THE STATE OF BIHAR & ORS. versus DEVENDRA SHARMA
[2019] 15 S.C.R. 990, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Facts
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THE STATE OF BIHAR & ORS.
v.
DEVENDRA SHARMA
(Civil Appeal No.7879 of 2019)
OCTOBER 17, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Service Law: Appointments – Illegal appointments –
Entitlement to salary or consequential rights of pension and other
monetary benefits – Held: Rights to salary, pension and other service
benefits are entirely statutory in nature in public service – These
rights, spring from a valid and legal appointment to the post – Once
it is found that the very appointment is illegal and is non-est in the
eye of law, no statutory entitlement for salary or consequential rights
of pension and other monetary benefits can arise – On facts, matter
pertaining to appointments against Class II or IV posts in the Health
Department in Government wherein Committee Report held the
appointments to be irregular appointments, illegal appointments and
appointments on forged letters and on basis thereof termination
orders were passed against the candidates who secured employment
on basis of forged documents and whose appointments were illegal
and irregular appointees were allowed to continue – In writ petition
thereagainst, the Committee Report was quashed with direction to
re-instate the employees – As regards irregular appointment, it
cannot be said that the appointment of the employees were irregular
appointments but are illegal appointment – As such appointments
were made without any sanctioned post, without
any advertisement
giving opportunity to all eligible candidates to apply and seek public
employment and without any method of recruitment – Such
appointments were backdoor entries, an act of nepotism and
favoritism and thus from any judicial standards cannot be said to
be irregular appointments but are illegal appointments in wholly
arbitrary process – Furthermore, since employees have been working
for around 25 years, it cannot be said that humanitarian view should
be taken to set aside the termination order and regularise their
services so as to make them entitled to pension and other retirement
benefits.
 [2019] 15 S.C.R. 990
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Allowing the appeals by the State and dismissing the appeals
by the candidates, the Court
HELD: 1.1 There is no statutory rule in terms of proviso
to Article 309 of the Constitution for appointment to Class III
and Class IV categories in the State. The matter of appointment
is regulated by the Executive instructions. Chapter I of the Bihar
Health Manual deals with Organisation and functions of the Health
Department of the State. It was pointed out that from May 1,
1953, the Medical and the Public Health Departments were
amalgamated into one department called the Department of Health
under the Director of Health Services. It was pointed out that
the Director of Health Services is the appointing authority in
respect of all non–gazetted appointments in the department
including the Subordinate Medical Service. To assist the Director,
there is one Additional Director and three Deputy Directors along
with other gazetted officers including Assistant Directors of Health
Services (M. and C.H.). [Para 24] [1010-B-D]
1.2 A circular was issued by the State on September 5, 1979
with regard to retrenchment of Government/Semi–Government
employees appointed on category III and IV temporary posts on
ad–hoc basis. Thereafter, separate circulars were issued providing
for procedure for appointment on category III and IV posts on
December 3, 1980. Similar is the circular in respect of
appointment to Category IV post. On January 20, 1992, the State
issued a circular regarding
transfer and posting of Class III and
Class IV employees of Health Department and it was decided
that the employees shall be decentralized at the District level. It
was communicated that transfer and posting as far as possible
shall remain within the jurisdiction of appointing officer. On the
basis of the abovesaid circulars and the Government Orders, it
is argued that the appointing authority of Class III and Class IV
posts is Director, Health Services. However, there was some
delegation in respect of certain other administrative matters but
there was no delegation in respect of appointment against Class
III and Class IV category posts. The powers conferred on
Assistant Director in terms of clause 13(c) of Chapter I of Bihar
Health Manual empowers Assistant Director (Public Health) to
appoint non–gazetted epidemic staff like Health Assistants and
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
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Vaccinators against sanctioned posts but only in case of
emergency. A finding has been recorded in Ashwani Kumar’s case
that 2250 posts were sanctioned whereas 6000 appointments
were made. The Tuberculosis eradication under the 20–Point
Programme was not an emergency activity which may empower
the Assistant Director to make large number of appointments
but again such emergent powers could be exercised only in
respect of sanctioned posts. [Paras 27–29] [1012-G-H;
1014-D-E; 1015-C-E]
1.3 The exception in respect of appointing authority came
with the circular dated December 3, 1980 which contemplated
that suitable candidates be selected as per requirement from
common merit list by the competent authorities of Secretariat
and attached offices; District Collector and equivalent Officer In
charge of the Divisional Offices. The Deputy Director–AM, in
the subordinate offices of the Directorate of Health Services was
not competent to make appointments against Category III or
Category IV posts in view of the provisions of the Manual as also
in terms of the circular dated December 3, 1980 recorded by this
Court in Ashwani Kumar as well. [Para 30] [1015-F-G]
1.4 Though, certain appointments have been made by Civil
Surgeon which is not disputed as he was the competent authority
but it is submitted that none of the requirements to fill up the
public post was adhered to. Appointments were made to the public
posts without following
any procedure and without there being
any sanctioned post. It cannot be said that some of the
appointments have been made by Regional Deputy Director as
four posts of Assistant Director were converted into that of
Regional Deputy Director. The post of Assistant Director was
provided in the Directorate of Health Services with no delegation
of appointment except in the case of emergency against sanctioned
posts. Such Regional Deputy Director has not been conferred
power of appointment against Class III and Class IV posts.
Therefore, the Assistant Director was incompetent to make
appointments against the sanctioned posts except in emergent
cases and so is Regional Deputy Director. [Paras 31, 32]
[1015-H; 1016-A-C]
1.5 In Civil Appeal arising out of SLP (Civil) No. 20033 of
2012, the respondent was appointed by Deputy Director–AM.
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Such appointments have been found to be illegal by this Court in
Ashwani Kumar. There is no reason to re–examine the
appointments made. Such appointments have been adversely
commented upon in Ashwani Kumar case. Therefore, no right
will accrue in favour of the respondent. [Para  34] [1016-E-F]
Ashwani Kumar & Ors. v. State of Bihar & Ors.
(1997) 2 SCC 1 : [1996] 10 Suppl. SCR 120 –
referred to.
1.6 It cannot be accepted that employees have been working
for many years, some for more than 25 years, therefore,
humanitarian view should be taken to set aside the order of
termination and regularise their services so as to make them
entitled to pension and other retirement benefits. Where the very
root is non–existent, there cannot subsist a branch thereof in the
shape of a claim to salary. The rights to salary, pension and other
service benefits are entirely statutory in nature in public service.
Therefore, these rights, including the right to salary, spring from
a valid and legal appointment to the post. Once it is found that
the very appointment is illegal and is non est in the eye of law, no
statutory entitlement for salary or consequential rights of pension
and other monetary benefits can arise. [Paras 35, 36] [1016-G;
1017-A-C]
Rita Mishra & Ors. v. Director, Primary Education, Bihar
& Ors. AIR 1988 Patna 26 – approved.
1.7 The appointments made have been examined by five–
member Committee. 91 candidates have been found to be a case
of irregular
appointment. Such candidates are continuing in
service. None of the candidates in the instant set of appeals could
point out that they were appointed in a manner meant for filling
up of vacant post of public appointment i.e. by advertisement and
by giving opportunity to all eligible candidates to apply.
