THE STATE OF BIHAR AND ORS. versus KIRTI NARAYAN PRASAD
[2018] 14 S.C.R. 403, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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THE STATE OF BIHAR AND ORS.
v.
KIRTI NARAYAN PRASAD
(Civil Appeal No. 8649 of 2018)
NOVEMBER 30, 2018
[MADAN B. LOKUR, S. ABDUL NAZEER AND
DEEPAK GUPTA, JJ.]
Service Law – Appointments – Legality of – Writ petitioners
before High Court had joined the service of State of Bihar under
the orders made by the concerned Civil Surgeon-cum-Chief Medical
Officer of the district – It was alleged that none of the writ petitioners
was appointed through a proper legal recruitment process – The
State Government having found that large number of appointments
were made on the basis of false or forged documents, without
following due process of recruitment and mostly without the
appointment orders, cancelled such appointments and the concerned
incumbents were discharged from service – Writ petitions before the
High Court with specific prayer to regularize service and to set
aside the order of termination of services – Allowed by the High
Court – On appeal, held: The writ petitioners were the beneficiaries
of illegal orders made by the Civil-cum-Chief Medical Officer –
They were given notice to establish the genuineness of their
appointment and to show cause – None of them were able to establish
the genuineness or legality of their appointment before the State
Committee – The State Committee on appreciation of the materials
on record had opined that their appointment was illegal and void
ab initio – There were no grounds to disagree with the said finding
of the State
Committee – In the circumstances, the question of
regularisation of their services did not arise, since the appointment
of the petitioners was ab initio void, they were not the civil servants
of the State.
Disposing of the matters, the Court
HELD:  In the instant cases, the writ petitioners have filed
the petitions before the High Court with a specific prayer to
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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.  There is no ground to disagree with the finding of the
State Committee.  In the circumstances, the question of
regularisation of their services by invoking of the judgment in
Umadevi  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. [Para 17][413-E-H; 414-A]
Secretary, State of Karnataka and others v. Umadevi
(3) and others (2006) 4 SCC 1 : [2006] 3 SCR 953 ;
State of Orissa and Anr. v. Mamata Mohanty (2011) 3
SCC 436 : [2011] 2 SCR 704 – relied on.
State of Karnataka and others v. M.L. Kesari and others
(2010) 9 SCC 24 ; State of Bihar v. Purendra Sulan Kit
2006 (3) PLJR 386 – referred to.
Case Law Reference
[2006] 3 SCR 953
relied on
Para 1
(2010) 9 SCC 24
referred to
Para 1
[2011] 2 SCR 704
relied on
Para 6
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8649
of 2018.
From the Judgment and Order dated 12.07.2011 of the High Court
of  Judicature at Patna in LPA No. 1523 of 2010.
With
Civil Appeal Nos. 8697, 8698, 8699, 8700, 8701, 8702, 8703, 8704,
8705, 8650, 8651, 8652, 8654, 8706, 8655, 8668, 8707, 8670, 8673,
8674-8676, 8677, 8678, 8661, 8656, 8657, 8658, 8659, 8660, 8683, 8684,
8662, 8663, 8665, 8666, 8687, 8688, 8689, 8690, 8691, 8692, 8693, 8696,
10049-10050 of 2018.
Ranjit Kumar, Sr. Adv., Gopal Singh, Manish Kumar, Ms. Aprajita
Sud, Kumar Milind, Rajiv Kumar, D. P. Mohanty, Rameshwar Prasad
Goyal, Navin Prakash, Ms. Meetu Singh, A. K. Yadav, L. R. Rath,
Ms. Rumi Chandra, K. V. Mohan, Manu Shanker Mishra, Abhijat P.
Medh, Ashish Kumar Das, Parmanand Gaur, Dr. Kailash Chand,
Ms. Sandhya Tiwary, Ashok Kumar Tiwary, V. N. Raghupathy, Kedar
Nath Tripathy, Gaurav Agrawal, Ms. Monica Hareja, Ms. Rashmi
Nandkumar, Sandeep Das, Ms. Surbhi Sharma, Ms. Pratishtha Vij,
Abhinav Mukerji, Ms. Bihu Sharma, Ms. Purnima Krishna, Ms. Asha
Upadhyay, Awdhesh Kumar Singh, J. P. Tripathi, Braham Singh,
Rohit Vidhudi, R. D. Upadhyay, Rajiv Shankar Dvivedi, Rajesh Prasad
Singh,  Advs. for the appearing parties.
