Case: Satchidananda Mishra Vs. State Of Orissa

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. 19. 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. vs. State of Rajasthan and others (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 Limited (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." 20. 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 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. 21. 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. 22. 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. Blacks 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 and others vs. The Military Estate Officer and another (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." 23. 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. 24. 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 C.A. 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. 25.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In R.N. Nanjundappa vs. T. Thimmiah and another (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."9. It would be pertinent to note that the irregularity in the appointment in the above mentioned case was sought to be regularized 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 he 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 4th 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 statedcelebrated Constitution Bench decision in the case of Shri Prithvi Cotton Mills Ltd. and another vs. Broach Borough Municipality and others (1969) 2 SCC 283 ), the principles about validating statutes 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 effect 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.Reliance was also placed by Mr. Misra on Para 32 of the decision in the case of I.N. Saksena vs. 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 41.16. We are unable to see the relevance on the aforesaid decision for the present purpose. As already, 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.17. 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. vs. 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.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 Millspurpose 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 C.A. 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