Case: Satchidananda Mishra Vs. State Of Orissa

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 years 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 The 1973 Rules came to be repealed by another set of Rules dated 13th August, 1979 made under proviso to Article 309 of the Constitution, called the Orissa Medical Education Service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 Despite 1973 Rules having been repealed, the Selection Board appointed on 3rd August, 1979 under the repealed Rules was allowed to make the selections.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.3. 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 impugned29th 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).6. 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 hardship besides the States 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.7. 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 regularized on enactment of the Validating Act under consideration.

Reasoning: 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