The Judgment of the Court was delivered by
S. ABDUL NAZEER, J.
1. Some of the appeals out of the aforesaid group of matters have
been filed by the State of Bihar challenging the order of the High Court
of Judicature at Patna, whereby the Division Bench has confirmed
the
order of the learned Single Judge directing reinstatement of the writ
petitioners therein on their respective posts with all consequential benefits
in terms of the order dated 6.10.2009 in CWJC No. 6575 of 2009 and
analogous cases.  In CWJC No. 6575 of 2009 and other connected
matters, learned Single Judge while allowing writ petitions has directed
reinstatement of the writ petitioners therein from the date of their
termination on the post, they were working with all consequential benefits.
The Letter Patent Appeals filed by the State of Bihar challenging the
said order have been dismissed by the Division Bench of the High Court
holding that the writ petitioners have been working continuously for more
than ten years without protection of any interim orders of the Court and
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Tribunal.  It was further held that in view of the Constitution Bench
judgment of this Court in Secretary, State of Karnataka and others
v. Umadevi (3) and others, 2006 (4) SCC 1 and in State of Karnataka
and others v. M.L. Kesari and others, 2010 (9) SCC 247, the
termination order issued against the writ petitioners cannot be said to be
legal.  Accordingly, LPAs have been dismissed.  These orders have also
been challenged by the State of Bihar in this group of appeals.
2. In the other connected matters, the Division Bench of the Patna
High Court has allowed the LPAs and the writ petitions filed by the
petitioners therein have been dismissed holding their appointment as non
est and void ab initio.
3. Since a common issue has been raised in all these appeals, they
are disposed of by this common judgment.
4. The facts of the cases in brief are as under:
5. The writ petitioners had joined the service of State of Bihar
under the orders made by the concerned Civil Surgeon-cum-Chief
Medical Officer of the district.  None of the writ petitioners was appointed
through a proper legal recruitment process.  They were posted in Class
III or Class IV service in a primary health centre within the jurisdiction
of the civil surgeon.  The State Government having realised the large
scale irregularities committed in the appointment by the concerned Civil
Surgeon-cum-Chief Medical Officer, scrutinized all
the appointments.
The State Government having found that large number of appointments
were made on the basis of false or forged documents, without following
due process of recruitment and mostly without the appointment orders,
cancelled such appointments and the concerned incumbents were
discharged from service.  Those orders of discharge were challenged
before the Patna High Court.  The High Court by a common judgment
and order set aside the impugned orders of discharge from service solely
on the ground of violation of the principles of natural justice.  All the writ
petitioners were directed to be reinstated in service without the salary or
remuneration for the interregnum period.
6. Thereafter, the State Government initiated proceedings to
terminate the services of such employees by issuing show cause notice
and calling upon each of them to establish legality of their respective
appointment.  The writ petitioners failed to establish the legality of their
appointment.  Once again their services were terminated.  Feeling
aggrieved, the writ petitioners challenged the said orders before the High
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Court, which eventually reached the Division Bench in Letter Patent
Appeals.  The Division Bench noticed that the writ petitioners were
appointed in Class III or Class IV service and were serving as such for
a long time.  They had claimed the benefit of regularisation in service.
In view of the judgment of this Court in Umadevi (supra), the Division
Bench in State of Bihar v. Purendra Sulan Kit, reported in 2006 (3)
PLJR 386, directed the State Government to find out which of  the
affected employees are entitled for regularisation.  The direction of the
Division Bench is as under:
“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 vs. 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
by them and their final decision in the light of this judgment and
order.”
7. Pursuant to the aforesaid directions, the State Government
constituted a committee comprising of five officers (for short ‘State
Committee’) to examine the facts of individual cases.  However, two
members of the said committee did not participate in the proceedings for
the reasons best known to them.  So, it precipitated into committee of
three members which carried out the aforesaid directions and submitted
its report.  The said committee issued show cause notice to each individual,
considered the facts in each individual case and classified the said
employees in three categories mentioned hereinbelow:
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(i) The employment secured on false and forged document;
(ii) Illegal appointments; and
(iii) Irregular appointments.