[Para 38] [1018-B]
1.8 It cannot be said that the appointment of the employees
were irregular appointments. Such appointments are illegal
appointment in terms of the ratio of Supreme Court judgment in
Uma Devi’s case. As such appointments were made without any
sanctioned post, without any advertisement giving opportunity
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
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to all eligible candidates to apply and seek public employment
and without any method of recruitment. Such appointments were
backdoor entries, an act of nepotism and favoritism and thus from
any judicial standards cannot be said to be irregular appointments
but are illegal appointments in wholly arbitrary process.
[Para 44] [1020-G; 1021-A-B]
Secretary, State of Karnataka & Ors. v. Umadevi (3) &
Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – relied on.
1.9 The order dated July 12, 2011 or other similar orders
passed by the High Court cannot be sustained in law and, thus,
are set aside. There is no error in the order of the High Court
dated September 24, 2014. [Paras 45-46] [1021-B-C]
State of Bihar & Ors. v. Purendra Sulan Kit & Ors.
2006 SCC OnLine Pat 290; State of Karnataka & Ors.
v. M.L. Kesari & Ors. (2010) 9 SCC 247 : [2010] 9
SCR 543; The State of Bihar & Ors. v. Binay Kumar
Singh & Ors. [2011] 3 PLJR 547 ; State of Bihar v.
Kirti Narayan Prasad  2018 SCC OnLine SC 261; Ram
Sevak Yadav & Anr. v. The State of Bihar & Ors 2013
Lab IC 1607 (FB); Rita Mishra & Ors. v. Director,
Primary Education, Bihar & Ors. AIR 1988 Patna 26;
R. Vishwanatha Pillai v. State of Kerala & Ors. (2004)
2 SCC 105 : [2004] 1 SCR 360 ; State of Jharkhand &
Ors. v. Manshu Kumbhkar  (2007) 8 SCC 249 : [2007]
9 SCR 1069 ; State of Bihar v. Upendra Narayan Singh
& Ors. (2009) 5 SCC 65 : [2009] 4 SCR 866 ; Union
of India & Anr. v. Raghuwar Pal
Singh (2018) 15 SCC
463 : [2018] 4 SCR 1012; Nidhi Kaim & Anr. v. State of
Madhya Pradesh & Ors. (2017) 4 SCC 1 : [2017] 2
SCR 527; Chairman and Managing Director, Food
Corporation of India & Ors. v. Jagdish Balaram Bahira
& Ors. (2017) 8 SCC 670 : [2017] 11 SCR 271 –
referred to.
Case Law Reference
[1996] 10 Suppl. SCR 120
referred to
Para 3
[2010] 9 SCR 543
referred to
Para 7
[2011] 3 PLJR 547
referred to
Para 7
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2013 Lab IC 1607 (FB)
referred to
Para 9
AIR 1988 Patna 26
approved
Para 36
[2004] 1 SCR 360
referred to
Para 37
[2007] 9 SCR 1069
referred to
Para 39
[2009] 4 SCR 866
referred to
Para 40
[2018] 4 SCR 1012
referred to
Para 41
[2017] 2 SCR 527
referred to
Para 42
[2017] 11 SCR 271
referred to
Para 43
[2006] 3 SCR 953
relied on
Para 44
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7879 of
2019
From the Judgment and Order dated 12.07.2011 of the  High Court
of Judicature at Patna in L.P.A. No. 1741 of 2010
With
Civil Appeal Nos. 7883, 7884, 7880, 7881, 7882, 7886, 7885, 7887,
7888, 7889, 7890, 7891, 7892, 7907, 7893-7900, 7901, 7906, 7902-7903,
7904, 7905, 7911-7913, 7908, 7910, 7909, 7611, 7919, 7914, 7915-7916,
7933, 7932, 7917, 7920, 7918, 7921, 7927, 7925, 7924, 7922, 7923, 7926,
7928, 7929, 7930, 7931, 7934, 7935 of 2019.
R. Venkataramani, Sunil Kumar, Sr. Advs., Mohit Kumar Shah,
Ajay Kumar Talesara, Bipin Kr. Jha, Jamshed Bey, Ekansh Bansal,
Ms. Bandana Singh, Ranjan Mukherjee, Ajay Kumar Singh, Gaurav
Agrawal, Sanjeet K. Trivedi, Vipin Kumar Jai, Devashish Bharuka,
Akhilesh Kumar Pandey, Abhinav Mukerji, Yashraj Bundela, Praveen
Vignesh, Rajiv Kumar, Sanjeev Gupta, Rameshwar Prasad Goyal, Krishna
M. Singh, Shailesh Madiyal, Rajiv Kumar, Sanjeev Gupta, Kartik Anand,
Manu Shanker Mishra, Abhay Prakash Sahay, Jamnesh Kumar,
Himanshu Shekhar, Binay Kumar Das, Ms. Priyanka Das, Ram Ekbal
Roy, Saurabh Upadhayay, Ms. Akanksha Verma, S. K. Verma, Navin
Prakash, A. K. Yadav, Jitendra Mahapatra, Ms. Rumi Chandra, Anuj
Rajput, Kedar Nath Tripathy, Pahlad Singh Sharma, Rohini Prasad,
Nishant Kumar, Nitish Shekhar,   Ms. Pratishtha Vij,   Mrs. Bihu Sharma,
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
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Samarth Khanna, Kusum Chaudhary, N. Rai, Shantanu Sagar, Prerna
Singh, Chandan Kumar,  S. K. Pabbi, Ms. Shikha Roy, Ramesh Tiwari,
Gopal Singh, Shikhil Suri, Shiv Kumar Suri, Navin Prakash, Kedar Nath
Tripathy, Simita Mukherjee, Hitesh Kumar Sharma, Ms. Meenakshi Das,
K. V. Mohan, Chandan Kumar, Rituraj Chowdhary, Chandra Prakash,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J. 1. This judgment shall dispose of two
sets of appeals; one by the State arising out of an order dated July 12,
2011 passed by the Division Bench of the High Court of Judicature at
Patna1 whereby, the appeals filed by the State were dismissed directed
against the order passed by the learned Single Judge on October 6, 2009;
and another set of appeals arising out of an order passed by the Division
Bench of the High Court on September 24, 2014 whereby the order
passed by the learned single Bench on October 6, 2009 was set aside.
Some other Appeals are also on board against the orders passed by the
High Court on other dates.
2. Since the issue in the appeals is common arising out of same or
similar facts, therefore, such appeals have been taken up for hearing
together.
3. Brief facts leading to the present appeals are that large number
of candidates were appointed against Class III or Class IV posts in the
Health Department in Government of Bihar till 1990 or so.  The services
of such employees were
terminated which led to number of writ petitions
before the High Court. The first round of cases came to end with the
order of three Judge Bench of this Court reported as Ashwani Kumar
& Ors. v. State of Bihar & Ors.2.  This Court held that recruitments
made by Dr. Mallick were arbitrary, capricious, null and void after
considering the Government order dated December 3, 1980 as well as
Government resolution dated March 25, 1983.  It was also held that
none of the appointees have any accrued right in the absence of
sanctioned posts.  It was held that the whole exercise remained in the
realm of an unauthorised adventure. Nothing could come out of nothing.
