., reported in 1997(2) SCC 1, State of Haryana and Ors. Vs. Piara Singh and Ors., reported in 1992(4) SCC 118 and Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. Vs. State of Karnataka and Ors., Reported in 1990(2) SCC 396, on the one hand and State of Himachal Pradesh Vs. Suresh Kumar Verma & Anr., reported in AIR 1996 SC 1565, State of Punjab Vs. Surinder Kumar and Ors., reported in AIR 1992 SC 1593, and B.N.Nagarajan and Ors. Vs. State of Karnataka and Ors., reported in 1979(4) SCC 507 on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka Vs. H.Ganesh Rao, decided on 1.6.2000, reported in 2001(4) Karnataka Law Journal 466, learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench)…………” (SCC, Para-10) 11. In the circumstances, Constitution Bench observed as follows : “………. We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should.” (SCC, Para-10) - 10 - 12. The Constitution Bench further made it clear, in the following words, that the law being laid down by it was meant to be followed by the High Courts: “………. The very divergence in approach in this Court, the so called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.” (SCC, Para-14) 13. Hence, the Constitution Bench delved into the matter from all angles, considered the judgments reflecting conflicting views, disagreed with the views reflected by the first set of judgments as noticed in the order of reference, and settled the law in clear terms. At the end, the Constitution Bench clarified the binding nature and overriding effect of its judgment, to give finality to the principles laid down, in the following words : “It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” (SCC, Para-54) 14. Thus, in view of the above observations of the Constitution Bench, all decisions of Apex Court or any High Court of the Country, running counter to the principle settled in the judgment obviously stand impliedly overruled and become nullity. 15. While considering the issue, the Constitution Bench made detailed consideration of the situation which has emerged due to conflicting judgments - 11 - and sympathetic or equitable approach by the Courts in the matter of entertaining the plea of temporary, ad hoc or daily wage employees for their regularization under various circumstances. It noticed that this difference in approach had developed a class of employment, which could be called „litigious employment‟, as a phoenix, which class benefited itself with such conflicting and contradictory approach of the Courts in the matter, many a times based on mistaken sympathy and equity. Approach of the Courts on the ground of equity in such matters was seriously disputed by the Constitution Bench in the following words : “………. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? ……………” (SCC, Para-5) 16. In respect of powers of the High Courts under Article 226 of the Constitution of India in such matters, the Constitution Bench held as such : “………… It has to be emphasized that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.” (SCC, Para-4) 17. It was further clarified by the Constitution Bench, in the following words, that the Courts were required to desist from giving so called equitable approach to temporary employment or engagement on daily - 12 - wages and the continuance of such persons and be engaged in work for a certain length of time : “……… It cannot also be forgotten that it is not the role of Courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution………..” (SCC, Para-13) 18. The distinction between regularization and conferment of permanence in service was considered by the Constitution Bench in reference to a judgment of the Court in the case of State of Mysore Vs. S.V.Narayanappa: 1967(1) SCR 128, and in the case of R.N.Nanjundappa Vs. T.Thimmiah & Anr.: (1972)2 SCR 799, and following observations of the Court made in the later case was noticed with approval : “ Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. 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………….” (SCC, Para-15) 19. Referring to the case of B.N.Nagarajan Vs. State of Karnataka : 1979(4) SCC 507, the Constitution Bench observed as follows : “………. this Court clearly held that the words “regular” or “regularization” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of - 13 - appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions…….” (SCC, Para-16) And thereafter, the Constitution Bench held as follows : “……….. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.” (SCC, Para-16) 20. Although the Constitution Bench accepted that, in appropriate cases, the executive may have a right to regularize the appointments which may have been made following due procedure with some infraction in respect of non-fundamental element of the process, but limits of such right of the executives was clearly defined by the Constitution Bench in the following words: “………..This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.” (SCC, Para-17) 21. Thereafter, the Court proceeded to consider its various earlier judgments, reflecting the conflicting - 14 - views, including the judgments of cases noticed in the order of reference of the three Judge Bench (as quoted above) and clearly disproved the approach reflected from Piara Singh (Supra), Dharwad (Supra) and other cases. Finally, the Court quoted paragraphs 6 and 7 from Indra sawhney case [1992 Supp (2)SCR 454] and concluded as follows : “……….. These binding decisions are clear imperatives that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment.” (SCC, Para-41) 22. Finally law was laid down by the Constitution Bench, for guidance of all Courts of the Country, in the following terms : “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 - 15 - temporary employees whose period of employment has come to an end or of ad hoc employees who