8. About 91 cases which were classified as irregular appointments
were eventually ordered to be regularised keeping in view the direction
in Umadevi (supra).  Rest of the appointments being void ab initio,
were cancelled and the services of the concerned employees were
terminated.  The writ petitioners again challenged the order of termination
before the High Court.  Some of the writ petitions were allowed.  Against
such orders the State Government approached the Division Bench by
filing a group of Letter Patent Appeals.  The Division Bench by a common
judgment and order, with the consensus of the learned advocates for the
parties, referred the matter with detailed directions to a Committee
comprising Justice Uday Sinha (retired).   These matters have been
dealt with by Justice Uday Sinha (retired).  He has made report in each
case placed before him.  Those matters are not the subject-matter of
this group of appeals.   Writ petitions were filed by a group of appointees
challenging the report of the State Committee before the High Court.  A
learned Single Judge of the High Court allowed the said writ petitions.
The respective orders made by the learned Single Judge were challenged
by filing LPAs before the Division Bench. The Division Bench allowed
some of the appeals.  In
some cases, the Division Bench directed the
State Government for regularisation in service of the writ petitioners.
These orders are under challenge in the instant appeals.
9. Learned senior counsel appearing for the State of Bihar submits
that the writ petitioners are illegal appointees.  Those whose appointments
were found to be irregular by the committee constituted in pursuance of
the judgment and order of the Division Bench were distinct from those
whose appointments were illegal and the same cannot be treated on the
same footing.  Since, the appointments of the writ petitioners were found
illegal, their services were terminated after giving them an opportunity
of hearing.  The State Committee has examined the correctness of
appointment of each of the writ petitioners and found them to be illegal.
The appointment of the writ petitioners have not been made against the
vacant post by the competent authority.  Their appointment was on non-
sanctioned post by incompetent authority, without an advertisement and
that their appointment could not have been saved in terms of the judgment
in Umadevi (supra).
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10. On the other hand, learned counsel appearing for the writ
petitioners submitted that the writ petitioners have the requisite
qualification for being appointed to the post in question.  They have been
appointed by the committee constituted and headed by the Regional
Deputy Director considering their past health service experience and
qualification and posted in different primary health centres and worked
for the past 2 to 3 decades.  Their appointment is fully protected by the
judgment in Umadevi (supra) and M.L. Kesari (supra).  Therefore, they
cannot be terminated from service at this stage of their career, that too
without holding any disciplinary enquiry against them.
11. We have carefully considered the submissions of the learned
counsel for the parties and perused the materials placed on record.
12. It is not in dispute that the Government of Bihar in its
Administrative Reforms department had issued instructions for
appointment to Class III posts in the Government office under its circular
No. 16440 dated 03.12.1980.  The said circular applies to Class III posts
other than the posts which are filled in by appointment of candidates
selected by Bihar Public Service Commission after a competitive
examination and to the posts which are governed by the Government
resolution dated 28.01.1976.  The said circular sets out a detailed
procedure for notifying the vacancies in Secretariat and its attached
offices, District Magistrates and other Muffassil
Offices and for calling
for applications, preparation of a common merit list and appointment
from the said common merit list in the order of merit.  It also provides
the procedure for constitution of selection committee, preparation of
merit lists and wait list, duration of merit lists and wait list.  A similar
circular No. 16441 was also issued on 03.12.1980 for appointment to
Class IV posts in the Muffassil Offices of the Government.  These
circulars had been issued to avoid discrimination in appointment to Class
III and Class IV posts in the Government offices and provide for
generalized procedure in consonance with Articles 14 and 16 of the
Constitution.  The appointment of the writ petitioners have not been
made in accordance with these circulars.  Therefore, the contention of
the learned counsel for the writ petitioners is that since the writ petitioners
have served for more than 10 years and some of them have even
completed 20 years of service, they ought to have been regularized in
terms of the judgment in Umadevi (supra) and M.L. Kesari (supra).
THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD
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13. In Umadevi (supra) the Constitution Bench has held that unless
appointment is made in terms of the relevant rules and after a proper
competition among qualified persons, the same would not confer any
right on the appointee.  If it is a contractual appointment, the appointment
comes to an end at the end of the contract, if it was an engagement or
appointment on daily wages or casual basis, the same would come to an
end when it is discontinued. A temporary employee could not claim to be
made permanent on the expiry of his term of appointment. It was also
clarified that merely because a temporary employee or a casual wage
worker is continued for a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original appointment
was not made by following a due process of selection as envisaged by
the relevant rules.   In paragraph 43 of Umadevi (supra), it was held as
under:
“43. Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution and since
the rule of law is the core of our Constitution, a court would
certainly be disabled from passing an order upholding a violation
of Article 14 or in ordering the overlooking of the need to comply
with the requirements of Article 14 read with Article 16 of the
Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the relevant
rules and after a proper competition among qualified persons, the
same would not confer any right on the appointee. If it is a
contractual appointment, the appointment comes to an end at the
end of the contract, if it were an engagement or appointment on
daily wages or casual basis, the same would come to an end when
it is discontinued. Similarly, a temporary employee could not claim
to be made permanent on the expiry of his term of appointment. It
has also to be clarified that merely because a temporary employee
or a casual wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the strength of
such continuance, if the original appointment was not made by
following a due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular recruitment at
the instance of temporary employees whose period of employment
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has come to an end or of ad hoc employees who by the very
nature of their appointment, do not acquire any right. The High
Courts acting under Article 226 of the Constitution, should not
ordinarily issue directions for absorption, regularisation, or
permanent continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Merely
because an employee had continued under cover of an order of
the court, which we have described as “litigious employment” in
the earlier part of the judgment, he would not be entitled to any
right to be absorbed or made permanent in the service. In fact, in
such cases, the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee approaching
it is found entitled to relief, it may be possible for it to mould the
relief in such a manner that ultimately no prejudice will be caused
to him, whereas an interim direction to continue his employment
would hold up the regular procedure for selection or impose on
the State the burden of paying an employee who is really not
required. The courts must be careful in ensuring that they do not
interfere unduly with the economic arrangement of its affairs by
the State or its instrumentalities or lend themselves the instruments
to facilitate the bypassing of the constitutional and statutory
mandates.”
   (Emphasis supplied)
14. However, in paragraph 53 an exception is made to the general
principles against
regularisation as a one-time measure which is as under:
“53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in
S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan
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 abovereferred to and in the light of this judgment.
In that context, the Union of India, the State Governments and
their instrumentalities should take steps to regularise as a one-
time measure, the services of such irregularly appointed, who
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have worked for ten years or more in duly sanctioned posts but
not under cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in cases where
temporary employees or daily wagers are being now employed.
The process must be set in motion within six months from this
date. We also clarify that regularisation, if any already made, but
not sub judice, need not be reopened based on this judgment, but
there should be no further bypassing of the constitutional
requirement and regularising or making permanent, those not duly
appointed as per the constitutional scheme.”
15. In some of the LPAs the Division Bench appears to have
followed paragraph 11 in M.L. Kesari (supra) for directing regularisation
of service without considering the observations contained in paragraph
7 of the judgment. In paragraph 11, it was observed that “the true effect
of the direction is that all persons who have worked for more than ten
years as on 10.4.2006 [the date of decision in Umadevi (3)] without the
protection of any interim order of any court or tribunal, in vacant posts,
possessing the requisite qualification, are entitled to be considered for
regularisation within six months of the decision in Umadevi (3) as a one-
time measure …………”.   However, in paragraph 7 after considering
Umadevi
(supra) this Court  has categorically held that for regularisation,
the appointment of employee should not be illegal even if irregular.
“7.  It is evident from the above that there is an exception to the
general principles against “regularisation” enunciated in Umadevi
(3), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years
or more in duly sanctioned post without the benefit or protection
of the interim order of any court or tribunal. In other words, the
State Government or its instrumentality should have employed
the employee and continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should not be illegal,
even if irregular. Where the appointments are not made or
continued against sanctioned posts or where the persons appointed
do not possess the prescribed minimum qualifications, the
appointments will be considered to be illegal. But where the person
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employed possessed the prescribed qualifications and was working
against sanctioned posts, but had been selected without undergoing
the process of open competitive selection, such appointments are
considered to be irregular.”
(Emphasis supplied)
16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3
SCC 436, this Court has held that once an order of appointment itself
had been bad at the time of initial appointment, it cannot be sanctified at
a later stage.  It was held thus:
“68(i)  The procedure prescribed under the 1974 Rules has not
been followed in all the cases while making the appointment of
the respondents/ teachers at initial stage.  Some of the persons
had admittedly been appointed merely by putting some note on
the notice board of the College.  Some of these teachers did not
face the interview test before the Selection Board.  Once an order
of appointment itself had been bad at the time of initial appointment,
it cannot be sanctified at a later stage”.
(Emphasis supplied)
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 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
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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.
18. Therefore, the Civil Appeals filed by the writ petitioners in the
aforesaid batch of appeals are hereby dismissed.  The Civil Appeals
filed by the State of Bihar are allowed and the writ petitions filed before
the High Court of Patna in the said cases are hereby dismissed.  There
shall be no order as to costs.
Ankit Gyan
Appeals disposed of.