Ex nihilo nihil fit. Zero multiplied by zero remains zero.  It was held
1 for short‘High Court
2(1997) 2 SCC 1
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that army of employees under the Scheme had got to be cleared lock,
stock and barrel so that public confidence in Government administration
would not get shattered and arbitrary actions would not get sanctified.
4. It is thereafter in another round, the Division Bench of the High
Court in State of Bihar & Ors. v. Purendra Sulan Kit & Ors.3 decided
approximately 819 Letters Patent Appeals and the writ petitions.  The
High Court noticed that the entry to Class III and Class IV posts in the
health department during the same period were through back door method
and, in many cases, through forged and fabricated letters of appointment
or through transfer orders without actual appointments and, in some
cases, appointments were made without availability of sanctioned posts
made by the authority not competent to appoint.  The High Court directed
the Department of Health in the Government of Bihar to scrutinize the
cases of affected employees afresh on the basis of relevant materials
and in view of the law declared by this Court in Secretary, State of
Karnataka & Ors. v. Umadevi (3) & Ors.4.  The High Court held as
under:
“10. All the Letters Patent Appeals whether preferred by the State
or by affected employees and all the Writ Petitions preferred by
the affected employees are hereby disposed of by this common
judgment and order with a direction to the authorities of the Health
Department, Government of Bihar to reconsider the cases of all
the affected employees
with a view to find out on the basis of
relevant facts and law as settled by the Constitution Bench in the
case of Secretary, State of Karnataka v. Uma Devi (supra) as
to which of such affected employees are fit for regularisation in
terms of that judgment, particularly in terms of paragraph 44 of
the judgment. Such exercise should be completed within a period
of six months from today. If for any good reason, the time period
is required to be extended then the respondent State must file an
application for that purpose and seek extension from this Court.
Till the process is completed, the State of Bihar and its authorities
shall maintain status quo in respect of services of the affected
employees as existing on date. The status quo shall get revised
by the orders that may be passed by the authorities in respect of
affected employees as a result of the exercise to be undertaken
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
3 2006 SCC OnLine Pat 290
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by them and their final decision in the light of this judgment and
order.”
5. It is in pursuance to such direction; the State constituted a
Committee of five officers5 to examine the facts of individual’s case.
Two members of the State Committee did not participate in the
proceedings nor signed the Report but remaining three members
submitted its report on December 31, 2008.  After considering the facts
of each individual’s case, the employees were put in following three
categories:
(a) employment secured on forged documents;
(b) illegal appointments; and
(c)  irregular appointments.
6. The State Committee found 91 cases of irregular appointments;
228 cases of illegal appointment and 358 cases of forged appointment
letters. In terms of the Report of the State Committee, termination orders
were again passed in respect of the candidates falling in the categories
i.e. employment secured on forged documents and illegal appointments,
whereas, 91 candidates whose appointment was found to be irregular
were allowed to continue.  Such Report of the State Committee as well
as the termination orders were challenged before the learned Single
Bench by filing separate writ petitions.  The lead case being CWJC No.
6575 of 2009.  All such writ petitions were allowed on October 6, 2009
whereby, the report submitted by three members on December 31, 2008
was quashed with a direction to reinstate the employees.
7. The order dated
October 6, 2009 was challenged by the State
in some of the intra-court appeals before the High Court.  Such appeals
were dismissed on March 29, 2011, inter alia, on the ground that inquiry
was conducted in violation of the principle of natural justice as only
three members have signed the Report.  It was thus held that such
termination is contrary to the judgment of this Court in State of Karnataka
& Ors. v. M.L. Kesari & Ors.6It was found that since the writ petitioners
have worked for more than ten years, therefore, the services are entitled
to be reguarlised. Such judgment is reported as The State of Bihar &
Ors. v. Binay Kumar Singh& Ors.7. This Court has allowed some of
 5for short,  ‘State Committee
6(2010) 9 SCC 247
72011 (3) PLJR 547
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the appeals arising out of order dated March 29, 2011 in State of Bihar
v. Kirti Narayan Prasad8.  In the meantime, many appeals filed by the
State were dismissed by the High Court on many dates including June
30, 2010, July 12, 2011, July 14, 2011, July 20, 2011, April 15, 2013, October
30, 2013 and November 30, 2015 which are subject matter of challenge
in the present appeals.
8. The order passed by the learned Single Judge also gave rise to
LPA No. 1623 of 2009 and other appeals. Such appeals were allowed
by consent on February 11, 2010 whereby, one-man Committee under
the Chairmanship of Hon’ble Mr. Justice Uday Sinha, a retired Judge of
the High Court was entrusted the task of looking into various facts of
the nature of appointment with the view to adjudicate the legality of their
appointments and continuance in service.  Subsequently, LPA No. 560
of 2010 and some other appeals were allowed on March 23, 2010 in the
light of order passed in the aforesaid LPA but without any consent.  The
said orders were challenged before this Court in Civil Appeal No.6484
of 2011 and other matters.  The appeals were allowed by this Court on
August 8, 2011, inter alia, on the ground that without consent, the appeal
could not be disposed of in terms of LPA No. 1623 of 2009 and other
connected appeals. The appeals were directed to be decided afresh. It
is thereafter, the Division Bench passed an order on September 24, 2014
setting aside the order passed by the learned
Single Bench on October
6, 2009.
9. The Division Bench held that in view of the appointments being
illegal and void ab initio, the services cannot be reguarlised and that
the judgment of the Division Bench of the High Court in Binay Kumar
Singh is contrary to the Full Bench judgment in Ram Sevak Yadav &
Anr. v. The State of Bihar & Ors9, wherein the appellants were appointed
on Class IV posts by the Civil Surgeon in the Health Department as in
the present set of appeals but their services were terminated in the year
2001 for the reason that their appointments were illegal.  The Full Bench
of the High Court held as under:
“41.  The public power to make appointment on public posts is
conferred for public good. The power is given to the officer
concerned by the government in trust, that it shall be used and not
abused. If the trust is belied, the protection conferred upon a
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
8 2018 SCC OnLine SC 261
9 2013 Lab IC 1607 (FB)
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government servant stands denuded. The answerability and
accountability is then individual of the officer. The government is
duty bound to take appropriate civil/criminal action against the
officer. The illegality in the appointment is not a one way street. If
there was someone willing to pay a price for the job, there was
another waiting to take advantage of the same by fixing a price. It
is not without reason that majority of such appointments relate to
class III and IV posts. The standard by which the government
professes to act is the same standard by which its actions shall be
judged. Therefore whenever the government terminates an
appointment being illegal, it is the constitutional duty of the
government to simultaneously take action against the officials who
belied the trust of the government. Those who made hay while
the sun shined must see the darker cloudy days also…….
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44.   The petitioners were appointed in temporary capacity by a
process contrary to Article 14 of the Constitution without
competitive selection as an individual favour doled out to them.
There is no material to hold that they were appointed against vacant
sanctioned post and possessed qualifications for the same. They
were terminated before (Uma Devi) (supra) and have sought to
retain their status by virtue of Court proceedings and are therefore
not entitled to the benefits of paragraph 53. The issue of any
procedural irregularity
for a finding of forged appointment is
therefore irrelevant.”
10. The Division Bench in its order dated September 24, 2014,
following the Full Bench judgment of that court, now subject matter of
challenge by the employees in these appeals, held as under:
“………… The State Government, pursuant to the aforesaid
direction, in its wisdom, appears to have constituted a committee
of five members. Ultimately, only three members sat in the enquiry;
held the enquiry and made its report. We do not see any reason
why the said report cannot be believed or should be held to be
illegal or invalid. It is not in dispute that the State Committee did
offer opportunity of representation and hearing to the affected
employees. The principles of natural justice having been complied
with, this Court ought not to have any reason to disbelieve or
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interfere with the finding recorded by the State Committee. It is
note worthy that the writ petitioners have not challenged the finding
recorded by the State Committee or at least have not been able to
establish that the respective finding is erroneous on the facts of
the case. We have recorded the facts of one case just to bring
home the nature of illegality committed by the Civil Surgeon-cum-
Chief Medical Officer. As recorded hereinabove, in repeated
enquiry made by the State Government all such appointments were
found to be illegal, void ab-initio. Unless there is a strong evidence
of such finding being wrong, this Court in exercise of power of
judicial review shall not interfere with such finding.
In the present set of writ petitions, none of the writ petitioners has
dislodged the finding of illegal appointment or has established that
his or her appointment was legal and valid in all respects. In our
view, the learned single Judge has erred in totally discarding the
report of the State Committee on the premise that only three
members of the committee had conducted the enquiry and had
submitted the report.
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This brings us to the last question whether in view of their long
service, the writ petitioners are entitled to regularization in service
as observed by the Hon’ble Supreme Court in Uma Devi (3)
(supra). This was the precise question which was referred to the
Full Bench in the matter of Ram Sevak Yadav & Anr. (supra).
The Full Bench of
this Court has categorically held that the
judgment in Uma Devi (supra), prohibits regularization of such
appointments, the period of service being irrelevant; and that illegal
appointment void abinitio cannot be regularised under any
circumstances. In view of the aforesaid decision of the Full Bench
of this Court, the law laid down by the Division Bench of this
Court in the matter of The State of Bihar & Ors. Vs. Binay Kumar
Singh & Ors. [2011 (3) PLJR 547] is no longer a good law.
In the present case, the appointments of the writ petitioners have
been repeatedly held to be non est or void ab initio. The question
of regularization of their service even by invoking paragraph 44
of the judgment in the matter of Uma Devi (3) (supra) shall not
arise.”
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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11. The appointments in the Health Department to Class III and
Class IV posts firstly came up for consideration before this Court in
Ashwani Kumar.  This Court examined the following points:
“1. Whether the appointments of Class III and Class IV employees
on the Tuberculosis Eradication Scheme as a part of 20-Point
Programme were legal and valid.
2. Whether the confirmation of these employees was legally
justified.
3. Whether principles of natural justice were violated while
terminating services of all these 6000 employees appointed by Dr Mallick.
4. What relief, if any, can be granted to the appellants.”
12. In respect of first point for determination, the Court was
considering the fact that Dr. A.A. Mallick, Deputy Director, Health
Department of the Government of Bihar, was in charge of Tuberculosis
Centre and as Assistant Director of Filaria, had appointed 6000 employees
against sanctioned posts of 2250.  This Court found that all these
recruitments were arbitrary, capricious, null and void against violation of
all norms of administrative procedure contrary to separate Government
orders dated December 3, 1980 for Class III and Class IV posts.  This
Court considering the resolution dated March 25, 1983 relied upon by
the employees to claim continuity of service, held as under:
“12. … We agree with the contention of Shri Singh, learned counsel
for the respondent-State that all these recruitments made by Dr
Mallick
were arbitrary, capricious and were null and void as he
did violence to the established norms and procedures for recruiting
such employees. Dr Mallick was not giving appointments to these
employees in his private establishment. He was recruiting them in
a Government Programme which was supported by planned
expenditure. Such recruitment to public services could not have
been effected in such a cavalier fashion in which it was done by
Dr Mallick……….. Unfortunately Dr Mallick treated this Scheme
as his private property. The device adopted by him was in flagrant
violation of all norms of administrative procedure known to law.
In this connection we may profitably refer to Government Order
dated 3-12-1980.…  It is not in dispute that none of these
instructions and the procedure laid down for recruiting Class III
and Class IV employees were followed by Dr Mallick while
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recruiting ad hoc/daily-wage employees at the initial stage in the
Tuberculosis Eradication Scheme supervised and monitored by
him…………………..
…. But the very Resolution indicates that recruitment had to be
for regular appointments to be made by the Selection Committee
to Class III and Class IV posts under Malaria, Filaria and T.B.
programme. Therefore, recruitment was to be done in a regular
manner against available posts. It never gave a blanket power to
Dr Mallick to create new posts which were not sanctioned and to
make recruitment thereon. Nor did it give any authority to throw
the recruitment procedure for recruiting such Class III and Class
IV employees to the winds and to make recruitment in an arbitrary
manner at his whims and fancies. Nowhere this Resolution
indicates that the earlier government orders laying down the
procedure regarding recruitment to Class III and Class IV posts
were to be given a go-by. Consequently, the Resolution of 25-3-
1983 has to be read along with the Government Orders dated 3-
12-1980 and not dehors them.…. It is axiomatic that unless there
is vacancy there is no question of filling it up. There cannot be an
employee without a vacancy or post available on which he can
work and can be paid as per the budgetary sanctions... It must,
therefore, be held that the appointments of 6000 employees as
made by Dr Mallick in the Tuberculosis Eradication Scheme were
ex facie illegal. As they were contrary to all recognised
recruitment
procedures and were highly arbitrary, they were not binding on
the State of Bihar. The first point for determination, therefore,
will have to be answered in the negative.”
13. In respect of second point, it was held that if the initial entry
itself is unauthorised and that appointment is not against sanctioned
vacancy, therefore, the question of regularising of services would never
arise for consideration.  This Court held as under:
“13.  …But if the initial entry itself is unauthorised and is not
against any sanctioned vacancy, question of regularising the
incumbent on such a non-existing vacancy would never survive
for consideration and even if such purported regularisation or
confirmation is given it would be an exercise in futility. It would
amount to decorating a still-born baby. Under these circumstances
there was no occasion to regularise them or to give them valid
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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confirmation….. As we have seen earlier when the initial
appointments by Dr Mallick so far as these daily-wagers were
concerned, were illegal there was no question of regularising such
employees and no right accrued to them as they were not confirmed
on available clear vacancies under the Scheme. It passes one’s
comprehension as to how against 2500 sanctioned vacancies
confirmation could have been given to 6000 employees. The whole
exercise remained in the realm of an unauthorised adventure.
Nothing could come out of nothing. Ex nihilo nihil fit. Zero
multiplied by zero remains zero...”
14. While considering the argument to seek regularisation of the
services, this Court held as under:
“14.  In this connection it is pertinent to note that question of
regularisation in any service including any government service
may arise in two contingencies. Firstly, if on any available clear
vacancies which are of a long duration appointments are made on
ad hoc basis or daily-wage basis by a competent authority and
are continued from time to time and if it is found that the incumbents
concerned have continued to be employed for a long period of
time with or without any artificial breaks, and their services are
otherwise required by the institution which employs them, a time
may come in the service career of such employees who are
continued on ad hoc basis for a given substantial length of time to
regularise them so that the
employees concerned can give their
best by being assured security of tenure. But this would require
one precondition that the initial entry of such an employee must
be made against an available sanctioned vacancy by following
the rules and regulations governing such entry………….
…But even in such a case the initial entry must not be found to be
totally illegal or in blatant disregard of all the established rules and
regulations governing such recruitment. In any case back-door
entries for filling up such vacancies have got to be strictly avoided.
However, there would never arise any occasion for regularising
the appointment of an employee whose initial entry itself is tainted
and is in total breach of the requisite procedure of recruitment
and especially when there is no vacancy on which such an initial
entry of the candidate could ever be effected. Such an entry of
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an employee would remain tainted from the very beginning and
no question of regularising such an illegal entrant would ever
survive for consideration, however competent the recruiting agency
may be. The appellants fall in this latter class of cases. They had
no case for regularisation and whatever purported regularisation
was effected in their favour remained an exercise in futility. …
For all these reasons, therefore, it is not possible to agree with the
contention of the learned counsel for the appellants that in any
case the confirmations given to these employees gave them
sufficient cloak of protection against future termination from
services. On the contrary all the cobwebs created by Dr Mallick
by bringing in this army of 6000 employees under the Scheme had
got to be cleared lock, stock and barrel so that public confidence
in Government administration would not get shattered and arbitrary
actions would not get sanctified.”
15. The third point for consideration was in respect of violations
of principle of natural justice.  This Court found that as many as 3750
candidates were appointed in totally unauthorised manner and were
squatting against non-existing vacancies.  A situation had arisen which
required immediate action for clearing the stables and for eradicating
the evil effects of these vitiated recruitments so that the Tuberculosis
Eradication Scheme could be put on a sound footing.  The High Court
had directed the State to appoint a Committee
to thoroughly investigate
the entire matter.  Such Committee had issued public notices.  987
candidates appeared before the Committee.  This Court held that the
material supplied by the employees concerned was taken into
consideration and then the Committee came to a firm decision to the
effect that all these appointments made by Dr Mallick were vitiated
from the inception and were required to be set aside and that is how the
impugned termination orders were passed against the appellants. Thus,
it was held that the principles of natural justice were not violated if no
opportunity was given to the employees concerned to have their say in
the matter before their appointments were recalled and terminated.
16. However, while answering point No. 4, the State was directed
to start a fresh exercise for recruiting Class III and Class IV employees
against available 2250 vacancies or even more vacancies.  The second
round of cases started with the report of the State Committee constituted
in terms of directions of the High Court in Purendra Sulan Kit.
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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17. When the present set of appeals came up for hearing before
this Court on April 3, 2018, this Court found the following four categories
of cases:
“(i) Appointments made on the basis of forged appointment letter.
They are at S.Nos. 2 to 48.
(ii) Appointments made on the basis of forged nursing registration
certificate. They are at S. Nos. 49-50-51.
(iii) Appointments made by a person who was not competent to
make the appointment. They are at S.Nos. 52 to 92.
(iv) There is a residual category at S.NO. 1 i.e. appointment made
by Dr. A.A. Mallick, Dy. Director, T.B. and S. Nos. 93 & 94 who
are now claiming appointment. Their cases will be dealt with sepa-
rately.”
18. The first category of cases was decided by three Judge Bench
in Kirti Narayan Prasadon November 30, 2018 wherein, it was held as
under:
“17.  In the instant cases the writ petitioners have filed the petitions
before the High Court with a specific prayer to regularize their
service and to set aside the order of termination of their services.
They have also challenged the report submitted by the State
Committee. The real controversy is whether the writ petitioners
were legally and validly appointed. The finding of the State
Committee is that many writ petitioners had secured appointment
by producing fake or forged appointment letter or had been
inducted in Government service surreptitiously by concerned Civil
Surgeon-cum-Chief Medical Officer by issuing a
posting order.
The writ petitioners are the beneficiaries of illegal orders made
by the Civil Surgeon-cum-Chief Medical Officer. They were given
notice to establish the genuineness of their appointment and to
show cause. None of them could establish the genuineness or
legality of their appointment before the State Committee. The
State Committee on appreciation of the materials on record has
opined that their appointment was illegal and void ab initio. We
do not find any ground to disagree with the finding of the State
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Committee. In the circumstances, the question of regularisation
of their services by invoking para 53 of the judgment in Umadevi
(supra) does not arise. Since the appointment of the petitioners is
ab initio void, they cannot be said to be the civil servants of the
State. Therefore, holding disciplinary proceedings envisaged by
Article 311 of the Constitution or under any other disciplinary rules
shall not arise.”
19. The cases in the second category i.e. appointment on the basis
of forged nursing registration stands on the same footing as category
one though it is argued by the appellants in three appeals that nursing
registration certificate is not forged but the matriculation certificate on
the basis of which the candidates have undergone Auxiliary Nurse Mid-
Wife10 course was found to be forged.  The State Committee has found
that ANM certificate is a forged certificate.  Even if, the certificate of
ANM is not forged as argued before this Court but the Matriculation
Certificate is said to be forged, the fact is that the educational qualification,
a pre-condition for undergoing nursing course, was found to be forged.
Therefore, the forgery is in the basic eligibility condition to undertake
ANM course, which will vitiate the process of appointment.  For the
reasons recorded in Kirti Narayan Prasad, Civil Appeal Nos. 7906 of
2019, 7919 of 2019 and 7920 of 2019 are dismissed.
20. Coming to third category of cases, Mr. Mukherjee, learned
counsel for the
State referred to the separate Government Circulars
dated December 3, 1980 in respect of Class III and Class IV category
posts.  It is contended that appointments on such circulars have been
found to be illegal by this Court in Ashwani Kumar, which view was in
fact, approved later by Constitution Bench judgment in Uma Devi,
wherein this Court held as under:
“33.   It is not necessary to notice all the decisions of this Court on
this aspect. By and large what emerges is that regular recruitment
should be insisted upon, only in a contingency can an ad hoc
appointment be made in a permanent vacancy, but the same should
soon be followed by a regular recruitment and that appointments
to non-available posts should not be taken note of for regularisation.
The cases directing regularisation have mainly proceeded on the
basis that having permitted the employee to work for some period,
10for short, ‘ANM
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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he should be absorbed, without really laying down any law to that
effect, after discussing the constitutional scheme for public
employment.
xx
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53.   One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in
S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] ,
R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and
B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979)
3 SCR 937] and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more
but without the intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such
employees may have to be considered on merits in the light of
the principles settled by this Court in the cases above-referred
to and in the light of this judgment…………….”
  (Emphasis Supplied)
21. In Uma Devi, the argument that the employees have legitimate
expectations was negated when this Court held as under:
“46.  ………….. The doctrine can be invoked if the decisions of
the administrative authority affect the person by depriving him of
some benefit or advantage which either (i) he had in the past
been permitted by the decision-maker to enjoy and which he can
legitimately expect to be permitted to continue to do until there
have been communicated to him some
rational grounds for
withdrawing it on which he has been given an opportunity to
comment; or (ii) he has received assurance from the decision-
maker that they will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they should
not be withdrawn… There is no case that any assurance was
given by the Government or the department concerned while
making the appointment on daily wages that the status conferred
on him will not be withdrawn until some rational reason comes
into existence for withdrawing it. The very engagement was against
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the constitutional scheme. Though, the Commissioner of the
Commercial Taxes Department sought to get the appointments
made permanent, there is no case that at the time of appointment
any promise was held out. No such promise could also have been
held out in view of the circulars and directives issued by the
Government after Dharwad decision [(1990) 2 SCC 396 : 1990
SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though,
there is a case that the State had made regularisations in the past
of similarly situated employees, the fact remains that such
regularisations were done only pursuant to judicial directions, either
of the Administrative Tribunal or of the High Court and in some
cases by this Court….
47. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement
is not based on a proper selection as recognised by the relevant
rules or procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in nature. Such
a person cannot invoke the theory of legitimate expectation for
being confirmed in the post when an appointment to the post could
be made only by following a proper procedure for selection and in
cases concerned, in consultation with the Public Service
Commission. Therefore, the theory of legitimate expectation
cannot be successfully advanced by temporary, contractual or
casual employees….”
22. The State Committee has examined all the
appointments and
segregated appointments based on forged documents and also irregular
appointments.  Once the detailed report has been submitted examining
the merit of each candidate, and when the judgment of this Court in
Ashwani Kumar and Uma Devi conclusively answer the questions
against the employees, no further discussion on the arguments raised
would survive.  However, since the arguments have been addressed in
respect of the third category of cases i.e. appointments made by a person
who was not competent to make the appointments, we shall consider as
to what will be the effect of such appointments.
23. Mr. Mukherjee, learned counsel for the State referred to various
Government orders issued from time to time and submitted that such
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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category has to be examined in two groups; one where the appointments
were made by the incompetent authority; and second, the appointments
made by the competent authority but without any sanctioned post and
without following the procedure for appointment to public post.
24. It is admitted that there is no statutory rule in terms of proviso
to Article 309 of the Constitution for appointment to Class III and Class
IV categories in the State.  The matter of appointment is regulated by
the Executive instructions.  Mr. Mukherjee has referred to Bihar Health
Manual.  Chapter I of the Manual deals with Organisation and functions
of the Health Department of the State.  It was pointed out that from
May 1, 1953, the Medical and the Public Health Departments were
amalgamated into one department called the Department of Health under
the Director of Health Services.  It was pointed out that the Director of
Health Services is the appointing authority in respect of all non-gazetted
appointments in the department including the Subordinate Medical
Service.  To assist the Director, there is one Additional Director and
three Deputy Directors along with other gazetted officers including
Assistant Directors of Health Services (M. and C.H.).  The relevant
extract of the Manual reads as under:
“2. – Administrative and Financial Powers of the Officers of the
Health Department at the Headquarters and in the Subordinate
Offices.
(a) Powers
of the Director of Health Services, Bihar.
3.  The Director of Health Services is the appointing authority in
respect of all non-gazetted appointments in the department
including the Subordinate Medical Service.
(No. 7759., dated the 9th June 1916)”
6.  The following powers are also delegated to the Director of
Health Services being a Head of Department under respective
Codes, rules and orders:-

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25. Clause 7 of the Manual contemplates powers of Deputy
Director of Health Services whereas clause 8 deals with powers of
Deputy Director of Health Services (Public Health).  The powers of
Assistant Director of Health Services are contained in Clause 9 which
reads as under:
“9.  The following powers are delegated to the Assistant Director
of Health Services (Administration), Bihar:-
(a) To deal with and sign all correspondence with subordinate
offices, Accountant-General, Bihar, the departments of
Government and other offices for and on behalf of the Director
of Health Services under his supervision.
S. No.
Nature of Power
Reference to rules 
or orders 
Limit of power
1

xxx

2 
Power 
to 
vary 
details viz., rate of 
pay, number of 
hand and period of 
employment 
of 
temporary 
establishment.
Paragraph 
103, 
Bihar and Orissa 
Treasury Manual. 
The delegation is subject to the 
following conditions:- 
(1) The cost should not be 
raised beyond the total amount 
sanctioned. 
(2) 
Where 
the 
temporary 
establishment is sanctioned by 
the State Government, the pay 
of no post should be raised 
beyond the limit of minimum 
of the prescribed scale thereof. 
(3) In other cases the pay of no 
post should be raised beyond 
the limit of sanction enjoyed by 
the authority which sanctioned 
the temporary establishment.

xxx 
47 
Power to appoint a 
Government 
servant to hold 
temporarily or to 
officiate in more 
than one post at a 
time. 
Rule 103 of the 
Bihar 
Service 
Code. 
Full power provided that such 
power shall extend only to 
cases in which he is competent 
to 
make 
a 
substantive 
appointment to each of the 
posts concerned.

STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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(b)  To countersign all travelling allowance bills of the non-gazetted
staff employed under the Director of Health Services.
(c)  To pass and countersign all indents for forms and stationery
received in the office of the Director of Health Services from the
Muffasil offices subject to the condition that the reduction or
increase by more than 5 per cent should require the sanction of
the Director of Health Services.
(d) To sanction all local purchase of contingent articles for
headquarters office or the Muffasil offices not exceeding Rs.20
on any one item.
(Govt. order no. 262/HD, dated the 13th July, 1953.)”
26. The Civil Surgeons in Districts as also State Leprosy Officer
and Director, T B Demonstration Centre are subordinate to the Director
of Health Services.  The powers of Assistant Director of Public Health
are as under:
“13.  Powers to the Assistant Directors of Public Health-
(a) •xxx
(b)    xxx
(c)   To recruit non-gazetted epidemic staff like Health Assistants
and Vaccinators against sanctioned posts allowed to their respective
divisions.  The appointment of Epidemic doctors will ordinarily be
made by the Director of Health Services but in cases of emergency
the Assistant Directors of Public Health will have authority to
appoint them against sanctioned posts subject to the approval of
the Directorate being obtained later on within three months.
(Govt. order no. 27680-H date dated the 1st November, 1954).”
27. A circular was issued by the State on September 5, 1979 with
regard to retrenchment of Government/Semi-Government employees
appointed on category III and IV temporary posts on ad-hoc basis.
Thereafter, separate circulars were issued providing for procedure for
appointment on category III and IV posts on December 3, 1980.  The
relevant clause for the purposes of determining the person competent to
make appointment in respect of Category III posts reads as under:
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“(b)  The competent authority of Secretariat and attached offices,
District Collector and equivalent Officer Incharge of divisional
offices of other departments will collect the information from
attached offices at the start of the year for the posts actually to
be filled during the year and the information of vacancies.  Suitable
candidates will be selected from these applicants according to the
vacancies and suitable persons will be allotted to various attached
offices for appointment, as per requirement, from the common
merit list.  All the appointments will be made by the competent
authority for their respective offices.
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(e) (i)  One Selection Committee will be made for preparation of
merit list in the Secretariat and attached offices and the Head of
attached establishment will be the Chairman of this Committee
and any senior officer will be the Member of Committee, who is
nominated by the Head of Establishment.  Officer of Scheduled
Caste/Scheduled Tribe available in the department will be the
second member.  In case no such officer is available, if the officer
of that category is available in another department, then he will be
included in the Committee and if even this is also not possible,
then Joint/Dy. Secretary of the Personnel Department, who
perform the works related to Scheduled Caste/Scheduled Tribe,
will be appointed as a Member.
(ii)  For preparation of merit list at District level, District Head of
the attached Establishment
will be the Chairman of selection
committee constituted and any other senior officer of that
Establishment, who is nominated by their District level Head, will
be its member.  Second Member will be the District Welfare
Officer so that at the time of preparation of merit list of government
orders regarding maintenance no violation is committed.
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(3)  It has come into the knowledge of government that
appointments on category 3 posts are not being made according
to the procedure prescribed in the above-said resolution.  The act
of working against the prescribed procedure clearly means the
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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violation of government orders, which is a matter of regret.
Therefore, it is expected that the appointments on category 3 posts
are made according to the procedure prescribed in the above-
mentioned Resolution.  It will be the responsibility of each
appointing authority to ensure that the procedure with regard to
appointment on category 3 posts is followed strictly.  In cast it is
found that prescribed procedure has not been followed by the
appointing authority with regard to appointment on category 3
posts, then Government will have to take necessary action against
him.  Inquiry will be conducted immediately on receiving the
complaint that the officer has not followed the prescribed procedure
and if the charge is found proved, the officer will be placed under
suspension immediately and departmental action will be taken to
remove him from services.  Such incorrect appointments will be
cancelled immediately.”
28. Similar is the circular in respect of appointment to Category
IV post.  On January 20, 1992, the State issued a circular regarding
transfer and posting of Class III and Class IV employees of Health
Department and it was decided that the employees shall be decentralized
at the District level.  It was communicated that transfer and posting as
far as possible shall remain within the jurisdiction of appointing officer.
Clause 3 and 6 of the said circular reads as under:
“3.  Appointment officers for different
category of employees of
Health Department are briefly mentioned as under:
(a)  Civil Surgeon – For district class III and IV employees (below
superior category) and A.N.M.
(b)   Superintendent, Medical College Hospital – for Class III and
IV employees posted at Medical College Hospital.
(c)  State Programme Officer (Malaria, TB, Leprosy, Faileria) –
Class III and IV employees under National Programme.
(d)  Director Head, Public Services – Lower and Upper Division
Clerk, A Grade Nurse, L.H. xxx Midwife, Matron, Public Health
Nurse, Sanitary Inspector, Laboratory Assistant, X-ray technician,
Physiotherapist, Occupational Therapist, Ophthalmic Assistant,
Broadcast Trainer, Health Trainer, Dy. District Mass Media
Officer, Stenographer, Cholera Worker, Special Cholera Worker,
Movie Player etc.”
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6.  On the above basis, all the earlier orders are superseded by
the following order:
(a) Cadre of employees appointed by civil surgeon will be of district
level.  This will include staff of Regional Dy. Director Office.
xx
xx
xx
(h)  Civil Surgeon will undertake transfer/posting of those Class
III and IV Employees for whom he is original appointment officer.
Such transfer and postings will be done within the district.”
29. On the basis of the abovesaid circulars and the Government
Orders, it is argued that the appointing authority of Class III and Class
IV posts is Director, Health Services.  However, there was some
delegation in respect of certain other administrative matters but there
was no delegation in respect of appointment against Class III and Class
IV category posts.  The powers conferred on Assistant Director in terms
of clause 13(c) of Chapter I of Bihar Health Manual empowers Assistant
Director (Public Health) to appoint non-gazetted epidemic staff like Health
Assistants and Vaccinators against sanctioned posts but only in case of
emergency.  A finding has been recorded in Ashwani Kumar that 2250
posts were sanctioned whereas 6000 appointments were made.  The
Tuberculosis eradication under the 20-Point Programme was not an
emergency activity which may empower the Assistant Director to make
large number of appointments but again such emergent powers could be
exercised only in respect of sanctioned posts.
30. The exception in respect of
appointing authority came with
the circular dated December 3, 1980 which contemplated that suitable
candidates be selected as per requirement from common merit list by
the competent authorities of Secretariat and attached offices; District
Collector and equivalent Officer In charge of the Divisional Offices.
Dr. Mallick, Deputy Director in the subordinate offices of the Directorate
of Health Services was not competent to make appointments against
Category III or Category IV posts in view of the provisions of the Manual
as also in terms of the circular dated December 3, 1980 recorded by this
Court in Ashwani Kumar as well.
31. Though, certain appointments have been made by Civil
Surgeon which Mr. Mukherjee does not dispute as he was the competent
authority but it is argued that none of the requirements to fill up the
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[HEMANT GUPTA, J.]
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public post was adhered to.  Appointments were made to the public
posts without following any procedure and without there being any
sanctioned post.
32. An argument was raised on behalf of learned counsel for the
employees that some of the appointments have been made by Regional
Deputy Director as four posts of Assistant Director were converted into
that of Regional Deputy Director.  We do not find any merit in the said
argument.  The post of Assistant Director was provided in the Directorate
of Health Services with no delegation of appointment except in the case
of emergency against sanctioned posts.  Such Regional Deputy Director
has not been conferred power of appointment against Class III and Class
IV posts. Therefore, the Assistant Director was incompetent to make
appointments against the sanctioned posts except in emergent cases
and so is Regional Deputy Director.
33. In Ashwani Kumar, this Court has dealt with the appointments
made against Class III and IV category posts in the Health Department
itself.  The reasoning recorded therein is that the appointments have
been proved to be made not against the sanctioned posts and in a manner,
which is wholly arbitrary, capricious and, therefore, employees will not
get any right to seek regularisation of their services.
34. In Civil Appeal arising out of SLP (Civil) No. 20033 of 2012,
the respondent was appointed by Dr. A.A. Mallick.  Such appointments
have been
found to be illegal by this Court in Ashwani Kumar.  We find
that there is no reason to re-examine the appointments made by Dr.
A.A. Mallick.  Such appointments have been adversely commented upon
in Ashwani Kumar case. Therefore, no right will accrue in favour of
the respondent.  Consequently, the appeal arises out of SLP (Civil) No.
20033 of 2012 is allowed and the order passed by the High Court is set
aside.
35. Lastly, it is argued that employees have been working for
many years, some for more than 25 years, therefore, humanitarian view
should be taken to set aside the order of termination and regularise their
services so as to make them entitled to pension and other retirement
benefits.
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36. We do not find any merit in the said argument.  A Full Bench
of the High Court in Rita Mishra & Ors. v. Director, Primary
Education, Bihar & Ors.11 while dealing with appointment in the
education department claiming salary despite the fact that letter of
appointment was forged, fraudulent or illegal, declined such claim. It
was held that the right to salary stricto sensu springs from a legal right
to validly hold the post for which salary is claimed. It is a right
consequential to a valid appointment to such post. Therefore, where the
very root is non-existent, there cannot subsist a branch thereof in the
shape of a claim to salary. The rights to salary, pension and other service
benefits are entirely statutory in nature in public service. Therefore, these
rights, including the right to salary, spring from a valid and legal
appointment to the post. Once it is found that the very appointment is
illegal and is non est in the eye of law, no statutory entitlement for salary
or consequential rights of pension and other monetary benefits can arise.
37. Such judgment of the Full Bench was approved by three Judge
Bench of this Court in a Judgment reported R.  Vishwanatha Pillai v.
State of Kerala & Ors.12.  This Court held as under:
“17.  The point was again examined by a Full Bench of the Patna
High Court in Rita Mishra v. Director, Primary Education, Bihar
[AIR 1988 Pat 26 : 1988 Lab IC 907 : 1987 BBCJ 701 (FB)] .
The question posed before the Full Bench
was whether a public
servant was entitled to payment of salary to him for the work
done despite the fact that his letter of appointment was forged,
fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13)
“13. It is manifest from the above that the rights to salary,
pension and other service benefits are entirely statutory in
nature in public service. Therefore, these rights, including the
right to salary, spring from a valid and legal appointment to the
post. Once it is found that the very appointment is illegal and is
non est in the eye of the law, no statutory entitlement for salary
or consequential rights of pension and other monetary benefits
can arise. In particular, if the very appointment is rested on
forgery, no statutory right can flow from it.”
11 AIR 1988 Patna 26
12(2004) 2 SCC 105
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]
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18. We agree with the view taken by the Patna High Court in the
aforesaid cases.”
38. The appointments made have been examined by five-member
Committee. 91 candidates have been found to be a case of irregular
appointment. Such candidates are continuing in service. None of the
candidates in the present set of appeals could point out that they were
appointed in a manner meant for filling up of vacant post of public
appointment i.e. by advertisement and by giving opportunity to all eligible
candidates to apply.
39. This Court in State of Jharkhand & Ors. v. Manshu
Kumbhkar13, while allowing of the appeal of the State foundthat the
respondent was not sponsored by the employment exchange. There was
no advertisement and there was not even any properly constituted
committee to make the selection.
40. This Court in State of Bihar v. Upendra Narayan Singh &
Ors.14 allowed the appeal of the State and thatSection 4 of Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959 casts a
duty on the employer in every establishment in public sector in the State
or a part thereof to notify every vacancy to the employment exchange
before filling up the same.
41. This Court in Union of India & Anr. v. Raghuwar Pal Singh15
was examining a case, where the appointment letter came to be issued
without approval of the competent authority, then whether such
appointment letter issued to the respondent, would be a case of nullity
or
a mere irregularity? If it is a case of nullity, affording opportunity to the
incumbent would be a mere formality and non-grant of opportunity may
not vitiate the final decision of termination of his services. This Court
held that in absence of prior approval of the competent authority, the
Director Incharge could not have hastened issuance of the appointment
letter. The act of commission and omission of the Director Incharge
would, therefore, suffer from the vice of lack of authority and nullity in
law.
42. In Nidhi Kaim & Anr. v. State of Madhya Pradesh & Ors.16,
a three Judge Bench was dealing with admission of students to MBBS
13(2007) 8 SCC 249
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Course on the basis of illegal and unfair admission process.  The Court
held as under:
“92. …Having given our thoughtful consideration to the above
submission, we are of the considered view that conferring rights
or benefits on the appellants, who had consciously participated in
a well thought out, and meticulously orchestrated plan, to
circumvent well laid down norms, for gaining admission to the
MBBS course, would amount to espousing the cause of “the
unfair”. It would seem like allowing a thief to retain the stolen
property. It would seem as if the Court was not supportive of the
cause of those who had adopted and followed rightful means.
Such a course would cause people to question the credibility of
the justice-delivery system itself. The exercise of jurisdiction in
the manner suggested on behalf of the appellants would surely
depict the Court’s support in favour of the sacrilegious. It would
also compromise the integrity of the academic community. We
are of the view that in the name of doing complete justice it is not
possible for this Court to support the vitiated actions of the
appellants through which they gained admission to the MBBS
course.
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94. …Even in situations where a juvenile indulges in crime, he
has to face trial, and is subjected to the postulated statutory
consequences. Law, has consequences. And the consequences
of law brook no exception. The appellants in this case, irrespective
of their age, were conscious of the regular
process of admission.
They breached the same by devious means. They must therefore,
suffer the consequences of their actions. It is not the first time
that admissions obtained by deceitful means would be cancelled.
This Court has consistently annulled academic gains arising out
of wrongful admissions. Acceptance of the prayer made by the
appellants on the parameter suggested by them would result in
overlooking the large number of judgments on the point. Adoption
of a different course, for the appellants, would trivialise the
declared legal position. Reference in this behalf may be made to
the judgments relied upon by the learned counsel representing
Vyapam.
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108.  …In the facts and circumstances of the case in hand, it
would not be proper to legitimise the admission of the appellants
to the MBBS course in exercise of the jurisdiction vested in this
Court under Article 142 of the Constitution. We, therefore, hereby
decline the above prayer made on behalf of the appellants.”
43. In another three Judge Bench judgment in Chairman and
Managing Director, Food Corporation of India & Ors. v. Jagdish
Balaram Bahira & Ors.17, the Court was examining the consequences
of false caste certificate produced to seek appointment. The Court held
as under:
“69.  For these reasons, we hold and declare that:
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69.3  The decisions of this Court in R. Vishwanatha Pillai [R.
Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004
SCC (L&S) 350] and in Dattatray [Union of India v. Dattatray,
(2008) 4 SCC 612 : (2008) 2 SCC (L&S) 6] which were rendered
by Benches of three Judges laid down the principle of law that
where a benefit is secured by an individual-such as an appointment
to a post or admission to an educational institution—on the basis
that the candidate belongs to a reserved category for which the
benefit is reserved, the invalidation of the caste or tribe claim
upon verification would result in the appointment or, as the case
may be, the admission being rendered void or non est.
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69.7  Withdrawal of benefits secured on the basis of a caste claim
which has been found to be false and is invalidated is a necessary
consequence which flows from the invalidation of the caste claim
and no issue of retrospectivity would arise;”
44. In view of the aforesaid judgments, it cannot be said that the
appointment of the employees in the present set of appeals were irregular
appointments.  Such appointments are illegal appointment in terms of
the ratio of Supreme Court judgment in Uma Devi. As such appointments
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were made without any sanctioned post, without any advertisement giving
opportunity to all eligible candidates to apply and seek public employment
and without any method of recruitment. Such appointments were backdoor
entries, an act of nepotism and favoritism and thus from any judicial
standards cannot be said to be irregular appointments but are illegal
appointments in wholly arbitrary process.
45. In light of the above discussion, we find that the order dated
July 12, 2011 or other similar orders passed by the High Court cannot be
sustained in law and, thus, are set aside.  The appeals filed by the State
are allowed.
46. We do not find any error in the order of the High Court dated
September 24, 2014, and, therefore, the appeals filed by the candidates
against such order are dismissed.  The pending applications, if any, shall
stand disposed of.
Nidhi Jain
                                          Appeals disposed of.
STATE OF BIHAR & ORS. v. DEVENDRA SHARMA
[HEMANT GUPTA, J.]